JEAN EMELINE THAVAMANI Vs. JOSEPH TAYLOR

JUDGEMENT

(1.) THIS case comes before us for confirmation of the decree of the learned District judge, West Tanjore, declaring the marriage between the petitioner and the respondent as null and void on the ground of the impotency of the respondent. The petitioner is the wife and the parties are Christians. Their marriage was solemnised on 29th May 1961 at Kumbakonam and according to the case of the petitioner, as set out in her petition, "during her stay with the respondent, in spite of her best efforts, she was not able to get conjugal happiness from the respondent" and "found that the respondent was impotent at the time of the marriage". It is also averred in the petition that the respondent did not want to live with the petitioner and began to shun her presence. Three months after the date of the marriage itself, the petitioner was sent away to her parents' house. The petition for declaration of the nullity of marriage under Ss. 18 and 19 of the indian Divorce Act was filed on 26th October 1962. The petitioner herself, at the time of the marriage, must have been aged about 24 years and a teacher. The respondent, husband, is employed as a Physical Instructor at Madurai and aged about 30 years. The application under the Indian Divorce Act was preceded by a lawyer's notice ex. A-2, the receipt of which has been acknowledged by the respondent. As the learned District Judge placed some reliance on this notice for his conclusion as to the impotency of the respondent, it is necessary to refer to the material allegations therein. All that is stated there amounts to this. Since the date of solemnisation of the marriage, the respondent never lived with the petitioner as her husband; and he was not physically capable of having conjugal relationship with the petitioner. The respondent is further charged with having stated before certain mediators, who approached him on behalf of the petitioner, that he would never again live with the petitioner and that he would consent for a divorce, as he was not willing to continue the marital relationship. In the proceeding before the district Court, the respondent who had been served has been ex parte.

(2.) THE petitioner was represented by counsel and the material portion of her evidence which is not very articulate on the question for consideration, can be set out:

(3.) WHILE S. 18 of the Indian Divorce Act, 1869, enables the husband or wife to present a petition for declaration of a marriage as null and void, the grounds for such a decree are set out under S. 19. Clause (1) of S. 19 provides that a declaration of nullity could be had on the ground that the respondent was impotent at the time of the marriage and at the time of the institution of the suit. Modi in his Text Book of Medical Jurisprudence and Texicology (13th Edn.) at page 291 defines "impotency" as "physical incapacity of accomplishing the sexual act, while sterility means inability for procreation of children". The causes of impotence and sterility in the male, according to the learned Author, may be age, malformations, local diseases, general diseases and psychical influence. Temporary absence of a desire for sexual intercourse may result from fear, anxiety, guilt, sense, timidity, aversion, hypochondriasis, excessive passion and sexual over-indulgence. Sometimes a person may be not impotent generally but impotent with reference to a particular individual; Impotentia quoad huno vel hano. A reference to the English text books on matrimonial jurisprudence shows that impotency has been generally understood as meaning an incapacity to have sexual intercourse, that which undeniably is considered to be one of the objects of a marriage.