PRATIMA ROUTH Vs. HRIDAY RANJAN ROUTH

JUDGEMENT

(1.) In this painful case, the complaining spouse was the wife. She raised this action under the provisions of Sections 18 and 19 of the Indian Divorce Act, 1869 (Act IV of 1869) hereinafter called the Act concluding for declarator that the husband was, at the time when the pretended marriage between him and the pursuer was entered into and still is impotent, and unable to consummate marriage; that the pretended marriage was from the beginning, is now and in all time corning, shall be null i.e., of no avail, force, strength and effect.

(2.) The charge of impotency, particularly physical, is nevertheless a grave and wounding imputation viz., that the respondent is lacking at least quoad hanc, in the power of reproducing his species, a power which is commonly and rightly considered to be the most characteristic quality of manhood. The observations of Dr. Lushingtoh in D. v. A., (1845) 1 Rob Eccle 279 (298) as to the two principal ends of matrimony being "a lawful indulgence of passions to prevent a licentiousness and procreation of children according to the evident design of Divine Providence", though not being wholly followed, the practical statesman still continues to regard the marriage relation as a civil institution whose chief purpose is the legalisation of sexual commerce. The capacity for sexual intercourse must therefore exist at least in posse. It is for this reason, impotency is recognised as the ground for annulment of marriage.

(3.) The parties are Christians. The marriage was celebrated under the Christian rites (thought to be sacred) on December 18, 1954, The Christian maxim "let not man separate those whom God hath joined" cannot be unfortunately literally acted on by the Courts today. The effective ground in the case being the impotency of the husband, is stated to have been discovered by the wife immediately after the marriage. There are also allegations of cruelty, namely that, the petitioner was a virtuous girl; but the husband forcibly compelled her to live with the husband's younger brother (a bachelor) against her will and compelled her to get conceived by him, as a result of which she delivered an illegitimate female child on October 2, 1956. It is also stated that the husband drove the petitioner by taking away all her personal properties and that the petitioner being helpless, took shelter in her sister's husband's home with the baby, aged five years. We are next brought down to the date i. e., August 1, 1962, when the instant application was filed by the wife for a decree for nullity, resting her case as stated on the ordinary rule that she is entitled to be relieved on the ground propter impotentiam. The cause of action is stated to have arisen, on December 18, 1954, i. e., the date of marriage.