BIRENDRA KUMAR BISWAS Vs. HEMLATA BISWAS

JUDGEMENT

(1.) This is an appeal from a judgment of Mr. Justice Fletcher in a suit by a husband under Section 18, read with Section 19, of the Indian Divorce Act, 1869, to declare his marriage with the defendant null and void on two grounds, namely, first, that the respondent was impotent at the time of the marriage and at the time of the institution of the suit, and secondly, that his consent to the marriage was obtained by fraud, The parties are Indian Christians in an humble state of life and were married on the 15th February 1918 at the Baptist Church at Entally in the subarbs of this City. The petitioner alleged that the parents of the respondents as also the respondent herself, were, at the time of the marriage, suffering from a highly infectious and insurable form of syphilis; that this fast was wilfully concealed from him; that his consent to the marriage was thus brought about by fraud, and that he discovered the condition of his wife only On the second day after his marriage. Toe petitioner further stated that he had found it impossible to consummate the marriage and had accordingly instituted this suit on the 4th April 1918, so that the marriage might be declared null and void. The respondent denied that she bid syphilis at the time of her marriage and asserted that the marriage had been consummated with the result that she had contracted the disease from her husband. The question of fraud does not appear to have been investigated in the Court below; but three medical practitioners who had seen the girl deposed as to her condition, the petitioner and the respondent also testified in support of their respective allegations. Mr. Justice Fletcher has found on the evidence that he marriage has not been consummated; that the respondent is a virtuous girl, and that she suffers from hereditary syphilis. This is undeniable on the medical testimony and is evidenced by the ulcerated condition of her palate and nose. As there had been no examination of the private parts of the girl, it was impossible to say whether they were in any way diseased. In these circumstances, Mr. Justice Fletcher declined to annul the marriage, although he found that the husband would run a degree of risk if he had sexual intercourse with his wife. On the present appeal, Mr. Avetoom has contended on behalf of the husband that the test to be applied in cases of this description is, whether the condition of one of the parties to the marriage, at the time of the marriage, rendered consummation practically impossible, and if this is established the marriage is voidable. In support of this argument, he has relied upon the decisions in G. v. G. (1871) 2 P. & C. 287 : 40 L.J. Mat. 83 : 25 L.T. 510 : 20 W.R. 103 and H. v. P. (1873) 3 P. & D. 52. In the former case a middle-aged wife had successfully resisted consummation for three years not because of malformation or structural defect, but because she suffered from excessive sensibility; her condition was by sterical and to a certain extent beyond her control. Lord Pendence held that as there was practical impossibility of sexual intercourse, without which the ends of marriage, namely, the proportion of children and the pleasures and enjoyment of matrimony, could not be attained the husband was entitled to a decree for nullity. In the second case, Sir James Hinnen ruled that the impediment in the way of intercourse must be physical, and made a decree for nullity, as it was established that, whenever the husband endeavoured to consummate the marriage, the act brought on hysteria, so that he could not effect his purpose without employing such force as, but for the marriage, would have amounted to rape. Mr. Bannerjee, on behalf of the wife, has contended that the decisions mentioned prescribe the extreme limit of the rule of impotents and should not be extended to cases like the present. In support of his argument, he has referred to the judgment of Sir Cresswell in Stagg v. Edgecombe (1863) 3 Sw. & Tr. 240 : 32 L.J. Mat. 153 : 9 Jur. (N.S.) 698 : 8 L.T. 643 : 12 W.R. 19 where a petition for nullity by a wife was on the authority of the decision of Dr. Bettesworth in Welde v. Welde (1731) 2 Lee 580 at p. 866 : 101 E.R. 447 that the impotence must be a visible incapacity dismissed, as the alleged impotence of the husband vas not due to disease or natural infirmity but was occasioned by the indulgence of a disgusting and degrading habit. None of the cases cited in argument is directly in point, and the question raised is plainly one of first impression, so far as this Court is concerned. The matter consequently requires careful investigation, specially in view of the fast that it is only in comparatively recent times that the true nature of syphilis has been revealed by scientific investigators.

(2.) An examination of the cases in the British and American Courts shows that the question of the legal effect of the existence of syphilis on contrasts to marry or on the married status has been considered from three standpoints, which, though distinct, are mutually related, namely, first is the existence of Such a disease a valid defense to an action for breach of a contract to marry, secondly, is the existence at the time of the marriage a ground for annulling the union and, thirdly, is it a ground for divorce.

(3.) As regards the first question, namely, whether the existence of syphilis in one of the parties to a contrast to marry is a good ground for rescission by the other, we have not been able to trace any reported case in England where the point has been judicially determined. Lord Kenyon in Atchison v. Baker (1796) 2 Peake 103 is reported to have laid it down as a general rule that if the condition of the parties was changed after the making of the contract, it was good ground for either to break off the engagement. In the case before him, he ruled that where the plaintiff had become afflicted with an abscess in his breast and the defendant had refused to marry him on that ground, an action for breach of contract could not be sustained. The same rule has been applied where the affliction was syphilis; Kutzelr v. Grant (1878) 2 III. App. 286, Allen v. Baker (1882) 41 Am. Sep. 414 : 86 N.C. 91, Schackleford v. Hamilton (1892) 15 L.R.A. 531 : 19 S.W. 5. The rule enunciated in these cases may be briefly formulated; where syphilis contradicted, prior to but was not known to exist at the time that the contract to marry was entered into, or where such disease was protracted subsequent to the making of the contrast to marry, but through no wrongful act of the defendant, its existence furnished a good defence to an action for breach of promise. It is to be observed that in both the Cases just mentioned, the affliction was of a serious type, and, perhaps, incurable; the rule might well be otherwise where the disease is Such as to be easily curable and where the plaintiff assents to a postponement of performance. The reason for the rule is best stated in the words of Ruffin, J. in Allen v. Raker (1892) 16 L.B.A. 531 : 19 S.W. 5.