H Vs. H

JUDGEMENT

(1.) This case is another illustration of the difficulties confronted by those who have to administer jurisdiction under the Divorce Act in this country as compared with the Divorce Courts in England. We have already referred in Premchand Hira V/s. Bai Galal as to the course which ought to be adopted by Indian Courts in dealing with these petitions. The present is a nullity suit brought by the wife. Under Section 19 of the Indian Divorce Act the petitioner has to prove that her husband the respondent was impotent at the time of the marriage and at the time of the institution of the suit. She has also to comply with the other provisions necessary to constitute jurisdiction for this Court under the Act. It is clear from the evidence that the husband was not impotent as regards all women, but it is alleged by the petitioner that he was impotent so far as she is concerned, and that in fact the marriage was never consummated. The husband admits that after the first fortnight he never had intercourse with his wife because he felt a coldness towards her. but he alleges that on three occasions during the first fortnight of the marriage he had successful intercourse with his wife. The learned Judge did not believe portions of the story of the lady, but he accepted the fact that the parties had desisted from sexual intercourse, and he held at the end of his judgment that despite the words in the Act he had an equitable jurisdiction to dissolve the marriage.

(2.) He states : Under these circumstances, I feel some diffidence in giving a decree for nullity of marriage strictly under the law, which seems to require impotency even at the time of the marriage. But taking an equitable view and seeing that the real purpose of the marriage fails in the absence of capacity for consummation, though it be with reference to the particular individual,... lam inclined to think that the spirit of the law permits me to follow the decision reported in the 16 Bow., case, and hold that in a case lika this the practical impotency of the husband in relation to the plaintiff would be sufficient to declare the marriage a nullity.

(3.) The learned Judge, with all respect, has misunderstood the use of the word equitable , as, indeed, could easily be demonstrated by referring to the origin and the history of the equitable jurisdiction of the Chancery Courts. Equity follows the law, and the learned Judge had no power whatever under the guise of equity or on any other ground to depart from the plain meaning of a plain statute.