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QVS (any)     28 January 2012

How is impotence proved in a man for annulment of marriage

My nephew has been married for 3 years now and it was recently revealed that he has not consummated his marriage so far. 

He went to an andrologist and it was determined that he is able to obtain and maintain erection using viagra. There were also no medical reports suggesting anything out of the ordinary. 

Couple questions - 

1) How is impotence proved for a male for the case of annulment of marriage?

2) Based on my nephew's condition, would it fall under impotency? 



Learning

 12 Replies

Kanaksinh P.Boda (Educationist/Lawyer)     28 January 2012

It is to be proved medically. It has to be incureable. It has to be permanent. Here it is treatable and hence not permanent.

2 Like

Avnish Kaur (Consultant)     28 January 2012

only his wife can ask for annulment , not he himself

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     28 January 2012

Dear QVS It is matter of evidence provided by the petitioner, the burden of proof lies upon the petitioner to prove it.

Gulshan Tanwar (Advocate)     26 March 2012

Ms. Kaur, rectify urself, this is the only ground even where the husband can seek divorce :)


(Guest)

It is to be proved through medical tests. Curable impotency is no ground on which a marriage can be annulled.

 

Regards,
Ashish Davessar
Advocate
+918427414792

Avnish Kaur (Consultant)     26 March 2012

mr. tanwar A MALE CANNOT seek annulment for his own  impotency.

Avnish Kaur (Consultant)     26 March 2012

mr tanwar read bare act :

"that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings"

a party cannot seek relief for his own wrongdoing.

although in the above case there are many other ways to get divorce/annulment.

Gulshan Tanwar (Advocate)     27 March 2012

Everything doesnt goes with the bare act.......search 2002 judgment.
and the same question had been given in detail to one of query.

Dont be bookish please, just saying a very simple thing, Read order 1 rule8 and 12 CPC--- it says about PoA--- but in practice it is not required, for the same read commentaries......

Gulshan Tanwar (Advocate)     27 March 2012

Impotence as a ground for dissolution of marriage is a medico-legal problem and  Impotence is defined as lack of ability to perform s*xual act and sterility is defined as lack of ability to procreate children. Questions of impotence and sterility arise when divorce is sought (a) because, marriage cannot be consummated (i.e., one of the parties is incapable of complete s*xual intercourse), (b) if incapacity for consummation can-not be surgically remedied, or, the defective party is unwilling to submit to a surgical operation; or (c) if the incapacity existed before marriage. (Sterility, by itself, offers no ground for divorce). Impotence is attributed to injury to head, neck, or loins.

Potence in case of males means power of erection of the male organ 'plus' discharge of healthy semen containing living spermatozoa and in the case of females means (1) development of external and internal genitals and (2) ovulation and menstruation.

Causes of impotence: (*Apply to males only. --*Apply to females only; those unmarked, apply to both s*xes):--

1. Organic: 1. 'Nervous Lesions*': Diseases of, or injury to, brain or cord. 2. 'Malformation or absence of parts* male organ may be absent, non-developed, ill-developed, or two or more in number: adherent to scrotum or abdomen; fibrous or cartilaginous; hypospadias; congenital phimosis, anorchidisni, cry-ptorchidism; diseases of or accidents to or operations on the male organ, testicles or ducts (perinaeum).

*Atersia or narrowness of vulva, absence of uterus, tough hymen or v**gina. (Though according to law, a boy under 14 is impotent, in fact, he is not always so). Also -- Obesity, 3. 'Inflammations or Cicatricial' contractions*. 'Vaginismus'. Krauroses vulvae; internal piles, tight stricture. 4. Tumorous*:--Elephantiasis; 'hernia', big hydrocele.

"Psychial* 1. Absence of voluptuous thoughts. 2. 'Repugnance' towards individuals, 'fear', 'timidity', 'excessive passion'. (For this reason, a man may be potent towards one woman and impotent towards another.

Atonic.* (Therefore, often temporary impotence). 1. 'From general diseases' and 'conditions': -- Old age, too frequent coitus, wasting diseases (diabetes); anaemia; uraemia, cholaema, rhumatism, diptheria, Heart diseases, chronic nephrities, acute fevers, parotitis. 2, 'From Over-indulgence in drugs': lead, potassium Iodide, opium, cannabis indica and other narcotics; alcohol, tobacco, thyroidin. 3. 'From chronic irritation of genital passages -- due to gonorrhoea, stricture, masturbation vaginismus.

 

As the great and primary object of marriage is the procuring of the male issue, physical capacity is an essential requisite so long as mere selection of a bridegroom is concerned; but a marriage with an eunuch is not an absolute nullity.....It has now been held by the High Courts of Madras and Allahabad 'in decisions of questionable correctness the under the Hindu Law an impotent person can be lawfully married

'Mulla's Hindu Law (llth Edition) page 537:'

"It has been held by the Calcutta High Court that the marriage of a female with a male who is impotent and is not able to consummate the marriage is nullity"

'Raghavachariar's Hindu Law' (3rd Edition) page 51:

"Marriage does not exist solely for s*xual intercourse and a marriage with an impotent person cannot be held invalid though one of the chief objects of marriage, viz., begetting of children is defeated thereby".

'Muslim Law:' Under Muslim taw impo-tency as a ground for divorce was available even before the passing of the Dissolution of Muslim Marriages Act VIII of 1939. Under the Act which has accepted all principles of Muslim Law with slight changes in the. procedure and conditions, a Mahomedan wife --- in the converse case of the husband he being simply left to his -ordinary power of divorce is entitled to seek divorce on the ground of impotency of the husband subject to the following conditions:

(i) that the impotence existed at the time of marriage; Feroze-din v. Mt Wazir Eegam, AIR 1926 Lah 218 (G); Mt. Altafan v. Ibrahim, AIR 1924 All 116 (H) confirmed in Mohamed Ibrahim v. Altafan, AIR 1925 All 24 (I).

(ii) that the wife had no knowledge of it at the time of marriage; (AIR 1924 All 116 (H) supra).

(iii) that the defect had not since been removed, Badardim v. Mt. Allah Rakhi, AIR 1937 Lah 383 (J). According to the Act VIII of 1939 the material date is the date of marriage and not the date of consummation. It would mean that if a husband is potent at the time of marriage but becomes impotent be fore the date of consummation the wife will not be entitled to Judicial divorce. It was necessary even before the Act to prove that the impotency existed all through the period of marriage and remained incured since the time of marriage, (Pir Bux v. Muha mmad Unnissa, AIR 1927 All 100 01); AIR 1937 Lah 383 (J);

An impotent person is defined by the Mahomedan Law as one who is unable to have a connection with a woman, though he has the natural organs; and a person who is able to have connection with ah enjoyed woman, but not with a virgin, or with some women but not with others whether the disability be by reason of disease, or weakness or original constitution, or advanced age or enchantment, is still to be accounted impotent with respect to her with whom he cannot have connection. Bailie's Mahomedan Law, Vol. I, page 347; AIR 1924 All 116 (H). This definition seems to hold good under the Act. Under Shia Law the wife was not entitled to separation if the impotency was only special in her case or what is called 'ad hoc' in English Law. The Act does not make any difference and it appears provisions of the Act would be applicable to all schools of Muslim Law.

A man, may, however, be nominally or temporarily potent due for instance to the use of certain medical drugs or other cause; or he may be potent as regards some women and not potent as regards his wife: AIR 1924 All 116 (H). For detailed exposition (see R. B. Sethi Muslim marriage and its dissolution (1955) p. 97 and foll; R. K. Wilson Anglo-Muhammadan Law Fifth Edn. p. 145).

Section 30 of the Parsi Marriage and Divorce Act III of 1936, which has not amended section 28 of Act XV of 1865, runs as follows:

"In any case in which consummation of the marriage is from natural causes impossible, such marriage may, at the instance of either party thereto, be declared to be null and void". It will be noticed that under this Act impotency is not a ground for divorce but for declaring the marriage null and void (See Parsi Marriage and Divorce Act by Wadia and Katpitia, 1939 Edn. page 60).

Under the Special Marriage Act, 1954, impotency is not a ground for divorce, but only a ground for nullity of marriage. Section 24 states:

"(1) Any marriage solemnized under this Act shall be null and void and may be declared by a decree of nullity;

(2) If the respondent was impotent at the time of the institution of the suit".

Under the Hindu Marriage Act, 1955, also, impotency is not a ground for divorce but a ground for nullity. Section 12 states:

"Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds namely--

(a) that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings; ......

(See Commentaries of Hindu Marriage Act XXV of 1955 by K. P. Saxena, page 159).

Under the Indian Divorce Act IV of 1869, impotency is not a ground for divorce but a ground for nullity of marriage under sections 18 and 19 of that Act. -

Section 18 states:

"Any husband or wife may present a petition to the District Court or to the High Court, praying that his or her marriage may be declared null and void." -

Section 19 states:

"Such decree may be made on any of the following grounds:

1. that the respondent was impotent at the time of the marriage and at that time of the institution of the suit;......"

15. The following case-law under Section 19 of the said Act is apposite:

Capacity for s*xual intercourse must exist at-least 'in posse' at the time of marriage. Permanent and incurable impotency such as to render complete and natural s*xual intercourse between parties practically impossible is a ground for annulment of marriage. Impotency means physical and incurable incapacity to consummate marriage. Incapacity may result from loathsome and incurable syphilis: 'Birendra Kumar v. Hemlata Biswas', AIR 1921 Cal 459 (K).

If a marriage is once consummated; nullity cannot be given on ground of subsequent impotency. Impotency must be present at time "Of marriage and suit: Kishore Sahu v. Mrs. Snehprabha Sahu, AIR 1943Nag 185 (SB) (L).

Proof of impotence, that is physical unfitness for consummation, must be proved or there must be facts from which this can be inferred; AIR 1916 Mad 675 (2) ,(FB) (M). Non attainment of puberty by a woman is no ground as the fact does not in any manner preclude the consummation of marriage: 29 Mad LJ 183: (AIR 1916 Mad 675 (2)) (M). Loathsome and incurable syphilis of wife, resulting in her incapacity to consummate marriage entitles husband to a decree for nullity on- ground of her impotency: Birendra Kumar v. Hemalata Biswas, AIR 1921 Cal 464 (N); E. A. Wylie V. Mrs. R. Section Wylie, AIR 1930 Oudh 83 (O), Syphilis to amount to impotency must be incurable, even though the disease is not an absolute'bar to compulation. But where woman is discharged from hospitals as cured, with a negative blood test, syphilis cannot be said to be incurable and the marriage cannot be dissolved. But see AIR 1930 Oudh 83 (O).

Wife's invincible repugnance to act of coitus rendering her incapable of s*xual intercourse entitles husband for declaration of nullity of his marriage, Burden of proof is on time and is increased by delay on his part. But delay by itself is not an absolute bar unless the respondent has thereby in any way suffered: Bull v. Mrs. Bull, AIR 1938 Cal 684 (P) When husband is impotent as regards his wife only, decree for nullity can be granted H. v. H., AIR 1928 Bom 279 (Q); Wilson v. Wilson, AIR 1931 Lah 245 (R); AIR 1943 Nag 185 (L); (Attempt to consummate, reducing wife to state of hysteria, making consummation impossible). See also Section v. B. 16 Bom 639 (S):

No presumption can be drawn from the fact that the wife was unwilling to live with husband that she was impotent; Emmanuel Singh v. Kamal Saraswati, AIR 1934 Pat 870 (1) (FB) (T).

Courts have wide discretion in ordering physical examination of the party suffering from the disease and always do so, subject to such conditions as will afford protection from violence to natural delicacy and sensibility. Where a party refuses to attend for medical inspection, the court may probably draw an unfavourable inference: AIR 1921 Cal 459 (K); H. v. H., 30 Bom LR 523 at p. 527: (AIR 1928 Bom 279 at p. 280) (Q); Intract v. Intract, (1933) P 190 (U), under the (U.K. ) matrimonial causes Rules (of Rule 24)there is specific provision for medical inspection).

The burden of proof is heavy on the petitioner as it involves a slur on the manhood or womanhood of the other party: 29 Mad LJ 183: 30 Ind Gas 565: (AIR 1916 Mad 675 (2)) (FB) (M). Impotency means incapacity to consummate the marriage and that therefore in the circumstances the respondent must be deemed to be impotent so far as the petitioner was concerned at the time of the marriage and at the time of the institution of the suit and the marriage between the petitioner and the respondent must be declared mill and void: In England impotence has always been a ground for nullity only but not a ground for divorce. The law on the subject has been summed up by Tolstoy Jin his "Law and Practice of Divorce and Matrimonial Causes" (Second Edition) at page 94 and following as follows:

"Impotence is inability to consummate the marriage and to be a ground for nullity, such inability roust exist at the time of marriage (Note one) and continue to exist at the date of the petition. Sterility unaccompanied by impotence is no ground for nullity. (Note Two) if he or she be otherwise 'apta viro'.

At one time it was necessary to wait three years before asking for relief and it was the practice of the Court to adjourn the case to give the parties an opportunity for further attempts. If this failed, then impotence was presumed. This is no longer the practice and there is now no minimum period to get over prior to the presenting a petition for nullity.

To consummate a marriage, ordinary and complete s*xual intercourse must take place. Partial intercourse or intercourse which, is so imperfect as scarcely to be natural is insufficient (Note Three). In determining whether intercourse is ordinary and complete the word 'consummate' must be construed as it is understood in common parlance and in the light of social conditions known to exist. (Note Four).

The inability to consummate may be due to a physical defect which is incurable, or to one which is curable but which the respondent refuses to have cured, (Note Five) or to mental or moral disability, (Note Six). In the latter case, it sometimes happens that a' person is capable of having intercourse, but incapable of performing it with the particular individual, i.e., impotent 'quoad hunc' or 'quoad hanc'. This is sufficient to found a decree of nullity, as what matters is ability to have intercourse in general (Note seven).

Provided there are no circumstances which constitute a bar to relief, e.g., knowledge of the defect at the date of marriage, the impotent party can himself petition for nullity and his right to do so is not conditional on repudiation of the marriage by the other party.

Generally speaking, a spouse who does not attempt or fails in his attempts at s*xual intercourse will have the burden of proving that he or she is capable and the burden is heavier in the case of a, man. (Note eight). The Matrimonial Causes Rules 1950, Rule 24 provides for a medical inspection of the parties in the case of nullity for impotence or wilful refusal to consummate. (Rule 24), but the Court may grant a decree though the respondent refused to submit to the inspection (Note nine). In fact, the respondent's refusal may incline the court to draw the inference that the petitioner's allegations are true.

The birth of a child is not conclusive evidence that the marriage has been consummated as it is well established that fecundation 'ab extra' can take place (Note ten).

In a proper case the court will order a petitioner who alleges that the respondent is incapable of consummating the marriage to give particulars of the nature of the incapacity alleged. (Note Eleven.) Evidence of non-access is admissible, if given in nullity suits for incapacity."

'Impotency is an incurable incapacity that admits neither copulation nor procreation, the copulation contemplated being copula vera and not partial, imperfect, or unnatural. It must be incurable and render complete s*xual intercourse 'practically impossible. Thus absence of conceptive power or barrenness does not constitute impotency if there is complete power of copulation."

"Section 140. Capability of consummation is an implied term in every marriage contract. It is so essential that on discovery of the entire incapacity of one of the parties for that duty of wedlock, the other may have a decree annulling the marriage. Underthe canaon law as administered in England, impotency existing at the time of the marriage was ground a divorce a 'vinculo matrimonii". In this country in the absence of a statute so providing, impotency on the part of either spouse is not a ground for divorce, as the grounds for divorce are only those specified by the statutes.

Also, from the facts that impotence is canonical disability cognizable only the ecclesiastical courts and that we have no such courts, it follows and it is generally so held, that in the absence of statute on the subject, our courts have no jurisdiction to grant a divorce on this ground. It is well settled both in England and in this country that impotency does not render the marriage void but merely voidable, and the marriage is regarded as valid unless avoided by some court having jurisdiction during the life of both parties.

At the present time statutes exist in the several States either authorizing divorces for impotency or conferring jurisdiction on some court to annul the marriage therefor".

"Section 141....it is well settled that if, by reason of malformation or organic defect existing at the time of marriage, there cannot be natural and perfect coition -- vera copula -- between the gardes, the case comes within the legal definition of impotency. If, however, there is a probability of capacity to accomplish the s*xual act, no decree will be granted. (1870), 33 Md. 401-3 Am Ren & 183 (Z32).

The origin of the incapacity is immaterial. It may proceed from malformation of the s*xual parts or from absence of necessary organs. On the part of the husband, it may arise from the excessive abnormal proportions of his s*xual organs or from genital weakness produced by self-abuse. On the part of the wife, it seems not essential that there be any structural defect. Excessive sensibility rendering s*xual intercourse practically impossible on account of the pain it would inflict or an invincible re-pugnance to s*xual intercourse resulting in a paralysis of the will may be sufficient: S. v. S., 192 Mass 194 (Z38).

Universal impotency does not seem to be essential. Impotency quoad hoc, as it is termed, is sufficient; that is, if the defendant is entirely incapable of s*xual intercourse with the plaintiff, though not with other persons, if such a thing is possible, a decree of nullity may be granted. This view is said to be reasonable, for the marital relation is with the plaintiff; and if the defendant is incapable of consummation with the plaintiff, the incomplete con-tract ought to be dissolved, whatever may be the defendant's powers with respect to other persons. On principal, therefore, relative and not absolute Impotency would seem to be sufficient.....": Vandonberg v. Vandonberg, 197 N Y S 641 (Z40).

To sum up, a marriage will be avoided or dissolved on the ground of impotence, on the petition of either party if it is proved that at the time of the marriage one of the parties is and continues to be Incapable of effecting or permitting its consummation either of some structural defect in the organs of generation which is incurable and renders complete s*xual intercourse impracticable or of some incurable mental or moral disability resulting in the man inability to consummate the marriage with the particular woman or in the woman to an invincible repugnance to the act of consummation with the particular man.

Though in practice the terms, "declare the marriage null and void" and "dissolution of marriage" are used interchangeably, in strict reality, it is only voidable and void and non-existent marriages which can be declared null and void, and the contract of marriage made void ab initio; in regard to a valid marriage, it can only be annulled or dissolved provided one or more-specified grounds for divorce have been made out.

While in the case of 3 void marriage the decree merely 'declares' status, in the case of a voidable marriage the decree changes status. The children of a void marriage for instance unless saved by legislation (e.g., Section 26, Special Marriage Act, 1954) are never legitimate (Jackson ibid 61), But there is the further distinction between void and voidable marriages in that in the case of a voidable marriage till it is annulled by a decree parties are husband and wife and children begotten of such marriages are legitimate and secondly whereas in the case of a voidable marriage it can be avoided only on a presentation of a petition by either party thereto, a marriage which is null and void may be declared to be so even at the instance of a stranger whose interest are affected by such a marriage.

In the case of dissolution of marriage on the ground of impotence, the following issues as pointed out in Chandhr's useful publication on the Special Marriage Act, p. 108, arise for consideration:

(a) Was the respondent impotent at the time of the marriage?

(b) If so, what was the nature of impotency?

(c) Was she (or he) generally impotent or only impotent vis-a-vis. the petitioner?'

(d) What was the cause or what were the causes of this impotency?

2. (a) Was the respondent impotent on the date when the suit or petition was instituted?

(b) What was the nature of the impotency?

(c) Was she (or he) generally impotent or only impotent vis-a-vis the petitioner?

(d) What was the cause or what were the causes of such impotency?

3. Was the marriage ever consummated, either at the time of the marriage or thereafter?

4. Is there no collusion between the petitioner and the respondent?

5. Has the petition been brought in good faith and has there been full, free and frank disclosures of all material facts? Besides these, additional issues arising out of the pleadings will have to be framed.

In regard to proof of impotency, the rules of evidence are not different in the case of impotency than elsewhere. Impotency that is physical unfit-ness for consummation, must be proved or there must be facts from which this can be inferred. The proof must be, as used to be expressed in the Ecdeciastical courts in England not suspicio probablis but has to be Vehetnens proesumptio.

There is no minimum standard of proof necessary. Even" uncorroborated testimony of the petitioner is sufficient if it can be believed. In cases of this nature, corrboration can only be obtained from the evidence 'of the other party to the marriage. Under Section 120 of the Evidence Act, the other party to the marriage is a competent witness.

  The conduct of the parties subsequent to the marriage would be important. Did they peak lot the impotency to anybody? Was it mentioned to any friend or relation or to their parents? If, not, why not? Would it be natural not to do so? Or was there no opportunity? It would not be natural for everybody to speak these matters to another. A reserved or shy or a reticent person would not. On the other hand, other types almost certainly would. Whether the parties to the case fall within the one class or the other, it is for the trial, judge to discover: (AIR 1943 Nag 185) (L).

  Impotency may be established by medical examination of the parties. The doctor who examined either party or both the parties, may be examined as witness.

Where the respondent relies on a doctor's certificate that ho was able to have s*xual intercourse and was potent that day, the certificate must be strictly proved by examining the doctor who issued it. Certificates like these, do not prove themselves. The doctor giving the certificate has to state what tests he carried out to arrive at his conclusions and must stand cross-examination and convince the Court that his conclusion about the potency is correct: (W).

  There is of course need of caution in dealing with the evidence of impotency to avoid such after events as in some of the old cases happened, when the person pronounced impotent had issue in a later marriage: (ILR 16 Bom 639) (S)

  No presumption can be drawn from the fact that the wife was unwilling to live with her husband that she was impotent: (AIR 1934 Pat 67a (1) (FB) (T).

  Bearing these principles in mind if we examine the facts of this case, we find that neither organic impotency nor atonic impotency quoad this petitioner has been made out. Therefore this issue has been rightly decided by the learned Subordinate Judge.

Point 2: The five essential factors which must be establsihed to succeed in a petition for divorce on the ground of desertion are as stated in Phillip's Practice of the Divorce Division Fourth Edn. (1951) P-19 and foll, that

(a) the spouses must have parted or terminated all joint life;

(b) The deserting spouse must have an intention to desert the other spouse;

(c) The deserted spouse must not have agreed to the separation;

(d) the desertion must have been without cause;

(e) this State of affairs must have continued for at least three years immediately preceding the presentation of the petition.

  In certain circumstances the deserting spouse may not be the person who actually leaves the matrimonial home. The actual parting may be due to the deserting spouse making continued joint life impossible and thus compelling the deserted spouse to leave the matrimonial home, In such cases the actual abandoning of the matrimonial home is not the act of the person against whom the allegation of desertion is made, but the act of the person making the allegation. The test by which the offence is judged is not the abandoning of the matrimonial home, but the fact that the other party has caused such abandonment by his actions, since he must be taken to intend the consequence of such actions. If it is a natural consequence of the behaviour of one spouse that the other will leave the matrimonial home, the offending spouse must be presumed to have intended that this should happen. Cases in which the parting of the spouses has arisen in these circumstances are sometimes called "constructive" desertions'.

  This desertion may be terminated in the following ways;

(i) By resumption of cohabitation between the spouses.

(ii) By the desertion becoming a separation of the spouses by agreement.

(iii) By the deserted spouse refusing a genuine offer made by the deserting spouse to resume cohabitation.

(iv) By the deserting spouse becoming insane.

Gulshan Tanwar (Advocate)     27 March 2012

Section 18 states:

"Any husband or wife may present a petition to the District Court or to the High Court, praying that his or her marriage may be declared null and void." -

ANSWER TO THE QUERY RAISED BY MS. KAUR ABOUT THE FILING BY HUSBAND OF THE PETITION, PLEASE READ BARE ACT FURTHER SECTIONS AND NOT ONLY 11 OR 13.........:) HOPE YOU GOT THE LAW

Avnish Kaur (Consultant)     01 April 2012

MR TANWAR please give a reference case where an impotent man (as petitioner) got annulment.

Kathir   17 May 2016

Hi All,

 

I am a Hindu & got married in Feb 2014. The marriage is not consummated at all due to her refusal. She says that she doesn't like me & is not interested in any s*xual acts (even normal touches) and also not interested in married life itself. She says that she agreed to the marriage only because of her family pressure.

 

She says that she is ready to give divorce, but asks me to take action. We aren't living together as well...

 

I want my marriage annulled by any means. Is my case eligible for the annulment of marriage?

 

Thanks,

Kathir.


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