A wife's refusal to consummate the marriage, her resistance to the husband's attempts to have sexual relations, and her submission to sexual intercourse only once by force constitute impotence relatively to the husband, entitling the husband to a decree for nullity of marriage under section 18 and 19(1) of the Indian Divorce Act, 1869.

JUDGMENT - Kania J. - This is an appeal against a judgment of Mehta J. delivered on 14th June 1984 dismissing a petition filed under the Indian Divorce Act 1869 (referred to hereinafter as “the said Act”) for declaration of nullity of marriage filed by the. appellant against the respondent on the ground of impotence.

2. The facts necessary for the appreciation of the controversy raised before us can be shortly stated:

The appellant is the husband and the respondent is the wife. Both the parties are domiciled in India and practise the Roman Catholic faith. The husband was employed with a private concern in Saudi Arabia and the wife was employed as a teacher at Malad in Bombay. The marriage between the appellant and the respondent was solemnized in the Church of Our Lady of Lourdes at Orlem, Malad in Bombay in accordance with Roman Catholic rites and ceremonies. In paragraph 6 of the petition, it is alleged by the appellant that after the marriage the appellant and the respondent went to spend the wedding night at the Holiday Inn at Juhu. All efforts on the part of the appellant by way of endearment were thwarted by the respondent stating that it was too early to indulge in any sexual acts. The appellant has gone on to state as follows:

“……In any event the respondent submitted herself most reluctantly and she was only a passive factor on the first night “

He has averred that the said endeavour by him gave him an impression that the respondent was not capable of fulfilment of the sexual act and physical union by coitus. The appellant has gone on to say in the petition that on the second day of the marriage they resided at the respondent's house at Orlem, Malad, where there was ample privacy for both the parties, but the respondent rejected all approaches on the part of the appellant. They proceeded on their so-called honeymoon on 3rd September 1980 to Goa. At Goa they resided at the residence of a friend of the respondent at Santacruz for about four days. He has stated that at Goa any attempt on the part of the appellant to indicate intimacy was discarded by the respondent with contempt. Accordingly, being totally frustrated, the appellant and the respondent returned to Bombay. After they returned to Bombay, the appellant stayed at his own house at Byculla and the respondent stayed with her parents. The appellant then went away to Saudi Arabia on account of his job. This was on or about 18th September 1980. He attempted reconciliation with the respondent by writing letters to her and expressed the desire to return to India for Christmas holidays. However, he received a telegram from the respondent's father stating “Do not come, you are not welcome”. The appellant returned to India in January 1981 and made attempts to persuade the respondent to live with him, but those attempts were thwarted by the respondent who ultimately informed the appellant that she did not wish to continue the matrimonial relationship with the appellant. In para 9 of the petition, the appellant has averred as follows:

“…….. The petitioner states that the said pretended marriage has not been consummated by carnal expulation (probably meaning 'copulation') on account of the refusal on the part of the respondent by virtue of impotency and/or frigidity”.

There is no issue of the marriage between the appellant and the respondent. The petition for declaration of nullity of marriage was filed by the appellant in or about the end of September 1983. The respondent has not filed any written statement. In fact in the trial Court as well as before us, although the learned advocate of the respondent was on record and was present, no arguments were advanced by him and he made it clear that he was merely submitting to the orders of the Court.

3. In the evidence led before Mehta J., the petitioner after setting out some of the undisputed facts and deposing to the marriage stated as follows:

“After our marriage, we went to the Holiday Inn Hotel and spent the night there. I made att

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