The refusal to engage in sexual intercourse due to a mental determination not to do so can constitute impotency, leading to a declaration of nullity of marriage.

Sreedharan, J.

Husband approached the Family Court, Ernakulam by moving O.P. 653/1994 for a declaration of nudity of marriage under Section 18 of the Indian Divorce Act, hereinafter referred to as "the Act". Material averments made by herein the petition were as follows - Marriage between the petitioner and respondent was solemnised in accordance with the Christian rites on 2.10.1991 at Thuravur St. Augustine's Church. At the time of the marriage, respondent was employed as a Nurse in Muscat. After the marriage, she left for Muscat on 19.10.1991, before which date the marriage could not be consummated. On the date of the petition, she was working as Nurse in Austria. According to the petitioner, during the short spell of time when they lived together, respondent did not allow him to have sexual intercourse on the ground that she wanted to become a nun, but her relatives forced her to marry him and that she does not want to have a married life with the petitioner.

2. Notice on the petition was served on the respondent. She did not care to enter appearance before the Court below. She did not arrange for filing a counter even.

3. Petitioner, as PW-1, gave evidence before Court stating that respondent did not allow him to have sex with her. She also, it is stated, asserted that she does not like to have sex with him because she wants to become a nun. According to the respondent, she was averse to marriage; but the marriage was solemnised only because of the pressure exerted on her by her relatives.

4. The fact that marriage between the parties was solemnised on 2-10-1991 and that respondent left India in connection with her employment in Muscat on 19-10-1991 are not in controversy. Petitioner has asserted that respondent refused to have sex with him. That statement given before Court stands uncontroverted. In such a situation, the short question that arises for consideration in whether a decree of nullity of marriage can be passed on the ground that the respondent was impotent at the time of marriage and at the time of the institution of the proceedings. No physical infirmity or defect on the respondent preventing her from having sex is established. During the short interval between the date of marriage and her having India in connection with her employment, according to PW-1, respondent did not allow him to have sex with her. The said refusal. according to the Court below, gives rise to a presumption or impotency. Except for the short spell of time between the date of marriage and her journey to Muscat, at no point of time petitioner had any contact with her. So, after 1.9.10.1991, petitioner did not have any opportunity to have sex with her.

5. Identical situation came up for consideration before a Full Bench m Antony v. Fransisca,1988 (2) KLT 135. In that case, inspite of the husband's earnest efforts, he was unable to have sexual intercourse with the wife. She used to get disturbed and her mental balance appeared to be lost whenever he attempted to have sex with her. That circumstance was taken by the Bench as one establishing ground of impotency on the part of the wife. Their Lordships observed:

"Reason for impotency may be physical or mental. In this case refusal on the part of the respondent to have sex with the petitioner was not due to mere obstinacy or caprice but because she hates sex and believes that it is sinful. Though there is no physical obstacle for intercourse, she is mentally determined not to have sex. In oilier words, there is a paralysis of her will to have intercourse."

On this basis, the Bench took the view that she was impotent both on the date of marriage and also on the date of proceedings. In the instant case, after marriage, petitioner and respondent lived together for about 17 days. During that period, she did not allow him to have sex with her. She expressed her aversion to sex with him on the ground that she wanted to become a nun. In this circumstance, we are inclined to take the view, as wa