Impotence under Section 19(1) of the Indian Divorce Act (4 of 1869) requires evidence of physical or psychological incapacity, and a wife's refusal to consummate the marriage does not amount to impotence.

M. ANANTANARAYANAN, C.J. :- This is a reference made by the learned District Judge of Tirunelveli under Section 18 of the Indian Divorce Act (4 of 1869) in a petition by the husband (Jayaraj Anthony) for a declaration of nullity in respect of the marriage between him and his wife (Mary Seeniammal) on the substantive ground that the wife (respondent) declined all access to the husband subsequent to the marriage, refused to consummate the marriage, and hence must be regarded as "impotent" both at the time of the marriage and at the time of the proceeding. The learned District Judge accepted the evidence for the plaintiff and granted a decree in the usual form, subject to our confirmation.

2. Under Section 19 (1) of Act 4 of 1869, one of the grounds on which the petition for a decree of nullity, in respect of a marriage, could be successfully maintained is that the respondent was impotent at the time of the marriage, and at the time of the institution of the suit. This is what the husband alleged, and we have got to see whether there is evidence which the court can accept in proof of this averment, which is the foundation of the petition for nullity.

3. When the matter came up before us at the first hearing, we were so dissatisfied with the state of the record that we instructed the learned counsel appearing amicus curiae for the wife (respondent) to get into touch with her and to obtain instructions including the instruction whether she would be willing to submit herself to a medical examination. The learned counsel appearing as amicus curiae reports that he has been unable to get into touch with the respondent, and that she has declined service of a letter sent through registered post to her address. The respondent (wife) never appeared before the learned District Judge of Tirunelveli, and did not in any way meet the main allegation. As far as the petitioner (husband) is concerned, the record, as we stated earlier, is sadly inadequate and imperfect. All that is clear from the record, including the letters filed, is that the marriage was actually never consummated. The husband as P. W. 1 states that during the time that the wife stayed with him "she refused sexual intercourse and began to quarrel with me". She seems to have stayed with her husband over some period, but she never allowed cohabitation, according to P. W. 1. That is corroborated, in the circumstantial sense, by the father P. W. 3, concerning what the son (plaintiff) told him. One Amirthammal (P.W. 4) also gives evidence, and it is extremely vague. The wife is supposed to have told P. W. 4 that she had no charm for matrimonial living and the President of the Panchayat (P. W. 5) states that the wife told him categorically that she had no taste for marriage, and should be permitted to follow her own course in life. We might add that, apparently, she was inclined to a religious life.

4. On this material, we have anxiously considered whether the requirement of the law can be held satisfied by us. We have come to the conclusion that, emphatically, that is not the case, and that the suit would have to be remanded for further trial and fresh finding, before the husband, can hope to succeed. We shall first record, briefly, our reasons for this view, and then proceed to give suitable directions in the matter of remand.

5. At the outset itself we may observe that it is noticeable that the Divorce Act IV of 1869 does not include, in Section 19, any such grounds as "wilful refusal" on the part of the wife to allow a sexual access or the consummation of the marriage. Such a ground of relief was introduced in the United Kingdom under Matrimonial Causes Act 1937 and the Matrimonial Causes Act 1950 (see Tolstoy on Divorce 4th Edn. page 109). Even so, as this author points out, impotence on the part of the wife was considered to be a sufficient ground for declaring the marriage void prior to these amendments. But that "impotence" will have to be understood in the proper legal