Refusal to consummate marriage is not a ground for divorce.

This case comes before us for confirmation of the decree of the learned District Judge of West Thanjavur declaring the marriage between the petitioner and the respondent as null and void on the ground of the impotency of the respondent. The petitioner is the wife and the parties are Christians Their marriage was solemnised on 29th May, 1961, at Kumbakonam and according to the case of the petitioner, as set out in her petition, “during her stay with the respondent, in spite of her best efforts, she was not able to get conjugal happiness from the respondent”, and “found that the respondent was impotent at the time of the marriage”. It is also averred in the petition that the respondent did not want to live with the petitioner and began to shun her presence. Three months after the date of the marriage itself, the petitioner was sent away to her parents’ house. The petition for declaration of the nullity of marriage under sections 18 and 19 of the Indian Divorce Act was filed on 26th October, 1962. The petitioner herself, at the time of the marriage, must have been aged about 24 years and a teacher. The respondent, husband, is employed as a Physical Instructor at Madurai and aged about 30 years. The application under the Indian Divorce Act was preceded by a lawyer’s notice, Exhibit A-2, the receipt of which has been acknowledged by the respondent. As the learned District Judge placed some reliance on this notice for his conclusion as to the impotency of the respondent, it is necessary to refer to the material allegations therein. All that is stated there amounts to this: Since the date of solemnisation of the marriage, the respondent never lived with the petitioner as her husband; and he was not physically capable of having conjugal relationship with the petitioner. The respondent is further charged with having stated before certain mediators, who approached him on behalf of the petitioner that he would never again live with the petitioner and that he would consent for a divorce as he was not willing to continue the marital relationship. In the proceeding before the District Court the respondent who had been served has been ex parte.

The petitioner was represented by Counsel and the material portion of her evidence which is not very articulate on the question for consideration, can be set out:

“I went with the respondent to his place on the third day of marriage. I desired to cohabit with respondent. But respondent refused. He said that he was impotent. I lived with him for three months. In spite of several attempts on my part he refused to cohabit with me and said that if I forced he would leave the house.”

This is all the evidence that is available on the record regarding the charge of impotency and it is on this evidence that the petitioner has sought a declaration of nullity of marriage.

While section 18 of the Indian Divorce Act, 1869, enables the husband or wife to present a petition for declaration of a marriage as null and void the grounds for such a decree are set out under section 19. Clause (1) of section 19 provides that a declaration of nullity could be had on the ground that the respondent was impotent at the time of the marriage and at the time of the institution of the suit. Modi in his Text-book of Medical Jurisprudence and Toxicology (Thirteenth Edition) at page 291 defines “ impotency” as “ physical incapacity of accomplishing the sexual act, while sterility means inability of procreation of children” . The causes of impotency and sterility in the male, according to the learned author, may be age, malformations, local diseases, general diseases and psychical influence. Temporary absence of a desire for sexual intercourse may result from fear, anxiety, guilt sense, timidity, aversion, hypochondriasis, excessive passion and sexual over-indulgence. Sometimes a person may be not impotent generally but impotent with reference to a particular individual: Impotentia quo ad huno vel hanc. A reference to the Engl