Probative value of doctor’s certificate in proof of potency.

This is a petition by one Coral Indira Gonsalves, aged 23, for declaring her marriage with Joseph Prabhakar Iswariah a nullity, on the ground of his impotency and continuing and total inability to have sexual intercourse with her. At first the respondent opposed the petition vigorously, alleging that he was not impotent. Both the petitioner and the respondent are Protestant Indian Christians.

The following issues were framed:

1. Is the defendant impotent and unable to have sexual intercourse with the plaintiff, as alleged?

2. To what relief, if any, is the plaintiff entitled?

Before the matter came on for final hearing and disposal, the respondent,. Iswariah, wanted this Court to have him examined by a competent doctor for finding out whether he was really impotent and totally unable to have sexual intercourse. Ultimately, Lt.-Col. Krishnamoorthi, No.- 2, Boag Road, T. Nagar,. was appointed by Court as the doctor for examining him carefully and giving a certificate about his potency or impotency and ability or inability to have sexual intercourse. This doctor, after examining him, gave a certificate as follows:

“I have carefully examined Sri Joseph Prabhakar Iswariah on two separate occasions.‘I am of the opinion that Sri Joseph Prabhakar Iswariah is potent and that he is capable of the act of sexual intercourse.”

This certificate was granted on 21st October, 1952. This petition had been filed on 27th February, 1952. So, even if the certificate was proved to be correct (it was not) it will not prove potency before 21st October, 1952. Mr. Narasimha Iyer, for the petitioner, persisted in contesting the potency of the respondent, even on 21st October, 1952, and strongly relied on the letters of the respondent written to the petitioner, including a letter Ex. P-2, wherein the respondent had written to his wife, the petitioner, that he was physically quite unfit to give her any sexual satisfaction, and that she could get such satisfaction by having sexual intercourse with other men, provided that she did not ask him to support any children born out of these extra-marital relationships, and that he hoped that she would go back to him, as he was giving her enough compensation for the sexual satisfaction he was unable to give her, himself. Though the respondent at first contested the genuineness of this letter, and wanted permission to have a photograph of it taken and a handwriting expert appointed to determine whether he had really written and signed such a letter, he finally gave up that idea, and, on 20th January, 1953, his counsel intimated to Court that “the defence was not intended to be pressed.” So, the suit was posted to to-day for the petitioner’s examination to prove her case.

[After dealing with the evidence of the petitioner as P.W.1 His Lordship found as follows on Issue 1]:

Issue 1- On the evidence on record, I have absolutely no hesitation in holding that the respondent is totally impotent and unable to have sexual intercourse with the petitioner, till to day, as alleged. [His Lordship then dealt with the reasons’ for such conclusion and proceeded.]

We need not bother about Lt.-Col. Krishnamoorthi’s certificate that, in his opinion, the respondent was able on 21st October, 1952, to have sexual intercourse, and was potent, that day. Certificates, like these, do not prove themselves. They must be strictly proved by the doctor who issues them. He has to state what tests he carried out to arrive at his conclusion and must stand cross-examination and convince the Court that his conclusion about the potency is correct. Here, not even an attempt has been made to examine him, the respondent, having given up his defence, obviously because it was hopeless.

Of course, it is the law that mere impotency at the time of marriage will not do for getting a decree for nullity, if the respondent in question became potent by the time of the filing of the petition. I shall go further and hold that it is enough if the person becomes poten