JUDGMENT

Tan Ah Tah J:

This was a petition by the woman for a decree of nullity of marriage on the ground of the respondent's inability to consummate the marriage. The respondent did not defend the petition.

The parties were married in 1953 at the Registry of Marriages, Singapore. Several attempts were made by the respondent to consummate the marriage but in each case he failed to effect intromissio at the crucial moment as he could not maintain erectio. They lived together for nearly two years before she left him. The medical inspectors appointed by the Court, reported to the effect that the husband's parts were anatomically normal and that he was apparently capable of performing the act of generation and that the wife was found to be virgo intacta, and that there was no impediment on her part to prevent consummation of the marriage.

Francis T Seow for the petitioner addressed on two propositions, viz:

(1) Consummation as understood in law, and

(2) The law of impotence with emphasis on the doctrine ofimpotentia quoad hunc vel hanc.

On his first proposition he submitted that consummation in the proper meaning of the term is ordinary and complete sexual intercourse. The former Ecclesiastical Courts described it as vera copula but whatever definition is used, two essentials must be present before there can be consummation in law. There must be (a) erectio and (b) intromissio. Nothing less will do. It has been held that the possibility of incipient or imperfect coitus is not enough to establish consummation. Vide R v. R [1952] 1 All ER 1194 at p. 1197, where the learned Judge quoted Dr. Lushington in D-e v. A-G [1845], 1 Rob Ecc 279:

If there be a reasonable probability that the lady can be made capable of a vera copula - of the natural sort of coitus, though without power of conception - I cannot pronounce this marriage void. If, on the contrary, she is not and cannot be made capable of more than an incipient, imperfect, and unnatural coitus, I would pronounce the marriage void

and at p. 1198:

Therefore, in my view, vera copula consists of erectio and intromissio. This is the view of the author in Jackson on the Formation and Annulment of Marriage from which I have derived considerable assistance. At pp 209 and 210 the learned author says: 'Contraceptive devices do not prevent intercourse - Vera copula consists of erectio and intromissio. Once this has been achieved, the fact that consummation, in the sense of potential conception, has been made impossible by the use by one or both of the parties of contraceptives, is irrelevant. Only intercourse in the sense of vera copula is necessary to 'consummate.' a marriage. A person is in law impotent who is incapax copulandi, apart from the question of whether he or she is incapax procreandi.

He then turned to his second proposition. Impotence is therefore the physical inability of a man or woman to perform the act of sexual intercourse. It appears from the medical evidence that the respondent is normal in that there is no apparent physical defect to prevent or hinder the consummation of the marriage by him. But for that matter so is the petitioner.

He submitted that the doctrine of quoad hanc applies. That is to say, a person may be generally capable of performing the act of coition and yet incapable of performing it with a particular individual, quoad hunc vel hanc, owing to certain causes. Vide Latey (14th Edn.) at p. 197, and said:

Your Lordship has heard from the petitioner of the respondent's attempt to effect his conjugal rights: and my submission is reinforced by the fact that the petitioner is virgo intacta after the parties have cohabited together for about two years before the petitioner finally left him. My submission is further reinforced by the learned editor of Rayden on Divorce (6th Edn.) at p. 88 to the effect that where a marriage remains unconsummated and both man and woman appear to be capable, there is a presumption that the incapacity must be imputed to