Wife found physically ok through medical exam, but mentally impotent:

Himachal Pradesh High Court

Smt. Urmila Devi vs Shri Narinder Singh on 12 September, 2006

Section 12 of the Hindu Marriage Act, 1955

With regard to the impotence in my view even as stated by the Apex Court in
Yuvraj Digvijay Singh's case (supra) impotence can be both physical or
psychological. The doctor in this case has clearly stated that the wife is not
impotent therefore in physical terms it cannot be held that the wife was
impotent. However, impotence may be psychological. Impotence is the
incapacity to consummate the marriage for physical or psychological reasons.
Therefore, a mental defect or mental block which precludes the consummation
of marriage is as much a ground for annulment as a physical shortcoming. The
mere absence of a physical or anatomical defect is not reason enough to hold
that the marriage cannot be dissolved. In case it is proved that sexual life is
virtually impossible due to some mental apathy which is likely to be permanent
the Court must annul the marriage. The Court dealing with such question has to
take a practicable and reasonable view on the basis of the evidence led before it.

29. In the present case the husband in my view has proved beyond doubt that
the attitude of the wife towards sex is cold and repugnant. Therefore, I am of the
opinion that she is psychologically impotent and the marriage has not been
consummated due to this reason.
Impotency can be mental or physical

Madhya Pradesh High Court

Mst. Shewanti Bhaurao Dongre vs Bhaurao Daulatrao Dongre on 17
December, 1970

In Halsbury's Laws of England 3rd Edition Vol. 12, p. 228, impotence is

defined as follows.

"A party is impotent if his or her mental or physical condition makes

consummation of the marriage a practical impossibility."

It is interesting to see that in Digvijay Singh v. Pratap Kumari, AIR 1970 SC

137 their Lordships of the Supreme Court in the context of Section 12(1)(a) of
the Hindu Marriage Act defined impotency in identical words as defined in
Halsbury's Laws of England which we have already quoted.
Wife’s Reluctance for Sexual Intercourse and consistent rebuttal of
husband’s advances assumed to be MENTAL/PSYCHOLOGICAL
IMPOTENCY.

Bombay High Court

Vincent Adolf Godinho vs Jume Beatrice Rama Godinho on 5 September,
1984

It is not necessary in order to obtain a decree for nullity that it must be

established that the party against whom the decree is sought is impotent with
all members of the other sex. It is sufficient if it is established in a petition on
this ground that the respondent was incapable of performing the sexual act with
the petitioner that is that the respondent was at the time of marriage and at the
time of the institution of the petition relatively impotent the petitioner or
suffered from impotentia quoad hunc vel hanc (see Latey on Divorce, 15th Edn.
P. 226). It is also well settled in law that it is not necessary that the impotence
alleged must be in the sense of physical impotence, but it may comprise in
invincible repugnance to the sexual act either generally or with the spouse filing
the petition and this relative impotence may be caused by factors such as
hysteria or resistance or psychological or mental block against the act of sexual
intercourse or invincible repugnance. Now, the evidence of the appellant, which
has remained uncontroverted, shows that the only occasion on which he was
able to make an attempt to have sexual intercourse with the respondent was on
the wedding night and on that night he could have sexual intercourse or sexual
relation with the respondent only by using force. It is true that the appellant has,
later on, stated in answer to a question put by his advocate Mr. Rebello that
even on that night the respondent did not permit the appellant to penetrate her as
set out earlier. That part of the evidence seems to be more a mere gloss as
observed by the learned trial Judge and cannot be accepted, even though there
was no cross-examination. However, taking into account the earlier part of the
evidence regarding which there is no dispute, the question which arises is :

"Can a woman who submits only on one occasion to sexual intercourse with her
husband and that only by the husband using force and on all other occasions
resists successfully the attempts of the husband to have sexual relations with her
be said to be impotent relatively to him?"

In our opinion, the answer to that question should be in the affirmative

particularly in a case like this where the wife has on several other occasion
showed complete reluctance to any sexual intercourse with the husband and, in
fact consistently rebutted all his advances with contempt. The evidence clearly
shows that the respondent had complete aversion to any sexual relationship with
the appellant and it was only once that the appellant could have such
relationship and that too by use of force.
Can a woman be impotent- Yes? And what degree of proof is required-
More than 1 month where wife doesn’t allow consummation?

Andhra High Court

Kola Emmanuel vs Nallipogu Sunanda on 23 February, 1998

When the case came-up before the previous Full Bench, a question was framed
as to "whether the word 'impotency' can be referred to woman and what
degree of proof it requires?"

With regard to degree of proof, it is, no doubt, true that in a case of this nature,
the Court should adopt caution to see as to whether there is sufficient material to
declare the marriage a nullity on the ground of impotency of the respondent. We
do not seek any undue advantage taken by the petitioner-husband merely
because the respondent remained ex parte. In fact, the respondent had engaged
the advocate who had filed vakalat, but, thereafter because of no further
instructions from the respondent, the respondent was set ex parte. In case of this
nature, the best witness to speak about impotency is the spouse and the
petitioner was examined as PW1 and he stated categorically with regard to his
endeavour to have sexual intercourse with the respondent and the respondent's
resistance of his acts and ultimately leaving the matrimonial home on 22-11-
1993. For a period well over a month, inspite of the petitioner's readiness
and persuasion to have coitus with the respondent, the respondent had not
shown any inclination to have the coitus and in fact, had shown aversion to
the same and the only conclusion can be that she was incapable of
couplation which resulted in non-consummation of marriage which is a
sufficient ground under Section 19(1) of the Act to declare the marriage a
nullity. The degree of proof which lay on the petitioner has been
satisfactorily discharged.

7. In view of what is stated above, we order:

(1) that the word 'impotency' can be attributed to both husband and wife; and (2)
that the decree of nullity of marriage in favour of the petitioner as proposed by
the Court of the District Judge, Ongole is confirmed.
Impotency defined for section 12 1 (a) and proof needed for mental
impotency

Supreme Court of India

Yuvraj Digvijay Singh vs Yuvrani Pratap Kumari on 2 May, 1969

A party is impotent if his or her mental or physical condition makes

consummation of the marriage a practical impossibility. The condition must be
one, according to the statute, which existed at the time of the marriage and
continued to be so until the institution of the proceedings. In order to entitle the
appellant to obtain a decree of nullity, as prayed for by him, he will have to
establish that his wife, the respondent, was impotent at the time of the marriage
and continued to be so until the institution of the proceedings."

Judgment in favour of wife as husband could not prove that the wife had had
always resisted his attempts to consummate the marriage.
Mental Impotency proof: where the parties had ample privacy and still
marriage remained unconsummated for 34 days.

Kerala High Court

T.J. Poonen vs Rathi Varghese on 18 March, 1966

The question to be decided is whether the abstention on the part of the

respondent to consummate his marriage with the appellant was due to his
impotency at the time of the marriage and at the time of the filing of the
petition. It is agreed that in order to constitute the marriage bond between two
persons, "there must be the power, present or to come, of sexual intercourse".
The term "impotency" has been understood by English Judges in matrimonial
cases as meaning incapacity to consummate the marriage, that is to pay,
incapacity to have sexual intercourse, which is one of the objects of the
marriage. Dr. Lushington in D-E v. A-G (1845) 163 ER 1039 dealt with the
meaning of the term "sexual intercourse", thus:

"Sexual intercourse, in the proper meaning of the term, is ordinary and complete
intercourse; it does not mean partial and imperfect intercourse; yet, I cannot go
to the length of saying that every degree of imperfection would deprive it of its
essential character. There must be degrees difficult to deal with; but if so
imperfect as scarcely to be natural, I should not hesitate to say that legally
speaking, it is no intercourse at all ........ If there be a reasonable probability that
the lady can be made capable of a 'vera coupla' 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."
The rule laid down by Dr. Lushington was followed in G. v. G. (1871) 2 P & D
287. In that case, the husband prayed for a declaration of nullity of marriage
because of the wife's peculiar hysterical condition which made it impossible for
the husband to consummate the marriage. It was held Chat even in the absence
of any structural defect, a declaration of nullity could be made if there are
circumstances present which render sexual intercourse impossible Lord
Penzance observed:

"The invalidity of the marriage, if it cannot be consummated on account of

some structural difficulty, is undoubted; but the basis of the interference of the
Court is not the structural defect, but the impracticability of consummation. If,
therefore, a case presents itself involving the impracticability (although it may
not arise from a structural defect) the reason for the interference of the Court
arises. The impossibility must be practical. It cannot be necessary to show that
the woman is so formed that connection is physically impossible if it can be
shown that it is possible only under conditions to which the husband would not
be justified in resorting. The absence of a physical structural defect cannot be
sufficient to render a marriage valid if it be shown that connection is practically
impossible, or even if it be shown that it is only practicable after a remedy has
been applied which the husband cannot enforce, and which the wife, whether
wilfully or acting under the influence of hysteria, is determined not to submit to.
The question is a practical one, and I cannot help asking myself what is the
husband to do in the event of his being obliged to return to cohabitation in order
to effect the consummation of the marriage? Is he by mere brute force to oblige
his wife to submit to connection? Every one must reject such in idea."

The dictum laid down in (1848) 163 ER 1039 was again followed in Dickinson
v. Dickinson, 1913 P. 198, even though in that case the impossibility to perform
the intercourse was inferred on account of a wilful and persistent refusal on the
part of the wife to allow any marital intercourse. According to the books on the
subject there can be sexual impotency in general or impotency with regard to a
particular spouse described as impotency quoad hune or quoad hanc. The
burden is no doubt on the appellant to prove affirmatively and to the satisfaction
of the court that the non-consummation is due to incapacity or wilful neglect to
consummate on the part of the respondent. The court will have to be satisfied
beyond reasonable doubt that the husband was impotent at the time of the
marriage and has been therefore incapable of consummating It. We have already
found that the agreement alleged by the respondent as the reason for non-
consummation of the marriage has not been proved. In Rayden on Divorce, 9th
Edition, page 114, paragraph 66, it was observed:

"Before the Matrimonial Causes Act, 1937, wilful wrongful refusal of sexual
intercourse was not in itself sufficient to justify the Court in declaring a
marriage to be null on the ground of impotence; but the view has been taken
that where a woman is shown not to have had intercourse with her husband after
a reasonable time for consummation of the marriage, and it appears that she has
refused intercourse and resisted her husband's attempts, the Court, if satisfied
that the refusal was not due to mere obstinacy or caprice, may draw the
inference that it arose from some incapacity proceeding from nervousness or
hysteria, or from an invincible repugnance to the act of consummation, resulting
in a paralysis of the will which was consistent only with incapacity. "The
inference of incapacity is readily drawn when a man refuses to attempt, or
abstains from attempting to consummate the marriage'"

(The underlining (here into' ') is ours).

In G. v. G. 1924 AC 349 where wife resisted frequent attempts by the husband

over a protracted period to consummate the marriage, and continued that
resistance after she had formally consented to perform her conjugal duty, it was
held that the refusal was due to an invincible repugnance to the act of
consummation consistent only with incapacity. In Eversley on Domestic
Relations, 6th edition, page 25, the learned author made the following
observation:
"where there has been persistent refusal to consummate a marriage on the part
of one of the spouses (who also refuses to obey an order for medical inspection)
while the other spouse has been desirous that there should be consummation,
the court will assume the existence of some latent impediment amounting to
incapacity."

The respondent had ample time when the appellant was alone with him in the
same room to
consummate the marriage It was not consummated during 34 days. On the
evidence on record we hold that the failure of the respondent to consummate the
marriage was because he was impotent on the date of the marriage and on the
date of the filing of the petition.
Burden of Proof of Psychological Impotence of wife: A refusal to
consummate the marriage after 9 days of cohabitation, inference of
impotency can be drawn.

S. John Dhanadurai v. J. Marry Suganthi, AIR 1994 Mad. 81,

where the parties to the marriage lived together for nine days and after the
marriage the wife consistently refused to consummate the marriage and the Full
Bench held that when there was no sexual intercourse between the parties to the
marriage and that the wife has resisted all the attempts and that her refusal arises
from incapacity caused by nervousness or hysteria or from invincible
repugnance to the act of consummation resulted in paralysis of the Will, and
inference of Impotency can be drawn.

The facts set out by him show that throughout the married period there has been
no sexual intercourse and that the wife has resisted all attempted and that the
refusal arises from incapacity caused by nervousness or hysteria; or from an
invincible repugnance to the act of consummation resulting in the paralysis of
the will. The husband has proved that he has made repeated and considerate
approaches and that the wife refused to allow a complete consummation owing
to some uncontrollable physical reaction. In these circumstances the petitioner
must be held to have proved his case viz., the respondent's impotency at time of
marriage and institution of suit quoad the petitioner : Wilson v. Wilson(2)."

7. In , Jean Emeline Thavamani v. Joseph Taylor, a Full Bench of this Court has
observed as follows (at page 158):

"If the circumstances warrant it, from a refusal to consummate the marriage,
inference of impotency can be drawn."
8. We have already pointed out that though the respondent lived with the
petitioner for nine days, she consistently refused to consummate the marriage.
Therefore, there is no difficulty in holding that the Court below was right in
coming to the conclusion that the respondent, in the facts and circum-stances of
the case, was impotent and the decree granted as prayed for nullity is in order
and, therefore, we confirm the same. No costs.
Section 12 of HMA: Parties lived together for four months but the
marriage could not be consummated

Delhi High Court

Sucharita Kalsie vs Rajinder Kishore Kalsie on 23 August, 1974

In impotence cases the emphasis is on consummation. A party is impotent if his

or her mental or physical condition makes consummation of the marriage a
practical impossibility (rialsbury-P. 228).
It was held that a Court would be justified in annulling a marriage if it was
found that the marriage had not been and could not be consummated by the
parties thereto, though no reason for non-consummation was manifest or
apparent.