(Delivered by Veeraswami, C.J)

This matter comes before us on a reference under S. 20 of the Indian Divorce Act. The District Judge of Tirunelveli has declared the marriage between the plaintiff and the defendant as null and void and granted a decree of divorce subject to confirmation by this court.

The plaintiff and the defendant were married on 5th June 1958 in St. Michael's Church, Polnaickenpattl, Tutlcorin, according to Christian rites. There can be no dispute about this. According to the plaintiff, on the very night of the marriage, it was found that the defendant could not have sexual intercourse with him as she was pushing him aside and finally jumped out of bed: He would say that this was due to insanity and at the time of the marriage be did not know about it. The next day the defendant was removed by her mother to her place for treatment and bringing her back. But the defendant never came back. It appears the defendant was working as a mid-wife for sometime in the Primary Health Centre, Thiruvengampet. But we find that she was discharged from service with effect from 28th June 1958, as she was suffering manic depressive psychosis. The proceedings of discharge from service were issued by the District Medical Officer, Ramanathapuram. The record does show that after the marriage the defendant left her husband and never returned to him thereafter. The plaint was preceded by a notice issued by or on behalf of the defendant in which it was alleged that the plaintiff had deserted her and that he was liable to pay her maintenance and a certain rate. In the plaint, while setting out the facts which we have mentioned, the plaintiff asserted that in view of her continued suffering from manic depressive psychosis, she was not in a position to perform the duties of marriage and that she was unfit for married life, though she is an educated girl having studied upto School final. He also stated that since the marriage had not been consummated because of the defect, the marriage was null and void. That there was no collusion or connivance was averred.

The District Judge in view of Jayaraj v. Seeniammal(1), took coereive steps to secure the presence of the defendant to give evidence in court. When she was arrested and brought before court, she gave evidence. In the light of her evidence and on the other materials available the District Judge found that the defendant was suffering from the disease above mentioned and that she was unfit to discharge her marital obligations to her husband. He, therefore, declared the marriage to be null and void.

We have carefully considered the matter and are of opinion that the District Judge was right in granting a decree, though we think it should be sustained on a different reasoning. Since the marriage was on 5th June 1958, and the discharge of the defendant from service was with effect from 28th June 1958, there is every probability that the defendant at the time of her marriage did suffer from manic depressive psychosis. In her evidence, which appears to be cogent as far as we can see, she was able to remember her marriage according to Christian rites at Tuticorin and the fact that she never had sexual intercourse with her husband. She admitted that till then she had no desire to have sexual intercourse, though she wanted to have marital life. She was able to recall what precisely she was suffering from and mentioned the disease to be manic depressive psychosis. She claimed that she was all right at the time of her giving testimony and invited that she might be sent to a doctor for examination. This examination was done by Dr. P.R Azeezullah on 27th January, 1968. The doctor was the District Medical Officer, Tirunelveli, at the time. The certificate says:

“I am to state that Smt. Esther Victoria Kannammal was admitted as in-patient in the Government Headquarters Hospital, Palayamkottai, on 18th January, 1968 for observation and discharged on 27th January, 1968. During the period of observation, she has been noticed to be morose mostly, answers questions sometime correctly and sometime irrelevantly. When questioned hew long she has been in the Hospital she is not able to say. But she says that she had been here for two or three days. She is not able to say why she is in the Hospital and has no idea regarding the fact that she was sent by court. She has a vacant look. She seems to be unmindful of the environment and time. She is suffering from mental depression.”

This shows that the defendant's mental powers were so impaired as to make her unaware of even the time and surrounding and to have a vacant look. The mother of the plaintiff who gave evidence stated that on the day of the marriage her daughter-in-law was not amenable to sexual intercourse with her son and it was reported to her that the defendant was insane because her behaviour appeared to be that of a person with insanity. She also stated that on the very next day of the marriage the defendant's parents came and took her away.

The doctor, who had given the certificate we mentioned, in his evidence in court was clearly of opinion that the defendant was not in a position to discharge her marital obligations to her husband.

Section 18 of the Indian Divorce Act enables a husband or wife to present a petition praying that his or her marriage may be declared null and void and the grounds on which such a declaration can be obtained are specified in S. 19. The first and the third grounds have relevance here, the former being that the respondent was impotent at the time of the marriage and at the time of the institution of the suit and the latter is that either party was a lunatic or idiot at the time of the marriage. The question is, which ground is made out in this case. The learned District Judge has not specified whether it was the one or the other ground that prompted him to grant the declaration. All that be stated was that the defendant was not in a position to discharge her marital obligations to her husband. That reasoning is hardly sufficient to sustain the declaration which he granted.

This is not a case of idiocy at the time of the marriage. That is clear from the evidence, particularly, of the defendant herself. She was undoubtedly in a position to appreciate some of the questions at least put to her a ad answer them as far as she could. A reading of her evidence shows that there was nothing so serious with her mental faculties as to regard them as bordering on idiocy. Lunacy is a large term and includes several degrees of the mind. We are very doubtful whether, having regard to the defendant's mental capacity, as we have mentioned above, she can be rightly termed as a lunatic. No doubt, she had a vacant look and was not in a position to appreciate her surroundings or time. It would appear from the certificate given by the doctor and his evidence put together that she had lucid intervals. But one thing seems to be clear from the evidence on record, and that is that she was not in a position to discharge her marital obligations to her husband. While no declaration, as we think, can be given on the ground that the defendant was a lunatic or idiot at the time of the marriage, the question is whether the declaration granted by the District Judge can be supported on the ground of impotency both at the time of the marriage and at the time of the institution of the salt. The evidence of the plaintiff's mother, which we see no reason to reject, is positive that on the very day of the marriage she knew that the defendant was unfit to discharge her marital obligations due to her behaviour of running away from the bed and also from the fact that the defendant's parents, who were apparently aware of her deficiency, came the very next day and took her away. There is also this fact that, according to the statement of the District Medical Officer, at the time of the defendant's discharge from service, she was suffering from manic depressive psychosis. This disease as described by the Medical Dictionary and Health Guide by Dr. F.A Edwards and A.W Durham is:

“A mental disorder in which excitement and depression may alternate over a period of weeks, months, or even year. Can render a person unfit for employment, but given a little consideration, mild cases are employable. Severe cases may have suicidal tendenscies”.

This definition of the disease does not enable us by itself to conclude that the defendant was suffering from impotency. But the other facts seem to tend towards that effect. What happened on the first day of her marriage and her position since then, her own admission in the evidence that she was unable to fulfil her marital obligations to her husband and the medical examination immediately thereafter as a result of which the doctor gave the opinion that she was not in a position to discharge her marital obligations—all these taken together show that she was suffering from such a mental depression which, though not amounted to lunacy, bordered on impotency.

Impotency is not necessarily to be confined to the physical inability of one or the other of the spouse to have sexual intercourse. It may, in our opinion, cover also such a condition, either of the mind or of the physical condition of the person, which renders normal sexual intercourse impracticable so as to reach its completion. In K. Balavendra v. S. Harry Rajamannar, C.J, who spoke for the Bench, observed:

“Impotency has been understood by Judges in England in matrimonial cases as meaning incapacity to consummate the marriage, that is to say, incapacity to have sexual intercourse, which undeniably is one of the objects of marriage. The question is, what does ‘sexual intercourse’ mean? We cannot do better than refer to what has been considered to be the leading decision on this topic, namely, D.E v. A.G(2). In that case, the husband prayed for a declaration of nullity of his marriage with the respondent who was married to him on the ground that carnal consummation was impossible by reason of malformation of his wife's sexual organ.”

Dr. Lushington dealt with the point and stated, as extracted in the citation under consideration:

“every one was agreed that in order to constitute the marriage bond between two persons, there must be power, present or to come, of sexual intercourse……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 case Rajamannar, C.J, was considering left the learned Judges with no doubt that the marriage could not be consummated in the ordinary and normal way on account of an abnormality on the respondent.

Now, in this case, there is no such outward physical disability. On account of her mental disease it was impossible for the plaintiff to have intercourse with the defendant both at the time of the marriage and also at the time be instituted the suit. That, we think, may justifiably be brought under the head of impotency in law.

Rayden on Divorce, 9th Edn. at page 112, says:

“The presence of a physical structural defect is not essential. The statement by Lord Penzance to the contrary in T v. M.(3), is no longer law……The basis of the court's interference is not the structural defect, but the impracticability of consummation”.

The learned author goes on to point out that disability arising from mental or moral causes is sufficient, such as hysteria. We are inclined to accept this view as valid in order to bring the case under the ground of impotency. This view receives support as well from Kishore Sahu v. Snehprabhu Sahu(4). There it was held that incapacity in the woman for sexual intercourse need not be physical and that it may be due as well to mental or physical causes. It was further pointed out that all that was required was an invincible repugnance to the act of intercourse either generally or with the particular man: The evidence on record in this case shows that the plaintiff could not at the time of the marriage and on the date he instituted the suit have sexual intercourse with the defendant, the reason being the latter's hysteria or mental depression.

On that view, we confirm the declaration that the marriage of the plaintiff and the defendant was null and void.

V.C.S