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Birendrs Kumar Biswas v. Hemlata Biswas

Calcutta High Court

Apr 26, 1921

Judgment

Subsequent
References

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Structured Summary of the Court's Opinion

Factual and Procedural Background

The petitioner, Birehdra Kumar Biswas, sought a declaration that his marriage to the respondent, Hemlata Biswas, was null and void on the ground that the respondent was, prior to the marriage, suffering from a loathsome disease of syphilitic origin alleged to be incurable and contagious. The petitioner alleged that the disease rendered the marriage incapable of being consummated and that information regarding the disease had been concealed from him.

The parties, both Indian Christians, were married at the Baptist Church, Entally, on 15 February 1918; the respondent was about 15 years of age. The suit was originally heard by Mr. Justice Fletcher on 31 March 1919, who dismissed it with costs. The plaintiff appealed and on 31 May 1920 the appellate court remanded the case to the trial court for retrial.

At retrial the court accepted the prior evidence (subject to further cross-examination if desired) because of the parties' poverty and the hardship of repeated proceedings. The respondent submitted to medical examination by Dr. Bissesswar Mitter on 11 March (year indicated in the record). Additional evidence, including fresh medical examinations and witness testimony, was called at the retrial.

Legal Issues Presented

Is the petitioner entitled to have the marriage declared null and void on the ground that the respondent was suffering from syphilis prior to the marriage?
Was the petitioner induced to marry the respondent by any fraudulent allegation or fraudulent concealment on the part of the respondent or anyone on her behalf?

Arguments of the Parties

Petitioner's Arguments

The respondent was suffering from syphilis before the marriage; the disease was incurable and contagious, rendering consummation unsafe and impracticable.
The petitioner did not know of the disease before marriage and the respondent (or persons on her behalf) concealed the condition; the concealment induced the petitioner to marry.
On the legal question of "impotency", the petitioner's side argued for a broader definition — that impotency includes anything which prevents cohabitation or renders consummation impracticable because of risk to health and offspring.

Respondent's Arguments

The respondent asserted that sexual connection with the petitioner had occurred; she stated the petitioner had sexual connection with her and that she slept with him for one week after the marriage.
Counsel for the respondent argued that "impotency" in law should be narrowly construed to mean a physical impossibility of sexual intercourse; because physical intercourse was possible here, the court lacked jurisdiction to annul the marriage on grounds of impotency.
The respondent offered to submit to medical examination, which was conducted.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
sec. 19 of the Indian Divorce Act (Act IV of 1869)	Statutory basis for the court's jurisdiction to annul a marriage and the limits of grounds available (fraud apart from fraud in obtaining consent is not a ground under this section).	The court held that fraud of the type proved (concealment by the respondent's father) did not amount to fraud in obtaining consent within sec. 19 and therefore was not a standalone ground for annulling the marriage.
Halsbury's Laws of England, Vol. XVI, p. 278	Statement: fraudulent misrepresentation or concealment does not, apart from duress or imbecility of mind, affect the validity of a marriage freely consented to with knowledge of the nature of the contract.	The court relied on this summary to support the conclusion that concealment (not amounting to fraud in obtaining consent) does not vitiate the marriage.
G. v. G. (Lord Penzance)	Principle that the ground for annulment is impracticability of consummation (not only structural defect), i.e., practical impossibility to consummate can ground annulment; impossibility must be practical and may include conditions short of structural defects.	The court quoted Lord Penzance approvingly to adopt a practical test of impotency and applied it to conclude that consummation here was a practical impossibility due to grave health risks.
H. v. P. (referred to, "falsely called H.")	Mentioned among authorities delineating the limits of annulment for impotency (used to mark the extreme limit courts will go).	The court referenced this case as part of the authorities delineating the scope of impotency, but applied the broader practical-impracticability test as articulated in G. v. G.
Dickinson v. Dickinson	Authority approving the passage from G. v. G. regarding impracticability of consummation as basis for annulment.	The court cited Dickinson v. Dickinson for approval of the G. v. G. principle when construing "impotency" more broadly than a purely structural impossibility.
American authorities (unspecified)	The appellate court had referred to a rule, said to be deduced from American authorities, that incurable syphilis at the time of marriage in either party, rendering copulation impracticable as endangering health, may amount to incapacity entitling annulment.	The case was remanded in part to consider whether that American-derived principle applied; the trial court addressed the point but had no means of accessing the cited American authorities and considered instead English authorities in reaching its decision.

Court's Reasoning and Analysis

The court proceeded in two principal strands of inquiry: (A) whether there was actionable fraud that would invalidate the marriage under sec. 19 of the Indian Divorce Act, and (B) whether the respondent was "impotent" within the legal meaning that would justify annulment.

Findings of Fact (as expressly recorded by the Court)

The marriage was never consummated.
At the date of the marriage the respondent was suffering from hereditary tertiary syphilis.
The petitioner did not know of this condition until after the marriage.
The respondent had been treated for syphilis prior to marriage at the instance of her father, and the court inferred the father knew of the nature of the disease.
The respondent's private parts were not diseased and sexual intercourse was not physically impossible.
The disease had not yielded to treatment; even if curable, cure could not be assumed until several years had passed and sufficient investigation (including blood tests) had been made.
From sexual intercourse alone the petitioner was not likely to become infected, but there was a risk if they lived together in ordinary marital relations; infection could occur by kissing and from the nasal/mouth discharges.
There was very grave risk that any offspring of the union would be diseased.

On the fraud point, the court concluded that while the respondent's father knew of the disease and concealed it from the petitioner, such concealment did not amount to "fraud in obtaining the consent" within sec. 19 of the Indian Divorce Act. The court drew on Halsbury's statement that fraudulent misrepresentation or concealment, apart from duress or mental incapacity affecting consent, does not affect the validity of a marriage freely consented to.

On the impotency point, the court engaged with opposing constructions. Respondent's counsel urged a narrow meaning — physical impossibility of intercourse. The court found that construction too narrow and instead adopted the test articulated by Lord Penzance in G. v. G.: the relevant question is impracticability of consummation, not solely structural impossibility. The impossibility must be "practical" and may exist even if physical intercourse could be achieved only by force or other measures that cannot reasonably be required of the spouse.

Applying the practical test to the facts, the court reasoned that, although physical intercourse was not structurally impossible, consummation would involve the very gravest risk to the husband's health and to any children likely to result. Given the respondent's state of hereditary tertiary syphilis, the court found consummation to be a practical impossibility and that this state was likely to continue and be permanent. The court therefore concluded that the wife's condition amounted to impotency within the meaning of the authorities, entitling the husband to a decree of nullity.

Holding and Implications

Holding: The court declared the marriage null and void on the ground that the respondent was impotent within the meaning of the authorities because consummation was a practical impossibility given the grave risks to the petitioner's health and to potential offspring.

Implications:

Direct effect: The marital union between Birehdra Kumar Biswas and Hemlata Biswas was annulled (declared null and void). The court's factual findings underpin the annulment: non-consummation, hereditary tertiary syphilis known to the respondent's father but not to the petitioner, and a practical impossibility of safe consummation.
On fraud: The court held that concealment by the respondent's father did not constitute fraud in obtaining consent under sec. 19 of the Indian Divorce Act and thus was not itself a statutory ground for annulment.
On precedent and principle: The court applied established English authority to adopt a practical test for impotency (G. v. G., Dickinson v. Dickinson) rather than limiting impotency to structural impossibility. The opinion does not state that it is establishing a novel legal principle beyond applying those authorities; it applies existing principles to the facts before it.

Solicitors appearing: Mr. E. P. Swinhoe for the petitioner; Mr. J. C. Dutt for the respondent.

Show all summary ...

The Judgment of the Court was as follows:—

Greaves, J.:— The Petitioner, Birehdra Kumar Biswas, asks that his marriage with the Respondent, Hemlata Biswas, may be declared null and void, on the ground that the Respondent had been from before the marriage suffering from a loath-some disease of syphilitic origin alleged to be incurable and contagious in consequence whereof she is said to be unable to consummate the marriage and the Petitioner alleges that the marriage was brought about fraudulently and that all information with regard to the disease was concealed from him.

The suit was heard by Mr. Justice Fletcher on the 31st March 1919 and he dismissed it with costs; against the decree of dismissal the Plaintiff preferred an appeal and on the 31st May 1920 the case was remanded by the appeal Court to this Court for retrial.

It was suggested by Counsel for the parties before me that the evidence taken before Mr. Justice Fletcher should be treated evidence before me and that the parties would submit themselves for further cross-examination if either Counsel desired to cross-examine further and that either side should be at liberty to adduce any additional evidence if they so desired. I agreed to this course having regard to the extreme poverty of the parties and the great hardship to which they have been exposed by reason of the course which events have taken.

The Defendant offered to submit her-self to the examination of any doctor named by the Petitioner, the Petitioner did not express himself as desirous of any such examination being held but I thought that it was better that such examination should take place and the Respondent was accordingly examined by Dr. Bissesswar Mitter on the morning of the 11th March last.

Two issues were raised before me—

(1) Is the Petitioner entitled to have the marriage declared null and void on the ground that the Respondent was suffering from syphilis prior to the marriage?

(2) Was the Petitioner, induced to marry the Respondent by any fraudulent allegation or fraudulent concealment on the part of the Respondent or on the part of any one on her behalf?

The parties are both Indian Christians and were married at the Baptist Church, Entally, on the 15th February 1918, the Respondent then being of the, age of 15 years or thereabouts.

The evidence before Mr. Justice Fletcher was to the following effect. Khamatulla Choudhuri, a medical practitioner of 20 years' experience, stated that he saw the Respondent on the 19th February 1918, and that she was suffering from tertiary syphilis and that if the Petitioner had consummated the marriage he would have got the disease himself and that he was doubtful from her condition whether she could be cured. In cross-examination he stated that he only examined her nose and body and not to see if there was malformation or structural defect to preterit consummation. He staled to the Court that the disease might be cured but that it would take time. Dr. Bissesswar Mitter, a fellow of the Royal College of Surgeons and an L.R.C.P of London, stated that he examined the Respondent on the 6th March 1918 and that she was suffering from a bad type of inherited syphilis, that the disease was in the tertiary stage and that the nasal discharge of which he spoke and from which she was suffering was infectious and that any man living with her could be infected and that so long as she was suffering from the disease it would not be safe for the husband to have intercourse with her. Asked if she could be cured he stated that this was a very controversial question and that after several years and after examining the blood he could say if she was safe but that there were several risks including that of the children getting the disease.

In cross-examination he staled that the girl was capable of sexual intercourse.

The Petitioner stated that he never lived with the Respondent as his wife, that he discovered she was suffering from this trouble on the 17th February 1918 and that he had never consummated the marriage and did not know before the marriage that she was troubled with the disease and that he never saw her before the marriage. The Respondent swore that the Petitioner had sexual connection with her and that she slept with him for one week after the marriage.

Raj Krishna Mukherjee, an L.M.S of Calcutta, stated that he examined the Respondent on the 18th March 1918, that she was suffering from syphilis which he considered to be curable, that he examined her again on the 25th November 1918 and expected she would be thoroughly cured within three months and that she could consummate the marriage. In cross-examination he stated that he had been practising in Calcutta for three years, that on March 18th the Respondent was suffering from tertiary syphilis and that it would not then have Keen safe to consummate the marriage.

At the retrial before me the following further evidence was called on behalf of the Petitioner. Hridoy Gopal Bannerjee, a Minister of the Baptist Chapel, who married the parties, stated that on the 6th March 1918 the father of the Petitioner, made a communication to him and that as a result he went to the house and had a talk with the Defendant who admitted that before the marriage she was suffering from something which caused a hole in her palate, that her father had her treated for this before the marriage without effect and that it went on increasing. He stated that the Respondent said that something happened to her nose and then to her palate.

In cross-examination he stated that the Respondent did not say that she knew what the disease was. Dr. Bissesswar Mitter, who was examined at the first trial, stated that he examined the Respondent on the morning of the 11th March 1921 and that there were signs of hereditary syphilis and that he did not think it necessary to examine her private parts as in such cases private parts are never affected unless there was fresh infection during the last few weeks or months. In cross-examination he stated that sexual connection was not impossible but that any children born of the union were likely to be infected, that if the Petitioner had sexual intercourse with the Respondent there was no chance of his being infected but that from kissing he might be infected and that the discharge from the nose and mouth was infectious.

I find the following facts on the evidence. (1) That the marriage was never consummated, (2) That the Respondent was at the date of the marriage suffering from hereditary tertiary syphilis, (3) That this was not known to the Petitioner until after the marriage, (4) That the Respondent was treated for syphilis prior to her marriage, at the instance of her father who, I must assume in absence of evidence from him on this point and in view of Mr. Hridoy Gopal Banerjee's evidence, knew of the nature of the disease, (5) That sexual intercourse between the Petitioner and the Respondents is not physically impossible and that her private parts are not diseased, (5) That the disease has not yielded to treatment and that even if curable (as to which no positive conclusion is now possible) it could not be taken as cured until after the lapse of several years, (7) That from sexual intercourse alone the Petitioner is not- likely to become infected with the disease but that there is risk of such infection, if the Petitioner and Respondent live together on Ordinary terms as husband and wife, (8) That there is very grave risk that any offspring of the union would be diseased.

I gather from the judgment of the Appeal Court that the case was remanded for retrial on two points: (1) for investigation of the allegation of fraud and (2) for consideration whether the rule of impotency said to be deduced from the American, authorities to which unfortunately I have no means of access, namely, that the existence of incurable syphilis at the time of marriage in either party forming, not an absolute bar to copulation Hut rendering the act impracticable as endangering both the health and life of the party not previously infected such an incapacity as entitles the party not infected to a decree for annulment, is applicable to the facts of the case.

So far as the first of these questions is concerned I have already stated my finding on the point, that is to say, that I find upon the evidence that the father of the Respondent knew prior to the marriage that the daughter, the Respondent, was suffering from syphilis, and that this fact was not known to the Petitioner but was concealed from him. Whether the father knew or had reason to believe that the disease was incurable I do not know but even assuming that he did know this I do not think that this would be a good ground for annulling the marriage. The jurisdiction of the Court to annul the marriage is contained in sec. 19 of the Indian Divorce Act (Act IV of 1869) and fraud, apart, from fraud in obtaining the consent, is not a ground and I do not conceive that fraud of the nature stated above amounts to fraud in obtaining the consent within the meaning of the words at the end of sec. 19.

The law in England is succinctly stated in Halsburv's Laws of England, Vol. XVI, p. 278, as follows's: “Fraudulent misrepresentation or concealment does not, apart from duress or imbecility of mind amounting to insanity, affect the validity of a marriage to which the parties freely consented with a knowledge of the nature of the contract.”

This being so, the only question which remains, apart from the question of the principle deduced by the Appeal Court from the American authorities, is whether on the facts here the Respondent was impotent at the time of the marriage and at the time of the institution of the suit. It is said on behalf of the Respondent that impotency means an impossibility of sexual intercourse from physical incapacity and that cases like G. v. G. and H. v. P. falsely called H. mark the extreme limit to which the Courts will go, that on the facts here there is no such incapacity and that the Court has no jurisdiction to annul the marriage. On behalf of the Petitioner it is said that impotency means anything which prevents co-habitation, a state of things said to exist here on to facts of this case.

The construction put on impotency by Counsel for the Respondent is, I think, clearly too narrow a construction. Lord Penzance in the case of G. v. G. says “but the basis of the interference of the Court is not the structural defect but the impracticability for a 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 be shown that connection is practically impossible or even if it be shown that it is only practicable after a remedy had 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.”

In that case the marriage could not be consummated owing to the hysteria or extreme sensibility of the wife, no question of any structural defect arising and the Court on the facts came to the conclusion that this condition of things would be permanent. The passage which I have quoted from the judgment in G. v. G. is quoted with approval in Dickinson v. Dickinson . There is no doubt that both in that case and in G. v. G. the consummation of the marriage was physically possible if force or certain other measures had been used. In the present case consummation is no doubt physically possible and the wife is not unwilling but the question I have got to ask myself is not, I think, concluded by this. Can I say here that consummation is under the circumstances a practical impossibility? I think it is. Upon the evidence, having regard to the state of the wife's health, I think consummation is a practical impossibility. I think the husband could not consummate the marriage without the very gravest risk to his health and to that of any offspring who might be born of the connection and I think this state of things is likely to continue and be permanent and in my opinion this amounts to impotency on the part of the wife within the meaning of the decided cases. I accordingly declare the marriage null and void.

Mr. E.P Swinhoe, Solicitor for the Petitioner.

Mr. J.C Dutt, Solicitor for the Respondent.

M.N.K