Suguna Theresa Padmavathi Devasahayam falsely called Suguna Gnanadoss David, Madras vs Gnanadoss David, Daniel, Madras

Sadasivam, J.—Petition under Ss. 18 and 19 of the Indian Divorce Act, Act IV of 1869, to declare the marriage between the petitioner and

the respondent null and void on the ground that the respondent was impotent, at the time of the marriage and at the time of the petition. The

petitioner and the respondent are Indian Christians and they were married on 11th May, 1960, at the Church at Jehova Shammah, Vepery,

Madras, as evidenced by the Marriage Certificate Ex. P. 1. The respondent lived with the petitioner in his father-in-law''s house ever since the date

of the marriage till disputes arose between the parties in the end of September, 1960. The petitioner''s case is that the respondent did not have any

physical contact with her and never consummated the marriage. But the respondent has pleaded in his counter and gave evidence that he had

normal sexual intercourse with the petitioner. It is clear from the evidence in this case that disputes arose when the petitioner''s father questioned

the respondent about his selling a ring and the respondent left the petitioner''s house after a quarrel. But, on the next day, the respondent, his

paternal uncle R.W. Prakash and a number of relations went to the petitioner''s house, when she was alone with her father, and demanded that the

petitioner should be sent with the respondent. The petitioner''s father agreed to it on account of fear that he would otherwise be manhandled. But

on the next day he went to Villupuram along with the petitioner and told the parents of the respondent that the petitioner could not be sent to the

respondent. Subsequently, there were some attempts to bring the parties to live together, but they failed. Finally, the petitioner has come forward

with this petition for declaring the marriage null and void.

The main question for consideration in this petition is whether the respondent was impotent at the time of the marriage, and at the time of the

filing of this petition. The evidence of the petitioner shows that the respondent had no physical Contact or sexual intercourse with her. It was only a

month after the marriage she told her father about it, when he questioned her about it. Subsequently, she questioned the respondent and he stated

that he had to undergo an operation. Her evidence is corroborated by the evidence of her father P.W. 2, Gnanaprakasa Devasahayam. The

evidence given by the respondent that he had sexual intercourse with the petitioner is hardly convincing. He stated that he had sexual intercourse

not only on the first night but also on several occasions and that he would have had sexual intercourse 10 or 12 times during the period of six

months when he stayed with the respondent. But he also deposed that the petitioner complained of pain and that she used to do masturbation for

him. But no such suggestion was made to the petitioner. He admitted that his father asked him what was wrong with him and took him to Dr.

Thyagarjan and that Dr. Thyagarajan advised circumcision. He had circumcision at the Perambur Railway Hospital. But even subsequently the

respondent did not have sexual intercourse with the petitioner.

R.W. 2 Daniel is the father of the respondent. Even in chief examination he deposed that the petitioner''s father complained to him that the

respondent had not conducted himself as a husband. In cross-examination it was suggested to him that on one occasion the petitioner''s father sent

for him and told him that his son was not capable of having sexual intercourse with the petitioner. He stated that the petitioner''s father did not send

for him but, he admitted that when he went to the petitioner''s father, he told him about it. In fact, the respondent''s father has stated in the letter Ex.

P-2 that after a simple operation the respondent would be perfectly right. It is not the respondent''s case that he had any aversion for the petitioner,

or that the petitioner never allowed her to have sexual intercourse. On the other hand, the respondent''s case is that he had sexual intercourse with

the petitioner. It is clear from the evidence of the respondent himself that he was taken to several doctors, viz., Dr. Venugopal, Dr. Jackson and

Dr. Cheriyan. According to him, Dr. Venugopal advised him to take milk and almond to gain strength. There can be no doubt that the respondent

was taken to several doctors on account of his inability to consummate the marriage.

R.W. 1, Dr. Gowrishankar examined the respondent and found the genital organs normal and gave the certificate Ex. D-2. He found no

abnormality or defect in the respondent to interfere with the marital act. He deposed that he took the case history of the respondent, but he

admitted that he has not recorded it. According to him, the respondent told him that the petitioner resisted intercourse. Thus the respondent does

not appear to have told R.W.1, that he had sexual intercourse with the petitioner. In cross-examination, R.W.1, Dr. Gowrisankar deposed that he

merely looked at the private parts of the respondent. But to questions put by ma he stated that the respondent had erection; but he has not

mentioned it in his certificate Ex. D-2,

P.W. 2, Dr. Mathanki examined the petitioner and issued the certificate Ex. P-4 on 6th March, 1964. Her evidence and her certificate clearly

prove that the petitioner is a virgin and could not have had sexual intercourse. She deposed that the hymen was intact and that even the index finger

could not be passed into the vagina. She deposed that an average adult organ could not have penetrated the vagina of the petitioner even partially.

At the close of the trial, learned Advocate for the respondent himself suggested that the parties may be examined by a doctor appointed by

Court. In view of the conflicting medical evidence, I myself felt during the course of the trial that it would be better to have both the parties

examined by a Board of Medical Men, consisting of two doctors. I have referred the following passage at page 324 of Medical Jurisprudence and

Toxicology by John Glaister in my order on 30th October, 1964 :

When an allegation is made by a wife or husband that impotence existed, it is the duty of the Court to call medical evidence. Two medical

examiners are appointed and both parties must submit to such an examination as the medical men think necessary, in order to verify the existence,

or otherwise, of the alleged importance. If the allegation is made by a wife, in order to establish her averment, it is necessary for her to show

evidence, by medical examination of her own body, that she is physically capable of having sexual intercourse.

I issued requisitions to Dr. G.B. Gopalakrishnan, Professor, Forensic Medicine; Madras Medical College, and Dr. Sarada Menon,

Superintendent, Mental Hospital, Kilpauk, Madras, to ascertain whether they are willing to examine the parties and give their opinion. Dr. R.

Gopalakrishnan agreed to do the work. As Dr. Sarada Menon Was not willing to undertake the work, I obtained the consent of Dr. C.H.

Sowmini, Associate Professor of Venereology, Madras Medical College and Physician, Government General Hospital, Madras. I appointed Dr.

Gopalakrishnan and Dr. C.N. Sowmini jointly to examine the parties and submit a report. They submitted the report Ex. P. 5 and gave evidence in

support of the same. Their evidence clearly prove that the petitioner is a virgin and that she could not have had sexual intercourse with the

respondent and that the respondent is impotent on account of psychic causes. In fact, the report Ex. P. 5 shows that respondent could not have

emission or ejaculation even after repeated psychic or local mechanical stimuli. The evidence of Dr. Gopalakrishnan and Dr. Sowmini show that

the hymen of the petitioner is not fringe like annular hymen or the folded variety which allow intercourse taking place without rupture, that the

vagina was narrow and that the aperture was so small in size as to admit only the tip of the finger. Thus the medical evidence clearly supports the

case of the petitioner.

The learned Advocate for the respondent relied on the decision in Ruth v. Ruth AIR 1864 Cal. 474 in support of his contention that the burden

of proving impotency was upon the petitioner and that all reasonable doubt must be removed before passing a decree and that the fact that there

was a long delay in making the application is a ground for refusing to grant a decree that the marriage is null and void. The case cited by the learned

Advocate for the respondent is clearly distinguishable. It is clear from the decision that the husband of the petitioner in that case remained ex parte

and there was no medical evidence as regards his physical impotency which was alleged by the wife. But, in the present case, there is ample

medical evidence to prove that the respondent''s version is not true and the petitioner''s version is true. Further in that case, there was an inordinate

unexplained delay of 8 years. It is true the present petition was first presented on 16th September, 1963, though the marriage took place as early

as 11th May, 1960. The petitioner is an young girl and she would be reluctant to talk about the conditions of her husband till she was forced to do

go. It is only after her father asked her about a month after the marriage, she told him that the respondent had no physical contact with her.

Subsequently several attempts were made by the parties to have the respondent examined by medical men and rectify his condition. Thereafter the

petitioner evidently consulted others and finally filed this petition. Thus it could not be said that there was unreasonable delay in filing this petition.

For the foregoing reasons, I find that the respondent is impotent on account of psychic causes. In find on Issue 1 that the respondent was impotent

at the time of the marriage and at the time of the filing of the petition and on Issue 2 that the petitioner is entitled to a decree as prayed for with

costs.