Impotence is a ground for matrimonial relief under all personal laws. Under Hindu Marriage Act, 1955, impotence would render marriage voidable under S. 12(1Ka). Under the Special Marriage Act 1954, it makes a marriage is void. Similar provisions are there under the Indian Divorce Act & Parsi and Muslim Marriage Acts. In all marriage acts, impotence can be a ground for annulment.
It has to be understood that imperfect and partial intercourse is not a consummation. And it does not bear effect on males only. Even where the husband could not consummate the marriage because of the artificial vagina of the wife, a nullity decree was upheld by the superior courts.
However, to seek relief under matrimonial matters, the malformation of an organ or incapability must be incurable and consummation, therefore, a practical impossibility. Tight Foreskin in males, which a simple procedure can remedy, thus won’t make a ground for relief under provisions of impotence. However, courts have been definite that if the operation can lead to great danger to the life of the party suffering from it or if the party refuses to undergo a process, it still would be a ground for matrimonial relief.
The ground of Relative Impotence
It is accepted by both Medical and Legal jurisprudence that there can be instances where a perfectly normal human can be virtually impotent to the other. In contrast, she might be perfectly potent vis-a-vis another person. The petitioner would be entitled to matrimonial relief on the ground of the relative impotence of the respondent.
Thus, impotence may be temporary or permanent. It may be towards a particular person, or it can be universal. The court also accepts that mere consummation of marriage by force won’t make the other person potent vis-à-vis the petitioner. In a particular case, when the husband alleged that whenever he attempted intercourse with his wife, the act had produced hysteria, and the wife submitted to sexual intercourse only on the wedding night when the husband used force and resisted on all other occasions his attempts. In such a case wife could be said to be impotent to the husband.
Similarly, the courts have held that mere childbirth, where coemption was attributed to fecundation ab extra (without penal penetration), is no ground to deny impotence. On the other side, courts have held that the absence of a uterus, having nil sperm count, and mere spouse dissatisfaction is not impotence.
Evidence and Proof of Potency
In any matrimonial matter or suit filed for relief on the grounds of the impotence of the respondent, such impotence must be proved, and there must be facts from which impotence that is physical unfitness for consummation, may be inferred. Impotence would be within the exclusive knowledge of the spouses. Therefore, it cannot always be proved by the evidence of others except medical evidence. But the mere allegation is not sufficient. The parties’ conduct after the marriage should also inspire confidence in the court in this regard.
There are instances where medical evidence can be taken as prudence. When someone alleges malformation of organs or where a detailed version of lack of erection at all times and in different situations is attributed, should draw the inference against the person who does not subject himself herself to medical examination in some instances where the respondent confesses non-consummation of the marriage and refuses to undergo a medical inspection, the court will grant the petitioner a decree of nullity.
Medical Examination in Allegations of Impotence
As stated above, the court can ask a person charged with impotence to undergo a medical test. Asking a person to go through a medical examination for deciding on a matrimonial suit is not a deprivation of personal liberty under Article 21 of the Constitution. However, such a person cannot be compelled to undergo a medical examination, though it is permissible to grant a decree for nullity where there is a positive refusal by the respondent to submit to the medical test. The court could appoint a medical board to examine the potency of the parties. However, where a party seeks a divorce based on sexual dissatisfaction as the course for mental and physical cruelty, the party cannot seek medical examination of the respondent to ascertain their potency, as stated above, where the party refuses to attend medical inspection. The court may draw an unfavourable inference.
Many men charged with impotence fail under medical examination for various reasons, so I shall soon write an article on the cheat sheet of potency tests.
