Doctrine of ‘Relative Impotency’ in matters of annulment of marriage

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In the matter of: Sanu V/s Sandeep (Mat. Appeal No. 491 of 2018, High Court of Kerala, Date of Decision: 01.08.2018, Coram: C.K. Abdul Rehim & R. Narayana Pisharadi, JJ.) it was held that:

i.          A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. Incapacity for sexual intercourse is an essential ingredient of impotency. Impotency in the law of divorce means incapacity to perform the act of sexual intercourse, that is to say, inability to copulate.

ii.         Impotency is the lack of ability to perform full and complete sexual intercourse. Such inability may arise from a variety of causes including mental and physical disability. When a husband abstains from or fails to attempt intercourse with his wife the inference of incapacity is even stronger and the onus is on him to rebut that presumption.

iii.       Invincible and persistent repugnancy on the part of the spouse to the act of consummation amounts to impotency.

iv.        Impotency means physical or psychological and incurable incapacity to consummate the marriage. It means the incapacity to perform full and natural intercourse. It may be due to an organic defect, or, due to invincible repugnance, or, due to hatred for sexual intercourse. It need not be due to physical incapacity and may be caused by the mental or physical condition which would render normal intercourse impossible. It may be pathological or psychological, permanent or temporary.

v.         Relative impotency denotes a situation where a person is incapable of sexual intercourse with a particular person though he/she is capable of sexual intercourse with another person.

vi.        A person may generally be capable of performing sexual act yet he may be incapable of it vis-à-vis a particular person. The incapability may be either physical or mental. It sometimes happens that a person is capable of having sexual intercourse, but incapable of performing it with a particular individual. In such a case the person must be regarded as impotent in relation to that particular individual regardless of his potency in general.

vii.       It is possible that a man is impotent in respect of one woman though he can perform sexual act with other women. A man may be impotent vis-à-vis his wife, though he may not be impotent vis-à-vis any other woman.

viii.     According to Section 12 (1) (a) of the Hindu Marriage Act, 1955 (‘HMA’), any marriage solemnised, whether before or after the commencement of the HMA shall be voidable and may be annulled by a decree of nullity on the ground that the marriage has not been consummated owing to the impotency of the respondent-spouse.

ix.        That a bare perusal of Section 12 (1) (a) of the HMA would show that mere non-consummation of marriage is not sufficient for granting a decree for annulment of marriage. Non-consummation of marriage has to be due to the impotence of either spouse.

x.         Marriage without sex is an anathema (See: Rita V/s Balkrishan, AIR 1973 Delhi 200). Relative impotency is a ground for annulment of marriage.

About Shivam Goel

Shivam GoelShivam Goel; B.Com (H), LL.B. (Delhi University), LL.M. (NUJS, Kolkata); Author of: Corporate Manslaughter and Corporate Homicide: Scope for a New Legislation in India, Partridge India, 2015; Associate, S.G. & Co. (New Delhi); advocate.shivamgoel@gmail.com

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