AIR 1968 KERALA 129 ::1967 Ker LT 695 ::1967 Ker LJ 640 ::ILR (1967) 2 Ker 217

Kerala High Court

Hon'ble Judge(s): S. Velu Pillai, T. S. K. Iyer , JJ

Divorce Act (4 of 1869) , S.19(1), S.18— Term "impotency" - Meaning of - Non-consummation due to incapacity or wilful neglect to consummate on part of husband - Burden is on wife to prove - Persistent refusal to consummate marriage on part of husband - Incapacity assumed - (Words and phrases - "Impotency" - Meaning of). Evidence Act (1 of 1872) , S.101, S.114— The term "impotency" means incapacity to consummate the marriage, that is to say, incapacity to have sexual intercourse, which is one of the objects of the marriage. There can be sexual impotency in general or impotency with regard to a particular spouse described as impotency quoad hune or quoad hanc. The burden is no doubt on the wife, the petitioner appellant, to prove affirmatively and to the satisfaction of the court that the non-consummation is due to incapacity or wilful neglect to consummate on the part of the husband. The court will have to be satisfied beyond reasonable doubt that the husband was impotent at the time of the marriage and has been therefore incapable of consummating it. Where there has been persistent refusal to consummate a marriage on the part of husband (who also refuses to obey an order for medical inspection) while the wife has been desirous that there should be consummation, the court will assume the existence of some latent impediment amounting to incapaci....