P. v. K. (1982)

This is the decision that states what impotency means under the voidable-marriage ground after the 1976 amendment, and it is the case to study for the way a woman's body and her aversion to intercourse are assessed in a nullity petition. It is included here because the ground is one of the standard heads on which a Hindu marriage is set aside, and because the shift the amendment made — from a condition existing at the marriage and continuing, to non-consummation owing to impotency — is a favourite examination point.

The parties, both Hindus, married on 20 June 1976; the husband was about thirty-six and the wife about twenty-seven. The husband filed a nullity petition within a few months, on or about 30 November 1976.

His case was that the marriage had not been consummated owing to the wife's impotency; that on the first night she refused intercourse, saying she would not have intercourse for a year; that she appeared upset at his approaches and was averse to any sexual act; that a pilgrimage undertaken at the suggestion of the elders produced no change; that he complained to her father, who ignored it; and that a medical examination on 27 August 1976 disclosed that she was suffering from a second degree prolapse of the uterus. He said that the medical report, her behaviour and the circumstances gave him reason to suspect concealment, and that his consent had been obtained by fraud and misrepresentation as to material facts concerning her. He asked for annulment on both grounds.

She denied that the marriage was unconsummated, that she refused or was averse, and that she was impotent; she said she had been taken to the doctor but did not understand the result, and that neither she nor her parents were aware of any defect at any time.

The trial judge dismissed the petition.

The dismissal was set aside and the petition allowed. Non-consummation was held established, and the respondent was held to have been impotent. Permanent alimony was fixed, by agreement of counsel, at a lump sum of thirteen thousand five hundred rupees, payable within two months.

1. State the change the amendment made. Before the 1976 amendment it was necessary to prove that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings. After it, the petitioner has to establish only that the marriage has not been consummated owing to the impotence of the respondent.

1. Define impotence broadly. Impotence simply means the inability to perform the sexual act. It may be pathological or psychological, permanent or temporary, complete or partial.

1. Measure intercourse by the ordinary standard. Sexual intercourse in the proper meaning of the term is ordinary and complete intercourse, not partial and imperfect intercourse. Not every degree of imperfection deprives intercourse of its essential character, but where it is so imperfect as scarcely to be natural it is, legally speaking, no intercourse at all.

1. Curability is now immaterial. The older observation that a curable condition cannot found a decree of nullity was made under the law as it then stood; on the present law the question of curability does not arise.

1. Apply the standard to the facts. The Court held that a condition making intercourse imperfect or painful amounts to impotency, and that even the aversion or abhorrence to intercourse caused by such a condition can amount to impotency. Two reasons were given, each independently sufficient: the respondent resisted every approach, possibly to conceal the condition or to avoid the pain intercourse might cause; and with such a prolapse intercourse is possible only after manipulation, which cannot be said to be intercourse in the normal way. Together with the finding of non-consummation, that entitled the petitioner to annulment.

1. Explain why the trial court's appreciation failed. The judge had disbelieved the examining doctor although the respondent's own evidence was unreliable, had discarded a document that ought not to have been discarded, had failed to notice discrepancies in the other medical evidence, had drawn conclusions from matters on which the doctor was never cross-examined, and had failed to notice that the respondent's father never entered the witness box to contradict the petitioner. He had also missed the change in the law since 1976.

1. Distinguish the case relied on. In the Punjab and Haryana decision where a nullity petition failed, the material about the wife's condition was scanty, the doctor's evidence was that the marriage was capable of consummation, and there was no further cross-examination on her capacity; that case is not authority for the proposition that impotency cured after the petition defeats a decree.

It opens the voidable-marriage ground of non-consummation. The structure is: state the pre-1976 and post-1976 tests and the difference between them; define impotence as inability to perform the act, whether physical or psychological; and apply the ordinary-and-complete-intercourse standard.

It disposes of the arguments that impotency must be shown to have existed at the marriage and to have continued, and that a condition capable of cure can never found a decree.

It does not decide the fraud ground, which the Court did not need to reach in terms, and it lays down no medical rule — everything turned on the evidence of the examining doctor and on the unreliability of the respondent's own account. Note the counterweight: the decision expressly approves the refusal of a decree where the material is scanty, so a petition of this kind stands or falls on the medical record.