Impotency in Marriage - Annulment Impotency

Concept of Impotency in Matrimonial Suits

Impotence, in general language, refers to the state of mind or body which makes sexual acts impossible. Till recently, it was assumed that only man could be impotent. Generally, it is assumed that the inability to attain or sustain an erection for the sexual act makes a man helpless. However, for matrimonial matters, and rightly so, any party who, because of their bodily or mental state, is unable to consummate marriage is said to be impotent.

Supreme Court defined impotence as “a Party must be held to be impotent if his or her mental or physical condition makes consummation of marriage impossible” Delhi High Court described it as “lack of ability to perform complete sexual intercourse.”

Impotence is a ground for matrimonial relief under all personal laws. Under the Hindu Marriage Act of 1955, impotence renders marriage voidable under S. 12(1)(a). The Special Marriage Act of 1954 also makes marriage void. Similar provisions are there under the Indian Divorce Act and the Parsi and Muslim Marriage Acts. In all marriage acts, impotency can be a ground for annulment.

It has to be understood that imperfect and partial intercourse is not consummation. And it does not only affect males. 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 under this regard, the malformation of the organ or incapability must be incurable and consummation, therefore, a practical impossibility. Phimosis, i.e. 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 categorical 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 an operation, it still would be grounds for matrimonial relief.

We also have to understand that sterility is not the same as impotence. A male or female may be perfectly normal and potent but cannot procreate or conceive with a different medical condition and, hence, not impotent.

The ground of Relative Impotency

Medical and Legal jurisprudence accept that there can be instances where a perfectly normal human can be virtually impotent compared to another, whereas s/he might be perfectly potent compared to another person. The petitioner would receive matrimonial relief based on the respondent’s relative impotence.

Thus, Impotency may be temporary or permanent. It may be directed at a particular person or 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, the husband alleged that whenever he attempted intercourse with his wife, the act produced hysteria, and the wife submitted to sexual intercourse only on the wedding night when the husband used force and, on all other occasions, resisted his attempts. In such a case, the wife could be considered impotent to the husband.

In a similar vein, the courts have held that the mere birth of a child, i.e. where conception 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 dissatisfaction of the spouse is not impotence.

Evidence and Proof of Potency

In any matrimonial matter or suit filed for relief on the grounds of the respondent’s impotence, it must be proved, and there must be facts from which impotence that is physically unfit 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. However, the mere allegation is not sufficient; the parties’ conduct after the marriage should also inspire the court’s confidence in this regard.

There are instances where medical evidence can be taken as a matter of 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, the inference should be drawn against the person who does not subject themself to medical examination.

In some instances, the court will grant the petitioner a decree of nullity if the respondent confesses non-consummation of the marriage and refuses to undergo a medical inspection.

Medical Examination in allegations of Impotency

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 test to decide 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 examination. The court could appoint a medical board to examine the potency of the parties. However, where divorce is sought by a party on the grounds of sexual dissatisfaction as the course for mental and physical cruelty, the party cannot seek a medical examination of the respondent to ascertain their potency. As stated above, the court may draw an unfavorable inference if the party refuses to attend a medical inspection.

Many men who have been charged with impotency fail medical examinations for various reasons, so I shall soon write an article on a cheatsheet for potency tests.

To understand the concept of Impotency in matrimonial concept better, it is advised that one goes through these judgments on Annulment.