JUDGMENT Venkataswami and Srinivasan, J.
1. The original petition under Sections 18 and 19 of the Indian Divorce Act was filed by the husband He married the respondent on 15-9-1986 at Grace Church, Tirunagar Madurai District.
2. It is the case of the petitioner that the marriage was never consummated. When he made attempts to convince the respondent and have intercourse with her, she became violent and resisted the attempts of the petitioner. It is stated that on 5-10-1986, the respondent became violent and caused injuries to the petitioner. The petitioner made a complaint to the elders of both the families. The respondent’s mother as well as her grandfather were also informed. The respondent went to her mother’s house on 25-10-1986, and refused to come back. She started living there permanently. She was also stating that the petitioner could marry another lady, and she had no objection therefore. Thereafter, there was an attempt for mediation, and the respondent executed a document called ‘divorce deed’. It was executed on 22-10-1986 and registered in the Office of the Joint Registrar, Madurai, on the same day. I he document is attested by three witnesses. It is signed not only by the respondent but also by her mother. The respondent has clearly stated in the said document that she is not inclined to have any marital relationship or intercourse with the petitioner. She has consented for the petitioner marrying somebody else, arid she has also consented for the divorce of the marriage.
3. The petitioner has given evidence as P.W. 1. He has substantiated the averments made in the petition filed by him.
4. The respondent remained ex parte.
5. On the basis of the evidence of P.W. 1, the District Judge has granted a decree declaring the marriage as null and void.
6. Now the matter has come up before us for confirmation under Section 20 of the Indian Divorce Act.
7. Learned Counsel for the petitioner referred to the evidence on record and submitted that the decree granted by the Court below should be confirmed.
8. The respondent remained ex parte and the Court has appointed Miss. V. Uma as amicus curiae. She submitted that the Court should not confirm the decree as the evidence is not sufficient to hold that the respondent is impotent. According to her, unless there is medical evidence before the Court, it shall not be held that the respondent is impotent. It is submitted by her that though the respondent remained ex parte, the Court below should have insisted upon the petitioner to adduce medical evidence to prove the impotence of the respondent.
9. We are unable to agree. No doubt, medical certificate would have been a good piece of evidence to prove the impotence of the respondent. But in case where the respondent remained ex parte, it is not possible for the Court to obtain medical evidence.
10. It has been held by this Court in Jean Emeline Thavamani v. Joseph Taylor, , that impotency can be inferred by Court from refusal to consummate the marriage if the circumstances of the case warrant it. The entire evidence has to be considered to decide whether the impotency is proved.
11. It is held in Bull v. Bull, A.I.R. 1938 Cal. 684, that incapacity in wife of consummating marriage, consisting of a nervous and psychic disorder and of invincible repugnance in relation to the act of coitus, at all events insofar as the petitioner husband is concerned, which renders her incapable of submitting to sexual intercourse with him, is sufficient to satisfy the requirements of Section 19 of the Act. No doubt the burden of proving the allegation is on the petitioner and he shall remove all reasonable doubts.
12. The Supreme Court had occasion to consider a case under Section 12(1)(a) of the Hindu Marriage Act, in Yuvaraj Digvijay Singh v. Yuvarani Pratap Kumari. A.I.R. 1979 S.C. 137. The Supreme Court held that a party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility and in order to entitle a petitioner under Section 12(1)(a) of the Hindu Marriage Act, 1955 to obtain a decree of nullify, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.
13. In Muthuraj Koilpillai v. Esther Victoria Kannammal, , this Court considered the question in detail and held that impotency is not necessarily to be confined to the physical inability of one or the other of the spouses to have sexual intercourse. The Court said that it may also cover such a condition either of the mind or of the physical condition of the person which renders normal sexual intercourse impracticable so as to reach its completion. The following passage in the judgment is worth reproduction :
“9. Now, in this case, there is no such outward physical disability. On account of her mental disease it was impossible for the plaintiff to have intercourse with the defendant both at the time of the marriage and also at the time he instituted the suit. That we think, may justifiably be brought under the head of impotency in law.
10. Rayden on Divorce, 9th Edn. at page 112, says :
“The presence of a physical structural defect is not essential. The statement by Lord Pensance to the contrary in T. v. M., (1865) -LR IP and D. 31, is no longer law…The basis of the Court’s interference is not the structural defect, but the impracticability of consummation.”
The learned author goes on to point out that disability arising from mental or moral causes is sufficient, such as physteria. We are inclined to accept this view as valid in order to bring the case under the ground of impotency. This view receives support as well from Koshore Sahu v. Snahprabha Sahu, A.I.R. 1943 Nag. 185(F.B.). There it was held that incapacity in the woman for sexual intercourse need not be physical and that it may be due as well to mental or physical causes. It was further pointed out that all that was required was an invincible repugnance to the act of intercourse either generally or with the particular man.”
14. In the present case, the facts as proved by the petitioner show that from the time of the marriage, the respondent was not willing to have intercourse with the husband. The evidence given by the petitioner proves that she was neither physically nor mentally capable to have consummation of the marriage. In the circumstances, we are of the view that impotence of the respondent has been proved by the evidence on record. We have already referred to Ex. A-2 executed by the respondent herself. There is admission by the respondent, and unless it is explained by her the Court below is right in treating it as a piece of evidence on the side of the petitioner. In the circumstances, the decree granted by the Court below does not suffer from any infirmity, and hence it is confirmed. There will be no order as to costs.