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1. This petition is for the declaration that the marriage solemnised between petitioner (wife) and the respondent (husband) under Christian rites and ceremonies is null and void on the ground that the respondent was impotent at the time of the marriage and at the time of the instituiton of the petition.
2. The relevant facts are as follows :--
The parties are Indian Christians professing the Roman Catholic faith. They were married on 26th December, 1984 in St. Paul's Church at Dadar, Bombay in accordance with Roman Catholic rites. There is one son born on 30th October, 1985 from this marriage. On 2nd April, 1990 this petition was filed by the wife. Her case is that the respondent is impotent relatively to her. As regards the birth of the child, she says "In order to give a chance to the situation, the petitioner suggested to the respondent that they should go on a brief honeymoon out of Bombay, which they accordingly did sometime towards the end of January, 1985. The said honeymoon was a total disaster except for one attempt that was made by the respondent with great persuation by the petitioner as a result of which the petitioner got pregnant. The respondent deplored the action on the part of the petitioner in order to have him motivated to have sexual acts with the petitioner and said that he was lured by the petitioner into the said sexual act."
7. In Vincent Adolf Godinho's case there was sexual intercourse leading to pregnancy and delivery and still it was held that the wife's impotency had been proved relatively to the husband. The facts in that case were that the wife was unwilling to have sexual intercourse with her husband but the husband on one occasion forcibly had sexua! relations with her. The wife had complete aversion to any sexual relation with the husband. It was under these circumstances that it was held that the wife was impotent relatively to the husband.
11. Where impotency is the cause of a marriage remaining unconsummated it may be that (a) both the husband and the wife are impotent, (b) the husband alone is impotent, or (e) the wife alone is impotent. Impotency may be relative impotency, that is a person may be incapable of sexual intercourse with a particular person only though capable of normal sexual intercourse with another person. The incapability may be either physical or mental. Now let us take the case of a woman who is totally frigid (mental incapability to have sexual intercourse) and she is so not relatively but absolutely. Certainly this would be a case of impotency. Now such a woman (an "inanimate" woman) will not cease to be impotent if a man forcibly penetrates his penis into her vagina. The last two cases relied upon by Mr. Rebello are of this type. An "inanimate" man cannot penetrate for sexual intercourse. A man having sexual intercourse cannot be said to be "inanimate" or impotent. The fact that he has been "persuaded" or "lured" or "seduced" makes no difference, nor does it make any difference that this was only a single act of copulation. In our case the man has copulated with her, that is penetrated her for sexual intercourse. Certainly this is no case of impotency.