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1. This is a petition under Section 18, Indian Divorce Act for a declaration that the marriage between the petitioner and the respondent is null and void. The petitioner is the wife and the respondent the husband. They were married under the Christian Marriage Act, 1872, at Cuddalore on 29-5-1945. The petition was founded on the allegation that the respondent, the husband, was impotent at the time of the marriage and at the time of the institution of the suit. Under Section 19(1) of the Act, a decree for nullity of marriage can be made on that ground. The petitioner alleged that the respondent's male organ was so abnormally big as to render sexual intercourse with her impracticable, and it proved to be positively dangerous to the life of the petitioner; that on the several occassions when the respondent attempted to have intercourse with her the petitioner evinced great aversion to the act and also suffered great pain on each occasion, with the result that she had to push the respondent away or jump out of bed. She stated that in the above circumstances the marriage was never consummated and that consummation of marriage was impossible. She submitted that it was a case of incurable impotence on behalf of the respondent towards the petitioner and that the marriage should be declared null and void on the ground of impotency.

4. Impotency has been understood by Judges in England in matrimonial cases as meaning incapacity to consummate the marriage, that is to say, Incapacity to have sexual intercourse, which undeniably is one of the objects of marriage. The question is, what does "sexual intercourse" mean? We cannot do better than refer to what has been considered to be the leading decision on this topic, namely -- 'D. E. v. A-G.', (1845) 163 ER 1039 (A). In that case, the husband prayed for a declaration of nullity of his marriage with the respondent who was married to him on the ground that carnal consummation was impossible by reason of malformation of his wife's sexual organ. Dr. Lushington dealt with the point, namely, what exactly is to be understood by the term "sexual intercourse", because as he said every one was agreed that in order to constitute the marriage bond between two persons, there must power, present or to come, of sexual intercourse. Dr. Lushington stated:

In -- 'G. v. G.', (1871) LR 2 P. & D. 287 (B), the rule laid down by Dr. Lushington was followed. The ground on which the husband in that case sought a declaration of nullity of marriage was the wife's peculiar condition which made it impossible for him to consummate the marriage. The wife was suffering from excessive sensibility. Lord Penzance in dealing with the case, after laying down the law that the ground of interference of the courts in cases of impotence is the practical impossibility of consummation said:

"The invalidity of the marriage, if it cannot be consummated, on account of some structural difficulty, is undoubted; but the basis of the interference of the court is not the structural difficulty but the impracticability of consummation."

The learned Judge was prepared to hold that even in the absence of a physical structural defect, there may be other circumstances which render sexual intercourse practically impossible. "The question is a practical one" he said "and I cannot help asking myself what is the husband to do in the event of being obliged to return to cohabitation in order to effect consummation of the marriage? Is he by mere brute force to oblige his wife to submit to connection? Every one must reject such an idea".