Kanthy Balavendram vs S. Harry on 10 August, 1953
In this connection I would invite the attention of the learned District Judge to the observations of the Nagpur High Court in Kishore Sahu v. Snehaprabha Sahu, AIR 1943 Nag 185 (SB); H. v. H. AIR 1928 Bom; 279, and Balavendram v. S. Harry, AIR 1954 Mad 316 (FB), and the English decisions cited therein. It is true that though a person may be generally potent he may be impotent towards a particular person of the opposite sex and that may be a good ground for annulling a marriage provided the other conditions required by section 19(1) of the Indian Divorce Act are satisfied. But in such cases the court would require some corroborative evidence to support the statement of the other side to the effect that the marriage was not consummated. If the wife was a virgin before marriage medical evidence would be the best piece of corroboration. Similarly, if there was any mal-formation of her sexual organs rendering normal sexual intercourse impossible, the medical evidence would be very valuable though nobody can compel the woman to submit herself for medical examination, nevertheless the court may, on the application of the other party call upon her to submit herself to such medical examination, and if she refuses the Court may draw an adverse inference. Apart from the medical examination it will always be possible to adduce some type of corroborative evidence to support the case of the Other spouse that the marriage was not consummated for those specific reasons. The mere statement by the wife that she was not well disposed towards her husband as he was not treating her as his wife and that consequently there was no consummation of the marriage would not be sufficient to show that she was impotent towards him.