Impotency in general language refers to the state of mind or body which makes sexual act impossible. Till recently it was assumed that the only man can be impotent and generally it is assumed that inability to attain or sustain an erection for the sexual act makes a man impotent. However, for matrimonial matters, and rightly so, any party who because of his/ her bodily or mental state is unable to consummate marriage is said to be impotent.
Supreme Court defined impotency 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 defined it as “lack of ability to perform full and complete sexual intercourse”
Impotency is a ground for matrimonial relief under all personal laws. Under Hindu Marriage Act, 1955 impotency would render marriage voidable under S. 12(1)(a). Under the Special Marriage Act, 1954 it makes marriage void. Similar provisions are there under the Indian Divorce Act & Parsi and Muslim Marriage Acts. In all marriage acts, impotency can be a ground of annulment.
It has to be understood that imperfect and partial intercourse is not consummation. And it does not bear affect on males only. 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 a relief under matrimonial matters under this regard, the malformation of organ or incapability must be incurable and consummation therefore ‘a practical impossibility’. Phimosis, i.e. Tight Foreskin in males which can be remedied by a simple procedure thus won’t make a ground for relief under provisions of impotency. 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 operation, it still would be a ground for matrimonial relief.
We also have to understand that sterility is not same as impotency. A male or female may be perfectly maybe perfectly normal and potent but lack the ability to procreate or conceive which a different medical condition and hence not impotent.
The ground of Relative Impotency: It is accepted by both Medical and Legal jurisprudence that there can be instances where a perfectly normal human can be virtually impotent qua the other, whereas s/he might be perfectly potent vis-a-vis another person. The petitioner would be entitled to matrimonial relief on the ground of relative impotency of the respondent.
Thus Impotency may be of temporary nature or of permanent nature. It may be towards a particular person or it can be universal.
It is also accepted by the court that mere consummation of marriage by force won’t make the other person potent vis-à-vis the petitioner. In a particular case, when the husband alleged that whenever he attempted intercourse with his wife the act had produced hysteria and the wife submitted to sexual intercourse only on the wedding night when the husband used force and on all other occasion resisted his attempts. In such a case wife could be said to be impotent qua the husband.
In similar vain, the courts have held that mere birth of child, i.e. where conception was attributed to fecundation ab extra (without penal penetration), is no ground to deny impotency. On the other side, courts have held that absence of uterus, having nil sperm count, mere dissatisfaction of spouse is not impotency.
Evidence and Proof of Potency: In any matrimonial matter or suit filed for relief on the grounds of impotency of the respondent, such impotence must be proved and there must be facts from which impotency that are physical unfitness for consummation, maybe inferred. Impotence would be within the exclusive knowledge of the spouses. It cannot, therefore always be proved by the evidence of others except medical evidence. But mere allegation is not sufficient, the conduct of the parties subsequent to the marriage should also inspire confidence of the court in this regard.
There are instances where medical evidence can be taken as 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 are attributed. The inference should be drawn against the person who does not subject himself/ herself to medical examination.
In certain cases, where the respondent confesses non-consummation of the marriage and refuses to undergo a medical inspection, the court will grant the petitioner a decree of nullity.
Medical Examination in allegations of Impotency: As stated above, the court can ask a person charged with impotency to undergo medical test. Asking a person to go through medical test for deciding a matrimonial suit is not deprivation of personal liberty under Article 21 of the Constitution. However, such person cannot be compelled to undergo medical examination, though it is permissible to grant a decree for nullity where there is positive refusal by the respondent to submit to the medical examination. He court could appoint a medical board to examine potency of the parties. However, where divorce is sought by a party on the ground of sexual dissatisfaction as the course for mental and physical cruelty, the party cannot seek medical examination of the respondent to ascertain his/ her potency. As stated above where the party refuses to attend medical inspection, the court may draw an unfavourable inference.
A lot of men who have been charged with impotency fail under medical examination due to various reasons, so I shall soon write an article on cheatsheet of potency tests.
To understand the concept of Impotency in matrimonial concept better, it is advised that one goes through these judgments on Annulment.
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