AI Structured Summary
Not yet generated for this judgment
Judgment
Veeraswami, C.J.—The wife at her instance, on ground of impotency of her husband, has been granted a decree for divorce subject to
confirmation by this Court. They were married in May 1959 in the Church of South India at Kovaikulam in Nanguneri taluk. She averred that on
the night of the marriage and on several subsequent occasions, there was attempt at sexual intercourse, but because of the impotency of her
husband they could not have it. The husband filed a written statement denying impotency. It appears that he instituted a suit for restitution of
conjugal rights, which he did not pursue. He did not appear in court; nor in spite of requisition therefore would he submit himself to medical
examination. The wife gave evidence to the effect that her husband was unable to have sexual intercourse with her and that this fact she had also
mentioned to a co-teacher who gave evidence in court. The District Judge accepted the evidence of the wife and her co-teacher. He was also
inclined to draw an adverse inference from the unwillingness or refusal of the husband to submit himself to medical examination.
We have anxiously considered the question whether it is safe to confirm the decree in the absence of medical examination of the husband. Like
the District Judge we are however satisfied that in the circumstances of this case, there was no room for collusion. That this is so appears from the
fact that the husband himself filed a suit for restitution of conjugal rights and in the present proceedings in the written statement he denied his
impotency. What is more, he also resisted and refused to have medical examination. In Smt. Pratima Routh Vs. Hriday Ranjan Routh, the court
was inclined in similar circumstances to draw an adverse inference against the husband. The English Matrimonial Causes Rules 1957, by Rule 24,
specifically provides for medical examination. But so far as the provisions of our Act are concerned, no such specific provision has been made.
Even assuming without deciding that this court can in proper cases compel medical examination, in the case on hand we are satisfied that that
course is unnecessary. As Rayden on Divorce, 9th, Edn., page 117, points out, where the husband or wife refuses to submit for medical
inspection, the court may nevertheless grant a decree. The wife has given clear evidence and it does not appear to us that she did so as a result of
collusion. There is no reason to disbelieve her. Her story appears to be natural and earnest. If the husband was really not impotent, there is no
reason why he should have refused to subject himself to medical examination, particularly after his categorical denial in the written statement of
impotency. We are satisfied that the wife is entitled to the decree for divorce. The decree is confirmed.
Reference accepted.