When we talk about marriage, a variety of notions come to mind, and the most
significant one is regarding the basis of marriage or the reason why individuals
get married in the first place. More than one option comes up, but it's the most
prevalent one that involves having children.
So what if a couple can't get married because one or both of them is infertile.
We allow the marriage to be annulled in this circumstance. Let's begin by
defining impotence and determining when someone is considered impotent.
When a person can't have sex because of medical or mental reasons, they are
referred to as infertile. Whether or if it can be cured is a matter of debate.
Because of this common misunderstanding, many people believe that only men can
be deemed impotent. In reality, however, anyone who is unable to reproduce
sexually owing to any mental or physical condition is termed impotent.
One last thing to keep in mind is that consummation is not considered when an
encounter is only partial. Women who receive an artificial vagina and the
husband is unable to consummate the marriage will be regarded impotent and the
marriage will be deemed null and void in some jurisdictions, for example. In
several of these situations, the court has issued a nullity decree.
Impotency or incapability must last indefinitely and consummation of marriage
must be impossible in order to get the decision of nullity. As a result, an
annulment may not be warranted if a minor surgical operation will resolve the
issue. When one of the parties refuses to go through with a potentially risky
surgical operation, it's enough to deem the marriage invalid.
Impotence and sterility are not the same thing, and it's crucial to remember
that. It is possible for a person to be able to engage in sexual activity and
still not be able to conceive. A declaration of annulment is not issued in these
circumstances since the parties are regarded infertile and not impotent.
Meaning of Consummation
The most commonly accepted definition of consummation is the sexual intercourse
between two people prior to or following the wedding. However, in some holy
writings, it is explicitly stated that there should be no hindrance or
contraception utilised during penile-vaginal contact.
A marriage is stated to be all about creating a family of parents and legitimate
offspring, as well as satisfying the sexual desires of one or both of the
partners. A marriage is considered a failure if it cannot be completed through
sexual relations because of one or both partners' inability to engage in them
owing to medical or mental reasons.
Even if this pair is unable to accomplish the very essence of the marriage and
without this the existence of marriage doesn't matter, many books and laws today
allow this marriage to be rejected. When it comes to annulment, we must keep in
mind that the marriage may only be annulled if the parties choose to do so; if
the couple decides to stay together despite the fact that the marriage has not
been consummated, they are still considered to be legally married. In common law
marriages, an annulment is also possible. This is also the origin of many of the
world's most famous bedtime rituals.
There is a lot of importance placed on a girl's virginity in many of our
religious writings. As a result, the girl's virtue is given a lot of attention
and seen as crucial to the marriage. Texts clearly prohibit premarital sex for
both male and female participants. In most cultures, if a woman engages in a
sexual act prior to marriage, she is thought to be impure and so unsuitable for
If there is no consummation, the marriage can be cancelled under family law. A
large number of people object to this rule because it discriminates against
women and because marital rape has not yet been criminalised in many nations,
rendering the victim powerless just because they are married.
Types Of Impotence
Everyone knows that impotence is a condition where an individual is physically
or mentally unable of having sexual intercourse. Now, let's have a look at the
different varieties of impotence.
Both primary impotence and secondary impotence are possible.
Primary impotence refers to a person's inability to ejaculate in the early years
of his life, beginning at the time he reaches puberty. The term "secondary
impotence" refers to a person who was once potent but has since lost his ability
to perform sexual acts.
It's critical to recognise that impotence isn't limited to males. Anyone who is
unable to have sex due of a medical or mental issue should be considered
impotent. Men and women can both be impotent, despite the widespread belief that
only men can be impotent when they can't get or sustain an erection long enough
for intercourse. Because of her prosthetic vagina or any other reason, a woman
who is unable to consummate her marriage is referred to as infertile.
Impotence-Related FlawsImpotence in men is limited to those conditions that can't be corrected. There
are a number of reasons for this, such as a large artery blockage that prevents
blood from flowing to the penis, or a spinal cord injury or damage. Impotence is
defined as a condition in which a minor surgical procedure fails to improve the
patient's quality of life.
It doesn't matter whether it's due to medical or
psychological reasons, an inability to get a good erection is regarded to be
impotence. Only men are impotent; however, women can be considered impotent due
to the above-mentioned causes or physical problems like an artificial vagina or
loss of libido.
Impotence Is Not Believed To Be Caused By Flaws.A person can be labelled impotent in a variety of scenarios, but let's take a
look at what faults are ineligible. Even if the difficulty with sexual
intercourse occurred only a few times, it cannot be deemed impotence. This must
be remembered at all times!
Impotence is a misconception that many people have, yet this is not the case.
Having sex and being pregnant are two whole different things. Because the
marriage was consummated correctly, even though she is infertile, she cannot be
considered impotent because she is still capable of having sex.
Burden of proof and Evidence
The petitioner bears the burden of proving that the respondent is impotent in
any claim for annulment of marriage filed because of the impotence of one of the
spouses. It's thought to be crucial that the information is only shared between
the two people involved. Medical tests are often used as evidence in cases of
infertility. Moreover, proof of impotency is critical because merely accusing
someone of being impotent is not enough because there will be no proof but only
one person's word against another.
An examination by a medical professional is regarded the most reliable evidence
of impotence. To find out if there is an organ abnormality or the person has
difficulty getting an erection at all times, there is a test.
In the event that a person refuses to take a medical examination, the marriage
is declared null and void. A person who accepts accusations of impotence and
then rejects the text is awarded an annulment as well.
Court orders for impotency tests aren't a violation of privacy under Article 21
of the US Constitution, thus we should stress this issue. However, individuals
have the option to take the test or not, but if they refuse to do so without
providing a legitimate justification, the court will award them an annulment.
The court can also grant a specific medical examiner to the respondent if
requested by the respondent. Divorce medical examinations are not required in
cases when the parties are appealing their divorce.
Can Impotency be considered as cruelty?
A lot of debate took place about whether or not one of the spouses' impotence
was cruel. As a result, we can now claim that it is truly cruel because one of
the primary foundations of marriage is to satisfy the sexual demands of our
partner by consummating the union. A lack of ability to do so is mental cruelty
on the part of the other partner, as they are suffering as a result of the
For example, if the male is unable to consummate the marriage due to impotence,
this is mental cruelty to the wife and she has the right to have the marriage
annulled. In cases of impotence, courts are now allowing annulment and also
deeming it harsh.
"In cases like Susarla Subhramanya Sastry vs S. Padmakshi
, the courts granted
annulment on the facts that the husband is proved sexually incompetent and this
also amounts to cruelty. This was just a drop in the ocean, there are many other
cases in which the courts have granted annulment under Section 12(1)(a)
amounting to sexual impotency and Section 13(1)(a) as mental cruelty due to the
impotency of one spouse, of the Hindu Marriage Act,1955".
The statutes referred are Hindu Marriage Act (HMA) 1955, Special Marriage Act (SMA),
1954, Parsi Marriage and Divorce Act (PMDA), 1936, Indian Divorce Act (IDA),
1869, Dissolution of Muslim Marriage Act (DMMA), 1939. This work is a detailed
study on impotency as a ground for relief of a marriage.
Case Laws on Impotence in India
So far, we have seen what is theory and reasoning given for annulling the
marriage void in cases of impotence. And discovered that courts grant relief on
these matters under Section 12(1)(a) of the Hindi Marriage Act. Now let's
discuss some cases in which the courts granted this relief to the petitioners:
Conclusion and Suggestions
Samar Roy Chowdhary v. Sm. Snigdha Roy Chowdhary  on 16 September, 1976 The court note that in the present Section 12(1)(a) of the Hindu Marriage
Act, 1955 curability is not mentioned at all. Thus, it is very clear that
the question of curability of impotency is not a relevant consideration for
the purpose of the decision under Section 12(1)(a) of the Hindu Marriage
Act, 1955 as amended by the Marriage Laws (Amendment) Act, 1976. It appears
that if it is found that there was no consummation of marriage due to the
impotency of the respondent the petitioner is entitled to a decree of
Yuvraj Digvijay Singh v. Yuvrani Pratap Kumari on 2 May, 1969 The court held that on the basis of evidence it cannot be believed that the
respondent a.k.a. the wife is not impotent. The court also declined the fact
that the petitioner posed that the wife also repulsed him from any sexual
act. It is not really important to deal with the findings of the District
Court and High Court and eventually rejecting the appeal of petitioner that
his wife was impotent at the time of marriage and continued to be so.
Samar Som v. Sadhana Som on 13 February, 1975The Division Bench of Calcutta High Court held that if the uterus of the woman
was removed by operation before the marriage she cannot be considered as
impotent. Citing the reference of Beena Cherian v. K.S. Varghese, that the
presence or absence of uterus in a woman is immaterial to the fact that
whether a woman is impotent or not. Because it was stated very clearly that
the woman is fertile or not is completely different from the fact that she
is potent or not.
Impotence refers to a person's inability to engage in sex because of a physical
or mental condition, such as infertility or sterility. Moreover, we've seen that
it's not just men who are impotent; women can be, too. A person can be declared
impotent if he or she interferes with a partner's sexual performance in any way.
We've also talked about the differences between impotency and sterility, and how
one can be infertile while still being fully potent. Section 12(1)(a) of the
Hindu Marriages Act, 1955 clearly states that the other spouse may seek relief
if one of the spouses is unable to consummate the marriage. Impotence can be
argued as mental cruelty towards the other spouse, and the court has granted
this request in some situations.
It was stated unequivocally that the other
spouse's inability to conceive also constitutes mental cruelty. That's why the
researcher thinks it was reasonable to give nullity in cases of impotence,
because if the very aim of marriage isn't achieved, then what's the use of
having one? It's also acceptable to say that living in a marriage that can't be
consummated is stressful for both the wronged and the wronged's spouse.
- On 28 April, 2005; 2005 (4) ALD 821, 2005 (4) ALT 677, II (2005) DMC 707
- AIR 1977 Cal 213; 1985 AIR 582, 1985 SCR (2) 643; AIR 1957 Mad 243
- 1970 AIR 137, 1970 SCR (1) 559; 1958 AIR 441, 1958 SCR 1410
- AIR 1975 Cal 413
- AIR 2000 Ker 181, I (2000) DMC 704