Consummation of Marriage, Not as easy as you think: Analyzing Non-consummation as a ground to annul Marriage

In today’s society you will find many couples desperate to annul (putting an end) their marriage on the basis that it had not been consummated. Britney Spears hit the headlines a few years back for annulling her Vegas wedding on the same grounds.

Consummation has long been a crucial part of marriage. In many countries across the globe bedding rituals used to be an important part of the wedding ceremony. The families of newly-married couples would take steps to ensure that the marriage had been consummated. Part of this process was to prove that the bride had been a virgin before the wedding. The bedsheets would be taken away the day after the wedding night, to be examined for traces of blood – the ultimate sign of virginity and its loss. This tradition dates back thousands of years, and was particularly important to royal weddings.

What is Consummation

Technically, consummation of a marriage requires ‘ordinary and complete’, rather than ‘partial and imperfect’ sexual intercourse. ‘Incapacity’ must be physical or psychological and must be permanent and incurable. The fact that the parties may have had successful intercourse before the marriage is irrelevant if the incapacity existed at the time of the marriage.

So by consummation we mean capacity to do sexual intercourse. It has nothing to do with ability to procreate. So Marriage is very well consummated even though the person is Sterile or infertile or the wife has no-uterus.

Grounds of Non-Consummation

There are two possible situations for non-consummation of marriage:

  1. Impotency (It is a ground for making a marriage Voidable under Section 12 of Hindu Marriage Act (HMA)[i], meaning that on this ground you can get your marriage declared void by court. And it has been judicially recognised as part of Cruelty under Section 13 of HMA[ii])
  2. Persistent refusal to have marital intercourse (Amounts to Cruelty)

What amounts to Impotency

Impotency must exist at the time of consummation of marriage. By impotency we mean practical impossibility of consummation of marriage i.e., inability to perform or permit performance of the complete act of sexual intercourse. Thus partial or imperfect, difficult and painful intercourse amounts to impotency.[iii] However sexual intercourse, which is incomplete occasionally, does not amount to impotency.[iv]

Impotency is usually either Physical or mental. The latter includes emotional, psychological or moral repugnance or aversion to the sexual act. If impotency can be cured by medical treatment or surgery it would not amount to impotency unless the person refuses to undergo treatment.[v] As I have already stated that there is difference between impotency and ability to procreate children. Law takes into account only impotency.

Nature and Scope of Cruelty

While explaining the scope and nature of cruelty, it was observed in Savitri Pandey vs Prem Chandra Pandey[vi], as:

Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(ia) of the Hindu Marriage Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.

In Rita vs Balkishan Nijhawan[vii], Delhi High Court said that a liberal interpretation be given to the term ‘impotence’ under Section 12(1) of Hindu Marriage Act, 1955 and eventually held that a sexless marriage is physical and mental cruelty and thus, is a valid ground for seeking divorce. Court held that, if either of the parties to a marriage, being of good health and physical capacity, refuses to have sexual intercourse, the same would amount to cruelty entitling the other party to a decree. It does not matter that denial is due to sexual weakness or because of any wilful refusal by spouse. Either way, it will result in frustration and misery to the other spouse. Here, it is not necessary to prove the culpability of the erring spouse to hold him guilty of cruelty. What has to be found in each case is whether the act is such which the complaining partner should not be asked to endure. The court further went to a great extent and even ruled that:

The marriage has really been reduced to a shadow and a shell, and the wife has been suffering misery and frustration. It is an unthinkable proposition that the wife is not an active participant in the sexual life and thus the husband’s weakness which denies sexual pleasure to the wife is of no consequence and does not amount to cruelty.

In (P. (D) v. P. (J)[viii], it was held that ‘the fact that the wife could not control her psychological inhibition did not in law negative the fact that her conduct in consistently depriving the husband of normal sexual intercourse and the opportunity of becoming a father was unendurable and, as it seriously affected his health, constituted cruelty,’ In White v. White[ix], wife was entitled to decree of dissolution on ground of practice of coitus interrupts by husband to be cruelty under law and undermining her health.

Persistent refusal to indulge in sexual intercourse

A single act or isolated acts of refusal to indulge intercourse doesn’t amount to cruelty. If the person on most of the occasions is fulfilling his or her marital obligations i.e., Sexual intercourse then it is perfectly okay.

In Sheldon v. Sheldon[x], a decree was granted to the wife on the finding that the husband’s persistent refusal of sexual intercourse over a long period without excuse, caused a grave injury to the wife’s health and amounted to cruelty on his part. Lord Denning observing that the categories of cruelty are not closed. The persistent refusal of sexual intercourse is not excluded.

Intention to commit matrimonial offence not an essential element

The legal conception of cruelty is generally described as conduct of such a character as to have caused danger of life. limb or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger.

Intention is not essential for cruelty as a matrimonial offence. If there is evidence to prove that the husband was never been able to have proper sexual intercourse and always left the wife unsatisfied and miserable though there is no suggestion that he deliberately or wantonly acted in such a manner as not to give sexual satisfaction to his wife still he has committed cruelty.

Similarly in Sri Kant vs Anuradha[xi], Karnataka High Court held that the legal concept of cruelty in matrimonial offences is not confined to positive acts of causing physical injury by one spouse to another. Without there being a physical injury, there can be cruelty in a greater degree. ‘Cruel’ means, cruel in the ordinary sense of the term. It has no esoteric or artificial meaning. There may be cruelty without an intention to injure. Failure to comply with one of the essential obligations of the marital life by the husband would amount to subjecting the wife to cruelty and it is one of the essential and principal obligations on the part of the husband to satisfy the sexual urge of his wife which is a natural instinct. Married life without a sexual life will be a curse to the wife thus failure to or inability to or refusal to effectuate the sexual intercourse by the husband without any reason on the part of the wife, would amount to subjecting the wife to cruelty.

Although the term cruelty is not defined by the Act and to define the said expression is to limit its application which is not advisable inasmuch as it is not at all possible to comprehend the human conduct and behaviour for all time to come but it may safely be stated that any conduct of the husband which causes disgrace to the wife or subjects her to a course of annoyance and indignity amounts to legal cruelty.

Pregnancy not sufficient enough to rebut the charges of Non-Consummation

If wife is able to establish that the husband is sexually weak throughout so much that he had no proper erection and would suffer emission quickly either before penetration or so soon after penetration that the petitioner would enjoy no orgasm. In that case even birth of the child is not conclusive evidence that the marriage has been consummated. That it is possible that fecundation may take place extra by semen encountering the vagina of the woman and causing a possible pregnancy without penetration or ordinary intercourse.[xii] In Clerk v. Chalke[xiii] court ruled that the birth of a child may be due to fecundating ab extra and without consummation of the marriage. It further said:

“Fecundating Ab extra is admittedly by the medical testimony, as vouched by the learned Judge in his summing-up a rare but no impossible occurrence but it accomplishment will depend not only or exclusively on the proximity of the organs but on certain other potential qualities of the particular man“.

It was further clarified in Russell v. Russell[xiv] that birth of the child is not conclusive evidence of marriage being consummated.

Whether delay condones cruelty in such cases

The cruelty that may be a matter of being condoned within Section 23 of HMA[xv] are those acts of physical cruelty which, after their occurrence, may be condoned by the parties living together which leads to inference of that particular act of cruelty being condoned. Thus, for a subsequent application for that very act, the court will have to see whether the cruelty which has taken place earlier and which is now made the basis of the petition has not been condoned by the subsequent act of the parties.

However in the present situation that we are talking about and the cruelty which is the basis of the discussion is sexual weakness of the either of the spouses and his/her inability to have normal sexual intercourse. This kind of mental cruelty is a recurring and ever present one, and thus, no question of delay or condonation on account thereof would arise.

To defeat a party and operate as a ground of relief under Section 23 of the Act, the delay alleged must be the kind to be described as either unnecessary or improper or as culpable delay. In Clifford v. Clifford[xvi], the husband was allowed a decree of nullity on the ground of wife’s incapacity even 27 years after marriage.

Conclusion

Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a woman’s mind and body. The result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifies woman’s brain, develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointments in sexual intercourse.

So to force the other spouse to live a frustrated and unsatisfied sexual life will inevitably damage his or her health both mentally and physically and it is nothing but cruelty in eyes of law. Therefore on this ground of mental cruelty the affected party can ask for judicial separation as well as divorce.

[i] https://indiankanoon.org/doc/368948/

[ii] https://indiankanoon.org/doc/1284729/

[iii] Snowman v. Snowman, 1934 Pd 186.

[iv] Shakuntla vs Om Prakash, AIR 1981 Del 53.

[v] Rajendra vs Shanti, AIR 1978 P&H 181.

[vi] AIR 2002 SC 591.

[vii] AIR 1973 Del 200.

[viii] 1965 2 All Er 456.

[ix] 1948 2 All Er 151.

[x] 1966 2 All Er 257.

[xi] AIR 1984 Kar 8.

[xii] Snowman vs Snowman, 1934 PD 186.

[xiii] 1943 2 All Er 540.

[xiv] (1924) Ac 687.

[xv] https://indiankanoon.org/doc/542052/

[xvi] 1948 Pd 187.


ABOUT THE AUTHOR

Harshit Sharma

Harshit

Harshit Sharma has done his B.A., LL.B (Criminal Law Hons.), from National Law University, Jodhpur (2019) and he completed his Masters in Criminal Law in July 2020. He secured AIR-15 in CLAT PG (2019) and he has Qualified NTA NET (December 2019). Currently, he is preparing for his Delhi Judicial Services 2019 Interview and simultaneously working for his PhD enrolment. He can be reached at harshitsharmanluj@gmail.com.

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