009-NLR-NLR-V-50-FERNANDO-Appellant-and-PEIRIS-Respondent.pdf
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Fernando v. Peiria.
1948Present: Basnayake and Gratlaen JJ.FERNANDO, Appellant, and PEIRIS, Respondent.
S.C. 503—D. C. Kalutara, 26,282.
Nullity of marriage—Delay in bringing action—Three year rule—Discretionof Court—Proviso to section 602 of Civil Procedure Code.
An action for nullity of marriage on the ground of latent impotencyshould not be instituted until the lapse of at least three years frommarriage.
Per Gratiaen J. (obiter) : The proviso to section 602 of the CivilProcedure Code under which the Court can refuse a decree on groundsof unreasonable delay applies only to actions for divorce and not toactions for nullity of marriage. 1
1 (1926) A. C. 276.* (1884) 14 QB.D. 739.
(1925) 1 K.B. 474.
GRATIAEN J.—Fernando v. Peiris.
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A PPEAXi from a judgment of the District Judge, Kalutara.
N.K. Chohsy, K.C., with Kingsley Herat, for plaintiff, appellant.
N.E. Weerasooria, K.C., with A. L. Jayasuriya and M. L. S. Jayasehere,for defendant, respondent.
Cur. adv. vult.
September 27, 1948. Gratiaen J.-—
The plaintiff and the defendant were married on March 17, 1941.It was not a happy marriage. They lived together till June 2, 1946,on which date the defendant left the plaintiff after a quarrel. Eachparty claims in this action that the other has been guilty of maliciousdesertion. The learned District Judge has rightly decided that neitherparty has established malicious desertion. The only matter whichremains for consideration is whether the learned Judge was also rightin refusing the plaintiff a decree of nullity of marriage on the groundof the defendant’s alleged incurable impotency at the date of themarriage. That an action for nullity lies in Ceylon on this ground iswell established. (Gunatilelce v. M. Nona (1936) 38 N. L. R. 291.)
The effect of the evidence of the plaintiff, who is the wife, is thatthroughout the five years during which they lived together her husbandthe defendant made frequent attempts at sexual intercourse but thatthese attempts, through no fault of hers, invariably resulted only inincipient or imperfect coitus. It is not suggested that she is not aptaviro. On the contrary, the husband’s case is that he frequently hadsuccessful intercourse with her. It is common ground then between theparties that over a considerable period of time there were combinedattempts at normal sexual intercourse. The only issue is whether thehusband was unable to consummate the marriage in the sense thathe failed successfully to achieve vera copula. It is well settledlaw that in nullity cases impotence is established if it is proved thatone or other of the spouses is, to quote the judgment of Dr. Lushingtonin “ D. v. A. ” (163) English Reports 1039., “ incapable of a vera copula,or the natural sort of coitus.” In such an event, the judgment continues,“ if the spouse is not and cannot be made capable of more than an in-cipient, imperfect, and unnatural coitus, the marriage will be pronouncedvoid …. No person ought to be reduced to this state of quasi-unnatural connection ” This test has been consistently followed innullity cases in England and was recently quoted with approval by theHouse of Lords in Baxter v. Baxter (1948) A. C. 274. It is a testwhich must commend itself to any tribunal which is called upon todecide these unhappy cases, and I have not been referred to any contraryopinion expressed by the Roman Dutch writers.
It is not necessary to examine the conflicting evidence of the spousesin very great detail. Suffice it to say that the plaintiff stated on oaththat her husband “ was never able to introduce his male organ into myprivate parts. After he got on top of me he used to behave as though
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GrRATIAEN J.—Fernando v. Peiria.
tie was finishing off and got off. ” If this version is substantially true,it is obvious that-the marriage has not been consummated. The hus-band’s evidence on the contrary is that he frequently had completeintercourse with her, and he described in some detail how her hymen wasruptured on the wedding night. This evidence has been entirely dis-proved by Dr. Jayawardene, an impartial witness who examined theplaintiff in December, 1946, very nearly 6 years after the marriage wascelebrated, and found her hymen intact. In view of Dr. Jayawardene’sevidence, the defendant’s evidence is demonstrably untrue, while theplaintiff’s assertion that she is still virgo intacta is strongly corroborated.Iam aware that Dr. Jayawardene admitted in cross-examination that therehave been rare and exceptional cases where a woman’s hymen remainedintact after intercourse and penetration, but it was never suggestedto him that the plaintiff’s might possibly be one of these rare andexceptional cases. As Lord Birkenhead pointed out in similar cir-cumstances in “ C. v. C. ” {1921) P. 399 at 403 “ the medical evidence,which is possibly consistent with the wife’s evidence, and wholly incon-sistent with the husband’s, gives me the necessary guidance. Herstory may be true. His cannot be
On the evidence, I am satisfied that there was no vera copula betweenthe plaintiff and the defendant at any period of their married life, andthat the marriage has not been consummated. Has it been further estab-lished that this unhappy state of affairs is due to incurable impotence on thepart of the defendant, in which event alone would the plaintiff be entitledto a decree of nullity ? There is no imputation against the defendantof any incapacitating malformation. Nevertheless it has been provedthat in spite of many attempts at intercourse the wife was still virgointacta after over 5 years of cohabitation. In that state of things theCourts administering the English Law as well as the Roman-DutchLaw are agreed as to the inference to be drawn from the facts. A pre-sumption of latent impoteney is raised against the husband, and theonus lies on him to show by clear and satisfactory evidence that the non-consummation of the marriage by him was due to causes other than hisimpoteney. (“ 8. v. V ” (1916) C. P. D. 109). The defendant in thiscase has failed to discharge this onus, and in the circumstances theplaintiff is entitled to a decree of nullity of marriage. My decisiondoes not of course involve any finding of general impoteney againstthe defendant. All that need be established, and all that has beenestablished in this case, is permanent and incurable incapacity quoad,hanc. (“ C. v. G. ” (1921) P. 399), and not necessarily as far as all womenare concerned.
The learned District Judge has expressed the view that the plaintiffis in any event precluded from claiming a decree against the defendantbecause of unreasonable delay on her part in instituting these proceedingsfor nullity of marriage. I cannot agree. Where the allegation againstthe husband is, as in the present case, one of latent impoteney, the Courtswould normally refuse a decree until at least three years of cohabitationwithout consummation. This “ three year rule ” which is followed bythe English and South African Courts and also enjoys the authorityof Voet (24-2-15) is not a rule of positive law but merely establishes a
Abdeen v. Miller & Co., Ltd.
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presumption of impotence. (“ Hunt v. Hunt ” {1940) W. L. D. 55 and." G- v. M. ” L. R. 10 Appeal Cases 171). The plaintiff could not thereforein any event have instituted proceedings before 1944 with any reasonablehope of success.
This disposes of the question of “ delay ”, but I desire to add that inmy opinion the proviso to section 602 of the Civil Procedure Code,under which the Court can refuse a decree on grounds inter alia of“ unreasonable delay ”, applies only to decrees for divorce a vinculomatrimonii and not to actions of nullity of marriage which are providedfor by section 607 of the Code. In England delay, however long, inbringing a suit for nullity on the ground of impotence is not regardedas an absolute bar (“ L v. B ” {1895) P. 274), although it may provewant of sincerity, i.e., such conduct as ought to estop the petitionerfrom the remedy asked for. Want of sincerity is established, and disen-titles a party to relief, “ where the party has, with a knowledge of thefacts and of the law, approbated the marriage …. or has takenadvantages and derived benefits from the matrimonial relation whichit would be unfair and inequitable to permit him or her …. totreat as if no such relation had ever existed. ” {per Lord Selbourne in“ G. v. M. ” {1885) 10 Appeal Cases 171 at page 186.) The South AfricanCourts have also granted decrees of nullity after very long delays ininstituting proceedings when satisfied that want of sincerity has not beenestablished.
I would set aside the judgment of the learned District Judge, and entera decree declaring the marriage between the plaintiff and the defendantnull and void on grounds of the defendant’s permanent and incurableimpotence.
The plaintiff is entitled to her costs in both Courts.
JBasjtayake J.—I agree.
Appeal allowed.