AKBAR J.—Gunatileke v. Mille Nona.
1936Present: Akbar and Koch JJ.
GUNATILEKE v. MILLE NONA.
40—D. C. Colombo, 51,097
Marriage—Action for nullity—Incurable impotency—Roman-Dutch law.
Under the Roman-Dutch law a marriage may be dissolved on theground of incurable impotency in either party at the time of marriage.
^^PPEAL from a judgment of the District Judge of Colombo.
N. E. Weerasooria (with him E. F. N. Gratiaen), for plaintiff, appellant.
L. A. Rajapakse, for defendant, respondent.
Cur. adv. vult.
July 10, 1936. Akbar J.—
The plaintiff sued his wife in this action for a decree of nullity ofmarriage on the ground that at the time of the solemnization of themarriage the defendant was incapable of entering into the contract ofmarriage by reason of an incurable impotency which made her incom-petent to be a wife. Such an action could be brought under sections 596and 607 of the Civil Procedure Code if the ground alleged would renderthe marriage void by the law applicable to Ceylon. An action of thiskind would seem to be different to an action for divorce on the ground ofincurable impotency under section 20 of Ordinance No. 19 of 1907 andhence the scope of that section need not be discussed by me in this judg-ment. As a matter of fact the plaintiff alleged an alternative ground ofmalicious desertion in his plaint, but this plea was abandoned by theplaintiff at the trial.m
There can be no doubt that the Roman-Dutch law which applies to theparties in this case did recognize that a marriage could be dissolved if theparty accused was incapable of procreation at the time of the marriage.This applied to the woman as well as to the man, and the incapacity toperform the sexual act or to procreate must exist at the time of themarriage and must be incurable. (See Van Zyl’s Judicial Practice ofSouth Africa, pp. 523 and 524.)
Van Zyl states that the English law upon the subject was copied fromthe Roman law and therefore English cases would appear to apply. In
v. L.1 a decree was entered for nullity of marriage on medical evidencethat the woman was suffering from vaginismus or from a spasmodicaffection of the parts which were extremely painful to touch, and thatconnexion was then impossible. A cure could however be effected if thelady would undergo an operation but this she refused to do. In G. v. G.2the House of Lords held that invalidity of marriage on the ground of theincapacity of the wife for its consummation was not confined to cases ofstructural incapacity but included a case where the woman was the victimof such an invincible repugnance to the physical act as to paralyse her willpower. The ground alleged in this case is the same as in the two casesabove quoted, namely, vaginismus. It is obvious that a case of this kindwould depend to a great extent on corroborative evidence from medical
1 (1882) L. R. 7 Probate 16.* (1924) A. C. P. 349, also 40 Times Law Reports 322.
AKBAR J.—Gunatileke v. Mi lie Nona.
men and there was such evidence in this case. In my opinion the learnedDistrict Judge came to a wrong conclusion on a question of fact when hedismissed plaintiff’s case because he did not consider the true effect of theevidence of the two doctors nor did he give due weight to the circum-stantial evidence in this case, which directly contradicts the defendant’sevidence. As the dates are very material to this case, let me put them inorder here, as they appear in the evidence. The marriage took place onMarch 14, 1932. Dr. W. F. H. Perera, a doctor who had served Govern-ment for 25 years and had retired, examined the plaintiff and thedefendant in October, 1932, on the complaint of the husband that he wasnot able to have any sexual connexion with his wife. His evidence isperfectly clear that he examined the wife with her consent and that shewas a virgin at that time, her hymen being intact. Although her genitalorgans were quite normal, she herself confessed to the doctor that she wasnot capable of allowing her husband to satisfy his sexual appetite. Hisfurther evidence was as follows : —
“ But she said that she was not capable of allowing her husband tosatisfy his sexual appetite. By that I mean to have natural intercourse.She. was not able to have any sexual intercourse with her husband. Shesaid that they both made efforts. The husband made the efforts. Shehad no desire whatever. She did not want any intercourse whatever.She said that it was because of a repulsion. I treated her for the dischargeand at the same time for vaginismus. I considered it a case of vaginismuswhich is frigidity of the system. There was no malformation.
Q.—Is it correct to say that where a woman suffering from vaginismusby reason of some repulsion is unable to have intercourse with one manit does not necessarily mean that she cannot have intercourse with otherpersons ?«,
A.—Vaginismus is absolutely a nervous symptom. As a diseasevaginismus can be cured. Vaginismus can be overcome if there is norepugnance to one individual. If that person takes a dislike to oneindividual there will be vaginismus. As long as there is that repulsionagainst that man she is physically unable to have intercourse ; even ifshe wished to have intercourse it would be a physical impossibility. Shedid not make any allegations against her husband to say that he wasincapable of any such thing. I saw her three times within about afortnight’s time. I do not know whether the parties live behind myhouse. I gave a mixture for the discharge. I gave the husband someordinary advice, if she finds any difficulty, such as lubricants, and tryto excite her sexual instinct. He said it was a failure, in spite of myadvice. I advised them to take a little discharge and examined in theirpresence to see if she had any venereal disease and she had not,and I advised them to consult a specialist. I suggested Dr. Luciande Zilwa. I am quite sure that at the time I saw her she was a virgin ”.
In the same year 1932, presumably on Dr. Percra’s advice, the plaintiffand the defendant with their respective mothers saw Dr. de Zilwa. It isstrange that Dr. de Zilwa although he examined the woman “ as it wasalleged that there was some impediment to intercourse ” could notremember whether his examination revealed a rupture of the hymen.
AKBAR J.—Gunatileke v. Mille Nona.
On November 17, 1932, presumably after the visit to Dr. de Zilwa, the 'defendant presented a petition and an affidavit together with an affidavitfrom her husband, the plaintiff, praying for a nullity of marriage on theground of sexual incapacity of the wife to perform the marriage owing toa malformation in her genital organs. Nothing further took place onthis petition and the next step was a plaint filed by the plaintiff in personon November 25, 1932, alleging the same grounds and asking for a nullityof marriage. On this plaint being filed the District Judge ordered theproduction of a doctor’s certificate to support the plaint. In February,1933, the wife left her husband’s house, and on July 20, 1933, plaintifffiled the plaint in this case through a Proctor asking for a nullity ofmarriage on the ground of the wife’s incurable impotency at the time ofthe marriage. The learned District Judge again ordered the productionof a doctor’s certificate. On July 26, 1933, the defendant filed a mainte-nance case against her husband and on September 22, 1933, Dr. Pereragave evidence in that case testifying to his examination of the womanthree times in October, 1932, and his treatment of her for vaginismus.At this stage a strange thing happened, the defendant and her motheragain appealed before Dr. de Zilwa. Dr. de Zilwa stated that the patientand her mother told him that there was some impediment. He could notagain recollect if the hymen was ruptured, although he said that he madea minute examination. “ She had no vaginismus from my point of view.”He further stated that he gave them a certificate that there was nophysical impediment. Whether he was referring to the certificate datedOctober 27, 1933, signed by him and produced by the plaintiff to supporthis plaint in accordance with the trial Judge’s order I cannot say, but inthis certificate he stated as follows: —
“ In order to justify dissolution of marriage on the ground of impotencythe impediment to intercourse should be irremediable. It must haveexisted before the marriage, and have been entirely unknown tothe party suing for the divorce. If the woman alleged to be impotentrefuses to undergo treatment which might cure her the husband has ajust claim to have the marriage dissolved.
“ Impotence may be due to malformation or to ‘ frigidity of constitution ’.
In case of vaginismus treatment may sometimes cure the patient, but ifthe condition is due to feeling of repulsion against intercourse with aparticular individual, no success would be obtained if the psychicalantipathy were not overcome.
In the present case, as in any other, it is impossible to say withcertainty that treatment would cure the vaginismus. If the idea ofintercourse with this particular man excites a feeling of disgust andrepulsion, physical treatment will be unsuccessful. There might be novaginismus, even without treatment, if intercourse were attempted by aman who excited her feelings and senses to attraction ”.
On September 22, 1933, the Police Magistrate fixed Rs. 15 per monthas the maintenance payable by plaintiff in the maintenance case. OnMarch 19, 1934, the defendant filed her answer, which merely traversedthe plaintiff’s averment that she was incapable of entering into thecontract of marriage by reason of an incurable impotency. The case wasfixed for trial and Summons was issued on the two doctors. Dr. de Zilwa
AKBAK J.—Gunatileke v. Mille Nona.
was examined on November 27, 1934, and he testified to another strangeoccurrence. On the Saturday before he gave evidence, that is to say,November 24, 1934, the mother and the daughter again appeared beforeDr. de Zilwa. He had already given his certificate on October 27, 1933,and had probably been summoned to give evidence on November 27,1934, for the plaintiff, but instead of refusing to have anything further todo with either of the party in a matter which was sub judice he examinedthe defendant and found a laceration of the hymen which need notindicate sexual intercourse. He also listened to a statement from herthat she and her husband had had sexual intercourse for several monthsafter the marriage and that she was now living with her mother as shecould not get on with her mother-in-law. The defendant and her motherhave given evidence after this significant occurrence, that there wasnothing abnormal about the defendant and that the husband and wifehad had sexual intercourse freely and that the disagreement was due tothe impossible conduct of the plaintiff’s mother. This volte-face isdirectly opposed to Dr. Perera’s evidence and the three visits to Dr. deZilwa ; which must have cost these parties a considerable sum from theirpoint of view owing to their admitted poverty. Nor does it explain whythe defendant did not state this fact if it was a fact in her answer.Dr. Perera’s evidence becomes of the utmost importance and yet theDistrict Judge says nowhere that he disbelieves him.
He quite rightly said that Dr. de Zilwa was better qualified to expressan opinion on a matter of this kind, but Dr. de Zilwa’s evidence nowherecontradicts Dr. Perera’s on the medical point. His certificate is clearenough and his own evidence when read as a whole is to the same effect.The following are extracts: —
“There is a spasm of the muscle by which intercourse is prevented.
Q.—As a result of some repulsion against a particular man ?
A.—It may be a particular male or it may be universal. It is possiblefor a person to suffer from vaginismus in respect of a particular male butnot so with regard to others. It is really a physical condition producinga certain result when approached by the male. The patient would resisteven the introduction of the finger. In the case of a person who only hadthis repulsion with regard to one particular male that position need notnecessarily be as serious with others.
Q.—From all what you could have gathered from the examination lastSaturday are you in a position to say whether she would be having anyrepulsion to any particular person?
A.—I cannot say. It is a physical condition. She may have had arepulsion to a particular individual which prevented intercourse. Thereis no physical condition that I could find out by examination.
Q.—You will not say now that she is suffering from any physicalcondition by which she could prevent intercourse with her husband ?
A.—I cannot say that. I am unable to say as a result of any exami-nation whether the defendant is suffering from vaginismus in respect ofher husband.
The District Judge was wrong in holding that on the first issue onthe medical evidence the defendant was at no time incompetent toconsummate her marriage with the plaintiff.
AKBAR S.P.J.—Silva v. Leiris Appu.
The District Judge was careful to say that he believed the defendanton one point, namely, that defendant left the house on February 27, 1933,because she was harassed by her mother-in-law. But this does not affectissues 1, 2, and 3 in this case.
I set aside the decree and allow the appeal with costs in this Court andthe Court below. The case will go back for trial on the 7th issue. Costsof the further trial to be in the discretion of the trial Judge.
GUNATILEKE v. MILLE NONA