241 / 274
GAZETTE
JUNE/JULY 1976
to consummate the marriage.
A
second ground was the husband's
incapacity to consummate the mar-
riage by reason or some mental, or
physical condition.
The second ground was relied on,
almost exclusively, at the hearing
of the appeal.
Short-lived union
Mr. Justice Henchy, in his judg-
ment, said that the short-lived union
between the parties, in this case,
was but a marriage, in name, only.
It did not seem to have been sup-
ported by any emotional, or other
affinity, on the part of the husband.
The marriage took place in July,
1969. They had met two years ear-
lier at a dance. The friendship that
sprang up between them ripened
quickly into intimacy. For a year-
and-a-half they went out together
every night of the week. Then, for
six months before the marriage,
they saw each other every night of
the week, except Tuesday and
Thursday, omitting those nights, be-
cause they felt they were seeing
loo much of each other. They also
went away on camping week-ends.
There was nothing in the evidence
to suggest any lack, on his part,
before the marriage, of emotional,
or sexual commitment to her.
Cold and unaffectionate husband
The marriage proved a sad anti-
climax for the wife. As a husband,
he turned out to be cold, unaffec-
tionate, alienated. The marriage was
never consummated.
Mr. Justice Henchy said the
couple had an eight-day honey-
moon, but although they slept in
the same bed, the man showed a
total sexual disinterest in her. It was
the same story when they returned
from the honeymoon to the flat,
where they slept in the same bed.
For six months they lived to-
gether in disharmony, and then he
left her, for good. His sexual disin-
terest in. her was, apparently, no
perverse affection.
Shortly after the marriage, he
told her that he had no affection for
her, that in fact, she revolted him;
that he had no interest in founding
a family; that the marriage was a
mistake; that the only reason he
went through with it was because
the arrangements were too far ad-
vanced, and he was too much of a
coward to break off the engage-
ment.
What the wife discovered after
the marriage was that, some weeks
before the marriage, he had met
the woman with whom he had since
gone to live .The wife learned from
him that, both before and after the
marriage, he had sexual intercourse
with the other woman. According
to the wife, he claimed to have
spent the night before the marriage
with the other woman, and to have
had sexual intercourse with her that
night.
Mr. Justice Henchy said it ap-
peared to be the fact that, shortly
after returning from the honey-
moon, the man started to go out at
night with other women. He admitt-
ed to the wife that he was in love
with the other woman. Before he
turned his back on this pseudo-
marriage in January, 1970, by leav-
ing to go off to live with the other
woman, he disclosed that the other
woman had been expecting a child
by him, and had just then "lost it
in England".
In the High Court, the case for
the wife was put on the basis that
she had been induced, by fraud, to
marry the husband. The trial judge
rejected that submission; so would
he.
In the Supreme Court, the wife's
ease had been argued, primarily, on
the basis that the marriage should
be annulled because of the hus-
band's sexual impotence vis-i-vis
her.
The husband had not taken any
part in the proceedings, so they had
only the wife's version of things.
The trial judge had not questioned
her veracity.
Mr. Justice Henchy said he
found the evidence cohesive of the
conclusion that, while the husband's
failure to consummate the marriage
was not due to any general sexual
incompetence, it was the result of
an obliteration of his sexual capac-
ity with her, from the time of the
marriage or, possibly, from the time
shortly before the marriage, when
he became intimate with the other
woman. This incapacity would seem
to have been a corollary of his at-
tachment to the other woman.
No medical evidence available to
sustain case
His failure to consummate the
marriage would seem to have been
a part of the revulsion she claimed
he said he had for her. The court
had no medical evidence, or other
expert evidence, to identify the
psychological, or other factors, that
produced the husband's condition,
but the condition itself, seemed to
have been one of sexual impotence
in relation to the wife during the
period they lived together, osten-
sibly, .as housband-and-wife.
That being so, the matrimonial
law governing the position was not
in doubt. Where a husband, while
not generally impotent, was unable
to consummate the marriage be-
caus of impotence vis-a-vis his wife,
that was a good ground in the civil
courts for an annulment of the mar-
riage at the suit of the wife.
Mr. Justice Henchy referred to
C. v. C. (1921) p. 399 in which Lord
Birkenhead reviewed the authorities,
showing the civil law to be to that
effect, and pointed out that, in the
Ecclesiastical Courts, both before
and after the Council of Trent, the
doctrine of the Church idmitted
and, indeed, enjoined nullity on
such a ground.
In fact, the wife here had ob-
tained a declaration of nullity in an
ecclesiastical court. In his judgment,
the order on this petition should
be to the same effect.
He would allow the appeal and
issue a decree of nullity.
Mr. Justice Griffin, who agreed
with the judgment of Mr. Justice
Henchy, in his judgment, said the
law applicable in this case was that
administered by the old Ecclesias-
tical Courts, the jurisdiction of which
was now vested in the High Court.
The wife, would, in the circum-
stances of this case, under that law,
clearly be entitled to have the mar-
riage annulled.
Mr. Justice Kenny agreed.
The court made no order as to
costs.
S. v. S. — Supreme Court (Henchy,
Griffin and Kenny J.J.) — un-
reported — 30th June, 1976.
20