The court held that it assumed the character of a customary right and not a mere contractual right. Therefore, it cannot be said that there is neither a civil nor a legal right which is enforceable. The allegation that the defendant failed to respond to the demand for registration and thereby violated the customary right is a sufficient cause of action. Therefore, the suit for recovery of damages on grounds of violation of customary right and causing mental anguish and medical expenses would be maintainable. The court allowed his claim and directed the defendant to pay damages to him. 48 AIR 2000 Mad 381. The Indian Law Institute
292 Annual Survey of Indian Law [2000 X SPECIAL MARRIAGE ACT, 1954 Virginity of wife as proof of impotency of the husband Mere fact that the wife is virgin in itself would not be a conclusive proof of the husband's impotency and she has to lead other evidence as well. 49 The wife filed a petition praying for a decree of nullity under section 24(H) and for divorce under section 27 (1) (d) of the Special Marriage Act. She contended that the husband was impotent at the time of the marriage and continued to be so at the time of presentation of the petition. The husband contested her claim but did not deny the non consummation of marriage. He, however, claimed that non consummation was due to her behaviour as she did not want to conceive and offered to undergo a medical examination to prove his competence for marital intercourse. The court held that the initial onus lies upon the wife to show that the marriage was not consummated because of sexual impotency of the husband and such impotency continued till the institution of the proceedings. If such onus is discharged by the petitioner wife the burden of proof that the husband was not impotent both at the time of marriage and till before the institution of the aforesaid proceedings and the marriage was not consummated because of the unwillingness of the wife will lie upon the respondent husband. Thus, the court held that it could not be said that sexual impotency of the husband could only be proved upon the virginity of the wife at the trial because that would be a secondary and /or alternative approach for the purposes of determination of the sexual impotency of the husband. Such evidence will clinch the issue where there is no evidence as to the sexual potency of the husband and no pleading by the husband that for non-consummation of the marriage the wife was responsible. The revision petition was thus dismissed. The reasoning of the court is difficult to accept. In sensitive and private matters like determining the impotency of the parties it is difficult, rather impossible, to get direct or straight proof. The court has to come to a conclusion after taking all the surrounding circumstances into account. In the present case the husband had not denied non-consummation of marriage, which in itself indicates that something must be wrong with one of the parties. Consummation of the marriage is so basic in nature that it usually takes place soon after marriage.
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