Report No. 15
53. Refusal to consummate marriage.-
Under section 25(1) of the Special Marriage Act, wilful refusal by the respondent to consummate the marriage is a ground for annulling it. This is in accordance with the law as embodied in section 8 of the Matrimonial Causes Act, 1950, but its correctness is open to question. A decree for annulment could, properly, be made only on grounds which exist at the time of the marriage, whereas when the petition is founded on a ground which arises subsequent thereto, the appropriate relief to be granted is dissolution.
On principle, therefore, a refusal to consummate a marriage, as distinguished from impotence at the time of marriage, would be a ground for dissolving the marriage, and not for annulling it. That is also the view taken in the Report of the Royal Commission on Marriage and Divorce, 1955.1 We have, accordingly, included wilful refusal to consummate a marriage as one of the grounds for divorce.
1. Cmd. 9678, p. 31, paras. 88 and 89, and p. 83, para. 283.