Report No. 185
In spite of the rigidity of the section, some High Courts had indeed added the exception of 'impotency' (see Ruzarid v. Ingles: ILR 18 Bom 468; Birendar v. Hemlata 24. CWN 914)(Sarkar, ibid, p 1614). The case is Kushnayya v. Mahopatra 40 CWN 12 (PC) decided by the Privy Council related to a husband who was too young and immature. It was argued that the person was too young and was 'physically incapable'. The Privy Council rejected the plea and held that all possibility of premature virility should also be excluded. They said that according to some medical books, it could not be said that a boy of 13 years was incapable of sexual intercourse.
In regard to the impotency of the husband, the statute is not as rigid as in India. Section 26 of the Family Law Reform Act, 1961 reads as follows: (see also Phipson, 15th Ed., 1999, para 4.20)
"26. Any presumption of law as to legitimacy or illegitimacy of any person may, in civil proceedings be rebutted by evidence which shows that it is more probable than not that the person is illegitimate or legitimate, as the case may be, and it should not be necessary to prove that fact beyond reasonable doubt in order to rebut the presumption."
In other words, the proof of legitimacy or illegitimacy can now be established by preponderance of probabilities rather than beyond all reasonable doubt. Further Section 23 of the same Act authorizes the Court to draw inference as appears proper in the circumstances where the person concerned does not comply with the directions of the Court for blood tests.
English law permits 'impotency' to be proved. (See Halsbury's Law of England)(Vol. 1, 4th Ed., para 691) quoting Barnbury Peerage case 1(811) 1 Sim & St 153; Legge v. Edmonds (1855) 25 L.J.Ch. 125. On facts, in W v. W: (1953)(2) All ER 1013 and Francis v. Francis: 1959(3) All ER 206, the husband's testimony that he was using contraceptives could not rebut the presumption.
In US too 'impotency' is a permissible plea. Case law of various States is quoted in Wigmore Evidence, (Vol. IX, para 2527, at pp 585 to 589). Further in several States, the statutes specifically refer to 'impotency' as a permissible ground. See Section 621 of the California Evidence Code (as amended in 1975) and the new Section 621(as amended in 1984).
In Sri Lanka, Section 112 has been amended by making 'impotency' on permissible plea. (See Sarkar, 15th Ed., 1999, page 1603, 1614).
In India, under several marriage laws, 'impotency' is a valid ground for avoiding marriage (see Section 12(a) of the Hindu Marriage Act, 1955. the Supreme Court in Digvijay Singh v. Pratap Kumari AIR 1970 SC 137 and several High Courts have dealt with 'impotency' as a valid ground for dissolution of marriage. O course, 'impotency' may be physical or may be a mental-state vis-à-vis a particular person, who is either a husband or a wife. The fact that 'impotency' is ground for divorce under our marriage laws is a factor to be taken into account while deciding whether 'impotency' can be an additional ground under our law.
In our view, having regard to the law in several other countries and also in Sri Lanka, it is time to include 'impotency' of the husband in Section 112 but we are of the view that 'impotency' must be conclusively established, i.e. beyond all reasonable doubts, by medical tests. Mere preponderance of probabilities will not suffer. While 'non-access' can be proved by very strong evidence, as decided by the Supreme Court in several cases, we are of the view that the proof required to prove 'impotency' must be a conclusive one, leaving no other choice to the Court.