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Report No. 59

7.17. Section 13 and wilful refusal to consummate the marriage.-

We now consider a suggestion made to us, to add a ground of divorce. There is, at present, no separate provision for relief under the Hindu Marriage Act, where either party wilfully refuses to consummate the marriage. In some circumstances, such conduct may amount to cruelty, but the suggestion was that the nature of the behaviour is such that it should be made a separate ground for divorce. Under the Special Marriage Act,1 wilful refusal by the respondent to consummate the marriage is a ground which renders the marriage voidable. This was the law, and is the law, in England also2. But, on principle, it was stated, this is an incorrect approach. In general, a marriage is regarded as void or voidable by reason of some circumstances existing at the time of the marriage. This is obvious from a study of the various grounds which render the marriage voidable or void3.

1. Section 25(i), Special Marriage Act, 1954.

2. Section 8, Matrimonial Causes Act, 1960, section 9(1)(a), Matrimonial Causes Act, 1965, section 2(b), Nullity of Marriage Act, 1971 and the later 1973 Act.

3. Sections 11-12, H.M.A.

7.18. It may be mentioned that in England, Lord Simon urged that wilful refusal should be a ground for divorce,1 though this suggestion was not accepted.

1. House of Lords debates, Vol. 317, columns 809 to 811.

7.19. In England, wilful refusal of consummation was made a ground of nullity in 1937,1 as had been recommended by the Gorrel Commission of 19122. In 1955, the Archbishops' Commission on Nullity reported3 as follows:-

"We cannot find any logic in a provision by which a marriage, valid at the time it was made, can be declared void ab initio as a result of a subsequent event."

The Archbishops' Commission went on to recommend that the provision should be repealed, and that the following sub-section should be inserted at an appropriate place.

"In any proceedings for nullity of marriage, the Court may draw an inference of sexual incapacity at the time of the marriage from evidence that the marriage has not been consummated owing to the refusal of the Respondent to consummate the marriage.4

1. Matrimonial Causes Act, 1937, section 7(1)(a).

2. Gorrell Commission, (1912), Report (Cmd. 6478), para. 553.

3. The Church and the Law of Nullity of Marriage, (1955), p. 34, cited in Putting Asunder (S.P.C.K. 1964), p. 36.

4. The Church and the Law of Nullity of Marriage, p. 48, cited in Pulling Asunder, (1964), p. 36.

7.20. The Morton Commission took a similar view of the logic of the provision, and stated:1

"To make this a statutory ground of nullity suggests some confusion of thought. Nullity should be granted for some defect or incapacity existing at the date of the marriage. Wilful refusal is something that happens after the marriage, and should therefore be a ground for divorce."

1. Morton Commission Report, (Cmd. 9672), para. 89.

7.21. In the Commonwealth of Australia it is a ground for divorce that "the other party to the marriage has wilfully and persistently refused to consummate the marriage."1

1. Matrimonial Causes Act, 1959 (Austr.) section 28(c).

7.22. The suggestion before this Commission was that the following should be added as a ground of divorce in section 13 of the Hindu Marriage Act:-

"that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it."

Of course, "wilful refusal" connotes a settled and definite decision, come to without just excuse1.

1. Horton v. Horton, (1947) 2 All ER 871 (874) (Lord Jowitt, LC).

7.23. We are, however, of the opinion that this need not be a specific ground for divorce. Where such conduct amounts to cruelty, it can be dealt with under that head.

Hindu Marriage Act, 1955 and Special Marriage Act, 1954 Back

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