Scottish Court of Session Decisions

Lord President—That marriage may be declared null by reason of the impotency of one of the spouses, at the suit of the other, cannot be doubted. To state the rule of law in the form of a definition of impotency would be dangerous, and is unnecessary.

But it may, I think, be safely affirmed as the result of all the authorities that inability to copulate arising from such a physical obstruction in the woman as cannot be removed or remedied without danger to her life or the infliction of bodily pain, plus quam tolerabile, constitutes impotency on her part.

Persons beyond the age when procreation of children may be expected, may marry without hope of issue, but with the expectation of real commixtio corporum, which is the proper consummation of marriage, and the disappointment of that expectation by impotency arising from irremediable physical obstruction in the woman may entitle the man to a decree of declarator of nullity.

I am of opinion that such an irremediable physical obstruction to copulation has been proved to exist in the defender in this case, and that the pursuer is therefore entitled to judgment declaring the marriage null.

I cannot concur in the technical ground of judgment adopted by the Lord Ordinary, which in my opinion proceeds on too strict a reading of the summons.

Lords Deas, Ardmillan, and Mure concurred.