Scottish Court of Session Decisions

The parties to the action to be reported were married at Bombay on 29th November 1877, the man being then forty-seven years of age, and the woman twenty. They went on a honeymoon for ten days or a fortnight, and then returned to Bombay, where they remained until they left for Kurrachee about the end of February. Till within two or three days of going to Kurrachee they slept together in the same bed. They stayed at Kurrachee for about a fortnight, occupying the same bed, excepting the night of their arrival, on which occasion she refused to sleep with him. They then returned to Bombay, where they remained till the end of December, when they came to Scotland, where they lived together till June 1879. During all that time they still occupied the same room and the same bed. In June 1879 they separated. The man then went to London to seek for new employment. On his return they did not live together. Before he left there had been some variance between them, he complaining that she showed no respect for him, and she saying she felt none, and declining to change her manner towards him.

In October 1882 the woman bore a child. She registered its birth, and in the column of the register where the names, surnames, and rank of the father and mother fall to be entered she made this entry—“A. B.” (her own name), “wife of C. B.,” &c. &c. (the name and designation of the man), “who she declares is not the father of the child, and further, that she has had no personal communication with him since they ceased to reside together three years ago.” This statement was true.

On 23d March 1883 her pretended husband served a summons of divorce, on the ground of adultery, upon her, and on 13th April she raised an action for decree of declarator of nullity of marriage against her pretended husband. The conclusions of the action were that “the Lords of our Council and Session ought and should find and declare that the defender was, at the time when the pretended marriage between him and

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the pursuer was entered into, and still is, impotent and unable to consummate marriage by carnal copulation: And therefore our said Lords ought and should find and declare that the pretended marriage betwixt the pursuer and defender was from the beginning, is now, and in all time coming shall be of no avail, force, strength, nor effect, with all that has followed thereupon; and find and declare the pursuer to be in such case and condition as she was before the said pretended marriage, or as if she had never been contracted or married to the defender: Further, the defender ought and should be decerned and ordained to restore and deliver back to the pursuer all and sundry lands and heritages, sums of money, goods, gear, and others whatsoever which he received from the pursuer on occasion of or by or through said marriage, or might have received in any way causa matrimonii et propter nuptias.”

The pursuer averred—“After the said marriage the pursuer and defender lived together in Bombay until about December 1878, when they returned to Scotland, and lived together there until June 1879. During the whole of the said period, with some short exceptions, the parties slept in the same bed, but notwithstanding their thus living and sleeping together, and of the solemnisation of the said marriage de jure, the said marriage has never been consummated de facto, no carnal copulation having followed thereupon between the defender and the pursuer, by reason of the defender being impotent and incapable of the act of carnal copulation. The defender's said impotency arises either from malformation or from functional or nervous defects in his constitution, or other causes to the pursuer more particularly unknown. By reason of the said impotency, consummation of the said marriage is rendered impossible.”

The defender denied this, and stated—“Almost immediately after her marriage with the defender the pursuer conceived and manifested the greatest dislike and ill-will towards the defender, and treated him in a way calculated to alienate entirely his affection for her. The defender tried to remedy this state of matters, but without effect, the result being that the marriage of the parties was far from a happy one. The defender, though in bad health at the time of his marriage, has no malformation or other defect such as to cause impotency, and he was not then, nor is he now, in any way impotent or incapable of the act of carnal copulation.”

To this statement the pursuer answered—“Admitted that the life of the parties after their pretended marriage was far from happy, but it is denied that this was due to the fault of the pursuer, who at and before the marriage ceremony was much attached to the defender, and was desirous of being a faithful and affectionate wife to him. Explained that subsequent to the said pretended marriage the pursuer began to suspect that the defender had entrapped her into a marriage which was only one in name, and that she would require to give up all expectation of ever becoming a mother…. The defender's general behaviour after the said pretended marriage was also very irritating to the pursuer's nerves and temper. The pursuer admits that these causes produced in her feelings of dislike to the defender, which may sometimes have manifested themselves in rudeness towards him, which she herself regretted.”

The pursuer pleaded—“(1) The pursuer is entitled to decree of declarator as concluded for, in respect that at the time when the pretended marriage between the parties was entered into the defender was impotent, and that he still is so.”

The defender (who set forth the raising by him of the action of divorce) pleaded—“(1) This action ought to be sisted until the issue of the action of divorce instituted by the present defender against the present pursuer. (3) The pursuer's long silence and delay, coupled with her motives as disclosed by the facts condescended on, operate as an absolute bar to the present action. (4) The pursuer's statements being unfounded in fact, the action should be dismissed.”

After a discussion upon the defender's pleas the Lord Ordinary ( Kinnear) on 23d June 1883 allowed the parties a proof of their averments.

“ Note. — The defender maintained that this action should be sisted until the issue of the action of divorce for adultery which he has raised against the pursuer. He maintains that impotence does not render a marriage void, but only voidable; that the injured spouse may elect to hold to the contract or to annul it, and may be barred by conduct from setting it aside, and it is said to follow that if the wife has been unchaste while the bond of matrimony was still intact she has committed adultery, and that the husband is entitled to have decree of divorce without inquiry into the grounds on which (if they could be established) she might have annulled the marriage, but which she has abstained from bringing forward until after his right to divorce had emerged. The defender's contention that the marriage is not void is borne out by the authorities both in our own law and in the law of England. But there is no authority, so far as I am aware, for holding that a declarator of nullity will be barred by the mere institution of an action of divorce, or even by the unchastity of the wife at a time when she had taken no proceedings to annul the marriage. The case of Guest v. Guest, 2 Hag. 321, which was mainly relied upon by the defender, appears to me to be an authority to the contrary. In that case Lord Stowell refused to entertain a suit of nullity of marriage by reason of malconformation in the wife, on the ground that in former proceedings for divorce for adultery at the instance of the wife against the husband he had not opposed the plea which was indispensable to the success of such a suit, that there had been a lawful marriage between the parties. His Lordship points out that in that suit the husband had an opportunity of establishing that he was not the lawful husband of the plaintiff by reason of natural obstructions which would defeat the validity of the marriage, and he therefore held that since a decree of divorce had been granted the action for nullity could not be entertained, because the validity of the marriage was an essential part of a suit which the Court had already determined. The case therefore decides that the nullity of a marriage on such grounds as are alleged in the present case will afford a good defence to an action of divorce for adultery, and it follows that the prior institution of the husband's action of divorce will neither bar the wife's action of nullity, nor enable him to exclude inquiry into the grounds in

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fact upon which that action is rested.

In the more recent case of Taverner v. Ditch—ford, 31 L.J. (Matri. Cases) 105, it was held by Lord Penzance that an allegation of unchastity had no direct bearing on the question raised by a suit for nullity. The respondent to a petition by a woman for a decree of nullity on the ground of impotence pleaded that since the marriage the petitioner had committed adultery. The Court ordered the plea to be struck out as impertinent, observing, however, that evidence of the wife's conduct after the marriage might be admitted at the trial.

It was further maintained that if the action is now to be considered on its merits it ought to be dismissed, because the lapse of time, coupled with indirect motives, which are said to be disclosed upon record, operate as an absolute bar to such an action. It has been decided in cases of this sort that the Court ought not to grant relief ‘unless the petitioner seek that relief with a certain promptitude and under the real pressure of the grievance upon which the suit is grounded, to the exclusion of any collateral object'— M. v. B., 33 L.J. 205, per Lord Penzance—but this involves questions of fact which cannot be determined without inquiry. In Hall v. Castleden, 29 L.J. 81, and 4 Macq. 160, a suit for nullity was brought twenty-four years after the marriage. It was held that the petitioner was barred by lapse of time and acquiescence. But this was decided after a trial, and it is manifest from the observations of Lord Campbell that the case was not regarded by the House of Lords as one that should not be entertained, but as one in which, by reason of the lapse of time, the ‘clearest, strictest, and most unequivocal evidence should be required.’

The result is that, in my opinion, the present action should have precedence of the action at the instance of the husband. There would be no advantage in allowing both to proceed simultaneously, as in counter actions of divorce, because while decree of divorce may be given at the same time in each of such actions, it is not disputed that in the present case a decree for the pursuer in either action would entirely extinguish the other. But further, it is plain that if there be no marriage there can be no adultery, and the pursuer is therefore well founded in her contention that the alleged adultery ought not to be made the subject of judicial investigation until the validity of the marriage which she contests has been determined. This will not affect the defender's right to lead such evidence of the pursuer's conduct as may be competent in support of his plea that the present action is barred.”

A proof was led. It was shown that about a month after the parties separated the woman consulted a law-agent as to the business of the marriage-contract trust. On this occasion she had told the agent that her husband was impotent, and he had told her that if that was the case she was entitled to be free. Counsel were then consulted on her behalf, but no proceedings were taken or intimation made to her pretended husband till the action was raised.

On the merits it was proved by the evidence of both parties that no connection ever took place. The man attempted it frequently up to the date at which they went to Kurrachee, but never succeeded. After that time he did not attempt it, as he said, because of his wife's coldness. She admitted that after that time she had taken a dislike to him, but swore that he had never asked her to allow him to make further attempts, or done anything to indicate that he desired to do so. The man, while he admitted his failure to consummate his marriage at the date it took place, deponed that he then believed himself quite able to do so, but said that his health had not been quite so strong just before the marriage, and although he was in good health he had been nervous about the furnishing of his house and about some business affairs. He attributed his failure to nervousness and comparative weakness at the time. After February he said he felt himself quite capable. “(Q) Would you have performed that duty if your wife had been kindlier in manner to you?—(A) Yes I would, if there had been any affection shown me at all. (Q) Was there anything but her manner and treatment of you to deter you from the performance of that duty? —(A) Except her coldness and unkindness to me generally, there was not. (Q) Did you believe that you were, in the month of February and afterwards, quite fit, so far as physical conditions went, to be the father of a child?—(A) I did. (Q) And you believe that yet?—(A) I do.” He admitted, however, that during the honeymoon, and for some time after, there was no coldness or change of demeanour on the part of his wife. He had never had connection with any woman nor attempted it till after his marriage. Before the age of 15 he had practised masturbation.

Several doctors were examined. Their evidence showed that there was no malformation in the person of the defender, who was a well formed healthy looking man.

Dr Joseph Bell, a witness for pursuer, deponed—“(Q) On what is your opinion based, that he was impotent at the time of his marriage?—(A) on his own confession that he utterly failed to have intercourse with a woman who was willing to receive him, he having every opportunity. (Q) Have you any reason for saying he was impotent between March 1878 and June 1879? —(A) I think if he had not been impotent he would have managed somehow to have had connection with her; they were occupying the same bed. (Q) Looking at the condition of matters between these dates can you say he was impotent?—(A) Looking at his organs there is no reason to say he is impotent; he could not escape a charge of rape on that ground. (Q) Your whole opinion is based upon his confession of failure in the early weeks of the marriage and from what you heard from pursuer?—(A) And from what I know of other cases. Re-examined—The lapse of time without any attempt at connection is very significant of the absence of power.”

Dr Angus Macdonald deponed—“The condition of defender's organs is not exclusive of the idea of his being impotent. (Q) Assuming defender to have lived on affectionate terms with the pursuer for ten days after their marriage, that he slept with her during that time, and made attempts to have connection with her, do you think that is suggestive of incapacity?—(A) Extremely suggestive. This is confirmed by what took place subsequently. I think it is hardly in human nature to imagine that he was capable of

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performing the marital act when he did not do so while they lived together. In some cases there is a temporary incapacity. … In the present case the opportunities recorded in the evidence were far too numerous to account for it without a distinct defect of virile power. … I do not believe that defender could have slept beside her so long without completing the act if he had been capable. He would have been stimulated by his organs, and could not have resisted. He would have found means of getting over her dislike to him. I do not think I am warranted in saying he is impotent now, for I have no present facts to go upon, but the presumption to my mind is, that he is incapable.”

Dr Keiller gave evidence to a similar effect.

Dr Gairdner and Dr Gillespie were examined for the defender. The former deponed—“(Q) Taking the whole evidence into account, have you any warrant for forming the opinion that he was impotent at the date of his marriage, has been so since, and is impotent now?—(A) I believe he was incapable at the date of his marriage to the extent that he himself confesses. I don't think it is possible for anyone to tell when or how he would have become capable had matters been more favourable to him, but my belief is that if the lady had given him proper opportunities he would have come to it after a limited time. I cannot assign the particular time. I see no reason to doubt his competency now.”

Dr Gillespie deponed—“I know cases where a man who failed in the first few weeks became subsequently the father of children. Worry about business might in a nervous man increase his chance of failure. From my examination of defender, and from what I have heard to-day, my opinion is that if he had favourable opportunities given him he could procreate children now, but he requires encouragement; he is a very shy, bashful man, and has been so long continent that he takes a much longer time to manage it. I think that if his wife had treated him lovingly within four or five weeks of the marriage he would have managed to do what was necessary. Cross-examined—… I agree with Dr Bell that the fact of fully developed organs is not conclusive in favour of potency. That is to be determined by his success or failure.” Dr Gillespie further deponed that in ordinary circumstances where the parties were on affectionate terms he would expect that the marriage would be consummated in three or four weeks, and that if a man failed to do so in that time he would consider it probable that he was impotent. The circumstances would raise that presumption unless otherwise explained. He had never known a case in which, with opportunities extending over a space of two months, there had nevertheless been failure. “(Q) What do you find in the present case that enables you to avoid the conclusion of impotency?—(A) I heard what defender said to-day, and I heard a good deal more from himself; he said she never gave him any encouragement, even the first night.”

On 24th January 1884 the Lord Ordinary pronounced this interlocutor:—“Assoilzies the defender from the conclusions of this action.”

“ Note.—This action is brought under very unfavourable circumstances. The marriage took place on the 29th of November 1877, and the parties lived together from that time until July 1879, when they separated. They have since been living apart; and in October 1882 the pursuer gave birth to a child, of which the defender is not the father. The defender thereafter raised an action of divorce on the ground of adultery; and it was not until after the summons had been served that the complaint on which the present action is based was brought forward.

It is unnecessary, however, to decide whether this state of facts brings the case within the rule laid down in the House of Lords in Castleden v. Hall, 9 H. L. Cases, 186, that ‘lapse of time, coupled with an indirect motive, is an absolute bar’ to a suit for a decree of nullity, because, upon the evidence, I am of opinion that the pursuer has failed to establish her case.

There is no serious conflict of evidence as to the most material facts; but where a conflict exists, I give credence to the statements of the defender, who gave his evidence with remarkable candour. He admits that he made several attempts to consummate the marriage, all of which were unsuccessful; that he desisted from making any further attempts to do so after January 1878, in consequence, as he says, of the repugnance towards him which his wife began to exhibit soon after the marriage, and continued to exhibit until their separation; that during the greater part of the time for which they cohabited they occupied the same bed, and that when they separated in July 1879 the marriage had not been consummated. There can be no question that this state of facts raises a presumption against the defender. But the medical evidence shows that the presumption is not conclusive. The defender has no visible defect from which it is possible to infer impotency, but, on the contrary, has every outward sign of health and capacity; and the medical witnesses are agreed that repeated failures to consummate a marriage, with such opportunities as are admitted by the defender, do not affiord sufficient ground for inferring impotency. The medical witnesses for the pursuer think that if the defender had been a healthy and vigorous man he could not have cohabited so long as he did with the pursuer without finding means to overcome her dislike and to consummate the marriage. But they do not say that they can draw any certain inference from his failure during the time for which he continued to make any attempt to do so. Dr Keiller says he has ‘known cases where attempts have been made for months without complete success.’ Dr Macdonald says he does not think himself ‘warranted in saying that the defender is impotent,’ because he has ‘no present facts to go on,’ although ‘the presumption in his mind is that he is incapable:’ and Mr Bell's evidence is still more favourable to the defender. Apart altogether, therefore, from the evidence of Dr Gairdner and Dr Gillespie, who were examined for the defender, and having regard to the skilled opinion of the pursuer's medical witnesses alone in its application to the facts of the case, it is impossible to hold it proved that the defender is incurably impotent, and unless this be proved beyond the possibility of doubt it is clear that a decree of nullity cannot be pronounced.”

The pursuer reclaimed, and argued—On the

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legal question of bar, there was in England no divorce on the ground of desertion, and there being no release for the parties save by an action for decree of nullity, the injured party was bound to take that remedy timeously. In all the cases the time of delay had been much longer. There once was a rule in England that a three years' probation was necessary; that was not so now— N. v. M., January 12, 1853, 2 Robertson 625; besides, that rule was founded on probabilities; a failure for three years was held to demonstrate impotency, but other evidence might be as cogent. There was such evidence in this case; it was proved that the man if not impotent to all was impotent as to this woman, and that was sufficient.

The defender argued—The evidence here showed an unwilling and cold wife. In such circumstances a longer period of probation was necessary— Stagg v. Edgecombe, June 16, 1863, 32 L.J., Mat. & Prob. Ca. 153; Fraser's Husband and Wife, i. 100; the repugnance of the wife was highly important — H. v. H. July 12, 1864, 33 L.J., Mat. & Prob. Ca. 159. This woman, too, knew her rights in 1879, and it was not until she was sued for divorce, and to hide her own guilt, that she brought her action. Where a party has any indirect motive—any motive other than the wrong done to him or her—the Court will give no aid— B. v. B. July 26, 1864, 33 L.J., Mat. & Prob. Ca. 203; Hall v. Castleden, 29 L.J. 81, 1 Swab, and Trist. 606, and 4 Macqueen 160; M. v. C., March 2, 1872, L.R., 2 Prob. & Div. p. 414, prœsertim p. 419.

At advising—