Everything you need to know about Non-consummation of marriage

(i) What is Consummation?

Consummation means Vera Copula or Conjunction of two bodies or sexual intercourse between the two -husband and wife. Vera copula consists of erection and intermission or penetration.

Full and complete penetration is essential and, as such, partial intercourse will not amount to consummation. Although complete intercourse does not mean partial or imperfect intercourse but every degree of imperfection does not deprive of its essential character. No doubt, degree of imperfection differs in each case nevertheless if “it is so imperfect so as to be natural it is, in law, no intercourse at all.

(ii) Marriage means Right of Consummation

The marriage implies an implicit right to conjugality or consortium or Sexual intercourse. Right of consortium implies the corresponding duty of each spouse to cohabit with the other. The mutual right to several intercourse(s) continues throughout the entire period of marital life. However, if the very foundation of marriage, namely, the mutual right of consortium is absent, the very purpose of marriage is defeated. In such eventuality, Law prescribes (a) Divorce or (b) Decree of Nullity depending upon several factors. But whether it is Divorce or Decree of Nullity, result is same; marriage stands dissolved and conjugality or consortium or sexual intercourse becomes unlawful as parties remain no more husband and wife.

(iii) Non-Consummation on account of ‘Impotency’, ‘Willful refusal to Consummate the Marriage’, ‘Living Separately’, ‘Not-Living-Together’.

Non Consummation of marriage can be for two reasons,

1. Natural Cause, called as impotency.

2. Non Natural Cause which is willful refusal to consummate the marriage.

When a marriage is valid and also consummated but subsequently one spouse refuses consummation – marital company – the aggrieved spouse cannot seek divorce or decree of nullity for non consummation of marriage – because marriage was consummated. Such an eventuality would arise when:

(i) They are ‘Living Separately’.

(ii) They are ‘Not-Living-Together’.

The aggrieved spouse then has three Legal Remedies available, viz.

(i) Seek Decree for the Restitution of Conjugal Rights Or (ii) Seek Decree for Judicial Separation Or (iii) Seek Divorce on the ground of desertion.

Before turning to ‘remedies’ available to the aggrieved spouse, it may clearly be noted that if Non-Consummation of Marriage is on account of Natural Causes – impotency- marriage is treated as void under and ‘Decree of Nullity’ is prescribed. However, if ‘Non- Consummation’ of Marriage is for Non-Natural Causes – willful refusal to consummate marriage, marriage is treated as voidable marriage and Divorce is prescribed. Voidable Marriage is one which is valid at the time of solemnization but, after solemnization, marriage is avoided by one spouse by willfully refusing to consummate the marriage.

Section 30 prescribes Decree of Nullity if marriage is not consummated because of natural causes or impotency.

Section 32(a) prescribes Divorce for willful refusal to consummate the marriage.

Section 32(h) prescribes Divorce if, after consummation of marriage, husband and wife are ‘Living Separately’ and for that reason they have not had the marital intercourse for One Year after passing the Order of separate maintenance by Magistrate.

Section 32-A prescribes Divorce if, after consummation of marriage, Husband and Wife are ‘Not-Living-Together’ for a period of One Year or upwards after the Decree of (a) Restitution of Conjugal Rights or (b) Decree of Judicial Separation. Section 32 (2), however, carves out an exception to the general rule to the effect that no divorce shall be granted if one party has failed or neglected to comply with the order of maintenance under Section of this or Section 125 of the Cr.P.C.

In Section 30 and Section 32(a) ‘Non-Consummation of Marriage’ is really the Ground and ‘Separate Living’ or ‘Not-Living-Together’ is only incidental. But in Section 32(h) and Section 32-A, the ‘Not-Living-Together’ or ‘Separate Living’ is really the ground and non- consummation is only incidental.

(v) Requirements of Sections 30, 32(a), 32(h) and 32-A of Act

Section 30 contemplates (a) filing of Suit for Decree of Nullity, (b) for non-consummation of marriage, (c) for the reasons of natural causes or on the ground of impotency for seeking, (d) Declaration of marriage as null and void, (e) at the instance of either Husband or Wife.

Section 32-(a) contemplates (i) filing of Suit (ii) by either husband or wife (iii) for Divorce (iii) on the ground that marriage has not been consummated by the Defendant (may be husband, may be wife) (iv) within one year of solemnization of Parsi Marriage

(v) Owing to willful refusal of the Defendant (may be husband, may be wife) to consummate the marriage.

Section 32-(h) contemplates (i) filing of Suit (ii) for Divorce (iii) on the ground that an Order has been passed against the Defendant (may be husband, may be wife) (iv) for separate maintenance to the Plaintiff (v) after which Husband and Wife did not have marital intercourse (vi) for One Year from the date of passing of the Order of Separate Maintenance, (vii) No divorce is granted if one party has failed or neglected to comply with the Order of maintenance under Section of this or Section 125 of the Cr.P.C.

Section 32-A contemplates (i) filing of Suit (ii) either by Husband or Wife (iii) also for Divorce [which means that the ground provided for in Section 32-A is in addition to other grounds available to Parsi Husband/Wife] (iv) on the ground that there has been no resumption of cohabitation between Husband and Wife, (v) for a period of One Year or upwards (vi) after passing of Decree of Judicial Separation (vii) in a proceeding the Husband and Wife were parties (viii) and it is not contemplated that ex-parte Decree should not have been passed in the Proceedings for Judicial Separation or (ix) there has been no resumption of conjugal rights between Husband and Wife, for a period of one year or upwards (x) after passing of Decree of Restitution of Conjugal Rights (xi) in a proceeding in which Husband-Wife were parties. However, (xii) no decree for divorce shall be passed (xiii) if the party suing for divorce has failed and neglected to comply with the (xiv) Order of maintenance passed (xv) under Section 40 of this Act or (xvi) under Section 488 of Cr.P.C. of 1898 or (xvii) under Section 125 of Cr.P.C. of 1973 and (xvii) Husband and Wife should be the parties in the case filed for maintenance under respective provisions but (xviii) it is not contemplated that ex-parte Order should not have been passed in the Proceeding under reference.

Section 35 of the Act vests powers in the Court to refuse the decree of divorce. Thus, it is entirely at the sole discretion of the Court to grant the divorce or refuse it. Further discussion can be read in topic titled as ‘Discretion of Court to Refuse Divorce – Section 35’

(vi) Period of Limitation

Section 30 – No period of limitation is prescribed.

Section 32(a) – One Year from the date of solemnizing marriage

Section 32(h) – After Order of Separate Maintenance of Magistrate Parties did not have marital intercourse for ONE YEAR or more.

Section 32A- No restitution of conjugal right for a period of One Year or upward after (a) Decree of Judicial Separation or (b) Restitution of Conjugal Rights was passed.

(vii) Relative Impotency

As already aforesaid, marriage implies implicit right to conjugality or consortium or sexual intercourse. The mutual right to several intercourse(s) continues throughout the entire period of marital life. However, if the very foundation of marriage, namely, the mutual right of consortium is absent, the very purpose of marriage is defeated. As such, the spouse who is not able to have sexual intercourse with the other spouse is said to be taken as impotent only against the other spouse.

It is briefly referred to as ‘Relative Impotency’ meaning thereby that although concerned spouse may not really be impotent yet, for whatever reason , the concerned spouse is not able to have sexual intercourse with the other spouse.

His impotency is related to and confines with the spouse. Law has recognized the ‘Relative Impotency’ and Courts have granted Divorce or Decree of Nullity if the Respondent Spouse suffers from relative impotency. Whether Divorce can be granted or Decree of Nullity can be granted will always depend upon the Scheme, ideology or philosophy of the Personal Law applicable to the parties. While Parsi Law prescribes Decree of Nullity for impotency, the Muslim Law prescribes Dissolution of Marriage for the same reason.

(viii) Provisions in other Enactments

The Dissolution of Muslim Marriages Act, 1939

Since Muslim Husbands can pronounce Talaq – divorce, no statutory law is enacted for them. Necessarily, therefore, it means that the Act is only (and only) for Women and not for men.

Section 2 lays down the grounds for decree of ‘Dissolution of Marriage’. Section 2(iv) prescribes dissolution/divorce for failure of the husband to perform marital obligation for a period of three years.

‘Marital Obligation’ is wider term to include in it also the willful refusal to consummate marriage or refusal to cohabit with wife or refusal to have sexual intercourse. Section 2(v) prescribes dissolution/divorce on the ground of impotency of husband at the time of marriage and continues to be so. It means, ignorance of wife regarding impotency of the husband is not material. As such, wife need not prove her ignorance of Husband’s impotency.

In other words, wife can obtain divorce even if she knew about the Husband’s impotency. Further, impotency must be determined with reference to wife and general impotency is not sufficient, or so to say a Muslim Woman can seek divorce/dissolution of marriage on the ground of ‘Relative Impotency’. Relative impotency means that a spouse may not be impotent nevertheless the concerned spouse is not able to have sexual intercourse with the other spouse.

Section 2 of Dissolution of Muslim Marriages Act, in its Proviso-c provides that Husband may make application to the Court that, within a period of One Year, he is prepared to satisfy the Court that he has ‘ceased’ to be impotent. If the husband accordingly proves, no Decree of Dissolution of Marriage shall be passed. The phraseology ‘ceased to be impotent’ clearly indicates that the husband can have medical treatment as ‘impotency’ is curable. Further, it is only on Husband’s Application and not suo moto Court has to allow the husband to prove that he has ceased to be impotent. Necessarily, therefore, if no application is made, Court is required to pass the Decree without delay.

It may incidentally be noted that no such clarification is found either in Parsi Act or in Divorce Act (applicable to Christians) or in Special Marriage Act. All it can be said that there is urgent need of amendment in these enactments in the light of clarification given in the Dissolution of Muslim Marriages Act.

Section 35 of the Act vests powers in the Court to refuse the decree of divorce. Thus, it is entirely at the sole discretion of the Court to grant the divorce or refuse it. Further discussion can be read in topic titled as ‘Discretion of Court to Refuse Divorce – Section 35’.

Hindu Marriage Act, 1955

Section 12 in sub-section (1) lays down that marriage may be voidable and may be annulled on petition of Husband or Wife and Decree of Nullity may be granted if (a) marriage is not consummated owing to impotency.

Section 13 (1A) lays down that Divorce may be granted on the ground that (i) there has been no resumption of cohabitation for a period of One Year or upwards after the passing of a decree of Judicial Separation in a proceeding to which they were parties or that (ii) there has been no resumption of conjugal rights for a period of one year or upwards after the passing of a decree of Restitution of Conjugal Rights in a proceedings to which they were parties. In Section 12(2) (iii) it is laid down that the wife may present Petition for Divorce if Order of maintenance is passed either under Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of Cr.P.C. of 1973 or under Section 488 of Cr.P.C. of 1898 and since the passing of the order cohabitation has not been resumed for one year or upwards.

Section 10(2) allows divorce after the order of judicial separation is passed.

The Divorce Act, 1869 – For Christians Only

The Act does not prescribe any period of limitation. Perhaps it is the continuous cause of action. Nevertheless, it is a matter of judicial interpretation that refusal to consummate marriage should be until the date of filing the Divorce Petition for the simple reason that if marriage is consummated, even before the filing of Petition, the cause of action would not survive. The Dissolution of Muslim Marriages Act is clearer. If the husband accordingly proves, no Decree of Dissolution of Marriage shall be passed. No such clarification is found in the Indian Divorce Act.

The Christian Act deals with the Decree of Nullity. Section 18 vests powers in Court to grant Decree of Nullity and in Section 19, it lays down that Decree of Nullity can be granted (1) Respondent was impotent at the time of marriage and continues to be impotent at the time of filing the Petition, (2) parties are within the prohibited degree of relationship, (3) either party was Lunatic and (4) the marriage was solemnized during the subsistence of earlier marriage, so to say that the former spouse of either party was alive at the time of marriage.

However, provisions of Christian Marriage Act cannot be ignored in this regard and it must be noted that Decree of Nullity is also prescribed if consent of either of the parties was obtained by fraud or force. The Bombay High Court has held that the consent was obtained by force or fraud, the Petition for a Decree of Nullity for that reason has to be heard by the Court which is vested with powers to hear the Petition.

The Divorce Act of Christian lies down that, for filing the Petition for Decree of Nullity, following requirements must be fulfilled.

(а) (Section 2) – either of the spouses professes the Christian religion. Further, in the ‘Proviso’, it is stated that the parties to the marriage should have been resident in India, at the time of filing the petition. It was held that two requirements for filing a petition for a decree of nullity of marriage are (i) the marriage was solemnized in India and (ii) the Petitioner is the resident of India. In another case, the Court held that if parties profess Christian religion, the marriage could be dissolved even if the marriage was solemnized outside India.

The Delhi High Court held that the Act does not require that the marriage should have been solemnized in any particular form; it is sufficient that one of the parties was a Christian when the petition was filed. However, the Madras High Court refused to grant the relief holding that marriage between a Christian and a Hindu was solemnized in ‘Seethirutha’.

(b) (Section 18) Petition for Decree of Nullity must be filed either by husband or wife.

(c) (Section 18) Petition for Decree of Nullity must be filed in District Court. Prior to amendment of 2001, the jurisdiction was ordinarily vested in the High Court.

The Special Marriage Act, 1954

Section 24(1) (ii) lays down on Petition by husband or wife marriage will be declared null and void on the ground that Respondent (husband or wife) was impotent at the time of marriage and at the time of institution of the Petition. At the cost of repetition it may be noted that (a) wife need not prove her ignorance of impotency and (b) Decree of Nullity can be obtained on the ground of ‘relative impotency’ also.

Section 25 lays down the grounds on which marriage can be treated as void and may be dissolved/annulled and Sub-section (ii) provides for annulment of marriage if marriage is not consummated owing to willful refusal of Respondent (Husband or Wife) to consummate the marriage.

Section 27 in its Sub-section (1) lays down the grounds for Divorce and Sub-section (2) lays down that Divorce Petition can be filed by Husband or Wife, if marriage was solemnized under the Act: (i) If there has been no resumption of co-habitation for a period of One Year c._; upwards after the passing of the Decree of Judicial Separation in the proceedings between the Husband and Wife OR in (ii) if there has been no resumption of conjugal rights for a period of one year or upwards after the passing of the Decree of Restoration of Conjugal Rights in the proceedings between the Husband and Wife.

Case law

Wife had filed a petition for divorce on the ground of non-consummation of marriage. However, on facts, it was found that husband had written a letter to his wife, after about