A v B (C.A. 9/1932.) [1932] EACA 5 (1 January 1932)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JACOB BARTH, C. J. (Kenya), JOHNSON, Acting C. J. Zanzibar), and LAW, Acting C. J. (Uganda).

## A. (Appellant) (Original Petitioner)

## B. (Respondent) (Original Respondent). C. A. $9/1932$ .

Nullity of marriage—Consummation—Permanent' impotency— Period of Cohabitation—Legal presumptions.

Held (2-7-32): -That the facts on record justify presumption of incapacity to consummate.

Schwartze for Appellant.

Respondent unrepresented.

Schwartze submitted that this was not a question of lengthof time of cohabitation. The marriage was celebrated in August, 1930, and the petition was filed in January, 1932.

(Authorities embodied in judgment of Law, Ag. C. J.).

SIR J. W. BARTH, C. J.—This is an appeal from the judgment of Lucie-Smith, J., of the Supreme Court of Kenya in a petitionseeking a declaration of nullity in respect of the marriage celebrated between the parties on the ground of malformation, frigidity, impotence, or some other physical defect in the respondent, rendering her unable to consummate the marriage.

The learned trial Judge dismissed the suit, finding that in view of the shortness of time during which the parties lived together it was impossible to presume that the respondent is impotent by reason of hysteria and that her refusal was probably due to youth, innocence and nervousness.

The evidence shows that the parties were married at Mombasa on 11th August, 1930. They stayed together two or three days at an hotel. They came to Nairobi and stayed at the Avenue Hotel for two days. They then went to Timau and stayed with friends for some ten days. They then went to the petitioner's farm for a few days when the respondent left for Europe.

At each of the places where the parties stopped en route to the farm they shared the same room, and the petitioner attempted to consummate the marriage, but was rebuffed on

each occasion. In his evidence he said that the respondent showed aversion from him and that he could not have consummated the marriage without using violence.

Attempts were made to induce the respondent to return to her husband, money being provided for her passage, but such attempts were unavailing and proceedings were instituted on or about 14th January, 1932.

The petitioner has been examined by the medical examiners appointed by the Court and has been found to be normal. The respondent has intimated her intention not to be medically examined, vide the affidavit sworn by Mr. Hogan.

The learned trial Judge has based his decision on the short period during which the parties lived together.

A number of cases have been cited to us in some of which the period of cohabitation was less than the fourteen days in this case, in fact, there are cases in which there was no cohabitation, such as $W$ . $v$ . $W$ . (otherwise L.) (1912) P. p. 78.

In the present case what is open to the petitioner?

The respondent will not come back to him and if he left his home in Kenya and pursued the respondent in Europe it cannot be suggested that the respondent's refusal would be overcome. She has stated in a letter of 31st October, 1931, that she would like to marry X. This might be regarded as some evidence of her capacity, but as Sir Francis Jeune said in $F$ . $v$ . $P$ . (falsely called F.) (75 L. T. R. 192), "where the facts are that a woman refuses with no ground that anybody can see except some incapacity in the more general sense of the word, one is entitled to say the facts point not to wilful and wrongful refusal, but to some sort of incapacity arising from nervousness, hysteria, or unconquerable aversion, all of which I think are insufficient to enable the case to be considered as one of mere wilful refusal and compel me to give a decree."

Wilful refusal by itself will not constitute a reason for a decree (Napier v. Napier (otherwise Goodban) (1915) P. page 184), but refusal coupled with a refusal to submit to medical inspection has been held sufficient from which to infer incapacity.

As Sir Samuel Evans said in Dickinson v. Dickinson (otherwise Philips) (1913) P. at page 207, after referring to the fact that husbands and wives after their marriages had been annulled upon some supposed or inferred, but unproved incapacity, have contracted other marriages and become fathers and mothers, "such theoretical inferences as have been drawn in order to justify decrees of nullity are often stultifying and are not in my judgment satisfactory or reliable."

But the legislature has taken no steps to improve the position and the Courts are left to invoke the aid of these unsatisfactory inferences to afford relief in cases of wilful, determined and steadfast refusal of the wife.

In this case although the parties only cohabited for fourteen days the marriage occurred some seventeen months before action was taken thus affording ample time for the respondent to reconsider her attitude, which on 31st October, 1931, i.e., some fourteen months after the marriage, was a fixed determination not to return to the petitioner (vide Ex. E. A. 3).

1 am of opinion that it is a proper case in which to invoke the inference of incapacity (although it may be not much more than a fiction) and to order a decree nisi of nullity. There will be no order as to costs.

JOHNSON, Ag. C. J.—This is an appeal from a judgment of Lucie-Smith, J., dismissing a petition by the appellant for a declaration that the marriage celebrated between himself and the respondent on the 14th August, 1930, was a nullity owing to the incapacity of the respondent.

Mr. Schwartze has quoted an impressive list of authorities, none of which, unfortunately, seems to have been cited before the learned trial Judge.

Reading these cases one comes to the conclusion that the factors upon which the Court has to come to a decision are: -

- X.—Opportunity and a reasonable time for consummation of the marriage. - Y .- "Wilful, determined, steadfast and persistent refusal" to use the words of Sir Samuel Evans, P., in Dickinson v. Dickinson (1913) P. p. 198. - Z.--A presumption of impotence or incapacity arising from a refusal to obey a direction to a party to present him or herself for medical inspection.

Other factors, such as promptings by third parties, may be present and combine with Y. These factors may be represented comprehensively by the symbol $\lambda$ .

Speaking mathematically, the Court is called upon in these cases to evaluate XY $\chi$ Z. The resultant may be:-

A.—The opinion of a sceptic, but favourable to the petitioner.

B.—The similar opinion of the "ordinary reasonable man" (an entity known to all of us, though indefinable and therefore best represented by a symbol), or

C.—Something falling short of B.

The resultant can rarely be A, except in cases in which there is positive evidence of malformation.

The question in this case is: what is the value of $XY \lambda Z$ ?— $B$ , or $C$ ?

The learned trial Judge has found X equal to fourteen days, and, treating the cases examined by him arithmetically, has found an average of fifty-two days as the period seemingly reasonable for X. But examination of the cases cited to us shows the value of X to be a variable which may be zero in some cases.

In S. v. S. (otherwise M.) 24 T. L. R. p. 149 (not cited to us) Gorell Barnes, President, found frigidity amounting to incompetence over a period of eighteen months.

In M. v. M. (otherwise H.) 22 T. L. R. 719, $X=10$ days.

In F. v. P. (otherwise F.) 27 T. L. R. p. 429 the value of X was a matter of an hour or so.

In W. v. W. (otherwise L.) (1912) P. p. 78, $X=0$ .

So also in C. v. C. (otherwise H.) 27 T. L. R. p. 421, $X=0$ .

In Dickinson v. Dickinson (cited above) Sir Samuel Evans reviewed a great number of cases, quoting the opinions of his predecessors. In that case the value of $X$ was about one month. But the learned President throughout the case concentrated his attention on the necessity for the presence of the factor Z. Z, he said in effect, as a factor was often fictitious and he wished to disregard it. He was of opinion that the factor Y alone was sufficient in such cases. Z, in fact, was present and the Court of Appeal laid down in Napier v. Napier (1915) P. p. 184 that it, even though fictitious, is a necessary factor to be considered, due to the ecclesiatical origin of the law applicable in nullity cases, and that in its absence no decree should issue.

The factors X and Z being present in this case there remains the consideration of the factor $Y$ in the light of the evidence adduced.

As to fourteen days the learned trial Judge found Y present but considered his value for X to be too low for XYZ to equal B. He suggested that relief might be granted to the appellant should he fail after a repetition of his efforts.

I think the value assigned by the learned Judge to $Y \cup$ oe far too low. He has not taken into account the evidence of the later attempts by the appellant to get his wife to return to him. $\Lambda$ .'s evidence, and the correspondence, which shows that a passage or passages were offered to the respondent, of which she refused to avail herself, do not seem to have been considered in the judgment. For my part I am of opinion that the factor $\mathbf{X}$ was also present in this later period, enhancing the value of Y.

My evaluation of XY $\lambda$ Z would give a resultant of A – or B + and I would therefore allow the appeal and grant a decree as prayed.

LAW, Ag. C. J.—This is an appeal from the judgment of Mr. Justice Lucie-Smith dismissing a petition for a declaration that the marriage celebrated between the appellant and respondent was null and void on the ground of the impotency of the respondent at the time of the marriage.

The facts of the case, for the purpose of this appeal, are quite clear. The parties were married at Mombasa on the 11th August, 1930. They occupied the same room at hotels at Mombasa and Nairobi for a few days, also at a friend's house at Timau for about ten days, and lived together subsequently at appellant's farm for a further few days. Thereafter respondent left appellant and returned to England.

Appellant states that throughout the period they were together he made repeated attempts to consummate the marriage, but always without success. Respondent showed aversion to him and resisted all his attempts.

Appellant described respondent as a strong, normal woman. He received two letters from her after she left him; in the former, written from the ship, she admitted "never having been married to him in the strict sense " and in the latter, written after her arrival in England, she expressed a desire to marry another man.

Under an order for the appointment of two medical inspectors, the appellant was examined and pronounced to be normal as to his organs of generation. The respondent, however, refused to submit to medical examination.

The learned trial Judge came to the following finding:—

"In view of the shortness of time during which the parties lived together I feel I must refuse the petition. I find it impossible to presume that the respondent is impotent by reason of hysteria and think it quite probable that her refusal was due to youth, innocence and nervousness."

I agree that the learned Judge could not, on the evidence, have drawn the presumption of impotence by reason of hysteria. But it has to be considered whether other reasons did not exist for such presumption.

The parties were married on the 11th August, 1930. They lived under the same roof for considerably less than one month. The petition was filed on the 14th January, 1932. I am satisfied from the evidence that appellant has done all in his power to consummate the marriage; the respondent has throughout steadfastly refused to do so.

Every case has to be considered on its own particular circumstances. I do not consider that any Court would require a petitioner, under such circumstances, to pursue his wife throughout distant countries in order to give her further opportunities to consummate their marriage. It is a wife's duty to remain with her husband. For these reasons therefore, I attach no importance to the fact that the appellant and respondent lived together for only a short definite while. No definite period of cohabitation can now be said to be demanded by law (1853, $U$ . (falsely called F.) v. $F$ . 163 Eng. Rep. p. 1432).

Courts, however, must be satisfied as to the condition of the party complained of. Strangely enough, in the case above quoted, the husband withdrew himself to another country. In this case the wife has done so. In my opinion the respondent has had ample opportunity to live with appellant. It is unreasonable to suppose that any further delay would be justified. Accordingly, I do not agree with the learned Judge that the shortness of time during which the parties actually lived together was a proper ground for refusing the petition.

Mr. Schwartze, who very ably argued this appeal, based his arguments on the ground that, because the respondent failed to consummate the marriage and also subsequently refused to submit to medical inspection, a legal presumption of her impotence should be drawn. He has referred to the following decided cases in this connexion: $\longrightarrow$

- (a) 1854, G. (falsely called T.), 164 Eng. Rep. p. 224. - (b) 1906, M. v. M. (otherwise H.), 22 T. L. R. p. 719. - (c) 1911, C. v. C. (otherwise H.), 27 T. L. R. p. 421. - (d) 1911, F. v. F. (otherwise P.), 27 T. L. R. p. 429. - (c) 1912, W. v. W. (otherwise L.), P. D. p. 78.

In case (a) the husband left his wife after three months cohabitation. On medical inspection it could not be said that she exhibited any traces of perfect sexual intercourse. In case $(b)$ there was cohabitation for only ten days, during which time the wife persistently refused to consummate the marriage. She also refused medical inspection. In the other three cases: $(c)$ , $(d)$ and (c), there had been no cohabitation, but the wife refused medical inspection. In all those cases decrees for nullity were granted, on the presumption of impotency.

In another case, (1913, $D. v. D.$ (otherwise P.), P. D. p. 198), Sir Samuel Evans, the learned President of the Divorce Division, endeavoured to carry this matter further, and held that persistent refusal alone on the part of a wife to consummate the marriage was sufficient to raise a presumption of impotence. This decision, however, was disapproved shortly afterwards in another case, (1915, N. v. N. (otherwise G.), P. D. p. 184), as too violent a departure from recognized principles in such cases. This latter decision has since been approved, (1922, H. v. H. (otherwise N.), 39, T. L. R., p. 108).

It is perfectly clear, therefore, from these authorities that. where a Court is satisfied that a wife has persistently refused to consummate the marriage and has also refused to submit herself to medical inspection, a legal presumption may be drawn that she is incompetent to consummate. I am satisfied that these circumstances exist in this case, and find that the respondent was incompetent to consummate the marriage at the date thereof. Accordingly, I would allow the appeal and decree that the marriage between the appellant and respondent, celebrated on the 11th August, 1930, was null and void.

Note -For report of trial in Supreme Court, vide page 109 of this volume.