A v B (Cause 2/1932.) [1932] EACA 36 (1 January 1932)

## DIVORCE JURISDICTION.

## Before LUCIE-SMITH, J.

A. $(Petitioner)$

v.

B. (Respondent).

## Cause $2/1932$ .

- Nullity of marriage—Consummation—Permanent impotence— Onus of proving on petitioner—Presumption—Period of cohabitation—Validity of marriage performed by person not authorized—The Marriage Ordinance, Cap. 167 of the Revised Laws. - $Held$ (21-4-32):—That a marriage celebrated by a person not duly<br>authorized may be a valid marriage. That failure to defend a petition for nullity does not *ipso facto* justify presumption of<br>impotence and that the onus rests on petitioner of satisfying:<br>Court as to allegations in petition—Court will not presume in-<br>vincible repugnance until a re elapsed. (See C. A. 9/1932 of the Court of Appeal for Eastern Africa at page 21).

Barrett for Petitioner.

Hogán for Respondent.

$JUDGMENT$ —This is a petition presented by A., praying the Court for a declaration that the marriage celebrated between himself and the respondent on 11th August, 1930, at Mombasa, is null and void on account of the permanent impotency of the respondent at the time of the marriage. The petition is presented under section 13 (1) (a) of Cap. 170 of the Laws of Kenya.

The requisites of a valid marriage according to English law are laid down in Halsbury as-

(1) that each of the parties should as regards age, mental capacity, and otherwise, be capable of contracting marriage;

- (2) that they should not by reason of kindred or affinity be prohibited from marrying one another; - (3) that there should not be a valid subsisting marriage of either of the parties with any other person; - (4) that the parties understanding the nature of the contract should freely consent to marry one another; and - (5) that certain forms and ceremonies should be observed.

Early in the hearing of the petition it came to light that the marriage alleged to have been had was purported to have been performed by a Resident Magistrate and Acting Deputy Registrar (of the Supreme Court) at Mombasa.

The marriage law of this Colony is Cap. 167 of the Laws of Kenya. Under section 4 of that Chapter the Governor has power to appoint registrars and deputy registrars of marriages. These registrars and deputy registrars must not be confused with the Registrar and Deputy Registrar of the Supreme Court. Section 28 lays down that after certain preliminaries the parties may, if they think fit, contract a marriage before a registrar (of marriages) in the presence of two witnesses in his . office. This is the course that was supposed to have been followed. in the present case.

Unfortunately the Resident Magistrate and Acting Deputy Registrar at Mombasa was not a registrar or deputy registrar of marriages duly appointed under section 4 of the Chapter.

The first question to which we must direct our minds is, was there in view of the circumstances any marriage celebrated between the parties.

In considering this question it must always be borne in mind that all legal presumptions are in favour of the validity of a marriage. Catterall v. Sweetman (1845), 1 Robert 304, and Genge v. Thyer (1904) 1 Ch. 456. See also 55 & 56 Vict. 13 (2). Our own law lays down in section 35 that: "all marriages -celebrated under this Ordinance shall be good and valid in law to all intents and purposes." Section 34 (2) lays down that a marriage shall be null and void if both parties knowingly and wilfully acquiesce in its celebration, inter alia, by a person not being a registrar of marriages, and sub-section (3) that: "No marriage shall, after celebration, be deemed invalid by reason that any provision of this Ordinance other than the foregoing has not been complied with."

The whole question then would appear to turn on the meaning of the word " celebration " in the sections to which I have referred. Webster, in his New International Dictionary, defines celebration as to perform publicly with appropriate rites, and again, as to make known, proclaim, publish abroad. The same authority states that it is synonymous with "solemnize," which is to perform (commonly the marriage ceremony) in accordance with some ritual.

Now it appears to me that a "celebration" can take place even though the "celebrant" is in no way qualified or -authorized to perform such celebration. Are the parties to such a celebration to be made to suffer through the lack in the celebrant of such qualification or authority when such lack is outside their ken and where to the best of their knowledge everything is in order?

Following the trend of Sir William Scott in Lord Hawke v. Corri, calling herself Lady Hawke, 161 E. R., p. 743 at p. 746: and of Dr. Lushington in Dormer v. Williams, 163 E. R., p. 301 at p. 303, and in view of the fact that in this case there is no suggestion whatever that the parties knowingly and wilfully acquiesced in the celebration by a person not being a registrar of marriages, I hold this marriage to be good and valid in law for all intents and purposes under section 35 of our law.

Before leaving this point I feel that inquiry should be instituted as regards the manner in which such a blunder came 'to be made, and (as I understand that this is not the only marriage celebrated by the then Resident Magistrate, Mombasa) that the advisability of setting at rest any doubts which may in the future arise as to the validity of any such marriages and the status of any children born thereof should be considered by the proper authority.

We will now turn to a consideration of the petition, the facts alleged therein and the proper inferences to be drawn from the evidence adduced before the Court.

The marriage sought to be nullified was celebrated at Mombasa on the 11th August, 1930. They stayed together at the Manor Hotel for two or three days when they proceeded to Nairobi, where they occupied the same room at an hotel. The petitioner states on oath that both at Mombasa and Nairobi he attempted sexual intercourse with his wife several times, but was always rebuffed. I accept his evidence. The couple then proceeded to Timau, where they stayed with friends as their house was not ready for them. They stayed with these friends for ten days, both occupying the same room, and petitioner -again made several attempts to consummate the marriage and was again repulsed. Petitioner states that on the occasions on which he attempted to assert his marital rights the respondent always resisted him—that she showed no signs of affection towards him, but on the contrary showed aversion. After the ten days at the friend's house Mr. and Mrs. A. went to their own house, where, after a few days respondent left the petitioner and returned to England. There is no evidence that petitioner made any further attempts after leaving his friend's house, so that it was only for a period of fourteen days that petitioner sought to win his wife.

The medical examiners appointed by the Court report that the petitioner is sexually normal. The respondent has not presented herself for examination, but one must bear in mind a phrase in a letter written by her on the 31st October, 1931. where she says "I would like to marry 'X.'"

Dr. Gregory has told the Court that there is a certain form of hysteria which in some cases cannot be controlled, which renders the sufferer incapable of submitting sexually to a particular person though quite willing to submit. He further says that in genuine cases of such hysteria the refusal to submit would be quite involuntary. The witness then leaves the general for the particular and says that he has formed the opinion that the respondent's refusal in this case was involuntary.

In the case of Graham v. Reith or Graham, 40 T. L. R. 322, Lord Shaw of Dunfermline says that "there may be cases rare and extreme cases they, of course, must be-in which incapacity is established de facto to exist, that incapacity not being a mere hostile determination of the mind arising from. obstinacy or caprice, but such a paralysis and distortion of will as to prevent the victim thereof from engaging in the act of consummation. From this paralysis and powerlessness the incapacity arises. I have said that these instances are rare and most extreme, while, of course, Courts of law must be alert to dissever them and differentiate them from cases arising from any minor cause such as the obstinacy to which I have referred."

Sir James Hannen, in $P$ . $v$ . $L$ . (note in 3 P. D. at p. 73), would appear to lay it down that what a petitioner must prove before he can get relief is not that there was no physical impossibility of consummation, but that the respondent was not really and truly in nature a woman.

Lord Phillimore, in Graham v. Reith, required that the evidence must prove "invincible repugnance," "invincible" in the full sense of unconquerable, and uncontrollable nervous condition which is physical and creates nullity.

Now what has been proved in this case? A young couple (he was thirty and she eighteen) get married, and the husband lays siege to his wife's person for a period of fourteen days. She a young girl and a stranger in a strange country resists him during that short period. There may have been a dozen reasons for such resistance other than invincible repugnance.

The older authorities lay it down that impotence will not be presumed by the Courts unless there had been three years cohabitation, H. v. H., L. J. Mat. 105, H. v. H., 10 L. T. 787, but that rule has been relaxed in more modern times.

I have been through a great number of reported cases, and the shortest period of cohabitation accepted by the Courts that I can find is one of three months, T. v. T. (1854), Ecc. & Ad. 389.

The average period calculated from thirteen reported cases works out at $52\frac{1}{2}$ months. In view of the shortness of time during which the parties lived together I feel that I must refuse to grant 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. Should the parties come together again and after a reasonable lapse of time the respondent still refuses to carry out her wifely duty towards her husband then the petitioner can make fresh application to the Court.

Petition dismissed with costs to respondent.