K v K (Cause No. 6 of 1944) [1944] EACA 14 (1 January 1944)

## DIVORCE JURISDICTION

#### Before Sir Joseph Sheridan, C. J. . . . . . . . . . . . . . . . . . . .

# K. (otherwise $\hat{P}$ .) v. K.

## Cause No. 6 of 1944

# Nullity of marriage—Wife's petition—Impotence—Delay—Sincerity.

A wife, 14 years after her marriage, took proceedings for nullity on the ground that (as the fact was) the marriage had not been consummated owing to the impotence of her husband. It was not until three years after the marriage that the wife became convinced of her husband's incapacity and although the impossibility of sexual intercourse had caused unhappy relations between husband and wife she still hoped that matters might yet come right.

Held (11-10-44).—That the delay in presenting her petition did not constitute "want of sincerity" and that the petitioner was not estopped from her conduct from obtaining a decree of nullity.

Archer for Petitioner.

### Stratton holding a watching brief for Respondent.

JUDGMENT.-This is a suit by a petitioner for a decree of nullity on the ground that her marriage has never been consummated by reason of the impotence of her husband.

The parties were married in England on the 30th April, 1930, the petitioner being then 19 and the respondent 35. Since that date they have cohabited in Kenya with the exception of occasional trips to England such as are customarily made by British residents in this country. They have been engaged in farming, the carrying on of which according to the petitioner depended on her activities assisted by a small private income which she had. At the time of her marriage the petitioner, who gave her evidence with candour, said that she was not versed in the facts of life, the meaning of which she made clear when she said that her mother, with whom she had never been on very sympathetic terms, had not advised or instructed her in matters affecting the married state. It was not until 1933 that, to quote her own words, "it was tacitly understood between us that this impediment existed." There she was referring to the incapacity of the respondent to consummate the marriage, which she had begun to suspect some time previously. She gave evidence that the matriage has never been consummated owing to this incapacity and the first and principal question to be decided is whether this fact has been proved.

In the first place there is as I have said her own evidence. She told the Court how over a number of years the respondent had attempted to consummate the marriage but without success. The respondent has elected not to defend the suit and he did not appear except for the purpose of giving evidence on the issue of domicil. Medical Inspectors were appointed for the purpose of examining the parties and reporting on their capacity to consummate the marriage and whether the petitioner was a virgin. The petitioner appeared before the inspectors who reported to the Court and gave evidence at the trial. Their report in so far as it is material reads:

"We have examined the organs and parts of generation of the petitioner. We are unable to state from examination if she is a virgin but we find her to be normal and there is no impediment on her part as to why her marriage should not be consummated."

The petitioner says that from her childhood she has been accustomed to outdoor pursuits, having ridden from the age of six years and the effect of this is referred to by both doctors in their evidence. Dr. Gregory said:

"The petitioner was not a virgo intacta by which I mean the hymen was not present. It would be a very rare thing to find a woman of her age a *virgo intacta* nowadays. Ordinary athletics and horse riding tends to cause rupture of the hymen. It can even be ruptured by the ordinary menstrual flow. It would not be possible to say that there had been intercourse at all. but I formed the opinion that there had not been regular intercourse. I have only seen two cases of a virgo intacta in a woman of 25 or over in the course of my experience. It is very usual to find that a hymen has been ruptured by say athletics, games or horse-ridding. A doctor seeing a case where the hymen has been ruptured would not be able to say whether the rupture was due to sexual intercourse or games or horse-riding. In a woman who has had regular intercourse you can introduce two gloved fingers with ease, but in a woman who has not, you could only introduce one gloved finger with some difficulty. The most probable cause of this rupture of the hymen of a woman is that she indulges in athletics of some sort. If a woman say of 22, 23 or thereabouts were to come to me with the hymen absent, and she was used to riding, the preponderance of inference would be that it was due to the riding. I couldn't say that the petitioner ever had sexual intercourse."

Dr. Boyle's evidence was to the same effect. He said:

"It would surprise me to find that any woman who did a lot of riding astride was a *virgo intacta*. I could definitely say that the petitioner did not have frequent intercourse. If intercourse did take place it would have to have been very rare. If the petitioner in the early days of her married life had frequent intercourse, it would have shown at the time I examined her. The petitioner's state was consistent with her never having had sexual intercourse."

The evidence of both doctors is therefore more than consistent with the petitioner's evidence that the marriage has not been consummated.

The next evidence to which I will refer is that of Mr. Martin. This witness gave his evidence in a convincing manner and I have no reason to doubt the truth of what he said. Towards the end of 1940 the petitioner had unburdened herself to Mrs. Martin, who is a cousin of the respondent, and subsequently there were talks between him and Mrs. Martin and the respondent. The witness said: $-$

"Mrs. K. saw my wife about 1940 about her marriage troubles. My wife spoke to me and shortly after I had an opportunity of speaking to Mr. K. about it. The subject gradually developed as I spoke to him on a number of occasions, K. always insisting that Mrs. K. was physically incapable of the marriage act when I spoke to him. He used the phrase to me once or twice 'Juliana is still a virgin,' and blaming Mrs. K. for that state of affairs."

Mrs. Martin's evidence, which impressed me equally, was to the same effect, an acknowledgment by the respondent that incapacity existed but that it was the petitioner who was incapable.

On the evidence which I have set out the reasonable conclusion to come to is that the marriage between the parties has not been consummated due to the respondent's incapacity.

I now proceed to consider whether the petitioner due to the time that has elapsed since the solemnization of the marriage is debarred from succeeding in this suit. Delay, however long, in bringing a suit for nullity on the ground of impotence is not by itself a bar but may prove want of sincerity, i.e. such confluct as ought to estop the petitioner from succeeding. In this case the delay is 14 years, but there have been cases where a petitioner has succeeded and the delay has been longer. As to what constitutes disentiling want of sincerity Mr. Archer for the petitioner referred to the case of $L$ (otherwise $B$ ) $v$ . $B$ 1895, p. 274. The judgment of the President, Sir F. Jeune, is:

"The effect of the decisions as to what constitutes want of sincerity in a petitioner for a decree of nullity of marriage was considered in the House of Lords in the case of $G$ , $\nu$ , $M$ , (10 A. C. 171). In his judgment in that case Lord Selborne says: 'The real basis of reasoning that underlies that phraseology is this and nothing more than this, that there may be conduct of the person seeking this remedy which ought to estop that person from having it. This is no doubt, the true principle.

"The present seems to me a very simple case. If the petitioner could have gone back to the respondent with any hope of their living happily together, notwithstanding the impossibility of sexual intercourse. I think that she would have done so. Her letters seem to me to show this. I have no doubt, however, that the impossibility of sexual intercourse was the real cause of the unhappiness of her relations with him. This has been the root of all the trouble and bitterness, which has ended in complete separation: and it is because she has found her married life intolerable for this reason, that the petitioner has taken these proceedings. Does her conduct show insincerity? I think not. She applies for a decree of nullity, not from any ulterior motive, but because this remedy alone can put an end to her unhappiness; and she is not, as it seems to me, less entitled to relief, because her motive is not so much desire for sexual intercourse, as the wish to escape from a state of things which the impossibility of sexual intercourse has rendered intolerable."

I have carefully considered the evidence in this case and am satisfied that applying the principles set out in this judgment, the petitioner's conduct since her marriage has not been such as to estop her from obtaining a decree of nullity. It was not until about three years after the marriage that she was convinced of the respondent's incapacity and even then she hoped that matters might vet come right. In her evidence she said: -

"In May, 1938, my husband came to England. I tackled him on the subject and in the end he agreed to go and see a doctor. I know he did go and have some sort of treatment—what is was I don't know. After that treatment he made no attempt to consummate the marriage . . On return to Kenya our relations deteriorated a lot and the matter was getting on my nerves... I increased all my outside interests, started a stud farm, played polo. I felt that if I had lots of outside interests it would relieve me from thinking of the matter to which I have referred."

Matters then came to such a pass and the matter got on the petitioner's nerves to such an extent that she took her troubles to Mrs. Martin, to whose evidence I have already referred. In 1941 the petitioner came to Nairobi and took up war work and remained there till 1942. In February, 1943, the respondent came to Nairobi and asked the petitioner if she would go back and she agreed. Her evidence then proceeded: $-$

"I went back and my husband never even attempted to come near me, rebuking me all the time for having left him and I realized that it was useless to come back to him."

The petitioner said she remained on until she was satisfied that respondent, having come in for some money, was independent of her help on the farm and Mr. McKinlay, the respondent's partner was released from the Army. In June.

1943, she went to Nairobi and consulted her solicitor, Mr. Shapley, and these proceedings were lodged as a result. At first the pleadings alleged that there had been a refusal on the part of the respondent to consummate the marriage, but leave was given to amend and having read Mr. Archer's affidavit and heard Mrs. K.'s evidence on the point I am satisfied that a mistake occurred in the original pleading through "wilful refusal" being inserted inadvertently for "impotency." The marginal note to the form covering both grounds of relief is "wilful refusal" (see Rayden on divorce 4th Ed. 677). On being recalled Mrs. K. stated that she learnt from a lady friend for the first time shortly before consulting Mr. Shapley that she could obtain relief by way of a nullity suit. I have no reason to doubt the truth of this, though in the circumstances of this case I should be prepared to hold that she would be entitled to the relief she seeks even if this were not so.

Two matters remain for decision, one that of domicil, the other that the petitioner stated that though she had not formed any intention to marry again when she filed the suit she has since decided to do so. As to the first point I am satisfied that the domicil of the parties has been proved to be Kenya, this fact giving the Court jurisdiction under the Matrimonial Causes Ordinance, 1939. As for the second point, even if the petitioner prior to filing the suit had decided upon re-marriage such a motive in the circumstances of this case would not be a bar to her success in this suit ( $M$ otherwise $D$ v. $D$ 10 P. D. 75).

I grant a decree nisi with costs against the respondent.