A woman, as a condition of her marriage, stipulated that for the first year after the marriage there should be no sexual intercourse, and her intended husband consented to the condition. The parties were married on 5th November 1913, the husband being then 29 years old and the wife 34. On the 16th November they went to India where they lived together till April 1914. During this period no intercourse was attempted, the bargain of abstention being kept by the husband. In April 1914 the wife returned to Scotland with her husband’s consent. She rejoined her husband in India on 16th December 1914, and the parties again lived together in India till September 1915. During this period the wife, in spite of the fact that the period during which there was to be no sexual intercourse had expired, refused to consummate the marriage though the husband made repeated efforts to do so. In September 1915 the wife returned home to undergo an operation for appendicitis. The husband thereafter was called up for military service, and during the next five years the spouses were never together. In September 1920 the husband was released from military duties and rejoined his wife in Scotland on 13th November of that year when they came together at the house of the husband’s father in Perth, sharing the same bed from the 15th to the 20th. During the period from the 15th to the 20th the husband again attempted to have intercourse, but his efforts were repulsed. On 20th November the wife left for Glasgow and thereafter the parties did not meet again. On 14th April 1921, after the marriage had subsisted for upwards of eight years, during which however, owing to war conditions and other reasons, there were only the three periods referred to of five months, nine months, and one week, during which the spouses lived together, the husband raised an action of nullity of marriage against the wife on the ground that she was incapable of consummating the marriage. Alternatively he asked for divorce on the ground of desertion, the desertion being qualified as a wilful and malicious refusal of carnal intercourse. There was no structural incapacity on the part of the wife, and it was not disputed that the husband was vir potens.
Held (reversing the judgment of the Second Division, Lord Anderson dissenting) that the inference from the facts was that the wife’s refusal of sexual intercourse was due, not to willfulness, but to incapacity on her part to consummate the marriage, arising from her invincible repugnance to the sexual act, and that accordingly decree of nullity fell to be granted.
Judges:
Lord Dunedin, Lord Atkinson, Lord Shaw, Lord Phillimore, and Lord Blanesburgh
Citations:
[1924] UKHL 445, 61 SLR 445
Links:
Jurisdiction:
England and Wales
Family
Updated: 14 June 2022; Ref: scu.631551