These are provided for under Section 14 of the Matrimonial Causes Act so by reason of being in this Act means that they only apply to statutory and Hindu marriages. Statutory marriages because it is provided that marriages under this Act are those contracted under the Marriage Act or Christian Marriages and Divorce Act.
Difference between nullity and divorce
In effect when one goes to court to ask marriage to be declared null and void you essentially saying that there was never a marriage but when you seek divorce you acknowledge the marriage and seek to annul it. Grounds for nullity are different from grounds for divorce.
GROUNDS OF NULLITY
1. Where the husband is impotent where the parties are physically incapable or consummating the marriage. Consummation is the sexual intercourse between the parties after the marriage is solemnised and in D.E. V. AG 163 E.R it was stated that in order to amount to consummation the sexual intercourse must be ordinary and complete sexual intercourse. In this case the wife had a physical deformity that made full penetration impossible and it was held that this amounted to physical incapacity to consummate the marriage and it was declared null and void. Physical deformities which make consummation difficult must be those which cannot be corrected. If they can be corrected, courts are reluctant to declare such a marriage null and void. Refer to S. V. S (1956) P 1 . The use of contraceptives will not affect a marriage and this was the case in Cowen v. Cowen (1945) 2 II E.R. 1946
Baxter v. Baxter
The fact that a husband or wife is sterile will not affect consummation of marriage
R V. R (1952) ITLR 1201
2. Wilful refusal to consummate the marriage: This is where a party refused to consent to any sexual intercourse and that refusal must be steadfast and determined.
S V. S this case dealt with both physical incapacity as well as wilful refusal to consummate. In this case the consummation of the marriage was prevented by a physical defect in the wife which was curable. The husband suggested to the wife that she should consult a doctor but the wife delayed in consulting the doctor.
The husband then petitioned for nullity of the marriage on the grounds that of incapacity and wilful refusal to consummate. Upon service of the petition the wife expressed a willingness to undergo the necessary operation which she underwent and which removed the defects. It was held that the husband had not proved that failure of the wife to see the doctor amounted to wilful refusal. Her conduct was merely a state of indecision and mere neglect to comply with the husband’s request was not necessarily the same as refusal.
The petition therefore failed on the ground of wilful refusal and it also failed on the ground of incapacity on the ground that consummation of the marriage was not practically impossible especially since the result of the operation was to remove any impediment in consummation. When it comes to wilful refusal, it need not be contractual as it was stated in Jodla v. Jodla and Kaur v. Singh.
The facts in both cases are very similar and in both cases the husbands were supposed to organise on their marriage ceremonies. In Jodla the marriage was supposed to be a church ceremony while in Kaur it was a Hindu ceremony and in both cases the husbands failed to organise for the ceremony as a result of which the wives refused to consummate the marriages on religious grounds. It was held that wilful refusal was on the part of the husbands and not on the wives because they had failed in a crucial consummation exercise which was crucial.