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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> C. v. C [1876] ScotLR 13_463 (24 May 1876) URL: http://www.bailii.org/scot/cases/ScotCS/1876/13SLR0463.html Cite as: [1876] SLR 13_463, [1876] ScotLR 13_463 |
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Page: 463↓
[
Impotency on the part of the woman, whether congenital or not, is a ground for declarator of nullity of marriage.
The pursuer in this action sought a declarator of nullity of marriage against his wife on account of her impotency. The action was not defended. The Lord Ordinary assoilzied the defender, on the ground that whereas it was alleged in the libel that this impotency was congenital, the import of the evidence was that it was rather the result of age, the woman being 54 years old at the date of the pretended marriage, and that therefore the ground of action had not been established.
The pursuer reclaimed.
Authorities— Liber officialis sancti Andreæ, published by the Abbotsford Club, Nos. 138, 137; Williams v. Humphrey, 30 L. J. (Mat. Cases) 73, Swabey and Trisham, 240; H. v. P., July 15, 3 L. R. 126; G. v. G., June, 22 1871, 2 L. R. (Prob. and Mat.) 287.
At advising—
But it may, I think, be safely affirmed as the result of all the authorities that inability to copulate arising from such a physical obstruction in the woman as cannot be removed or remedied without danger to her life or the infliction of bodily pain, plus quam tolerabile, constitutes impotency on her part.
Persons beyond the age when procreation of children may be expected, may marry without hope of issue, but with the expectation of real commixtio corporum, which is the proper consummation of marriage, and the disappointment of that expectation by impotency arising from irremediable physical obstruction in the woman may entitle the man to a decree of declarator of nullity.
I am of opinion that such an irremediable physical obstruction to copulation has been proved to exist in the defender in this case, and that the pursuer is therefore entitled to judgment declaring the marriage null.
I cannot concur in the technical ground of judgment adopted by the Lord Ordinary, which in my opinion proceeds on too strict a reading of the summons.
The Court pronounced the following interlocutor:—
“The Lords having heard counsel for the pursuer—no appearance being made for the defender—on the reclaiming note for the pursuer, against Lord Craighill's interlocutor, dated 9th December 1875, Recal the said interlocutor: Find and declare the pretended marriage betwixt the pursuer and defender to have been from the beginning, to be now, and in all time coming, null and of no avail, force, strength, nor effect, with all that has followed thereupon; and divorce and separate the defender from the pursuer's society, fellowship, and company; and find and declare the pursuer to be in such case and condition as he was before the said pretended marriage, or as if he had never been contracted or married to the defender, and decern.”
Counsel for Pursuer— Fraser— Mair. Agent— William Officer, S.S.C.
