G v G
| Jurisdiction | England & Wales |
| Judge | .,Lord Phillimore,Lord Dunedin |
| Judgment Date | 08 February 1924 |
| Judgment citation (vLex) | [1924] UKHL J0208-2 |
| Court | House of Lords |
| Date | 08 February 1924 |
| Docket Number | No. 6. |
[1924] UKHL J0208-2
House of Lords
Lord Dunedin.
Lord Atkinson.
Lord Shaw.
Lord Phillimore.
Lord Blanesburgh.
After hearing Counsel, as well on Thursday the 29th and Friday the 30th, days of November last, as on Monday the 3d and Tuesday the 4th, days of December last, upon the Petition and Appeal of Robert James Douglas Graham, of Nagpur, Central Provinces, India, at present residing at the North British Station Hotel, Edinburgh, praying, That the matter of the Interlocutors set forth in the Schedule thereto, namely, an Interlocutor of the Lord Ordinary in Scotland (Lord Blackburn), of the 30th of March 1922, and also an Interlocutor of the Lords of Session there, of the Second Division, of the 7th of December 1922, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Interlocutors might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the printed Case of Jean Stuart Weston Reith or Graham, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Interlocutors complained of in the said Appeal, be, and the same are hereby, Reversed, except in so far as they find the Defender entitled to expenses: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland with a Direction to pronounce Decree in terms of the first conclusion of the Summons and to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondent the Costs incurred by her in respect of the said Appeal to this House, the amount of such Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within One Calendar Month from the date of the certificate thereof, the Court of Session in Scotland, or the Lord Ordinary officiating on the Bills during the Vacation, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
The pursuer in this case, Mr. Graham, sues his wife, Mrs. Graham, asking for a declaration of nullity of the marriage on the ground of impotency and alternatively for divorce upon the ground of desertion, the desertion being qualified as a wilful and malicious refusal of carnal intercourse. The case was defended by the defender, who denied impotency and contended that there was no relevant averment of desertion. The Lord Ordinary, after proof led, dismissed the action and to this Interlocutor the Second Division of the Court of Session adhered, one Judge dissenting and considering that the decree of nullity ought to be pronounced.
A skeleton outline of the married life of the parties is as follows. They were married on the 5th November, 1913, in Glasgow. On the 16th November they went to India where they lived together till April, 1914. In that month the wife returned to Scotland to be present at the jubilee of her father, who was a minister of the United Free Church in Glasgow. She returned to India on the 16th December, 1914, and the parties again lived together in India at Nagpur till September, 1915. Then the wife returned to Scotland to undergo an operation for appendicitis. She did not return to India. The husband was called up for military service and sent to Mesopotamia and he was not free till September, 1920. He reached Perth, Scotland, on the 13th September, 1920. The parties did not occupy the same house till the 13th November, 1920, when they came together at the house of the husband's father in Perth. On the 20th November the wife went to Glasgow and since then the parties have not met. The present action was raised on the 14th April, 1921.
My Lords, in the case of A.B. v. C.B. in 1906 (8 F., page 603), while sitting as Lord President of the Court of Session, I had occasion to lay down what I considered the law of Scotland on the matter with which we have here to deal. Neither of the learned Counsel who addressed your Lordships, and who on each side conducted this case with great carefulness and ability, attacked the statement of the law I then made, but as the matter has, so far as I know, never been actually dealt with in your Lordships' house, and as I still remain of the opinion then expressed, I think it advisable to repeat part of what I then said:
"It has long ago been settled that impotency on the part of one spouse at the time of the marriage continuing thenceforth is a ground for the avoidance of the marriage at the instance of the other, which will be given effect to unless there is a personal bar to be drawn from the solemnisation of marriage in the knowledge of both parties of the defect, or to be inferred from the extreme age at which the marriage is contracted. Further, it is now well settled that a person is in law impotent who is incapax copulandi, apart from the question of whether he or she is incapax procreandi. The only difficulty, therefore, that arises is in the proof—a proof as to which the Court is bound to be satisfied, lest marriages should be avoided either by collusion or in cases where the fact that there has been no copulation is due to wilful refusal."
After pointing out that the cases are rare where in the case of the woman structural incapacity could be proved, I proceed to say that the question still undecided by this Court is, "whether incapacity in the woman is to be confined to those cases, admittedly rare, where there is what has been termed structural incapacity." I continue:
"I see no reason so to confine it, and I am content to adopt in terms the words of a very great authority on such subjects, the late Lord Penzance, in the case of G. v. G. He said:
"The invalidity of the marriage, if it cannot be consummated on account of some structural difficulty, is undoubted, but the basis of the interference of the Court is not the structural defect, but the impracticability of consummation.""
The learned Lord Justice Clerk in this case has commented upon the use of the word "impracticability" as ambiguous. With great deference, he has missed the point of Lord Penzance's observation; he was speaking of structural incapacity on the part of the wife. The impracticability, therefore, that he was speaking of was impracticability from the point of view of the wife, not from the point of view of the husband, and therefore it is quite obvious that the use of the word excludes and does not admit, as he thinks, of the alternative of wilful refusal. I further quote with approval language which I borrowed from Sir Francis Jeune in the case of F. v. P.:
"that if it be satisfactorily proved that repeated endeavours of a potent husband, who has tried all means short of force, had been uniformly unsuccessful, it was for the Court, in the absence of any alleged or probable motive for wilful refusal, to draw the inference that the non-consummation was due to some form of incapacity on the part of the wife."
The wife here submitted herself for examination, and was examined by Dr. Haig Ferguson, an eminent gynæcologist in Edinburgh. We have his report and it affirms that there is no structural incapacity in this lady's case which would prevent the consummation of the marriage. Further, it is not matter of controversy between the parties, first, that there is no want of potency on the part of the husband, and secondly, that there never has been actual consummation of the marriage.
In the case of A.B. v. C.B., where decree of nullity was granted, I summarise the facts that I held as found as follows:—
"(1) That the marriage never was actually consummated.
(2) That the husband was able and anxious to consummate, and had more than sufficient opportunities, free from any circumstances of a disturbing nature, either mental or physical.
(3) That, short of physical force, he adopted all ordinary expedients to induce the wife to admit connection.
(4) That no reason whatever is suggested for a wilful refusal on the part of the wife, and that the whole probabilities of the case point to an opposite conclusion."
The first three apply to this case. The real question arises on the fourth. The facts of the case in A.B. v. C.B., however, provide no assistance; the facts are not fully set forth in the report, but I have procured the Session Papers in the case and after a perusal of them I arrive at the following conclusion. The wife defended, but after the husband (the pursuer) had been examined she made an offer through her Counsel to adhere to and fulfil her conjugal duties. This offer was accepted by the husband and the case sisted till a date fixed to allow the parties to come together. Just before that date the husband presented a note to the Court setting forth that the wife had still failed and asking a further extension of the sist. The wife's Counsel was instructed to oppose the motion and to ask the Lord Ordinary to fix a date for the continued proof. The Lord Ordinary accordingly fixed a date for the continuation of the proof. When the day arrived the wife's Counsel said that he was instructed to watch the case but that he would take no further part in it and lead no evidence. In these circumstances I think it can hardly be doubted that the fourth conclusion at which I arrived was well founded; but it is equally clear that the facts of that case give no help by way of analogy to the facts of this.
My Lords, to determine, as we...
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