Symonds v Symonds (pet dis)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE DONOVAN,LORD JUSTICE DAVIES |
| Judgment Date | 28 May 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0528-3 |
| Date | 28 May 1962 |
| Court | Court of Appeal |
[1962] EWCA Civ J0528-3
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Willmer
Lord Justice Donovan and
Lord Justice Davies
Mr. JOHN LATEY, Q. C and Mr. W. R. K. MERRYLEES (instructed by Messrs Waterhouse & Co., Agents for Messrs Few & Kester, Cambridge) appeared on behalf of the Appellant (Husband).
Mr. JAMES COMYN, Q. C. and Mr. J. D. F. MOYLAN (instructed by Messrs Ginn & Co., Cambridge) appeared on behalf of the Respondent (Wife).
I shall for convenience refer to the parties as the husband and the wife. It is not to be thought that in taking this course I am begging the question that has to be decided.
By his petition, dated the 6th Nay 1959, the husband prayed for a decree of nullity, alleging that his marriage had never been consummated and that the wife was incapable of consummating it. The wife by her answer denied that she was incapable of consummating the marriage. She alleged in the alternative that, if the marriage was not consummated, the husband consented to and acquiesced in its non-consummation, and thereby approbated the marriage, so as to be barred from obtaining relief for want of sincerity. The case was heard before Mr. Justice Karminski on the 27th, 28th and 29th June, 1961. The learned Judge found himself unable to say that the wife, if given medical treatment, was incapable of consummating the marriage, and on that ground dismissed the petition. In such circumstances, the question of approbation did not arise for decision; but having heard a good deal of evidence relevant to that issue, the learned Judge expressed the view that the circumstances relied on by the wife fell short of showing any lack of sincerity or approbation on the part of the husband. The husband has appealed to this Court, contending that on the facts proved he was entitled to a decree. The wife, by a cross-notice which we gave leave to file out of time, invites this Court to hold, if necessary;' that the learned Judge was wrong in finding that the husband had not approbated the marriage.
The ceremony of marriage was celebrated on the 8th October, 1955, the husband at that time being 23 and the wife 21 years of age. The parties lived together at an address in Cambridge until November, 1958, when the husband left the wife. It is common ground that the marriage was never consummated in spite of frequent attempts at sexual intercourse. Further, itis not in issue that the failure to achieve consummation was due to a defect in the wife's sexual organs. The main question in dispute has been whether that defect was incurable, so as to render the wife incapable of consummating the marriage.
In stating the material facts it is necessary to go back some years before the marriage ceremony. In November, 1951, when the wife was a girl of 17, she was taken by her mother to Addenbrooke's Hospital in Cambridge because she had never menstruated. There she was examined by Miss Bottomlpy, a consultant obstetrician and gynecologist, who found that though all her external sex characteristics were perfectly normal she had no, or virtually no, vagina and no uterus. She was advised that she would never menstruate, that she would never be able to bear children, but that if and when she wanted to get married it would be possible, with an operation, to construct an artificial vagina.
Shortly after that the wife met the husband, and it is clear that they became fond of each other. The husband at that time was serving in the Royal Air Force, and for a considerable period, about 1952, was stationed in Egypt. But both before and after that period husband and wife were regularly associating with each other, and it is not in dispute that there were several occasions when sexual intercourse was attempted. The husband said there were three such occasions; the wife asserted that there were rather more. The exact number does not matter. The husband had admittedly had previous sexual experience, having had intercourse with at least two other women, by one of whom he had a child. The circumstances in which the parties attempted intercourse before marriage were not very favorable, but from his prior experience the husband was made aware that there was some abnormality in the wife. He was unable to achieve penetration, but he said that at the time he attributed his failure to the conditions in which the intercourse was attempted. When the parties came todiscuss the question of marriage the husband, as is agreed, told the wife of his previous sexual experience and that he had a child for which he was paying. She on her part told the husband that she could never have children. According to the evidence of the wife, which the learned Judge appears to have found acceptable in this respect, he agreed to accept her on those terms. She said, at Day 2, page 29: "He did not mind the way I was. He said he did not mind because it made it quits, like, the same, being as he had got a child and I could not have them, maybe other girls would not like to go with him". She added: "He said he did not mind because he would always be able to do his part".
After the marriage, attempts at sexual intercourse were regular and frequent but, as was to be expected in view of the wife's physical defect, the husband never succeeded in obtaining anything approaching full penetration. At first the parties appear to have been perfectly happy, but as time went on some degree of friction between them developed; there were frequent quarrels, and by 1958 the wife was suffering from nervous trouble for which she received treatment from her doctor. How far the quarrelling and the wife's nervous trouble were attributable to the unsatisfactory sex relations it is impossible to say. However, some time in the summer of 1958 the husband suggested to the wife that she ought to obtain medical advice. This wife was perfectly willing to do, and as a result she was again examined by Miss Bottomley on the 2nd September. On this occasion Miss Bottomley found there was a passage, or the beginnings of a passage, about an inch long, the existence of which she attributed to the husband's attempts at sexual intercourse. She took the view that the passage could be developed over a period of time by further attempts at intercourse, and that this would be assisted by the use of a dilator, which she prescribed. She also had in mind that, if necessary, an operation could still be performedto create an artificial vagina. The wife duly used the dilator, as prescribed and further attempts at intercourse took place. Unhappily, however, the parties continued quarrelling, and were not on good terms. In this situation the wife again saw Miss. Bottomley on the 28th October, and by this time it was found that the passage had increased in length by about half an inch. Miss. Bottomley recommended the continued use of the dilator, and hoped that this, together with regular intercourse, would result in time in developing a passage which would enable the husband to achieve substantially full penetration.
At the same time Miss. Bottomley discussed with the wife the possibility of having an operation, and had the impression that the wife was willing to do whatever she was advised was best for her. The wife herself said in evidence that she was quite willing to undergo an operation, and, though the husband said that she appeared to shilly-shally about it, the learned Judge accepted the wife's evidence in this respect, and found that at the end at least she expressed her willingness to have the operation. No final decision, however, had actually been reached when the husband abruptly left the wife on the 9th November. Consequently, the operation was never performed, and when the husband launched the present proceedings in Hay, 1959, the wife was still in the same physical condition. Miss Bottomley did in fact see the wife again on the 7th January, 1959, but since by that date the husband had already left the wife, the question of an operation was shelved. On the 30th June, 1960, the wife was examined by two medical inspectors appointed by the Court, Dr Levy and Dr Craigen, whose reports are before us. Dr Levy reported: "On vaginal examination the appearance of the introitus was normal. No hymen or hymeneal tags were palpable or visible. The vagina was short and measured only about two inches fromthe orifice, (the normal measurement is about three and one half inches). There was no cervix or uterus palpable. Mrs. Symonds stated that she had never menstruated. Mrs. Symonds is not a virgin in so far as the hymen is not intact, but the shortness of the vagina constitutes an impediment to the full consummation of marriage. There is a plastic operation that might be undertaken for the removal of this impediment but in my opinion there is not possible guarantee of the success of such a procedure". Dr Craigen's report was fuller, but to the like effect. He said: "On vaginal examination, however, the vagina would only admit one finger to two inches. There is no hymen palpable or visible. The uterus and cervix were not palpable. The ovaries were not palpable. Conclusion: This lady has a congenital abnormality of development. She has what is called a vaginal astresia. This means that presumably two thirds of the vagina is absent. In all probability the uterus is only a vestige, but the ovaries are apparently producing their normal hormone. The narrowing of the vagina occurs at above the normal position of the hymen which one would expect to have been present beforehand. This however is not so now, and she is therefore not technically a virgin. Final Comments: I have examined this woman and can state first of all that she is not a virgin, but that she has a physical impediment which would prevent the normal consummation of marriage. This impediment prevents normal intercourse which can never have taken...
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