The marriage implies an implicit right to conjugality or consortium or Sexual intercourse.

Right of consortium implies the corresponding duty of each spouse to cohabit with the other.
The mutual right to several intercourse(s) continues throughout the entire period of marital
life. However, if the very foundation of marriage, namely, the mutual right of consortium is
absent, the very purpose of marriage is defeated. In such eventuality, Law prescribes (a)
Divorce or (b) Decree of Nullity depending upon several factors. But whether it is Divorce or
Decree of Nullity, result is same; marriage stands dissolved and conjugality or consortium or
sexual intercourse becomes unlawful as parties remain no more husband and wife.

Non Consummation of marriage can be for two reasons,

1. Natural Cause, called as impotency.

2. Non Natural Cause which is willful refusal to consummate the marriage.

Section 12 of Hindu Marriage Act, provides for a decree of nullity of marriage, which is
voidable, on any of the following grounds:

(a) that the marriage has not been consummated owing to the impotence of the
respondent. A party is impotent if his or her mental or physical condition makes
consummation of marriage a practical impossibility.

(b) that the marriage is in contravention of the conditions specified in clause (ii) of
section 5, i.e., at the time of the marriage, any party was incapable of giving a valid
consent to it in consequence of unsoundness of mind, or if even capable of giving a
valid consent, such party has been suffering from mental disorder .of such a kind or to
such an extent as to be unfit for marriage and the procreation of children; or the other
party has been subject to recurrent attacks of insanity.

(c) that the consent of the petitioner, or where the consent of the guardian in marriage
of the petitioner was required under section 5 as it stood immediately before the
commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978),
the consent of such guardian was obtained by force or by fraud as to the nature of the
ceremony or as to any material fact or circumstance concerning the respondent; or
 (d) that the respondent was at the time of the marriage pregnant by some person other
than the petitioner.

The Bombay High Court in another landmark judgment has ruled that “non-consummation is
a valid ground to declare marriage as null.” The present case dates back to 2009 when the
woman was 21 and the man was 24. According to the woman, the man had got her to sign
blank documents and even took her before the registrar, but she did not realize it was
marriage documents. The couple from Kolhapur (Maharashtra) has been fighting litigation
since the day they got married in 2009. The woman claimed that the man had fraudulently
married her by getting her to sign on blank documents. She had sought that the marriage be
annulled, while he had opposed it.

However, the judge said that there was no evidence of fraud. But, since there was no proof
that there were sexual relations between the couple the Judge struck down the marriage.

The Court said “One of the most important objects of marriage is a regularization of sexual
relationship between the couple, and in the absence of such a relationship, the object of
marriage is lost. However, even a single incident of sexual intercourse results in the
consummation of marriage.”

“In this case, when the couple did not even live together for a single day and no evidence has
been shown by the husband when he claims that there was a sexual relationship, then in the
absence of such evidence, the woman institutes the case of non-consummation of marriage.”
 
Apart from this, the husband had claimed that the couple has had sexual relations and the
wife had even got pregnant, but the court pointed out that no evidence of the gynecologist,
about the pregnancy test, had been presented to the court. Moreover, the court said that it had
tried to advise the couple to settle their differences but had failed.

In Sri v. Smt1, n the instant case, two revision applications were heard together because the
question of law and facts were identical. The suit was filed by the wife seeking annulment of
marriage by a decree of nullity under Section 25(i) of the Special Marriage Act, 1954 and
alternatively for divorce under Section 27(1)(d) of SMA. Wife filed an application, praying

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for the potency test of the husband and the same was allowed and on that basis wife pleaded
that the marriage was not consummated, considering it a void marriage. The husband filed an
application seeking a virginity test on his wife which was rejected. The husband appeared
before the Medical Board for the said test and it was unanimously held by the Board that the
party should be referred to FMS Department, Calcutta Medical College. The husband did
appear before the Board but, he, later on, filed an application before the Court for subsequent
dates for his appearance before the board.

The trial court rejected husband’s application seeking virginity test and relied on a passage of
renowned author that stated “Virginity test is not a reliable indicator of a female having
actually engaged in sexual intercourse because the tearing of the hymen may have been the
result of an involuntarily sexual act”. The trial court further rejected the husband’s
application for extending the date of potency test before the Medical Board finding him
reluctant to appear before the Board.
The Court opined that the trial court was not justified in rejecting the prayer of the husband
for extension of time when it was apparent that the result of the test was crucial and it would
decide the fate of the parties. The application was to be allowed for the benefit of both the
parties stating that delay in the test is a loss for wife, was not considered valid for refusing the
application.