One of the grounds to annul the marriage is when there is a wilful refusal to consummate the same. Section 70 (b) of the Law Reform (Marriage and Divorce) Act 1976 provides as below:
“Grounds on which a marriage is voidable
70. A marriage which takes place after the appointed date shall be voidable on the following grounds only, that is to say:
(b) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it;”
Based on the provision above, it is clear that the wilful refusal must come from the side of the respondent and not from the petitioner.
The Law
What is the definition for a wilful refusal and how do you determine so? Unfortunately, there is no definition of a wilful refusal to consummate. Lord Jowitt LC in Horton v Horton [1947] 2 All ER 871 had this to say:
“My Lords, I do not think it desirable to attempt any definition of the phrase ‘wilful refusal to consummate the marriage’. The words connote, I think, a settled and definite decision come to without just excuse, and, in determining whether there has been such a refusal, the judge should have regard to the whole history of the marriage.”
Based on the above, it is clear that in order for a party to allege a wilful refusal to consummate, the refusal should not be accompanied with a just excuse.
This principle was reiterated in the case of Jodla v Jodla [1960] 1 All ER 625, wherein Hewson J had referred to the case of Horton v Horton above and decided that for there to be a wilful refusal, there must be a refusal to consummate without just excuse. Therefore, is the respondent in a petition could show that the refusal was with a just excuse, the petition shall be dismissed. Hewson J stated as below:
“The real point in the present case is that each party says that the other wilfully refused to consummate the marriage. To be a wilful refusal there must, in my view, be a refusal without just excuse, and for this proposition I was referred by both counsel to Horton v. Horton”.
For example, it is a ‘just excuse’ for refusing to consummate the marriage on the ground that the religious ceremony has not taken place, if the parties have previously agreed that a civil marriage shall be followed by a religious ceremony. A party’s refusal to go through the religious ceremony is a failure to implement the agreement and by itself amounts to a wilful refusal to consummate the marriage.
Example of Cases
In Kaur v Singh [1972] 1 WLR 105, a marriage was arranged between two Sikhs. A civil ceremony took place, but by Sikh religion and practice, a religious ceremony was necessary in order for the marriage to be effective, religiously. It was the husband’s duty to arrange for the religious ceremony. However, he refused to make the necessary arrangements. Therefore, in that case, it was held that the wife was entitled to annul the marriage on the ground of the husband’s wilful refusal to consummate.
Further, in the abovementioned case of Jodla v Jodla, both the parties were Roman Catholics. They had registered their marriage and they had also agreed to have a church ceremony before the marriage could be consummated.
After the registration of the marriage, the wife had asked the husband to do the church ceremony multiple times, but the husband had refused. Thus, the wife was granted the decree of nullity owing to the wilful refusal of the husband to consummate the marriage. Such wilful refusal on the part of the husband would have been just cause for the wife – having regard to their faith – to have refused intercourse if it had ever been requested.
In the case of Tan Siew Choon v Tan Kai Ho [1973] 2 MLJ 9, the parties who were both Chinese had registered their marriage at the Registry of Marriages in Singapore. They had agreed that a following ceremony according to the Chinese custom was to be held after the registration of the marriage. However, the respondent in this case had made no attempt to conduct the Chinese ceremony. The petitioner, after waiting for several months had discovered that the respondent was engaged to marry another girl instead. Therefore, it was held that the marriage was to be annulled and void owing to the wilful refusal of the respondent to consummate the marriage.
Meanwhile, in the case of Rathee v Shanmugam [1981] 1 MLJ 263, the parties who were both Hindus had registered their marriage at the Registry of Marriage, Ipoh. They had agreed to celebrate the marriage according to the rites of the Hindu religion and that was fixed about two months after the registration of marriage. However, the respondent had refused to conduct the religious ceremony. In fact, he had no intention in proceeding with the same. He also had told the petitioner that he would like to have nothing more to do with her. This was a clear refusal from the side of the respondent. Hence, the court had granted a decree of nullity of the marriage due to the wilful refusal of the respondent to consummate the marriage.
On the other hand, in Potter v Potter (1975) 5 Fam Law 161, the failure to consummate the marriage originally resulted from a physical defect in the wife. This was cured by surgery. The husband then made one further attempt to consummate the marriage, but the wife’s emotional state following the operation was such that this was unsuccessful. Thereafter, the husband refused to make any further attempts. The wife in this matter had failed in her petition to nullify the marriage by alleging the husband’s wilful refusal to consummate the marriage. It was held that his failure to consummate resulted from natural, and not deliberate, loss of ardour.
Conclusion
Non-consummation of marriage can be a ground for a party to file a petition for nullification of the marriage. However, if the petitioner is asserting that the marriage was not consummated due to the wilful refusal of the respondent, it must be proven that the refusal was without a just cause.
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