Wakilii

A v B (Cause 2-1932.)

East African Court of Appeal · [1932] EACA 36 · 1932 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Petition for nullity of marriage on grounds of permanent impotence
Decision
Petition for nullity dismissed; marriage remains valid

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A marriage celebrated by a person not duly authorized as a registrar may be valid where the parties did not knowingly and wilfully acquiesce in the irregularity. Failure to defend a nullity petition does not justify presumption of impotence. The petitioner bears the onus of proving permanent impotence. The court will not presume invincible repugnance after only fourteen days of cohabitation. Petition dismissed.

Outcome

Petition for nullity dismissed; marriage remains valid

Facts

The petitioner and respondent married on 11 August 1930 at Mombasa. The marriage was performed by a Resident Magistrate and Acting Deputy Registrar who was not a duly appointed registrar of marriages under the Marriage Ordinance. After the ceremony, the parties stayed together at hotels in Mombasa and Nairobi, then with friends at Timau for ten days, occupying the same room throughout. The petitioner attempted sexual intercourse several times over a fourteen-day period but was rebuffed by the respondent, who showed aversion and no affection. The respondent then left and returned to England. The petitioner filed a nullity petition alleging the respondent's permanent impotence. The respondent did not present herself for medical examination. Medical evidence showed the petitioner was sexually normal. A doctor testified that certain forms of hysteria could render a person incapable of submitting sexually to a particular person, though willing generally.

Issues

  1. Whether a marriage celebrated by a person not duly authorized as a registrar of marriages is valid.
  2. Whether the respondent's permanent impotence at the time of marriage has been established.
  3. Whether fourteen days of cohabitation is a sufficient period to establish invincible repugnance amounting to impotence.

Orders

  • Petition dismissed.
  • Costs awarded to respondent.

Rules and key headnotes

Family Law — Nullity of Marriage — Validity of Marriage Ceremony — Unauthorized Celebrant
A marriage celebrated by a person not duly authorized as a registrar of marriages may be valid in law where the parties did not knowingly and wilfully acquiesce in the celebration by an unauthorized person, and all legal presumptions favour the validity of a marriage.
Evidence — Burden of Proof — Nullity Petitions — Impotence
In a petition for nullity on grounds of impotence, the onus rests on the petitioner to satisfy the court as to the allegations in the petition. Failure by the respondent to defend does not ipso facto justify a presumption of impotence.
Family Law — Nullity of Marriage — Impotence — Invincible Repugnance — Period of Cohabitation
The court will not presume invincible repugnance amounting to impotence until a reasonable period of cohabitation has elapsed. Fourteen days of cohabitation is insufficient to establish permanent impotence where the respondent's refusal may be attributable to youth, innocence, and nervousness rather than unconquerable physical incapacity.
Statutory Interpretation — Marriage Ordinance — Celebration — Meaning and Effect
Under the Marriage Ordinance, a celebration can take place even though the celebrant is not qualified or authorized to perform it. Section 35 provides that marriages celebrated under the Ordinance are valid, and section 34(3) provides that no marriage shall be deemed invalid after celebration by reason that any provision other than knowing and wilful acquiescence in an unauthorized celebrant has not been complied with.

Legislation cited (6)

  • Marriage Ordinance Cap. 167 s.4
  • Marriage Ordinance Cap. 167 s.28
  • Marriage Ordinance Cap. 167 s.34(2)
  • Marriage Ordinance Cap. 167 s.34(3)
  • Marriage Ordinance Cap. 167 s.35
  • Cap. 170 s.13(1)(a)

Cases cited (9)

  • Gatterall v Sweetman (1645) 1 Robert 304
  • Genge v Thyer (1904) 1 Ch 456
  • Lord Hawks v Corn (161 ER 743)
  • Dormer v Williams (163 ER 301)
  • Graham v Reith (40 TLR 322)
  • P v L (3 PD 73)
  • H. v. H., L.J. Mat. 105
  • H v H (10 LT 787)
  • T v T (1854) Ecc & Ad 389

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

A v B (Cause 2-1932.) [1932] EACA 36 (1 January 1932)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.