Kaur v Singh

A wilful refusal to consummate a marriage may arise where a spouse deliberately fails to arrange a religious ceremony which both parties understood was necessary before married life could begin. The court assesses the conduct which actually prevented consummation. It need not be shown that the other spouse expressly refused intercourse, or that the parties first attempted to establish a matrimonial home. Where the failure to arrange the religious ceremony is the operative cause of non-consummation, it may amount to wilful refusal.

The wife appealed from the dismissal by Judge Lind-Smith at Coventry County Court of her petition for a decree of nullity based on the husband’s alleged wilful refusal to consummate the marriage. The parties had completed a civil register-office ceremony but intended also to undergo a Sikh religious ceremony, which was regarded as necessary for a full Sikh marriage. The husband repeatedly gave excuses for not arranging that ceremony and ultimately stated that he had no intention of doing so. The wife thereafter did not live with him, and the parties never had intercourse. The central issue was whether the husband’s failure to arrange the religious ceremony constituted wilful refusal to consummate.

1. Appeal allowed. The decree of the county court was set aside and a decree nisi was granted, with the appellant receiving her costs here and below.
2. The husband’s conduct was the operative cause of the non-consummation. From the civil ceremony onwards he entirely failed and refused to arrange the Sikh religious ceremony, thereby failing to implement the marriage. On those facts, he wilfully refused to consummate it.
3. The wife’s case did not depend on proof that she had expressly refused intercourse. There was no evidence that the husband had approached her or attempted to persuade her to live with him. That absence did not prevent the court from finding wilful refusal where the husband’s own failure had made consummation impossible in the circumstances contemplated by the parties.
4. Jodla v Jodla, reported at [1960] WLR 236, was indistinguishable. In that case, the husband’s failure to arrange the intended religious ceremony caused the non-consummation, notwithstanding the wife’s refusal to live with him until the ceremony occurred. The present case was stronger because the husband never again approached the wife.
5. Lord Justice Karminsky noted that, where only one party is represented, the court may use section 6 of the Matrimonial Causes Act 1965 to obtain assistance from counsel instructed under the direction of the Attorney-General on questions requiring full argument. This was practical guidance rather than a necessary ground of decision.

• Court of Appeal: Allowed the wife’s appeal from the dismissal of her petition by Judge Lind-Smith at Coventry County Court. Decree nisi granted.
• Coventry County Court: The wife’s petition for nullity was dismissed on 10 March 1971.