Judiciary in the bedroom: Should impotency tests be made mandatory before marriage?

In a landmark observation, the Madurai bench of the Madras High Court on Thursday directed the Central and Tamil Nadu governments to respond to five queries, including one asking whether it was not necessary to make pre-marital clinical examinations for them mandatory. The court took this view, observing a quick rise in divorce petitions due to “impotency” and “frigidity”. Justice N Kirubakaran stated this in his interim order, on a petition filed by a man seeking to quash proceedings pending before the District Social Welfare officer in Theni on a complaint by his wife under the domestic violence act. “Why can’t the Governments amend the Marriage Act to fast track matrimonial cases filed on the ground of impotency and frigidity and complete them within six months or one year? The governments could also think of including provision for awarding Compensation/punishment for suppression of “Impotency/Frigidity,” he said. [caption id=“attachment_1155675” align=“alignleft” width=“380”]  Representational image: Reuters[/caption] The judge went on to call the divorces on the grounds of impotency and frigidity avoidable ‘serious problems and human tragedies’ and asked the governments to think about how to resolve the issue. Referring to statistics, justice Kirubakaran said that the number of marriages which had failed due to impotency had increased from 88 in 2009 to 715 in 2013 as per the records of the Chennai family court. The obervation of the court came on the basis of a case where the marriage between the petitioner and his wife, an IT (M.Sc) graduate, had allegedly failed due to impotency. Now the wife has filed for divorce. “In these type of cases, marriages are conducted suppressing the weakness or disability of one of the partners and mostly marriages are conducted to avoid social stigma or at the compulsion of the elders,” the judge said. “The issue requires urgent attention by discussion as well as preventive measures have to be taken.” No sooner had the observations of the court became public, views came to the fore both in opposition and in support. “This is gross invasion on the privacy of the person. Marriage is an act of good faith which one party reposes on the other. Marriage should be based on truth which both the parties should share before marriage in good faith. Tomorrow men will claim they want a virginity test on the women. How far are we supposed to go? Marriage as an institution is already crumbling. This would make things even worse,” Supreme Court lawyer Kamini Jaiswal told CNN-IBN during a debate. Journalist Anna MM Vetticad did not agree with the views of the Supreme Court lawyer. “I welcome the observation of the court. Twenty to thirty percent of divorces happen because of sexual dysfunction of one of the two partners. The tests would save the man from facing the humiliation of letting the whole world know that he is impotent. So the pre-marital tests as suggested by the court would save the men from possible humiliation. But none of the parties should be legally bound to reveal the result of the other party in public,” Vetticad said. She also felt that the observation of the court is not an “invasion of privacy at all” and rather “saves the man and the woman from the trauma of marriage”. However, the lawyer begged to differ. She observed that even if the individuals positively clear the potency test that does not gurantee a happy a conjugal life. “A perfect sexual relation may not be established for many reasons like anxiety, tension, disinterest, interest on others etc. even the person is potent. This does not necessarily mean that the person is impotent. If the man fails in the pre-marital test in a clinic, he would be labelled impotent for life. And if the both the man and woman gets into marriage and if relative impotency sets in what does the lady do?” Jaiswal asked. Sexologist R Bhonsle, who also participated in the debate, gave an interesting medical perspective to the whole potency test topic. “Actually 90 percent cases of so-called impotency are psychogenic or psychologial. In many cases a good sexual relationship may not be established because of situational or relational issues. There is no test to confirnm till date that a man is impotent for a biological reason. There is also no exact test to decide whether a person will get erection or not. Similarly, there is no method to examine a women and suggest frigidity because of biological reasons. There are tests which might suggest so but none cannot establish any result beyond doubt. A semen examination can only tell about fertility and not potency,” Bhonsle said. The observations made by the court are not a part of a judgement and it is amply clear that there is much room for debate.