When they went to Kurrachee, there was a room set apart for them, in which there was but one bed. She refused to sleep with him on the night of their arrival. He slept that night on the sofa. The rest of the time they slept together, he insisted on that, as he said he would not sleep on the sofa, but he said he would not touch her. He said that because the previous evening when she so decidedly said she would not sleep in the same bed with him, he said again “Cannot we make this matter up” &c., “If we were friends we might have a child and things would go better.” She said in the strongest way that if she had a child she would hate it, and that she would not sleep with him. When he spoke of having a child he believed his capacity had improved, and that he could have done his duty as a husband. At Kurrachee he made no attempt, nor ever afterwards, because her whole conduct to him was repeatedly antagonistic, insulting and disagreeable; it was the very last thing he would have thought of. He never heard until this action was raised that she complained of his failure of duty. Dr. Sidney Smith came to know of his failure and gave him some prescriptions which he did not take, because at that time his wife's conduct had done away with all affection for her.
Cross-examined:—He never had connection with his wife or with any other woman before or after his marriage. His wife was a very handsome young woman. As a boy he had been addicted to a vicious practice, but did not continue it after fifteen years of age and the practice then entirely ceased. Even after there was a coldness between him and his wife, she did not repel his advances. He never approached her or tried to have connection. It was impossible for him to say when or where he offered to make it up with her, but she would not let him embrace or kiss her.
The respondent examined:—She had become attached to the appellant. On the first night after the marriage he made only one attempt to have connection with her. He made later other attempts. She never resisted him in any way. All the remark he made was that he was nervous. From the time they returned to Bombay from the honeymoon till they left for Kurrachee the appellant endeavoured to have connection with her at intervals of two or three nights, but he never succeeded. The last time the appellant attempted to have connection with her was in February—not after the night of the Byculla ball. He never asked her to let him try again, or did anything to indicate that he was desirous of trying again. She did not think she was willing just at first after the ball to have allowed him to attempt to have connection, because she had got a dislike to him owing to the treatment she thought she had received from him. He never afterwards told her he was changed in his physical condition. They slept together when they arrived in Scotland until June, 1879, and all that time the appellant never attempted to have connection or proposed such a thing to her. When they arrived in Scotland her feelings towards the appellant had changed, she had ceased to have affection for him. Just before the Byculla ball she desired to sleep alone because of the heat. The appellant did complain to her that she was changed to him. At Kurrachee she refused to sleep in the same bed with him, because they had been occupying different beds. Her feeling of dislike to him was growing. She was very determined the first night at Kurrachee she should not sleep with him. All the other nights they slept in the same bed. He insisted on sleeping with her contrary to her wish.
Cross-examined. She began to feel the first coldness for him in January. She was fond of gaiety. At the Byculla ball, the appellant accused her of flirting with one gentleman. In the beginning of February she did not like her husband, and she was afraid she shewed her dislike by speech and action. The coldness between them never disappeared. When in Scotland she did not treat her husband any better than she had before. She never made any complaint to any one of her husband until she was asked by a lady (with whom she then resided) after her husband had left her. She raised the present action because of the action brought against her, as she thought her husband was not blameless altogether, and that she should not bear both his share of blame and her own: she also wished to be free. She saw her law agent about the cause of her husband leaving her. She thought she gave him to understand that her treatment of her husband had arisen from his failure to consummate the marriage. The raising an action against him on that ground was spoken of.
Her law agent, in his examination, said the respondent told him that the usual intercourse had not taken place, and that it was her husband's fault. He obtained an opinion from counsel. Undoubtedly the respondent's unmarried sisters' interests, and the publicity of an action such as this, affected largely the consideration for leaving the thing over.
Three doctors were examined for the respondent and two for the appellant. The evidence of those for the respondent was substantially as follows:—Dr. Joseph Bell said he examined the appellant and found him a well formed, healthy looking man. His sexual organs well formed, but flabby. Vicious practice tends to the premature exhaustion of the sexual organs. The appellant had an erection on each of two unsuccessful attempts, and an emission on the second, that was just the common case, insufficient erection and a too early emission. That is what they mean by impotency, where the organs are properly formed. Cross-examined. He believed if the appellant was encouraged, and had plenty of time and was not nervous, and if a little champagne were given him beforehand, he might succeed with any other woman; but after his failures it would be more difficult with his wife.
Dr. Angus Macdonald said the opportunities recorded in the evidence were far too numerous to account for the failure without a distinct defect in virile power. The worst cases of impotence in the male were where they found transient erections with emission before there is time for penetration.
Dr. Keiller said he was strongly of opinion from the evidence, and the fact of the appellant's age, his continence, and his former vicious practice that permanent impotency existed. Cross-examined. He had known cases where attempts at consummation had been made for months before complete success.
Dr. Gardner examined on behalf of the appellant, said he believed the appellant was incapable at the date of his marriage to the extent he himself confessed; but his belief was that if the lady had given him proper opportunities, he would have come to it after a limited time. It was not at all unusual for a man to fail within the first few weeks of his marriage, and it was especially likely to occur where a continent man marries late in life. Dr. Gillespie gave a somewhat similar opinion.
Dr. Sidney Smith, examined by commission for the pursuer, said the appellant told him he had failed. He prescribed for him. He saw him on the 31st of January, and also on the 18th and 23rd of February, and also on the 25th, 26th, and 27th of March, 1878. He asked him on one of these occasions whether there was any reciprocity on the part of his wife, or whether he got the “cold shoulder.” He said certainly, she would not allow him to come near her. On another occasion he said to the appellant, how were they to know whether the medicine was doing him any good, if there were no means of proving it. He also suggested to the appellant that there was probably some disappointment on the part of his wife, which, if he exercised a little tact might pass off. As far as he recollected, the appellant told him that whenever he did make an attempt to consummate the marriage there was no result. Subsequent to the 25th of February, the appellant told him that his wife would not have him come near her.
extract from G v M (1884-85) L.R. 10 Appeal Cases 171