Over the years and in contemporary times, when men are forced into a marriage, they fail to consummate the marriage, i.e., they blatantly refuse to have sexual intercourse with their supposed wife.
The case above could stem from family friend’s agreement that their children should get married to each other to keep their bond and as a result of this, the children who barely know each other who are forced into the marriage are just in it for the benefits and goodwill of their parents and not their own interest. This sometimes could prevent them from getting sexually intimate.
Apart from the instance given above, a man could for obvious reasons decide not to have sexual intercourse with his wife, but then, that is not the business the court and also not the business of the Law.
The law is that once a man and a woman are pronounced husband and wife on the understanding of fulfilling all the requirements of getting married under the Marriage Act, the marriage between the two MUST be consummated, i.e. there must be sexual intercourse between the man and woman.
Put simply, when a woman gets married to a man under the Nigerian laws, it would only be in contradistinction, unknown and alien to the Laws that a man should not have sexual intimacy with his wife.
The law is very keen on the act of sexual intercourse between a man and his wife and as such, legal implications abound on the failure of a husband to have sexual intercourse with his wife after marriage.
Suffices to state that, a man is by virtue of the extant Marriage laws, legally obligated to consummate the marriage between himself and his wife through sexual intercourse and where he has failed to do so, it would be deemed that the marriage has broken down irretrievably and a divorce is to the only way to destroy the empty legal shell.
The spirited letters of Section 15(1), Matrimonial Causes Act provides that either party to a marriage may petition for divorce upon the grounds that the marriage between the two parties has broken down irretrievably.
The Matrimonial Causes Act goes further in Section 15(2), Matrimonial Causes Act to hold amongst others that, where there has been a willful and persistent refusal to consummate the marriage, it will enable the court to hear a divorce petition.
Now, it goes forth to state that, where there has been willful and persistent refusal to consummate the marriage, then a court can hear a matter of divorce.
Two words to note from the section provided above are ‘willful’ and ‘persistent’. The two words are important in bringing a suit against the husband who has failed to consummate the marriage.
The word ‘willful’ in conventional terms means the doing of something as a matter of conscious will, without force, being premeditated. ‘Persistent’ seems to mean a repeated action. The birth of the two words in bringing an action seems to mean that, there was a refusal to consummate the marriage and despite a number of requests, the husband continued, repeatedly to refuse to engage in sexual intercourse with his wife.
The above explains that, where the wife has repeatedly request that the husband engage in sexual intercourse with her and the husband continues to refuse to do such, a suit for divorce can be brought against the husband on such grounds.
What could constitute refusal to consummate the marriage depends on the peculiarity of each case like i stated earlier.
In the case of JODLA v JODLA, the parties were married in a registrar’s office. They were both Roman Catholics and fully appreciated that their faith did not countenance matrimonial relations between them until there had been a religious ceremony which the husband promised to arrange.
Although repeatedly requested to do so by the wife who was at all times subject to the ceremony taking place, willing to render her husband her full matrimonial rights, he failed to live up to his promise. Each of the parties commenced the proceedings for a decree of nullity on the ground that the other had willfully and persistently refused to consummate the marriage.
It was held by the court that the wife’s request to the husband to make the arrangements for a religious ceremony constituted an implied request for sexual intercourse which he had refused without just cause. Consequently, he willfully refused to have consummate the marriage.
With the above, it goes to show that where there is a condition precedent to be done by the husband to a marriage before consummation can take place and the husband has not fulfilled such condition, it would only be implied that the husband has willfully refused to consummate the marriage and as such constituting a ground for divorce by the wife.
It is very important to note that to bring an action for divorce on this ground, the husband must have not even had any sexual intercourse with the wife, up until the day of the institution of the divorce proceeding.
Put simply, where a husband has had sexual intercourse with his wife once and after then, failed to have sexual intercourse with her, it cannot be said that the husband has failed to continue to have sex with his wife.
But then, this should not be the object of the law, the law is to see that parties to a marriage continually have sexual intercourse with each other as both are emotional beings longing to be sexually loved and intimate with their spouses, but then DURA LEX SED LEX, the law maybe harsh but it remains the law.
Suffices to state that once there has been a single act of intercourse after the marriage, no basis exist any longer for the allegation of willful refusal by virtue of Section 21, Matrimonial Causes Act
In the case of OWOBIYI v OWOBIYI, the petitioner met and married the respondent. A few days after the marriage, the respondent left for the United Kingdom for further studies. Although sexual intercourse took place between the parties before the marriage, it did not take place again between the time of marriage and the departure of the respondent from Nigeria.
The petitioner did not complain about this and the parties never lived under the same roof. The petition alleged that the respondent had willfully refused to consummate the marriage. In rejecting the petition, the court held that there had not been a request, implied or direct.
Again, where the husband uses contraceptives during sexual intercourse, it does not constitute willful refusal to consummate the marriage. This was the position of the court in the case of BAXTER v BAXTER.
It is common for men to always do what is conventionally known as ‘pull out’ during sexual intercourse with their wives, just to avoid the wife getting pregnant at such period, it has been upheld in the courts that such act also does not constitute willful refusal to consummate the marriage.
There can only be willful refusal of consummation when the husband has failed to have carnal knowledge of his wife as contained under Section 6, Criminal Code, i.e., the thrusting of the penis into the virginal. This was the position of the court in the case of WHITE v WHITE.
In conclusion, a man is legally obligated to have sexual intercourse with his wife after marriage, where he has failed to do so; he invites the spirit of divorce to loom around his head which would not be in his favor.
LegalJOE who is JOSEPH ALIU is a Law student at the Olabisi Onabanjo University, a Writer and Rights Activist can be reached via, 09131704196, 09085773212, firstname.lastname@example.org