Denial of Sexual Intercourse amounts to Cruelty
Hindu Marriage Act was enacted by parliament in 1955 to codify marriage law among Hindus. This Act has been enacted to regulate the institution of marriage. This Act applies not merely to Hindus but also applies to Sikhs, Jains and Buddhists. This Act further applies to any other person domiciled in the territories to which this Act extends who is not a Muslim, Jew, Parsi or Christian by religion.
Section 13 (1) (a) of Hindu Marriage Act deals with cruelty as a ground for divorce. The Act does not specify whether it is mental or physical cruelty. The courts have interpreted it in a broader perspective and said that it includes both physical and mental.
The concept of cruelty has varied from time to time, individual to individual and from place to place in its application according to the social status of the persons involved and their economic conditions.
If one party has mentally or physically abused the other party or if one party has a reasonable apprehension that conduct of the other party is injurious or harmful then this is the sufficient ground to obtain divorce due to cruelty. Some common examples of cruelty includes the following:-
- Continuous rage or anger at a spouse
- Physical Attacks on a spouse
- Coldness/Bitterness/Neglect
- Refusal to have sexual intercourse with the spouse.
- Demanding Dowry
- Threatening to commit suicide
- Having an adulterous relationship
- Falsely accusing the other spouse of committing adultery
- Staying away from marital residence without explanation
In this article, we will be discussing refusal to have sexual intercourse amounts to cruelty. If a partner does not allow the other partner to have sexual intercourse for a long period of time then it amounts to mental cruelty and can be a ground for divorce. This Ground for Cruelty is explained in various judgments.
In Samar Ghosh v. Jaya Ghosh,(2007) 4 SCC 511, it was observed by the apex court that “ Undoubtedly, not allowing a spouse to have sexual intercourse for a long time by his or her partner without sufficient reason itself amounts to mental cruelty to such spouse”.
It was further held that “ the concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious belief and human values.”
In Samar Som v. sadhana som, AIR 1975 Calcutta 413, it was held that impotency is incapacity for sexual intercourse or when coition is painful or difficult. The presence or absence of uterus is quite immaterial to the ques whether a woman is impotent or not. She could not be held to be impotent, merely because the uterus of a woman is removed and that could not be a ground to declare the marriage void.
One of the basic ingredients for a happy and harmonious marriage is a normal and healthy sexual relationship. Justice Leila Seth in Shakuntala Kumari v. Om Prakash,1981 Rlr 12 (3) held that if the wife not willing for normal sexual relations amounts to cruelty on the husband. It was further held that if sexual relation is not possible due to ill health on the part of one of the spouses, it may or may not amount to cruelty depending on the scenario of the matter but, willful denial of sexual relationship by a spouse when the other is anxious for it would amount to mental cruelty.
In Anil Bharadwaj v. Nimlesh Bhardwaj (AIR 1987 Del 111), it was observed that if a wife refuses to have sexual intercourse with the husband without giving any reason is a sufficient ground which amounts to cruelty against the husband.
In Prakash Kishore v. Smt Putul Devi,17.06.2014, Patna High Court, it was held that denial of sexual relations in a marriage may constitute cruelty as being the foundation of marriage but, inability to conceive despite psychical relations cannot amount to cruelty.
In P. Devraj v. Geetha, 26.07.2006, Madras High Court, it was held that removal of the uterus is not a ground for cruelty.