Denial Of Sex Amounts To Mental Cruelty

0
135

Is it really OK to deny your spouse Sex? Do you owe your spouse sex? If you stop having sex with your spouse, is he or she justified in filing for a divorce? Is the denial of sex mental cruelty?

Cruelty is a ground of divorce under section 13(1)(a) of the Hindu Marriage Act. In
“Dastane vs. Dastane: AIR 1975 SC 1534”, the Supreme Court has observed:

“that where an allegation of cruelty is made, the inquiry in any case covered by that
provision had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for the petitioner to live with the respondent. It was also pointed out that it was not necessary, as under the English law, that the cruelty must be of such a character as to cause danger to life, limb or health, or as to give rise to a reasonable apprehension of such a danger though, of course, harm or injury to health, reputation, the working character or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty or not. What was required was that the petitioner must prove that the respondent has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the respondent.”

Marriage without sex is an anathema:

In Rita Nijhawan vs. Balkishan Nijhawan, AIR 1973 Del 200, a Division Bench of Delhi High Court had examined the similar issues and arrived at the following conclusions:

“Thus the law is well settled that if either of the parties to a marriage being a healthy
physical capacity refuses to have sexual intercourse the same would amount to cruelty entitling the other party to a decree. In our opinion it would not make any difference in law whether denial of sexual intercourse is the result of sexual weakness of the respondent disabling him from having a sexual union with the appellant, or it is because of any willful refusal by the respondent, this is because in either case the result is the same namely frustration and misery to the appellant due to denial of normal sexual life and hence cruelty.

Marriage without sex is an anathema. Sex is the foundation of marriage and without a
vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a woman’s mind and body. The result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifies woman’s brain, develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointment in sexual intercourse.”In Smt. Shakuntala Kumari vs. Om Prakash Ghai, AIR 1981 Del 53, it has been held that:

“A normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this 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 circumstances of the case. But willful denial of sexual relationship by a spouse when the other spouse is anxious for it would amount to mental cruelty, especially when the parties are young and newly married.”

What is mental cruelty?

The Hon’ble Supreme Court in the case of V. Bhagat v. Mrs. D. Bhagat: AIR 1994 SC 710, has defined mental cruelty in the following manner:

“Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”

Delhi High Court in its judgment titled as “Shashi Bala vs Rajiv Arora: 188(2012) DLT 1” held that:

“Cruelty as a ground for divorce is nowhere defined in the Hindu Marriage Act as it is not capable of precise definition. There cannot be any straitjacket formula for determining whether there is cruelty or not and each case depends on its own facts and circumstances. What may be cruelty in one case may not be cruelty in other and the parameter to judge cruelty as developed through judicial pronouncements is that when the conduct complained of is such that it is impossible for the parties to stay with each other without mental agony, torture and stress. It has to be something much more than the ordinary wear and tear of married life. The conduct complained of should be grave and weighty and touch a pitch of severity to satisfy the conscience of the court that the parties cannot live together with each other anymore without mental agony, distress and torture.”

In the authoritative pronouncement of the Hon’ble Supreme Court in “Samar Ghosh vs. Jaya Ghosh: (2007) 4 SCC 511”, the Hon’ble Supreme Court took into account the parameters of cruelty as a ground for divorce in various countries and then laid down illustrations, though not exhaustive, which would amount to cruelty. It would be relevant to refer to the following para 101 (xii) wherein it was held as under:-

“(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.”

Sexual intercourse is not a Mechanical but a Mutual act:

Delhi High Court in its judgment titled as “Shashi Bala vs Rajiv Arora: 188(2012) DLT 1” held that:

“Although it is difficult to exactly lay down as to how many times any healthy couple should have sexual intercourse in a particular period of time as it is not a mechanical but a mutual act, however, there cannot be any two ways about the fact that marriage without sex will be an insipid relation. Frequency of sex cannot be the only parameter to assess the success or failure of a marriage as it differs from couple to couple as to how much importance they attach to sexual relation vis-à-vis emotional relation.There may be cases where one partner to the marriage may be over sexual and the other partner may not have desire to the same level, but otherwise is fully potent.Marriage is an institution through which a man and a woman enter into a sacred bond and to state that sexual relationship is the mainstay or the motive to be achieved through marriage would be making Restitution Of Conjugal Rightsa mockery of this pious institution. By getting married, a couple agrees to share their lives together with all its moments of joy, happiness and sorrow and the sexual relationship between them brings them close and intimate by which their marital bond is reinforced and fortified. There may not be sexual compatibility of a couple right from inception of the relationship and depending upon physical, emotional, psychological and social factors, the compatibility between some couples may be there from the beginning and amongst some may come later.Undoubtedly, a normal and healthy couple should indulge into regular sexual relationship but there may be exceptions to this and what may be normal for some may not be normal for others as it would depend upon various factors such nature of job, stress levels, social and educational background, mood patterns, physical well being etc. Indisputably, there has to be a healthy sexual relationship between a normal couple, but what is normal cannot be put down in black and white.”

“Sex starved marriages are becoming an undeniable epidemic as the urban living conditions today mount an unprecedented pressure on couples. The sanctity of sexual relationship and its role in reinvigorating the bond of marriage is getting diluted and as a consequence more and more couples are seeking divorce due to sexual incompatibility and absence of sexual satisfaction.”

Denial of sex by a woman during her pregnancy is not  “Cruelty/Mental Cruelty” towards her husband entitling him to get divorce on that ground:

Delhi High Court in its judgment titled as “Sumit vs Preeti: 235 (2016) DLT 176” held that

“Carrying a foetus in the womb she would obviously be inconvenienced by sex and
assuming she totally shunned sex with the petitioner (husband) as her pregnancy grew
would not constitute cruelty.”

Also Read: Mutual Consent Divorce under Hindu Law

Conclusion:

Being “neglectful, indifferent, contemptuous, asexual, demeaning, insulting” is not loving
behavior and is often as — and sometimes more — damaging as physical abuse, it amounts to mental cruelty. Sex is a binding force to keep two spouses together and the denial thereof by one spouse to the other would, effect mental health amounting to mental cruelty especially in a case where the parties are young.

To know more about cruelty as a ground for divorce write to us at easykanoon@gmail.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. 

Image Source: Freepik.com