As much as we would love to keep the details of such issues under covers, it becomes important that we address them indeed if nothing actually happens under those covers.
Absence of sex that is very common in Indian marriages, not just in big metro cities like Mumbai and Delhi, but also in smaller tier-2 cities like Pune. Even the best divorce lawyers in Pune will not say that they have never encountered such a case. Therefore, this problem needs to be talked about.
People need to realize that when two parties decide to enter into the bonds of holy matrimony, each one has some expectations from the other. Marriage is not a relationship in which two people agree to merely live under one roof and share an abode. It is much more than that. It is a relationship in which each one has to be there for the other, emotionally, psychologically, financially and last but not the least, physically. Of course, companionship, friendship and togetherness are important elements, but, another element which cannot be neglected is that of sex. Sex has something that has been described as a basic need in the past more times than one.
Although it is also true that marital rape is something that is wrong and must be held to be so, it is also true that constant and continuous denial of sex by one party to the other constitutes mental cruelty of a grave nature on the party who is being denied of the pursuit.
In light of the above context, we should be proud of living in a country where both, the Apex Court and the High Court of Delhi have dealt with this issue head on instead of shying away from the issue.
In a salutary judgement delivered in September 2016, the High Court of Delhi, granted divorce to a couple in which the husband claimed that their matrimonial relation was devoid of any sexual intercourse.
The couple had been married for close to a decade and the husband claimed that right from the beginning the wife kept making excuses to avoid sex. The name of the case is Kamini Sondhi v. Kapil Sondhi. In reply to the husband’s allegations of denial of sexual intercourse by the wife, the wife claimed that the husband and his family members conducted cruelty on her by constantly by constant demands of dowry. She also claimed that they physically abused her and committed other kinds of torture on her.
The lower family court granted a divorce decree in favour of the husband. In a challenge to the said decision of the lower family court, the wife appealed to the High Court. However, the appeal was dismissed and the High Court of Delhi upheld the divorce decree granted by the lower family court.
This judgement has set a precedent for all the other courts in India. Even the Supreme Court concurs with this opinion of the Delhi High Court. Therefore all the courts across India will now be bound to follow the same as per Article 142 of the Constitution of India.
This is a salutary step. These judgments indicate a progress in the mindset of the court. The Hindu Marriage Act, 1955, under Section 13 explicitly mentions the grounds which a couple may claim if they want to take a divorce. Additionally, there are also other grounds which are specifically available to a woman in the marriage. However, none of these grounds mention “Lack of sufficient sex” as a ground for divorce.
This situation is similar to the ground of marital rape. There exists no explicit ground in the Hindu Marriage Act, 1955 which provides that marital rape can be a ground for divorce, nor does there exist any criminal law provision in the laws which are currently in force in India which criminalize marital rape. However, the courts in India have used there judicial minds and creativity in the past to grant divorce on the ground of marital rape to women who have been aggrieved by such a torture. This, they did by declaring marital rape to amount to cruelty, which, fortunately is a ground for divorce.
The courts in the judgements mentioned above have taken a similar stand with respect to lack of sex in a marriage. In light of there being no specific provision for divorce on the ground of lack of sex in a marriage, the court in the above judgements sought to remedy the situation by bringing the same within the purview of the ground of mental cruelty. By declaring that denial of sex amounted to mental cruelty, the courts in India have taken a progressive step.
There exists a counter argument to that of granting divorce on the ground of denial of sex. That view might put forth that giving spouse this right encourages the phenomenon of marital rape. However, that is not the case. Marital rape is wrong and must definitely be disregarded. Forcing a person for something as intimate as sex is not right. Also sex when done against the free will of a person can be painful physically and a traumatic experience mentally. However, on the same hand, denial of sexual pleasure without any genuine cause is also humiliating to a spouse. When two consenting adults enter into the holy bonds of matrimony, they are old and mature enough to understand their duties in that relationship. One of those duties also involves making the other person happy, both mentally and physically. In fact a denial by the courts of divorce on this ground would anyway lead to divorce. This is so because a person who is not being satisfied in the bonds of holy matrimony will seek that pleasure out of wedlock; and since adultery is a well recognised ground for divorce under Section 13 of the Hindu Marriage Act, 1955, the couple will eventually end up divorcing. Instead it is better to resolve the matter at the initial stage itself, before matters turn worse.
Though it is true that the powers and authority of the State (courts) ends where the doorstep of the houses of people begins, it is also true that intervention by the court becomes necessary when inside those house, torture in being inflicted on a person by the other. Therefore, the courts in India have made sexless marriage a valid ground for granting divorce.