WILLFUL DENIAL OF SEXUAL INTERCOURSE WITHOUT REASONABLE CAUSE: CRUELTY?
In the arena of equal rights, where women stand shoulder to shoulder with men, the ambit of crime and emotional distress has widened its scope. With the help of law, the concept of patriarchy has radically reduced, howeverwomen are empoweredwith a sharp weapon of superficial sympathy and empathy, which is inflicting mental cruelty on men and cutting the roots of marriages these days. The term "mental cruelty" has been defined in the Black‟s Law Dictionary (8th Edition, 2004) as under:
"Mental Cruelty as a ground for divorce, one spouse’s course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse."
“That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs; the act complained of could otherwise be regarded as cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or willful ill-treatment."[1]
Among human beings, there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful realm of cruelty. The Supreme Court has recognized this advancing problem and defined the concept of ‘cruelty’ in V Bhagat Vs. D. Bhagat[2] as under: -
"Mental Cruelty in Section 13(1) (i-a) 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 as nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party 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."
What is cruelty in a marriage?
In Mrs. Rita Nijhawan vs. Mr.BalKishanNijhawan[3] held as under:
"In these days it would be unthinkable proposition to suggest that the wife is not an active participant in the sexual life and therefore, the sexual weakness of the husband which denied normal sexual pleasure to the wife is of no consequence and therefore cannot amount to 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 favorable 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 disappointments in sexual intercourse."
In ShankuntlaKumari vs. Om Prakash Ghai AIR1983Delhi53 the learned Trial Court held that:
"(25) 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."
In Samar Ghosh vs Jaya Ghosh[4], 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.
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 a 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 a 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.”
Conclusion
Physically intimacy between a couple is something which strengthens the emotional bond and to which everyone looks forward, but unfortunately its deprivation by one spouse to the other without any reasonable cause is still not openly spoken about or acceptable in our society. This utter silence and prolonged compromise, takes away the shine of a happy married life and sexual desires. Just because one does not feel like it, he/she cannot expect the other to live without it all their life.
Thus in view of the above judgments, there is a ray of hope for all the emotionally/ sexually distressed spouses to get some fresh air, and live their life as per their own, beyond societal norms.It would be correct to say that constant emotional abuse, by one spouse to the other, has finally found some space in the judicature of the country.
[1]SCC pp. 1 14-15, para 18
[2]1994 AIR 710, 1994 SCC (1) 337
[3]AIR1973Delhi200
[4](2007)4SCC511
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