New Delhi: Wilful denial of sex, including
that on the first night after wedding, by either of the spouse
amounts to cruelty and can be a ground for dissolution of the
marriage, the Delhi High Court has ruled.
Justice Kailash Gambhir gave the verdict, upholding the
lower court`s decree of divorce to a man having a "sex-starved
marriage" as his wife refused to have sexual intercourse with
him on the wedding night and making him long for it for the
subsequent five months, left her matrimonial home.
"In the present case, the testimony of the husband that
the wife was never responsive and was like a dead wood when he
had sexual intercourse with her remained unrebutted.
"It is not that the husband had sex with his wife only
about 10-15 times from the date of his marriage within a
period of five months, but the wife`s cruel act of denying sex
to the husband especially on the very first night and then not
to actively participate in it even for the said limited period
for which no contrary suggestion was given by the wife," the
court said.
It cited various Supreme Court judgements on the issue and
said "it is evident that wilful denial of sexual intercourse
without reasonable cause would amount to cruelty."
Referring to the apex court`s observation that "sex is the
foundation of marriage and marriage without sex is an
anathema," Justice Gambhir said, "Marriage without sex will be
an insipid relation."
The high court, however, said 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 the sexual relation vis-a-vis the
emotional relation.
"There may be cases where one partner to the marriage may
be over sexual and the other may not have the 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," the court said.
The high court said in matrimonial cases, more often than
not it is a challenging task to ascertain as to which party is
telling truth as usually it is the oral evidence of one party
against that of the other.
"What happens within the four walls of the matrimonial
home and what goes on inside the bed room of the couple is
either known to the couple themselves or at the most to the
members of the family, who are either residing there or in
whose presence any incident takes place.
"Whether the couple has had sex and how many times or
have had no sex and what are the reasons; whether it is due to
the denial or refusal on the part of the wife or of the
husband, can only be established through the creditworthiness
of the testimonies of the parties themselves.
"Consequently, the absence of proper rebuttal or
failure of not putting one?s case forward would certainly lead
to acceptance of testimony of that witness whose deposition
remains unchallenged," the high court said while dismissing
the appeal of the wife.
The couple had got married on February 17, 1991 and lower
court verdict allowing divorce to the husband was delivered in
February 2001.
PTI
