Denying sex to spouse ground for divorce: HC

New Delhi: Willful 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.