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The Allahabad High Court recently reiterated that forced unnatural sex would amount to marital cruelty and would, therefore, be a ground for divorce under the Hindu Marriage Act, 1956.
Notably, the Bench of Justices Pradeep Kumar Srivastava and Shashi Kant Gupta also condemned forcible sex, unnatural or natural, as an illegal intrusion that amounts to cruelty against the wife. As stated in their judgment,
“Unnatural sex, sodomy, oral sex and sex against the order of the nature, against the wishes of a women or wife or anybody is not only a criminal offence but also a marital wrong and amounts to cruelty which is a good ground for dissolution of marriage. Any such thing which brings the wife to indignity and causes physical and mental agony and pain is cruelty.
Forcible sex, unnatural or natural, is an illegal intrusion in the privacy of the wife and amounts to cruelty against her. “
The judgment has been rendered at a time when forced sex during a marriage i.e. marital rape continues to be legal as per the statute books.
Cruelty as a ground for divorce has not been precisely defined in the Hindu Marriage Act. However, the Court found support in a number of case laws to conclude that forced unnatural sex would also fall within the definition of cruelty, thereby rendering it a ground for divorce. Particular reliance was placed on two judgments of the Karnataka and Kerala High Courts, i.e. Grace Jayamani v. EP Peter and Bini T John v. Saji Kuruvila.
“In both these judgments, it has been held that sexual intercourse against the order of the nature or sodomy or unnatural sex or oral sex is a marital wrong and a ground for dissolution of marriage.”
The Allahabad High Court was dealing with an appeal filed against a decree of divorce granted by a Fast Track Court. The divorce petition had been preferred by the wife/ respondent alleging that her husband/appellant had forced unnatural sex with her on multiple occasions during the marriage, starting from the wedding night.
Both parties had been married once before. The wife/ respondent had two children from her first marriage. Her husband had died in an accident. Therefore, she agreed to marry again, provided that her spouse would accept her two children. The husband/appellant in this case eventually agreed to accept the children. His first marriage had ended in divorce. He entered into his second marriage with the respondent in July 2012.
Problems, however, emerged on the wedding night itself when the appellant forced unnatural sex with respondent/ wife, despite her resistance. The Court was told that the appellant even beat up the wife when she refused to give in to his demands. The ordeal even resulted in bodily injury and bleeding for the wife. Thereafter, she initially refused to accompany the appellant the following day. It was after he apologised for his conduct that the wife agreed to proceed with the marital relationship.
However, over the course of the next month or so, the appellant continued to force unnatural sex upon her. On one occasion, the wife submitted that he threatened to sexually assault her five-year-old daughter if she did not accede to his demands for unnatural sex. On another occasion, he forced her to perform oral sex after doctors advised against her having sex owing to a kidney stone she was diagnosed with. The Court recorded this incident in its judgment thus,
“On investigation, stone was found in her kidney and urinal track. She was advised to take rest and also avoid physical relationship. But having said so, the defendant- husband forced her by pulling and shaking her by neck to do oral sex by chewing his dirty private parts. She has stated that the defendant- husband enjoys unnatural sex and on being refused by her, he got extremely annoyed and used to beat her.”
Further, the appellant was also accused of having made dowry demands, although, the judgment records, “enough dowry was given in the marriage“. Physical violence ensued when his demands were not acceded to.
The appellant/husband, on the other hand, contested all these allegations, contending instead that the marital relationship had soured over demands to make the wife’s children his heirs. The Court, however, noted that the appellant could not back up his blanket denials. Neither did he present any evidence, nor did he cross-examine the wife on several allegations of forced unnatural sex.
On the other hand, the Court found strength in the allegations made by the wife/respondent given that the appellant had already been convicted for dowry harassment, forced unnatural sex and causing hurt in separate criminal proceedings instituted by her.
In any case, the Court noted that the burden of proof applicable in marital cases was the civil standard of preponderance of probabilities.
Therefore, it proceeded to uphold the lower Court’s grant of divorce on grounds of cruelty and dismissed the appeal.
Read the Judgment: