Delhi High Court: Denying sex to spouse is mental cruelty & ground for divorce. Shashi Bala vs Rajiv Arora, 21.03.12, Justice Kailash Gambhir

Delhi High Court: Denying sex to spouse is mental cruelty & ground for divorce. Shashi Bala vs Rajiv Arora, 21.03.12, Justice Kailash Gambhir



IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: 21.03.2012

FAO No.185/2001

Smt. Shashi Bala ……appellant.
Through: Mr. Atul Bandhu, Adv.

Vs.

Shri Rajiv Arora ……Respondents
Through: Mr. R.G. Srivastava, Adv.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR
KAILASH GAMBHIR, J.

1. By this appeal filed under section 28 of the Hindu Marriage
Act, 1955, the appellant seeks to challenge the impugned order and
decree dated 12.2.2001 passed by the learned Trial Court whereby a
decree of divorce in favour of the respondent husband under Section
13(i)(a) of the Hindu Marriage Act was granted and the counter claim
FAO 185/01 Page 2 of 19
filed by the appellant seeking a decree for restitution of conjugal
rights under Section 9 of the Hindu Marriage Act was dismissed.

2. Brief facts of the case relevant for deciding the present
appeal is that the marriage between the parties was solemnized on
17.2.1991 according to Hindu rites and ceremonies. It was stated by
the husband in his divorce petition that after the solemnization of the
marriage, right from the inception, the attitude of the appellant was
indifferent and she complained that the marriage had not been
solemnized with a man of her taste. As per the respondent husband,
the appellant had refused to participate in the traditional ceremony of
dud-mundri by saying that she did not like all this but without
disclosing any reasons. As per the respondent, the appellant also did
not take any interest in the dinner which was served on the wedding
night i.e. 18.2.1991. It is also the case of the respondent that when
both of them went to their bedroom around 11.30 p.m. the appellant
was not responsive and she did not allow the respondent to have
sexual intercourse with her. The respondent has alleged that it is only
on 25.2.1991, that he was allowed to have sexual intercourse with the
appellant for the first time, but again the appellant remained
unresponsive and such conduct of the appellant caused mental cruelty
to the respondent. It is also the case of the respondent husband that
on 13.4.1991, the appellant refused to perform “chuda ceremony”
which not only hurt the sentiments of the respondent but his parents
as well. It was also stated that the appellant in fact removed the
chuda and threw it under the bed by saying that she did not believe in
all these things. It is also the case of the respondent that the appellant
used to visit her parents on her own without even informing the
respondent and finally left the matrimonial home on 16.4.1992 and
since then she did not come back. It is also the case of the respondent
that he had sexual intercourse with the appellant only for about 10-15
times during her stay with him for a period of about 5 months. It is
also the case of the respondent that the appellant used to quarrel with
his old parents and she also used to insist to shift to her parents’
house at Palam colony. The respondent also alleged that on 11th
March, 1991 the appellant tried to illegally remove the jewellery from
the almirah which belonged to his mother and which was kept for his
unmarried sister and while doing so she was caught red handed. It is
also the case of the respondent that the appellant made a false
complaint with the Crime Against Women Cell and Family Counsel
Office, which complaints were ultimately withdrawn by her. Based on
these allegations the respondent husband claimed the decree of
divorce under Section 13(1)(ia) of the Hindu Marriage Act.

3. In the written statement filed by the appellant wife, she
denied all the abovesaid allegations leveled by the respondent
husband. She denied that she had refused to participate in the “Dud
Mundari Ceremony”. The appellant had also stated that after taking
lunch on the wedding day, one lady relative of her in-laws and parents
of the respondent remarked that she did not bring bed and sofa sets
in her dowry and in response she informed them that her father had
given a bank draft of Rs. 30,000/- besides presenting costly clothes,
ornaments, TV, clothes for relatives, utensils and other articles in the
marriage. It is also the defence of the appellant that on the wedding
night the respondent entered the bedroom showering filthy abuses on
the appellant and told her that she had not brought the dowry
according to their expectations. It is also her case that she was also
told by the respondent that the bank drafts should have been
prepared either in the name of the respondent or in the name of his
father. It was denied by the appellant that her attitude was indifferent
at the time of dinner. She also denied the allegation of nonconsummation
of the marriage on the wedding night. The appellant
took a stand that right from the wedding night i.e. 18.2.1991 the
parties had normal physical relationship with each other. She also
denied that she did not perform “chuda ceremony” or threw the chuda
under the bed. She also denied that she left the matrimonial home on
16.4.1992. The appellant also took a stand that on 23.4.1992 the
respondent, his parents and two sisters asked her to bring
Rs. 50,000/- or otherwise leave the matrimonial home and on her
refusal to meet the said demand, she was thrown out of the
matrimonial home. The appellant denied that she had sexual
relationship with the respondent only 10-15 times or she had refused
to have sex with the respondent. She also denied that she never
insisted the respondent to live in the house of her parents. She also
denied that on 11th March, 1991 she made any attempt to steal the
jewellery or she was caught red handed. She also stated that in the
last week of April, 1991 she was told by the respondent to withdraw
Rs. 30,000/- from her bank account as the old sofa lying in the house
required replacement but no new sofa set was purchased when she
brought the said money and gave the same to the mother of the
respondent. The appellant also took a stand that she was prepared to
live with the respondent as she had withdrawn from her society
without any reasonable cause and without any fault on her part.

4. Based on the pleadings of the parties, the learned Trial
Court framed the following issues:-
(i) Whether the respondent has treated the petitioner with cruelty?
(ii) Relief.
(iii) Whether the petitioner has withdrawn from the company of the
respondent without any reasonable cause or excuse? If so, its effect.
The respondent in evidence examined himself as PW2 besides
examining Shri Dalveer Singh, Head Constable as PW1 and Shri
Vishwamitra, father of the respondent as PW 3, his colleague Shri
Vijay Kumar Taygi PW4. The appellant on the other hand examined
herself as RW1 with no other evidence in support.

5. After taking into consideration the pleadings of the parties,
the learned Trial Court found that the refusal of the appellant wife to
participate in the “Dud Mundari ceremony” and thereafter “Chudha
ceremony”, which were customary rituals in the family of the
respondent husband caused embarrassment and humiliation to the
respondent and such acts on the part of the appellant amounted to
cruelty. The learned Trial Court also found that in the span of one
year and two months of the married life, the parties had sex only for
about 10-15 times and also denial of the appellant for sexual
relationship on the very first night of the marriage is a grave act of
cruelty as healthy sexual relationship is one of the basic ingredients of
a happy marriage. The learned Trial Court also found that filing of the
complaints by the appellant with the Crime Against Women Cell and
Family Counsel Office also collectively caused mental cruelty to the
respondent husband. Accordingly, the learned trial court granted a
decree of divorce in favour of the respondent and against the
appellant and consequently also dismissed her counter claim for
restitution of conjugal rights.

6. Mr. Atul Bandhu, learned counsel appearing for the
appellant before this court vehemently argued that the learned Trial
Court did not refer to the evidence of the appellant wife wherein she
has denied all the allegations leveled by the respondent husband in
his petition for divorce. Counsel also contended that the marriage was
consummated on the very first night and the appellant wife never
denied sexual relationship to the respondent husband. Counsel also
submitted that nowhere the respondent husband has stated that as to
when he was refused any such sexual relationship by the appellant.
Counsel thus argued that the learned Trial Court has granted the
decree of divorce merely on the ground that the appellant wife did not
participate in the dud-mundari ceremony and chudha ceremony and
also she did not allow the husband to have sexual intercourse more
than 10-15 times in a period of 5 months and as per the counsel, these
grounds cannot be treated sufficient enough to constitute cruelty as
envisaged under Section 13(ia) of the Hindu Marriage Act. In support
of his arguments, counsel for the appellant placed reliance on the
judgment of the Hon’ble Supreme Court in Savitri Pandey vs Prem
Chandra Pandey AIR2002SC591 and V. Bhagat vs D. Bhagat (Mrs)
(1994) 1 SCC 337.

7. Mr. R.G. Srivastava, learned counsel appearing for the
respondent on the other hand fully supported the reasons given by the
learned Trial Court which entitled him to claim a decree of divorce
under Section 13(ia) of the Hindu Marriage Act. Counsel for the
respondent also submitted that the appellant did not respect the
sentiments of the respondent and his family members by refusing to
perform customary rituals like dud-mundari ceremony and chudha
ceremony. Counsel also argued that the appellant did not discharge
her matrimonial obligations either towards her husband or even
towards his old parents. Counsel also submitted that the appellant
made false complaints to the Crime Against Women Cell and to the
Family Counsel Office, which she later withdrew and such act of the
appellant also caused mental cruelty to the respondent. Counsel also
submitted that by denying normal sexual relationship to the
respondent, the appellant had shaken and destroyed the very
foundation of a sound marriage. Counsel also submitted that the
respondent had duly discharged his burden to prove the case set up
by him where as the appellant failed to discharge her burden and
even could not prove her defence. In support of his arguments,
counsel for the respondent placed reliance on the following
judgments:-
1. Vinita Saxena vs Pankaj Pandit 2006(3) SCALE (SC) 367.
2. Naveen Kohli vs Neelu Kohli 2006(4) SCC 558.
3. Samar Ghosh vs Jaya Ghosh 2007 (4) SCC 511.
4. Praveen Mehta vs Inderjit Mehta AIR 2002 SC 2582
5. Rajinder Bhardwaj vs Anita Sharma AIR 1993 Delhi 135.

8. I have heard learned counsel for the parties and given my
thoughtful consideration to the arguments advanced by them.


9. Cruelty as a ground for divorce is nowhere defined in the Hindu
Marriage Act as it is not capable of precise definition. There cannot be
any straitjacket formula for determining whether there is cruelty or
not and each case depends on its own facts and circumstances. What
may be cruelty in one case may not be cruelty in other and the
parameter to judge cruelty as developed through judicial
pronouncements is that when the conduct complained of is such that
it is impossible for the parties to stay with each other without mental
agony, torture and stress. It has to be something much more than the
ordinary wear and tear of married life. The conduct complained of
should be grave and weighty and touch a pitch of severity to satisfy
the conscience of the court that the parties cannot live together with
each other anymore without mental agony, distress and torture. The
main grievance of the respondent herein is the denial of the appellant
to have normal sexual relationship with the respondent. As per the
case of the respondent, during the short period of 5 months he had
sexual intercourse with the appellant only 10-15 time while the plea
taken by the appellant is that she had never denied sex to the
respondent. The courts have through various judicial pronouncements
taken a view that sex is the foundation of marriage and marriage
without sex is an anathema. The Division Bench of this Court in the
celebrated pronouncement of Mrs. Rita Nijhawan vs. Mr.Bal
Kishan Nijhawan AIR1973Delhi200 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.”
The learned Trial Court referred to the judgment of this court in the
case of Shankuntla Kumari vs. Om Prakash Ghai
AIR1983Delhi53 wherein it was 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.”
Hence, it is evident from the aforesaid that willful denial of sexual
intercourse without reasonable cause would amount to cruelty. In the
authoritative pronouncement of the Hon’ble Supreme Court in Samar
Ghosh vs Jaya Ghosh (2007)4SCC511, 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.

10. Adverting back to the facts of the present case, the
marriage between the parties was solemnized on 17.2.1991 and
according to the appellant she was forced to leave the matrimonial
house on 16.4.1992, whereas as per the respondent husband, the
appellant wife practically stayed at the matrimonial home only for a
period of five months as for rest of the period she stayed at her
parental house. The case of the respondent is that he had sex with the
appellant only for about 10-15 times in a span of five months of
married life and that he was denied sexual relationship on the very
first night of their marriage and denial of sex at the wedding night
caused great mental cruelty to him. The respondent husband also
stated that he was allowed to have sexual intercourse by the appellant
for the first time only on 25.2.1991.The appellant wife has denied the
said allegations of the respondent husband and in defence stated that
she was having normal sexual relationship with her husband and even
had sexual intercourse on the wedding night. The learned Trial Court
after analyzing the evidence adduced by both the parties found the
version of the appellant untrustworthy and unreliable while that of the
respondent, much more credible and trustworthy. The appellant on
one hand took a stand that on 18.2.1991 the atmosphere on that night
was very tense so much so that, both the parties could not sleep and
speak to each other and she did not even take proper food and the
whole night there was tension between the parties and the
atmosphere was fully charged, but at the same time in the crossexamination
of PW2 the suggestion was made by counsel that the
appellant touched the feet of the respondent when he entered the
room on the said wedding night and she also admitted that her
husband had never taken liquor in her presence and he had never
come to her in drunken state. It would be appropriate to reproduce
para 55 of the Trial Court judgment to bring to surface the said
contradiction on the part of the appellant.
“55.From the evidence on record, it is gathered that on the
wedding night i.e. on 18.2.91 a “Dud Mundari” ceremony was to
be performed but the respondent wife refused to participate in the
same. This version of PW 2 has been fully corroborated by his
father PW 3. The husband i.e. Rajiv Arora, had entered by both
PW 2 and RW1. RW 1 in her cross-examination has stated that
their marriage had been consummated on that very night and her
husband had come to her and she did not have to persuade the
petitioner. On the other hand the petitioner has stated that their
marriage could not be consummated on their wedding night and
he had sex with his wife for the first time only on 25.2.91. RW1 in
her cross-examination has stated that the atmosphere that night
was very tense and both the parties could not sleep and they did
not speak to each other and her husband had grievance about the
insufficient dowry which had been given in the marriage . RW 1
has also admitted that on 18.2.91, she did not take proper food as
she was not feeling well. This version of RW1 that she did not
take food that night is corroborated by the version of PW1 who
has stated that on the wedding night at the time when the dinner
was served the attitude of the respondent was indifferent and she
did not take any dinner but she took only a little sweet.”


11. 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 the oral evidence of
the other. What happens in 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 not had 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. In the present case, the testimony of the respondent
that the appellant was never responsive and was like a dead wood
when he had sexual intercourse with her remained unrebutted. It is
not thus that the respondent had sex with her wife only about 10-15
times from the date of his marriage within a period of five months, but
the cruel act of the appellant of denying sex to the respondent
especially on the very first night and then not to actively participate in
the sex even for the said limited period for which no contrary
suggestion was given by the appellant to the respondent in his crossexamination.
The respondent has also successfully proved on record
that the appellant did not participate in the customary rituals of dud
mundri and that of chudha ceremony, which caused grave mental
cruelty to the respondent. It is a matter of common knowledge that
after the marriage, certain customary rituals are performed and the
purpose of these rituals is to cement the bond of marriage. The
question whether there was a refusal on the part of the respondent
not to perform the ritual of dud-mundari and chudha ceremony is
difficult to be answered as on one hand, the appellant has alleged that
she had duly participated in the ceremonies while on the other hand
the respondent has taken a stand that there was refusal on the part of
the appellant to participate in the ceremonies. No doubt the testimony
of the respondent has been supported by the evidence of his father
and there is no corroborative evidence from the side of the appellant,
although her brother had accompanied her in doli and in such
backdrop, adverse inference thus has to be drawn against the
appellant for not producing her brother in evidence who could be the
best witness to prove the defence of the appellant alleging her
participation in the dud-mundari ceremony. Undeniably, these
customary ceremonies are part of the marriage ceremony and refusal
of the same that too in the presence of the family members of the
husband would be an act of cruelty on the part of the wife. The
appellant has also failed to prove any demand of dowry made by the
respondent or his family members as no evidence to this effect was
led by the appellant. The appellant herein also filed criminal
complaints against the respondent and his family members and later
withdrew the same. Undoubtedly, it is the right of the victim to
approach the police and CAW cell to complain the conduct of the
offending spouse, however, frivolous and vexatious complaints like in
the present case led to cause mental torture and harassment to the
respondent and his family members. Thus, taking into account the
conduct of the appellant in totality, this court is of the view that the
same amounts to causing mental cruelty to the respondent.

12. Before parting with the judgment, this court would like to
observe that the sex starved marriages are becoming an undeniable
epidemic as the urban living conditions today mount an
unprecedented pressure on couples. The sanctity of sexual
relationship and its role in reinvigorating the bond of marriage is
getting diluted and as a consequence more and more couples are
seeking divorce due to sexual incompatibility and absence of sexual
satisfaction. As already stated above, to quantify as to how many
times a healthy couple should have sexual intercourse is not for this
court to say as some couples can feel wholly inadequate and others
just fine without enough sex. “That the twain shall become one flesh,
so that they are no more twain but one” is the real purpose of
marriage and sexual intercourse is a means, and an integral one of
achieving this oneness in marriage.

13. This Court therefore, does not find any kind of illegality or
perversity in the findings given by the learned Trial Court in the
impugned judgment dated 12.2.2001 and the same is accordingly
upheld. The present appeal filed by the appellant is devoid of any
merits and the same is hereby dismissed.

KAILASH GAMBHIR, J
21.03. 2012