Denial Of Sex Must Sustain Over A 'Long Period' To Seek Dissolution Of Marriage On This Ground: Allahabad High Court

A bench of Justice Saumitra Dayal Singh and Justice Donadi Ramesh also added that the issue of what type of physical intimacy the parties may be able to maintain is not subject to judicial determination.

“As to what exact relationship parties may able to maintain, with respect to physical intimacy, per se, the issue is not justiciable. It is not for the Court to lay down any law, as to exact nature of private relationship between two consenting parties living in matrimonial relationship. To seek dissolution of marriage on ground of denial of sexual intercourse, such fact occurrence has to seen to have existed/sustained consistently, over a long period of time” the Court remarked.

The court observed this while dismissing an appeal filed by a husband challenging a judgment and order passed by the Principal Judge, Family Court, Mirzapur, dismissing his divorce petition.

The parties (doctors by profession) got married in June 1999. They have two children, one of whom lives with his father and the other with his mother. While the husband-appellant established his private practice in Delhi, his wife (respondent) was employed with the Indian Railways until she voluntarily retired.

After 9 years of their marriage, the appellant-husband initiated divorce proceedings on the grounds of cruelty, alleging that her wife (respondent), under the influence of a religious teacher, refused to engage in sexual intercourse.

On her part, the respondent-wife denied the allegations as she contended that the birth of two children proved that they had a normal, healthy relationship between them.

Considering that the ground of cruelty, as prayed by the appellant-husband, was not established during the trial, the Court prima facie noted that evidence clearly suggested that the parties experienced a normal matrimonial relationship, wherein two children were born to them within two years of their marriage.

Therefore, no ground of incapacity on the part of the respondent may ever exist, the Court further noted, emphasizing that the issue regarding the exact relationship that the parties may be able to maintain, with respect to physical intimacy, was not justiciable.

“Insofar as no fact was pleaded and no evidence was led to establish that the appellant was completely deprived of physical intimacy by his wife over any specified time,” the Court further observed as it found no infirmity in the order impugned dismissing the divorce suit.

As to the irretrievable breakdown of marriage prayed by counsel for the appellant, the Court said that that is not a statutory ground to dissolve a Hindu marriage.

With this, the appeal was dismissed.