Subjecting Wife To Sexual Perversions Against Her Will Amounts To Physical And Mental Cruelty: Kerala High Court Grants Divorce

The Division Bench comprising Justice Amit Rawal and Justice C S Sudha observed thus:

“When two consenting adults engage in coitus in the privacy of their bedroom, it is their choice as to how and in what manner they should act. But if one of the party objects to the conduct or acts of the other party on the ground that it is against normal course of human conduct or normal sexual activity, and still he/she is compelled to do the same, then it can only be termed as cruelty both physical and mental. If the conduct and character of a party causes misery and agony to the other spouse, the said conduct would certainly be an act of cruelty to the spouse justifying the grant of divorce. Subjecting the wife to sexual perversions against her will and consent is certainly an act of mental as well as physical cruelty.”

The Court passed the above order in two matrimonial appeals filed by the appellant-wife against the respondent-husband alleging cruelty and desertion.

The appellant had initially approached the Family Court for divorce alleging cruelty and desertion in 2014. The husband filed a petition seeking restitution of conjugal rights in 2017. The Family Court dismissed the divorce petition and allowed for the restitution of conjugal rights. Aggrieved by this, the appellant-wife approached the High Court.

The facts were that the appellant and respondent got married in 2009 and after 17 days, he left for employment abroad. The appellant alleged that the respondent had physically and mentally harassed her during their cohabitation. It was also alleged that he would subject her to sexual perversions and would physically assault her for failing to obey his demands. After the respondent left for employment abroad, the appellant alleged that the in-laws sent her out of her matrimonial home. She also alleged that the respondent never contacted or cared to maintain her until she approached the Court for divorce and maintenance.

On the other hand, the respondent denied all allegations of sexual abuse, physical and mental cruelty and sought restitution of conjugal rights. It was also submitted that no such allegations were raised in the earlier petitions filed for maintenance or return of gold ornaments. Thus, the respondent argued that such allegations were made up only for seeking divorce.

The Court took serious note of the allegations raised by the appellant against the respondent. “It is true that in the petition the torrid details of the sexual perversions have not been referred to. However, it is quite clearly pleaded that the respondent had subjected her to sexual perversions”, the Court stated.

The Court also stated that the questions asked in the cross-examination to the appellant regarding the sexual perversions committed by the respondent were totally unnecessary. Relying upon Sections 140, 151 and 155 of the Evidence Act and Deb Narayan Halder v. Anushree Halder (2003), State of U.P. v Raghubir Singh (1997), Mahammad Mian v. Emperor, it held that Court has complete dominion to forbid unwarranted and indecent questions asked to insult or annoy the appellant.

“….if inquiries involving any scandalous matters are made with a purpose of shaking the credit of a witness, the court has complete dominion over them and may forbid such questions even though they may have some bearing on the question before the Court. But the Court may have no discretion to forbid such questions if they relate to the facts in issue or to matters necessary to be known to determine whether or not the facts in issue existed. In our opinion, the aforesaid questions put to the petitioner was totally unwarranted and so the petitioner cannot be blamed for refusing to further answer to the highly objectionable line of questioning”, the Court stated. 

The Court also noted that the appellant did not have to describe details of sexual perversions in earlier cases filed for return of ornaments or maintenance.

The Court found that the sexual acts were committed by the respondent against the consent and will of the appellant. It held that since the sexual acts had caused the appellant misery and agony, it would amount to physical and mental cruelty. It noted that even if there was no sufficient evidence to prove allegations of desertion, divorce could be granted since the appellant was subjected to sexual perversions against her will.

Accordingly, the Court allowed the matrimonial appeals and dissolved their marriage.

Counsel for the appellant: Advocate Asha Babu

Counsel for the respondents: Advocates Santhosh Subramanian, E A Thankappan, S Sreekumar, Sherry J Thomas, Joemon Antony

Citation: 2024 LiveLaw (Ker) 6

Case title: X v Y

Case number: Mat. Appeal Nos.24 and 65 of 2020

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