Wife's Refusal Of Carnal Intercourse Against Order Of Nature Due To Physical Incapacity Not Mental Cruelty: Uttarakhand HC

A bench of Justice Ravindra Maithani observed thus while dismissing a criminal revision plea moved by a husband challenging a family court's order directing him to pay ₹25K per month to his wife (respondent no.2) and ₹20K per month to his son (respondent no.3) as maintenance under Section 125 CrPC.

The case in brief

The couple got married in December 2010, but the wife was allegedly harassed and tortured over dowry demands. In her Section 125 CrPC plea, the wife (respondent no. 2) accused the husband (revisionist) of repeatedly committing anal sex against her will, leading to severe health issues.

It was alleged that he also showed obscene videos to their child to coerce the wife, behaved violently, and neglected the child's school fees. It was also claimed that the wife had to get hospitalized multiple times due to injuries from forced anal sex and was also treated at various hospitals.

Further, the husband allegedly assaulted the wife again on September 16, 2016, after which she left him. Since then, he has not maintained her or their son despite earning over Rs. 97,000/- monthly.

The family court allowed the application and directed the husband to pay Rs. 25K as maintenance to the wife and Rs. 20K as maintenance to son. Challenging this order, the husband moved to the High Court.

Denying the allegations levelled by the wife, the revisionist claimed that he did his best to entertain his wife and did not ask for any dowry during or after the marriage.

It was further submitted that his wife herself withdrew from the company of the revisionist on the ground that he committed anal sex with her. It was also argued that anal sex is no offence, given SC's judgment in the case of Navtej Singh Johar and others 2018.

Notably, the husband's counsel argued that since a husband may not be held liable for the offence under Section 377 IPC qua wife, the wife may not deny the husband to commit such an act.

It was submitted that if it is done, this unilateral decision of refusal to have intercourse for a considerable period would amount to mental cruelty against the husband.

High Court's observations

Against the backdrop of these facts and submissions, the Court, at the outset, noted that while filing objections to the wife's application u/s 125 CrPC, the Husband-revisionist had nowhere stated that the mental cruelty was committed to him by his wife by denying carnal intercourse against the order of nature.

The Court further noted that the wife had specifically claimed that her husband (the revisionist) forcibly engaged in carnal intercourse against the order of nature, causing her injuries that required hospital treatment.

In fact, the Court observed that the wife had been examined, and she supported her case wherein she stated that she was not agreeable to carnal intercourse against the order of nature.

On the other hand, the Court noted the husband claimed she had pre-existing medical issues of constipation and piles, treated even before marriage, and continued treatment in Germany; however, the husband did not produce evidence to support his claims.

Importantly, the Court took into account the fact that the husband had admitted that the anus of his wife was injured, although he had given other reasons like constipation and piles; however, he had failed to establish this fact by documents or otherwise.

In view of this, the Court concluded that the wife's refusal to have carnal intercourse against the order of nature had valid reasons, as she was physically incapable of doing so because she had injuries. Therefore, the Court held that this refusal does not amount to mental cruelty.

The Court further said that respondent no.2 had sufficient reasons to stay separate from the revisionist; hence, no relief was liable to be provided to the husband.

Case title - Dr. Kirti Bhushan Mishra vs. State of Uttarakhand and others

Case Citation :

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