Private affairs come out

Private affairs come out in divorce courts

By Rohan Venkataramakrishnan 

Last week’s Delhi High Court decision made it clear – how you act in the bedroom could soon be a subject of discussion in the courtroom. And, with rising divorce rates and more couples heading to the courts to settle their marital concerns, the issue is bound to come up.

“I’m getting to hear this a lot over the last three or four months,” said Hasan Anzar, a partner at ANZ Lawz, which also runs India’s first ‘exclusive’ divorce law firm, DivorceLawyers.co.in. “Of late, we do hear a number of cases where spouses deny sexual favours, and this becomes part of the case.” 

Delhi High Court's Justice Kailash Gambhir upheld the grant of divorce to the man whose wife made him wait for five months for sex. “This court would like to observe that 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 due to sexual incompatibility and absence of sexual satisfaction,” the court said in its decision.

In that particular case, the husband argued that denying sex amounted to cruelty — which becomes a grounds for divorce. The idea is not new, according to Supreme Court advocate Meenakshi Lekhi, who says that numerous judgments have said sex is a vital part of the marital contract. In a Supreme Court judgment by Justice Syed Murtaza Fazalali in 1981, the court also endorsed a 1973 Delhi High Court’s order suggesting that it wasn’t just the sex, but also what sort of sexual activity that could be considered in divorce proceedings.

“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,” the court said in its judgment, also citing an earlier case. “It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a women's mind and body. The result being that if she does not get proper sexual satisfaction, it will lead to depression and frustration.” 

More and more litigants are resorting to denial of sex or sexual incompatibility as a grounds for divorce, despite the public washing of dirty laundry that would come attached with discussing this in court. “ It is becoming common for the woman to withold sex,” Anzar said. 

Divorce cases tend to turn on the grounds for seeking a break in the marital contract, which often ends up in attempting to establish ‘cruelty’ of some sort. While this might change if the new proposed amendments allow any spouse to seek a divorce because of ‘irretrievable breakdown of marriage’ – currently being considered by parliament – for now people have the concern that has led to the divorce.

“Sex sanctifies the marriage, and if it is missing, the whole edifice will crumble. If the physical needs are not answered, then it would violate the sanctity of marriage – which helps you establish the grounds,” Anzar said.

Despite public washing of laundry in court which comes along, more and more litigants are resorting to denial of sex or sexual incompatibility as grounds for divorce.