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Wife is entitled to divorce on grounds of cruelty if subjected to sexual perversion without consent: Kerala High Court

The Kerala High Court recently held that a wife is entitled to divorce if subjected to sexual perversions against her will amounting to physical as well as mental cruelty.

The division bench of justices Amit Rawal and CS Sudha observed “Perceptions of people differ on what act(s) constitute sexual perversion. What may be perversion to one, may not be perversion to another. 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 the 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.”

The court was hearing two appeals filed by the wife challenging the two orders of the family court, one dismissing the wife’s plea for divorce on grounds of cruelty and desertion and the other allowing the husband’s plea seeking restitution of conjugal rights.

The brief facts of the case were that the parties got married in 2009. After the marriage, the parties cohabited for 17 days. Thereafter the husband left for his place of employment abroad and the wife was sent out of the marital home by her in-laws after 3 months of marriage. During her brief period of cohabitation with the respondent, The husband used to subject her to sexual perversions and when she refused to obey his directions, he had physically assaulted her. The petitioner through her mother had also filed a criminal complaint against the respondent and his family.

The court also noted that while the pleadings did not contain specific details of physical and sexual abuse, the wife had described them in detail when she was cross-examined during the trial of a criminal case in which the husband was charged with cruelty.

The husband denied the allegations and contended that he had never sexually abused her. The husband had filed a petition seeking restitution of conjugal rights as he claimed that it was without any reasonable cause the wife was staying apart. Whereas, the wife in her counter denied the allegation that she was residing separately without any reasonable cause and reiterated her contention.

the husband was acquitted in the criminal case. however, the Court stated that findings in criminal proceedings are not biding in civil proceedings of the kind that the High Court was considering in this case.

the court held that the husband’s conduct that causes misery and agony to the wife would certainly amount to cruelty.

The court stated, “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.”

Thus, the court set aside the orders of the family court and granted the decree of divorce.

The court further directed the registry not to show the name or address of the parties in the cause title to protect the privacy of the parties. The appellant/ petitioner/wife will be referred to as ‘X’ and the respondent/husband as ‘Y’.

Written by Shagun Behal

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