June 12, 2018
In a recent case, the High Court of Punjab & Haryana has made a remarkable judgment by holding that act of sodomy, forcible sexual intercourse and adoption of unnatural means which are forced upon the other spouse and result for unbearable pain to the extent that one is forced to stay away would certainly be a ground to seek separation or decree of divorce.
The appellant wife in the case sought for divorce on the ground that she was treated with cruelty on account of barbarous and abhorrent obscene obnoxious acts of the respondent. It is averred in the petition that the respondent committed forcible sexual acts against her wishes and moods even during the painful period of menses. It was also alleged that the respondent after taking liquor committed sodomy forcibly on account of which painful hue and cry was never cared for and that he continued with his illegal sexual behaviour. Moreover, when prevented from the painful acts the respondent would give beatings to the appellant physically and mentally. He persistently committed sodomy and despite the resistance of the appellant, she was forced to continue with the unnatural behaviour of the respondent.
The Lower Court dismissed the divorce petition on the ground that the marriage is a sacrament and not a contract and that a heavy onus lay upon the appellant to establish the allegations of commission of oral sex and unnatural sex by the respondent for which no medical evidence or specific instance.
The High Court of Punjab & Haryana set aside the Lower Court’s judgment and made the following observations in the case:
- That the totality of the circumstances available on the record indicate that the appellant has, on account of unbearable circumstances left the matrimonial home. No wife having a child would abandon her matrimonial home if there are no compelling circumstances. The compelling circumstances have been pleaded by the appellant and also proved by her by producing her affidavit.
- That merely because the respondent husband has filed a petition under Section 9 of the Hindu Marriage Act is not sufficient enough to arrive at a conclusion that the respondent has made genuine actual efforts for reunion.
- That the act of sodomy, forcible sexual intercourse and adoption of unnatural means which are forced upon the other spouse and result for unbearable pain to the extent that one is forced to stay away would certainly be a ground to seek separation or decree of divorce.
- That no doubt such allegations are very easy to level and difficult to prove. A Court has always to be cautious before accepting such allegations but at the same time if on appreciation of evidence and nature of the allegations corroborated by other circumstances, it is established that it is probable that one of the spouses has indulged in above said unnatural acts, the marriage can be dissolved by a decree of divorce.
- The Court also highlighted the proposition that it is not necessary that in every case such allegations levelled would be deemed to be true. With reference to the facts of the present case, the Court noted that apart from allegations of the unnatural and forced sex there were also allegations of demand of dowry, beating.
In view of the aforesaid facts and circumstances, the High Court held that the appellant wife had been treated with cruelty by the respondent and the cruelty in the case was both physical and mental, accordingly, the Court allowed the appeal and the marriage of the appellant with respondent was dissolved.
The entire case can be accessed here.