In a marriage, a man denying sex to his wife and vice versa could amount to cruelty and may be a ground for divorce, the Delhi High Court observed on Saturday.
The chances of annulling a marriage could be higher if one of the partners denies sex to the other on the wedding night itself. The verdict was passed by Justice Kailash Gambhir while upholding the lower court's decision to grant divorce to a man who was refused sex by his wife on their wedding night and was subsequently made to wait for the next five months.
The couple had got married on February 17, 1991 and the lower court verdict allowing divorce to the husband was delivered in February 2001.
In this case, the testimony of the husband that the wife was never responsive and was like a dead wood when he had sexual intercourse with her remained unchallenged, paving way for the court deciding in the man's favour.
The court took cognizance of the wife's decision to deny sex to the husband, especially on the very first night, and then not to actively participate in it, as an act of cruelty and a blow to the institution of marriage.
Citing various Supreme Court judgments on the issue, Justice Gambhir said it is evident that wilful denial of sexual intercourse without reasonable cause would amount to cruelty.
The high court, however, said the frequency of sex cannot be the only parameter to assess the success or failure of a marriage as it differs from couple to couple as to how much importance they attach to the sexual relationship vis-a-vis the emotional attachment.
There may be cases where one partner may be overtly sexual and the other may not have the desire to the same level, but otherwise is fully potent, the court observed.
The high court said in matrimonial cases, more often than not it is a challenging task to ascertain as to which party is telling the truth as usually it is the oral evidence of one party against that of the other. What happens within the bedroom is either known to the couple themselves or at the most to the members of the family.
'Whether the couple has had sex and how many times or have had no sex and what are the reasons can only be established through the creditworthiness of the testimonies of the parties themselves,' the court said.
Consequently, the absence of a proper rebuttal would certainly lead to acceptance of testimony of that witness whose deposition remains unchallenged, the high court said while dismissing the appeal of the wife.