Read Time: 08 minutes

Synopsis

The Uttarakhand High Court has ruled that a wife's refusal to engage in anal sex due to physical incapacity does not constitute mental cruelty.

Justice Ravindra Maithani, presiding over the court made the observation while dismissing a petition filed by a husband challenging a family court's decision to direct him to pay maintenance to his wife and son under Section 125 of the Code of Criminal Procedure (CrPC).

The case arose from an application filed under Section 125 of the Code by respondent no.2 (the wife) and respondent no.3 (the son). According to the respondents, the revisionist (husband) and the wife were married on December 8, 2010. The wife alleged that after their marriage, the revisionist subjected her to harassment and torture related to dowry demands. She also accused him of engaging in non-consensual sexual acts, including repeated instances of anal intercourse, which caused her severe physical and mental harm. Additionally, the revisionist was accused of showing obscene videos to their child to force the wife into submission, behaving violently, and neglecting the child's education by not paying school fees.

The wife detailed numerous incidents of abuse, including an episode on September 16, 2016, where the revisionist allegedly attempted to force physical relations with her, leading her to leave the residence. She stated that the revisionist, who earns ₹97,254 per month, had failed to provide financial support to her and their son since that incident.

The revisionist, in his defence, denied all allegations. He argued that the wife was highly educated and capable of supporting herself. He claimed that after their marriage, he took her on multiple trips within India and abroad and that no dowry was demanded or given. He also contended that the wife had pre-existing health issues, including constipation and piles, and that her accusations were fabricated to extort money from him.

Furthermore, the revisionist cited the Supreme Court’s judgment in Navtej Singh Johar vs. Union of India (2018) to argue that anal sex is not an offence and that the wife’s refusal to engage in such acts did not constitute mental cruelty. He referenced the case of Samar Ghosh vs. Jaya Ghosh (2007) to support his claim that unilateral refusal to have intercourse could amount to mental cruelty.

The court meticulously examined the arguments and evidence presented by both parties. It noted that the revisionist did not provide substantial proof to refute the wife’s claims or demonstrate that she committed mental cruelty by refusing non-consensual acts. The court emphasised that “Unilateral decision of refusal to have intercourse per se may not amount to mental cruelty. If there is any physical incapacity or valid reason such refusal may not amount to mental cruelty.”

The court observed that the revisionist failed to produce evidence supporting his claims about the wife’s health issues before their marriage. He did not provide medical records or other documentation to substantiate his assertions. The court highlighted that the revisionist had implicitly admitted the wife’s injuries, even though he attributed them to other causes like constipation and piles.

The court referred to its previous decision in a related case (C-482 petition), where it was held that Exception 2 to Section 375 IPC (pertaining to marital rape) could not be taken out while reading Section 377 IPC (pertaining to unnatural offences) in relation to husband and wife. This previous ruling indicated that acts not punishable due to Exception 2 to Section 375 IPC would also not constitute an offence under Section 377 IPC.

Given the evidence and the legal principles involved, the court concluded that the wife had valid reasons for refusing to participate in the alleged non-consensual acts and for staying separately. The court upheld the Family Court’s decision, affirming that the wife was entitled to maintenance.

In conclusion, the court found no merit in the revisionist’s petition and affirmed the Family Court’s decision. The revisionist was ordered to continue paying the stipulated maintenance of ₹25,000 to his wife and ₹20,000 to his son per month.

 

Cause Title: X v State of Uttarakhand [Criminal Revision No. 707 of 2023]