Prayagraj, 09 November: The Allahabad High Court has ruled that to seek divorce on the basis of refusal of sex, it must be shown that this refusal has been a continuous and ongoing issue for a long time. The bench of Justice Saumitra Dayal Singh and Justice Donadi Ramesh also said that what kind of physical intimacy the parties can maintain. This issue is not a matter of judicial determination.
The High Court said that “With regard to physical intimacy, what kind of relationship the parties can maintain is not a justiciable issue. It is not the job of the court to make any law about the exact nature of the private relationship between the two parties living in a marital relationship. To seek divorce on the basis of refusal of sex, such an incident has to be continuously in existence for a long time.
The court made this remark while dismissing an appeal filed by a husband challenging the judgment passed by the Principal Judge of the Family Court, Mirzapur, dismissing his divorce petition. The two parties (doctors by profession) were married in June 1999. They have two children, one of whom lives with his father and the other with his mother. While the husband-appellant set up his private practice in Delhi, his wife (respondent) was employed in the Indian Railways until she voluntarily retired.
After 9 years of their marriage, the appellant-husband initiated divorce proceedings in the Family Court, Mirzapur on the ground of cruelty, alleging that his wife (respondent) refused to have sexual intercourse under the influence of a religious teacher. The respondent wife denied the allegations and said that the birth of two children proves that they had a normal, healthy relationship.
Noting that the ground of cruelty levelled by the appellant-husband was not established during the trial. The court noted that prima facie evidence clearly shows that both the parties had a normal marital relationship in which they had two children within two years of marriage. Therefore, no ground of incapacity on the part of the wife can ever exist.
