Madras High Court: In a civil miscellaneous appeal filed against the judgment passed by the Family Court, wherein the Court dismissed the divorce petition of the husband concluding that the ground under Section 13(1)(ia) and (v) of the Hindu Marriage Act, 1955,(‘HMA’) had not been established, the division bench of G.R. Swaminathan* and R. Poornima, JJ. while upholding the Family Court’s judgment, held that:
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Indulging in self-pleasure could not be grounds for the dissolution of marriage. This could not be considered cruelty to the husband.
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It was not sufficient to merely show that the wife was suffering from a venereal disease, Section 13(1)(v) of HMA must have been interpreted to ensure that the afflicted party had been allowed the opportunity to prove that their condition had not been caused by any fault of their own.
Background
The marriage between the parties was solemnized in 2018 as per Hindu rites and customs. No children were born from the marriage. The parties have been living separately since 09-12-2020.
Seeking restitution of conjugal rights, the wife filed a petition before the Sub Court, Karur, which was later transferred to the Family Court. Later, the husband filed a divorce petition. After considering the evidence, the Family Court allowed the petition filed by the wife and dismissed the husband’s divorce petition. Challenging the same, the husband filed the present civil miscellaneous appeals.
Analysis and Decision
The Court noted that the husband sought to dissolve this second marriage, citing two grounds:
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The wife had been suffering from a venereal disease in a communicable form.
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Conduct of the wife had constituted cruelty.
The Court highlighted that Section 13(1)(v) of HMA provided for the dissolution of marriage on the grounds that the other party had been suffering from a venereal disease in a communicable form. However, such an allegation carried a serious stigma, and therefore, strict proof was required to substantiate it. The Act outlined seven grounds on which divorce could be sought, but the grounds of adultery and communicable venereal disease required a higher threshold of evidence.
In this context, the Court emphasised that the mere fact that one party had been suffering from a venereal disease was not sufficient grounds to grant a divorce. The affected party had to be given the opportunity to demonstrate that the condition had not been caused by any morally deviant conduct, but rather by circumstances beyond their control.
Therefore, the Court held that Section 13(1)(v) of HMA must have been interpreted to ensure that the afflicted party had been allowed the opportunity to prove that their condition had not been caused by any fault of their own. Even if a party had been suffering from a venereal disease in a communicable form, they must have been given the chance to defend themselves against the claim.
The Court concluded that the husband had miserably failed to prove the allegation that the wife was suffering from the condition mentioned in the provision. The Court noted that the husband had failed to file any interim application to subject the wife to any medical test or examination. No diagnostic report was marked as evidence. Instead, the documents submitted were discharge summaries and other reports issued by an Ayurvedic center where the wife had been admitted for rejuvenation treatment. Upon reviewing these discharge summaries, the Court concluded that there was insufficient evidence to support that the wife was suffering from any venereal disease.
The Court stated that it was not as if the divorce petition had been filed the day after contracting the marriage. The parties had resided together for close to two years. During this period, if the husband had entertained the suspicion mentioned in the divorce petition, he would have certainly taken the wife to a specialist doctor for examination. However, no medical witness was examined. In fact, the statutory provision could only be satisfied by proving that the wife was suffering from a venereal disease in a communicable form.
The Court added that if the wife had been suffering from the disease as alleged by the husband, he himself would have also been affected. In his legal notice, the husband claimed that he suffered from physical ailments after having sexual intercourse with his wife and that he had taken treatment for the same. If that had been the case, he should have submitted his medical reports. However, he had not done so. Therefore, the Court concluded that a false allegation had been made.
The Court stated that it appeared the wife had been experiencing some gynecological issues. According to the wife, she only had vaginal discharge, medically known as leukorrhea, which is recognized as easily treatable. Therefore, the Court held that the family Court rightly concluded that the ground under Section 13(1)(v) had not been established.
Considering the other ground raised by the husband that the wife had treated him with cruelty, the Court noted that the institution of the petition was not preceded by any legal notice. The legal notice was issued almost contemporaneously and was silent on most of the allegations made above. To establish his case, the husband examined only himself. One of the charges made by him was that the wife ill-treated her in-laws. The Court said that to prove this, he could have examined at least one of them, but he had not done so. None of the allegations made by the husband had been substantiated or corroborated.
Further, noting the allegation of the husband that the wife used to watch porn and indulge in masturbation the Court said that watching porn (other than the statutorily prohibited type) in a private setting would not constitute an offence.
Having said so, the Court clarified that any addiction is harmful, and porn addiction, in particular, is detrimental. It would affect the viewer in the long run. Since it objectifies women and portrays them in a degrading manner, it cannot be morally justified. However, personal and community standards of morality are one thing, and breach of law is another. As long as the wife’s actions had not violated the law, the husband could not seek divorce on this ground.
The Court highlighted that Section 13(1)(i)(ia) provides that a marriage can be dissolved if the respondent has “treated the petitioner with cruelty”. In other words, the cruel conduct emanating from the respondent must be directed towards the petitioner. If the act in question concerns the respondent alone and is not directed towards the petitioner, the act by itself would not constitute cruelty. The term “treat” denotes intentional conduct. Thus, in the present case the act of the wife merely watching porn privately would not, by itself, constitute cruelty to the husband. While it may affect the psychological health of the viewing spouse, that alone would not amount to treating the other spouse cruelly. Something more is required. If a porn watcher were to compel the other spouse to join in, that would certainly constitute cruelty. If it were shown that the addiction had an adverse impact on the discharge of one’s conjugal obligations, it could then furnish an actionable ground for divorce
The Court noted that the husband’s case was that the wife would endlessly watch porn on her mobile phone. However, the husband did not request a forensic examination of his wife’s mobile phone.
The other allegation was that the wife would indulge in masturbation, to which the Court said that calling upon a woman to respond to this averment was seen as a gross infringement of her sexual autonomy. If, after contracting marriage, a woman engages in sexual relations outside of the marriage, it could furnish a ground for divorce. However, indulging in self-pleasure could not be grounds for the dissolution of marriage. By no stretch of the imagination could it be considered cruelty to the husband. The statute mandates that unless it is shown that the petitioner has been treated with cruelty, the conduct of the respondent cannot attract Section 13(1)(i-a).
The Court remarked that “while masturbation among men is universally acknowledged, masturbation by women cannot be stigmatized. While men may not engage in sexual intercourse immediately after masturbating, that would not be the case with women. It was not established that the conjugal relationship between the spouses would suffer if the wife had the habit of masturbation”.
The Court referred to Rajive Ratori v. UOI , 2024 SCC OnLine SC 3217, and observed that since privacy is a fundamental right, it includes spousal privacy. The contours of spousal privacy encompass various aspects of a woman’s sexual autonomy. As long as something does not violate the law, the right to express oneself cannot be denied.
The Court remarked that “Self-pleasure is not a forbidden fruit; its indulgence shall not lead to a precipitous fall from the Eden garden of marriage. After marriage, a woman becomes a spouse but she continues to retain her individuality. Her fundamental identity as an individual, as a woman, is not subsumed by her spousal status”.
The Court noted that the wife, in her testimony, denied all the allegations made by the husband. If the husband’s allegations were true, it seemed improbable that they would have remained together for close to two years. The husband did not provide any evidence to show that the wife failed to perform household chores.
The Court said that after a careful assessment of all the evidence on record, the Family Court concluded that the husband had failed to prove his case. Upon re-appreciating the evidence, the Court was unable to take a contrary view. Therefore, the Court confirmed the order passed by the Family Court.
[X v. XX, C.M.A(MD) Nos.460 & 1515 of 2024, decided on 19-03-2025]
*Judgment Authored by: Justice GR Swaminathan
Advocates who appeared in this case:
For Appellant : Mr.G.Gomathisankar
For Respondent : Mr.S.Gokulraj
