(2013) 305 KLR 235

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.D.RAJAN

THURSDAY, THE 21ST DAY OF MARCH 2013/30TH PHALGUNA 1934

Mat.Appeal.No. 405 of 2011

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OP(MM)NO.753/2007 OF FAMILY COURT, ALAPPUZHA

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APPELLANT/RESPONDENT:

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SANJAN,AGED 37 YEARS, S/O.SAINUDHEEN KUNU ASAN, AMBATTU VEEDU, MANNANCHERRY, ALAPPUZHA.

BY SRI.K.RAMAKUMAR,SENIOR ADVOCATE ADV. SMT.SMITHA GEORGE SMT.ASHA BABU

RESPONDENT /PETITIONER:

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AZARA,AGED 32 YEARS,D/O.ABOOBACKER, ERAVE VELIYIL VEETTIL, MANNANCHERRY.PIN-688 538

BY ADV. SRI.P.K.IBRAHIM, CAVEATOR SRI.UDAYAKUMAR SREEDHARAN

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05-03-2013, THE COURT ON 21-03-2013 DELIVERED THE FOLLOWING: sts 

PIUS C. KURIAKOSE & P. D. RAJAN, JJ.

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Mat. Appeal No. 405 of 2011

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Dated this the 21st day of March, 2013

Head Note:-

Dissolution of Muslim Marriage Act, 1939 - Section 2 - Marriage without sex - Proper denial of sexual intercourse with the other partner amount to cruelty which is a good ground for divorce.

Held:- Appellant is normally a healthy man, but he refused to sex with the respondent when she likes and express her wishes. Marriage without sex is a denunciation. Sex is the foundation of marriage and without vigorous and harmonious sexual activity, it would impossible to persist a marriage longer. The marriage is consummated, when parties have sexual intercourse after the solemnization of marriage, which must be complete and not partial. Denial of sexual activity would create depression and frustration in a woman's mind and body. In such situation, practical and pragmatic approaches must be taken by the courts. No chronic ailment was reported for his reluctance. There is no allegation of malformation of structural defect and abnormal size of the organ of the respondent, which are the physical ground for reluctance. Willful refusal to consume the marriage is a good ground for divorce under the Parsi Marriage and Divorce Act. In Horton V. Horton (1947) 2 All ER 871, Lord Jowitt observed that "willful refusal" connotes a settled and definite decision without just cause". Therefore, we are of the opinion that if husband refused to sex with his wife, when she demands for the same, is a ground for "cruelty". As a wife she is expecting a healthy sexual relationship with her husband for the persistence of happy and harmonious married life. If this avoidance is deliberate, we cannot blame the husband for the cruelty, if the reluctance is due to ill-health or other mental displeasure that fact is to disclose to the wife when she attempts for sexual intercourse. Her pathetic disclosure in her evidence was that when she was anxious for sexual intercourse, the appellant willfully avoided her which would amount to a mental cruelty when both are well qualified and employed in reputed universities. Both parties admitted that they are physically healthy and capacity to have sexual intercourse. Therefore, we observe that In the circumstances, we find no reason to interfere with the finding recorded by the Family Court.

J U D G M E N T 

Rajan, J.

This appeal is directed against the order in O.P.(MM) No.753/2007 of the Family Court, Alappuzha. Appellant is the husband and respondent is the wife in this appeal. Wife preferred the above petition in the Family Court for dissolution of marriage under section 2 of Dissolution of Muslim Marriage Act, 1939 (for brevity 'the Act').

2. The facts in nutshell are as follows:-

Appellant married the respondent on 16-5-1999 according to Muslim religious rites and after that both of them resided together in the matrimonial house. A child was born to them on 17-8- 2004 and the appellant did not care to meet the hospital expenses for the delivery. Before the marriage the father of the respondent entrusted Rs.3 lakhs to the appellant, which was misused by the appellant. The respondent was also given 75 sovereigns of gold ornaments by her parents and out of which 45 sovereigns were taken away by the appellant for his sister's marriage. Five months after delivery, for a few days and lastly in February, 2004 the appellant had sexual intercourse with the respondent. After that he avoided the respondent and refused to have sexual intercourse with her. Even though the respondent persuaded him, he failed to discharge his matrimonial obligation for more than three years preceding from the date of petition. After delivery when she returned to her matrimonial house, the appellant demanded Rs.7 lakhs as dowry and demanded a car. When she was incapable to pay the amount, she was harassed mentally. Moreover, when she was residing with him, he did not maintain her. He did not take care in giving her dresses or meeting medical expenses in her day today life. When the appellant demanded more amount as dowry, she left the matrimonial home in January, 2006. Now their matrimonial relationship is irretrievably broken and the respondent approached the Family Court for a decree of dissolution of the marriage.

3. The husband resisted the above said facts contending, inter alia, that the wife was having only less than 40 sovereigns of gold at the time of the marriage and none of the gold was taken by him or his parents. There was no mental or physical harassment from his side and there was no demand for dowry. He paid all hospital expenses, when she was admitted in the hospital for delivery and thereafter. It was out of his income, the respondent studied P.G. Degree, B.Ed. Course, SET and got employment in Cochin University as an Assistant. He was not aware under what circumstances 20 cents were given to her by her parents. He contended that no legal grounds are put forward by the respondent for a decree of divorce and prays to dismiss the petition.

4. The Family Court tried both petitions (i.e., O.P. (OS) Nos.752 and 753 of 2007) jointly and recorded evidence in O.P.(OS) No.753/2007. Both parties adduced both oral and documentary evidence, which consist oral testimony of PWs. 1 to 3 and RWs. 1 to 3 and documentary evidence of Exts.A1 to A19 and Exts.B1 to B6. Court exhibits were Exts.C1 and C2 and third party exhibit was Ext.X1. The Family Court after sifting and weighing the evidence on record, decreed the suit by declaring that the marriage between the appellant and respondent was dissolved from the date of the decree. Being aggrieved by the aforesaid decision of the Family Court, the husband preferred this appeal.

5. Sri V. Ramakumar, learned senior counsel appearing for the appellant, contended that there was no allegation in the petition that the matrimonial relationship between the appellant and the respondent was broken irretrievably. The alleged cruelty of non-sex is not pleaded and proved in this case. The marriage between the appellant and the respondent was solemnized according to Muhammadan Law. Section 2(ix) of the Act was not pleaded in the Family Court. In the proof affidavit also no grounds are mentioned. The respondent is not entitled to get a decree of dissolution of marriage.

6. Sri. P.K.Ibrahim, the learned counsel appearing for the respondent, per contra, would submit that the Family Court verified the entire pleadings and recorded the finding on proper appreciation of evidence. The totality of the pleading and evidence show that the marriage was irretrievably broken, impossible for the husband and wife to live together, and emotional bond between them is extinct. After February, 2004 the appellant refused to have sexual intercourse with the respondent and denied sex, even though she persuaded him. The appellant failed to discharge his matrimonial obligation for the last three years, which shows that the marriage is irretrievably broken. The appellant was also very cruel and he did not care to attend the respondent during her first and second delivery. He ill-treated her both mentally and physically. After getting the decree for dissolution of the marriage, she re-married and the marriage was registered with the Kerala Registration of Marriage Rules, 2008. Registering authority issued a marriage certificate.

7. Considering the tenability of the argument and the conclusion arrived at by the Family Court, the question which arises for consideration is whether the alleged cruelty of non-sex is proved and if so, on that ground it can be say that marriage is irretrievably broken?

8. In this context, we have considered the relevant law regarding the Act. Section 2 of the Act reads as follows:-

"2. Grounds for decree for dissolution of marriage-- A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely--

i) that the whereabouts of the husband have not been known for a period of four years;

ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;

iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

v) that the husband was impotent at the time of the marriage and continues to be so;

vi) that the husband has been insane for a period of two years or is suffering from leprosy or virulent venereal disease;

vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years; Provided that the marriage has not been consummated;

viii) that the husband treats her with cruelty, that is to say,--

a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill- treatment, or

b) associates with women of evil repute or leads an infamous life, or

c) attempts to force her to lead an immoral life, or

d) disposes of her property or prevents her exercising her legal rights over it, or

e) obstructs her in the observance of her religious profession or practice, or

f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;

ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim law."

9. The concept of "marriage" among Muslim from the very beginning itself regarded as a contract. Muslim marriage has been defined as a civil contract for the purpose of legalizing sexual intercourse and procreation of children. It is not a sacrament but a contract, though solemnized generally with the recitation of certain verses from the Koran. Muslim law does not prescribe any religious service essential for solemnization. Krishna Iyer, J. in Islamic Law in Modern India considered the concept of Muslim marriage and stated that "in its legal connotation, Muslim marriage is essentially a contract, though marriage as a social institution is regarded solemn all over the civilized world, including the Muslims".

10. Keeping in mind of the above explicit principles, we have analyzed the evidence of PW1, which would show that after the marriage both the appellant and the respondent resided together in the matrimonial home. On 9- 5-2003 the respondent delivered a child which was dead in the womb itself. After this the appellant ill-treated her both physically and mentally by demanding more amount and gold as dowry. Subsequently, she became pregnant and delivered a child on 17-8-2004 at Medical Centre, Ernakulam by cesarean. This time also appellant neither visited her nor met the expenses in the hospital. When the appellant and his parents demanded more amount, her parents transferred 20 cents of property by virtue of sale deed No.3444/2005 of S.RO. Mararikulam in her name. Appellant declined to give care and protection to her, avoided her company and hesitant to have sexual intercourse with her.

11. The respondent affirmed that after February, 2004, the appellant was unenthusiastic to sexual intercourse with the respondent. If the wife is subjected to insults and behaved cruelly, it would make the married life became very unhappy and miserable. Denial of Medical treatment to the wife at the time of delivery and non- payment of the expenses would amount to "cruelty". In the cross-examination of PW1 nothing was brought out to discredit her evidence, but she admitted that after the marriage the husband had sexual intercourse with PW1 only for limited days. The appellant (RW1) contended that there was no ill-treatment both physically and mentally towards PW1 and there was no demand for dowry. RW1 admitted that he has normal intercourse with her and in that relationship both children born to them, but this part of his evidence is sleek and slender. PW2 and PW3 deposed about money transaction at the time of marriage. The wife alleges willful neglect of the husband, when she was admitted in the Medical Trust Hospital for her two deliveries. The husband's failure to provide medical aid and care when she was admitted in the hospital is a serious one. This willful neglect or avoidance is a deliberate departure from the normal marital life which will come within the ambit of "constructive desertion".

12. In this situation, we have considered the behaviour of the husband i.e., refusing to sexual intercourse with wife, which amounts to cruelty and on that ground the marriage between the appellant and respondent is irretrievably broken. It is clear from the evidence of PW1 that the appellant refused to sex with her from February, 2004 onwards. She has a right to marital intercourse from her husband during the subsistence of her marriage. The question of cessation of sexual intercourse which constitutes a ground for divorce was considered by the Rajastan High Court in Lalita V. Radha, AIR 1976 Raj 1, and held that continuous ill-treatment, cessation of marital intercourse, studied neglect or indifference, indulging in love affairs with another woman and then promising her to marry are acts which constitute "cruelty".

13. The proposition of willful denial of sex and its impact have been considered by Delhi High Court in Shakuntala V. Om Parkash, AIR 1981 Del. 53,which held as follows:-

"A normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this is not possible due to ill health on the part of the one of the spouses, it may or may not amount to cruelty depending upon the circumstances of the case. But willful denial of sexual relationship by a spouse when the other spouse is anxious for it, would amount to mental cruelty, especially when the parties are young and newly married.

(emphasis supplied)"

In another decision Rita V. Balkrishan Nijhawan, AIR 1973 Del 200, the Delhi High Court observed thus:

".. the law is well settled that if either of the parties to a marriage being of healthy physical capacity refuses to have sexual intercourse, the same would amount to cruelty entitling the other to divorce. In our opinion, it would make no difference in law whether denial of intercourse is the result of sexual weakness of respondent disabling him from having sexual union with the appellant, or it is because of any wilful refusal by respondent.

(emphasis supplied)"

The above view was confirmed by the Supreme Court in Sirujmohedkhan V. Hafizunissa, AIR 1981 SC 1972 and held as follows:-

"6. We are of the opinion that if the husband was impotent and unable to discharge his marital obligation, how could he fulfill the main object of marriage, more particularly, under the Muhammadan law where marriage is sacrosanct contract and not a purely religious ceremony as in the case of Hindu law. This would certainly be a very just and reasonable ground on the part of the wife for refusing to live with her husband, as also in cases under the Hindu law or other laws.

xxx xxx xxx xxx

21... The matter deserves serious attention from the point of view of the wife. Here is a wife who is forced or compelled to live a life of celibacy while staying with her husband who is unable to have sexual relationship with her. Such a life is one of perpetual torture which is not only mentally or psychologically injurious but even from the medical point of view is detrimental to the health of the woman. Surely, the concept of mental cruelty cannot be different in a civil case and in a criminal case when the attributes of such a cruelty are the same."

14. This Court in Mohammed V. Sainaba Umma, 1987 (1) KLT 712, held that

"when an intolerable situation has been reached and partners are living with hostility for a considerable number of years, it is legitimate to draw an inference that the marriage has broken down in reality and the law should recognize it and try to end the relationship".

In the above situation, what the court has to look into is whether the above state of affairs continues and one of the spouses refuses to cohabit, which is the common obligation of a marital life, it cannot see as a temporary withdrawal.

15. Appellant is normally a healthy man, but he refused to sex with the respondent when she likes and express her wishes. Marriage without sex is a denunciation. Sex is the foundation of marriage and without vigorous and harmonious sexual activity, it would impossible to persist a marriage longer. The marriage is consummated, when parties have sexual intercourse after the solemnization of marriage, which must be complete and not partial. Denial of sexual activity would create depression and frustration in a woman's mind and body. In such situation, practical and pragmatic approaches must be taken by the courts. No chronic ailment was reported for his reluctance. There is no allegation of malformation of structural defect and abnormal size of the organ of the respondent, which are the physical ground for reluctance. Willful refusal to consume the marriage is a good ground for divorce under the Parsi Marriage and Divorce Act. In Horton V. Horton (1947) 2 All ER 871, Lord Jowitt observed that "willful refusal" connotes a settled and definite decision without just cause".

16. Therefore, we are of the opinion that if husband refused to sex with his wife, when she demands for the same, is a ground for "cruelty". As a wife she is expecting a healthy sexual relationship with her husband for the persistence of happy and harmonious married life. If this avoidance is deliberate, we cannot blame the husband for the cruelty, if the reluctance is due to ill-health or other mental displeasure that fact is to disclose to the wife when she attempts for sexual intercourse. Her pathetic disclosure in her evidence was that when she was anxious for sexual intercourse, the appellant willfully avoided her which would amount to a mental cruelty when both are well qualified and employed in reputed universities. Both parties admitted that they are physically healthy and capacity to have sexual intercourse. Therefore, we observe that proper denial of sexual intercourse with the other partner amount to cruelty which is a good ground for divorce. In the circumstances, we find no reason to interfere with the finding recorded by the Family Court.

In the result, the judgment and decree passed by the Family Court are confirmed. There is no merit in the appeal and the appeal is dismissed.

PIUS C. KURIAKOSE, JUDGE.

P. D. RAJAN, JUDGE.

nkm.