The Kerala High Court recently held that subjecting a wife to sexual perversions against her will amounts to mental as well as physical cruelty, entitling her to divorce [X v. Y]. A division bench of Justices Amit Rawal and CS Sudha said that while different persons may define sexually perverse acts differently, if one of the parties engaging in sex objects to the same but the other person continues with it, that would amount to cruelty.

People’s opinions vary regarding the act or acts that qualify as sexual perversion. One person’s perversion may not be another’s perversion. It is up to two consenting adults to decide how and what way to behave during a private moment of coitus in their bedroom. However, if one party objects to the other’s behavior on the grounds that it goes against accepted sexual norms or human conduct and is nevertheless forced to engage in it, that behavior can only be described as physical and mental cruelty, the Court stated. It was decided that these kinds of events between partners would be adequate grounds for divorce.

“If the conduct and character of a party causes misery and agony to the other spouse, the said conduct would certainly be an act of cruelty to the spouse justifying the grant of divorce. Subjecting the wife to sexual perversions against her will and consent is certainly an act of mental as well as physical cruelty,” the Court held in its judgment. The judgment was rendered on two matrimonial appeals moved by a woman challenging two orders of a family court. The first order dismissed her plea seeking divorce. The second order allowed her husband’s plea seeking restitution of conjugal rights.

The appellant-wife and her husband got married in 2009 and the husband purportedly left and went abroad for employment after 17 days of cohabitation.

The wife claimed that over the course of these 17 days, her husband had physically abused her when she objected, forced her to imitate scenes from pornographic movies, and exposed her to sexual perversions. She further claimed that her in-laws forced her to leave the married residence when her husband departed. She added that he didn’t give her any maintenance until she filed for divorce in family court.

The husband said that everything was made up just to get a divorce and refuted all of the accusations. Additionally, he claimed that the accusations had not been raised in previous petitions his wife had submitted asking for maintenance and the return of gold jewelry.

The wife provided a detailed account of the physical and sexual abuse during her cross-examination during the trial of a criminal case in which the husband was accused of cruelty (Section 498A, Indian Penal Code), the Court observed, despite the fact that the pleadings did not contain specific details of the abuse.

Examining a copy of the deposition in that case, the High Court objected strongly to the fact that the Magistrate overseeing the case had not prevented the husband’s attorneys from questioning her, deeming the questions “totally unnecessary, indecent, and inappropriate”.

Despite the husband’s acquittal in the criminal case, the court declared that conclusions drawn from criminal proceedings do not apply to similar civil proceedings.