Citation: 1981 AIR 1972
Judgment by: S M Fazalali, J.
Bench: Fazalali, Syed Murtaza, JJ.

Purpose of keeping explanation to the second proviso to sub-section (3) of sec 125.

The object of introducing this provision was clearly to widen the scope and ambit of the term ‘just ground’ mentioned in the proviso. This provision is not exhaustive but purely illustrative and self-explanatory and takes within its fold not only the two instances mentioned therein but other circumstances also of a like or similar nature which may be regarded by the Magistrate as a just ground by the wife for refusing to live with her husband. Under the Code of 1973, this provision has been incorporated as Explanation to the second proviso to sub-section (3) of s. 125.

A clear perusal of this provision manifestly shows that it was meant to give a clear instance of circumstances which may be treated as a just ground for refusal of the wife to live with her husband. As already indicated, by virtue of this provision, the proviso takes within its sweep all other circumstances similar to the contingencies contemplated in the Amending provision as also other instances of physical, mental or legal cruelty not excluding the impotence of the husband.

These circumstances, therefore, clearly show that the grounds on which the wife refuses to live with her husband should be just and reasonable as contemplated by the proviso. Similarly, where the wife has a reasonable apprehension arising from the conduct of the husband that she is likely to be physically harmed due to persistent demands of dowry from her husband’s parents or relations, such an apprehension also would be manifestly a reasonable justification for the wife’s refusal to live with her husband. Instances of this nature may be multiplied but we have mentioned some of the circumstances to show the real scope and ambit of the proviso and the Amending provision which is, as already indicated, by no means exhaustive.

In other words, where a husband contracts a marriage with another woman or keeps a mistress this would be deemed to be a just ground within the meaning of the second proviso so as to make the refusal of the wife to live with her husband fully justified and entitled to maintenance. If this is so, can it be said by any stretch of imagination that where a wife refuses to live with her husband if he is impotent and unable to discharge his marital obligation, this would not be a just ground for refusing to live with her husband when it seems to us that the ground of impotence which had been held by a number of authorities under the civil law to be a good ground not only for restitution of conjugal rights but also for divorce.

Indeed, if this could be a ground for divorce or for an action for restitution of conjugal rights, could it be said with any show of force that it would not be a just ground for the wife to refuse to live with her husband. The matter deserves serious attention from the point of view of the wife. If there 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 the 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.

The Supreme Court reiterated and reconfirmed a Delhi High Court judgement, Rita Nijhawan v. Balakishan Nijhawan, whereby the following was held:

“Thus the law is well settled that if either of the parties to a marriage being a healthy physical capacity refuses to have sexual intercourse the same would amount to cruelty entitling the other party to a decree. In our opinion, it would not make any difference in law whether the denial of sexual intercourse is the ‘result of the sexual weakness of the respondent disabling him from having a sexual union with the appellant, or it is because of any willful refusal by the respondent.

Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity, it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a women’s mind and body. The result being that if she does not get proper sexual satisfaction, it will lead to depression and frustration.”

Then again, the apex court found itself in agreement with division bench High Court of Karnataka High Court judgment in Dr. Srikant Rangacharya Adya v. Smt. Anuradha

In these days it would be an unthinkable proposition to suggest that the wife is not an active participant in the sexual life and therefore, the sexual pleasure to the wife is of no consequence and therefore cannot amount to cruelty. It has been said that the sexual relations when happy and harmonious vivifies woman’s brain, develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointments in sexual intercourse.

If the maintenance of a wife is supposed to include only food, shelter and clothing having regard to the conjugal rights and if the just cause on which wife can refuse to stay with the husband and yet claim maintenance, can have reference only to the comfort and safety of the wife then it might reduce the wife to the status of a domesticated animal.

In the context of the changing status of woman in society, such a proposition would seem outdated and obsolete….. In other words, the Courts cannot compel the wife to stay with husband on the ground that the husband though he is forcing her into a situation where her physical and mental well being might be adversely affected, as there is no intention on the part of the husband to inflict that cruelty, she should suffer that predicament without demur and be satisfied with a grab to bite and some rags to clothe her and a roof over her head.

The court held that where it is proved to the satisfaction of the court that a husband is impotent and is unable to discharge his marital obligations, this would amount to both legal and mental cruelty which would undoubtedly be a just ground as contemplated by the aforesaid proviso for the wife’s refusal to live with her husband and the wife would be entitled to maintenance from her husband according to his means. In these circumstances, therefore, it would be pusillanimous to ignore such a valuable safeguard which has been provided by the legislature to a neglected wife.

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