There has been confusion prevailing on unnatural sex or unnatural offences being a ground for divorce after the Hon’ble Supreme Court’s judgement on section 377 of the Indian Penal code, 1860
Section 377 of the Indian Penal Code, 1860 criminalised voluntarily carnal intercourse against the order of nature with any man, woman or animal until, the Hon’ble Supreme Court of India in the case of ‘Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice’ diluted the effect and decriminalised carnal intercourse between two consenting individuals.
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Now the question here is whether unnatural sex or unnatural offences are ground for divorce? Can a petition for divorce be filed in the court of law alleging unnatural sex or the respondent being guilty of natural offences?
Section 13(2) of the Hindu Marriage Act 1955
Section 13(2) gives exclusive right to a wife to present a petition for the dissolution of her marriage by a decree of divorce on the ground that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.
Thus a wife can present petition for divorce against her husband, if husband after the marriage, been found guilty of :
– Sodomy, or
Section 27(1A) of the Special Marriage Act 1954
Section 27(1A) of Special Marriage Act 1954 also gives right to a wife to present petition for dissolution of marriage by divorce on the ground that her husband has, since the solemnization of the marriage, been guilty of:
– Sodomy; or
Section 10(2) Divorce Act 1869
Section 10(2) Divorce Act 1869 which is applicable to persons professing the Christian religion, also gives right to a wife to present a petition for the dissolution of her marriage on the ground that the husband has, since the solemnization of the marriage, been guilty of:
– Sodomy; or
Section 32(d) of Parsi Marriage and Divorce Act 1936
Section 32(d) of Parsi Marriage and Divorce Act 1936 which is applicable on Parsi community also provides ground of divorce if the defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offence.
Provided however that the suit must be filed within two years after the plaintiff came to know of the above fact.
Effect of Navtej Singh Johar Judgement on Section 377 IPC
On 6 September 2018 the Hon’ble Supreme Court of India passed judgement in Navtej Singh Johar case and ruled that application of section 377 to consensual sex between two adults is unconstitutional.
Thus Hon’ble Supreme Court only diluted the applicability of section 377 IPC to the consensual carnal intercourse but that Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality.
In the wordings of Hon’ble Supreme Court in Para 21 of the Navtej Singh Johar Judgement
21(i) In view of the aforesaid findings, it is declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution.
It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion.
21(ii) The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the re- opening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages.
21(iii) The provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercouse against minors, and acts of beastiality.
Allahabad High Court’s Judgement in Sanjeev Gupta vs Ritu Gupta (First Appeal No. 296 of 2018) case
The Hon’ble Division Bench of Allahabad High Court held that:
“act of sodomy and unnatural sex is also a marital wrong and is a ground for seeking divorce” [Para 21]
The Hon’ble Court also quoted and decisions in Grace Jayamani vs E.P.Peter, AIR 1982 Kant. 46 and Bini T. John vs Saji Kuruvila, AIR 1997 Ker. 217, and observed that in both these judgments, it has been held that sexual intercourse against the order of the nature or sodomy or unnatural sex or oral sex is a marital wrong and a ground for dissolution of marriage.
Whether unnatural sex or natural offences can also be a mental cruelty
Hon’ble Allahabad High Court’s Judgement in Sanjeev Gupta vs Ritu Gupta First Appeal No. 296 of 2018 held that :
“Unnatural sex, sodomy, oral sex and sex against the order of the nature, against the wishes of a women or wife or anybody is not only a criminal offence but also a marital wrong and amounts to cruelty which is a good ground for dissolution of marriage. Any such thing which brings the wife to indignity and causes physical and mental agony and pain is cruelty. Forcible sex, unnatural or natural, is an illegal intrusion in the privacy of the wife and amounts to cruelty against her.”
The Hon’ble Court also quoted and decisions in Bini T. John vs Saji Kuruvila, AIR 1997 Ker. 217 wherein it was held that
“Sex plays an important role in matrimonial life. Therefore conduct of one among the parties towards the other in the matter of sex is an important factor in the married life. Insistence of unnatural sex, continued compulsion for oral sex, sex through anus causing pain and physical injury to make the wife to concede to such unnatural sex will certainly amount to cruelty.”
In Para 21 of its judgement the Hon’ble Court held that :
21. In addition to being a criminal offence, act of sodomy and unnatural sex is also a marital wrong and is a ground for seeking divorce. It also amounts to cruelty which is another ground of divorce. Section 13 of the Hindu Marriage Act provides as follows:
“13. Divorce(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(I-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or”
Whether the person alleged to have committed unnatural sex should be proven guilty
The language of all the laws governing the filing of the petition for dissolution of the divorce on the ground of commission of unnatural sex is plain and clear. A person’s conduct of committing unnatural sex must be proven by a court of law.
Thus, it is a ground of dissolution of marriage by way of decree of divorce against a person who is proven guilty under section 377 IPC or for a unnatural sex or offences under Indian Laws.
Under Hindu Marriage Act, Special Marriage Act, Divorce Act, a wife has been given exclusive right to present such a petition against her husband. However under Parsi Marriage and Divorce Act 1936, there is no such classification.
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