Forcing a Spouse to Stay in a Sexless Marriage Is Unjust

Should a husband be allowed to wriggle out of marital commitment when his wife is afflicted with a serious disease?

“In sickness and in health, to love and to cherish.” (Photo: iStockphoto)

When couples tie the nuptial knot, they swear to be at each other’s side in sickness and in health. So should a husband be allowed to wriggle out of this commitment when his wife is afflicted with a serious disease?

Answering the question in the negative, the Punjab and Haryana High Court has recently ruled that just because a wife is carrying Hepatitis B (perceived to be a sexually transmittable disease) and, hence, her husband is apprehensive about maintaining sexual relations with her, he does not have a legally valid case for divorce.

On the face of it, this ruling appears to be pro-women, but if critically viewed in the larger scheme of things, it seems to have several warts.

Hepatitis B: Not ‘Venereal Disease’, Insufficient for Divorce

In this case, the wife had unwittingly contracted Hepatitis B from unknown sources. There could be a variety of reasons for this – for example, a blood transfusion gone wrong, as Amitabh Bachchan recently disclosed – but the court does not delve into those.

The crux of the case was whether the husband could seek divorce on the grounds of cruelty since it would have been risky for him to have sex with his wife. His reasons were twofold.

One: If either spouse is suffering from a “venereal disease in any communicable form”, Section 13(v) of the Hindu Marriage Act allows the other to get a divorce.

Two: Because his wife’s medical condition made sex dangerous, he should not be forced to stay on in a sexless marriage, which the courts had previously held as cruel.

The court ruled in favour of the wife, holding that if in the typical Indian setting, a wife is supposed to sacrifice everything and stand by her husband through the choppiest of waters and the gravest of illnesses, why shouldn’t the reverse be true?

It also held that since Hepatitis B wasn’t a medically certified “venereal disease”, it could not be interpreted as being covered under the Hindu Marriage Act.

But, What About a Spouse’s Choice?

The Indian judiciary has historically sided with the “sanctity” of marriage than women’s autonomy. (Photo: iStockphoto)

The choice to stay or to part ways is an indispensable precondition in any relationship, including marriage, even though it is often regarded as a sacrament, says Dipti Nagpaul- D’Souza, Special Correspondent with The Indian Express.

She has consistently taken a pronounced feminist line in her writing and contends that, in this case, what the wife requires is support and effective medical treatment, not spousal empathy. But even if such spousal empathy is missing, the husband should not be allowed to evade financial responsibility.

Nagpaul-D’Souza believes that the court’s ruling, by imposing a condition upon the husband, would probably infuse further bitterness into the already crumbling relationship.

Flavia Agnes, Mumbai-based lawyer and women’s rights activist, faults the court’s reasoning and states that in future cases, it could be used to compel wives to stay confined in cruel marriages. The Indian judiciary has historically sided more with the “sanctity” of marriage than women’s autonomy, so the probability of this ruling being misused is quite high, she says.

Sanjay Hegde, Senior Advocate at the Supreme Court, who, interestingly, has written against criminalising marital rape, concurs. He is critical of the court’s observation that the husband’s act of filing a divorce suit in the present circumstances counts as an act of cruelty.

There is precedent of a husband being permitted to leave his HIV+ wife to her fate because he would not be able to have sex with her. Compared to that dismay-inducing judgement, the present ruling appears to be a boon to wives. Only, it would be myopic to believe so.

(Thanks to LiveLaw for providing a copy of the Order.)