Forcible Sex Is An Illegal Intrusion In The Privacy Of Wife And Amounts To Cruelty: Allahabad HC

In a latest, landmark and laudable judgment delivered by the Allahabad High Court in Case - First Appeal No. - 296 of 2018 on May 24, 2019 has explicitly and elegantly held that forcible sex, unnatural or natural, is an illegal intrusion in the privacy of the wife and amounts to cruelty against her. This noteworthy and commendable judgment delivered by Justice Pradeep Kumar Srivastava for himself and Justice Shashi Kant Gupta has held that forcible sex, unnatural or natural, is an illegal intrusion in the privacy of the wife and amounts to cruelty against her. The Division Bench of Allahabad High Court thus upheld a District Court order allowing the divorce plea filed by a wife. The District Court had permitted the plea taking note of her deposition that her husband made sexual relation against her wishes like a beast forcibly in a very brutal and cruel way against the order of nature several times and committed sodomy and unnatural sex.

First and foremost, the ball is set rolling in para 2 of this significant judgment which states that, 'This appeal has been preferred against the judgment and decree dated 29.03.2018, passed by Additional District Judge, Fast Track Court-II, Ghaziabad, in Case No. 2274 of 2013 (Ritu Gupta vs. Sanjeev Gupta), under Section 13(1) of the Hindu Marriage Act by which the petition for divorce filed by the respondent-petitioner has been decreed against the appellant-opposite party.'

To recapitulate, para 3 then while elaborating in detail states: 'Brief facts of the case are that the respondent-petitioner filed a petition for divorce seeking divorce under Section 13(1) of the Hindu Marriage Act for dissolution of marriage dated 01.07.2012 between the parties. The respondent-petitioner has stated that both the parties married according to Hindu rituals and tradition on 01.07.2012 in Arya Samaj Temple, Aryanagar, Ghaziabad. A reception ceremony was also organized in Hotel Country-Inn, Sahibabad, Ghaziabad. The marriage was got registered on 02.07.2012 before the Sub-Registrar, Ghaziabad. Enough dowry was given in the marriage and enough expenses were incurred by the father of the respondent-petitioner. Prior to marriage with the opposite party, she was married with one Omkar Chawala from whom, two children were born. The elder one is son Ekansh and the younger one is daughter Khushi. On 14.06.2011, in a road accident, her husband Omkar Chawala died and thereafter on 01.07.2012, the marriage between the parties took place. Prior to marriage, appellant-opposite party was married with one Priyambada but the marriage was dissolved by a decree of divorce. The respondent-petitioner , prior to marriage with appellant-opposite party had told that she has two children and if he accepts them, only then she will enter into marriage. In the beginning, he did not agree to it and she denied to marry but thereafter, he took her into confidence that he will accept both her children. He got both the children admitted in the British School at Chandigarh and she believed that he has accepted her both children. After the end of the reception of the marriage, both stayed in a room of the same hotel and in another room, the father of appellant-opposite party and his friend Sonaria stayed. His father took her gifts and ornaments in the pretence of keeping them safe. The appellant-opposite party on the very first night of marriage behaved in a very cruel way and forced her for unnatural sex and made physical relationship with her in a very vulgar and inhuman way which was worse than animal. She started bleeding and felt enough pain. When she tried to alarm his father, he forcefully dragged her in the room. On 02.07.2012, after attending the marriage of her sister, both went to their room and again he attempted for unnatural sex and on being prevented, he committed maar-peet with her and said that she is characterless. The appellant-opposite party enjoyed making unnatural sex and on being refused, he got very angry and used to commit violence against her. He also complained that her father did not give any vehicle in dowry. When she told him that according to his status, her father spent money in her marriage and it was not possible for him to give a vehicle, again maar-peet was committed by him. On 03.07.2012, she told about this happening to her family members, they came to her house and in the afternoon, she went to Ghaziabad to her parental house. His father also sided with him. Due to his aforesaid behavior, she refused to go to him. Thereupon, he came with his friends namely Sonaria and Manoj to her house and insisted for compromise. But she said that she will go with him only if he will not further commit unnatural sex with her nor will he commit cruelty with her. On 17.07.2012, the appellant-opposite party compromised before her family members accordingly and gave an affidavit which he brought with him after getting the same prepared in Faridabad, and therefore, she went with him. He took a house on rent in Surya Nagar, Ghaziabad and took her with children there but his behavior did not change. He also made complaints about inadequate dowry and he insisted her to bring Rs 40 lakhs for purchasing a house in Indrapuram, Ghaziabad. When she refused, the appellant-opposite party behaved in a very cruel way and on 06.08.2012, when she was sleeping with her son as he was suffering from fever, the appellant-opposite party came and started abusing her and forced for sexual relationship to which she refused. He forcefully made unnatural sex and threatened that if she will not do it, he will not leave her five years old daughter and will make relationship with her also. On 07.08.2012, the respondent-petitioner was in stomach pain and asked the appellant-petitioner to take her to hospital, but he refused. But when the pain increased, he took her to doctor where the doctor diagnosed to be stone pain. He became very angry at this and despite advice of the doctor that they should keep away from each other and she should take rest, he still forced her to do sex. On 13.08.2012, he went to his office and she suddenly came to know that his father has incurred injury and he has been admitted in hospital, where her mother was also admitted and operated on 10.08.2012. Since, no one was there to look after them, she went there and came back after two hours. When she informed him on phone about it, he started abusing her and started saying that she is characterless as she went to meet her friend. It became too difficult to live with him in view of her physical and mental harassment and sexual exploitation and, therefore, she shifted to her parents house on 14.08.2012. Subsequently, she came to know that the appellant-opposite party had earlier also behaved in the like manner with her previous wife and, therefore, she took divorce from him. When she came back to her parents house, he, in order to save himself, filed a complaint before the C.J.M., Ghaziabad, whereupon, she also lodged an FIR on 09.08.2013 for the offences under Sections 498A, 323, 504, 377 I.P.C. and Section 4 Dowry Prohibition Act. In view of his inhuman behavior, it was not possible for her to live with him as her life was in danger, therefore, this petition was filed for divorce.'

It cannot be lost on us as to what is stated in para 20. It is stated that, 'It needs specific mention that prior to filing of this petition for divorce, the plaintiff-wife lodged a FIR against the defendant-husband on 9.8.2013 in PS Linkroad, Ghaziabad, crime no. 331/13, for the offence under Section 498-A/323/504/377 IPC & section 4 Dowry Prohibition Act and dowry demand, dowry harassment and unnatural sex was alleged against him and it was further alleged that on 9.8.2013, he came to her parent house. She was alone as her parents had gone to market. Despite her resistance, he committed sodomy on her. The police investigated the offence and submitted charge-sheet to the court for the offence under section 498-A/323/504/377 IPC & section 4 Dowry Prohibition Act. The appellant-husband was charged and tried and convicted and sentenced for the offence under section 498-A/323/377 IPC & section 4 Dowry Prohibition At by Addl. CJM, Court No. 8, Ghaziabad by judgment dated 12.9.2018. During the hearing of this appeal, the respondent-wife has filed the copy of that judgment and a perusal thereof shows that four fact witnesses including the plaintiff-wife were examined in support of charge and the defendant-husband was held guilty for the offence of sodomy and unnatural sex. It has been submitted by the appellant that he has filed appeal against the said judgment which is pending. No order of the appellant court has been produced by the appellant to show that the said judgment of the trial court has been stayed. It needs to be pertinently mentioned that the standard of proof in a criminal case is much higher than a civil case as the guilt is expected to be proved beyond doubt and it is not decided on the basis of comparative probability. In any case the finding of the court in this petition in respect of dowry demand, dowry harassment and unnatural sex and sodomy stands further corroborated by the judgment in the criminal case.'

What's more, it is then rightly pointed out in para 21 that, '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 grounds of divorce.' In this very same para 21 then is explained what is provided as grounds for divorce in Section 13 of the Hindu Marriage Act which the husband and wife can avail of. The grounds are: '(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.'

More importantly, it is then eruditely and elegantly stated in para 26 that, 'In the case in hand the respondent-wife has stated that the husband made sexual relation against her wishes like a beast forcibly in a very brutal and cruel way against the order of nature several times and committed sodomy and unnatural sex. The appellant-husband did not put any question in her cross-examination nor made any suggestion of falsity on this point. Even in his written statement, he has expressed his denial only saying that all alleged grievances may not be possible in short spaqn of only about 15 days. He has stated what has been done by him for the children of plaintiff-wife, for her or for her parents. In the above-referred two judgments, the matter proceeded either ex-parte or the husband did not turn up to cross-examine the wife. Viewed from this angle, the appellant-husband is on worse footing as he had opportunity to cross-examine, but he did not cross-examine on the point of allegation of sodomy and unnatural sex. In his affidavit, the appellant-husband has written a lot about his wellness and goodness in terms of nature and economic status, what he did for the respondent-wife and her children and that even he went to see his mother-in-law when she was hospitalized. It has been also disclosed that he deposited the fee for the admission of the children but the same has been denied by the wife, saying that she paid him in cash and thereafter, he made payment by cheque. He has also disclosed that he has made some fixed deposit in the name of the children but admittedly the same has been done after the filing of the petition by wife. It is also pertinent to mention that he also filed a criminal case against the wife and thereafter the criminal case was filed by the wife and thereafter the criminal case was filed by the wife against him and then the case was filed. In view of the fact that the appellant-husband has been convicted for the offence of unnatural sex, therefore, version of the wife in respect thereof is strengthened. Moreover, such thing cannot be a compensation for the act of unnatural sex.'

Equally important is that it is then disclosed in para 27 that, 'It has been specifically stated by the respondent wife in her petition as well as in her affidavit filed in evidence that the appellant-husband was earlier married with one Priyamvada who for similar reasons divorced her. On this point, the appellant-husband has been cross-examined, but he has given evasive reply and has not clarified the facts. He could have filed judgment of that divorce case, which must have been in his knowledge, but the same was not filed by him. This fact also supports the respondent-wife, so far as allegations of unnatural sex is concerned.'

As it turned out, the Bench then also sought to make it clear what is stated in para 28 that, 'So far as the argument of the appellant-defendant is concerned that a wrong procedure was adopted by the learned court below does not appear to be correct, in view of the record. The fact that at the last stage after recording of the statement by the Family Court the case was transferred to another court and the court below immediately heard the arguments and reserved the case for judgment, cannot be taken to be extraordinary as after the recording of the statement the case was transferred on the basis of a letter of the Family Court, as it declined to hear the arguments as in the transfer application given by the appellant-husband certain allegations were made and thereafter the case was transferred by the District Judge to the court below.'

Most importantly, it is then stated in para 29 that, 'We are in total agreement with the view taken by the Karnataka High Court and Kerala High Court as referred above. Unnatural sex, sodomy, oral sex and sex against the order of 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.'

To put things in perspective, it is then stated in para 30 that, 'On the basis of above discussion, we find that the approach adopted by the learned court below and the conclusion arrived at in the impugned judgment is sound and based on legal principle and correct marshalling of the fact and evidence. We find no perversity and illegality in it. Hence the appeal is liable to be dismissed and the impugned judgment is liable to be affirmed.'

Furthermore, it is then stated in para 31 that, 'The appeal is dismissed and the judgment and decree dated 29.03.2018, passed by Additional District Judge, Fast Track Court-II, Ghaziabad, in Case No. 2274 of 2013 (Ritu Gupta vs. Sanjeev Gupta) under Section 13(1) of the Hindu Marriage Act is affirmed.'

Finally, it is then stated in the last para 32 that, 'Lower court record be transmitted forthwith to the learned court below along with a copy of this judgment for information and necessary compliance.'

All said and done, it is an extremely laudable and landmark which deserves to be implemented in all such cases. There has to be zero tolerance against forcible sex. The Allahabad High Court Bench in this latest case has very rightly held that, 'Forcible sex is an illegal intrusion in the privacy of wife and amounts to cruelty.' This should be the norm always in such cases! No denying or disputing it!