Wife watching porn, masturbating not ground for divorce: Madras High Court

The Madras High Court recently ruled that a husband cannot seek divorce from his wife merely on claims that she watched porn or engaged in self-pleasure and masturbation..A Bench of Justices GR Swaminathan and R Poornima observed that watching porn in private is not an offence. The Court noted that porn portrays women in a degrading manner and that watching porn would negatively affect the viewer in the long run. Therefore, it may not be morally justifiable. However, merely because a wife watches porn in private without compelling her spouse to join would not amount to marital cruelty, the Court held. "Personal and community standards of morality are one thing and breach of law is another ... Merely watching porn privately by itself may not constitute cruelty to the petitioner. It may affect the psychological health of the viewing spouse. That by itself will not amount to treating the other spouse cruelly. Something more is required. If a porn watcher compels the other spouse to join him or her, that would certainly constitute cruelty. If it is shown that on account of this addiction, there is an adverse impact on the discharge of one's conjugal obligations, then it could furnish an actionable ground," the March 19 ruling said. The Court also ruled that an allegation that the wife masturbates is also not a ground for divorce.The Court added that it would be a gross violation of a woman's sexual autonomy to ask her to respond to such an allegation. The Court also questioned why masturbation by a woman is heavily stigmatised, when no such stigma is attached to men who masturbate."When masturbation among men is acknowledged to be universal, masturbation by women cannot be stigmatised. While men cannot engage in sexual intercourse immediately after indulging in masturbation, that would not be the case with women. It has not been established that the conjugal relationship between the spouses would suffer if the wife has the habit of masturbation," the Court ruled..Merely watching porn privately by itself may not constitute cruelty ... Indulging in self-pleasure cannot be a cause for dissolution of marriage.Madras High Court.The Court made these observations while rejecting a man's plea for a divorce from his wife on grounds of cruelty.He made several allegations against her including that she was a spendthrift, was addicted to porn, indulged in masturbation, refused to do household chores, ill-treated her in-laws and engaged in long phone conversations..The Court, however, found that the man had not sufficiently proved any of the allegations."If after contracting marriage, a woman has sexual relationship outside marriage, it would furnish ground for divorce. However, indulging in self-pleasure cannot be a cause for dissolution of marriage. By no stretch of imagination, can it be said to inflict cruelty on the husband," the Court ruled. .The Court further emphasised that a woman retains her right to spousal privacy even after marriage including elements of her sexual autonomy. "When privacy is a fundamental right, it includes within its scope and reach spousal privacy too. The contours of spousal privacy would include various aspects of a woman's sexual autonomy. So long as something does not fall foul of law, the right to express oneself cannot be denied. Self-pleasure is not a forbidden fruit; its indulgence shall not lead to a precipitous fall from the Eden garden of marriage. After marriage, a woman becomes a spouse but she continues to retain her individuality. Her fundamental identity as an individual, as a woman, is not subsumed by her spousal status," the Court said. .Spousal privacy would include various aspects of a woman's sexual autonomy.Madras High Court.Can't seek divorce by accusing spouse of having an STD without proof of moral devianceThe husband also claimed that his wife suffered from a sexually transmitted disease (STD). However, the Court noted that the husband only referred to some reports by an ayurvedic centre. In the absence of a medical blood test report, the Court rejected the husband's allegation."Though Ayurveda is a highly respected and recognised system of Indian medicine, the allegation that the respondent is suffering from venereal disease could have been proved only by marking the blood test report ... one can safely come to the conclusion that a false allegation has been made," the Court added.It held that a divorce cannot be granted merely on unverified claims that one's spouse suffers from venereal disease or a sexually transmitted disease (STD) without giving the accused spouse an opportunity to show that the condition, even if true, was not because of morally deviant conduct."Alleging that the other spouse is suffering from venereal disease casts serious stigma. Therefore, in the very nature of things, strict proof of this allegation would be required ... The fact that the other party is suffering from the particular affliction is not sufficient by itself to grant divorce. The other party must be given opportunity to show that his or her condition is not an outcome of a morally deviant conduct but is due to some circumstance beyond his or her control," the Court said. The Court explained that a person can be affected by STDs even through circumstances beyond their control."A few years ago, a lady had gone for pregnancy check up in a Government Hospital where she came to be infected with HIV on account of transfusion of contaminated blood. In this situation, will it be fair to dissolve her marriage for no fault of hers at the instance of her spouse? We would say 'No'," the Court said.It also cited the example of Mallika Amar Sheik, the wife of revolutionary poet and activist, Namdeo Dhasal, who recounted in an autobiography about how her promiscuous husband gave her sexually transmitted diseases."Could Namdeo Dhasal have filed a divorce petition on the ground that his wife was suffering from STD? The answer is again 'No'," the Court said.Therefore, it held that Section 13(1)(v) of the Hindu Marriage Act, which deals with divorce on the ground that a spouse suffering from venereal disease, must be understood from this standpoint as well."The other party, even if afflicted with a venereal disease in a communicable form should be given an opportunity to show that he or she was not at fault," the Court held..Fact that (spouse) is suffering from the particular affliction is not sufficient by itself to grant divorce.Madras High Court.Advocate G Gomathisankar appeared for the husband (appellant) while advocate S Gokulraj appeared for the wife (respondent). .[Read Judgment]