NONE OF YOUR BUSINESS

A CRITICAL ANALYSIS OF THE JUDICIAL INTERFERENCE INMATRIMONIAL DISPUTES

Tanuj Hazari*

You need not be a great scholar or a jurist to know the Indian judiciary because where every institution fails and nothing seems to work out, the organ that tries to bring the things back on track is judiciary in our country. What is more pertinent and significant to notice is the interference of judiciary in the private institutions or social citadels. The judiciary has time and again resolved various marital affairs by doing the judicial scrutiny of marital affairs. In this context this article analyzes the Apex Court’s ruling on the newer interpretation of the term ‘mental cruelty’, which incorporates within its precincts, inter alia, a contentious and mootable clause. In its latest judgment, Sameer Ghosh v. Jaya Ghosh, 2007(5)SCALE1 the apex court has laid down a list of 14 instances, which would amount to ‘mental cruelty’, thereby being grounds for divorce. One of the most controversial and most litigious points is: “Unilateral refusal to have sex by either of the spouses for a considerable period of time without any medical reason or a valid purpose.”

The analysis of the judgment on the contentious point

In the milieu of this point, it is pertinent to analyze the judicial interference in or review of the matrimonial affairs. What should be the realm of judicial interference in matrimonial matters and where should it meet the barricades. On this contentious point the apex court says, the denial of sexual intercourse by either of the spouses for a considerable period of time. It is reasonable to adhere to the notion that consummation of marriage is an essential feature of marital right of both the spouses. The denial of sexual intercourse without any just cause would certainly amount to mental cruelty. What is pertinent to note is that the Supreme Court has emphasized on the term “considerable period of time” and it is the denial of sex for this considerable period by either of the spouses without any physical incapacity borne by the spouse or any other valid reason, which would amount to mental cruelty. The phrase “considerable period” in this judgment has opened debates.

Disproportionate Libido: varying sexual urge
The point is that how would one define ‘considerable period’. ‘Considerable period’ is something which is entirely contingent upon sexual libido that varies from person to person. Disproportionate sexual libido would play a significant role in determining what considerable time is. People have different sexual libido, therefore, considerable period for one person may not be the same for the second person. There can be no watertight compartment definition of considerable time. It is not pragmatic to define the phrase considerable time of non-occurrence of sex between the spouses. Consummation of marriage is an essential feature of any matrimonial life yet the quantity of sex depends entirely on the libido of the person. For some denial of sexual intercourse for a period of a couple of days might be “considerable time”, for some it might be a week and for some it might be as low as six months. In today’s society disproportionate libido often occurs in a setting of stress, tiredness, relationship difficulties, or depression. We have our own individual levels of sexual desire or libido. Libido is influenced by psychological and even social factors. Hormones, illness, and medication can all influence our desire for sex. Relationships are one of the most influential factors on libido as it can be pretty hard to desire sex with someone you don’t care for or who you are angry with! Your personality and history of sexual relationships, as well as society’s expectations and attitudes to sex, also influence libido.

Further intakes like Viagra capsules increase the sexual urge or desire. In this background if one of the spouses is undertaking such intakes and the other spouse is not, then the disproportionate sexual urge or desire would make it difficult to determine the “considerable time”. Sexual intercourse between the spouses is done for different purposes. There are many reasons for having sex and lust is only one of these. Sometimes it is done to create intimacy, because it is fun and can be pleasurable. It can also be an affirmation of our desirability, to make babies, and sometimes even to avoid conflict. Sex is also a means of entertainment and often done for leisure purposes. Different class or groups of people have sex after different periods of time. The labour class does sex very often. For them it is the easiest and the cheapest form of entertainment. Unlikely the person working in a multi corporation may not have sex for as long as six months. Furthermore there are a number of problems and circumstances, which govern the stimulation towards sexual activity. Sometimes the wife may decline to have sex because she feels the husband is rude and wild which hurts her. Often the psychological imbalance may facilitate the indifference towards sex. There are a number of activities that govern the sexual life of spouses. Henceforth in the light of these arguments the phrase “unilateral refusal to have sex for considerable period of time”, would be difficult to interpret. It is therefore beyond any stretch of imagination or impractical to define or determine as to what would be the considerable period of time for seeking divorce.

Another argument to this is that the marriage is an institution, which is very private and secret when it comes to sex between the spouses. Though consummation of marriage is an indispensable asset of any marriage and the courts have time and again interfered in ensuring that the necessary marital obligation is discharged yet the interference of the court in this manner by specifying that the spouses must satisfy themselves by not warding themselves off sex for a “considerable period of time” and thereby inviting divorce is not called for. Marital affairs of such magnitude and kind should be left to the spouses for settlement. Interference of judiciary would weaken the secrecy and privacy of the spouses and that might weaken the institution of marriage where the couples vow to share the affection and contempt in matrimonial life amongst themselves. The judiciary shouldn’t reach the bedroom of the couple in deciding the disputes

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Conclusion
I don’t wish to be a sanitary inspector looking for the garbage everywhere but I consider it to be my aesthetic obligation to analyze the judgment in the light of the above-mentioned conditions and circumstances that govern the marital life and put my viewpoint. The institution of marriage is solemn and a sacred one amongst the Hindus. What is pertinent to note is that sexual life of the spouses is administered by a number of things such as the status in society, mental psychology, behaviour of the other partner, financial conditions, even the occupancy of the couple viz a viz their occupation, the alternative forms of entertainment. In this context the Supreme Court’s judgment where it was inter alia held that the “unilateral refusal by either of the spouses to have sex for a considerable period of time” is unwarranted. The judiciary should know where to draw a line when it comes to judicial review of the matrimonial affairs. There needs to be some barricades which the judiciary should not cross as they touch the private domain of the spouses. It is true that it is the spouses who bring such matters before the court, yet the court should delimit its jurisdiction when it comes to matters of such high magnitude and kind. Furthermore it is imperative to point out that there can’t be any formula that could define the “considerable time” as there exists disproportionate sexual libido amongst the spouses due to which they have variations in sexual desire and urge.

Even after attaching the condition, “without any medical reason or a valid purpose” it would be very difficult to construe what would be the actual time for which if a person is denied sex he would suffer from mental cruelty.

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* National Law Institute University, Bhopal.