“Watching Pornography Privately Does Not Constitute Cruelty”: Madras High Court Rejects Divorce Plea Alleging Venereal Disease and Mental Cruelty Against Wife
Kiran Raj
The Madurai Bench of the Madras High Court, Division Bench, Justice G.R. Swaminathan and Justice R. Poornima, dismissed two civil miscellaneous appeals filed by a husband who sought to dissolve his marriage on the grounds of venereal disease and cruelty. The Bench concluded that the allegations were unproven, recording, “the appellant has miserably failed to prove the allegation that the respondent herein is suffering from the condition mentioned in the provision.” The Court further observed, “the act of the respondent in merely watching porn privately by itself may not constitute cruelty to the petitioner.”
The Court confirmed the Family Court's common order dismissing the husband’s divorce petition and allowing the wife's plea for restitution of conjugal rights.
The marriage between the parties was solemnised as per Hindu rites and customs. It was the second marriage for both parties, whose previous marriages had ended by judicial decree. The couple resided together until 9 December 2020, after which they began living separately. No children were born from this marriage.
The respondent wife filed H.M.O.P.No.29 of 2021 before the Sub Court, Karur, seeking restitution of conjugal rights. The appellant husband filed a petition seeking dissolution of marriage, before the Family Court, Coimbatore. Both matters were subsequently transferred to the Family Court, Karur. The Family Court heard the petitions together and delivered a common order on 6 February 2024, dismissing the husbands plea for divorce and allowing the restitution petition filed by the respondent. The present appeals arose from the said order.
In his appeal, the husband contneded that the wife was suffering from a venereal disease in a communicable form and that her conduct amounted to mental cruelty. He submitted that the relationship had irretrievably broken down and that continuation of the marriage served no purpose. Relying on Ravi Kumar v. Malarvizhi @ S. Kokila, he contended that the evidence on record justified dissolution of the marriage.
The wife through her counsel, countered that the Family Court’s order was based on a correct assessment of the evidence and required no interference.
The husband examined himself as P.W.1 and produced thirteen documents marked as Ex.P1 to Ex.P13. Thw wife examined herself as R.W.1 and produced Ex.R1 to Ex.R4. The appellant primarily relied on discharge summaries and medical reports from an ayurvedic centre to support his allegations.
The Court recorded that Section 13(1)(v) of the Hindu Marriage Act, 1955, permits dissolution of marriage on the ground that one spouse is suffering from a venereal disease in a communicable form. However, the Court noted that such a claim requires strict proof given the stigma attached. The Bench stated, “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 Court explained that the provision must be interpreted to consider whether the venereal disease was contracted through morally deviant conduct or circumstances beyond the individual’s control. The Bench illustrated this by referencing a scenario where a woman contracts HIV through contaminated blood during pregnancy treatment, noting, “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 also recalled the case of Namdeo Dhasal and his wife, who wrote about contracting sexually transmitted diseases due to her husband’s conduct. The Court asked, “Could Namdeo Dhasal have filed a divorce petition on the ground that his wife was suffering from STD? The answer is again ‘No’.” It further stated, “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.”
Turning to the present case, the Court found that the appellant had not filed any application to subject the wife to medical examination, nor did he produce a diagnostic report confirming the alleged disease. The Court recorded, “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. No such report has been marked.”
The Bench found that Ex.P3 to Ex.P6, which were discharge summaries from Arya Vaidya Pharmacy, did not establish the alleged venereal disease. It further noted that Ex.P10 pertained only to the appellant and not the respondent. The Court stated that if the respondent were suffering from such a disease, the appellant too would have shown symptoms, which he failed to prove. Referring to Ex.R4, the appellant’s legal notice, the Court observed, “If that be so, the appellant should have marked his medical reports. He had not done so. Therefore, one can safely come to the conclusion that a false allegation has been made.”
Addressing the allegations of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, the Court noted that the appellant alleged the respondent was a spendthrift, addicted to pornography and masturbation, refused to perform household chores, mistreated her in-laws, and engaged in prolonged telephonic conversations. However, the Court stated that “none of the allegations made by the appellant have been substantiated or corroborated.”
Regarding the pornography allegation, the Court remarked, “Watching porn (other than the statutorily prohibited type) in a private setting would not constitute an offence.” The Court cited P.G. Sam Infant Jones v. State and recorded, “So long as the act of the respondent has not fallen foul of law, the appellant cannot seek divorce on this ground.”
Further, the Court clarified that for cruelty to be established, the respondent’s conduct must be directed towards the petitioner. The Bench stated, “The expression ‘treat’ denotes intentional conduct. Thus, the act of the respondent in merely watching porn privately by itself may not constitute cruelty to the petitioner.” The Court added, “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.”
Regarding the allegation of masturbation, the Court stated, “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 also stated, “Masturbation by women cannot be stigmatised.” The Bench noted that no evidence had been presented to show that the respondent’s conduct had impacted conjugal obligations.
The Court referred to Rajive Ratori v. Union of India, noting the importance of sexual autonomy and privacy. It recorded, “Self-pleasure is not a forbidden fruit; its indulgence shall not lead to a precipitous fall from the Eden garden of marriage.”
The Bench concluded that the appellant failed to produce evidence supporting any of the allegations and remarked, “If the allegations made by the appellant were true, it is improbable that they would have been together for close to two years.”
The Court dismissed both appeals and confirmed the Family Court’s order, stating, “We confirm the order passed by the court below.” The Court directed that the connected miscellaneous petition also stands closed.
Advocates Representing the Parties
For the Petitioner : G. Gomathisankar
For the Respondent : S. Gokulraj
Case Title: XXXX v YYYY
Case Number: C.M.A(MD) Nos.460 & 1515 of 2024
Bench: Justice G.R. Swaminathan and Justice R. Poornima
[Read/Download order]
