Relief for the woman if the husband is gay

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The principle legal documents that regulate marriages in India are The Special Marriage Act of 1954 1 and the Hindu Marriage Act of 1955. 2 The latter as the name suggests deals in specific with marriages compliant under Hindu customs. Hence both establish grounds for making marriages legal and also the procedures required to dissolve one.

The question this article aims to address is, however, more specific in nature, that being the reliefs available to a wife who has discovered that the husband is homosexual after the completion of their marriage. While homosexuality laws have become more liberal in recent years, the legal injury aspect of a woman with a homosexual husband remains intact, and relief or justice deliverance becomes essential.

Legal Context of the Issue

While there exist no specific provisions of law to address the said issue, there exist certain provisions in the Hindu Marriages Act, 1955 that are of broad nature and is hence applicable to issues like this. Section 13 of the Hindu Marriages Act deals with “cruelty” as a ground for divorce. It further includes sub-factors such as mental torture, physical cruelty, desertion, non-co-operation etc.

Hence, a persisting conduct of the husband that causes severe disturbance or annoyance to the wife becomes valid grounds for dissolving a marriage and for claiming relief. Syllogistically, a homosexual man will always have certain behavioural traits that will inevitably cause injury to the wife. This includes constant denial of intercourse or lack of trust without any appropriate reason.

Case Law Findings

In the case of Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511, 3 a bench of three judges laid down some ground rules for constituting mental cruelty. Some of the relevant findings include –

  1. Acute mental disturbances, suffering and agony that makes it impossible for the married parties to live together qualifies as grounds for mental cruelty.
  2. Mere coldness or lack of affection in itself can’t be grounds for cruelty but constant rudeness and attacks that affect a party to the point of being intolerable qualifies as grounds for cruelty.
  3. The conduct of the guilty party must be more than simple selfishness, rudeness or jealousy and simply causing emotional disturbance cannot solely be considered as a ground for granting a divorce.
  4. While considering the petition for divorce, the married life of the parties is to be reviewed as a whole and the decision of the court should not be based on few isolated incidents, as only prolonged and consistent wrongdoings will be considered as cruelty.
  5. If any of the parties undertake certain medical procedures without adequate medical reason such as a wife’s abortion or a husband’s operation without the consent of the spouse it can in some cases qualify as cruelty
  6. A unilateral decision of declining to undertake intercourse for prolonged periods of time without any adequate or sufficient reason may amount to mental cruelty.

The sixth condition in the list is what in legal grounds can be used as a relief mechanism for a wife who has discovered that her husband is gay post marriage.

In current Indian matrimonial legislation, there exists no direct reliefs or tenets of law to protect wives who have been deceived of their husband’s sexual orientation at the time of marriage. However, existing legal provisions in the Hindu Marriage Act provide some relief to address the issue and ensure a fair divorce is granted.

Hence, it is expected that future amendments to the Act will probably incorporate the current inadequacy of such circumstances being addressed and ensure it is not just applicable to the Hindu Marriage Act but also the Special Marriage Act to ensure that justice is delivered irrespective of religion.