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MUMBAI:  Mumbai high court in India has termed withholding sex to a spouse as a form of cruelty and can be a ground for ending the marriage. The decision has angered rights advocates , saying the ruling does not take into account other issues.

At the heart of the issue was a case that allowed a man to divorce his wife because they were not having enough sex.

Justice Kailash Gambhir announced the verdict, upholding a lower court’s ruling of divorce to a man having a “sex-starved marriage” as his wife refused to have sexual intercourse with him on the wedding night and reportedly having sexual intercourse with her husband between 10 to 15 times over the subsequent five months.

“In the present case, the testimony of the husband that the wife was never responsive and was like a dead wood when he had sexual intercourse with her remained unrebutted.

“It is not that the husband had sex with his wife only about 10-15 times from the date of his marriage within a period of five months, but the wife’s cruel act of denying sex to the husband especially on the very first night and then not to actively participate in it even for the said limited period for which no contrary suggestion was given by the wife,” the court said.

The judges’ ruling cited various Supreme Court judgements on the issue and said “it is evident that willful denial of sexual intercourse without reasonable cause would amount to cruelty.”

Referring to the apex court’s observation that “sex is the foundation of marriage and marriage without sex is an anathema,” Justice Gambhir said, “Marriage without sex will be an insipid relation.”

But Parandish Gupta, a women’s advocate and counselor in Chennai in southeastern India, told  that simply not having “enough sex should not even be a consideration for divorce. There could be other factors in the process that require professional help.”

She argued that the court’s ruling opens the doors for spouses, predominantly men, “to take it as a means to force their women into having sex, which could result in widespread marital rape for fear the husband could leave.”

She argued that while any healthy relationship should be having sexual relations on a regular basis, “the court I believe failed to take into account the many difficulties that early marriages often have.

“They should have looked at the situation from many angles, but they were focusing on the sex part instead of the other factors, like was the woman secure in her new environment and whatnot,” she added. Non-consummation of marriage is already a ground for divorce under the Hindu Marriage Act.

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