As told to Aarti Pathak
Men’s rights activist Shonee Kapoor talks to us about what constitutes a sexless marriage, and whether the situation can be used to file for an annulment or divorce.
What is a sexless marriage?
A marriage that has never been consummated or where a couple’s sexual activity has come to a complete halt since a prolonged period of time is called a sexless marriage.
Marriage and sex
A marriage comes with the understanding and expectation that in time it will be consummated. Sexual activity is the one activity that a couple indulges exclusively with one another, whether to get progeny or otherwise. Unlike running a home, raising children or going out for a trip, sex is the one thing that a marriage defines to be exclusively for husband and wife to share with each other. When sexual activity is permanently absent from a marriage, legally it is grounds for divorce (though it will have to be proved in the court of law).
What are the possible reasons for a sexless marriage?
- Male impotency, which is one of the grounds recognised for annulment
- Female impotency – though this seems improbable, it is also recognised in a few cases by the Supreme Court and hence accepted as ground for annulment.
- Permanent abstinence to penalise spouse
- Abstinence due to spiritual reasons, prolonged illness, not attracted to partner
- A couple may mutually decide to lead a platonic life
When is it grounds for divorce?
It is grounds for divorce when it is cruel.
A division bench of Justice Vijaya Kapse-Tahilramani and Justice PN Deshmukh stated that “Sex plays an important role in marital life and cannot be separated from other factors that lend to matrimony a sense of fruition and fulfilment.” Citing a Supreme Court judgement, the court said a person of normal health, when denied cohabitation by his spouse, will undergo anguish and frustration and it is akin to subjecting him to mental cruelty. “(Shailesh’s) evidence that Naina avoided physical relations with him is sufficient to hold that he was subjected to cruelty,” said the bench.
- Both the Hindu Marriage Act and the Muslim Marriage Act recognise male impotency as grounds for granting annulment (akin to divorce though legal status is that of spouse). Even female impotency is recognised and can be grounds for annulment.
- If withholding of sexual activity due to any reason is a temporary matter, it is not grounds for divorce. However, when withholding of sex is a permanent status in a marriage and is used as a weapon to penalise or torture the spouse then there are grounds for divorce. The court will seek proof that the spouse is resisting counselling for the same and then take it forward from there.
Sometimes the love is there but the sex is not… Then some patience and counselling might be required
I am in a sexless marriage for the following reasons, should I file for divorce?
- My wife is withholding sex as a weapon to torture me.
- My husband has given up sex for religious reasons
- My partner is impotent
- My partner’s sickness has left her/him incapable of sexual activity forever
- My partner leaves me sexually dissatisfied… and so on.
Should I file for divorce/annulment, if I am in a sexless marriage?
No one else can answer this question for an individual. It depends from person to person, couple to couple. Countless factors affect a marriage and hence also the decision to divorce. For instance, the depth of the love and connection that a couple shares, the level of sexual frustration felt by an individual, how important sex is for the person, will one be able to prove in court that the marriage in fact is sexless, does the couple have children, and so on and so forth…
And what is the reason for sexless marriage? If the abstinence or absence of sex on part of the partner is due to acquired ailment after marriage, this won’t be grounds for divorce. Certain kinds of cancers can cause impotency, hence even that would not be a ground for annulment/divorce.
What is the right way forward can only be decided by the individual him/herself by sitting with a competent person who deals with such matters.