This work discusses the question raised before the Madras High Court in a case.[1], whether masturbation of wife and her habit of watching porn can constitutes a cruelty, hence a ground for divorce? This work analyses the grounds for divorce in the Hindu Marriage Act, 1956[2].

Section 13(1)(v)[3], a ground for divorce if the spouse is suffering from any venereal disease in its communicable form. Section 13(1) (1-a)[4] Suppose one of the spouses treats the other with cruelty. This work discusses whether the case before the Madras High Court constitutes grounds for divorce. The Hindu Marriage Act does not define cruelty, hence leaving the discretion to the court to interpret it on a case-by-case basis.

In our evolving society, where we are heading towards a more holistic and egalitarian society, cases like this raise the question of stillborn feminism in the minds of people. It is a big concern that even in 2025, the Hon'ble Court needs to reiterate that women have an inherent right to self-expression and bodily autonomy.

Introduction
This research paper aims to clarify whether such sexual behavior in a personal sphere can be considered a ground of cruelty under the current legal framework vis-à-vis evolving definitions of cruelty. This paper investigates if one's sexual behavior in her personal space like watching porn and masturbation, could constitute a ground for divorce.

As per the Hindu Marriage Act,[5] these are not explicitly given grounds. But in the case before the Madras High Court advocate on behalf of the Appellant has argued that such acts constitute the ground of cruelty.
Section 13(1) (1-a) of HMA[6] deals with cruelty as a ground for divorce. With various judicial pronouncements, cruelty was bifurcated into physical and mental cruelty. A woman who watches porn or indulges into masturbation does not inflict any physical harm.

The petitioner claimed that such an act inflicted mental pain on him, constituting a cruel act. The court has clarified that such an act is not an offence and also does not inflict mental pain on someone. Masturbation or watching porn or any such private behavior does not affect ones marital relationship.

In cases where there is a habit of masturbation, there is a disturbance in their marital relationship. If this happens consistently, it may, with many assumptions in a very far-fetched manner, be called cruel in some sense. This may happen if a male indulges in masturbation; he may lose libido for some time after masturbation, but that is not the case with women.[7]

Hence, there can be a discord in conjugal relations if the male indulges in masturbation but not by a masturbation of the female. This research paper analyzes how personal sphere, bodily autonomy, spousal privacy, and self-expression conflict with obligations of the institution of marriage.

Whenever there is a conflict between marriage laws and individual autonomy, it should be harmoniously constructed. It is essential to note that whenever an individual becomes a spouse, it does not mean that she has lost her individuality and her individual rights.

Background of the Case
Both the Husband (Appellant) and the Wife (Respondent) got married on 1st July 2018. This was the second marriage of both parties after the annulment of their first marriage. They started living separately on 9th December 2020. The wife reached the Karur Family Court for Restitution of Conjugal Rights[8] and the husband for divorce on the grounds of venereal disease and cruelty.

The family court granted Restitution of Conjugal Rights to the wife and dismissed the divorce petition of the husband. Dissatisfied with the judgment, the husband sought a remedy from the High Court of Judicature at Madras.

Prime Issues In The Case:

1. Whether the Respondent is suffering from any venereal disease?
   The appellant in this case claimed that the Respondent is suffering from a venereal disease in its communicable form, which risks the appellant's health, and it is one of the reasons for not cohabiting with his spouse. The court has said that the respondent should be allowed to prove that her disease is not because of her sexual relations outside marriage but rather due to the circumstances beyond her control.
    
2. Whether the acts including masturbation and porn addiction of wife constitutes cruelty on husband?
   The appellant has also petitioned for divorce on the grounds of cruelty. As there was no physical cruelty involved as per the given facts and hence it would precisely raise a question, whether those act of masturbation and porn addiction inflicts mental cruelty to her husband.

 

Venereal Disease- Legal Position In India

This provision says that if one of the spouses is suffering from any venereal disease in a communicable form that has not been contracted yet to the petitioner. Communicability is of utmost importance for the court to grant a divorce. Before the 1976 Amendment to Section 13(1)(v),[9] there was a requirement of continuity of venereal disease for 3 years immediately preceding the petition.

As per Section 13-A,[10] in case of a venereal disease petition, the court has the discretion to grant judicial separation instead of divorce, and Section 10[11] is a provision under which parties can reach out to courts for judicial separation on the grounds of Section 13. Such claims of venereal disease are to be established by strict medical evidence beyond a reasonable doubt. It is also necessary to allow the affected party to know that she caught the disease not because of her morally deviant behavior but rather due to things beyond her control.

In an autobiography of Mallika Amarsheikh titled "I want to destroy myself," She contracted HIV from her promiscuous husband. Would it be justified if the court grants a divorce to her husband, who seeks divorce because his wife is suffering from venereal disease?

It would be unjustified. Smt. Mita Gupta vs. Prabir Kumar Gupta (1988):[12] A spouse, due to a morally deviant act, the other spouse contracted venereal disease, cannot seek divorce because his spouse is suffering from venereal disease in a communicable form. Granting such a divorce would be a grave injustice, as the petitioner would benefit from his wrongful act.

The objective of the act is to grant remedies to the aggrieved party and not to reward the culpable behavior within the sacred institution of marriage. In Madhusudan vs. Chandrika, the wife was suffering from syphilis for more than three years even before marriage, and the same was actively concealed from the husband. The petition was dismissed because the husband failed to establish that her wife had suffered for 3 years from a venereal disease in its communicable form. Although after the 1976 Amendment[13], the criteria of 3 years have been omitted, the petitioner still needs to establish the existence of the disease with strict evidence.

Cruelty: Position In India

The 1976 Amendment Act[14] made cruelty grounds for Divorce, before which no one could claim a divorce on the same grounds. There is no straitjacket definition of cruelty that has been given by the court. Hon'ble court has, time and time again, reiterated that cruelty differs on a case-by-case basis. Any strict definition of cruelty will constitute cruelty with the sacred institution of marriage.

Earlier, cruelty was synonymous with physical domestic violence or any other type of physical harm. In the case of Dastane vs. Dastane,[15] Hon'ble S.C. said that there must be reasonable apprehension that cohabiting with the respondent will cause an immediate danger to his life and limb. In this case, the Supreme Court, for the very first time, expanded cruelty to be inclusive of mental cruelty. However, in this case, mental cruelty was limited to the apprehension of physical violence only.

Manisha Tyagi vs. Deepak Kumar[16] broadened the scope of mental cruelty beyond the apprehension of physical cruelty. Cruelty is something that inflicts mental pain and suffering that is of such a nature that it becomes impossible to cohabit with the cruel spouse. Behavior that causes discomfort to marriage and which is unexpected, unnecessary, and objectionable. Such cruelty leads to the breakdown of marriage beyond ordinary war and tear. Shobha Rani vs. Madhukar Reddi[17] further expanded mental cruelty to include the mental pain inflicted on the wife due to dowry demand. Suman Kapoor vs. Sudhir Kapoor[18] said that Mens rea is not important to commit cruelty.

In the case of Naveen Kohli vs. Neelu Kohli[19], the Hon'ble Supreme Court said that if the act of one of the spouses creates a hostile environment and adversely affects the mental health of the other spouse. A cruel act constitutes cruelty regardless of intention. The concept of mental cruelty kept on evolving, and it presently raised questions in the case,[20] whether wife's habit of masturbation and porn addiction can cause mental cruelty to husband?

Court's Analysis of the Case

The petitioner sought divorce on two grounds under Section 13(1)(v)[21] and Section 13(1)(i-a)[22], which deal with divorce on the grounds of venereal disease in its communicable form and cruelty, respectively.

• Petitioner failed to establish herself as the sufferer of a venereal disease.
• The court, while dealing with the case, pointed out that the appellant must establish the existence of the venereal disease in its communicable form, backed by sufficient evidence.
• Section 13(1)(v) provides for divorce on the grounds of venereal disease. It casts a serious stigma, so it needs to be substantiated with strict proof.
• Out of the seven grounds for divorce given in Section 13(1), adultery and venereal disease can be established only if they meet a higher threshold.[23]
• In the latter ground, it is not sufficient to establish only the existence of venereal disease in a communicable form. It is also required that the respondent has not contracted the disease from the petitioner.
• The respondent would be given an opportunity to prove that she did not contract a disease because of her morally deviant behavior, but rather that it happened due to circumstances beyond her control.
• For example, a pregnant lady who went for a pregnancy check contracted HIV due to the transfusion of contaminated blood.[24] If her husband claims divorce on the grounds of Section 13(1)(v), it would be unjustified.
• No authentic medical report was submitted to the Hon'ble Court to substantiate his allegations. He marked the report of Ayurveda.
• The court said that at least a blood test report substantiating his allegations is required.
• According to the respondent, she was merely suffering from leukorrhea, which can easily be treated. Therefore, grounds under Section 13(1)(v) were not established.

There was no cruelty inflicted on the petitioner by the respondent. The appellant argued that he suffered cruelty due to the acts of the respondent. He substantiated the same by some allegations as follows:

• She is a spendthrift.
• She is addicted to watching porn.
• She frequently indulges in masturbation.
• Refuses to do household chores.
• She ill-treated her in-laws.
• Engages in long calls.

The appellant has not provided any evidence to prove all the allegations. There was no examination of her in-laws. Only the appellant was examined in the case. If there was ill treatment of her in-laws, he could have examined one of them in court. He failed to do so and is also silent on many allegations. Even the allegations of masturbation and porn addiction cannot be corroborated. Counsel for the petitioner said that no husband would make such untrue allegations.

Watching Porn Privately Is Not an Offence

In the case of P.G. Sam Infant Jones v. State, the court said that merely watching pornography will not constitute an offence.[25] An offence is something that is against the law and is punishable under the law.[26] As of now, there is no legal provision punishing the same. Indeed, child pornography is an offence under Section 67-B of the Information Technology Act, 2000.[27]

Act of Watching Porn Does Not Constitute Cruelty

Indeed, any addiction is bad, so definitely porn addiction is worse. A breach of community expectations and a breach of law are two completely different things. The appellant might have been granted a divorce if he had been treated with cruelty. Merely the act of watching porn does not constitute cruelty. If she has compelled him to watch porn with her then that might have constituted an act of cruelty.

Spousal Privacy

There are reasonable expectations that personal matters and conversations between husband and wife remain confidential. There cannot be any external scrutiny. The Madras High Court affirmed that spousal privacy is a fundamental right. Evidence procured through an invasion of privacy is not acceptable to the court.

Indulgence in Masturbation Does Not Constitute Cruelty

Such an allegation in itself seems to infringe on women's sexual autonomy. If a woman indulges and seeks pleasure from affairs outside marriage, it can constitute grounds for divorce. An act of indulgence in self-pleasure does not amount to cruelty. Hence, it does not furnish grounds for divorce. Masturbation among men has been acknowledged universally; the same reactions from women to their bodily urges should not be stigmatized.

There is no proof that due to the masturbation of wife, their conjugal relationship would suffer. In the case of Rajive Ratori v. UOI[28] Hon'ble Supreme Court recognized that when Right to Privacy is a Fundamental right it also includes Spousal Privacy as a fundamental Right, Right of Bodily autonomy, and Right of Self Expression.

Judgement
The respondent denied all the allegations of the appellant. The court said that it could not trust the appellant because if he had been true, how could they have cohabited for almost 2 years. The Appellant failed to furnish any evidence to prove that she refused to do household chores. The Court concluded that the appellant had not proved his case. Hence, confirm the order passed by the Karur Family Court directing the restitution of conjugal rights and dismissing the divorce petition.

Conclusion
After marriage, a woman becomes a spouse, but that does not mean she renounces her individuality and inherent rights associated with an individual. Her marital obligations cannot override her Right to Privacy, inclusive of the Right of Bodily autonomy and the Right to self-expression. It is disappointing that in March 2025, the husband, as in this case, needs the court to spell out that married women have an inalienable right to self-expression, self-pleasure, and bodily autonomy. Exercising such rights does not amount to cruelty on the husband.

References:

1. Dr. Poonam Pradhan Saxena, Family Law Lectures - Family Law I, (Lexis Nexis, 2021).
2. Bharatiya Nyaya Samhita, 2023, § 2, No. 45 Acts of Parliament, 2023 (India).
3. Hindu Marriage Act, 1955, No. 25 of 1955, Acts of Parliament, 1955 (India).
4. Information Technology Act, 2000, Act No. 21, Acts of Parliament, 2023 (India).
5. Dastane vs. Dastane, AIR 1975 SC 1534.
6. Judgment in C.M.A(MD) Nos 460 & 1515 of 2024, Madurai Bench of Madras High Court.
7. Manisha Tyagi v. Capt Deepak Kumar, AIR 2010 SC 1042.
8. Naveen Kohli vs Neelu Kohli, AIR 2006 SC 1675.
9. P.G. Sam Infant Jones v. State, 2021 SCC OnLine Mad 2241.
10. Rajive Ratori v. UOI, 2024 SCC OnLine SC 3217.
11. Shobha Rani vs. Madhukar Reddi, 1987 INSC 329.
12. Smt. Mita Gupta vs. Prabir Kumar Gupta, AIR 1989 CAL 248.
13. Suman Kapoor vs. Sudhir Kapoor, 2009 (1) SCC 422.
14. The Lawmatics, Private Pornography and Masturbation does not constitute as cruelty: Madras High Court Judgment (Mar. 21, 2025), https://thelawmatics.in/private-pornography-and-masturbation-does-not-constitute-as-cruelty-madras-high-court-judgment/.
15. S. Sunder, Pregnant woman tests positive for HIV after blood transfusion in Tamil Nadu, The Hindu, (Dec. 26, 2018, 12:02 am), https://www.thehindu.com/news/national/tamil-nadu/pregnant-woman-tests-positive-for-hiv-after-blood-transfusion-in-tamil-nadu/article25828885.ece.

End Notes:

1. Judgment in C.M.A(MD) Nos 460 & 1515 of 2024, Madurai Bench of Madras High Court.
2. Hindu Marriage Act, 1955, No. 25 of 1955, Acts of Parliament, 1955 (India).
3. Hindu Marriage Act, 1955, § 13(1)(v), No. 25 of 1955, Acts of Parliament, 1955 (India).
4. Hindu Marriage Act, 1955, § 13(1)(i-a), No. 25 of 1955, Acts of Parliament, 1955 (India).
5. Supra note. 2.
6. Supra note. 4.
7. Supra note. 1.
8. Hindu Marriage Act, 1955, § 10, No. 25 of 1955, Acts of Parliament, 1955 (India).
9. Supra note. 3.
10. Hindu Marriage Act, 1955, § 13-A, No. 25 of 1955, Acts of Parliament, 1955 (India).
11. Supra note 7.
12. Smt. Mita Gupta vs. Prabir Kumar Gupta AIR 1989 CAL 248.
13. Supra note. 9.
14. Supra note 2.
15. Dastane vs. Dastane, AIR 1975 SC 1534.
16. Manisha Tyagi v. Capt Deepak Kumar, AIR 2010 SC 1042.
17. Shobha Rani vs. Madhukar Reddi 1987 INSC 329.
18. Suman Kapoor vs. Sudhir Kapoor 2009 (1) SCC 422.
19. Naveen Kohli vs Neelu Kohli AIR 2006 SC 1675.
20. Supra note.1.
21. Supra note.3.
22. Supra note 4.
23. Supra note.1.
24. Pregnant woman tests positive for HIV after blood transfusion in Tamil Nadu, The Hindu, (Dec. 26, 2018, 12:02 am), https://www.thehindu.com/news/national/tamil-nadu/pregnant-woman-tests-positive-for-hiv-after-blood-transfusion-in-tamil-nadu/article25828885.ece.
25. P.G. Sam Infant Jones v. State, 2021 SCC OnLine Mad 2241.
26. Bharatiya Nyaya Samhita, 2023, § 2, No. 45 Acts of Parliament, 2023 (India).
27. Information Technology Act, 2000, Act No. 21, Acts of Parliament, 2023 (India).
28. Rajive Raturi v. UOI 2024 SCC OnLine SC 3217.

Written By: Ritik Sen, Hidayatullah National Law University, Raipur, Chhattisgarh.