Legal Question in Family Law in India

I am a lawyer in the United States. I represent a Hindu woman who was married to her Hindu husband in India. Her husband has recently filed for divorce in a United States court. She does not wish to consent to the divorce. She tells me that throughout their entire time together, the husband has never shown the slightest interest in sexual relations with her and the marriage has never been consummated. She says that she is still a virgin. She believes that her husband may be homosexual. Under United States law, the validity of a marriage is determined under the laws of the place where the marriage was solemnized, in this case, India. I understand that under Section 12(1)(a) of the 1955 Hindu Marriage Act, she could get the marriage annulled in India if the husband is impotent. However, if we can't prove that, is there an alternative under Section 5 to argue that his homosexuality constitutes "a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children?" Have the Indian courts ever addressed this issue?

Asked on 3/26/12, 4:42 pm

5 Answers from Attorneys

Vishwa Arya Arya & Co.

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Section 13 Hindu Marriage Act provides for cruelty, mental or physical, as one of the grounds for divorce. Supreme Court of India in a judgment in 2011 has observed, "Sex is the foundation of marriage and marriage without sex is anathema". This judgment has been followed by Delhi High Court in a recent judgment holding that wilful denial of sex by a spouse amounts to cruelty and can be ground for dissolution of marriage. For any further concern, please do not hesitate to write or email

Answered on 3/26/12, 6:35 pm

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Bennet Master of Law Bennet Raj Law Office

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That also deemed to be cruelty sir. We cannot take the plea as marriage as null and void. As per latest findings [Madras High Court - Division Bench] here, US Court Judgements will not bind to the marriages solemnised in INDIA

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Answered on 3/26/12, 7:20 pm

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RAJIV GUPTA (Cell: +91 9811284735) [email protected]

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i think this will complicate the matter further. in case your client goes for annulment in india, this may take years for her to prove that her marriage is not consummated owing to different sexual preferences of her husband or due to his impotency towards her. as the husband already filed a petition for divorce, it is advisable to file a reply to the same stating her ground of impotency/homosexuality but not pressing the same and giving consent to divorce at the later stage. this would save your client's precious years of youth.

Answered on 3/27/12, 3:18 am

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