On the 3rd of September, 2019, a division bench of the Gauhati High Court decided whether an unsubstantiated (as opposed to unproven) allegation of homosexuality by one of the spouses against the other in a divorce case amounts to cruelty. Summarily, the court answered this question in the affirmative. This is the first recorded instance in which an Indian court has taken a stance on a homosexuality allegation in a divorce case. Though these allegations are raised in divorce cases from time to time, they are always ignored at the argumentation staged, and have never been attended to by the judges in their judgment. In this blog, I will summarize the facts of the case very briefly and discuss the circumstances under which the homosexuality allegation was raised and decided by the court.
FACTS AND DECISION OF THE CASE
The parties to the case were a married couple. The husband filed a petition for divorce in the Family Court in Gauhati after 14 years of marriage. The petition was filed under S. 13 of the Hindu Marriage Act, 1955, specifically on the grounds of physical and mental cruelty meted out by the wife towards the husband, and on the ground of her unsoundness of mind. The Family court found in favour of the husband that the wife in fact did subject him to mental and physical cruelty, though they found that the allegations of unsoundness of mind were not made out. On this ground they allowed the divorce petition. The wife appealed the decision of the Family Court at the High Court of Gauhati. In that Court, the judges compared competing testimonial and documentary evidence to once again conclude in favour of the husband with respect to cruelty, and upheld the divorce.
ALLEGATION OF HOMOSEXUALITY
The most striking aspect of this case, with respect to the scope of this blog was that while deciding the appeal, the High Court considered a domestic violence case that previously been filed against the husband by the wife. The case had eventually been disposed off by the appropriate court as the wife had showed no interest in pursuing that matter. In that case, the wife had alleged that the husband had homosexual relations with another man which had hampered her conjugal relations with her husband. As mentioned above, the domestic violence case was not eventually pursued by the wife. However, the High Court in the present case referred to the homosexuality allegation in that domestic violence case and stated that that was a serious allegation raised by the wife which she had not even substantiated. The court further concluded that that allegation was false and failure to substantiate the allegation itself amounted to cruelty. The court also noted that the purpose of the allegation was to defame and embarrass the husband.
A number of this about this move of the High Court are curious. First, the court picked out and discussed an allegation that was not even raised in the case. It was an allegation raised in a case which has been disposed off by another court. Secondly, it concluded as to the falsity of the allegation without examining any evidence in that regard.
An interesting question that this decision of the court raises for the future is, is this the ratio of the court or an obiter dicta? If it can be considered to be the ratio of this case then lower courts in Assam will have to follow this ruling re. unsubstantiated allegations of homosexuality. While it will not bind courts outside Assam, it will still have a persuasive value. On the other hand, if this ruling is obiter dicta then it neither binds courts inside the state nor outside it.
I am grateful to Upasana Garnaik for her invaluable consultation regarding this blog. Upasana is an Indian lawyer, currently pursuing a PhD in Sociology at the University of Texas. More here.