I want to sue my wife for denying me conjugal rights

Let me ask, can I sue my wife for denying me conjugal rights? I mean, they are rights, after all. She isn’t sick or anything; just saying she is not in the mood. As a Christian man, I cannot sleep around as I vowed to be loyal to her. Even our Christian faith forbids denying each other sex. It’s been three long months, and I do not know what to do.
 

Dear reader,
The right to sue and be sued is universal and available to everyone. The Bill of Rights in Chapter Four of the Constitution is elaborate, inclusive, and sometimes specific. Where it is not, enabling laws have been enacted to deal with particular matters. Sex has been identified as a fundamental right only in the appropriate context.

While the context may include it being shared between two consenting adults, one can only seek court intervention if the act of denial is faced and experienced in a legally recognisable marriage.

The basis of affirming that a spouse can sue another seeking conjugal rights is pursued through the framework of marriage as defined in Section 3 of the Marriage Act, as the voluntary union of a man and a woman, whether in a monogamous or polygamous union and registered by the act. Once marriage is caused, it carries along duties and rights shared between husband and wife.

The sharing and the likely displeasure by either spouse, when supply does not match demand or is curtailed are anchored on Article 45 Clause 3 of the Constitution, which assigns parties to a marriage equal right at the time, during, and at its dissolution.

One can infer sex to be a significant ingredient in making or breaking unions since it is cited as one of the causes considered by the court to suspend or terminate one. Section 20 of the Matrimonial Cause Act is more precise and states: a petition for restitution of conjugal rights may be presented to the court by either the husband or the wife, and the court, on being satisfied that the allegations contained in the petition are true and that there is no legal ground why a decree for restitution of conjugal rights should not be granted, may make the decree accordingly.

It is understood that for a marriage to be considered for suspension or separation and eventual termination, there should be claims or accusations of adultery, cruelty, exceptional depravity, desertion for at least three years by the non-petitioning spouse, besides irretrievable breakdown of the union.

This is because the family has been affirmed as the natural and fundamental unit of society and necessary social order. Therefore, this institution must be alive and healthy to benefit those who constitute it.
There is growing jurisprudence to dissuade the justice system from coercing strained couples to stay together as they seek faults to end a marriage while it stands untenable. Justice Reuben Nyakundi, in Civil Appeal Number 89 of 2019, declared if a marriage had broken irretrievably, the courts should set it asunder and leave the rest of the residual judgment to God, the Alpha and Omega of a marriage institution. As a significant issue in the petition, conjugal rights were considered the fruits of a marriage union.
It is appreciated that denial of conjugal rights is synonymous with mental cruelty and likely a significant cause of dissatisfaction in many marriages.

The court, despite being open to anyone who moves it on a matter, should be the last resort. It is necessary that, as a couple, you seek to explore other measures, including mediation and reconciliation, which are recognised in Article 159 (2c) of the Constitution, if it could lead to the re-establishment of a tranquil relationship that may allow the reopening of the conjugal services taps.

The resolve that you wish not to stray in seeking similar services from another source points to the need to seek help that may divulge the underlying causes of your wife’s conduct. Since court orders are more respected and likely to be implemented by both or either of the warring parties and the fear that decisions from the alternative dispute resolution processes may not be observed, it could be essential to register such decisions with the court for accountability. The court may order a court-mediated process and only step in if the process does not yield the desired results.
Justice Mahase of the High Court of Lesotho, on September 13, 2023, gave a restitution order, in the matter between Tankiso Mohapi and Puseletso Mohapi (Nee Libocho) which read in part: it is hereby ordered that the defendant is ordered to restore conjugal rights to the Plaintiff on or before September 25, 2023, failing compliance thereof to come and show cause on the October 11, 2023, why a final decree of divorce shall not be considered against her on the ground of malicious desertion.

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