London - A man faces being legally barred from making love to his wife because she no longer has the mental capacity to give consent.
Social workers with responsibility for the wife’s care say her health has deteriorated to such an extent that she is not able to decide whether she wants to have sex.
The woman, who has learning difficulties, has been married for 20 years. If the order is granted, her husband would face jail if he carried on having sex with her.
A judge at the Court of Protection in London, which decides on questions of whether people have the mental capacity to make certain decisions, has come under fire on social media for his comments on the case. Suggesting that a sex ban would be difficult to monitor, Mr Justice Hayden said: "I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife – and the right of the state to monitor that."
The right for a man to have sex with his wife without her consent was removed in 1991. It is punishable by the courts as with any other rape. Lawyers representing social services bosses suggested the court make an order banning the man from having sex with his wife in order to ensure that she is not raped.
Mr Justice Hayden has considered the issues at a preliminary hearing of the Court of Protection. He was told the man had offered to give an undertaking not to have sex with his wife. However, a full hearing is expected to take place because Mr Justice Hayden said: "I think he is entitled to have the case properly argued."
He said the couple involved could not be identified in the media.
Mr Justice Hayden has previously overruled parents who wanted to leave their sick daughter’s fate in the hands of God.
The 13-month-old, who was born with kidney failure, had one chance to survive, a treatment called haemodialysis that cleans the blood but the procedure was not risk-free.
Her parents opposed treatment, with the judge saying "they only believe in the power of prayer". He gave the go-ahead to give her a "chance" at life.
The judge ruled that the treatment was in her best interests and said the girl was a "fighter".