A
Supreme Court bench comprising of Justice S.J. Mukhopadhayaya and
Justice Prafulla C. Pant, in a judgment delivered yesterday, upheld
dissolution of marriage between the parties, on the grounds of denial of
sex as amounting to mental cruelty.
The Court observed, “Undoubtedly,
not allowing a spouse for a long time, to have sexual intercourse by
his or her partner, without sufficient reason, itself amounts mental
cruelty to such spouse. A Bench of Three Judges of this Court in Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 has enumerated some of the illustrations of mental cruelty.”
The appeal arose out of a 2012 judgment passed by Madras High Court, wherein the marriage between the parties was dissolved.
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The High Court, while rejecting the explanation given by the wife as to why the marriage was not consummated, observed, “Thus
it appears that this explanation of the respondent for non consummation
of the marriage is only an afterthought. Even assuming for a moment
that the appellant wanted to have a child only after two years that does
not mean that the appellant and the respondent cannot and should not
have sexual intercourse. Admittedly, both of them are well educated and
there are so many contraceptives available and they could have used such
contraceptives and avoided pregnancy if they had wanted.”
The
appellant and respondent got married in 2005, after which they went to
London where the husband was working and stayed there for some eight
months. The two came back to India in December, 2005. However, the
appellant went back to England all alone, and his wife did not go there
though her husband had purchased a return ticket for her. On 13.9.2008,
the husband filed a petition under Section 13 (1) (a) of the Hindu
Marriage Act, 1955 for dissolution of marriage.
The
respondent (husband) had submitted that while the appellant was with
him in London, she used to insult him. It is alleged by him that at
times she used to get violent and hysterical. The husband further
pleaded that even after his best efforts; the appellant did not allow
him to consummate the marriage. It was also alleged by the present
respondent (husband) that his wife used to send him e-mails which were
derogatory and in bad taste. It is also alleged by the respondent that
his wife refused to join his company even after his best efforts. With
the above pleadings, the present respondent filed a petition for divorce
before the Family Court, Chennai on the ground of cruelty.
The
wife however denied all allegations. She submitted that the marriage
could not be consummated for the reason that her husband wanted to have
children after one or two years of marriage. She did not deny having
sent e-mails but stated that she only responded to the respondent as he
wanted divorce decree based on her consent.
Rejecting
the wife’s contentions, the Court directed the husband to pay Rs. 40
lakhs as one-time lump sum alimony to the wife as she is not doing any
job at the moment.
Supreme Court has re-iterated the following principles enumerated in Ghosh vs. Jaya Ghosh (2007) 4 SCC 511
“No
uniform standard can ever be laid down for guidance, yet we deem it
appropriate to enumerate some instances of human behaviour which may be
relevant in dealing with the cases of ‘mental cruelty’. The instances
indicated in the succeeding paragraphs are only illustrative and not
exhaustive.
(i) On
consideration of complete matrimonial life of the parties, acute mental
pain, agony and suffering as would not make possible for the parties to
live with each other could come within the broad parameters of mental
cruelty.
(ii) On comprehensive
appraisal of the entire matrimonial life of the parties, it becomes
abundantly clear that situation is such that the wronged party cannot
reasonably be asked to put up with such conduct and continue to live
with other party.
(iii) Mere
coldness or lack of affection cannot amount to cruelty, frequent
rudeness of language, petulance of manner, indifference and neglect may
reach such a degree that it makes the married life for the other spouse
absolutely intolerable.
(iv)
Mental cruelty is a state of mind. The feeling of deep anguish,
disappointment, frustration in one spouse caused by the conduct of other
for a long time may lead to mental cruelty.
(v)
A sustained course of abusive and humiliating treatment calculated to
torture, discommode or render miserable life of the spouse.
(vi)
Sustained unjustifiable conduct and behaviour of one spouse actually
affecting physical and mental health of the other spouse. The treatment
complained of and the resultant danger or apprehension must be very
grave, substantial and weighty.
(vii)
Sustained reprehensible conduct, studied neglect, indifference or total
departure from the normal standard of conjugal kindness causing injury
to mental health or deriving sadistic pleasure can also amount to mental
cruelty.
(viii) The conduct
must be much more than jealousy, selfishness, possessiveness, which
causes unhappiness and dissatisfaction and emotional upset may not be a
ground for grant of divorce on the ground of mental cruelty.
(ix)
Mere trivial irritations, quarrels, normal wear and tear of the married
life which happens in day to day life would not be adequate for grant
of divorce on the ground of mental cruelty.
(x)
The married life should be reviewed as a whole and a few isolated
instances over a period of years will not amount to cruelty. The
ill-conduct must be persistent for a fairly lengthy period, where the
relationship has deteriorated to an extent that because of the acts and
behaviour of a spouse, the wronged party finds it extremely difficult to
live with the other party any longer, may amount to mental cruelty.
(xi)
If a husband submits himself for an operation of sterilization without
medical reasons and without the consent or knowledge of his wife and
similarly if the wife undergoes vasectomy or abortion without medical
reason or without the consent or knowledge of her husband, such an act
of the spouse may lead to mental cruelty.
(xii)
Unilateral decision of refusal to have intercourse for considerable
period without there being any physical incapacity or valid reason may
amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv)
Where there has been a long period of continuous separation, it may
fairly be concluded that the matrimonial bond is beyond repair. The
marriage becomes a fiction though supported by a legal tie. By refusing
to sever that tie, the law in such cases, does not serve the sanctity of
marriage; on the contrary, it shows scant regard for the feelings and
emotions of the parties. In such like situations, it may lead to mental
cruelty.”
The Bench has found
that out that the above mentioned illustrations, No. (viii) and
(xii) given in Samar Ghosh case (supra), support the view taken by
the High Court in holding that in the present case the wife has
treated her husband with mental cruelty and affirmed the decree
of divorce granted by the High Court dissolving the marriage.
