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.
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.