Denial Of Conjugal Relationship Ground For Divorce But Not 'Exceptional Hardship' To Waive Cooling Off Period U/S 14 Hindu Marriage Act: Delhi HC

The Delhi High Court has held that though denial of conjugal relationship is a ground for divorce and tantamounts to cruelty, the same cannot be said to amount to "exceptional hardship" under Section 14 of the Hindu Marriage Act 1955.Section 14 prescribes a mandatory 1 year waiting period from the date of marriage, before filing for divorce. A proviso to this Section states that the 1 year period may be waived off on the ground that the case is one of "exceptional hardship" to the petitioner or of "exceptional depravity" on the part of the respondent.A bench comprising of Acting Chief Justice Vipin Sanghi and Justice Jasmeet Singh observed that the denial of sex by one spouse to the other, or by both of them to each other may certainly constitute "hardship", but it cannot be said to be "exceptional hardship".The bench thus dismissed the appeal filed by a wife challenging the Family Court order by way of which her divorce petition under Section 13B of Hindu Marriage Act 1955 for dissolution of marriage by a decree of divorce by mutual consent was dismissed. The Family Court had dismissed their application over non-compliance of Section 14.Soon after the marriage, marital differences cropped up between the parties, and they started living separately albeit in the same house. Later, the wife left her matrimonial home and went to her parental house. Wife and the husband had hardly lived together and had no child born out of the wedlock.Accordingly, in pursuance of the MOU, a joint petition under sec. 13B (1) of the Act for dissolution of marriage by mutual consent was filed by both the parties, incorporating the terms of settlement arrived between the parties. The parties filed the petition along with an application under the proviso to Section 14 of the Act, for leave to present the petition before the expiry of the cooling-off period of one year from the date of marriage.In the said application, it had to be satisfied that there was denial of sex from both sides which led to a situation of "exceptional hardship"/ "exceptional depravity". The Family Court refused to grant leave as it was of the opinion that the exceptions carved out in the proviso to sec. 14 of the Act were not made out, and the parties were unable to prove a case of exceptional hardship or exceptional depravity. Consequently, the petition of the parties was dismissed, as it was filed before the expiry of one year period.During the course of hearings, reliance was placed on a 2013 decision of the Kerala High Court, holding that divorce can be granted immediately after marriage if there is absolute lack of sex between husband and wife.Court's FindingsThe Court first addressed the issue regarding the legal position on the applicability of the proviso to sec. 14 to a divorce sought under sec. 13B of the Act. It said that a contradiction seemed to arise on the applicability of the waiver Clause contained in the proviso to sec. 14(1) in respect of the period of minimum separation envisaged under Section 13B(1). "In other words: is it permissible for the parties to approach the court for seeking a decree of divorce by mutual consent, before exhausting the minimum one year period of separation on the ground that the case involves "exceptional hardship" or "exceptional depravity"? Had there been no requirement of minimum period in case of Section 13B(1), the proviso to Section 14 would have operated without controversy. However, the prescription of statutory minimum period of separation of one year in Section 13B(1) on the one hand, and the waiver Clause in the proviso to Section 14(1) on the other hand, needs deeper consideration," the Court said. Relying on the relevant judgments, the Court was of the view that the mandatory one year period granted under sec. 14 of the Act, encourages couples to cool down, and give a rethink to preserve their marriage. It added that the only exceptions when the Court may waive the mandatory requirement of the marriage being, at least, one year old, are in the cases of "exceptional hardship" and "exceptional depravity". "No doubt, the requirement of minimum one year period of separation before filing the petition for divorce on mutual consent under Section 13B(1) is backed by a sound objective. The essential idea is to ensure that the parties experience the feeling of separation for a certain period before finally choosing to part ways. It also envisions the possibility of escalation of normal wear and tear in the family, to the extent that parties rush to the court in momentary passion, and seek to provide a safety value against such impulsive conduct. A divorce on the ground of "mutual consent" is premised on freewill or free consent of both the parties," the Court said. It added "Formation of free consent is not expected to be an instantaneous process, and the requirement of minimum period ensures that the consent is backed by patient thought and consideration of all the pros and cons of the relationship. Thus,...

Denial Of Conjugal Relationship Ground For Divorce But Not 'Exceptional Hardship' To Waive Cooling Off Period U/S 14 Hindu Marriage Act: Delhi HC

Nupur Thapliyal

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