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Is 'Denial Of Sex' Sufficient Cause To Condone 1Yr Waiting Period For Filing Divorce Under Hindu Marriage Act? Delhi High Court To Examine

Nupur Thapliyal
25 Nov 2021 2:15 PM GMT
Is Denial Of Sex Sufficient Cause To Condone 1Yr Waiting Period For Filing Divorce Under Hindu Marriage Act? Delhi High Court To Examine

The Delhi High Court is set to examine whether denial of sex by married parties to each other itself is sufficient to cause 'exceptional hardship' under Section 14 of the Hindu Marriage Act, 1955, so as to waive off the one year waiting period for filing a divorce petition.

Observing that the issue needs consideration, Justice Vipin Sanghi and Justice Jasmeet Singh appointed Senior Advocate Pritesh Kapur as the Amicus Curiae in the matter.

"Let notice issue to the learned Amicus returnable for the next date," the Court ordered while posting the matter for hearing on January 11, 2022.

The Court was dealing with an appeal preferred under Section 19 of the Family Courts Act assailing an order passed by the Family Court, wherein the joint-petition to seek divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 along with an application under Section 14 was rejected.

The ground for rejection was that the parties got married on April 4, 2021 and could not have filed a divorce petition before expiry of one year, as prescribed under Section 14 of HMA.

Significantly, the provision comes with a proviso that the court may allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of 'exceptional hardship' to the petitioner or of 'exceptional depravity' on the part of the respondent.

The appellants, claiming to be living separately (in the same house from April 14, 2021, and thereafter at separate places from July, 2021) argued that the exceptions carved out in proviso to Section 14 of the Act were made out in their case.

The Family Court had however held that the parties were unable to make out a case of exceptional hardship, or exceptional depravity, and had thereby dismissed their petition and the application.

During the course of hearing, Advocate Rajesh Aggarwal appearing for the appellant placed reliance 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.

Reliance was also placed on a judgment of the Punjab & Haryana High Court in support of his submission that denial of sex by the parties to each other, itself is sufficient to cause exceptional hardship or exceptional deprivation to the parties.

Also Read: 'They Resided Together Only For Two Days': P&H HC Condones Mandatory Period Of 1Yr For Filing Divorce Petition; Dissolves Marriage Of 'Young Couple'

Aggarwal also submitted that in family matters, the approach of the Courts is liberal. Hearing the same, Justice Sanghi orally observed thus:

"Liberal approach does not mean that we will so easily condone one year as prescribed under Section 14 of the Act."

He added:

"You cannot say cruelty is exceptional hardship. The Parliament has consciously used the term exceptional hardship and not cruelty. We don't subscribe to the two decisions. We will appoint an amicus curiae and we will take it forward."

Accordingly, the matter was listed on January 11.


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