The Delhi High Court in its recent judgement dated April 18, 2022 has held that denial of conjugal relationship does not amount to “exceptional hardship” or “exceptional depravity” and, therefore, cannot be a ground for dissolution of marriage by mutual consent before the mandated cooling-off period of one year.
A Division Bench of Acting Chief Justice Vipin Sanghi and Justice Jasmeet Singh held,
Once the Parliament, in its wisdom, has legislated that denial of cohabitation/conjugal relationship over a period of one year, or more, would tantamount to cruelty, it cannot be said that denial of sex simpliciter within the period of one year, would be a case of exceptional hardship.
The marriage between parties was solemnised on 04.04.2021 as per the Hindu rites and ceremonies at Ram Nagar, Uttarakhand. The appellant wife, after marriage, shifted to the matrimonial home of the respondent husband at Faridabad, Haryana.
Soon after the marriage, marital differences cropped up between the parties, and from 14.04.2021 onwards, they started living separately albeit in the same house. On 29.07.2021, the appellant left her matrimonial home and went to her parental house at Rohini, Delhi. The appellant and respondent hardly lived together as husband and wife, and no child has been born out of the wedlock.
Both side parents, relatives and friends made sincere efforts to save their marriage and to reconcile the matter. However, all the efforts were in vain and the parties could not settle their matrimonial differences. Seeing no possibility of reconciliation, the appellant and the respondent decided to seek dissolution of their marriage.
Accordingly, they executed an MOU dated 16.09.2021, settling their disputes and undertaking to co-operate with each other to dissolve their marriage by mutual consent as per the provisions of the Hindu Marriage Act, 1955. Thus, the parties filed the petition under Section 13B (1) 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.
It was argued that there was denial of sex from both sides which led to a situation of “exceptional hardship”/ “exceptional depravity”.
Exception to Waive Off Cooling Period
While Section 13B of the HMA provides for dissolution of marriage by mutual consent, Section 14 says that divorce cannot be granted before the period of one year. However, there is an exception in this provision which says that divorce can be granted before the mandatory period of one year if there is a case of “exceptional hardship” or of “exceptional depravity”.
Family Court, Delhi
The Family Court refused to grant divorce to the couple as it was of the opinion that the exceptions carved out in the proviso to Section 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.
Delhi High Court
The Court was dealing with an appeal challenging the order and judgment of the family court in Rohini dismissing the divorce petition filed under Section 13B of the HMA for dissolution of marriage by mutual consent.
The family court, however, refused to grant the relief stating that the exception carved out in Section 14 was not made out and the parties were unable to prove the case. Their petition was, therefore, dismissed as it was filed before the expiry of one year period.
The High Court said that the requirement of minimum one year period of separation before filing a divorce petition is backed by a sound objective and tinkering with it in an ordinary situation would be diluting the intent of the parliament and would amount to tinkering with the entire fabric with which Section 13B has been woven.
The Court said that the legislature has enacted proviso to Section 14 as a measure to be adopted in exceptional circumstances. Therefore, unless a party is able to make out a case falling into one of the two exceptions, the general rule shall prevail that the parties must wait for the cooling off period.
The Court also examined the meaning of the word ‘depravity’ as contained in Section 14 and said that it means wickedness or immoral behaviour of such a nature which cannot be expected by any individual in any reasonable situation. Such behaviour is marked by perversity and lack of moral decency but depravity cannot be taken to mean deprivation i.e. of being deprived, the judges have held. Explaining the same, the High Court said,
Mere denial of sex by one, or both the parties to the other, cannot be described as an act of exceptional depravity. Such conduct cannot be described as wicked or immoral behavior, or as perverse behavior lacking in moral decency, more so when temperamental differences lie at both ends. No doubt, it may tantamount to a matrimonial misconduct, but that is not what we are examining presently.
Analysing the meaning of the word ‘hardship’, it said that Section 14 qualifies the word ‘hardship’ with ‘exceptional’. Though 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 court added,
The intent behind the framing of Section 13, 13B and Section 14 of the Hindu Marriage Act was to protect both – the individuals, as also the marriage. What the legislature has sought to address by way of divorce on the ground of cruelty, cannot be categorized as exceptional hardship or depravity so as to by-pass the well-established procedure.
Subsequently, the Delhi High Court rejected the divorce appeal and upheld the order of the family court. It said that parties can approach the appropriate court after expiry of the one year of separation.
How much interference by Courts is required in matrimonial matters, especially when both parties want to end a dead legal bond? Leave your thoughts on this case below.
READ JUDGEMENT | Denial Of Sex By Spouse Does Not Amount To “Exceptional Hardship” Or “Exceptional Depravity”:Delhi HC— Men’s Day Out (@MensDayOutIndia) April 19, 2022
▪️Started living in diff rooms 14.04.2021
▪️Started living in diff homes 29.07.2021
HC:Come after 1YR Separationhttps://t.co/vth4d89IEU
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