The Madras High Court in its judgement dated March 30, 2022 has reiterated that marriage can be dissolved by decree of divorce on a petition presented either by the husband or the wife on the ground:
That the other party as after the solemnisation of the marriage has not cooperated to consummate the marriage.
The High Court set aside a Family Court order for restitution of conjugal rights and granted divorce to the husband after the couple had been living separately since 15-years.
Marriage between the couple was solemnised in October 2007 at CSI St.George Cathedral Church, Chennai. The appellant husband is working as a Major in Indian Army and the respondent is a house wife.
Submissions by Husband
The appellant and respondent had the first night at Hotel GRT Grand, Chennai. But, unfortunately, the respondent avoided the sexual act/coitus. On the next day, the appellant and the respondent went to the respondent’s house, that night also she refused the coitus under the guise of tiredness and the next day they went to the appellant’s house at Anna Nagar. But, that night also she refused to sexual relations on the same reason.
The husband added that later when he took his wife to Andaman and Nicobar Island for honeymoon and stayed there for seven days, the respondent refused to share the bed and avoided coitus with the appellant for all those days.
The appellant and the respondent returned to Chennai and here too, the respondent refused coitus with the appellant. It is further contended that from the date of marriage the respondent was not inclined to have conjugal relationship with the appellant and postponing their coitus for one reason or the other.
It continued for about five months and then, the appellant advised the respondent to go for a medical check up, for which the respondent refused. Thereafter, the respondent intentionally avoided the appellant and stayed in her brother’s place. Shealso refused to join her matrimonial home.
The appellant lastly approached the Family Court for divorce on the ground of willful refusal to consummate the marriage and cruelty.
The respondent after appearance in the proceedings filed application seeking maintenance till the disposal of the petition and also she sent letters to Army Wives Welfare Association and other senior Army Officer to degrade the reputation of the appellant. The activities of the respondent had created severe hardship and mental agony to the appellant.
Defense by Wife
It is the submission of the wife (in 2022) that she was willing to live with her husband (after separating 15-years ago). According to the woman, she tried to consummate her marriage, but could not do so due to premature ejaculation of her husband. She alleged that instead it was her husband who was unable to consummate the marriage without any fault of her.
The wife then added how she co-operated with her husband and consulted gynecologist available at the Army.
However, she accused the appellant of intentionally deserting and leaving her in her brother’s house. She allegedly tried to contact her husband, but failed. It is then that she approached the Army Wives Welfare Association seeking their assistants for reunion.
She pleaded that the appellant cannot be allowed to take advantage of his own wrong and it is not the case that the marriage is irretrievably broken down. The appellant alone without any reason separated from her and lived. Thus, she prayed to uphold the 2016 order of the Family Court.
Family Court Order
After hearing both parties, the trial Court, by its common order dated 20.09.2016 had dismissed the divorce petition filed by the husband/appellant and allowed the petition filed by the wife/respondent.
Challenging the common order passed by the learned II Additional Family Court, Chennai, the appellant has filed the Civil Miscellaneous Appeals to set aside the order of the Family Court rejecting the petition filed for dissolution of marriage and to set aside the order allowing the petition filed for the restitution of conjugal rights.
Madras High Court
A bench of Justice K Kalyanasundaram and Justice V Sivagnanam were hearing this.
Noting that the parties have made reciprocal accusations against each other, the court also noted that the parties had been living apart for more than fifteen years.
Irretrievable Breakdown in Marriage
The court observed that there was no emotional attachment between the parties and that the marriage was dead both emotionally and practically. Continuance of the relationship for namesake is prolonging the agony and affliction would be a cruelty to both the parties, it said.
Non Consummation of Marriage Ground for Divorce
The court drew attention to Section 10 of Indian Divorce Act 1869, marriage can be dissolved by decree of divorce on a petition presented either by the husband or the wife on the ground that the other party as after the solemnisation of the marriage not co-operated to consummate the marriage and the marriage has not therefore been consummate is entitled for divorce.
The court also discussed decisions of the Apex Court in Naveen Kohli v. Neelu Kohli (2006), where the apex court had held that when the parties cannot live together on account of obvious differences and when one party is adamant and callous in attitude for having divorce on mutual grounds, such attitude can be treated as mental cruelty to the other spouse. This view was upheld inSamar Ghosh v. Jaya Ghosh (2007)and by the division bench of Kerala High Court in Beena v. Shino G Babu (2022).
In case of Samar Ghosh’s case, the Supreme Court has stated,
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 court also relied on the decision of the Apex Court in Vidhya Viswanathan v. Kartik Balakrishnan (2014), where it was stated that a spouse willfully avoiding another spouse to have sexual intercourse without sufficient reason, amounts to mental cruelty to such spouse.
The court therefore was convinced that the marriage between the parties has broken down irretrievably and the parties could no longer live together as husband and wife. Thus, marriage between parties was dissolved.
Is it time India introduces Irretrievable Breakdown in Marriage as a Ground for Divorce? In most case, wives have been taking advantage of the law, choosing to live separately, demanding lifelong maintenance from estranged husband, without consent to divorce.
Leave your comments on this inhuman practice where Husbands in India have no exit from a dead marriage for years/decades:
READ JMENT | Wife's Refusal To Consummate Marriage Is Mental Cruelty; Madras HC Grants Divorce To Husband After 15YRS Of Separation— Men’s Day Out (@MensDayOutIndia) April 8, 2022
▪️Wife refused to share bed
▪️When Husband (Army Major) filed divorce,she wrote letters to Army Wives Welfare Associationhttps://t.co/zOigdQnVoJ
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