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HindustanTimes Sun,26 Oct 2014

'Refusal to have sex during honeymoon isn't cruelty'

PTI  Mumbai, March 09, 2014
First Published: 12:45 IST(9/3/2014) | Last Updated: 13:23 IST(9/3/2014)

Refusal to have sex with a life partner during honeymoon does not amount to cruelty, the Bombay high court has ruled while setting aside a family court judgement dissolving the marriage of a couple on this ground.

The court also ruled that a wife donning shirts and pants to office occasionally and going out of town for office work soon after marriage also would not amount to cruelty towards her husband.

"The married life should be assessed as a whole and a few isolated instances over certain period will not amount to cruelty", observed justices VK Tahilramani and PN Deshmukh in an order early this week.

The ill-conduct must be preceded for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds it extremely difficult to live any longer with the other party (which) may amount to mental cruelty", the bench said.

Mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty, the judges further said.

"Only sustained unjustified and reprehensible conduct affecting physical and mental health of the other spouse may lead to mental cruelty. There is no evidence to that effect in the present case", the bench noted.

The court was hearing an appeal filed by a 29-year-old wife who was aggrieved by a family court order of December 2012, passing a divorce decree on a plea made by her husband on the grounds of cruelty.

"We have already verified all the allegations made in the petition, written statement as well as the evidence of both the parties. On going through the same, we are satisfied that on the basis of such instances, the marriage cannot be dissolved. In this view of the matter, the appeal is allowed," the judges observed.

After their marriage in 2009, the couple went to Mahableshwar hill station for honeymoon and it was the case of the husband that he tried to consummate the marriage but the wife did not allow him to do so. According to him, this amounted to cruelty.

His counsel, Hemant Ghadigaonkar, argued that failure to comply with one of the essential obligations of the marital life by a spouse, would amount to subjecting the other to cruelty. It is one of the essential and principal obligations on the part of the spouse to satisfy the sexual urge of the other, which is a natural instinct, he said.

The wife's counsel Pankaj Shinde said the evidence of the wife clearly showed that at that time her menstrual period was going on and so because of this she refused to allow the husband to consummate the marriage.

Shinde further said that except for the period of four days that they had gone to Mahabaleshwar, there is no allegation made by the husband that the wife thereafter also continued to refuse to have sex with him.

"On going through the evidence, we find this is so. Thus, just on the basis of the evidence of the respondent that during 3 to 4 days that they were in Mahabaleshwar the wife did not allow him to have sexual intercourse, cannot be said to be such as to cause mental or physical cruelty to husband. The wife too has given a valid reason for refusing to have sex," said the judges.

To prove his charge of cruelty, the husband further alleged that the wife used to pick up quarrel with him and his parents and she never gave respect to his parents.

The court, however, noted that in so far as these allegations are concerned, no material particulars have been stated by the husband and only vague and general allegations have been made by him. These, in our opinion, are not sufficient to prove that the wife treated him with cruelty.

The husband had also alleged that his wife had gone to Nashik for office work after about 45 days of her marriage and despite his requests asking her not to go.

However, the court noted that the wife was working and in such case, if it was necessary for her to go on office work, no fault can be found with her for going to Nashik. Hence, going to Nashik on office work cannot be termed as an act of cruelty, the bench observed.

Even assuming that such incidents did occur in the manner alleged by the husband, they were not such that it could not be tolerated by the other partner, the judges said.

"Parties to the marriage, tying nuptial knot, are supposed to bring about the union of two souls. It creates a new relationship of love, affection, care and concern between the husband and wife and that it brings two families together. Such ties cannot be allowed to be severed on the grounds which are ordinary wear and tear of matrimonial life.

"None of the afore-mentioned incidents or conduct of the wife, in our opinion, could be termed as 'grave and weighty' to be treated as the cause for cruelty," the judges said.

"It is true that the word 'cruelty' is not defined and, therefore, it is not possible to say as to when the conduct of other spouse constitutes cruelty, however, the door of cruelty cannot be opened so wide otherwise divorce will have to be granted in every case of incompatibility of temperament." "That was not the intention of Legislature when the ground of cruelty was made available for seeking a decree of divorce", the bench observed.


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