Not allowing sexual intercourse to spouse for a long time without sufficient reason amounts to mental cruelty, the Allahabad High Court recently observed while allowing an appeal by a man against the dismissal of his divorce petition by the family court.
The couple had got married in 1979. As per the traditions of the community, his wife’s gauna, or the ceremony when the bride leaves her maternal home for her marital one, was performed after seven years.
The husband alleged that a few days after the gauna, his wife’s attitude towards him changes and she refused to live with him as a wife. He claimed that he tried to convince her many times, but she did not establish any physical relationship with him.
He further alleged that they lived under the same roof only for a short while after which his wife began living separately at her parents’ house.
The man was serving in the police department and had to reside at the place of his posting. He claimed that within six months of the gauna, when he returned home and asked his wife to return from her parents’ house, she refused and proposed divorce by consent. In 1994, the couple arrived at an agreement of divorce and the man thereafter remarried.
The man sought a decree of divorce on the basis of mental cruelty, long desertion and the divorce agreement of 1994, but, despite sufficient service of notices, the wife did not turn up before the family court and the case was directed to proceed ex-parte.
However, after examining the evidence, the family court did not find his case proved and dismissed it.
In the appeal, the High Court noted that there was nothing on record to disbelieve the man’s case as well as his uncontroverted evidence. The court pointed out that the lower court had observed that the papers filed by the man were only photocopies which were not admissible in evidence and there was nothing on record to show that the wife of the man had remarried.
The high court, however, stressed that it was evident from the record that since long, the parties to the marriage had been living separately, and the wife had denied discharging the obligation of marital liability.
The high court opined that the family court had adopted a hyper-technical approach and passed the order of dismissal of the man’s case. Therefore, observing that there is no acceptable view in which a spouse can be compelled to resume life with the consort, the court set aside the order of the lower court and granted a divorce decree to the man.
