Denial Of Conjugal Relationship Ground For Divorce But Not 'Exceptional Hardship' To Waive Cooling Off Period U/S 14 Hindu Marriage Act: Delhi HC

The Delhi High Court has held that though denial of conjugal relationship is a ground for divorce and tantamounts to cruelty, the same cannot be said to amount to "exceptional hardship" under Section 14 of the Hindu Marriage Act 1955.

Section 14 prescribes a mandatory 1 year waiting period from the date of marriage, before filing for divorce. A proviso to this Section states that the 1 year period may be waived off on the ground that the case is one of "exceptional hardship" to the petitioner or of "exceptional depravity" on the part of the respondent.

A bench comprising of Acting Chief Justice Vipin Sanghi and Justice Jasmeet Singh observed that the 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 bench thus dismissed the appeal filed by a wife challenging the Family Court order by way of which her divorce petition under Section 13B of Hindu Marriage Act 1955 for dissolution of marriage by a decree of divorce by mutual consent was dismissed. The Family Court had dismissed their application over non-compliance of Section 14.

Soon after the marriage, marital differences cropped up between the parties, and they started living separately albeit in the same house. Later, the wife left her matrimonial home and went to her parental house. Wife and the husband had hardly lived together and had no child born out of the wedlock.

Accordingly, in pursuance of the MOU, a joint petition under sec. 13B (1) of the Act for dissolution of marriage by mutual consent was filed by both the parties, incorporating the terms of settlement arrived between the parties. The parties filed the petition 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.

In the said application, it had to be satisfied that there was denial of sex from both sides which led to a situation of "exceptional hardship"/ "exceptional depravity".

The Family Court refused to grant leave as it was of the opinion that the exceptions carved out in the proviso to sec. 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.

During the course of hearings, reliance was placed 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.

Court's Findings

The Court first addressed the issue regarding the legal position on the applicability of the proviso to sec. 14 to a divorce sought under sec. 13B of the Act. It said that a contradiction seemed to arise on the applicability of the waiver Clause contained in the proviso to sec. 14(1) in respect of the period of minimum separation envisaged under Section 13B(1).

"In other words: is it permissible for the parties to approach the court for seeking a decree of divorce by mutual consent, before exhausting the minimum one year period of separation on the ground that the case involves "exceptional hardship" or "exceptional depravity"? Had there been no requirement of minimum period in case of Section 13B(1), the proviso to Section 14 would have operated without controversy. However, the prescription of statutory minimum period of separation of one year in Section 13B(1) on the one hand, and the waiver Clause in the proviso to Section 14(1) on the other hand, needs deeper consideration," the Court said.

Relying on the relevant judgments, the Court was of the view that the mandatory one year period granted under sec. 14 of the Act, encourages couples to cool down, and give a rethink to preserve their marriage. It added that the only exceptions when the Court may waive the mandatory requirement of the marriage being, at least, one year old, are in the cases of "exceptional hardship" and "exceptional depravity".

"No doubt, the requirement of minimum one year period of separation before filing the petition for divorce on mutual consent under Section 13B(1) is backed by a sound objective. The essential idea is to ensure that the parties experience the feeling of separation for a certain period before finally choosing to part ways. It also envisions the possibility of escalation of normal wear and tear in the family, to the extent that parties rush to the court in momentary passion, and seek to provide a safety value against such impulsive conduct. A divorce on the ground of "mutual consent" is premised on freewill or free consent of both the parties," the Court said.

It added "Formation of free consent is not expected to be an instantaneous process, and the requirement of minimum period ensures that the consent is backed by patient thought and consideration of all the pros and cons of the relationship. Thus, permitting tinkering of that one year period 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."

"It would run contrary to the wisdom that a marriage must be given reasonable time to work, and only when that reasonable time has expired, could it be concluded that the marriage be dissolved. However, what has been enacted as a measure of abundant caution to preserve the marital tie, must not become a tool of subversion. Over the course of time, the constitutional jurisprudence has evolved to attach great importance to individual autonomy and personal dignity. The import of these principles is to protect those couples who are forced to live in conditions of exceptional hardship, where one of them is subjected to exceptional depravity. Such cases are exceptional in nature and the general rule under Section 13B(1) or under Section 14(1) must be relaxed in such circumstances as envisaged by Section 14 itself. The legislature has enacted the proviso to Section 14 as a measure to be adopted in such exceptional circumstances. Of course, unless a party is able to make out a case falling in one of the two exceptions i.e. "exceptional hardship", or "exceptional depravity", the general rule shall prevail, that the parties must wait for the cooling off period."

Thereafter, the Court addressed another question as to whether the denial of conjugal relationship amounts to exceptional hardship or exceptional depravity.

While the Bench differentiated between the meanings of cohabitation, consummation, conjugal relationship and denial of sex, it said that while sexual relationship is an integral, but not the beginning and end of, cohabitation.

The Court was of the view that consummation is simply one instance to make a marriage complete, whereas a conjugal relationship would mean the continuous sexual relationship between a husband and wife over their course of marriage.

"Cohabitation is the complete marital status of a married couple, where sexual relationship is a natural concomitant of that relationship. There can be consummation without cohabitation, and vice-versa. The term cohabitate simply means two individuals living together. These terms are inherently different and must not be treated as the same. The fact of the matter is that these terms are used in different contexts under different provisions to show the difference in intent by the legislature," the Court observed.

Next, the Bench considered as to whether non-indulgence of a married couple in sexual activity, admittedly owing to temperamental differences, could be regarded as so "exceptional" so as to attract immediate dissolution of the marriage, without even waiting for the one-year period which contemplates an opportunity of reconciliation.

Answering in the negative, the Court said thus:

"In our considered view, the answer lies in the negative. For, if there are serious, temporal or behavioral issues between a married couple, it is nothing but expected that they would not be maintaining a healthy conjugal relationship."

Thereafter, the Court further observed depravity cannot be taken to mean deprivation i.e. of being deprived and that a mere incompatible marital relationship, or one which has irreconcilable differences due to temporal or behavioral differences would not, in itself, lead to the causing of exceptional depravity by either of the parties to the other.

"The party alleging exceptional depravity in the conduct of the opposite party, would need to place before the Court the facts which constitute acts of exceptional depravity. 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," the Court said.

It added "No doubt, it may tantamount to a matrimonial misconduct, but that is not what we are examining presently. There could be myriad situations which may qualify as "exceptional depravity". However, it would not be wise to define or limit the same. The Act itself mentions some acts, which may amount to exceptionally depraved conduct. Section 13(2)(ii), for instance, entitles the wife to seek divorce on the ground that the husband has, since the solemnization of the marriage "been guilty of rape, sodomy or bestiality". Such conduct may qualify as exceptionally depraved conduct."

"The 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 denial of sex, or non-consummation of the marriage in the present case is a voluntary act of abstinence by the parties. Consequently, denial of conjugal relationship, or non-consummation due to temperamental/ behavioral differences can only be a ground for divorce, under cruelty."

The Court was therefore of the view, that though denial of conjugal relationship is a ground for divorce, and tantamounts to cruelty, but the same cannot be said to amount to "exceptional hardship".

"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 Court said.

Thus the Court rejected the submission of the appellant wife that the denial of conjugal relations by both parties is such, that it caused "exceptional hardship or exceptional depravity" to either, or both of them.

Accordingly, the Court did not agree to the judgments delivered by the High Court of Punjab and Haryana in Shivani Yadav v. Amit Yadav and High Court of Kerala in Ratheesh M. v. Dhanya K. V.

"In view of our discussion above, we reject this appeal and uphold the order of the Family Court rejecting the application of the parties filed under the proviso to Section 14 of the Hindu Marriage Act, 1955," the Court said.

The Court had appointed Senior Advocate Preetesh Kapur as the Amicus Curiae in the matter. 

Case Title: RISHU AGGARWAL v. MOHIT GOYAL

Citation: 2022 LiveLaw (Del) 334

Click Here To Read Order