Unilateral Refusal To Consummate Marriage Is A Ground For Divorce; Amounts To Mental Cruelty: Madras High Court Reiterates

Justice K Kalyanasundaram and Justice V Sivagnanam were hearing an appeal filed by an army officer, Major Frank Ralston Samuel Raj against the order of Family court dismissing his petition for dissolution of marriage and allowing the wife's petition for restitution of conjugal rights.

Both the parties have made reciprocal accusations against each other. According to the appellant, non-consummation of marriage was due to willful refusal of his wife. According to wife, it was owing to the incapacity of the appellant to penetrate. The parties had been living apart for more than fifteen years.

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.

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 solemnization 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 in Samar Ghosh v. Jaya Ghosh (2007) and by the division bench of Kerala High Court in Beena v. Shino G Babu (2022).

"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 Apex court had opined in Samar Ghosh's case.

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.

In Samar Ghosh also, the court had enumerated some of the illustrations of mental cruelty. Para 101 of the judgment states the following –

101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
…….
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty
…….

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.

Case Title: Major Frank Ralston Samuel Raj v Kezia Padmini Swarna Pandian

Case No: CMA 2463 and 2464 of 2016

Citation: 2022 Live Law (Mad) 139

Click here to read/download judgement