Calcutta HC upholds divorce, says occasional cohabitation does not erase cruelty

The Calcutta High Court upheld a divorce decree, ruling that occasional instances of a separated couple living together do not amount to condonation of cruelty. The court found mental cruelty established and noted the marriage had broken down irretrievably after prolonged separation

Kolkata: The Calcutta High Court upheld a decree of divorce granted by a family court in favour of a man, holding that stray incidents of living together as husband and wife during separation do not amount to condonation of cruelty. Noting that although the couple lived together for about five years, they separated and parted ways for 11 years afterwards, a division bench said that a court-referred mediation between the parties also failed.

“We come to the conclusion that the appellant-wife is guilty of mental cruelty to the respondent-husband, thus furnishing a valid ground for divorce,” the division bench comprising Justices Sabyasachi Bhattacharyya and Supratim Bhattacharya held in a recent judgment. The wife appealed before the high court challenging a divorce decree granted by the family court in December, 2021 in favour of the husband.

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Noting that the wife cited the husband’s admission that even after separation, they had lived together as spouses on certain stray occasions, the court observed, “Stray incidents of living together as husband and wife do not amount to condonation.” The bench said that these stray incidents of living together cannot be elevated to the level of condonation of the cruelty of the wife by the husband.

Further noting that the husband has a widowed mother, the bench observed that it is nobody’s business that the mother has her own income and is not financially dependent on her son. The court observed that society has progressed substantially beyond the patriarchal and conservative mindset that it is the noble duty of the wife to serve the husband and his family and that a wife cannot insist upon an exclusive life with her husband, particularly in the context of the modern-day unitary families.

“However, such liberal approach cannot be taken to such an extreme that it itself becomes a conservative dogma,” the bench said. The court also noted that the appellant-wife alleged dowry demands by the husband and his family without disclosing any specifics. She also alleged forcible abortion at the behest of the husband, “which stands completely unproved and/or without any basis in the pleadings,” the bench observed.

“We hereby come to the conclusion that the learned Trial Judge was justified in holding that the marriage between the parties has broken down irretrievably and, coupled with the cruelty otherwise meted out by the appellant-wife, furnished a ground for divorce,” the court said.