Sex between spouses after separation does not condone matrimonial cruelty: Calcutta High Court

Stray instances of sexual intercourse between spouses after their separation do not, by themselves, establish that earlier acts of matrimonial cruelty were condoned, the Calcutta High Court recently held.

A Division Bench of Justices Sabyasachi Bhattacharyya and Supratim Bhattacharya made the observation while upholding a decree of divorce granted to a husband on the ground of mental cruelty. The Court said,

“Stray instances of sexual intercourse after separation cannot tantamount to condonation of cruelty per se.”

The couple married under the Special Marriage Act on June 18, 2009 and had a child in April 2013. They separated in 2014 after matrimonial disputes arose. The husband subsequently approached a family court seeking divorce on the ground of mental cruelty.

The husband alleged that the wife repeatedly made false accusations against him and his family, filed criminal complaints and insisted that he live separately from his dependent widowed mother. In December 2021, the family court granted him a divorce, prompting the wife to appeal before the Calcutta High Court.

The wife had argued that she returned to the matrimonial home several times after the couple separated and lived with her husband as a spouse for 7-8 days on each occasion. According to her, this showed that the husband had forgiven the alleged cruelty.

The Court rejected the argument. It held,

“Stray incidents of living together as husband and wife do not amount to condonation.”

The Bench explained that condonation was conditional on the offending spouse not committing further matrimonial offences.

“Condonation is not absolute and is impliedly conditional upon non-repetition of further acts of cruelty, either similar to the earlier acts of cruelty or otherwise, by the condoned spouse.”

The Court found that the wife had made several serious but unsubstantiated allegations against her husband and his family. These included allegations of dowry demands, misappropriation of her parental property, forcible abortion and improper behaviour by her mother-in-law towards the couple’s child.

The Bench said that grave, baseless allegations that demean a spouse or assassinate their character could themselves constitute mental cruelty.

It also considered the wife’s demand that her husband live separately from his dependent widowed mother. The Court clarified that society had moved beyond the patriarchal belief that a wife must serve her husband and his family.

“However, such liberal approach cannot be taken to such an extreme that it itself becomes a conservative dogma.”

The wife justified the demand for separate residence by accusing her mother-in-law of molesting the couple’s minor son. The Court found no document, witness or contemporaneous complaint supporting the allegation.

“Separate living for its own sake has its place but cannot be isolated from the family background of the spouses.”

The Court clarified that the wife could independently seek permanent alimony.

The wife was represented by Advocates Sanjay Mukherjee, Purnendu Das and Kinjal Kumar Barai.

The husband was represented by Advocates Shyamal Chakraborty, Rajib Ray, Suparna Deb and Sumit Roy.