Refusal to have intercourse with husband for long time without valid reason amounts to cruelty: Orissa High Court

The Orissa High Court recently granted divorce to a man citing non-consummation of marriage and denial of physical intimacy by his wife as grounds for cruelty..A Bench of Justices Arindam Sinha and Sibo Sankar Mishra observed, "We understand that refusal to have intercourse for considerable period without any physical incapacity or valid reason, on unilateral decision, may amount to mental cruelty. Therefore, we must satisfy ourselves one way or other on the issue of whether respondent-wife took unilateral decision to refuse intercourse for considerable period without suffering any physical incapacity nor having a valid reason.".The appellant-husband had approached the High Court against a family court judgment dismissing his plea for dissolution of marriage.He alleged that non-consummation of the marriage and denial of physical intimacy amounted to mental cruelty and would constitute a ground for divorce..The counsel for the respondent-wife argued that the appellant did not apply for annulment of the marriage on the ground of non-consummation within the prescribed period under Section 12 in Hindu Marriage Act, 1955.She further argued that the written statement showed that the marriage was consummated and that the appellant always had his way with her client without caring for her feelings..After reviewing the exhibits presented before the lower court including WhatsApp messages exchanged between the two, the Court observed that it was evident that the appellant was consistently seeking intimacy.The cross-examination of the wife revealed that she had admitted that it was not necessary for her to undergo fertility tests because she never allowed her husband to consummate the marriage or have sexual intimacy with her..The Court rejected arguments by counsel for the wife that there was a typo in the cross-examination deposition, and what the wife intended to convey was that she never stopped her husband from physical intimacy."The answers given to the questions reproduced above leave no doubt in our mind that there was no physical intimacy between the parties. Appellant cannot be faulted for waiting in hope of consummation, causing expiry of the prescribed period for annulment...".It concluded that there was a unilateral decision on the wife's part to deny her husband physical intimacy. On this ground, the Court reversed the family court verdict and granted the husband a decree of divorce..Advocates Lalitendu Mishra, Chandana Mishra, S Acharya, SK Singh, J Sahoo and S Patnaik represented the appellant-husband.Advocates Sujata Jena, B Sahu and S Panda represented the respondent-wife..[Read Order]