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One of the fundamentals of marriage is sexual gratification, the Supreme Court has ruled. Refusal to intercourse for a considerable period without any physical incapacity or any other valid reason by either wife or husband may amount to mental cruelty and a ground for divorce.

A bench comprising Justice B N Agrawal, Justice P P Naolekar and Justice Dalveer Bhandari said, “The 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 in its ruling has said that the unilateral decision of either husband or wife after marriage not to have child from the marriage may also amount to cruelty and a good ground for divorce.

Taking note of the purpose of marriage which includes sexual gratification and begetting of child, the court said that the unilateral decision of either husband or wife to deprive such privileges could also be grounds for divorce. “If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reasons or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty” said the court. Such act may be a ground for divorce, said the court.

However, the court clarified that mere coldness or lack of affection cannot amount to cruelty but the frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes married life for other spouse absolutely intolerable may be so and a ground for divorce.

The court has enumerated other instances as well which may amount to cruelty and a ground for divorce. These include sustained unjustified conduct and behavior of one spouse actually affecting physical and mental health of other spouse, sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure etc.

However, trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on ground of mental cruelty, said the court.

Married life should be reviewed as a whole to decide the issue of divorce on ground of mental cruelty, said the court but refused to lay down any strait jacket formula for determining mental cruelty in matrimonial matters.

The verdict came in an appeal filed by Samar Ghosh who got married with Jaya Ghosh in 1984. At the time of their marriage she had already a girl child by her first marriage. After marriage, she unilaterally decided not to beget another child for 2 years. She told her second husband to try to keep himself aloof from her as far as possible. They admittedly began living separately from August 1990. Alleging mental cruelty, he moved the Alipur court in Kolkata seeking divorce which was granted.

Aggrieved by the Alipur court order passed in 1996, she moved the Calcutta high court which reversed the lower court divorce decree, against which Samar Ghosh moved the apex court, which quashing high court verdict said, “it is clearly illustrative of the fact that now the parties have no emotions, sentiments or feelings for each other at least since August 27, 1990”.

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