Can a few instances of living together or having sex after separation wipe out earlier matrimonial cruelty? The Calcutta High Court has explained why such temporary reconciliation does not automatically amount to forgiveness, while upholding a divorce decree granted to the husband for mental cruelty.

KOLKATA: The Calcutta High Court has held that stray instances of sexual intercourse between spouses after separation do not automatically mean that earlier matrimonial cruelty has been forgiven or condoned.

A Division Bench of Justice Sabyasachi Bhattacharyya and Justice Supratim Bhattacharya made the observation while upholding a divorce decree granted in favour of a husband on the ground of mental cruelty.

The Court observed:

“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. A child was born to them in April 2013. Matrimonial disputes later arose and the parties separated in 2014.

The husband subsequently approached the Family Court seeking divorce on the ground of mental cruelty. He alleged that his wife had repeatedly made serious accusations against him and his family, initiated criminal proceedings and insisted that he should live separately from his dependent widowed mother.

In December 2021, the Family Court granted divorce to the husband. The wife challenged the decree before the Calcutta High Court.

During the appeal, the wife argued that even after separation, she had returned to the matrimonial home on several occasions and stayed with her husband as his spouse for around seven to eight days each time. She relied on these periods of cohabitation to argue that the husband had condoned the alleged cruelty.

The High Court did not accept this argument.

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

The Bench explained that condonation of matrimonial cruelty is not unconditional. Even where a spouse has forgiven past conduct and attempted reconciliation, that forgiveness remains subject to the other spouse not repeating matrimonial misconduct.

The Court said:

“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.”

While examining the matrimonial history, the Court considered several serious allegations made by the wife against her husband and his family. These included allegations relating to dowry demands, misappropriation of her parental property, forcible abortion and improper conduct by her mother-in-law towards the couple’s child.

The Court found that several of these serious allegations were not supported by evidence. It observed that grave and baseless accusations which demean a spouse or attack his character can themselves amount to mental cruelty. Such allegations can cause serious damage to a person’s dignity, reputation and mental peace even when they ultimately remain unproved.

The Bench also examined the wife’s insistence that the husband should live separately from his dependent widowed mother.

While dealing with this issue, the High Court made it clear that modern matrimonial law cannot be based on the old patriarchal expectation that a wife must necessarily serve her husband and his family.

At the same time, the Court cautioned:

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

The wife had sought to justify separate residence by alleging that her mother-in-law had molested the couple’s minor son. However, the High Court found no document, independent witness or contemporaneous complaint supporting this serious allegation.

The Court observed:

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

Accordingly, the High Court found no reason to interfere with the divorce decree granted to the husband and upheld the finding of mental cruelty.

The judgment also makes an important distinction between an attempt at reconciliation and legal condonation of cruelty. A spouse does not necessarily lose the right to rely upon earlier cruelty merely because the parties temporarily resumed cohabitation or had sexual relations after separation. Condonation remains conditional, particularly where further acts of cruelty subsequently occur.

The High Court also clarified that the wife remained free to independently seek permanent alimony in accordance with law.

LAWS AND SECTIONS EXPLAINED

CASE DETAILS

COUNSELS

For Appellant/Wife — Munmun Karmakar nee Ghosh

• Mr. Sanjay Mukherjee, Advocate
• Mr. Purnendu Das, Advocate
• Mr. Kinjal Kr. Barai, Advocate

For Respondent/Husband — Abhishek Karmakar

• Mr. Shyamal Chakraborty, Advocate
• Mr. Rajib Ray, Advocate
• Ms. Suparna Deb, Advocate
• Mr. Sumit Roy, Advocate

KEY TAKEAWAYS

• Stray sex or brief cohabitation after separation does not automatically erase earlier cruelty.
• False and unproved serious allegations against a husband and his family can themselves amount to mental cruelty.
• A wife cannot use temporary reconciliation as a permanent shield against subsequent acts of cruelty.
• Forcing a husband to abandon his dependent widowed mother can become relevant while assessing matrimonial cruelty.
• A man does not lose his right to divorce merely because he once tried to save the marriage.