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Allahabad High Court says not allowing cohabitation by spouse amounts to mental cruelty

03:03 PM May 25, 2023 IST | India Legal
allahabad high court says not allowing cohabitation by spouse amounts to mental cruelty

The Allahabad High Court while quashing the order passed by the Principal Judge, Family Court, Varanasi, observed that undoubtedly, not allowing a spouse for a long time, to have sexual intercourse by his or her partner, without sufficient reason, itself amounts to mental cruelty to such spouse.

The Division Bench of Justice Suneet Kumar Justice Rajendra Kumar-IV passed this order while hearing an appeal filed by Ravindra Pratap Yadav.

The family court appeal challenges the impugned dismissal order dated 28.11.2005, passed by Principal Judge, Family Court, Varanasi, on a divorce petition filed by the appellant-husband in Marriage Petition under Section 13 Hindu Marriage Act, 1955.


The facts of the appellant’s case are that the plaintiff-appellant and defendant-respondent were married on 05.05.1979, according to Hindu rites and rituals.

According to the appellant, Gauna was performed after seven years of marriage. The defendant-respondent came to his house and started living as wife. For some time, the behavior and conduct of the defendant-respondent was good but suddenly she changed her gait and refused to live with him as wife.


Apathy and her inhuman conduct towards appellant became apparent in a short time. The plaintiff-appellant tried a lot to convince her but she did not establish a relationship with him. The plaintiff-appellant felt that his marriage with the respondent was merely an eyewash because immediately after the “Gauna” serious matrimonial problems developed between them which kept growing.


According to the appellant, though they lived under the same roof for some time but respondent voluntarily began to live separately after some time at her Gauna, at her parents house. The plaintiff-appellant was serving in the police department, thus, he had gone to the place of his posting.


Appellant asserted that after six months of his marriage, he came back to his house taking leave and thought that there might have been some change in the behavior of the defendant-respondent and that she would discharge her obligation of marital life and respect the marital bond.

The plaintiff-appellant went to take his wife, but she refused to accompany him. She asked him to take divorce on consent, whereupon, plaintiff-appellant told her parents regarding the proposal of defendant respondent to which they agreed.


On 04.07.1994, there was a Panchayat in the village and according to community rituals, parties arrived at an agreement of divorce.

According to the plaintiff-appellant, they have mutually divorced and he had paid a permanent alimony at Rs 22,000/- to the defendant-respondent before the respected persons to which the defendant-respondent accepted.

According to plaintiff-appellant, defendant-respondent no 1 had contracted a second marriage with defendant-respondent no 2 and two sons were born from their wedlock.

According to the plaintiff appellant, he sought decree of divorce on the basis of mental cruelty, long desertion and divorce agreement dated 04.07.1994.

After examining the entire evidence led before the court below, it did not find the case of plaintiff appellant proved and the case was ordered to be dismissed ex-parte with cost.

Feeling aggrieved with the impugned order, the present appeal has been preferred.

The Court noted, The plaintiff-appellant sought divorce mainly on the ground that divorce has taken place in the community Panchayat, mental cruelty committed by defendant-respondent denying to co-habit and discharge the obligation of marital life and separate living of the parties for considerable time, and continued to live separately ever-since.The evidence led by plaintiff-appellant is uncontroverted so far. There is nothing on record to disbelieve the plaintiff-appellant’s case as well his uncontroverted evidence.

Dismissing the case of plaintiff-appellant, the court below observed that papers filed by the plaintiff appellant are photocopies and no original papers have been filed by the plaintiff-appellant, the photocopy of papers are not admissible in evidence. The court below also observed in the impugned judgment that there is no evidence on the file showing that defendant respondent Asha Devi has contracted second marriage.

It is evident from the record that since long, the parties to the marriage have been living separately, according to plaintiff-appellant, defendant-respondent had no respect for marital bond, denied to discharge obligation of marital liability. There has been a complete breakdown of their marriage.

The court below has adopted a hyper technical approach and passed the order of dismissal of the plaintiff-appellant’s case. There is nothing on record to contradict the evidence of plaintiff-appellant.

“Undoubtedly, not allowing a spouse for a long time to have sexual intercourse by his or her partner, without sufficient reason, itself amounts to mental cruelty to such spouse.

Since there is no acceptable view in which a spouse can be compelled to resume life with the consort, nothing is given by trying to keep the parties tied forever to a marriage than that has ceased to in fact.

From the perusal of the plaintiff and other evidence available on record, we are unable to persuade ourselves to accept the view taken by the court below”, the Court observed while allowing the appeal.

‘Impugned order of the Family Court is quashed and set aside. The marriage petition filed by the plaintiff-appellant stands allowing granting decree of divorce’, the Court ordered.

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