After 22 years apart in an unconsummated marriage, Calcutta High Court grants divorce on cruelty grounds

The parties married under the Special Marriage Act, 1954, on April 12, 2004, and began living separately after approximately one month, apart from a brief period when a court order required them to stay together.

The appellant petitioned for divorce under Section 27(1)(b) and (d), alleging that the marriage had not been consummated.

The respondent denied his account but pleaded that the appellant had never cohabited with her; in cross-examination, she admitted there had been no cohabitation since the marriage.

The trial court dismissed the petition, and the appellant appealed.

1. Whether the parties’ admitted non-cohabitation and non-consummation, in the circumstances of this case, established cruelty warranting divorce under the Special Marriage Act, 1954.

2. Whether the appellant was entitled to permanent alimony and, if so, in what amount and on what payment terms.

Section 27(1)(b) and (d) of the Special Marriage Act, 1954, were invoked as the statutory grounds for divorce; the Court determined the appeal on cruelty arising from denial of conjugal relations and non-consummation.

Section 34 of the Act requires the Court to make efforts to bring about reconciliation and prevent marital breakdown; the Court noted that mediation and its own settlement efforts had failed.

In Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, the Supreme Court identified illustrative circumstances that may constitute mental cruelty, including a unilateral refusal to have intercourse for a considerable period without physical incapacity or valid reason; it also noted that long separation may indicate that the marital bond is beyond repair.

The Court followed Rakesh Raman v. Kavita, (2023) 17 SCC 433, on long separation as cruelty, while assessing whether the facts here met the cruelty standard.

The Court found that the respondent’s written statement and cross-examination established that the parties had not cohabited and that the marriage was unconsummated.

Although the parties gave conflicting accounts of which spouse had refused cohabitation, the record disclosed no valid reason or incapacity preventing consummation, and the parties had voluntarily withdrawn from each other’s society.

Given their prolonged separation, the absence of children, and the failure of reconciliation efforts, the Court held that the denial of conjugal relations and non-consummation amounted to cruelty in the circumstances.

It fixed permanent alimony at Rs. 10 lakhs, taking account of the appellant’s assets and the respondent’s gainful employment.

It awarded the respondent permanent alimony of Rs. 10 lakhs, payable in four monthly instalments commencing November 15, 2026; in the event of default, the respondent may execute the award.

The appeal was disposed of.