While refusing to allow a man’s appeal for dissolution of his marriage, the Bombay High Court recently observed that irretrievable breakdown of marriage can neither be a ground for divorce nor for refusal of granting conjugal rights.
The man filed an appeal in the High Court against a family court’s order dated October 16, 2006, where he demanded a decree of divorce on the ground that his wife never consummated the marriage. The wife, on the other hand, sought her marriage’s restitution, claiming the man was impotent and, therefore, could not consummate the marriage.
According to the man, his wife started behaving “whimsically” from the date of their marriage on October 27, 2003. The man told a division bench of Justices A S Oka and S C Gupte during his job stint in Nashik, his wife visited from Mumbai only during weekends and holidays. He therefore, alleged that she “never allowed the marriage to be consummated.”
The wife said that she was willing to undergo a potency test and suggested to her husband that they consult a medical expert. She said that it was her husband who avoided maintaining any physical intimacy with her. The husband’s family members, and particularly his father, repeatedly told her to leave matrimonial home, she further alleged.
The court, in its April 10 order, pointed out that the husband’s ground for seeking divorce was his wife’s refusal to consummate the marriage and under the relevant section of the Hindu Marriage Act, his claims were applicable only if the wife was impotent.
“We find that there is no allegation that the marriage could not be consummated due to the impotency of the respondent (wife),” observed the bench. The judges further observed that the wife had in fact offered to undergo a medical check-up.
“The evidence of respondent wife shows that she persistently made efforts to resume cohabitation but she was denied an opportunity to resume cohabitation. On the other hand, the appellant could not prove his allegations against the respondent,” the court said.
The husband’s lawyer argued that it was a total breakdown of marriage and the parties cannot come together. The court, however, ruled, “In law, as it stands today, irretrievable breakdown of marriage is neither a ground for grant of divorce or a ground to refuse a decree of restitution of conjugal rights. Once the ingredients of Section 9 of the said Act are satisfied, a decree of restitution of conjugal rights must follow.”