J. Venkatesan

Unilateral refusal to have child will cause mental cruelty

  • Sterilisation/tubectomy without spouse consent is mental cruelty
  • No straitjacket formula in matrimonial matters

    New Delhi: A unilateral decision by either the husband or wife not to have a child will amount to mental cruelty and constitute a ground for divorce, the Supreme Court has held.

    A Bench comprising Justices B.N. Agrawal, P.P. Naolekar and Dalveer Bhandari said, a "unilateral decision of refusal to have intercourse for a considerable period without there being any physical incapacity or valid reason may amount to mental cruelty."

    Appeal allowed

    The Bench, while laying down what would constitute mental cruelty, granted divorce to Samar Ghosh, an IAS officer of West Bengal, who alleged that his wife Jaya Ghosh, also an IAS officer, refused to bear him a child for no fault of his. It allowed his appeal against a Calcutta High Court order, which reversed a trial court's divorce decree.

    The couple got married in December 1984. According to the appellant, Jaya Ghosh was a divorcee and had a girl child from her first marriage. Since the girl stayed with her, she decided not to have a child by him, and since August 1990 the couple had been living separately.

    On a petition from Mr. Ghosh, the lower court granted divorce. On appeal by the wife, the High Court reversed the order.

    Writing the judgment, Justice Bhandari said if a man underwent sterilisation without medical reasons and without the consent or knowledge of his wife and similarly if a woman underwent tubectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act might lead to mental cruelty.

    No static concept

    The Bench said: "The concept of mental cruelty cannot remain static; it is bound to change with the passage of time, the impact of modern culture through the print and electronic media and value system, etc." What might be mental cruelty now might not be so with the passage of time and vice versa. "There can never be any straitjacket formula in matrimonial matters."

    State of mind

    Mental cruelty was a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of the other for a long time might constitute mental cruelty. So would a sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable the life of the spouse, and sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

    The Bench said: "The court, no doubt, should seriously make an endeavour to reconcile the parties. Yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of an unworkable marriage, which has long ceased to be effective, are bound to be a source of greater misery to the parties."