The Telegraph
Since 1st March, 1999
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Thou shalt not abstain nor refuse to have children

New Delhi, March 28: A unilateral decision by a husband or wife not to have a child is reason enough to grant a divorce, the Supreme Court has ruled.

If one of the spouses undergoes sterilisation without the partner’s consent, or refuses to have sex for a considerable period, it amounts to mental cruelty whatever the couple’s social status, the court said.

A three-judge bench allowed a divorce petition involving an IAS couple from Bengal, setting aside a Calcutta High Court order that said the wife, who had “such a high status in life’’, had the right to decide when to have a child.

The apex court observed that the high court had been obsessed with the fact of the couple being IAS officers.

“Even if the appellant (husband) had married an IAS officer, that does not mean that the normal human emotions and feelings would be entirely different,’’ the court said while laying down guidelines for divorce on grounds of mental cruelty.

Samar Ghosh had married Jaya Ghosh, a divorcee with a girl child, in 1984 but the couple had been living apart since August 1990. The trial court granted divorce after the husband alleged his wife did not sleep with him, refused to have a child and cooked only for herself. But the high court set the order aside.

On the wife cooking only for herself, the high court noted that such refusal could not amount to mental cruelty when a couple belonged to “high strata of society’’ and the wife had to go to office.

But the apex court said that even if the wife held a high post, she had to respect the “marital bond’’ and discharge her obligations if she had decided to get married.

“The question was not of cooking food, but (the) wife’s cooking food for herself and not for husband would be clear instance of causing annoyance which may lead to mental cruelty.”

On the high court having discarded the testimony of a servant because of “his low status in life’’, the apex court said: “Credibility does not depend upon his financial standing or social status only.”

The court listed some of the criteria for mental cruelty: departure from the normal standards of conjugal kindness causing injury to mental health, a sustained course of abusive and humiliating treatment, ill-conduct for a fairly lengthy period. But it warned that trivial irritations or quarrels cannot be grounds for divorce.

Samar had accused his wife of virtually turning him out of the flat allotted to her, forcing him to take shelter at a friend’s place. The trial court had noted she hadn’t looked after him during a prolonged illness in 1985.

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