Unilateral refusal to consummate marriage can amount to mental cruelty under Section 13 (i-a) of the Hindu Marriage Act, justifying divorce and the grant of permanent alimony.

JUDGMENT :

B.P. Routray, J.

1. Heard Mr. S.K. Sarangi, learned Senior Advocate for the Appellant and Mr. N.C. Rout, learned Advocate for the Respondent.

2. The Husband-Appellant has challenged the impugned judgment dated 22.10.2022 of learned Judge, Family Court, Keonjhar passed in C.P. No.82/803 of 2021-20 refusing his prayer for dissolution of marriage under Section 13 (i-a) of the Hindu Marriage Act prayed on the ground of cruelty and non-consummation of marriage.

3. Appellant’s case is that, the marriage took place on 01.05.2019 and both the husband and wife though stated together till 23.07.2019, i.e. around 83 days, but the marriage could not be consummated due to withdrawal of the Wife-Respondent. It is the specific allegation of Husband against the Wife that, even after several attempts made by him, the Wife withdrew from having physical relationship without any reason.

4. Learned Judge, Family Court, Keonjhar in the impugned judgment without giving any specific answer to the same has otherwise held that, the Husband subjected the Wife to cruelty by not inviting her to the matrimonial house after 23.07.2019 and he has illicit relationship with other girls.

5. Upon hearing both the parties and coming to the specific point regarding non-consummation of marriage, the Hon’ble Supreme Court in the case of Samar Ghosh vs. Jaya Ghosh , (2007) 4 SCC 511 held on illustration that, unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

6. In Anubhav Mohanty vs. Varsha Priyadarshini , 2024 (I) ILR- CUT-453, this Court has observed as follows:-

“12. In view of our finding in preceding paragraphs 10 and 11 and omission of respondent-wife to bring on record physical incapacity, as she had refused or said it was not required for her to visit any doctor or valid reason for withdrawing herself, leads us to conclude that it was unilateral decision on her part to deny her husband. Mrs. Jena submits, there was no pleading in terms of illustration-(xii) in Samar Ghosh (supra) and as such the declaration of law by the illustration cannot come to aid of petitioner. We have already stated the facts pleaded and evidence laid. Law need not be pleaded.

13. In view of the aforesaid we are unable to accept the finding of the Court below on consummation of the marriage or physical intimacy. The Court has interpreted appellant’s statement of the relation being not satisfying or unsatisfactory to mean that there must have been some contact, which was not to the satisfaction of appellant. This interpretation was used to deal with or rather overlook respondent’s clear admissions regarding her awareness of Gynecologist consulted by her husband, particularly regarding non-consummation of the marriage and no physical contact. The finding cannot also otherwise be sustained simply because if respondent-wife is to be believed on her pleading, of continued physical relations without her consent as in there having been no situation of ‘allowing’ it, dissatisfaction would have to be taken as her grievance, for which she had refused to consult the doctors.”

7. As stated above, in the instant case since the Husband has taken the ground of non-consummation of marriage as cruelty to dissolve the marriage, it is important on the part of the Court to examine the pleading and evidences brought on record on that score.

Coming to the pleadings, it is stated, inter alia, at paragraph 12 & 13 that, in spite of several attempts by the Husband, the Wife did not cooperate for consummation of the marriage. In such a