The High Court has held that denial of conjugal relationship does not amount to “exceptional hardship” or “exceptional depravity” and, therefore, cannot be a ground for dissolution of marriage by mutual consent before the mandated cooling-off period of one year.

The Court held that though denial of sex is a ground for divorce as it amounts to cruelty but the exception of “exceptional hardship” or “exceptional depravity” contained in proviso to Section 14 of the Hindu Marriage Act (HMA) would be attracted only in extenuating circumstances.

“Once the Parliament, in its wisdom, has legislated that denial of cohabitation/conjugal relationship over a period of one year, or more, would tantamount to cruelty, it cannot be said that denial of sex simpliciter within the period of one year, would be a case of exceptional hardship,” the Court said.

While Section 13B of the HMA provides for dissolution of marriage by mutual consent, Section 14 says that divorce cannot be granted before the period of one year. However, there is an exception in this provision which says that divorce can be granted before the mandatory period of one year if there is a case of “exceptional hardship” or of “exceptional depravity”.

The Court was dealing with an appeal challenging the order and judgment of the family court in Rohini dismissing the divorce petition filed under Section 13B of the HMA for dissolution of marriage by mutual consent.

The marriage was stated to have been solemnised on April 4, 2021. However, differences cropped up between the parties soon afterwards and from April 14, 2021 they started living separately. On July 29, 2021 the wife left her matrimonial home and started living with her parents.

An MOU was executed between the parties on September 16, 2021 for settling their dispute and undertaking to co-operate with each other to dissolve their marriage by mutual consent. Thereafter a petition was filed by the parties under Section 13B(1) of the HMA along with an application under the proviso to Section 14 of the Act.

It was argued that there was denial of sex from both sides which led to a situation of “exceptional hardship”/ “exceptional depravity”.

The family court, however, refused to grant the relief stating that the exception carved out in Section 14 was not made out and the parties were unable to prove the case. Their petition was, therefore, dismissed as it was filed before the expiry of one year period.

The High Court said that the requirement of minimum one year period of separation before filing a divorce petition is backed by a sound objective and tinkering with it in an ordinary situation would be diluting the intent of the parliament and would amount to tinkering with the entire fabric with which Section 13B has been woven.

The Court said that the legislature has enacted proviso to Section 14 as a measure to be adopted in exceptional circumstances. Therefore, unless a party is able to make out a case falling into one of the two exceptions, the general rule shall prevail that the parties must wait for the cooling off period.

The Court also examined the meaning of the word ‘depravity’ as contained in Section 14 and said that it means wickedness or immoral behaviour of such a nature which cannot be expected by any individual in any reasonable situation. Such behaviour is marked by perversity and lack of moral decency but depravity cannot be taken to mean deprivation i.e. of being deprived, the judges have held.

“Mere denial of sex by one, or both the parties to the other, cannot be described as an act of exceptional depravity. Such conduct cannot be described as wicked or immoral behavior, or as perverse behavior lacking in moral decency, more so when temperamental differences lie at both ends. No doubt, it may tantamount to a matrimonial misconduct, but that is not what we are examining presently,” the Court explained.

Analysing the meaning of the word ‘hardship’, it said that Section 14 qualifies the word ‘hardship’ with ‘exceptional’. Though denial of sex by one spouse to the other, or by both of them to each other may certainly constitute ‘hardship’, but it cannot be said to be ‘exceptional hardship’.

“The intent behind the framing of Section 13, 13B and Section 14 of the Hindu Marriage Act was to protect both – the individuals, as also the marriage. What the legislature has sought to address by way of divorce on the ground of cruelty, cannot be categorized as exceptional hardship or depravity so as to by-pass the well-established procedure,” the judgment said.

In view of these observations, the Court rejected the appeal and upheld the order of the family court. It said that parties can approach the appropriate court after expiry of the one year of separation.