Calcutta HC: stray sex after separation does not condone cruelty

The Calcutta High Court has ruled that stray instances of sexual intercourse between separated spouses do not, by themselves, establish that earlier matrimonial cruelty was condoned. A division bench of Justices Sabyasachi Bhattacharyya and Supratim Bhattacharya upheld a family court's December 2021 divorce decree granted to a husband on grounds of mental cruelty.

The couple married in June 2009 under the Special Marriage Act and had a child in 2013. They separated in 2014 after disputes arose. The husband alleged his wife made repeated false accusations against him and his family, filed criminal complaints, and insisted he live apart from his dependent widowed mother. The wife argued she returned to the matrimonial home several times after separation, living with her husband for 7-8 days each time, claiming this showed forgiveness. The court rejected this, stating: 'Stray incidents of living together as husband and wife do not amount to condonation.'

The bench found the wife had made serious but unsubstantiated allegations including dowry demands, forcible abortion, and that her mother-in-law had molested their minor son, with no document or witness supporting the latter claim. The court clarified the wife could independently seek permanent alimony. The bench also noted the marriage had broken down irretrievably after 11 years of separation.