Case at a Glance
A couple married under the Special Marriage Act, 1954 in April 2004 lived together for only about a month, and the marriage was admittedly never consummated. The husband’s divorce suit, filed in 2016, was dismissed by the Barasat trial court. In appeal, a Division Bench of the Calcutta High Court held that non-consummation without any valid reason, coupled with long continuous separation, amounted to mental cruelty under the illustrations in Samar Ghosh v. Jaya Ghosh, (2007) 03 SC CK 0016. It granted a decree of divorce on the ground of cruelty and fixed permanent alimony of ₹10 lakh payable in four monthly instalments.
The parties married on 12 April 2004 under the Special Marriage Act, 1954, and later also went through Hindu rituals. According to the judgment, the wife left the matrimonial home about a month after the wedding. At one stage, under an order of the High Court, the parties were required to live together, but they did not cohabit. The husband filed a matrimonial suit (Mat Suit No. 207 of 2016) before the 1st Court at Barasat, North 24 Parganas, on 29 July 2016, alleging among other things that the wife had refused to consummate the marriage.
The trial court dismissed the suit, which had been brought under Section 27(1)(b) read with Section 27(1)(d) of the Special Marriage Act, by judgment dated 6 May 2025. The husband appealed. Before the High Court his counsel conceded that the desertion ground was not made out and pressed cruelty. The wife denied the allegation of refusal, said the husband had never cohabited with her and did not want a child, and argued that the plaint lacked particulars of cruelty as required by Order VI Rule 4 CPC. Importantly, in cross-examination she admitted that there had been no cohabitation since the marriage.
The Key Question Before the Court
Can a marriage that was never consummated, followed by more than two decades of separation, entitle a spouse to divorce on the ground of mental cruelty even where desertion is not proved?
Non-Consummation, Long Separation and Samar Ghosh
Justice Debangsu Basak, writing for the Bench, recorded that the “admitted basic minimum position between the parties is that no cohabitation took place” and that “Consummation of marriage, therefore, did not take place.” No incapacity or other reason was shown; the court found that “There is no valid reason for the marriage not being consummated.” Before deciding, the Bench noted its duty under Section 34 of the Act to attempt reconciliation; mediation had failed at least twice and the court’s own efforts also did not succeed.
The court then applied the illustrative instances of mental cruelty in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 — including unilateral refusal of intercourse without valid reason, refusal to have children, and long continuous separation — and the later application of those principles in Rakesh Raman v. Kavita, (2023) 04 SC CK 0103, (2023) 17 SCC 433. The authorities cited by the wife, including Ravi Kumar v. Julmidevi, (2010) 02 SC CK 0047, (2010) 4 SCC 476, were distinguished as cases where particulars of cruelty were missing; here the cruelty arose from the admitted denial of conjugal relationship and non-consummation. On alimony, the court referred to Smt. Sathi Roy nee Biswas v. Sri Sajal Roy (FAT 407 of 2015), weighed the husband’s assets against the wife’s employment, and fixed ₹10 lakh.
What the Court Actually Held
- Non-consummation of the marriage was established from the wife’s own admission that there was no cohabitation since the marriage, and no valid reason for it was shown.
- Unjustified non-consummation and long continuous separation fall within the instances of mental cruelty recognised in Samar Ghosh v. Jaya Ghosh; the husband was held entitled to a decree of divorce on the ground of cruelty.
- The objection that the plaint lacked particulars of cruelty did not defeat the claim, since the relevant facts stood admitted.
- Permanent alimony of ₹10 lakh was fixed, payable in four monthly instalments from 15 November 2026, with liberty to the wife to execute any unpaid instalment.
Why This Judgment Matters
- It confirms that a marriage which exists only on paper, with no consummation and decades of separation, can be dissolved on the ground of mental cruelty.
- It shows that admissions in cross-examination can supply the facts that the pleadings are said to lack.
- It illustrates how courts balance a divorce decree with a fair lump-sum alimony for the other spouse.
What Should Advocates Take Away From the Judgment?
For Spouses
- A long-dead marriage may be dissolved for cruelty even where desertion cannot be proved.
- The court must try reconciliation first; mediation records matter.
- Divorce can come with a lump-sum alimony obligation fixed by reference to assets and earnings.
For Counsel
- Rely on the Samar Ghosh illustrations where non-consummation and long separation are admitted.
- Use cross-examination to secure admissions on cohabitation.
- Place evidence of assets and employment on record for the alimony assessment.
Key Takeaways
- Unexplained non-consummation can be mental cruelty.
- Long continuous separation strengthens a cruelty claim.
- Admitted facts can overcome a want-of-particulars objection.
- ₹10 lakh permanent alimony was fixed in four instalments.
Frequently Asked Questions
Was divorce granted on the ground of desertion?
No. The husband’s counsel conceded that desertion was not made out. Divorce was granted on the ground of cruelty.
Under which law were the parties married?
The marriage was solemnised under the Special Marriage Act, 1954, and the suit was brought under Section 27 of that Act.
How is the alimony to be paid?
₹10 lakh in four monthly instalments, the first on 15 November 2026 and the rest on the 15th of each following month; unpaid instalments can be executed.
Conclusion
The Calcutta High Court treated a marriage that never began in any real sense, and had stayed broken for over two decades, as one marked by mental cruelty, and dissolved it while securing a lump-sum payment for the wife.
Practical takeaway: Where non-consummation and long separation are admitted on record, a cruelty-based divorce can succeed even if desertion fails; prepare the alimony evidence alongside.
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