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The Calcutta High Court has held that stray instances of spouses resuming physical relations after separation do not, by themselves, amount to condonation of matrimonial cruelty, particularly where the subsequent conduct of the offending spouse shows that the cruelty was repeated.

A Division Bench of Justice Sabyasachi Bhattacharyya and Justice Supratim Bhattacharya made the observation while upholding a divorce decree granted to a husband on the ground of mental cruelty.

The Court noted that although the husband had admitted that the parties had, on several occasions after separation, lived together as husband and wife for about 7-8 days, such intermittent physical relations could not be elevated to the level of condonation of cruelty.

Referring to the Supreme Court's decision in Dr. N.G. Dastane v. Mrs. S. Dastane, the Bench explained that condonation of matrimonial cruelty is conditional and requires forgiveness as well as restoration of the offending spouse to the previous matrimonial position.

The Court observed: "Stray incidents of living together as husband and wife do not amount to condonation. In any event, as further held therein, condonation on the part of one spouse of the cruelty perpetrated by the other is always conditional upon such, or other, cruel acts not being repeated."

The Court further noted that the parties had lived together for around five years after their marriage in 2009, but had remained separated since December 2014. Their subsequent instances of cohabitation therefore did not establish that the husband had forgiven and restored the wife to the matrimonial relationship.

Physical Relations After Separation Not Conclusive Of Reconciliation

The wife had relied upon the husband's admission that, even after she left the matrimonial home, she had returned several times and they had lived together as spouses for stretches of 7-8 days.

Her argument was that such conduct demonstrated her willingness to resume matrimonial life and also amounted to condonation of the alleged acts of cruelty. The High Court rejected this contention.

The Bench drew a distinction between a sustained resumption of normal matrimonial life and isolated instances of physical relations or cohabitation after separation. Referring to Dastane, it noted that while normal sexual relations during continued matrimonial cohabitation may, in appropriate circumstances, indicate forgiveness and restoration, stray acts after separation are capable of different explanations and cannot automatically be treated as condonation.

The Court ultimately held that the intermittent cohabitation did not erase the subsequent acts of cruelty and concluded that the wife was guilty of mental cruelty.

The Bench also relied on the prolonged separation of more than 11 years and the failure of court-referred mediation in concluding that the matrimonial relationship had broken down irretrievably. It held that, in the circumstances, keeping the marriage alive would itself perpetuate cruelty to the parties.

The Court accordingly dismissed the wife's appeal and affirmed the divorce decree passed by the Family Court at Calcutta.

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