The Calcutta High Court recently observed that infertility was not a ground for divorce and that abandoning one’s wife in a situation where the wife was undergoing severe mental and physical trauma amounted to continuing acts of cruelty.

The Bench of Justice Shampa Dutt Paul observed that “The reason of infertility is not a ground for divorce. There are several options to become parents. A spouse has to be understanding in these circumstances as it is the other (only) who can help one to regain her/his mental, physical and emotional strength. To be able to face the world, the society in general, bravely together.”

In this case, the couple was married for almost 10 years and the petition for divorce by mutual consent was moved by the husband. A month after filing the said petition, the wife filed a criminal complaint against the husband under Sections 498A, 406, 323, and 34 of the Indian Penal Code, 1860. Seeking to quash the Criminal charges, the petitioner preferred a revision petition before the High Court.

Advocate Bibaswan Bhattacharrya appeared for the petitioner-husband and Advocate Sudip Ghosh appeared for the State and none appeared for opposite party no.2- wife.

The Counsel for the petitioner-husband contended that the wife had filed the criminal complaint with mala fide intentions to harass and trouble the petitioner, which did not go well with the Court.

The Court noted that the wife’s medical history of primary infertility, premature menopause, and suggestion of the doctor in Bengaluru to follow up with a Neurologist and Psychiatrist showed that the wife was suffering from mental and physical distress and the petitioner's act of filing for mutual divorce added to her sufferings which further amounted to mental cruelty and it affected her life and health.

“During such times it is the duty of a spouse to be the strength which the other has lost. A spouse has to be understanding in these Circumstances as it is the other (only) who can help one to regain her/his mental, physical and emotional strength.” observed the Court.

The Court observed that a prima facie case of cognizable offence was made out against the petitioner and hence, the inherent power of the court should not be exercised to stifle a legitimate prosecution.

Accordingly, the Court refused to quash the proceedings and dismissed the revision petition.

Cause Title- Sri Uttam Kumar Bose v. The State of West Bengal & Ors.

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Calcutta High CourtJustice Shampa Dutt (Paul)

Sanjoli N Srivastava