Infertility not a ground for divorce; amounts to 'mental cruelty': Calcutta HC dismisses husband's plea to quash case

The Calcutta High Court recently dismissed a plea filed by a husband to quash the criminal case lodged by his wife leveling allegations of cruelty against him.

Court rejected the argument put forth by the husband that he had only sought mutual divorce from his wife for she had developed several medical conditions and disorders, which ushered in primary infertility with premature menopause, and in retaliation to the same, the wife had filed the present criminal case.

The bench of Justice Shampa Dutt (Paul) observed, "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...If the petitioner/husband had the problem, would he not expect support from his wife to make a better life together".

Referring to the definition of the word ‘cruelty’ as provided under Section 498A of the Indian Penal Code, the judge said that in the present case, the term took a different meaning altogether and the “mental cruelty” inflicted upon the wife was of such a nature that it caused grave danger to her life and health.

Therefore, while opining that the material on the record made out a prima facie case of cognizable offence against the husband, the judge refused to entertain his plea for quashing the case proceedings.

Against the husband and his family member, on July 12, 2017, the wife lodged a Written Complaint basis which a case got registered under Sections 498A/406/323/34 of the Indian Penal Code, 1860 read with Sections 3/4 of the Dowry Prohibition Act, 1961.

Following the investigation into the matter, the Investigating Agency submitted a chargesheet under Sections 498A/406/323/34 of the IPC and the trial court took cognizance.

Challenging the same, the husband moved the high court. His counsel argued that the wife had maliciously filed the case as it was registered just a month after when the husband sent a Legal Notice to her for the initiation of proceedings for mutual divorce.

He further submitted that though the wife had alleged that she had been subjected to torture since the date of marriage, she filed the criminal case after almost 10 years that too just after a month of receiving husband's legal notice for mutual divorce.

However, the court opined that in light of the wife's situation, the husband's act of seeking divorce on grounds of her medical conditions was also an act of cruelty. "Thus the offence of cruelty in this case is a continuing offence," the court held.

Therefore, stressing that in the present case there was substance in the allegations and material existed to prima facie make out the complicity of the husband in a cognizable offence, court dismissed his plea.

Case Title: Sri Uttam Kumar Bose Vs The State of West Bengal & Anr.