Additional District Judge (ADJ) Atul Kumar Garg observed that performing regular sex amounted to “condoning” all the acts against which the husband has moved the court and hence, created a doubt on his intention as to seeking the decree of divorce.

“Continuous cohabitation with the wife shall amount to condonation of the act of cruelty complained of and condonation in matrimonial cases means complete forgiveness of the act,” said ADJ Garg in a recent decision.

The court noted that a man could not go on maintaining the normal sexual relations with his wife on the one hand and looking to get separated from her on the other by alleging that she had been subjecting him to cruelty by various acts.

Referring to the relevant provisions of the Hindu Marriage Act, the court said that such a petition would become futile as the law clearly spelt out that where the ground of the petition was cruelty, there should not be amnesty of any kind by the aggrieved party.

A mere statement that the acts of cruelty had not been excused would not suffice the requirement under the law as it had to be an overt act of complete restrain from physical relations, observed the court.     

On the question of the couple staying together in the same house while contesting the divorce case, the court said that there was no presumption of any kind even in such a situation and all that the aggrieved party needed to prove was that he/she had not forgiven the alleged wrongful acts.

“No doubt the persons residing under the same roof can seek divorce but it should be confined to the act of cruelty and absence of cohabitation,” noted ADJ Garg.

The court’s observations came while deciding the divorce petition of one Jasbir Singh, who had claimed that his wife had treated him with cruelty by refusing to do the household chores and frequent misbehaviour.

Singh, who had got married with the respondent (name withheld) in November 2000, had sought divorce from her by a petition in 2003 while the wife termed him as a “hypocrite” and claimed that he had in fact continued to cohabitate even during the pendency of the suit. After hearing both the parties, the court observed that Singh, who worked with the Indian Railways, had previously tried to get an ex-parte divorce decree by playing fraud upon the wife but his attempt was quashed and he was asked to contest the suit afresh.

However, Singh had himself admitted having continuous physical relations with his wife, a fact that certainly amounted to condoning the acts of cruelty, if any, noted the court.