Calcutta High Court

Calcutta High Court: While deciding a revision petition filed for quashing of FIR and criminal proceeding, Shampa Dutt (Paul)*, J. held that asking for mutual divorce when the wife is battling mental and physical health issues due to infertility amounts to cruelty and infertility cannot be a ground for divorce.

In the instant matter, the marriage was solemnized between the petitioner(husband) and the opposite party no. 2(wife) as per Hindu rites and customs. The wife developed diverse kinds of medical conditions and disorders which led to primary infertility with premature menopause. Further, the passing of the wife's mother added to the additional stress and worsened the wife's condition. On 19-06-2017, the husband issued a notice requesting a mutual divorce. The wife filed the complaint against the husband and his family members, which led to institution of criminal proceedings in G.R. No. 1934 of 2017 under Ss. 498-A/406/323/34 of the Penal Code, 1860 read with Ss. 3 and 4 of the Dowry Prohibition Act, 1961 on 12-07-2017. The husband preferred the present revision petition for quashing of the charge sheet and criminal proceedings pending before the Judicial Magistrate Court.

The Court observed that it is clear for the medical records that the wife suffered trauma due to primary infertility with premature menopause, especially for a woman who is yet to become a mother and losing her mother added further stress.

The Court observed that if the circumstances were reversed, the husband would have expected his wife's support to make a better life together. The Court stated that during such times it is the duty of a spouse to be the strength which the other has lost.

The Court observed that there are several options available if a couple wants to become parents, therefore infertility cannot be a ground for divorce.

“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.”

The Court observed that the act of husband, asking for mutual divorce when the wife is battling mental and physical health issues due to infertility is an act of cruelty. According to the Court the offence of cruelty in this case is a continuing offence.

“It was extremely insensitive of the petitioner in this case to ask the opposite party in such traumatic situation for a divorce by mutual consent, which amounts to mental cruelty which effected her life and health.”

Relying on Neeharika Infrastructure (P) Ltd. v. State of Maharashtra, 2021 SCC OnLine SC 315, where the Supreme Court laid guidelines on power to quash FIR under S. 482 CrPC, the Court observed that in the light of facts and circumstances of the case and evidence placed on records, a clear facie case of a cognizable offence can be made out against the husband.

Dismissing the petition, the Court held that sufficient evidence is put on record making a clear prima facie case of a cognizable offence, thus making a fit case where the inherent powers of the Court should not be exercised.

[Uttam Kumar Bose v. State of W.B., 2023 SCC OnLine Cal 103, order dated 17-01-2023]

*Judgment by Justice Shampa Dutt (Paul)

Advocates who appeared in this case :

Mr. Bibaswan Bhattacharrya, Counsel for the Petitioner

Mr. Sudip Ghosh and Mr. Bitasok Banerjee, Counsel for the Respondent/State

*Ritu Singh, Editorial Assistant has put this report together

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