Occasional visits do not constitute a shared conjugal life, the Calcutta High Court (HC) recently stated while granting a divorce to a couple who had been living apart since 2015. The court emphasized that a marriage devoid of empathy cannot be sustained.

The division bench, consisting of Justices Sabyasachi Bhattacharyya and Supratim Bhattacharya, ruled that the irretrievable breakdown of marriage qualifies as cruelty under the Special Marriage Act. This extends a 2023 Supreme Court ruling under Hindu marriage law to cases governed by the 1954 statute.

The wife, a medical professional working in Kurseong, Darjeeling district, North Bengal, had appealed to the High Court after a lower court in 2022 denied her divorce petition, citing a lack of evidence of cruelty and desertion. The couple married in 2007, resided in Howrah, and had a son in 2011. The wife's earlier postings were in Malda and Birbhum before she returned to Howrah and then moved to Kurseong.

She argued that she and her husband had been living separately since 2015, with only infrequent visits by the husband and no real marital relationship. She also claimed that the trial court had improperly blocked testimony from her colleagues regarding alleged abuse at her workplace, even rejecting video-conference evidence due to claims of "insufficient infrastructure".

The High Court disagreed with the trial court's assessment, finding that cruelty and desertion had been proven. The court noted that the husband admitted to living separately, save for sporadic visits, and failed to substantiate his claims of brief cohabitation. The judges also criticized the rejection of video evidence based on unsubstantiated grounds. They further pointed to inconsistencies in the husband's position, as he opposed the divorce while simultaneously seeking continued access to their child.

The court stated that "When the convivial atmosphere is lost in a matrimonial relationship and all empathy dries up, nothing remains in the marriage for it to be sustained," and declared the marriage irretrievably broken. The husband is allowed to meet his child once a month.

In a similar vein, the Delhi High Court in 2022 ruled that visits from family members to a matrimonial home, without the intention of permanency, would not qualify them as members of a shared household under the Domestic Violence Act. Justice Prateek Jalan stated that occasional living would not convert places into "shared households". The court was addressing a plea concerning the non-issuance of summons to certain family members in a case under the Protection of Women from Domestic Violence Act, 2005. The court found that the complainant herself stated that the matrimonial home was not shared by them.

Similarly, the Nagpur bench of the Bombay High Court ruled in 2021 that occasional visits to a son's home by his family could not be defined as a 'shared household' under the DV Act. Justice Manish Pitale clarified that "Mere fleeting or casual living shall not make a shared household".