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Kerala High Court has observed that if one of the spouses withhold the consent for a mutual divorce despite being convinced that the marriage has failed due to incompatibility, it is nothing but cruelty to the other spouse.

The division bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas has held that once the court is able to form an opinion that the marriage failed due to incompatibility and one of the spouses was withholding consent for mutual separation, it can very well treat that conduct itself as cruelty.

The law on divorce recognises both fault and consent as a cause for separation. When both the parties are unable to lead a meaningful matrimonial life due to inherent differences of opinion and one party is willing for separation and the other party is withholding consent for mutual separation, that itself would cause mental agony and cruelty to the spouse who demands separation,” the bench said.

The bench added that no one can force another to continue in a legal tie and relationship if the relationship deteriorated beyond repair. The portrayal of such conduct through manifest behaviour of the spouse in a manner understood by a prudent as ‘cruelty’ is the language of the lawyer for a cause before the court, the High Court bench said.

In the present case, the wife had moved High Court against divorce decree granted on the ground of cruelty. The husband had also appealed seeking permanent custody of their child alleging that quarrelsome attitude of his wife.

However, advocates representing the wife denied the allegations and submitted that the husband failed to offer care and emotional support, even during her pregnancy.

After going through all the pleadings and evidence, the division bench opined that the couple never developed emotional bond or intimacy. The court also found that they were living an incompatible life from the very initial phase of their married life.

The marital relationship is built over the period, based on harmonious combination of differences in taste, outlook, attitude etc. The initial phase of the marriage lays a strong foundation for the marriage. The understanding built during the initial phase would enable the parties to resolve the differences which they may encounter in the later stage of the marriage,” the bench said.

The High Court further stated, “Legal cruelty is different from actual cruelty. The popular meaning of cruelty cannot be ascribed to the statutory meaning of cruelty. While deciding this case, we have outlined at the outset the incompatibility of the parties for the reason that, if we omit to refer to the incompatibility, the judgment rendered would only prove innocence or fault of either of the parties. By incompatibility, we mean that both parties failed in building the relationship and one alone cannot be attributed with the imputation of fault.”

The husband had claimed that his wife is suffering from behavioural disorder. But, the High Court bench refused to classify it as personality disorder in the absence of any medical evidence.

The court observed that they cannot completely blame the wife for failure of marriage. However, it was noted that the wife’s conduct may have contributed for the relationship failure.

Chasing happiness based on schedules instead of living in the moment, appears to be the vowed daily life routine adopted by her. She was not realistic to the fact that the secret of marital harmony lies in accepting the life as it unfolds and not becoming a stickler of the schedules or routines,” the bench said.

The court went on to add, “If the conduct and character of one party causes misery and agony to the other spouse, the element of cruelty to the spouse would surface, justifying grant of divorce. If the parties cannot mend their ways, the law cannot remain oblivious to those who suffer in that relationship.”

We thought to refer to the above remarks in this case obviously for the reason that both parties could not yield to each other in building a relationship and the marriage failed at the threshold itself. Incompatibility is a factor that can be reckoned while considering the ground for cruelty, if one of the spouses withholds the consent of mutual separation, though incompatibility is not recognised as ground for divorce,” added the High Court bench.

Noting the parties are young and living separately since 2017, the bench held that the Family Court was right to grant a divorce decree to the couple.

While deciding on the child custody, the bench noted that the 5 year old child has been living with his mother since birth and father didn’t seem enthusiastic to obtain his custody, the custody shall remain with the wife.

However, the bench clarified that father can still move family court for visitation rights or contact rights with a fresh petition.


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