Spouse Refusing To Accord Divorce On Mutual Consent Despite Being Convinced That Marriage Failed Amounts To Cruelty : Kerala High Court

The Kerala High Court has held that if one of the spouses is refusing to accord divorce on mutual consent despite being convinced of the fact that the marriage has failed, it is nothing but cruelty to the other spouse. 

A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas noted that once the court is able to form an opinion that due to incompatibility, the marriage failed 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 emphasised 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.

In the instant case, one appeal was filed by the wife challenging the decree of divorce granted in favour of the respondent-husband on the ground of cruelty. Another appeal was filed by the husband challenging the dismissal of his petition seeking permanent custody of their child.

Advocate Majida S. appearing for the husband dominantly referred to the allegedly quarrelsome attitude of the wife. 

However, Advocates Jacob P. Alex, Joseph P. Alex and Manu Sankar P representing the wife denied any sort of misbehaviour from her side and contended that the husband failed to offer care and emotional support when required including during her pregnancy.

After hearing the parties and going through the pleadings and evidence, the Court formed the opinion that they never developed any emotional bond or intimacy. The Bench also asserted that they were leading an incompatible life from the initial phase of the marriage.

Perhaps, the reason that they were living at distant places at the time of marriage had hampered developing such bonding.

"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."

It was brought to the attention of the Bench that the wife obsessively charted her plans and listed out a day's work in writing. The husband produced copies of such handwritten schedules and argued that a slight variation from these disturbed her immensely. 

The Court further observed that the ground of cruelty necessarily pinpoints the faults of the opposite party.

"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 Judges were also of the view that they cannot completely blame the wife for the deteriorated relationship since all that would go to show that the parties never had a peaceful relationship.

Although the husband attributed this conduct as a behavioural disorder, in the absence of any medical evidence, the Court refused to classify it as a personality disorder.

However, the Bench acknowledged the fact that this conduct of the wife may have contributed to the fall of their relationship.

"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." 

It was also noted that the husband found this behaviour unbearable. 

"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."

It was asserted that the behavioural disorder pointed out against the wife was essentially reflection of incompatibility that existed between the parties. The husband wants to get out of the struggled relationship, on the projected cause of cruelty with reference to the incidents of misbehaviour.  

The Court noted that in some jurisdictions, incompatibility is a recognized ground for divorce. It went on to elaborate the concept of incompatibility as both parties being unable to reconcile in their approach to the matrimonial life.

"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."

For the said reasons, and upon finding that the parties are young and living separately since 2017, the Bench took the view that the Family Court was right in granting divorce to the couple. 

Further, regarding the custody petition, it was held that since the 5 year old child has been living with his mother since birth, and since the husband did not seem enthusiastic to obtain custody, the custody shall remain with the wife. 

However, it was clarified that the said dismissal will not stand in the way of the husband moving the Family Court for any visitation rights or contact rights with a fresh petition.

Case Title: Beena M.S v. Shino G. Babu

Citation: 2022 LiveLaw (Ker) 78

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