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 parties are Christians. Their marriage was solemnised on 30.04.2015. The husband is an Engineer by profession and the wife is a Dentist holding post-graduate degree. At the time of marriage, the wife was a postgraduate student in Kannur and the appellant was working as an Assistant Professor in an Engineering College in Parippally, Thiruvananthapuram.
The parties are living separately since 2017 and minor child is in custody of the mother.
The wife in this case had filed an appeal challenging the decree of divorce granted in favour of the respondent-husband on the grounds 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 emphasised on 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.
Kerala High Court
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.
The court cited that perhaps the reason that they were living at distant places at the time of marriage had hampered developing such bonding.
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. It added,
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.
Incompatibility Recognised As Ground For Divorce
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. It noted,
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.
The high court also referred to the Apex Court in Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511] judgement, that considered such act as cruelty in the following words:
Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.
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.
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