Refusing to Divorce in a failed marriage amounts to cruelty :Kerala HC

 A division bench of Justice A Muhamed Mustaque and Justice Sophy Thomas pronounced the order while hearing appeals filed by a husband and wife.

While one appeal was filed by the wife challenging the order by Nedumangad Family Court, which allowed divorce plea by husband (respondent) on the ground of cruelty, another one was filed by the husband challenging the dismissal of his petition seeking permanent custody of their five-year-old child. The husband referred to her alleged quarrelsome attitude as the reason for divorce and the wife denied such sort of behaviour from her side. She also contended that the husband had failed to offer care and emotional support even during her pregnancy.

The court said that after hearing both sides, and examining the evidence, it is of the opinion that the two "never developed any emotional bond or intimacy."

"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 court said.

Emphasising that no one can force another person to continue in a 'legal tie and relationship' if the relationship is deteriorated beyond repair, the bench observed, "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 judges also said, "If one of the spouses is refusing to accord divorce on mutual consent after having been convinced of the fact that the marriage failed, it is nothing but cruelty to spite the other spouse."

After perusing the evidence, email communications and oral evidence of the parties, the judges also observed that they could not completely blame the wife for the deteriorated relationship. "All that would go to show that the parties never had a peaceful relationship," they said

The husband had submitted to the court that his wife had been 'obsessively' charting her daily plans and scheduled works in writing, and a slight variation from these disturbed her immensely. Though the husband said that this conduct was a behavioural disorder, 'in the absence of any medical evidence', the court refused to classify it as a personality disorder.

Noting that the husband found this behaviour unbearable, the judges acknowledged the fact that this might have contributed to the destruction of their already deteriorating relationship. "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."

Saying that both of them are young and have been living separately since 2017, the judges upheld the divorce given to the couple. With respect to the custody petition filed by the husband, the court said that while the custody shall remain with the wife, its order will not stand in the way of the husband's option to move family court with a fresh petition for visitorial rights or contact rights.