Kerala High Court: Expressing that, “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”, the Division bench of A. Muhamed Mustaque and Sophy Thomas, JJ., held that, Court cannot leave the life of a spouse to the mercy of the opposite spouse.

High Court remarked that,

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.

In the present matter the Bench after going through the pleadings and evidence, opined that the parties never developed any emotional bond or intimacy. The reason that they were living at distant places at the time of marriage had hampered developing such bonding.

High Court expressed that 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.”

 Further, elaborating the analysis, Court stated that in some jurisdictions, incompatibility is a recognized ground for divorce.

“If domestic harmony is not achieved during the initial phase of the marriage, it may lead to constant quarrels and bickering, spoiling the relationship.”

The husband approached the Court for divorce on the ground of cruelty, after realising the insurmountable hurdle in moving forward.

High Court added that,

“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 parties never had any cordial relationship and failed to develop any emotional intimacy.

In the present matter, Court had to decide upon cruelty as a ground for divorce.

In Court’s opinion, the wife can’t be fully blamed for the deteriorated relationship, infact the email communications depicted that the wife experienced stress and emotional turbulence.

Husband attributed wife’s behaviour of writing down things and meticulously putting down her actions in advance by cataloguing the schedules and routines as behavioral disorder. Bench denied classifying the same as a disorder in the absence of a medical evidence.

Though the Court stated expressed that, the obsessive nature of the character possessed by the wife would have led to a deteriorating relationship between the parties from the initial phase of life itself.

“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.”

High Court accepted that the conduct and character of the wife was unbearable to the husband.

In any matrimonial relationship, spouses may have a different outlook on the marriage based on faith, perceptions, outlook, attitudes, social ethos, etc. Fearing divorce is repugnant to his or her notion, one would refrain from the divorce based on mutual consent.

Bench observed that there was no scope for reviving the dead marriage.

The decision of Supreme Court in Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 were referred with regard to cruelty.

Law on divorce recognized both fault and consent as a cause for separation, Court added.

When husband and wife 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.

High Court also stated that, if the Court is able to from an opinion that due to incompatibility, the marriage failed and one of the spouses was withholding consent for mutual separation, the Court can very well treat that conduct itself as cruelty.

“No one can force another to continue in a legal tie and relationship if the relationship deteriorated beyond repair.” 

Bench held that the parties were young and living separately since 2017, hence no interference was required in the family court order. [Beena M.S. v. Shino G. Babu, 2022 SCC OnLine Ker 778, decided on 4-2-2022]

Advocates before the Court:

For the appellant:

By Advocates:




For the respondent:

MAJIDA. S, Advocate

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  • High Court also stated that, if the Court is able to from an opinion that due to incompatibility, the marriage failed and one of the spouses was withholding consent for mutual separation, the Court can very well treat that conduct itself as cruelty.

  • It is another way by the court not to find out due to which spouce the other spouce has suffered or is suffered and run away by not performing there duties. Then what is the use to go courts if court also want somebody to pressurises to do it amicably??? Then why somebody need to pay lawyers and waste the money on the toothless law????

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