Denying divorce to spouse in failed marriage is cruelty: Kerala HC

In yet another significant verdict, the Kerala High Court on February 4 pronounced that a spouse refusing to grant divorce on mutual consent in a failed marriage can be considered as cruelty.

The court also observed that one cannot force another to continue in a failed marriage.

The ruling was given by a division bench led by Justice A Muhamed Mustaque and Justice Sophy Thomas while hearing appeals filed by a husband and wife.

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. She also contended that the husband had failed to offer care and emotional support even during her pregnancy.

Another plea was filed by the husband challenging the dismissal of his petition seeking permanent custody of their five-year-old child.

He had referred to the wife's alleged quarrelsome attitude as the reason for divorce and the wife denied such sort of behaviour from her side.

Upon hearing both sides and examining evidence, the court opined that the two "never developed any emotional bond or intimacy."

The bench noted that when one party withholds consent for mutual separation, then that itself would cause mental agony and cruelty to the spouse who demands separation.

It also emphasised that that no one can force another person to continue in a 'legal tie and relationship' if the relationship is deteriorated beyond repair

After perusing the evidence, email communications and oral evidence of the parties, the judges also observed that the parties never had a peaceful relationship.

The husband had submitted to the court that his wife had been 'obsessively' charting her daily plans and scheduled work 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.