Read Judgment: Beena vs. Shino G. Babu 

Pankaj Bajpai

Ernakulam, February 15, 2022: While noticing that the husband wants to get out of the struggled relationship on the projected cause of cruelty with reference to the incidents of misbehavior of his wife, the Kerala High Court (Ernakulam Bench) ruled that if one of the spouses is refusing to accord divorce on mutual consent after having convinced of the fact that the marriage failed, it is nothing but cruelty to spite the other spouse. 

A Division Bench of Justice A.Muhamed Mustaque and Justice Sophy Thomas observed that if 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, the court can very well treat that conduct itself as cruelty.

Going by the background of the case, the Matrimonial Appeal is filed by the wife challenging the decree of divorce granted in favour of Shino G. Babu (Respondent – husband) on the ground of cruelty, whereas, Matrimonial Appeal was filed by the husband challenging the dismissal of his petition for permanent custody of the child born in the wedlock with Beena (Respondent – wife).

After considering the submissions, the High Court noted 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. 

At the same time, if the parties cannot mend their ways, the law cannot remain oblivious to those who suffer in that relationship and the court cannot leave the life of a spouse to the mercy of the opposite spouse, added the High Court. 

The Division Bench observed that the law on divorce recognizes both fault and consent as a cause for separation, meaning thereby, 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 purpose of marriage is to hold matrimonial ties lifelong, respecting mutual obligations and rights and the modern jurisprudence of irretrievable break down to allow divorce is premised on the fact that the spouses can never remain together on account of their differences, added the Bench. 

Therefore, finding that the parties are young and are living separately since 2017, the High Court concluded that the order of the Family Court granting divorce has to be sustained.

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