Prathiba A. v. Niburaj B.R. and KSFE, Enathu Branch

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944** **MAT.APPEAL NO.639 OF 2019** **AGAINST THE ORDER/JUDGMENT IN O.P.NO.2236/2016 OF FAMILY** ## **COURT, TRIVANDRUM** **APPELLANT/S:** **PRATHIBHA A., AGED 41 YEARS, D/O.ANIRUDHAN, RESIDING AT TC 41/2512, ANDUVILAKATHU VEEDU, THOTTAM, MANACADU VILLAGE, THIRUVANANTHAPURAM, PIN-695009.** **BY ADVS. P.K.RAMKUMAR SMT.ANITHA MENON** ## **RESPONDENT/S:** 1 **NIBURAJ B.R., AGED 43 YEARS, S/O.BABURAJAN, RESIDING AT BHINU BHAVANAM, MELUDUMURI, PERINGANADU VILLAGE, MELOODU P.O., PALLICKAL, ADOOR TALUK, PATHANAMTHITTA DISTRICT, PIN-691554.** 2 **THE BRANCH MANAGER, KSFE, ENATHU BRANCH, PATHANAMTHITTA.** **(IS SUO MOTU IMPLEADED AS AN ADDITIONAL SECOND RESPONDENT AS PER JUDGMENT DATED 25.7.2022)** **BY ADV SRI.K.V.ANIL KUMAR** **BY ADV.SRI.SALIL NARAYANAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.Appeal No.639/2019 2 ## **JUDGMENT** ## A.Muhamed Mustaque, J. The dispute between the parties has come to a happy end. This appeal even though arises from the judgment of the Family Court, Thiruvananthapuram, challenging a divorce granted to the respondent-husband, has ultimately paved the way for the resolution of all the disputes between the parties. We shall advert to those aspects at a later stage in the judgment. The parties married in the year 2014 in accordance with the rites and customs applicable to the Hindu Ezhava Community. The respondent-husband approached the Family Court, Thiruvananthapuram, with a petition for divorce in the year 2016. His narration of cruelty, in fact, was to get out of the marital relationship as it appears that the marriage failed from the inception itself. The Family Court, accepting his narration of cruelty granted a decree of divorce. Challenging the above, the appellant-wife has approached this Court. Mat.Appeal No.639/2019 3 2. The appellant-wife appeared before this Court online as she is currently working in New Delhi. The respondent appeared in person before this Court. Both parties have no objection in dissolving the marriage. However, the appellant-wife demanded that the gold ornaments belonging to her be returned to her. According to her, the gold ornaments were pledged for raising money by the respondent-husband. The respondent-husband raised no objection in releasing the gold ornaments as he submitted before us that he has discharged the entire liability. The gold ornaments were pledged with KSFE, Enathu Branch, Pathanamthitta District. 3. Taking note of the submission as above, we _suo motu_ implead the Branch Manager, KSFE, Enathu Branch, Pathanamthitta as an additional second respondent. 4. Adv.Salil Narayanan, the learned counsel for KSFE submitted before this Court that the entire liability to KSFE has been discharged by the respondent-husband and they are prepared to release the Mat.Appeal No.639/2019 4 gold ornaments in accordance with the direction of this Court. The respondent-husband has no objection in releasing the gold ornaments to the appellant-wife. The total gold ornaments now available with KSFE is 419.5 grams. It is to be noted that the appellant-wife also approached the Family Court, Thiruvananthapuram in O.P.No.1660/2018 for recovery of gold ornaments from the respondent-husband. 5. In regard to the cruelty, we notice that both parties could not reconcile to continue the marital relationship. Both realised the fact that the marriage should come to an end. However, it appears that due to the dispute related to the claim for gold ornaments, the decision for mutual consent has been prolonged. We often find that due to monetary claims raised by one spouse, the other spouse withhold consent. That itself becomes cruelty to the other spouses in a failed marriage. In a recent judgment, **Beena M.S. v. Shino G. Babu [2022 (2) KHC 11]** this Court held in paragraph-6 as follows: “ _The law on divorce recognises both fault_ Mat.Appeal No.639/2019 5 _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 purpose of marriage is to hold matrimonial ties lifelong, respecting mutual obligations and rights. The companionship of spouses creates oneness of the mind to walk together. It is through mutual respect and courtship, the companionship is built and fortified. 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. 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. 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. 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_ Mat.Appeal No.639/2019 6 _a prudent as 'cruelty' is the language of the lawyer for a cause before the court. This case is also not different. The behavioural disorder pointed out against the appellant in the petition for divorce was essentially reflection of incompatibility that existed between the parties. The husband wants to get out of the struggled relationship, on the projected cause of cruelty with reference to the incidents of misbehaviour. 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.”_ ## 6. The parties are matured and educated. We, noting that withholding consent for mutual divorce itself is cruelty, are of the view that the impugned judgment can be affirmed not on the findings made now, but on the ground of withholding consent for mutual separation. Accordingly, we affirm the decree of dissolution granted by the Family Court for the reasons stated above. 7. In regard to the gold ornaments, the gold ornaments shall be released to the appellant-wife. The Mat.Appeal No.639/2019 7 appellant-wife is now in New Delhi. She submitted before this Court that she will collect the gold ornaments from the above branch by the end of August, 2022. We make it clear that the gold ornaments shall not be released to any person, other than to the appellant-wife herein. With the above direction to the additional second respondent, we dispose of this appeal, affirming the decree of divorce. We also direct the Family Court, Thiruvananthapuram, to close O.P.No.1660/2018 in the light of the directions above to KSFE, to release the gold ornaments to the appellant-wife. No order as to costs. **Sd/-** ## **A.MUHAMED MUSTAQUE** **JUDGE** Sd/- **SOPHY THOMAS JUDGE** **ln** Mat.Appeal No.639/2019 8 ## **APPENDIX OF MAT.APPEAL 639/2019** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A1 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 18.07.2019 ISSUED BY DR.N.VISWANANTHAN TO THE APPELLANT'S FATHER.**