Ratheesh Kumar S.R. v. Reshma (Mat. Appeal No. 867/2016)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS.JUSTICE SOPHY THOMAS FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 MAT.APPEAL NO. 867 OF 2016** **AGAINST THE ORDER/JUDGMENT IN O.P.NO.1575/2011 OF FAMILY COURT, THIRUVANANTHAPURAM DATED 21.06.2016 APPELLANT/S:** **RATHEESH KUMAR S.R., AGED 29 YEARS, S/O.RAVEENDRAN ACHARI, POOVARTHUR VEEDU, TC 31/1129, THAZHASSERI, PALKULANGARA, PETTAH P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.K.R.VINOD SMT.M.S.LETHA** ## **RESPONDENT/S:** **RESHMA, AGED 22 YEARS, D/O. THANKACHI, TC 31/1218, UTHRAM HOUSE, THARA-156, THAZHASSERI, PETTAH P.O., THIRUVANANTHAPURAM-695 001.** **BY ADVS. SMT.LAYA SIMON SMT ANILA PETER** **SMT BLESSYMOL PP** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 31.5.2022, THE COURT ON 17.06.2022 DELIVERED THE FOLLOWING:** ## **A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ.** **-----------------------------------------Mat. Appeal No.867/2016** **------------------------------------------** ## **J U D G M E N T** **Dated this the 17[th] day of June, 2022** ## A.MUHAMED MUSTAQUE, J. This appeal arises from a judgment dismissing petition filed for divorce on the ground of cruelty as referable under the Hindu Marriage Act, 1955. The husband who lost the petition for divorce has come up in this appeal. 2. We heard the learned counsel Shri K.R.Vinod appearing for the appellant and Smt.Laya Simon on behalf of the respondent. 3. The marriage between the parties was solemnized on 13/12/2009 in accordance with the customs and ## **Mat. Appeal No.867/2016** ## **-:2:-** ceremonies of their community. It appears that the marriage from the very inception itself was failed. The wife, the respondent herein sent a lawyer's notice on 22/1/2011 demanding divorce on mutual consent. As revealed from the pleadings itself, the respondent-wife left the matrimonial home on 12/6/2010 and they never lived together as husband and wife thereafter. The husband portrayed the conduct of the respondent-wife as a matrimonial cruelty pointing out telephonic contacts made by respondent-wife during night using different sim cards. The husband also points out an incident, where he alleges that he was brutally assaulted by his in-laws and registration of the crime by the Ernakulam South Police in the year 2010. Husband suspects personality disorder and abnormal mental condition of the wife. On the other hand, wife alleges physical and mental cruelty meted out to her by husband and his parents. She also raised a complaint of physical assault on her by her husband on 5/12/2010. It is seen that a crime has also been registered on her behalf as FIR No.2022/2010 by the Thevara Police. As seen from ## **Mat. Appeal No.867/2016** ## **-:3:-** the pleadings, there are criminal cases between the parties including a case registered under Section 498A IPC against the husband and his family members. There is no dispute to the fact that the wife demanded divorce in the year 2011. The wife also has no case that she wants to live with the husband after condoning all his acts. 4. We often see that the parties are battling in the Court with a mind of vengeance against each other rather than to espouse a cause to protect their wellbeing or welfare. This is a classic case of a failed marriage and the parties have been living separately for more than a decade. Both parties attribute allegations of cruelty against each other. We are yet to realise and comprehend the need for keeping the marriage intact. What is the purpose of keeping this marriage intact? Is the intention of the wife to spite the husband denying him divorce on mutual consent. The strained relationship and refusal to accord divorce on mutual consent is a clear pointer of **Mat. Appeal No.867/2016** ## **-:4:-** the scheme of mindset of the wife. If she was illtreated and tortured by the husband, necessarily, she would have agreed for divorce as demanded by herself in the lawyer’s notice in the year 2011. We are not brushing aside her allegation of cruelty as it would amount to forming an opinion which may even imperil the chances of prosecution launched against the husband. 5. In a recent judgment of this Court in **Beena M.S. v. Shino G.Babu [2022 (2) KLT 139]** , after referring to the Apex Court judgment in **Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511],** this Court held that incompatibility of partner has to be reckoned as a ground for cruelty, if one of the spouses withholds consent for mutual separation, though incompatibility is not recognized as a ground for divorce. It is appropriate to refer para.6 of our judgment which reads thus: 6. The law on divorce recognises both fault 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 ## **Mat. Appeal No.867/2016** ## **-:5:-** 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 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. ## **Mat. Appeal No.867/2016** ## **-:6:-** 6. In **Samar Ghosh** case ( _supra_ ), the Apex Court opined that refusal to severe a failed marriage amounts to mental cruelty. In **Naveen Kohli v. Neelu Kohli [(2006) 4 SCC 558]** also the Apex Court has taken a similar view. 7. The long separation and slew of criminal cases have mentally and physically separated the spouses in this case. They have no intention to resume cohabitation. Forcing one to continue in a legal tie of matrimony which would serve no purpose, is nothing, but mental cruelty. The wife respondent herein demanded divorce in the year 2011. She has no reason now to retract her stand on divorce as she has no intention to resume cohabitation. All that would show that she is withholding consent to spite her husband. It is to be noted that she failed to prove her attribution of cruelty meted out to her in this case. So all that would clearly show that the husband is entitled to divorce on the ground of mental cruelty. We therefore, allow this appeal and grant divorce as ## **Mat. Appeal No.867/2016** ## **-:7:-** sought by the husband. Accordingly, we declare that marriage between the appellant and the respondent solemnized on 13/12/2009 is dissolved by a decree of divorce. No costs. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** **Sd/-** **SOPHY THOMAS, JUDGE** ms