Point of Law : Divorce – Grounds - 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 in compatibility is not recognised as ground for divorce.

JUDGMENT :

A. MUHAMED MUSTAQUE, J.

1. These appeals are between the same parties. Mat. Appeal No. 43/2020 is filed by the wife challenging the decree of divorce granted in favour of the respondent-husband on the ground of cruelty. Mat. Appeal No. 72/2020 was filed by the husband challenging the dismissal of his petition for permanent custody of the child born in the wedlock with the respondent-wife. The parties are hereinafter referred with reference to their marital status.

2. The parties are Christians. Their marriage was solemnized on 30.04.2015. The husband is an Engineer by profession and the wife is a Dentist holding post-graduate degree. At the time of marriage, the wife was a postgraduate student in Kannur and the appellant was working as an Assistant Professor in an Engineering College in Parippally, Thiruvananthapuram. We, after hearing the counsel for the appellant and going through the pleadings and evidence threshold, are of the opinion that the parties never developed any emotional bond or intimacy. Perhaps, the reason that they were living at distant places at the time of marriage had hampered developing such bonding. 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. The understanding built during the initial phase would enable the parties to resolve the differences which they may encounter in the later stage of the marriage. 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 incompatibility essentially refers to both parties being unable to reconcile in their approach to the matrimonial life. We thought to refer to the above remarks in this case obviously for the reason that both parties could not yield to each other in building a relationship and the marriage failed at the threshold itself. The husband realising the insurmountable hurdle in moving forward, approached the court for divorce on the ground of cruelty. The ground of cruelty necessarily pinpoints the faults of the opposite party. Legal cruelty is different from actual cruelty. The popular meaning of cruelty cannot be ascribed to the statutory meaning of cruelty. 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.

3. The pleadings of the husband dominantly refers to the quarrelsome attitude of the wife. The husband would say even a small provocation would vitiate a conducive atmosphere at the matrimonial home. The husband states that his wife does not like his relationship with his mother and sister. The constant and recurring and quarrelsome attitude of the wife has been projected as the ground for divorce. The wife, on the other hand, denied any sort of misbehaviour from her side. However, she admitted that the husband failed to offer care and emotional support when it was required including the period of pregnancy. It is her case that the husband gave priority to his comfort and needs than the needs of the wife while she was pregnant and studying the MDS Course. The objection of the wife pointed to the fact that the parties never had any cordial relationship and failed to develop any emotional intimacy.

4. We are sure that the parties were leading an incompatible life from the initial phase of the marriage. We are called upon to decide on cruelty as a ground for divorce. The Family Court referred to various incidents including email communications between the parties to hold that the wife c