Withholding mutual consent in a failed marriage constitutes cruelty under modern divorce jurisprudence.

JUDGMENT :

A. MUHAMED MUSTAQUE, J.

1. This appeal was preferred by the husband, who was unsuccessful before the Family Court, to obtain divorce on the grounds of cruelty.

2. The marriage between the parties was on 29.01.2002 in accordance with the Hindu religious rites and ceremonies. Two children were born in wedlock. The children are now major. The Appellant-husband was in Muscat and now came down to India and settled. The allegation of cruelty has been narrated in the pleadings. The appellant alleges that the respondent-wife hails from a poor family and was more interested in extracting money from him. It is submitted that the entire money sent by him from Muscat was misused and even the money sent for construction of house was squandered away. The appellant also alleged that the respondent had an illicit relationship with the husband of her sister. The neglect and apathy towards him are one of the cruelty alleged in the petition for divorce. The appellant-husband also claimed that differences in the family emerged when a dispute arose between the respondent's family with the widow of respondent's brother namely, Anitha, as the appellant supported the case of Anitha. The respondent denied all the allegations of cruelty raised by the appellant.

3. The constant bickering in marital life, lack of mutual respect, detachment etc. would make the reconciliation impossible. We find nothing in this case which would ensure that the parties to the marriage to stay together. We see, in these types of cases, the parties are trying the court and not the court trying the parties. The appellant has now become a senior citizen. The original petition filed for divorce was filed in the year 2011. Many sunsets have re-dawn but life is yet to reset. Attempts for settlement have been failed. The husband offered Rs.10 lakhs and ten cents of land to the respondent to secure her life. Respondent raised her demand, which the appellant is not willing to accept. As we mentioned earlier, though we tried the parties the parties are not mending their ways for a way out. More than a decade has lapsed through the corridors of the Court. It appears that parties are living under the same roof. The learned counsel for the respondent submits that the respondent has no objection in continuing with the appellant and therefore, this case cannot be treated as a fit case where the Court can hold that the marriage has become irrecoverably broken down.

4. We are not referring to the pleadings and evidence to hold the allegation of cruelty. We are sure that mutual consent for divorce failed in this matter as the bargaining could not meet the level of expectation. The court rooms cannot be replaced to allow the parties for a battle for grooming their egos and idiosyncratic behaviour, The Court is established for genuine people who honestly dispute on the cause. If they cannot live together even by sharing residence for more than a decade, it can be presumed that sense is lost on both. The idea of no fault divorce is making the people to realise that there is a sensible way of parting on a mutually agreed terms. Withholding mutual consent in a failed marriage is nothing but cruelty.

5. This Court in Beena M.S. v. Shino G. Babu, 2022 (2) KHC 11 held as follows:

“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 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 companionshi