Refusal to consent to a divorce, in a context of established long-term incompatibility, constitutes mental cruelty under the Hindu Marriage Act.

J U D G M E N T

Dated this the 17th 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 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 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 the scheme of mindset of the wife. If she was ill- treated 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 inBeena M.S. v. Shino G.Babu [ 2022 (2) KLT 139 ], after referring to the Apex Court judgment inSamar 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 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