‘Cruel’ to Deny Divorce to Partner in an Unhappy Marriage: Kerala HC


Feb 17, 2022


Image Credit: Wikimedia Commons

A partner not agreeing to divorce despite knowing the marriage has failed beyond repair amounts to “cruelty,” the Kerala High Court noted recently. Moreover, a partner “forcing” another to stay in a strained marriage causes significant mental agony.

Under the current provisions, the reason for seeking divorce needs to fall into one of the categories —  adultery, cruelty, desertion, conversion to another religion, and unsoundness of mind (these provisions were drafted decades ago).

In the present case, the bench, comprising Justices A. Muhamed Mustaque and Sophy Thomas, was ruling on the plea of a woman objecting to the divorce decree and contesting her husband’s demand to get custody of their son. The two got married in 2015 and later sought divorce; the husband found the wife “quarrelsome” and said she did not get along with his mother and sister. The wife, on the other hand, argued he did not offer her emotional support and care.

In the end, the court opined the two were incompatible. And if any partner would withhold consent for mutual separation despite the court’s intervention, the court can treat that as cruelty.

“The law on divorce recognizes 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,” said the court in a judgment earlier this month.

“No one can force another to continue in a legal tie if the relationship deteriorated beyond repair.”

Related on The Swaddle:

Marital Rape Is a Valid Ground for Claiming Divorce, Kerala HC Says in Landmark Judgment

Filing a petition for divorce by mutual consent is among the easier routes to separation — but both partners have to consent to it, as the name suggests, and file for it at the same time. Other conditions include that both spouses must live separately for at least one year; both should feel they cannot live together; both should mutually agree their marriage has collapsed.

The court refers to the idea of cruelty in reference to staying in a failed marriage. According to the law, the scope of cruelty included physical, mental, and emotional. “It is not required that you have to be in a physically abusive relationship to invoke this provision, and it encompasses other habits and conduct that can amount to cruelty in a marriage,” a family law lawyer Chethana explained.

In 2007, a Supreme Court bench further observed the concept of cruelty varies from person to person; one’s education level, upbringing, traditions, customs, financial status, religion go into forming their outlook of emotional and mental cruelty. But the mere lack of affection, quarrels, or irritation of a partner does not classify as cruelty.

Moreover, India does not have the concept of a “no-fault’ divorce” — when the petitioner does not have to prove the fault of their partner. “So the reason for seeking divorce needs to fall under one of the above categories [cruelty, desertion, etc.], and just the reason for irretrievable breakdown of marriage is not sufficient to file a petition seeking divorce,” Chethana added.

In this instance, the law clearly notes the importance of noting the limitations of a legal tie. “If the parties cannot mend their ways, the law cannot remain oblivious to those who suffer in that relationship,” the court observed.


Written By Saumya Kalia

Saumya Kalia is an Associate Editor at The Swaddle. Her journalism and writing explore issues of social justice, digital sub-cultures, media ecosystem, literature, and memory as they cut across socio-cultural periods. You can reach her at @Saumya_Kalia.


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