Forcing spouse to stay in failed marriage is cruelty: Kerala HC

Forcing spouse to stay in failed marriage is cruelty: Kerala HC

The Kerala High Court ruled that forcing a spouse to stay in a failed marriage is cruelty.


The parties are Christians. The husband is an Engineer by profession and the wife is a Dentist holding a postgraduate 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. 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. 

Court observation 

The  division bench of Justice A.Muhamed Mustaque and Justice Sophy Thomas noted 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 court stated that 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.

The court said that if the conduct and character of one party causes misery and agony to the other spouse, the element of cruelty to the spouse would surface, justifying grant of divorce. If the parties cannot mend their ways, the law cannot remain oblivious to those who suffer in that relationship.  

The court added that it cannot leave the life of a spouse to the mercy of the opposite spouse. Human problems require resolution consistent with the notion of justice. The husband wants to get out of the misery and agony of the relationship; though, what was portrayed before the court is the fault of the wife, the husband also failed in building the relationship.

“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”, the court said.

The court stated that 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.


The court while sustaining the order of the family court granting divorce said that 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.

Case title: Beena M.S. v/s Shino G.Babu

Citation: MAT.Appeal no. 43 of 2020 

Click here to read the Order/Judgment

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