Refusing divorce in a failed marriage amounts to cruelty, -Kerala High Court

The Kerala High Court has said that if the marriage relationship has become so bad that it can not be repaired then no one can forcibly keep their spouse tied in that relationship. Wheather it is husband or wife, such coercion by one would be treated as cruelty to the other.

Hearing two petitions filed by wife Bina M.S and husband Shinoji Babu challenging the decisions of the family court a division bench of Justice A  Mohammed Mustaq and Justice Sophie Thomas said-if marriage relations have become so bad that they can not be repaired,then no one can forcefully keep their spouse in that relationship. wheather it is husband or wife, such coercion by one would be treated as cruelty to the other. The court said when both the parties are unable to lead a meaningful married life due to differences of opinion and one ready for separation and the other side is not giving mutual separation.Then it will itself cause mental anguish and cruelty to the spouse who seeks separation The Court observed that if one of the husband/wife refuses to grant divorce by mutual consent. After being convinced of the fact that marriage has failed.This is nothing but cruelty to the other spouse.

The family court, while granting the divorce of wife Bina M.S and husband Shinoji Babu, permanently handed over the custody of their child to his mother. Therefore the wife Bina M.S. challenged the decision of the family court to grant divorce . while Shinoji Babu challenged the decision of the family court to hand over the permanent custody of the child to the mother. After hearing the case, the High court upheld both the decisions of the family court.

The Bench said that both husband and wife are living seperately since 2017, Both did not even make any special efforts to maintain the marriage relationship. In such a situation, granting divorce by the family court was right decision. Because the child stays with the mother from birth. Therefore, handing over the custody of a 5-year-old child to the mother is also the right decision. The court was also of the view that the father had not shown much interest and enthusiasm in taking the custody of the child  Dismissal of a petition for custody of the child does not mean that the father of child can not file a fresh application for the custody or contact of his child. The father can file a new application in the family court in relation to his child.