In matrimonial appeals against the Family Court, the High Court held that withholding consent for mutual separation in a failed marriage constitutes cruelty, granting a divorce decree while affirming orders for maintenance and gold ornaments.
Divorce decree granted to the husband; appeal against maintenance and gold ornament orders dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 14TH DAY OF JULY 2022 / 23RD ASHADHA, 1944 MAT.APPEAL NO. 1406 OF 2017
AGAINST THE ORDER/JUDGMENT in OP 1374/2015 OF FAMILY
COURT,TRIVANDRUM
APPELLANT/S:
SYAM.R.S S/O.LATE RAVEENDRAN, AGED 34 YEARS, RAVI NIVAS, KARAVARAM VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM.
BY ADVS. M.SANTHI (K/868/2011) G.RANJU MOHAN
RESPONDENT/S:
LEKSHMI VIJAYA AGED 26 YEARS D/O.VIJAYAN, AGED 26 YEARS, SWAMI NIVAS, NEAR FARMER'S BANK, AYIROORPARA VILLAGE, POTHENCODU, THIRUVANANTHAPURAM-695584.
BY ADVS. SRI.G.BIJU SRI.V.A.VINOD
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 14.07.2022, ALONG WITH Mat.Appeal.160/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 14TH DAY OF JULY 2022 / 23RD ASHADHA, 1944 MAT.APPEAL NO. 160 OF 2018
AGAINST THE ORDER/JUDGMENT in OP 36/2016 OF FAMILY
COURT,TRIVANDRUM
APPELLANT/S:
SYAM R.S. AGED 34 YEARS S/O.LATE RAVEENDRAN, AGED 34 YEARS, RAVI NIVAS, KARAVARAM VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM.
BY ADVS. M.SANTHI (K/868/2011) G.RANJU MOHAN
RESPONDENT/S:
LEKSHMI VIJAYA D/O.VIJAYAN, AGED 26 YEARS, SWAMI NIVAS, NEAR FARMER'S BANK, AYIROORPARA VILLAGE, POTHENCODU, THIRUVANANTHAPURAM-695584.
BY ADVS. SRI.G.BIJU SRI.V.A.VINOD
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 14.07.2022, ALONG WITH Mat.Appeal.1406/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ.
Mat.Appeal Nos.1406/2017 & 160/2018
Dated this the 14th day of July, 2022
J U D G M E N T
A.Muhamed Mustaque, J.
These matrimonial appeals are between the same
parties. Both appeals are at the instance of the husband. The husband filed O.P.No.36/2016 before
the Family Court, Thiruvananthapuram, for divorce.
This was not allowed. Challenging the dismissal,
he filed Mat.Appeal No. 160/2018. The wife filed O.P.No. 1374/2015 against the husband for the
recovery of value of gold ornaments and maintenance. The said O.P. was allowed.
Challenging the said decree, the husband filed Mat. Appeal No. 1406/2017.
Family Court along with O.P.No.1991/2014 filed by
the husband for permanent custody of the child.
Mat.Appeal Nos.1406/2017 & 160/2018
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The said original petition was dismissed. No
appeal is seen filed as against the dismissal of the above original petition.
accordance with the customs and rites of their community. The parties are Hindus by faith. After
the marriage, they lived at Sharjah in U.A.E. In the wedlock, a female child was born on 9.10.2013. The child was given birth in India. According to the husband, he was willing to take the child and wife to Sharjah. However, the wife refused to accompany him. The husband claimed divorce, both on the grounds of cruelty and desertion. According to the wife, it was the husband who refused to take her and the child to Sharjah. She contended
that the husband misappropriated her gold ornaments.
be decided based on the oral evidence of the parties.
Mat.Appeal Nos.1406/2017 & 160/2018
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favour of the wife to recover gold ornaments, maintenance and other monetary relief. Besides
granting monetary relief in favour of the wife, a sum of Rs.5,000/- each has been ordered to be paid by the husband to the wife and minor child. It has come out that the wife has no income of her
own. Therefore, there is no reason to deny the maintenance awarded therein. Though the husband
contended that he used to send money to the wife, there is no evidence adduced to prove the same. Taking note of the quantum of the amount awarded
towards maintenance, we find no reason to interfere with the impugned order to that extent.
6.(i). In regard to the claim for gold
ornaments, the claim of the wife was that the entire gold ornaments, except the gold ornaments
given to her for daily use, were kept in a joint locker maintained in the name of the husband and wife, at the S.B.T., Kallambalam Branch. It has
come out that the key of the locker was with the
Mat.Appeal Nos.1406/2017 & 160/2018
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wife. According to her, the husband on his visit to the native place from abroad, opened the locker
and took eight sovereigns of gold ornaments for personal use. This fact had not been controverted
to by the husband in the objection filed before the Family Court. According to the husband, he pledged those ornaments and after six months redeemed the pledge and placed the ornaments in the locker itself. However, the husband failed to prove the same. It is in that context, the Family
Court ordered husband to return the eight sovereigns of gold ornaments or to pay its present market value together with interest. On an appreciation of the evidence as above, we are of the view that the finding of the Family Court in this regard, has to be affirmed.
6.(ii). In regard to the order passed by the
Family Court allowing the wife to claim
Rs.9,00,000/- fixed deposit in the joint name of
both the parties, the stand of the husband was
that he does not require any amount standing in
the joint name. If that be so, we affirm the
Mat.Appeal Nos.1406/2017 & 160/2018
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finding of the Family Court in this regard as well.
aspects related to cruelty. We are sure that no cruelty exists in the form of physical cruelty and; based on the evidence adduced, the husband
Mat.Appeal Nos.1406/2017 & 160/2018
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failed to prove cruelty of physical nature on the side of the wife.
between the parties immediately after the birth of the child. According to the husband, he was not allowed to see the child; on the other hand, the
wife would contend that the husband never cared to visit the child.
to reconcile which have been failed. We are pausing for a moment as to the fate of this
marital relationship. It is now impossible for the parties to lead a happy married life. In those
circumstances, we are of the view that withholding consent for mutual separation itself will amount
to cruelty. In the judgment of this Court in
Beena v. Shino G.Babu [2022 (2) KLT 139] , we had
enunciated law regarding withholding consent for mutual separation, as follows:
“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
Mat.Appeal Nos.1406/2017 & 160/2018
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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 creates oneness of the mind to walk together. It is through mutual respect and courtship, the companionship is built and fortified. The modern jurisprudence of irretrievable break down to allow divorce is premised on the fact that the spouses can never remain together on account of their differences. 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. If one of the spouses is refusing to accord divorce on mutual consent after having convinced of the fact that the marriage failed, it is nothing but cruelty to spite the other Mat.Appeal Nos.43 & 72/2020 13 spouse. 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. This case is also not different. The behavioural disorder pointed out against the appellant in the petition for divorce was essentially reflection of incompatibility that existed between the parties. The husband wants to
Mat.Appeal Nos.1406/2017 & 160/2018
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get out of the struggled relationship, on the projected cause of cruelty with reference to the incidents of misbehaviour. 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.”
of the view that a decree of divorce can be granted to the husband. Accordingly, we dissolve the marriage solemnised between the parties on 26/12/2011 granting a decree of divorce.
In the light of the discussions as above, we dismiss M.A.No.1406/2017 and allow
M.A.No.160/2018.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE
Sd/-
SOPHY THOMAS, JUDGE
ms
2 issues framed by the court
Whether the courts should grant a divorce when there is incompatibility and one spouse withholds consent for mutual separation causing mental agony.
Whether maintenance and the return of gold ornaments should be interfered with on appeal.
Colour shows how this judgement treated each authority
Beena v. Shino G.BabuRelied on¶100
Beena v. Shino G.Babu [2022 (2) KLT 139]
2 provisions across 1 enactments
Syam.R.S
Lekshmi Vijaya
A.Muhamed Mustaque
Sophy Thomas
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
