Family Court Can't Refuse Mutual Consent Divorce Merely Because Couple Gives No Reason For Living Separately: Kerala High Court

A Division Bench comprising Justice J. Nisha Banu and Justice Shoba Annamma Eapen delivered the judgement in matrimonial appeal, and set aside a Family Court order that had rejected a joint plea for divorce by mutual consent.

The parties, married in May 2023 according to Roman Catholic rites, had jointly approached the Family Court, Thalassery, seeking dissolution of marriage under Section 10A of the Divorce Act. After completion of the statutory cooling-off period and counselling process, both parties filed proof affidavits supporting the petition.

However, during evidence, the husband stated that the couple had been living separately “without any reason.” When asked by the Family Court whether he wished to live with his wife, he did not answer the question, though he expressly stated that he wanted divorce.

Relying on this exchange, the Family Court concluded that there was no mutual consent between the parties and dismissed the petition. The wife challenged the order before the High Court.

The appellant relied on In Re: A.C. Mathivanan & Another [2016 KHC 4077], and submitted that the Court should not ask for a reason for not staying together in a petition of mutual consent divorce and is duty bound to allow divorce in a petition under Section 10 A of the Divorce Act filed before the Family Court.

The High Court considered the submissions and examined the affidavits and depositions before the Family Court. The Court noted that the husband had unequivocally stated during evidence that he wanted divorce and that the petition had been filed voluntarily. The wife had also consistently supported the plea for dissolution.

The Court noted that under Section 10 A, the Family Court is required to make inquiry as to solemnization of marriage and averments in the petition and pass a decree declaring the marriage to be dissolved with effect from the date of the decree.

The Court further added that the Family Court was not justified in inferring absence of mutual consent merely because the husband stated that the parties were living separately “without any reason” or because he left one question unanswered.

“Admittedly, Annexure A1 joint petition was filed by the appellant and the respondent. During examination, the respondent had categorically stated that he wants divorce. The Family Court ought to have looked into the aspects of whether there was a valid marriage, a mutual consent petition is filed by the parties and whether they are agreeable for a divorce.” Court noted.

The Court further noted that there was no material indicating withdrawal of consent by either party. Consequently, the finding that mutual consent had ceased to exist was unwarranted.

“In the present case, both the wife and the husband, who are the appellant and the respondent respectively, had clearly stated before the Family Court that both of them want divorce. Therefore, there was no reason for the Family Court to conclude that there was no mutual consent. Hence, the finding that one of the parties had withdrawn consent, and that a decree of divorce by mutual consent could not be granted, is unwarranted.” Court said.

The Court set aside the Family Court's judgment and dissolved the marriage.

Case Title: Dyna Scaria @ Thresiamma v Vernin Varkey @ John

Case No: Mat. Appeal 826/ 2025

Citation: 2026 LiveLaw (Ker) 249

Counsel for Appellant: Gisa Susan Thomas, G. Ashwini. A.R Divya