Long Non-Cohabitation Due To Deliberate Avoidance Not Ground For Divorce When Other Spouse Has No Fault & Is Ready To Continue Marriage: Kerala HC

In a noteworthy judgment, the Kerala High Court on Wednesday made several important observations on matrimonial cruelty and the scope of revival of condoned matrimonial offences. A Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas dismissed an appeal filed by a woman seeking to reverse the order of a Family Court which rejected her plea for divorce finding that she had failed to prove any form of matrimonial cruelty allegedly meted out on her."It is true that in order to attract 'cruelty' in matrimonial life, there is no need of any physical violence. Cruelty can be either mental or physical. But when there is specific allegations of physical cruelty, the person alleging the same is bound to prove it."The Court added that when the other party is vehemently opposing the allegations levelled against him, some sort of cogent evidence is expected, especially when there was every opportunity to adduce the same.It further held,"The period of non-co-habitation however long it may be, if it was due to deliberate avoidance or due to pendency of cases filed by one party, the other party cannot be found fault with, when the other party is still ready to continue his/her matrimonial life, and no grounds recognized by law are established against the other party to break their nuptial tie. So legally, one party cannot unilaterally decide to walk out of a marriage, when sufficient grounds are not there justifying a divorce, under the law which governs them, saying that due to non-co-habitation for a considerable long period, their marriage is dead practically and emotionally."Other important findings in the case: 1. Concept of cruelty differs from person to person; a few isolated instances over a period of years will not amount to cruelty. 2. When spouses are incapable to arrive at a consensus for dissolving their marriage, the Court can only go by the law and procedure. Their marriage can only be dissolved if they satisfy the statutory requirements.3. A family is an amalgamation of distinct individual interests; it is difficult to define and demarcate the rights and duties of husband and wife in matrimonial life. 4. No matrimonial offence is erased by condonation; it can revive and give rise to a cause of action for dissolution of marriage if the offending spouse takes unfair advantage of the benevolence shown by the wronged spouse and takes to matrimonial misdeeds again.5. Long period of non-co-habitation due to deliberate avoidance or pendency of cases filed by one party is not a ground for divorce when the other party cannot be found fault with and is ready to continue the matrimonial life.Background: The appeal was filed by a woman challenging the degree of a Family Court rejecting her prayer for divorce. According to the appellant, during her 12 year long stay at the matrimonial home, she was subjected to matrimonial cruelty by her husband and her in-laws in the name of dowry. She alleged that she was not permitted to pursue her higher studies and was neglected by her husband. The appellant contended that when her father tried to enquire about the cruelty, she was asked to vacate the matrimonial house. Thereafter, she has been living separately in a flat since 2011.According to her, pursuant to intervention by their friends and family, the respondent also joined her at the flat soon. However, within a month, he allegedly left the flat threatening to take away their son from her. Thereafter she filed for divorce, return of gold ornaments, custody of the child, and also a petition under the Protection of Women from Domestic Violence Act against him.Nevertheless, again after persuasion from her family and friends, she agreed to a reunion and withdrew all the cases. The respondent started living with her again from 2015 onwards. It is the case of the appellant that even after this reunion, there was no mental unity or physical intimacy between them and that now they have been living separately for two years. She argued that their marriage was irretrievably broken. Accordingly, she moved the Family Court for a divorce on the ground of cruelty, but this was dismissed. Aggrieved by the same, she reached the High Court. Appearing for the appellant, Senior Advocate Sumathy Dandapani assisted by Advocate Millu Dandapani argued that though the cruelties alleged in the earlier divorce petition was condoned, since the respondent continued his ill-treatment towards her, it will revive and that she is entitled to get a decree of divorce on the grounds urged in the earlier petition as well.Advocates Dinesh R. Shenoy and A. Joseph George appeared for the respondent and denied all the allegations. Significant Findings: No Proof Of Matrimonial CrueltyThe Court found the following contradictions in her version: 1) Although she had alleged in her plea that she was asked to vacate the residence, according to her testimony, she shifted to a flat due to constant abuse from the respondent and his...

Long Non-Cohabitation Due To Deliberate Avoidance Not Ground For Divorce When Other Spouse Has No Fault & Is Ready To Continue Marriage: Kerala HC

Hannah M Varghese

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