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Judgment
(A. Muhamed Mustaque, C.J.)
The Appellant-Husband has preferred this appeal challenging the dismissal of his application for divorce.
The Appellant and Respondent were married in accordance with the Hindu form of customary rites and rituals on 25.11.2019, at Kirateshwar Shivalaya Mandir Legship, Gyalshing, Sikkim and a girl child was born out of their wedlock. She is now five years old. They have been living separately for more than two years.
The Appellant/Petitioner filed a petition for divorce on the grounds of cruelty and desertion. The Learned Family Court, Gyalshing, dismissed the Petition, holding that the Appellant failed to establish the grounds pleaded under The Hindu Marriage Act, 1955.
In the Appeal, this Court interacted with the parties and attempted to facilitate an amicable settlement. Several attempts were made by this Court to arrive at a settlement. Ultimately, the parties agreed to resolve the matter by dissolution of their marriage.
A Deed of Compromise dated 08.07.2026 has been jointly executed by the Appellant and Respondent. The Appellant also paid a sum of ₹15,00,000/- (Rupees fifteen lakhs only). All the terms and conditions of the Deed of Compromise have been mentioned in the joint application submitted before this Court in I.A. No.02 of 2026.
The petition for divorce was filed in the year 2024 and more than six months have elapsed thereof before this Court. No doubt, this Court does not treat this application as a joint petition submitted by the parties for divorce, but this Court has to note the fact that more than two years have lapsed since the institution of the petition. Even then the parties are unable to arrive at a settlement for the purpose of leading their life jointly. Reconciliation has become impossible.
The Hon’ble Supreme Court and many other High Courts have held that the wife or one of the parties withholding consent to a joint application for divorce amounts to cruelty. The Hon’ble Supreme Court in Naveen Kohli v. Neelu Kohli1 has held that where the matrimonial relationship has broken down irretrievably and there is no possibility of the parties resuming their matrimonial life, the adamant refusal of one spouse to consent to divorce, in the facts and circumstances of the case, may constitute mental cruelty. The Court observed that the Respondent’s refusal to agree to divorce by mutual consent, coupled with her callous attitude, amounted to mental cruelty.
The Kerala High Court in Beena M.S. v. Shino G. Babu2, held 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 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 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 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.”
Though in this case, many other allegations have been raised by the Appellant against the Respondent but none of the allegations have been proved before the Court. The Court cannot remain oblivious to the real situation of the parties. Dragging the case and fighting before the Court will not serve any purpose for both of them. The Court is required to take into consideration the stage which the parties have reached, particularly when it has become impossible for them to reconcile. The Court can very well grant divorce where the circumstances demonstrate that the marriage has irretrievably broken down and that continuation of the matrimonial tie would serve no useful purpose.
The Hon’ble Supreme Court in the concluding paragraph in Samar Ghosh v. Jaya Ghosh3 held that long separation and one party refusing to serve the matrimonial tie itself would constitute cruelty. The relevant paragraph is extracted hereinbelow:-
Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties, in such like situation, it may lead to mental cruelty."
The Apex Court in the case of Naveen Kohli (supra) has held that once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The Court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective, are bound to be a source of greater misery for the parties.
The Apex Court in K. Srinivas Rao v. D.A. Deepa4, held as follows:-
“31.We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried up there is hardly any chance of their springing back to life on account of artificial reunion created by the court's decree.”
Thereafter, the Kerala High Court following the principle enunciated by the Hon’ble Apex Court in Sreedharan v. Ahsa5 has held as follows:-
“4.We are not referring to the pleadings and evidence to hold the allegation of cruelty. We are sure that mutual consent for divorce failed in this matter as the bargaining could not meet the level of expectation. The court rooms cannot be replaced to allow the parties for a battle for grooming their egos and idiosyncratic behaviour, The Court is established for genuine people who honestly dispute on the cause. If they cannot live together even by sharing residence for more than a decade, it can be presumed that sense is lost on both. The idea of no fault divorce is making the people to realise that there is a sensible way of parting on a mutually agreed terms. Withholding mutual consent in a failed marriage is nothing but cruelty.”
In V. Bhagat v. D. Bhagat (Mrs)6 the Supreme Court has opined as follows:-
“21................ Irretrievable breakdown of the marriage is not a ground by itself. But, while scrutinising the evidence on record to determine whether the grounds alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. ....................”
In light of the Deed of Compromise as well as in the fact that the Court has noted that the parties have reached such a situation where they are not able to amicably settle or reconcile, we are of the view that a decree of divorce can be granted.
Accordingly, this Court dissolves the marriage between the Appellant and the Respondent forthwith.
In respect of all other aspects, the joint Deed of Compromise filed before this Court along with the I.A. No.02 of 2026 would form part of the decree of divorce.
The parties shall abide by the Deed of Compromise filed before this Court.
Accordingly, the Appeal stands disposed of as above.
Records of the Learned Trial Court, if any, be remitted forthwith along with this Judgment.