Steve Leo Padua vs Shalu Jose
2023 Latest Caselaw 5882 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
      THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                            &
         THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
 WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945
                MAT.APPEAL NO. 289 OF 2020
AGAINST THE JUDGMENT DATED 03.02.2020 IN O.P.NO.1521/2017
                OF FAMILY COURT, ERNAKULAM
APPELLANT/PETITIONER:

         STEVE LEO PADUA, AGED 35 YEARS,
         S/O.DR.JOHN EDWIN PADUA, INFRA HILLOCK
         APARTMENT, PHASE II, C-7, PARIJATHAM ROAD,
         CHANGAMPUZHA NAGAR P.O., KALAMASSERY,
         COCHIN - 682 033, REPRESENTED BY POWER OF
         ATTORNEY HOLDER DR.JOHN EDWIN PADUA,
         S/O.LATE LEON ANDREW PADUA, INFRA HILLOCK
         APARTMENT, PHASE II, C-7, PARIJATHAM ROAD,
         CHANGAMPUZHA NAGAR P.O., KALAMASSERRY,
         COCHIN - 682 033.
         BY ADVS.
         THOMAS JOHN AMBOOKEN
         SRI.B.SAJEEV KUMAR
         SMT.BLOSSOM MATHEW


RESPONDENT/RESPONDENT:

         SHALU JOSE, AGED 31 YEARS, D/O.EDUTHAN ANTONY
         JOSE, EDUTHAN HOUSE, OPP. CHURCH, THALORE P.O.,
         THRIKKOOR, MUKUNDAPURAM, THRISSUR - 680 306.


THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Mat.Appeal No.289/2020               2




                                  JUDGMENT

A.Muhamed Mustaque, J.

This appeal was preferred by the husband,

aggrieved by the dismissal of a petition for divorce

filed under Section 10(1)(X) of the Divorce Act. The

parties are Christians and the marriage was solemnised

on 28.07.2014. In the wedlock, a child was born on

29.12.2015 and the child is now stated to be in the

custody of the appellant/husband. The appellant is now

living in Dubai. The child is also in Dubai.

2. There were other litigations between the

parties. All the cases were settled amicably. The

respondent received all her monetary claims.

3. The parties appear to have originally had an

understanding for moving a joint petition for divorce.

That appears to have fizzled out. It appears that the

parties also lived together for a short period after

the petition for divorce was filed by the

appellant/husband. It is seen in the impugned order

that pursuant to an attempt for settlement, the

parties lived together for 7 days from 17.02.2018 and

for one week from 18.04.2018. The original petition

was filed in the year 2017. Nothing has been worked

out between them. The respondent/wife pursued her

career in law and she joined a law college in

Ernakulam.

4. The appellant/husband alleged cruelty by

referring to various actions of the respondent. It is

seen from the pleadings and the findings of the Family

Court, the parties were never able to lead a happy

married life. The various complaints raised by both

parties would clearly indicate that there had never

been harmony between them to lead a peaceful life. It

is true that cruelty has been specifically pleaded and

there was attempt to prove it before the court below.

The respondent also raised the allegations of cruelty

against the appellant/husband. There was never

matrimonial harmony between the parties. Should we

ignore these facts while considering this appeal for

granting a divorce? It is to be noted that the

respondent even refused to receive the notice sent by

this Court and has also chosen not to appear before

this Court. The adamant stand of the respondent would

clearly indicate that they do not intend to proceed

with the marriage. They have been separated for more

than the last five years. Nothing is being gained

except for the loss in terms of both mental agony and

depriving physical relation between the parties. We

often notice that in a matrimonial issue especially

related to Christian families, their belief that God

has united them and they cannot be separated,

prevents them from consenting for mutual divorce. The

constant bickering and disharmony are often portrayed

against one spouse by another in the fashion of

lawyers to claim cruelty, subjecting to a judicial

scrutiny with reference to evidence, forgetting the

fact that both cannot lead a happy married life.

Withholding consent to divorce when there is

irretrievable break down of marriage, itself, becomes

a ground for granting divorce on 'cruelty'. The

judgment of the Hon'ble Supreme Court in Naveen Kohli

v. Neelu Kohli [(2006) 4 SCC 558] and the judgment of

this Court in Beena M.S. v. Shino G. Babu [2022(2) KLT

139] held that withholding consent for mutual divorce

itself is a factor to reckon the claim for divorce on

the ground of cruelty, even though it may not have

been specifically pleaded in the petition for divorce.

What emerges in the case is that there is no

possibility of reconciliation between the parties and

one party is withholding consent wilfully. In such

circumstances, we cannot remain hapless to grant a

decree of divorce. We, therefore, are of the view

that the marriage solemnised between the appellant and

the respondent on 28.07.2014 can be dissolved.

Accordingly, we allow this appeal and dissolve the

marriage between the appellant and the respondent by

granting a decree of divorce. Ordered accordingly.

Sd/-

A.MUHAMED MUSTAQUE JUDGE Sd/-

SOPHY THOMAS JUDGE ln