Ill-Treatment of Children by Spouse Constitutes Cruelty under Section 10(1) of the Divorce Act: Kerala High Court Upholds Divorce and Enhances Maintenance
Isabella Mariam
The High Court of Kerala, Division Bench of Justice Sathish Ninan and Justice P. Krishna Kumar upheld the dissolution of a marriage granted by the Family Court on the ground of cruelty, finding that the wife’s conduct towards the husband’s children and her attempted suicide without reasonable cause created a situation injurious for marital cohabitation. At the same time, the Bench enhanced the monthly maintenance awarded to the wife from ₹6,000 to ₹15,000, holding that her needs and the husband’s earning capacity warranted a higher amount. The decision resolved cross-appeals challenging both the divorce decree and the adequacy of maintenance .
The dispute arose from a marriage solemnized in April 2006 under Christian law. The husband, a technician employed at a US military base in Afghanistan and a widower with two minor children, alleged that his second wife failed to care for his children and ailing father, treated the children with hostility, and caused him mental distress. He further claimed that she attempted suicide by consuming an excessive quantity of medication without reasonable cause and that these incidents created strain in their marital relationship.
The wife denied the allegations, maintaining that she had attended to the husband’s father and cared for the children with affection and diligence. She contended that she had been subjected to harassment by the husband and his son, which led to her emotional outburst and ingestion of tablets. She also stated that she had raised concerns about certain issues in the children’s conduct only with the intent of guiding them.
The wife filed a claim seeking monthly maintenance, stating that she was unable to support herself and required ₹50,000 per month to meet her needs, alleging that the husband earned a substantial salary from his overseas employment. The husband disputed this, asserting that he had regularly sent money for household expenses and that the wife had her own income from tailoring work. He also claimed that she had left him without justification.
The Family Court heard the divorce petition and the maintenance claim together. The husband relied on his own testimony, statements from his two children, and evidence from individuals acquainted with the family. The wife testified on her own behalf and produced a document in support of her case. The statutory provision primarily invoked was Section 10(1)(x) of the Divorce Act, relating to cruelty as a ground for dissolution of marriage.
The Bench noted, “If the wife is guilty of ill-treating the children, certainly it would cause reasonable apprehension in the mind of the husband that it would be harmful or injurious for him to live with her.”
The Court cited earlier precedents, including A: husband v. B: wife (2010 (4) KLT 434), which held that cruelty in matrimonial relationships must be interpreted uniformly across personal laws. The judgment recorded, “The nature of cruelty which would entitle a spouse to divorce must certainly be identical in all religious faiths, as the law cannot recognize varieties of cruelty based on religion.” The Bench further observed, “To live without the threat or risk of matrimonial cruelty must be reckoned as a Constitutional fundamental right guaranteed under Article 21 of the Constitution.”
The Court referred to the testimony of the husband’s son, examined as PW6, who provided a detailed account of physical and emotional abuse by the mother. The Court noted that his statements, “none of which were challenged in cross-examination,” were corroborated by other witnesses, PW3 and PW4. The Bench found the wife’s denial insufficient to discredit these testimonies.
The Court stated, “In her pleading, she attempted to justify her act by contending that it was because of the ill-treatment of the petitioner and his son that she was forced to do so. However, when cross-examined, she contended that it was because she had a cold she took an excessive number of pills.” The Bench held that such behaviour amounted to cruelty, observing, “It is settled law that making such suicide attempts or threats would amount to cruelty on the spouse.”
Based on the totality of evidence, the Court concluded that the Family Court’s findings were justified and that the husband had succeeded in proving cruelty as contemplated under the Divorce Act.
It held, “We find no justification for limiting the quantum of maintenance to Rs. 6,000 per month, considering the admitted nature and income of the petitioner’s job.” The Court further stated, “In our estimation, the respondent requires at least Rs. 15,000 per month for meeting her needs.”
Relying on precedents such as Jasbir Kaur Sehgal v. District Judge, Dehradun and others [(1997) 7 SCC 7] and Rakhi Sadhukhan v. Raja Sadhukhan (AIR 2025 SC 3268), the Bench held that the determination of maintenance must consider the husband’s income and living status. The judgment noted, “While fixing the maintenance, the income and living status of the husband is of relevance.” The evidence established that the husband, being employed at a US military base, had the means to pay the enhanced maintenance.
“R.P.(FC) No.384/2019 is partly allowed by enhancing the amount of maintenance to Rs.15,000/- per month from the date of the petition.”
Advocates Representing the Parties:
For the Appellant/Respondent: Shri D.G. Vipin, Sri. Karol Mathews Sebastian Alencherry
For the Respondent/Petitioner: Sri. Abraham George Jacob, Shri. Jibu P. Thomas, Shri. C. Muralikrishnan (Payyanur), Sri. Enoch David Simon Joel, Sri. S. Sreedev, Sri. Rony Jose, Shri. Leo Lukose, Shri. Derick Mathai Saji, Shri. Karan Scaria Abraham
Case Title: Emilda Varghese @ Rajani v. Varghese P. Kuriakose
Neutral Citation: 2025: KER:72628
Case Number: Mat. Appeal No. 596 of 2019, RPFC Nos. 149 of 2023 & 384 of 2019
Bench: Justice Sathish Ninan and Justice P. Krishna Kumar
