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Any act by a parent that results in the denial of a child's love and affection for the other parent by alienating the child is mental cruelty: Kerela HC [READ JUDGMENT]

By Shreyas Nair      24 May, 2021 02:40 PM      0 Comments
denial of childs love and affection

COUNSEL: Advocates Aswin Gopakumar, Anwin Gopakumar, Kala G. Nambiar, Renoy Vincent, Niranjan Sudhir for appellant. 

Advocates: K.R. Arun Krishnan, Deepa K. Radhakrishnan for respondent.

The Justices A Muhamed Mustaque and Dr Kauser Edappagath, in deciding a matrimonial appeal filed by a husband accusing his wife of cruelty, said, "What is more painful than having one's daughters, one's own flesh and blood, deny you. Without a question, the respondent's above actions of willfully alienating the child from the appellant constitute mental abuse."

What transpired in Court

The Court made this statement when upholding a husband's appeal against his wife. The appellant had requested a divorce based on cruelty. His previous petition was rejected by the Thrissur Family Court.

‘Their marriage, which was solemnised in 2009 under the Hindu Marriage Act, was disrupted by indignation and anger on a regular basis, causing the appellant severe mental anguish and suffering, the appellant said’. The couple had a daughter after two years of marriage.

Family friends informed the husband about the birth of his own child. He was denied access to the child and was prevented from attending the facility by the wife's family. It was said that he was only willing to see the child after the District Legal Services Authority interfered. 

"The respondent deliberately alienated the child from the appellant, depriving him of his paternal right to love the child," Gopal's lawyer claimed.

The court, recognising the merits of the appellant's case, stressed that physical assault is not needed for brutality to exist. The Bench has held that parents had a right to earn a child's attention and affection.


The Court explained,

"A child has the right to all parents' love and affection. Similarly, parents have the right to enjoy their child's attention and affection. Mental cruelty is described as any behaviour on the part of one parent that is intended to deny the child's love and affection for the other parent by alienating the child from him or her."

The Court concluded from the evidence that the appellant had experienced physical and emotional cruelty at the hands of his wife, and that there was little in the record to refute the appellant's testimony that his wife was continually abusing him and using foul words, even violently attacking his parents. The fact of parental separation was added to this, according to the Court.

Parental alienation happens when one parent, with no apparent cause, compromises or biases the child's interaction and friendship with the other parent. It is a tactic in which one parent deliberately shows unjustified negativity toward the other parents to the boy. Therefore, his application for dissolution of marriage on grounds of cruelty was accepted by the Court.

How the Court described 'mental cruelty'

The alleged misconduct does not have to be so extreme and serious as to make cohabitation almost impossible to bear, or of such a kind as to endanger life, limb, or health. It has to be more serious than "normal wear and tear in married life." The actions and behaviour of one partner should be such that the other spouse has a legitimate fear that the marriage is not healthy to proceed.

The feeling of deep anguish, disappointment, frustration and embarrassment in one spouse caused by the sustained course of abusive and humiliating conduct of other may sometimes lead to mental cruelty. Mental cruelty may also consist of verbal abuses and insults by using filthy and abusive language. Malevolent intention is not essential to cruelty. If, in the ordinary course of human affairs, the act complained of may be considered as cruel, then the complaint should be dismissed.

 "In a way, condonation is reconciliation, specifically, the desire to remit the wrong and return the guilty partner to the original position," the court ruled.

The Court observed that nothing in the record indicated that the parties had forgiven and restored their relationship or that the appellant had condoned the respondent's cruelty. The High Court ruled that the lower court's denial of the petition based on Section 23 was not legally sound.

On these terms, the appeal was allowed.



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