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This article is written by Sumanta Talukdar, student of University Law College, Gauhati University.


How does one prove their case when the burden of proof is on you to prove that you haven’t committed the offence especially when the offence is itself underpinned by a concept which doesn’t have a concrete definition of its own? What are the facts does one present in proving one’s case and what is the degree of relevance of those to that particular case in a society where there is no uniform civil code and even the codified personal laws lay prominence on customs and usages? What is the responsibility of our courts in those cases?

On 19th June 2020, a judgement granting divorce overturning the decision of the lower court was delivered by the hon’ble Gauhati high court which polarised and stirred controversy among laypersons and lawpersons alike. The case in question is of Bhaskar das v. Renu Das which stirred a controversy among lawpersons and laypersons alike regarding the observation by the Hon’ble High Court of the fact that the wife refused to wear her ‘Sakha and Sindoor’ and the effect of the same fact on the judgement.

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In this article, I objectively examine the judgement in the context of its facts and relevant laws and analyse the reasoning behind.


On 19th June 2020, a judgement/order granting divorce was delivered by the hon’ble Gauhati high court which polarised and stirred controversy among laypersons and lawpersons alike. The contentions were centred at the recognition of the role played by the observation by the Hon’ble court of the fact of refusal by the wife to wear “the Sakha and Sindoor” in the judgement. 

The judgement which was penned by Justice Soumitra Saikia and heard by a bench of Chief Justice Ajai Lamba and Justice Soumitra Saikia was widely criticised by media houses to be misogynistic, regressive, patriarchal, discriminatory and archaic in nature. Having said that, the primary contention of women revolved around the fact that in a country which constitutionally guarantees freedom of choice as a fundamental right, the judiciary cannot regulate or label the choice of women through its judgment.

On the other hand, in the said provision, the burden of proof is on the accused to prove his innocence and since each family is unique in its own sense, the question remains as to what are the facts the husband should have presented to prove his case and what are the relevance of those facts to his case? 

In India, customs, traditions and their usages hold an eminent position in the personal law jurisprudence and there is no uniform civil code as we follow the model of salad bowl of integration of diversity. 

Section 498A IPC and its reputation

Section 498 of the Indian penal code was introduced in the year 1983 to protect married women from being subjected to cruelty by their husbands and his relatives. There is no denying to the fact that majority of the women (especially in the rural areas) are denied liberty, dignity and equal respect on a daily basis. Section 498A which has been widely interpreted during the course of its jurisprudence to include mental and physical forms of cruelty has rightfully empowered women in India by increasing their access to justice by providing them a sound legal recourse especially in the rural parts of the country where the awareness regarding individual autonomy remains thin. However, there is another side to this story as well. The said provision is found to be used as a tool to unleash legal terrorism with an oblique to wreck personal vendetta. The hon’ble Supreme Court of India has also observed in various cases that exaggerated versions of the incidents are reflected in a large number of complaints.

During the year 2011, According to information received from the Hon’ble High Courts (excluding the Punjab and Haryana High Court), 3,40,555 cases under Section 498-A IPC were pending trial in various courts towards the end of 2010 and the implication of the relatives of husband was found to be unjustified in a large number of decided cases as it was found that in most of the cases, apart from the husband, two of his relations (especially in-laws) are being prosecuted.

In the instant case, the facts also consist of a similar structure.

Burden of Proof and Preponderance of Probability

At the outset, it is pertinent to understand that in this case the divorce has been granted by the hon’ble high court on the ground of cruelty which is a subjective concept to which, no standard definition applies and in such cases, the burden of proof is upon the petitioners to proof their case however, the standard of proof required to prove their case isn’t that of criminal trials where the fact needs to be proved beyond reasonable doubt but it is based on the test of preponderance of probabilities. i.e. a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. Hence, in such cases, the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue

Therefore, to prove one’s case, the petitioners are obliged to present before the hon’ble courts all the relevant facts and evidences which they believe is relevant, important and crucial in proving their case. It is also important to note that marriages in Hinduism are sacramental in nature and there is a special emphasis on the customs and traditions which are applicable to both the bride and the groom which is a part of their lifestyle. Among the Hindus, the reliance, relevance or importance of the same customs and traditions are different for different people and it depends on the usage, community, society, location and lifestyle. Customs, traditions and usages also hold an important position in the jurisprudence of personal laws in India. The relevance of traditions and customs may vary depending on the individuals but the importance of the same cannot be set aside.

Therefore, it will be erroneous to hold that presentation/ realization/ observation/ acknowledgement of the fact of refusal to wear ‘Sakha and Sindoor’ is patriarchal or regressive and it is opposed to women’s right to choose. The fact is a relevant evidence in this case where the wife has on record stated during her cross examination “That I am not wearing/putting Sindoor right now because I don’t consider him as my husband”. this also establishes the fact that the tradition of wearing ‘Sakha and Sindoor’ is a relevant tradition to the wife and not an immediately introduced tradition by the husband for the sake of the case.

Cruelty as the ground for divorce

In this instant case, the divorce was granted on the ground of cruelty under Section 13 (1) (1-a) of the Hindu marriage Act, 1955. In Oxford’s learner’s dictionary, the term ‘cruelty’ is defined as “behaviour that causes physical or mental pain to others and makes them suffer, especially deliberately”. Under English law, the term ‘cruelty’ was defined for the first in the case of Russel v. Russel where, the House of lords observed, “to constitute legal cruelty there must be danger to life or injury to health, bodily or mental or reasonable apprehension of it.”

This case resolves around mental cruelty as there were no observations of any incidents made by the court which established any act of physical cruelty by the wife to the husband. in the case of V. Bhagat v. D. Bhagat, it was observed that mental cruelty in section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with that other. Mental cruelty should be of such a nature that the parties cannot reasonably expected to live together. Hence, the situation must be such that the wronged party cannot be asked to put up with such conduct and continue to live with the other party. 

However, it is pertinent to understand that the constitution of cruelty is to be separately examined and understood from the regular and natural friction among families in the everyday life. The temperament of the spouses may not be conducive to each other and it may result in petty quarrels but that can’t be held to be a ground for divorce. The entire background of the parties to the marriage is to be studied and considered especially, in the matters of divorce where continuous acts of cruelty has to be established. The decision has to be adjudged on the course of conduct as a cumulative effect of the circumstances which would be in general, be dangerous for a spouse to live in with the other and not on the sensitivity of the partner

In this case, cruelty was adjudged upon broadly on three grounds, namely:

  1. Act of lodging criminal cases on unsubstantiated allegations against the husband and his family members.
  2. Compulsion of prevention to the husband from performing his statutory duties towards his aged mother.
  3. Absence of matrimonial harmony between the husband and the wife.

Act of lodging criminal cases on unsubstantiated allegations against the husband and his family members.

 In this case, the wife has previously filed three cases against the husband. one of them is under Section 498 IPC where, the SDJM acquitted the appellant husband, his step-mother and his sisters. During the course of this case, observations were made that allegations of serious nature are levelled against each other. However, the criminal cases filed under Sections 471/420 IPC and under Section 125 Cr.P.C. are presently pending disposal. 

The judgement relying on a landmark judgement of the Hon’ble Supreme Court in the case of Rani Narasimha Sastri vs. Rani Suneela Rani, has held that filing of criminal cases like case under Sections 498(A) IPC etc. against the husband and the family members and which are subsequently dismissed/rejected by the Family Court, is sufficient to be construed as an act of cruelty by the wife.

Tags of having criminal charges on a family drastically affects the relation of a family with the society. the numerical count of such acts will not always amount to cruelty but on the intensity, gravity and stigmatic impact of it

Compulsion of prevention to the husband from performing his statutory duties towards his aged mother.

The husband lived with his step- mother, sisters and brother prior to the marriage. It is a matter of fact that After about a month into their marriage, the wife demanded to reside separately with the husband away from the husband’s relatives in a separate house. The husband’s step-mother who was a senior citizen had no personal income. Even in the agreement dated 06.07.2013, The condition that the husband and the wife are required to live separately away from the family members of the husband and that none of the family members including the step-mother of the husband will be permitted to visit them, being present in the agreement was also not disputed by the wife during the proceedings. It was also categorically stated by the wife that because of non-compliance of the said agreement, another criminal case under Sections 471/420 IPC has been filed against the husband and his family members.

Under the “Maintenance and Welfare of Parents and Senior Citizens Act, 2007” children (which includes the son) shall mandatorily be required to maintain parents and senior citizens. In terms of the definition under Section 2 (d), a parent includes step-mother also. A bare perusal of the provisions of the Act reveals that under this Act every child including a son is mandatorily required to provide for maintenance/welfare of any parent.

The Supreme Court of India in Narendra vs. K.Meena has held that persistent effort of the wife to constrain her husband to be separated from the family constitutes an act of ‘cruelty’ to grant divorce. 

Absence of matrimonial harmony between the husband and the wife.

The marriage was solemnized on 17.02.2012 and just after a month about their marriage, the wife started demanding to reside separately with the husband away from his relatives. Moreover, the couple have lived separately since 30.06.2013. on bare perusal of the facts from the cross examination, where the wife has admitted that she has 3 more cases filed against the husband and that she wants her husband either to live separately or fulfil her monetary demands to divorce him and along with the controversial fact in question that she has admitted that she doesn’t consider the appellant as her husband and that is why she was not wearing/putting Sindoor which is an act of symbolization in itself, it is clear that there was no matrimonial harmony left between the couple which was rightly observed by the hon’ble high court in the judgement. thus, it would have been an injustice in itself to both the parties to disallow the divorce as it establishes a clear course of conduct on the part of the wife which endangers the husband’s state of mind and the cohabitation was already unendurable.

The fact that the wife was not wearing/putting Sindoor as she herself has admitted that she doesn’t consider the appellant as her husband is a relevant fact to understand the matter. It will be grossly erroneous to read the observation out of the context and call it patriarchal/ regressive in nature. It has to be understood in context of the case as, such categorical stand of the wife points to her clear intention that she is unwilling to continue her conjugal life with the husband. It is also pertinent to mention that malevolent intention is not essential to cruelty but it is an important element where it exits.


For cruelty in character it is important to establish the conduct and behaviour through a continuous period of time. The examination of the facts should be in context to the particular case and matrimonial relations between the spouses i.e. as cumulative effect of the circumstances as what constitutes to be cruelty for one man may not be the same for another man. There are various factors that bears relevance to this.

In India, especially under Hindu family law jurisprudence, a special emphasis laid on the essence of customs and traditions most of the codified laws under Hindu law allows customs and traditions to be exceptions. Although, the customs and traditions are not blanket or mandatory for everyone to follow, it does not strip off its relevance from the lifestyle of the Hindus. Hence, the facts should be examined in context of the lifestyle, usages and community of the parties in question and the hon’ble high court was rightful in doing so. As said by Lord Reid in his speech in Gollins v. Gollin, “In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people.”

However, we as a society should also be careful that we don’t open the doors of cruelty too wide where we see divorces being granted for incompatibility of temperament which is a very easy path to tread. It is pertinent to understand that as the dynamic needs and requirements of the society changes with the advancement of time, the relevance of customs and traditions will also change along with it but in the same time, it will be perilous to leave aside those who uphold their essence in their lifestyle. Legal theory of cruelty has also changed in application from time to time so until and unless the applicability of customs and traditions on civil law is completely done away with through a uniform civil code, the courts are bound to take cognizance of all the relevant facts however, we must be vigilant that we as a society while upholding our constitutional values, conserve the sanctity of marriage as an institution.

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