This article has been written by Rutuparna Sahu from KIIT School of Law, Odisha. This article talks about how cruelty can be considered as a ground for divorce. 

Introduction

As an Indian girl, I have always been encountered with this term “pati parmeshwar” which means your husband is your God. No doubt we the women of this century do not believe in such a concept anymore but there are people especially the women who still think their survival is difficult without a spouse. Here the women are not to be blamed entirely because little did they know their so-called “parmeshwar” concept was a myth. Every relationship goes through different phases so does a marriage, but is it valid to abuse the rights that the spouses have over each other? A marriage never comes with a condition, in fact it is a tag to a relationship and no person marries to eventually get divorced. Everyone puts an effort to save their relationship by keeping aside all the differences because marriages in India hold major importance but things are different when you are no longer able to handle the situations. 

What is cruelty?

Cruelty refers to violent acts. However, a mere quarrel, petty outrageous behaviour or differences between the spouses does not come in the ambit of cruelty because this is something that is common in a day to day married life. Conducts that would amount to cruelty should be grave and severe in nature. Grave violence doesn’t always mean physical violence. Though physical violence is an essential factor that constitutes cruelty but apart from that a continuous process of ill-treatment or mental or physical torture to either of the spouse would also amount to cruelty. 

Cruelty as a ground for Divorce 

The day to day situations in a matrimonial life creates an ambiguity within the couples to lead their life with each other peacefully. Although there is no such exhaustive definition to what all condition would lead to an offence of cruelty but if we go through a case of marital abuse happening around us, then we can conclude of certain conditions such as:

• The physical violence on the spouse. 
• Having affairs or committing adultery with not just the spouse’s knowledge but even publically accepting it.
• And also in cases where either of the spouses is falsely accused of committing adultery.
• The constant manifestation of agony, rage with the addition of yelling or abusing at the spouse. 
• Demoralizing and restricting the spouse by every means to be an independent individual and compelling the spouse to be in a marital relationship where the spouse is left with no other option but to depend on the other. 
• Not disclosing any fact or incident of an acquired sexually transmitted disease while they are already into marital life. And the list goes on.

The conduct by either of the spouse should be of such a nature which should fall in the ambit of cruelty under the Matrimonial Law. The Court needs to look after all the background and circumstances because of which the couple wants to get separated. Basically, the Court has to investigate the reason for the deterioration of the marriage.

Divorce in general terms means the dissolution of a marriage with the help of a lawyer and by the prescribed Law. One can go for divorce when either of the parties or both of them want to get separated and free themselves from the existing relationship. However, every state has its own laws regarding marriage. 

How cruelty was established as a ground for divorce

If we study the history of the Hindu Marriage Act, 1955, cruelty was never taken into consideration as a ground for divorce but was applied only in cases of judicial separation. Here the aggrieved party or the petitioner has to prove that the cruelty is so grave or so unbearable that it is getting difficult to carry forward with his or her spouse (the defender). But this was upheld by the Supreme Court in a landmark case of Narayan Ganesh Dastane Vs. Sucheta Narayan Dastane in 1975. 

This led to an amendment in the Act where cruelty as a ground for divorce was added into the Act with the inclusion of legal definition to the term cruelty under this Act in 1976. However, the Court also held that the courts should decide the case on grounds of cruelty only based upon the subject matter of the case. After the amendment in this act, there was not much distinction between the grounds of cruelty resulting in judicial separation and grounds of cruelty resulting in divorce except for two words that are added are “persistently or repeatedly”. By this addition, the establishment of cruelty as a ground for divorce was given much more importance than proving it as a ground for judicial separation. This ground was added under Section 10(1) of the Hindu Marriage Act,1955 and now “Cruelty” has a self-contained definition.

Other provisions under the law 

Section 498A of IPC deals with the offence of cruelty against a wife by her husband and/or in-laws. 

Ingredients of Section 498A  

• The woman must be legally married to her husband.
• The woman must have been subjected to some sort of cruelty or marital abuse.
• Such cruelty must be done by her husband himself or the relatives of the husband and here the terms relative only includes the husband’s parents, brothers and sisters and nobody other than them, not even any close friend or any distant relatives. 
• However, if the husband commits such cruelty he shall be liable for imprisonment which may extend to three years with fine. 

Explanation to Section 498A under the Indian Penal Code 

The expression “cruelty” has been defined in a wider perspective under this section, that is:

1. The commencement of any wilful conduct of such a nature which would likely drive the wife to commit suicide or would cause her grave injuries or danger by inflicting physical or mental harm to life, limb or health of the wife. 
2. Harassing the wife where such harassment is done with a view to coerce her or her relations to meet any unlawful demands for any property or valuable security or is done in the result of her or any of her relation’s failure in meeting such demand.

Related case law 

In the case of Reema Aggarwal Vs. Anupam and Ors of 2004, Reema was harassed by her husband Anupam, mother-in-law, brother-in-law and father-in-law for not being able to provide enough dowry. The accused forced Reema to put some acidic and poisonous substance in her mouth to end her life because of which she was rushed to the hospital. The Court held that the husband of the second wife who marries her during the subsistence of earlier legal marriage is not the husband within the meaning of Section 498A because it was the second marriage of both Reema and Anupam and hence, the second wife cannot invoke this section. The respondents were acquitted of the charged offences under Sections 307, 498A of IPC. 

Cruelty under Section 13(1)(ia) of the Hindu Marriage Act talks about the behaviour of one spouse towards the other which results in a reasonable apprehension in the mind of the latter that it is not safe for him or her to continue to stay in the matrimonial relationship anymore with the other. 

 How does cruelty work in India?

• Cruelty even being a grave offence is still less talked about. Because we Indian are so used to it, aren’t we? Even if we try our best we still cannot change everyone’s mindset because here in India women seldom come up with any complaint against their husbands and in-laws because of fear, family pressure, societal pressure or lack of awareness or no access to police or failure in work on part of the police. And at last, they settle themselves by suffering violence and in addition to that, all these above-stated pressures. 

Hence, the Court has held that the failure to establish exact dates, timings and details about the manner of cruelty are to be treated secondarily. 

• Cruelty can be both physical and mental depending upon the circumstances and many other factors such as education, social background, the sensitivity of individual victim. What amounts to cruelty is a question of fact. The main intention behind all these acts is to safeguard a woman’s dignity in her matrimonial home. Matrimonial relationships between the wife with her husband and her in-laws, their different cultures, state of health and their daily interactions determine cruelty. 

Kinds of cruelty

Now that we have come this long discussing cruelty, we know one thing for sure that the courts keep on amending and widening the scope of cruelty with respect to women. So cruelty can be categorised into two types:

Physical cruelty

Hereby under physical cruelty, we are not referring to any violence that takes place anywhere outside but the matrimonial physical violence resulting in cruelty. Any physical violence, bodily injuries, the threat to life, limb and health apparently causing apprehension in the mind of the woman would constitute physical cruelty on the spouse. Establishing Physical cruelty is not much of a task because one of the most common reasons for divorce is physical violence. ‘Habitual assaults’ under the Muslim Marriage Act, 1939 is one of the grounds for the dissolution of a marriage. Assault in itself is a grave offence as stated under Section 351 of the Indian Penal Code. Under the Parsi Marriage and Divorce Act, 1936, causing grievous hurt is taken as a ground for divorce. Section 320 of the Indian Penal Code defines grievous hurt. Hence, we can conclude that assault, grievous hurt and cruelty are somewhat interrelated to each other and do not pertain much of a difference. 

Mental cruelty 

Now it is not just about physical cruelty, mental cruelty has the same weightage compared with physical cruelty. Ascertaining mental cruelty is kind of more challenging than proving physical cruelty. Apart from the physical harm if any woman is inflicted with any kind of mental stress or has to compromise her mental peace for her spouse or have to constantly go through mental agony, then that amounts to mental cruelty. However, we will never come to know about the psychology of an individual and sometimes people are hypersensitive in nature so in that case if someone accuses someone of having exhibited cruelty then it cannot be 100% true. Therefore the person will not be entitled to ask for a divorce on grounds of cruelty. Mental strain can happen in various ways so there are no specific criteria which would amount to mental cruelty for example, if the spouse is forcing the wife to do something without the consent or willingness of the wife. Anything not expressed or hidden by the spouse which creates a sense of doubt also amounts to mental cruelty. 

Is a man entitled to a divorce?

In the landmark judgement of Mayadevi Vs. Jagdish Prasad in February 2007, the Supreme Court held that any kind of mental cruelty faced by either of the spouses not just the woman but men as well can apply for a divorce on grounds of cruelty. In this case, the respondent filed an application of divorce after a repeated course of cruelty inflicted by his wife and as alleged by the husband (respondent) that the wife did not provide food to him and his children and blamed the husband and his family members instead. 

Hence, a man is also entitled to divorce if he is inflicted with any kind of cruelty. 

Conclusion 

It is true that there are a lower number of complaints lodged for divorce on grounds of cruelty. Because people any way prefer settling themselves with whatever condition they are in. But you need to understand that the provisions made are going to help and safeguard you from ill-treatments. So, laws may vary according to particular State Laws or the grounds which would fall under the scope of cruelty. So in my opinion, if at all any of you want to know about the grounds that would fall under the scope of cruelty then you should consult a local lawyer or study the related statutes of your state.

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