This article is written by Shalu Gothi, B.A.LLB(Hons.) from FIMT, School of Law, New Delhi. This article talks about cruelty as a ground of divorce in the Hindu Marriage Act,1955. 

Introduction

Cruelty is a ground of matrimonial relief under all the personal laws prevailing at this time. However, the situation was not always like this, cruelty has been prevailing since ancient times all around the world in a very brutal form; even many renowned jurists justified and supported it. For example- under the old English Law, Blackstone declares that “the husband could correct his wife even by beating her”.

In Hindu ancient history, there is a similar situation too. According to Manu “if required, the husband has all the right to beat his wife but only from robe or splitting bamboo so that no bones were broken in the process”. Considering the statements of these people we can suppose that the status of women in earlier society was miserable, and there was no such law that governed the matter of cruelty in matrimonial life and after considering various stigmas in the personal life of a Hindu, the parliament decided to enact the law related to the hindu marriage and cruelty called The Hindu Marriage Act, 1955 came into existence.

Meaning of Cruelty

Cruelty generally means the matrimonial act which causes pain and distress of any kind such as physical, mental, economical to others. The concept of cruelty is subjective which always depends on time, place or person, facts and circumstances of the case. So what we consider cruelty today was not so considered cruelty a few years back or what we do not consider today might become cruelty after some time. So, for this reason, under The Hindu Marriage Act, 1955, the legislature deliberately didn’t give any definition to the word ‘cruelty’ and it has been left to the Court to decide it.

Evolution of cruelty

Before The Marriage Laws (Amendment) Act 1976, cruelty was the only ground of judicial separation.  Under this provision, the word ‘cruelty’ is used in a very restricted sense that ‘if any party treats the other with such cruelty which causes reasonable apprehension in the mind of the other that it is injurious and harmful for him/her to live with the other, then it becomes the valid ground for judicial separation’. But after the amendment in 1976, the wordings of this section “as to cause a reasonable apprehension in the mind of others that it is harmful and injurious for him to live with another party” was changed. By adding subclause (i-a) in section 13(1)(i)  cruelty became the ground of divorce too.

These changes were upheld after the landmark judgment of Narayan Ganesh Dastane v. Sucheta Dastane. 

Distinction between cruelty as a ground of judicial separation and cruelty as a ground of divorce

Cruelty as a ground of judicial separation   {Section 10(1)(b)}	Cruelty as a ground of divorce {Section13(1)(i)(i-a)}
According to this section, the petitioner can file a petition of judicial separation at any time before or after the solemnization of the marriage.	Under this ground, the petitioner can file a petition of divorce only after the solemnization of marriage.
Apart from cruelty, the wife can also make an application of judicial separation on the other grounds mentioned under Section 13(2).	The husband and wife can make an application of divorce only on the grounds of cruelty.
Under this ground, the marriage between the parties is not going to end completely but will only be suspended temporarily.	Under this ground, the marriage between the parties is ended totally.
After the passing of the decree under this ground, there is a possibility for reconciliation by the Court, if the Court finds out that it is just and reasonable to do so.	After passing the decree under this ground there is no possibility for reconciliation by the Court.

Kinds of cruelty 

Cruelty is generally considered as two types:-

Physical cruelty

When one spouse does an act of violence of such kind which causes injuries to the body, limbs, health of the other spouse, then it is considered as an act of physical cruelty. This type of cruelty is very easy to carry out. In the case of Swati v. Arvind Mudgal, 2015 the Court held that “In order to constitute physical cruelty one or two acts are more than sufficient even if the single act may be so grave and weighty that it could be satisfied the test of cruelty amounts to physical cruelty”.

Mental cruelty 

This type of cruelty is not mentioned anywhere. It is always left at the discretion of the Courts which depend on the facts and circumstances of every case. But at the time of judgment, the Court has to consider various factors: social values, community, culture, status, thinking process, and surroundings of the party to the case.

Cruelty in the eyes of the Court 

The concept of legal cruelty changes according to the changing modes of society, with the advancement of social concepts and standard of living. Nowadays physical cruelty is not only necessary ground to establish legal cruelty, but there are also some other grounds like continuous ill-treatment, cessation of marital intercourse, indifference on the part of the husband and the assertion on the part of the husband that the wife is unchaste, are all factors which lead to mental or legal cruelty.

What amounts to cruelty?

There are no definite parameters available according to which we can determine cruelty. It always depends on the facts and circumstances of each case. There is certain conduct that is generally seen as cruelty.

• Unsoundness of mind 

If any party to the marriage is suffering from an incurable mental disease and if this fact gives rise to a reasonable apprehension in the mind of the other party that it will be injurious and harmful to live with that party, then it is generally considered as a sufficient ground of cruelty. In the case of Smt. Uma Wanti v Arjan Dev AIR 1995 P&H 312, it has been held that “although the wife is not an unsound person but her peculiar way of behavior towards him is sufficient to constitute legal cruelty”. 

• Attempt to commit suicide

It has been considered that several attempts to commit suicide or even threat of it is sufficient to cause considerable mental pressure on the other party. In the case of Harbhajan Singh Monga v. Amarjeet Kaur, the Madhya Pradesh High Court held that “threats of committing suicide by one spouse constitutes cruelty to others thus it is valid legal ground to seek divorce”. 

• Making false allegation

Making false allegations about the character of the other party proves to be personal grounds for seeking a divorce. In the case of Jay Dayal v. Shakuntala Devi, the Court has said that “making a false allegation of physical and mental torture against husband amounts to mental cruelty”.

• Refusal to have sexual intercourse

Sexual intercourse plays a very important role in a happy and harmonious marital relationship. In the case of Anil Bharadwaj v. Nirmlesh Bharadwaj AIR 1987, the Court decided that if any party to the marriage having a healthy physical condition refuses to have sexual intercourse without any reason and especially when the parties are young and newly married, it would amount to cruelty and would entitle the other party to a decree of divorce.

• Defamation

Regularly disrupting and insulting the spouse in front of society which causes pain and mental agony to the other would amount to mental cruelty. In the case of Vishwanath S/o Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal, 2012, the Court held that “the motive was to demonise the reputation of the husband in the society by naming him as a drunk womaniser and man of bad habit. This constitutes mental cruelty and this conduct of the wife has frozen the emotion and snuffed out the bright candle of feeling of the husband thus it is clear that with this mental agony, pain, and suffering the husband would not be able to live with the wife, therefore entitled to decree of divorce”. 

Exceptions to Cruelty

Section 23 (1) Condonation by the victim party 

According to this Section, if any party after filing the petition of divorce, does any act which amounts to condonation of cruelty, then this may become sufficient ground for any Court to cancel his petition for divorce.

For example, Mr. A is a victim of cruelty by his wife and files a petition of divorce in the Court. But after hearing the news of the accident, he goes to her and helps her to recover. This act of the husband would be considered as condoning cruelty towards the respondent therefore the Court will cancel his petition of divorce.

Section 23 (1)(b) Effect of Condonation of Cruelty

In any proceeding whether defended or not, if any party to the case has condemned the cruelty then the Court would cancel his/her petition of the divorce.

Section 23(2) The fountain of love and affection 

This Section simply casts a duty on the Court to check or test whether the fountain of love and affection between the parties is totally dried up or not before granting any decree of divorce. If it is not, then the Court makes every effort to bring the parties to reconciliation. However, it is difficult to know the same. 

Landmark cases

Dr. Narayan Ganesh Dastane v. Sucheta Narayan Dastane(AIR 1975 SC 1534) 

Facts

In this case, the appellant Mr. Narayan Ganesh Dastane was a well educated and qualified man who got married to Mrs. Sucheta, the respondent. Their families arranged their marriage in April 1956.  But soon after the marriage through the various incidents, the husband found that his wife was not mentally stable and then, he filed an application of divorce.

Allegations of husband 

• The father of the respondent did not give any information about the psychological condition of the respondent initially.
• On various occasions, she lost her temper, insulted him and his family which caused inconvenience to him at his workplace and home. 
• He found various letters of the respondent which were sent to her family and friends which indicated her problematic viewpoint related to him and his family.

Allegations of wife

• The letters mentioned by the appellant were created by her only, but under the pressure of the appellant.
• The appellant was abusing his own wrong and did not have the courage to accept it.
• The appellant was continuing sexual relations with the respondent after knowing the mental condition of her which caused 3-month pregnancy at the time of leaving the wrecked marital home.

In this case, Justice Chandrachud Y.V. laid down following the 5 tests to determine whether the respondent conduct would amount to cruelty or not:

1. The alleged act constituting cruelty should be proven according to the law of evidence;
2. There should be apprehension in the petitioner’s mind of real injury or harm from such conduct;
3. The apprehension should be reasonable having regard to the conditions of the parties;
4. The petitioner should not have taken advantage of his position;
5. The petitioner should not have condoned the acts of cruelty.

After considering facts and circumstances of this case on these aforesaid grounds  the Court gave the following judgement:

Held

In the present case, the Court found that the appellant contention regarding his wife being unsound mind was fabricated by him. The contention regarding the respondent inflicting cruelty has been proven to exist, but the appellant act of engaging sexual intercourse with respondent would condone the cruelty inflicted by the respondent. The appellant condoned the respondent after which she did not act in the manner she did before the condonation thus the respondent will not be held liable for cruelty.

Smt. Maya Devi v. Jagdish Prasad (AIR 2007 SC 1426) 

In this case, the husband alleged that his wife, Mrs. Maya, does not provide food to him, used to threaten him to implicate false charges of dowry against him or his family and often said that she will kill his whole family. 

After considering all the facts and circumstances of the case, the Supreme Court held that “although the expression of cruelty has not been defined in the Act, it may be physical or mental, direct or indirect. And in this case, the acts of the respondent were sufficient to cause apprehension in the mind of the appellant that it is not safe to stay with her. Thus it is mental cruelty against the husband. In this case, the Court also suggests that the question of mental cruelty has to be considered in light of particular norms of a marital tie in every society which depends on societal values, status, culture, and surroundings of the parties to the particular case.

Shobha Rani v/s Madhukar Reddi (1998 AIR SC 121)

In this case, the appellant, Shobha Rani, accused her husband and his family of demand for dowry. The High Court justified their demand as she is an upcoming doctor, there is nothing strange to ask her for some money. However, the Supreme Court treated that act as mental cruelty and held that the word cruelty has not been defined anywhere, it is a question of fact and degree, and it may only be inferred by its impact on the mind of the person who bears it, and in this case, the conduct of respondent caused very bad impact on appellant’s personal and professional life, thus it was decided that mental cruelty was inflicted on her.

Conclusion

The cruelty of any kind whether physical or mental, either by husband or wife should not be accepted in any condition because it violates the basic right of dignity or liberty given under the Constitution of India. So, at last, we can conclude that anybody can reach the Court on the grounds of cruelty but each case is decided upon its facts, so the relief granted is not always the same in every case; the Court decides it according to its own interpretation within the boundary of the law.

References

• https://shodhganga.inflibnet.ac.in/bitstream/10603/132441/12/12_chapter%206.pdf
• http://ijariie.com/AdminUploadPdf/Cruelty___a_ground_for_matrimonial_relief_ijariie5849.pdf
• Cruelty as Grounds for Divorce – Vakilsearch
• ijtr.nic.in › articles › art12PDF
• https://www.worldwidejournals.com/paripex/recent_issues_pdf/2014/January/January_2014_1389889205_5b59f_28.pdf

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