Cruelty : As a Ground of Divorce in India

  
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Latest news April 14, 2019 33

Cruelty: As a Ground of Divorce in India 




Divorce cases on the ground of cruelty are by far the most common of the matrimonial cases contested before the courts in India. 



There is no common law of divorce in India and the law applicable for divorce for the parties depends upon their religion or the manner or the law as per which their marriage was solemnized. 



To put it precisely, Divorce among Hindus, Buddhists, Sikhs and Jains is governed by the Hindu Marriage Act, 1955.Divorce among Christians is governed by the Divorce Act, 1869. Divorce among Parsis is governed by the Parsi Marriage and Divorce Act, 1936.Divorce among Muslims is governed by their customary (Islamic texts) law for men and by the Dissolution of Muslim Marriage Act, 1939 for women.Divorce among couples who got marriage under the provisions of Special Marriage Act, 1954 is governed by the provisions of the Special Marriage Act, 1954 itself irrespective of religion of parties. 



However, most of the grounds on which a husband or wife can file divorce petition against his wife or her husband are common in all the aforesaid legislation. And more particularly, all the aforesaid laws, have provisions which entitles a husband or wife to file and seek divorce from his/her spouse on the ground of cruel treatment by his/her spouse. 



Section 13 (1) (ia) of the Hindu Marriage Act, 1955 states that any marriage may be dissolved on a petition by either the husband or the wife on the ground that the other party has, after the solemnization of the marriage, treated the petitioner with cruelty. There is similar provision for divorce on the ground of cruelty in Section 27 (1) (d) of the Special Marriage Act, 1954 which entitles a husband or wife to file divorce petition on the ground of Cruelty. Again, there is similar provision for filing divorce case on the ground of cruelty in Section 32 (dd) of The Parsi Marriage and Divorce Act, 1936. There is similar provision in Section 10 (1) (x) of Divorce Act, 1869 as well which entitles a Christian husband or wife to file divorce case on the ground of cruelty. Further, a Muslim woman can also file divorce case on the ground of cruelty provisions whereof is contained in Section 2(viii) of The Dissolution of Muslim Marriage Act, 1939.



However, the legal conception of cruelty and the kind or degree of cruelty necessary to entitle a husband or wife for divorce has not been defined by any statute in India relating to marriage and divorce. This is just as well, since actions of men/women are so diverse and infinite that it is almost impossible to expect a general definition of Cruelty which could be exhaustive and not fail in some cases. This must, of course, depend on the facts of each case. The circumstances vary infinitely from case to case and the modes of life involved at times present sharp contrasts. The treatment accorded to the petitioner must be such as to cause such apprehension in the mind of the petitioner that cohabitation will be so harmful or injurious that she or he cannot reasonably be expected to live with the respondent having regard to the circumstances of each case, keeping always in view the character and condition of the parties, their status, environments and social values, as also the customs and traditions governing them.



The law on the subject of cruelty had hitherto been gathered from decided cases and courts in India had accepted and adapted to the conditions in India. 



For instance, in case titled as ‘Dastane versus Dastane’[AIR 1975 SC 1534] the Supreme Court of India examined the matrimonial ground of cruelty and observed that the inquiry in any case covered by that provision had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for the petitioner to live with the respondent. 



Reference may also be made to ‘Keshavrao v. Nisha’, [AIR 1984 Born 413 (FB)] where it was held that the cruelty contemplated in this section is a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent.



What was required was that the petitioner must prove that the respondent has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the respondent. (Rajan Ravankar versus Shobha, AIR 1995 Bom 246).



Cruelty in fact, must obviously depend upon the particular circumstances. The passing of a decree on this ground requires the matrimonial offence to be established so as to conclude that cruelty has resulted into a situation where the spouses can no longer live together (Naveen Kohli versus Neelu Kohli, AIR 2006, SC 1675).



Court has held that the behavioral indiscretion by way of cruelty must be on part of the respondent, behaviour of the relatives of the respondent cannot be termed as cruelty by the respondent. [Kamlesh Kumar Agarwal vs Mamta Devi, AIR 2005 Jhar 10].



Character assassination of husband by allegations of illicit relationship, filing of complaints under section 498A of the Penal Code, non-cohabitation for many years - also breakdown inferred- and divorce decree was passed [Murata Dubey  versus Rajesh Dubey, AIR 2009 All 141].



The apprehension contemplated by is that further cohabitation will be harmful or injurious and not that the same or similar acts of cruelty will be repeated. 



In ‘Shohba Rani versus Madhukar Reddi’, the Supreme Court examined the sub-section 13(1)(ia) of the Hindu Marriage Act, 1955 and stated the proper approach to cases of cruelty and reiterated the legal position after the Amending Act of 1976. In this case (demand of dowry by parents of husband with the support of the husband), it was held that the demand of dowry was prohibited by law and that the totality of the facts and circumstances of the case justified the inference of cruelty. It was also observed that there could be cases where the conduct complained of itself may be 'bad enough and per se unlawful or illegal'. Then the impact or the injurious effect on the other spouse need not be inquired into or considered. In such cases, cruelty will be established, if the conduct itself is proved or admitted.



The law lays down that either party to a marriage may file a petition for divorce on the ground of cruel treatment by the other spouse. It is not necessary that the act or acts complained of must take place within what is sometimes described as 'the ambit of the marital relationship'. It may well be that the acts may occur after the husband and wife have begun living apart." It is conceivable that revelation after marriage of fraudulent deception before it, may be so distressing and shocking as to amount to cruelty.'" Moreover, having regard to the facts and circumstances of a case, the court may take into consideration conduct of a spouse even subsequent to the suit, but it should be extremely slow in doing so. 



What is cruel treatment must to a large extent be a mixed question of law and fact and no dogmatic answer expected to the variety of problems that must continue to arise before the court in these sort of cases. The law has no standard by which to measure the nature and degree of cruel treatment that may satisfy the test. Physique, temperament, standard of living and culture of the spouse, the interaction between them in their daily life and all other relevant circumstances must have a bearing on the question complained of amount to the matrimonial offence which entitles a spouse to relief under this clause. 



The conduct alleged must be judged up to a point by reference to the victim's capacity or incapacity for endurance, insofar as that is or ought to be known to the offending spouse.



It is also necessary to weigh all the incidents and quarrels between the parties, keeping in view the impact of the personality and conduct of one spouse upon the mind of the other.



The language of the law is comprehensive enough to include cases of physical, as also mental cruelty and cases where both the elements are present. Where physical violence is proved, the matter may not present any particular difficulty. Even a single act of violence may by itself be of such a grievous and inexcusable nature as to satisfy the test of cruelty. 



On the other hand, isolated acts of assaults committed on the spur of the moment and on some real or fancied provocation may not amount to cruel treatment. The assault or assaults must not be viewed as isolated facts but in the proper setting, as an incident or incidents in a complicated series of marital relations. It would be relevant to have regard to any physical or mental strain under which the accused spouse may have been labouring. Difficulty some-times may arise where the question is whether a number of minor acts of physical violence alleged are sufficient to amount to legal cruelty. This can only be deter-mined by keeping in view the physical and mental condition of the parties, their age, environments, standard of culture and status in life.



Allowance in judging the language or conduct used by one spouse to another must be made for local and social habits. The principal is well-established that cruelty might be inferred from the whole facts and matrimonial relations of the parties and atmosphere disclosed by evidence. The acts alleged must be considered not separately but together. It would be a wrong approach to put the various acts or conduct alleged into a series of separate compartments and say of each of them that by themselves they cannot pass the test of cruelty and, therefore, that the totality cannot pass the test of cruelty. 



A single act of physical violence, though as a rule not sufficient of itself to meet the test, may when considered with other minor acts constitute cruelty. The picture of the domestic life of the spouses must be surveyed as a whole before any judgment can be formed of their possible future relations and the reasonableness or otherwise of the apprehension in the mind of the petitioner. 



Mental cruelty: The law is comprehensive enough to apply to cases of mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence, is of greater cogency in cases falling under the head of mental cruelty. Thus, mental cruelty has to be established from the facts.



In case of physical cruelty, there may exist tangible evidence, clearly indicating cruel behaviour, as against cases of mental cruelty, where there may not be any direct evidence. In such cases, the court is required to delve into the mental process and the effect of such incidents and instances that may be brought out in evidence. When the whole conduct of the spouse shows instances of ill-treatment, use of abusive language and allegations which amount to casting aspersions on the fidelity of the other spouse and in general have the effect of demoralising the spouse, against whom the allegations are levelled, causing mental stress and agony, mental cruelty would be proved. 



Few Case Laws where Husband was granted Divorce on the ground of Mental Cruelty by wife: 



1. Allegation of extramarital relationship, publication of notice in news paper, false allegations of dowry harassment by wife- Divorce granted to husband by Supreme Court of India [Vishwanath Agrawal versus Sarla Agrawal, AIR 2012 SC 2586. In this case Supreme Court examined the whole spectrum of cruelty and its earlier decisions. On an analysis of the facts the husband was granted a divorce. 



2. Wife a career oriented lady, unwilling to stay with her husband, and also communicating by letters that she had lost interest in marriage- Husband entitled for divorce [Suman Kapoor versus Sudhir Kapoor, AIR 2009 SC 589]



3. Wife informing husband on night of marriage that she would elope with ex-fiancé- age also concealed- husband entitled to divorce- Vimla versus Tarun, AIR 2007 Raj 101]. 



4. Threatening suicide, false complaints, news items- Impossible for husband to live with wife- Divorce granted to Husband [Mamta Shrivastava versus Taresh Kumar Shrivastava, AIR 2009 Chh 47]



5. Wife leaving husband and a child two months old- refusal to return- Divorce granted to husband [Gurcharan Singh versus Sukhdeo Kaur, AIR 1979 P & H 98]



6. Wife not permitting the husband for conjugal rights is cruelty- Divorce granted to Husband [Shashi Kumar versus Neelam, AIR 2011 HP 1 (SB)].



7. Unfounded allegation of illicit relationship in reply to notice and in written statement – Husband entitled for divorce [Shobha Lomte versus Mhatardev Lomte, AIR 2009 Bom 160].



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cruelty as a ground of divorce
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