October 2, 2022

CRUELTY: Ground of Divorce

The concept and parameters of cruelty as a matrimonial wrong have evolved and expanded over the years to fit into the needs and attitudes of changing times.

Cruelty as ground of divorce in Hindu marriage law

“Any marriage solemnized, weather before or after the commencement of this Act, may, on a petition present by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnization of the marriage, treated the petitioner with cruelty.”

The Hindu Marriage Act, 1955, Section 13(1) (i) (a)

Concept of divorce

Marriage under Hindu law considered to be a sacrament, therefore, indissoluble. In Vedic or post-Vedic literature, there is no reference to or evidence of divorce. Therefore divorce in the ordinary sense of the work i.e. divorce a ‘vinculo matrimonii’ had been unknown to the Hindu society for millennia except on the grounds of custom among lower case. But Hindus who were married under the special marriage Act, 1872, could secure divorce under the Indian Divorce Act, 1889.

In most of the countries, divorce has been allowed on various grounds. The modern trend is to consider divorce more favorably as emancipation of fair sex or as a shifting out process designed to produce a more stable and happy married life. A comprehensive law applicable to all the Hindus in the country providing divorce was passed in 1955. The Hindu Marriage Act, 1955 was based on the current English matrimonial causes Act, 1950 and provided divorce on various grounds. The grounds were primarily fault or guilty theory of divorce putting emphasis on sacramental concept of Hindu marriage. In 1976 large scale amendments were made in the Hindu Marriage Act making radical changes in the grounds of divorce including introduction of divorce by mutual consent. Adultery, cruelty and desertion, which were grounds of Judicial separation under sec 10, were made grounds of divorce.

Fault Grounds

The legislature and the courts in India and abroad have not attempted to define legal concept such as desertion and cruelty with any precision. There are several other legal concepts, in the common law tradition have been left undefined. The reason is that concepts like desertion or cruelty are dynamic concepts; their contents like and meaning change from time to time and from society to society so as to conform to the ever-changing social needs.

Sec 13 (1) lays down nine fault grounds of divorce-

  1. Adultery
  2. Cruelty
  3. Desertion
  4. Conversion to other religion
  5. Incurably of unsoundness of mind
  6. Leprosy
  7. Venereal disease
  8. Renunciation
  9. Presumption of death

Cruelty as a ground for divorce

The second ground for divorce under section 13 (1) is cruelty. Section 13(1) (i) (a) of the Act lays down: ‘has, after the solemnization of the marriage treated the petitioner with cruelty.’ Before the amendment of the section in 1976, cruelty was one of the grounds of judicial separation and not ground for divorce.

The word “such cruelty that the petitioner cannot reasonably be expected to live with the respondent” were deleted as it was expected that the court, even in absence of such words, broadly adopt the same approach. It should be left to the courts to determinate on the fact of each case whether the conduct amounts to cruelty or not.

Definition of Cruelty

The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined by any statue of the Indian Legislature relating to marriage and divorce; nor has the expression been defined in the matrimonial causes Act, 1950, or any later enactment in England. The danger of any attempt at giving a comprehensive definition that may cover all cases has been emphasized in a number of decisions. The law on the subject had hitherto been gathered from decided cases and courts in India had accepted to the conditions in India the principles underlying the judge-made law on the subject in England. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been ‘conduct of such character as to have caused danger to life, limb or health (bodily or mental), or as to give to a reasonable apprehension of such danger.

The legal concept of cruelty has varied from time to time and from society to society with the change in social and economic conditions. What is considered as cruelty today was not so construed a few decades back, and acts which may not constitute cruelty today might be so regarded after a few years, In early English law, intention was considered be an essential element of cruelty; in modern law it is no longer so. The modern law takes the view that the objective is to accord protection to the innocent party.

Nagging and scolding and even incompatibility of temperament have been held to be included in cruelty. Despite Dening L.J.’s warning, “If the doors of cruelty were opened too wide, we should soon find over selves granting divorce for incompatibility of temperament.”

By the amendment the legislature must, therefore be understood to have left to the court to determine on the facts and circumstances of each case whether the conduct amounts to cruelty.  This is just as well since actions of men are so diverse and infinite that it is almost impossible to exhaustive and not fail in some cases.

In view of this, the cases decided under the old definition of cruelty will still be relevant. In G.V.N. Kameswara Rao v. G. jaili[1], the Supreme Court has observed that the act of cruelty need not be of such nature as to create reasonable apprehension that it would be harmful for petitioner to live with other party. The court further observed that social status of parties is relevant consideration while deciding whether the act constitutes cruelty or not.

In Naveen kohli v. Neelu kohli[2], Supreme Court has observed that conduct complained should be grave and weighty. It should be such that no reasonable person should tolerate it. It should not be ordinary wear and tear of marriage.

Cruelty should not always be of such character as to cause danger to life or health, but harm to or injury to health, reputation and mental pain will also amount to cruelty.

Intention to be cruel is not material

At one time in English law intention to be cruel was an essential ingredient of cruelty. Subsequently, a change of attitude took place and intention to injure no longer remained an essential elements of cruelty. Though if they exist, they would be factors of considerable importance. “If bitter waters are flowing, it is not necessary to inquire from what source they spring.”

In William v. William[3] intention as an element of cruelty was finally rejected.

Under Hindu law also intention or motive is not an essential element of cruelty. In Bhagwat v. Bhagwat[4], the husband in Insanity tried to strangulate wife’s brother and also her younger son. Insanity was held to be no bar and it was held that the conduct amounted to cruelty. In Ruplal v. Kartaro Devi[5]wife was suffering from a deadly disease in the nose which emitted foul smell. The husband was not able to have marital intercourse with the wife. It was held that intention on the part of wise was immaterial. In P.L.Sayal v. Sarala Rani[6], the wife ministered some ‘love potion’ to the husband under the belief that it would be conducive to happy married life. The husband fell ill, and developed an apprehension of insecurity which the court held that was not baseless but due to the instinct of self-preservation.

Should act or conduct constitute of cruelty be aimed at the petitioner?

At one time the English courts said that acts or conduct constituting cruelty must be aimed at the petitioner. If the conduct directly aimed at the petitioner even in the absence of a desire to injure or to inflict would amount to cruelty. In Cooper v. Cooper[7], the court said that where conduct does not consist of direct action, but only misconduct indirectly affecting the other spouse, such as drunkenness, gambling, crime or sexual offence against third parties, it has been held that sexual offences directly relevant to the husband’s conjugal obligation may amount to ill-treatment of wife.

Cruelty- By whom and against whom

 Section 13(1) (i) (a) was the expression that the “other party has treated the petitioner” with cruelty. Does it mean that cruelty must be by the ‘other party’ i.e. the respondent?

Secondly, should it be aimed at the ‘petitioner’?

In Savitri v. Mulchand[8], the children on the behest of their mother beat the father, it was held that it amounted to cruelty on the part of wife also.

Where the husband’s parents were nagging and the husband fails in his duty to protect the wife, it was held that ‘pati’ means protector and if the husband fails in his duty to protect the wife, it would amount to cruelty on his part.[9]

But in Gopal v. Mithilesh[10], the court held that husband’ stand of neutrality between his mother and wife and thereby allowing his wife to be nagged by his mother did not amount to cruelty to the wife. It is ordinary wear and tear of Hindu family life. In Deva Kumar v. Thilagavathy[11]on the other hand, just within five days of marriage, the in-laws treated her so harshly that she was driven to commit suicide, it was held that it amounted to cruelty.

Classification of cruelty

In the modern law, cruelty is classified under the following two heads-

  1. Physical cruelty
  2. Mental cruelty
  1. Physical cruelty

What would constitute cruelty would depend on a number of factors- the social cultural background of the parties, their mental and physical conditions, the quality and length of their mental and physical conditions, the quality and length of their marriage life and so on. Acts of physical violence like beating or causing physical injury to life, limb or health or causing reasonable apprehension of such danger is physical cruelty. Each case has to be decided on its own facts and would depend upon the capacity of endurance of the victim. Unnatural carnal relationship amounts to physical cruelty.[12]Ill treatment and beating given to the wife which she had to even report to the police was held to amount to cruelty.[13]Sayal v. Sarla[14]and Saptmi v. Jagdish[15]are cases of physical cruelty.

To constitute misconduct on the part of spouse must amount to more than mere wear and tear of a married life pinprick alone would not amounts to cruelty. Irritating habits of spouse stemming from his idiosyncrasies may get on the nerves of the complaining spouse, but that cannot be termed as cruelty. Even one or two acts of physical violence are sufficient to constitute cruelty[16], but not an isolated instance.[17]

  1. Mental cruelty

In Bhagat v. Bhagat[18], the Supreme Court defined mental cruelty 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 the other. To judge mental cruelty, courts has to go by ‘intensity, gravity and stigmatic impact” of cruel treatment, even if such cruel treatment is meted out once.[19]While arriving at such conclusion regard must be had to the social statutes, educational level[20]of the parties.

Expanding horizon of cruelty- Post 1976 developments

The marriage law (Amendments) Act, 1976 has changed the definition and marriage and scope of cruelty perceptive. Now the clause runs- “the respondent has treated the petitioner with cruelty.”

Earlier the impact of the reformation of the clause was not felt, but now our courts are gradually realizing the new dimensions of cruelty and interpreting it accordingly.

We would take some illustrative case.

  1. False accusations of adultery or unchastity
    • The false accusation of adultery or unchastity amounts to cruelty came to be established at an early period. Such accusation can take various forms. Thus, In Kusumlata v. Kamptaprasad[21], false accusation of adultery were made orally, in lawyer’s notice and pleadings, while in Saptmi v. Jagdish[22], the husband constantly called his wife a prostitute. In Paras Ram v. Kamleshi[23], the Punjab and Haryana high court took the view that mere allegation of immorality in written statement does not amount to cruelty, though the Delhi High Court took the view that if the respondent made false charges of adultery in cross-examination or in his disposition, it would amount to cruelty.[24]
  1. Wife quarrelling with mother-in-law
    • Mere misbehavior with parents of husband and other relations does not amount to cruelty.[25]
  1. The demands of dowry from the wife on her parent and relations amounts to cruelty.
  2. A persistent refusal to have marital intercourse amounts to cruelty.[26]
  3. Willful refusal to perform marital obligation amount to cruelty.[27]
  4. Drunkenness
    • In English decision, a view is propounded that drunkenness per se is not cruelty. But it seems in the context of Hindu culture, there may be certain circumstances in which drunkenness may amounts to cruelty. Because it may cause grant anguish and distress to the other spouse who may find living together not miserable but unbearable.[28]
  1. False criminal charges
    • In several cases it has been held that prosecution of a spouse by the other of a false criminal charge amounts to cruelty. In kalpna v. Surendra[29], the wife lodged the report against husband and his relatives and warrants were issued and they had to obtain bail from the court. But ultimately this turned out false charges. The Allahabad high court held that this amounted to cruelty. In Shayamlata v. Suresh[30], the wife lodged complaints against her husband and in-laws under sec 107 and 151, Cr.p.c.  But proceeding were subsequently dropped for what of prosecution. The Punjab and Haryana high court held that this conduct of the wife did amount to cruelty.[31]
  1. Refusal to have children
    • Willful refusal to have sexual intercourse to frustrate the other spouse’s desire to have a child amounts to cruelty.[32]Wife’s insistence to terminate pregnancy twice over for no valid reason, it was held to amount to cruelty.[33]
  1. Peculiar Behavior
    •  Non cardinal behavior in matrimonial home, disrespect towards elders and indulgence in false criminal amounts to cruelty.[34]
  1. Birth of illegitimate child within six months of marriage amounted to cruelty.[35]
  2. Irretrievable breakdown of marriage amounts to cruelty
    • The Supreme Court has given its seal of approval to this new trend in A. Jaya Chandra v. Aneel kaur[36]. By observing that irretrievable breakdown of marriage is though not a ground for dissolution of marriage, but in extreme cases, to do complete justice and shorter the agony of parties, a decree to dissolve the marriage may be passed.
  1. Threat to commit suicide
    •  When a spouse threatens to other to commit suicide with a view to coercing the other do something, it amounts to cruelty. Thus, in Dastane v. Dastane[37], the Supreme Court held that the threat given by the wife that she would commit suicide amounted to cruelty. In Shakuntla v. Om Prakash[38],and ‘Savitri v. Mulchand[39], it was held that it amounted to cruelty on the part of wife.
  1. False allegations of insanity and lunacy
    • Allegations that husband and all members of his family amounts to cruelty.[40]
  1. False anonymous complaint to the employer of husband by the wife amounts to cruelty.[41]
  2. Hiding facts like true age and previous marital status and the fact that wife’s first husband had committed suicide amounts to cruelty.[42]

Burden of proof

It is a settled law that the burden of providing cruelty is on the petitioner. But petitioner need not prove it beyond and reasonable doubt.

Conclusion

The concept and parameters of cruelty as a matrimonial wrong have evolved and expanded over the years to fit into the needs and attitudes of changing times. And we can conclude that cruelty means not only beating and depressing other spouse, but also any kind of behavior, which effects the spouse directly or indirectly, physically or mentally, and it has been difficult to that spouse to live with him. It’s all include in cruelty.


Author: Arshi Hayat Gangohi, ll.b 2nd year, Department of Laws, Panjab University Chandigarh
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Reference

  1. The hindu marriage act, 1955
  2.  Principles of hindu law- S. A. Desai
  3. Family Law Lectures- kusum
  4. Hindu law- dr. B.K. Sharma
  5. Modern Hindu Law- Paras Diwan

[1] 2002 SC 576

[2] 2006 SC 1675

[3] (1963) All ER 994

[4] 1967 BOM 80

[5] AIR 1970 J&K 158

[6] AIR 1961 Pb 125

[7] 1955 3 All ER 415

[8] AIR 1987 Del 52

[9] Shyam Sunder v. Santa Devi, AIR 1962 OR 60

[10] AIR 1979 All 136

[11] 1995 Mad 116

[12] Vinit v. Vaishali AIR 1998 Bom 73

[13] Kaushaliya v. Wisakhi Ram AIR 1961 Pb 521

[14] (1969) 87 jjjpwn 520

[16] Laloo v. Bachu, 1986 Raj 49

[17] Vimlesh v. Sri Prakash, 1992 All 260

[18] 1994 SC 710

[19] Vijay Kumar Ram Chandra Bhate v. Neela Bhate, AIR 2003 SC 2462

[20] G.V.N.Kameswara Rao v. G. Jaili, 2002 SC 576

[21] 1965 All 280

[22] (1970) Cal 272

[23] 1962 P & H 199

[24] Pushpa v. Krishna 1982 Del 60

[25] Renu v. Sanjai Singh, 2000 All 201

[26] Jyoti v. Meera, 1970 Cal 266

[27] Ibid

[28] Rita v. Brij 1984 Del 291

[29] 1985 All 253

[30] 1986 P&H 383

[31] Ashok Kumar v. Vijay lakshman, 1992 Del 182

[32] Jyotish v. Meera, 1970 Cal 266

[33] Kalpna v. Swendra, 1985 All 253

[34] Rama v. Holidar,  1996 P&H 98

[35] Madan lal v. Sudesh Kumar, 1988 Del 93

[37] 1975 SC 1534

[38] 1981 Del 53

[40] Bhagat v. Bhagat 1994 SC 710

[41] Girdharilal v. Santosh Kumar (1982) 1 D.M.C 180

[42] Rajkumari alias chandrakala v. Nandlal, 2002 Raj 345