Section 13(1)(i-a) of the Hindu Marriage Act, enacted by Act No. 68 of 1976 with effect from 25th May 1976, reads thus:
“13 Divorce.- (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
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(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
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This provision often has to be read with clause (a) to section 23(1) of the Hindu Marriage Act, the substantive portion of which was enacted as a part of the main enactment vide Act No. 25 of 1955, and reads:
“23. Decree in proceedings. – (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that-
(a) any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of Section 5] is not in anyway taking advantage of his or her own wrong or disability for the purpose of such relief, and
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The legal effect of Section 13(1)(i-a) read with section 23 (1) (a) of the Hindu Marriage Act, it has been interpreted, invokes the `fault theory’.
In N.G. Dastane v. S. Dastane (1975) 2 SCC 326, as early as 1975, a three judges’ bench of Supreme Court, after referring to the provisions of the Indian Evidence Act, 1972, held that the fact is said to be established if it is proved by a preponderance of probabilities, that is, the court believes it to exist or considers its existence so probable that a prudent man ought to, under the circumstances of a particular case, act upon the supposition that it exists. Often, the belief regarding the existence of a fact is founded on balance of probabilities, that is, the court is to weigh the various probabilities to discern the preponderance in favour of the existence of a particular fact.
Holding that the proceedings under the Hindu Marriage Act are civil proceedings, and referring to the provisions of section 23 of the Hindu Marriage Act, it was held that the word `satisfied’ must connote satisfaction on `preponderance of probabilities’ and not `beyond a reasonable doubt’. On the meaning of `cruelty’ as a ground for dissolution of marriage, reference was made to the High Court’s reliance on D. Tolstoy’s passage in The Law and Practice of Divorce and Matrimonial Causes.
Therein, `cruelty’ has been defined as wilful and unjustified conduct of such character as to cause danger to life, limb or health, bodily or mentally, or as to give rise to a reasonable apprehension of such danger. However, Supreme Court felt that D. Tolstoy’s passage, which cites Horton v. Horton [1940] P.187, is not enough to show that the spouses find life together impossible even if there results injury to health. Accordingly, Supreme Court elucidated that if the danger to health arises merely from the fact that the spouses find it impossible to live together and one of the parties is indifferent towards the other, the charge of cruelty may perhaps fail. However, harm or injury to health, reputation, the working-career or the like, would be important considerations in determining whether the conduct of the defending spouse amounts to cruelty.
The petitioner has to show that the respondent has treated them with cruelty so as to cause reasonable apprehension in their mind that it will be harmful or injurious to live with the contesting spouse. In today’s context, two observations, while a court enquires into the charge of cruelty, are of some significance. First, the court should not philosophise on the modalities of married life. Secondly, whether the charge is proved or not cannot be decided by applying the principle of whether a reasonable man situated similarly will behave in a similar manner. What may be cruel to one may not matter to another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances. Cruelty is subjective, that is, it is person, background, and circumstance specific.
V. Bhagat v. D. Bhagat (1994) 1 SCC 1, which was pronounced in 1993, 18 years after the decision in N.G. Dastane (supra), gives a life-like expansion to the term `cruelty’. This case was between a husband who was practicing as an Advocate, aged about 55 years, and the wife, who was the Vice President in a public sector undertaking, aged about 50 years, having two adult children – a doctor by profession and an MBA degree holder working abroad, respectively. Allegations of an adulterous course of life, lack of mental equilibrium and pathologically suspicious character were made against each other. Supreme Court noticed that the divorce petition had remained pending for more than eight years, and in spite of the directions given by Supreme Court, not much progress had been made.
It was highlighted that cruelty contemplated under Section 13(1)(i-a) of the Hindu Marriage Act is both mental and physical, albeit a comprehensive definition of what constitutes cruelty would be most difficult. Much depends upon the knowledge and intention of the defending spouse, the nature of their conduct, the character and physical or mental weakness of the spouses, etc. The sum total of the reprehensible conduct or departure from normal standards of conjugal kindness that causes injury to health, or an apprehension of it, constitutes cruelty.
But these factors must take into account the temperament and all other specific circumstances in order to decide that the conduct complained of is such that a petitioner should not be called to endure it. It was further elaborated that cruelty, mental or physical, may be both intentional or unintentional. Matrimonial obligations and responsibilities vary in degrees. They differ in each household and to each person, and the cruelty alleged depends upon the nature of life the parties are accustomed to, or their social and economic conditions.
They may also depend upon the culture and human values to which the spouses assign significance. There may be instances of cruelty by unintentional but inexcusable conduct of the other spouse. Thus, there is a distinction between intention to commit cruelty and the actual act of cruelty, as absence of intention may not, in a given case, make any difference if the act complained of is otherwise regarded as cruel.
Deliberate and wilful intention, therefore, may not matter. Paragraph 16 of the judgment in V. Bhagat (supra) reads as under:
“16. Mental cruelty in Section 13(1)(i-a) 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 the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner.
While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”
The Division Bench of Supreme Court in V. Bhagat (supra) has also observed that while irretrievable breakdown of marriage is not a ground for divorce, specific circumstances may have to be borne in mind while ascertaining the type of cruelty contemplated by Section 13(1)(i-a) of the Hindu Marriage Act. These observations, with which we agree, give a different connotation to the `fault theory’, as to dilute the strict legal understanding of the term `cruelty’ for the purpose of Section 13(1)(i-a) of the Hindu Marriage Act. This interpretation is situation, case and person specific.
In Ashok Hurra v. Rupa Bipin Zaveri (1997) 4 SCC 226, decided in 1997, Supreme Court was confronted with a situation where the marriage had fallen apart and the couple had separated in 1983. They did not have any specific issue, but difference of opinion had cropped up between the parties. Further, even after residing separately for thirteen years, the parties were not agreeable to a divorce by mutual consent.
This was in spite of the fact that the husband had remarried and had a child. Supreme Court was of the view that considering the cumulative effect of various factors and the marriage being dead, no useful purpose, both emotionally and practically, would be served in postponing the inevitability and prolonging the agony of the parties or their marriage and, therefore, the curtain should be rung down. Supreme Court, therefore, exercised the power under Article 142(1) of the Constitution of India to grant a decree of divorce, though the conduct of the husband, it was observed, was blameworthy as he had remarried and conceived a child during the pendency of the proceedings. This decree of divorce by mutual consent was made conditional on payment of Rs.10,00,000/- by the husband to the wife. Only on payment or deposit of the amount in the Court, all proceedings, including those under Section 494 of the I.P.C., were to stand terminated.
In Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558, a three judges’ bench of Supreme Court referred to the opinion of Lord Denning, L.J. in Kaslefsky v. Kaslefsky (1950) 2 All ER 398 that if the door of cruelty were opened too wide, the courts would be granting divorce for incompatibility of temperament, but this temptation must be resisted, lest the institution of marriage is imperilled. At the same time, the bench felt that the concept of legal cruelty has changed according to the advancement of social concepts and standards of living. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the spouse and allegation of unchastity are all factors that lead to mental or legal cruelty. While doing so, Supreme Court affirmed that a set of facts stigmatized as cruelty in one case may not be so in another, as cruelty largely depends on the kind of lifestyle the parties are accustomed to or their social and economic conditions.
Similarly, intention, it was observed, was immaterial as there can be cruelty even by unintentional conduct. Moreover, mental cruelty is difficult to establish by direct evidence and is to be deciphered by attending to the facts and circumstances in which the two partners in matrimony had been living. On the question of irretrievable breakdown of marriage, which is not a ground for divorce under the Hindu Marriage Act, reference was made to the fault theory, which is hinged on an accusatorial principle of divorce. Excessive reliance on fault as a ground for divorce, the judges’ opined, encourages matrimonial offences, increases bitterness and widens the ongoing rift between the parties. Once serious endeavours for reconciliation have been made, but it is found that the separation is inevitable and the damage is irreparable, divorce should not be withheld.
An unworkable marriage, which has ceased to be effective, is futile and bound to be a source of greater misery for the parties. The law of divorce built predominantly on assigning fault fails to serve broken marriages. Under the fault theory, guilt has to be proven, and therefore, the courts have to be presented with concrete instances of adverse human behaviour, thereby maligning the institution of marriage. Public interest demands that the marriage status should, as far as possible, be maintained, but where the marriage has been wrecked beyond the hope of salvage, public interest lies in recognising the real fact. No spouse can be compelled to resume life with a consort, and as such, nothing is gained by keeping the parties tied forever to a marriage which has, in fact, ceased to exist. In Naveen Kohli (supra), the parties had been living separately for more than a decade, and civil and criminal proceedings had been initiated.
Therefore, the Court held that the marriage should be dissolved, as wisdom lies in accepting the pragmatic reality of life. The Court should take a decision which would ultimately be conducive to the interest of both the parties. The Court also directed the payment of Rs.25,00,000/- towards permanent maintenance to the wife.
In 2018, the Supreme Court of the United Kingdom, in Owens v. Owens (2018) UKSC 41, had the occasion to analyse and evaluate the fault theory as a ground for divorce, which requires one spouse to make allegations on the conduct of the other. The judgment notes that the courts invariably face a daunting task in finding the truth of why the marriage has collapsed. Apportioning blame is an inherently difficult task, given the fact that the court has to find faults in the conduct of the spouses, expecting them to have neither heroic virtues nor selfless abnegation. As subjectivity is involved, the courts find it difficult to evaluate the gravity or otherwise of the conduct complained of and find the truth.
Lord Wilson, with whom Lord Hodge and Lady Black agreed, had referred to the three-fold test to interpret Section 1(2)(b) of the Matrimonial Causes Act 1973 (of England and Wales) to establish whether the marriage had been irretrievably broken down in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(i) by reference to the allegations of behaviour in the petition, to determine what the respondent did or did not do;
(ii) to assess the effect which the behaviour had upon the particular petitioner in the light of the latter’s personality and disposition and of all circumstances in which it occurred; and (iii) to make an evaluation whether as a result of the respondent’s behaviour and in the light of its effect on the petitioner, an expectation that the petitioner should continue to live with the respondent would be unreasonable. Lady Hale, in her judgment, observed that searching and assigning blame is not vital, as the ground of divorce is based on conduct, and not fault or fact finding to ascertain the party to be blamed. On the other hand, cumulative effect of a great number of small incidents indicative of authoritarian, demeaning and humiliating conduct over a period of time would constitute a good ground for divorce. Such conduct can destroy the trust and confidence required to sustain a marriage. Further, the effect of the spouse’s behaviour, rather than the behaviour itself, should make it unreasonable to expect the other spouse to cohabit; this is the question to be answered.