Ambit of Cruelty as a Ground for Divorce

Marriage is indeed a spiritual union between two parties but it shouldn’t force a person to be a part of it if the whole value and objective of marriage is violated. Hence the concept of divorce is important and cruel being such a harsh word shouldn’t define a matrimonial relationship.

The divorce procedure in India is predicated on the following legislation:-

The Hindu Marriage Act, 1955
The Special Marriage Act, 1954
The Dissolution of Muslim Marriage Act, 1939
The Indian Divorce Act, 1869
The Parsi Marriage and Divorce Act, 1936
The Foreign Marriage Act, 1969

Cruelty as a ground for divorce

In India, nearly 70% of matrimonial cases are filed before the Courts under the ground of cruelty. Cruelty has not clearly defined in the conjugal laws. Legislation generally avoids providing a clear definition of the same.

The Oxford Dictionary defines “Cruelty” as „the quality of being cruel; disposition of inflicting suffering; enjoyment in or indifference to another’s pain; mercilessness; hard-heartedness‟.[1]

The interpretation of ‘cruelty’ is essentially supported by its English counterpart in India. In Russel V. Russel[2], Lopes L.J. observes “there must be a danger to life, limb or health, bodily or mental or a reasonable apprehension of it to constitute cruelty”.

The legislature in most of the conjugal laws has left it on the judiciary to define, analyze, and interpret what cruelty means. .The judiciary has crossed various boundaries in deciding what human activity amounts to cruelty and what is not.

The Supreme Court in Ravi Kumar v. Julmi Devi [3]very correctly said that cruelty has no definition, and in fact, such definition is not possible. Cruelty in conjugal cases may be of infinite variety and is relatively a subjective concept.

In Gurdev Kaur v Sarwan Singh [4]where the court laid down the principle that cruelty has to be defined with regards to social conditions as they exist within the present day and not consisting of the stiff terms of ancient laws and customs.

Cruelty needs to differ from the usual and standard wear and tear of a normal household.[5] It should not be decided based on the petitioner’s sensitivity and has to result from the ordinary course of conduct which in general will be dangerous for spouses living together.[6]

The essential ingredients of cruelty are a fact of Separation, Intention to bring cohabitation to an end, absence of consent, and absence of conduct giving reasonable cause to quite the matrimonial relations.[7] Wherever cruelty needs to be investigated the whole lifetime and backdrop of the parties to the case should be considered. In these matters continuous act of cruelty is needed.

Cruelty under various personal laws and others

Special Marriage Act,[8]“:’ Hindu Marriage Act[9] (added after amendment in 1976 as a ground for divorce, before it was in section 10 as a way for judicial separation) and the Dissolution of Muslim Marriages Act, 1939 which specifies cruelty as ” (i) habitual assault or cruelty of conduct; (ii) leading an infamous life, or association with women of ill repute; (iii) compulsion to lead an immoral life; (iv) interference with personal property; (v) obstruction in the observance of religious practices; and (vi) inequitable treatment in the case of bigamy.[10] These have cruelty as a ground for divorce.

In Parsi Law “grievous hurt” and compulsion to “submit to prostitution” are specified as grounds for divorce.”[11] For the Christians, cruelty is a ground for judicial separation which may eventually lead to divorce.”[12]

Section 498A of Indian Penal Code, 1860 gives punishment for a husband/his relatives who act in a cruel way against a woman. Under this section, cruelty is defined as any willful conduct which is of such nature as if likely to drive a woman to suicide or to cause grave injury or danger to life, limb or health (whether mental or physical.) 

Types of cruelty

Cruelty may be mental or physical/corporeal, intentional, or unintentional. Physical cruelty incorporates a certain level of violence where injury to the body is inflicted or there is a reasonable apprehension of danger to health, appendage, and life.

Mental Cruelty denotes a set of circumstances of malicious false accusation, rudeness, forcing wife to prostitution, threatening a pregnant wife, subjecting the other partner to indignity.

Physical Cruelty

Establishing or proofing physical cruelty is easier because of the absence of circumstantial evidence. In Pandey v. Pandey, it was held that physical cruelty comprises of those acts which threaten physical wellbeing, which incorporates bodily injury but proving mental cruelty is very difficult.

A feasible definition may be:-

Any physical infliction of pain adequate to cause grievous heart or pain which is identifiable on the body. If one spouse threatens, intimidates or intend to harm the other amounts to physical cruelty; Acts can include: Pushing, pinching, slapping, hitting, punching, hair pulling- this list is a broad one:-

Using physical force of any kind and harming them
Causing bodily injuryrestrict or restrain the movement of other
Wrongfully confining them
Hindering their basic fundamental rights by using physical force
Not giving them the proper facilities
Not fulfilling their basic necessities

Causing of grievous hurt under the Parsi Marriage and Divorce Act, 1936 and habitual assaults under the Dissolution of Muslim Marriages Act, 1939 are grounds of divorce under cruelty. Under Muslim Law, just a simple and a single assault doesn’t amount to cruelty. It must be habitual assault, which in the context, would mean repeated acts of assault. The beating of wife or constant threats to beat her would amount to cruelty[13].

To constitute physical cruelty, the conduct complained of should be “grave and weighty  to conclude that the petitioner’s spouse cannot be reasonably expected to live with the other spouse. To establish physical cruelty physical violence doesn’t need to be used. Continued ill-treatment, halting sexual intercourse, neglect, and indifference of one spouse to the other may be cruelty.[14]

Mental Cruelty

Mental cruelty has not been defined anywhere legally by the court or anywhere else. It is upon the discretion of the judge to decide whether one’s act amounts to mental cruelty to the extent of it being considered as a ground of divorce.

The first case which brought light to mental cruelty and was a base to the amendment of 1976 in Hindu Marriage Act, 1955 in 1976 to include cruelty as aground of divorce was Dastane vs Dastane[15], The SC first time said that a spouse threatening to commit suicide and constant verbal abusing amounted to cruelty. The inquiry needs to be done based on whether the conduct causes a reasonable worry or harm in living with their spouse.

In V. Bhagat v. D. Bhagat[16], it was observed by the court that mental cruelty in Section 13(1) (1-a) Mental cruelty is of such infliction of mental agony so that that the parties can’t be expected to live with each other. Though it is for the court to decide the case based on facts and circumstances what constitutes cruelty is an important aspect of all concern.

The interrogation of mental cruelty has to be seen per the class, social values, status, and environment of the parties.

In physical cruelty it is easy to have tangible and direct evidence but not in mental cruelty. In these cases, mental processes and effects of the incidents in question need to be seen.

First, the inquiry must begin as to the nature of the cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other.[17]

Mental cruelty includes emotional, financial, sexual, and social agony. It is a very broad and individualistic term. For one person a thing can be cruel but for others, it may not be. The burden of proof in mental cruelty lies on the respondent and the relevance of the proof is on the discretion of the judge.

How to prove mental cruelty in a court?

Facts and circumstances are key in establishing a case of mental cruelty.

Petitioner’s oral or written testimony is enough for proving mental cruelty. If the testimony is solidified by video and audio proof of the mental agony suffered like verbal and physical abuse, non-cohabitation, arrogant behaviour, etc. which aggravates the domestic relationship. One can strengthen their case by a witness’s testimony.

A very broad classification of mental cruelty can be:-

Emotional

Understood to be an act of attacking someones mental state through unkindness and taking advantage of one’s weakness and constantly nagging them about it; playing mind games just for fun; intimidating and diminishing them of their character; threatening to suicide to get their work done

Acts can include- destroying their personal property; body shaming; threatening to harm their loved ones; physical abuse of their pets; yelling and screaming on them for petty issues constantly; hurting the other one’s family and relatives

Sexual

Our IPC defines sexual assaults and related crimes specifically;

Acts can include: forcing a certain dress code; making them forcefully watch pornography; forcing the other to perform sexual acts against their will; commenting on their sexual performance; saying no to intercourse to frustrate someone. Sexual abuse may also be said to be emotionally abusive conduct.

Financial

If one partner dominates the financial superiority they control others life by not providing them money for their basic needs or by constantly taunting them that they contribute nothing to the household

Acts can include: not providing them with the required essentials; not letting the other have things important for their hygiene just to torture them; limiting the financial resources to run the household and instead of wasting money on things like a casino, drugs alcohol etc; fail to fulfil the basic needs.[18]

Moral injury and social harm sufficient to cause or which causes

Attacking one’s reputation adversely
Making them a part of an unwanted scandal
Creating suspicion against their character in others mind
Claiming false charges of habitual intoxication of any kind
Causing annoyance in public so that they act adversely
Accusing the other to have a concubine
Associating with women, men or people with an ill reputation
Defaming one’s name by false allegation regarding their personal or professional life
False accusation of leading an immoral life;[19]

Conclusion

Every person has the right to have a dignified life and enjoy personal liberty. Matrimonial relations are made in heaven. The basic necessity for a successful relationship is mutual respect, appreciation, affection, intimacy, regular communication, empathy, and common likings as well as interests. Ups and downs may arise in life but to overcome it is the art of a successful life. Even the law permits cruelty as a ground for divorce but one should not use it as a sword or shield in his/her matrimonial relief unless the situation demands.


[1] Samar Ghosh vs Jaya Ghosh on 26 March 2007

[2] Russel V. Russel (1897 A.C.395)

[3] (2010) I DMC 411 SC

[4] AIR 1959 Punjab 162

[5] A. Jayachandra vs. Aneel Kaur [AIR 2005 SC 534]

[6] Savitri Pandey V. Premchandre Pandey, AIR 2002 SC 591.

[7] CRUELTY AS A GROUND FOR DIVORCE: A SWORD OR SHIELD By Hiranmaya Nanda and Chinmaya Kumar- Volume-4, Issue-2, Feb-2015 • ISSN No 2277 – 8160

[8] S. 27(d)

[9] Under this Act cruelty, as defined in it, was originally a ground for judicial separation. Now the Special Marriage Act and the Hindu Marriage Act share an identical provision. Neither of these laws defines cruelty and both make it available as a ground for divorce.

[10] S. 2(viii)

[11] Parsi Marriage and Divorce Act, 1936, s. 32(e).

[12] Indian Divorce Act, 1869, s. 22.

[13] Khachern v. Khairunissa, AIR 1952 All 638.

[14] Manisha Tyagi vs. Deepak Kumar [AIR 2010 SC 1042]

[15] Dr N.G. Dastane vs Mrs S. Dastane AIR 1975 SC 1534

[16] (1994) 1 SCC 337

[17] Protection of Women from Domestic Violence By P. K. Das- pg 496

[18] Breakdown of Marriage: Physical and Mental Cruelty-January 2, 2019/by Roger MacIntoshhttps://www.rabideaulaw.ca/breakdown-of-marriage-physical-and-mental-cruelty/

[19] Concept of Cruelty under the Hindu Marriage Act- book by  Krishna Bahadur*- pg 174

Anushka Singh from Sharda University, Delhi

Anushka aspires to excel in the legal field and actively work towards contributing to the society as a humanitarian. She is a very optimistic person who dreams to achieve great heights while staying grounded

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