Cruelty as a Ground for Divorce

INTRODUCTION

Marriage in India is most probably accepted as a sacrament rather than a contact. Marriage as a sacramental union implies that it is sacrosanct. Hindus conceived of their marriage as a union primarily meant for the performance of religious and spiritual duties[1] which never permitted dissolution of marriage. This view continued to be followed in present contemporary world where most of Hindus regard their marriage as sacrament. Many ancient texts also support this introspection. Even in the patriarchal society of Rig vedic Hindus marriage was considered as sacramental unit. As, the Sacramental nature of marriage did not allowed to dissolve marriage due to which in ancient period , divorce as well as judicial separation were not permitted. Sacramental union implies that it is a permanent union. Marriage is a tie which once tied cannot be untied. This implies that marriage cannot be dissolved.[2]

It is only in some exceptional cases that the sages and ancient texts allowed a woman to abandon her husband and go for another marriage. Though in two cases remarriage was permitted: i) When a damsel was abducted and not married accordingly to sacred rites.

1. ii) If the husband died before consummation of marriage.[3]  Kautilya was in favor of dissolubility of marriage when his husband is of bad character and if he is absent for the long time. There is difference in opinion among the sages on whether a wife could abandon her husband and go for another marriage. But predominant authority is in favor of indissolubility of marriage.[4]

As, many ancient texts do not allows dissolution of marriage on any ground. It is not hidden that matrimonial causes like cruelty or any kind of domestic violence is a new concept which only found in today’s world. These menace having their deep roots since human civilization period. Also, there are some ancient sages that are in favor of dissolution of marriage but at very smaller extent.

DIVORCE UNDER HINDU LAW

Divorce puts the marriage to an end, parties revert back to their unmarried status and are once again free to marry.

Parliamentary divorce was known in India which passed by Britishers. There was also unfortunately, no single enactment dealing with matrimonial causes governing all persons in India. The Christian community was the first to have a matrimonial cause enactment of its own: the Indian Divorce Act, 1869[5] and between 1931 and 1952 a number of Indian Jurisdictions enacted similar statutes for Hindus. Most of them prescribed Cruelty as a ground for relief.[6]

The Hindu Marriage Act, 1955; describe grounds of divorce where under section 13(1)is based on fault grounds on which either the husband or wife could sue for divorce, and two fault grounds in section 13(2) on which wife alone could seek the divorce.

In year 1964, by an amendment certain clauses of section 13(1) were amended in the form of section 13(1-A), thus recognizing two grounds of breakdown of the marriage . The 1976 amendment Act inserted two additional fault grounds of divorce for wife and new section 13B for divorce by mutual consent[7]. There are various grounds for claiming a decree of divorce, they are as follows: Adultery, Cruelty, Desertion, Conversion, Insanity, Leprosy, Venereal Diseases, Renunciation, Presumption of Death, Irretrievable Breakdown of Marriage and there are also special grounds of divorce for women.

The special Marriage Act,1954 also describes grounds of divorce which are as similar as described under Hindu Marriage Act,1955 where Section 27 (1)[8] says that either husband or wife can obtain decree of divorce on following grounds : After solemnization of marriage either of spouse had sexual intercourse with other person ; Desertion; Undergoing sentence of imprisonment for seven or more years as defined under IPC ,1860; Cruelty; Has been of incurably of unsound mind that petitioner cannot reasonably be expected to live with the respondent. Section 27 (1-A)[9] deals with grounds of divorce which are available for women to obtain decree of divorce on alone. Section 27-A inserted by amendment 1976 which provide, Alternate relief in divorce proceedings and Section 28 deals with divorce by mutual consent.

CRUELTY AS A GROUND FOR DIVORCE – ITS INCLUSION UNDER HINDU LAW

Cruelty as a ground for divorce introduced by the amendment of 1976 under section 13(i-a) of Hindu Marriage Act,1955, earlier Cruelty was considered as the ground for judicial separation not particularly as a ground for divorce. Further, with the Supreme Court in year 1975, in the case of Dastane v Dastane [10]upheld and allowed cruelty as the ground for divorce.

Definition of Cruelty is not prescribed as it is considered among those legal concepts which are difficult to define as its meaning and conceptualization differs from case to case and society to society. It is not necessary that Cruelty to one is considered as Cruelty to other at same time. Cruelty is determined by facts and circumstances of cases it does not depend on fixed specified formula. It is flexible keep changing with the nature of cases.

In Modern Law, Cruelty in relation with intention is not required whereas in English Law, intention is considered as one of the essential element of Cruelty.

The House of Lords, in Rusell v Rusell[11], approved the test of ‘livelihood of injury to health’ in Cruelty cases. The Hindu Marriage Act, as originally enacted, would seem to have prescribed the same in enacting for judicial separation on the ground that other party have caused danger to life, limb or health bodily or mental or as to give rise to a reasonable apprehension of such danger. The Marriage Law (Amendment) Act 1976, which makes Cruelty as ground for divorce, has changed the wording of clause thus: Respondent has treated the petitioner with Cruelty.[12] Earlier petition has to show that the respondent had treated him/her with Cruelty as to cause injury with reasonable apprehension in his/her mind under section 13(1)(b). But after Amendment of 1976, only treatment with cruelty would be enough rather than to cause injury to petition with reasonable apprehension in his/her mind.

Ill treatment by in- laws amount to cruelty of be that respondent?

As, most of wives in Hindu society lives in joint family which gives rise to very important question that if the petitioner ill treated by her in –laws would amount to Cruelty of be that of respondent or not ?

In the case of Shyam Sunder v Santadevi[13] was a case under the Hindu Married Women’ s Right to Separate Residence and Maintenance Act,1946, where soon after marriage , the wife was locked up, kept without food, ill-treated by the members of the joint family, while the husband stood there idly, without least caring to protect his wife. It was held that an intentional omission to protect his wife from the ill- treatment of the members of the joint family, amounts to Cruelty on the part of husband[14]. But in case of Gopal v Mithilesh[15] the court held  in the contraction of earlier case. In evolution with time, judgment regarding this also evolved.

CLASSIFICATION OF CRUELTY

Cruelty is bifurcated into mental cruelty and physical cruelty. As the definition of cruelty does not contain any such classification but the definition covers the both of it. Thus, the definition of cruelty goes same with the classification.

Mental Cruelty– To judge mental cruelty, court has to go by “ intensity , gravity and stigmatic impact” o f cruel treatment, even if such cruel treatment is meted out once.[16]

In the case of N. Sreepadachanda v. Vasantha,[17]provides very good illustration of mental cruelty. The court found that the wife quarreled with, and hurled vilest abuses as her husband over most trivial matters, on account of which the husband had to spend many sleepless nights and suffered great mental agony. She not merely abused him at home, but she did so in public and subjected him great humiliation and shame before the public. She humiliated him at all extent and had not let any single place where she not used to humiliate him before the public. She used to say that she wanted her husband to be killed in some accident so that she could have his insurance money and provident fund . All this obviously caused great agony and mental tortured to the husband. Dastane v Dastane [18] is a high water mark case on mental cruelty. In this case , the court held that the wife threatening to end her life , and verbally abusing the husband and his father, among other acts, amounted to mental cruelty, and granted divorce to the husband.

In subsequent years, the courts have held a number of acts as amounting to mental cruelty. In Shobha Rani v Madhukar Reddi (1988), the Supreme Court held that repeated demand for dowry by the husband or his relatives was a form of Cruelty.[19]

The court has also given similar relief in other cases, including those of persistent drunkenness and repeatedly making unfounded allegations. The recent Bombay High Court verdict is in line with the latter example. The judgment reads, “If one spouse establishes extramarital affair with another lady/man, it is considered as an act damaging the foundation of marriage. And if one of the spouse makes such allegations and he/she fails to prove it, it is considered as an act causing mental pain to other spouse and considered as an instance of cruelty.”[20]

Physical cruelty– The acts of physical violence will amount to cruelty always differ from case to case , depending upon the susceptibility and sensibility of the party concerned .When one of the spouse causes bodily injuries to other spouse or reasonable apprehensive of same act amount to physical violence. In the case Saptani v Jagdish[21] , the husband constantly abused and insulted the wife and ultimately one day in her father’s house he pushed her against the wall causing her bruises. This amounts to cruelty by husband towards his wife. One more case of cruelty where court held that even the injuries on the person were considered to be not very serious so as to call for their medical treatment . Yet she had been ill treated and beaten up; this much be held to amount for Cruelty.[22]  Even one or two acts of physical violence are sufficient to constitute Cruelty.[23]One need not to prove that the cat of petitioner was of such danger or injurious which causes reasonable apprehension of injury in the mind of petitioner for claiming decree of divorce but it is enough if  petitioner is treated by respondent with Cruelty, the wording of the clause changes after the introduction of Marriage Law (Amendment) Act,1976

CRUELTY AS GROUND FOR DIVORCE TO HUSBAND

Manu said that once a man and woman are united in marriage, they must see that there is no difference between them, and that they remain faithful to each other.[24]After marriage husband and wife enjoy equal rights thus ground of cruelty is also applicable on husband when he got harrashed by his wife. In the case of D.N Sharma v Usha Sharma, wife had written letters to Authorities and Women Cell and also to the Prime Minister. She had persisted in humiliating and wounding feelings of husband, which amounted to cruelty. Husband was assaulted by wife’s brother and his tooth was broken. Such matrimonial life had caused profound and lasting disruption, driving the husband to feel deeply hurt and reasonably apprehend that it was impossible for them to live together. Held, that in such circumstances husband was entitled to decree of divorce.[25]

[1]Diwan Paras, Modern Hindu law (codified and uncodified ), Concept of Marriage, Marriage as a Sacrament, p. 63, 24^th Edition, 2019, Allahabad law Agency

[2] Ibid

[3] Naranda ,XII,81; Parasara, X, 26-35

[4]Diwan, Paras, Modern Hindu law (codified and uncodified ), Concept of Marriage, Marriage as a Sacrament, p. 63, 24^th Edition, 2019, Allahabad law Agency

[5] Act No. 4 of 1869

[6] See,Surinder Singh, The Hindu Law of Marriage ; old and New , 17 The law Review, part II , p.24 at pp.154, 179-81(1965)

[7]  The Hindu Marriage Act,1955

[8] Renumbered by Act 29 of 1970,Section 3

[9] Ins. By Act No. 68 of 1976

[10]Dastane v Dastane 1976 SC 1534

[11] Rusell v Rusell (1897) AC 395

[12] See also, 59^th report of law Commission

[13]Shyam Sunder v Santadevi 1962 Ori 60

[14] Diwan, Paras, Modern Hindu law (codified and uncodified ), Matrimonial Causes, p.   161, 24^th Edition, 2019, Allahabad law Agency

[15] 1979 ALL 136

[16] Vijay Kumar Ramchandra Bhate v Neela Bhate, AIR 2003 SC 2462

[17] N. Sreepadachanda v. Vasantha,[17]1970 Mys 232

[18] Dastane v Dastane 1976 SC 1534

[19] https://indianexpress.com/article/explained/explained-how-indian-courts-over-the-years-have-seen-mental-cruelty-as-grounds-for-divorce-6407154/

[20] Ibid

[21] Saptani v Jagdish (1969) 87 CWN 520

[22] Kaushalya v Wisakhiram 1961 Punjb 520

[23] Vimlesh v Shri Prakash , 1992 All 260

[24] Manu,XI,101-102

[25]  D.N Sharma v Usha Sharma AIR 2004 Del 198

Author: Sapna Rajmani,
Central University of South Bihar, 4th year Student