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‘Mental Cruelty’ A Mechanism for Divorce: An Analysis of Judicial Interpretation by Anand Pawar

About the Author: Dr. Pawar is an Associate Professor of Law at Rajiv Gandhi National University of Law, Patiala, Punjab, and had been Acting Vice-Chancellor in Hidayatullah National Law University, Raipur. He can be contacted via email at ap.rgnul@gmail.com

“I must be cruel only to be kind; Thus bad begins, and worse remains behind.” 

  William ShakespeareHamlet

PROLOGUE

It is indeed a misfortune that the law which was enacted to protect the interest of a particular group of people is now being used by the same group of people in a fallacious manner. Earlier it was believed that only women can be subjected to cruelty by their husband and relatives but now the whole conception and presumption has undergone a drastic change. Women often use the backing of law as a tool to satisfy their personal hatred towards their husband and his family members. Huge backlog of cases in courts and frequent petition under section 498A of IPC shows us the reality of the situation. As cruelty is a ground for divorce under different laws, in order to get rid of the marriage wife uses this section as a powerful weapon against their husband.

The concept of cruelty has varied from time to time, place to place and from individual to individual. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their cultural and human values to which attaches importance.[1]

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The law on cruelty has been lucidly explained in the Halsbury’s Laws of England, as;

“The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant’s capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits.”[2]

Interpretation of Cruelty in English Law

The English courts in plethora of judicial decisions, tried to give a comprehensive definition that may cover all incidents, acts, provocation, etc. related to cruelty. Prominent amongst them is the Sheldon v. Sheldon[3], wherein Lord Denning observed that “the categories of cruelty are not closed”. Lord Evershed, with the approval of Lord Merriman in Simpson v. Simpson[4], observed that;

“It has so often been said that it is obvious- yet worth repeating- that all cases that come before this court must be determined on their own particular facts, and I should imagine that in no class of cases is that trite observation truer than in matrimonial cases. The circumstances vary infinitely from case to case. The fact is, I think, another reason for a sense of danger in trying to formulate principles of law out of particular circumstances in particular cases, and then treating those principles of law as being, so to speak, explanations or riders to the actual statutory language.”

In the case of Jamieson v. Jamieson[5] Lord Normand observed that;

“It is undesirable, if not impossible, to create categories of acts or conduct as having or lacking the nature or quality which render them capable or incapable in all circumstances amounting to mental cruelty”. In Thomas v. Thomas[6] Lord Simon observed that,

“The leading judicial authorities in both countries who have dealt with this subject are careful not to speak in too precise and absolute terms, for the circumstances which might conceivably arise in an unhappy married life are infinitely various.”

The House of Lords in the case of Gollins v. Gollins[7], further diffused the interpretation of “mental cruelty”. Now the only requirement was that the conduct complained of should have been “grave and weighty” or “grave and substantial” to warrant the description of being cruel. No specific test could be laid down to determine “mental cruelty”. Thus, the English Law in this regard is fairly settled that each case is to be adjudicated by the Judges by the special set of facts before them.

Under the Hindu Marriage Act, 1955, as enacted originally, though cruelty was one of the grounds for obtaining judicial separation but it was not a ground for obtaining divorce. The word cruelty was not defined in the Act but in Section 10 which dealt with judicial separation. The word cruelty was used in a restricting sense because it was provided that either party to a marriage may present petition praying for a decree for judicial separation on the ground that the other party 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 other party.

Considering judicial interpretations the term cruelty which is a ground[8] for dissolution of marriage may be defied as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise a reasonable apprehension of such a danger.[9]

Cruelty may be physical or corporeal or may by mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty, there can be or can not be tangible and direct evidence. Cases where there is no direct evidence, Courts are required to probe in to the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes[10].

Cruelty is considered as a ground for divorce in various laws[11]. Often wife and their relatives take advantage of this ground in order to use it as a powerful weapon to threaten husband and their relatives.

 

I.  CRUELTY AGAINST WOMEN UNDER THE FAMILY LAW

The term ‘cruelty’ is very wide in its application. Cruelty can be physical as well as mental cruelty.[12] Mental cruelty is defined as the acute mental pain, agony and suffering as would not make possible for either parties to live with each other.[13] There cannot be a straitjacket formula or fixed parameters for determining mental cruelty.[14]

Prior to the amendment made in Section 10 of the Hindu Marriage Act, the concept of cruelty, as it was stated in the old Section 10 (I) (b), was critically examined by the Supreme Court in Dastane v. Dastane[15]. It was therein observed that the enquiry 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. It was also pointed out that it was not necessary, as under the English Law, that the cruelty must be of such a character as to cause danger to life, limb or health or to give rise to the reasonable apprehension of such a danger, though, of course its being harmful or Injurious to health, reputation, working character or the like, would be an important consideration in determining whether the conduct of the respondent amounted to cruelty. What was required was that the petitioner must prove that the respondent has treated the petitioner with such cruelty as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the respondent.

Now after the amendment in Sections 10 and 13 made by the Parliament in the year 1976, cruelty has been made a ground for judicial separation and for divorce without putting any statutory rider. There is now no requirement of law that the party seeking divorce on the ground of cruelty must prove that the respondent had persistently and repeatedly treated the petitioner with cruelty. Further, the petitioner has also not to prove that he/she was treated with such cruelty as to cause a reasonable apprehension in his/her mind that it will be harmful or injurious to him/her to live with the other party. Now the scheme appears to be to give liberal interpretation to the provisions relating to judicial separation and divorce. In the statement of Objects and Reasons of the Marriage Laws (Amendment) Act, 1976 also, the object was stated to be so[16].

The Hindu Marriage Act u/s 13 (1) (ia) provides cruelty as a ground for dissolution of marriage by a decree of divorce. The Act stipulates that the decree of divorce can be obtained if the spouse has treated the petitioner with cruelty. The term ‘cruelty’ has not been defined under the Act. However, it refers to such a course of conduct of one spouse that creates such anguish that it endangers the life, physical health or mental health of the other spouse.[17]

In Shobha Rani v. Madhukar Reddi[18] the Apex Court observed that the term ‘cruelty’ under the Act shall be used in reference to matrimonial duties and obligations of the person. It is the conduct of the one which is adversely affecting the other, constitutes cruelty.

Further, in the case of Savitri Pandey v. Prem Chandra Pandey[19] the hon’ble Supreme Court defined cruelty as treatment by one spouse towards other which manifests feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Moreover, cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other.[20]

the act Causing Depression to Spouse Amounts to mental Cruelty

The term ‘cruelty’ is very wide in its application. Cruelty can be physical as well as mental cruelty.[21] Mental cruelty is defined as the acute mental pain, agony and suffering as would not make possible for either parties to live with each other.[22] There cannot be a straitjacket formula or fixed parameters for determining mental cruelty.[23]

Cruelty postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life.[24] It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.[25]

Mental cruelty is determined as course of unprovoked conduct toward one’s spouse which causes humiliation, embarrassment and anguish so as to render the spouse’s life miserable and unendurable.[26] The hon’ble Apex Court has held that whether an act constitutes cruelty or not shall be determined on the basis of the facts of the case in the light of the education, status and life style of the spouses.[27]

Thus, based on the aforementioned concept of mental cruelty the Supreme Court in the case of Saroj Rani v. Madhukkar Reddi[28] has laid down a test to establish mental cruelty. Accordingly, the enquiry must begin with the nature of cruel treatment and then as to the impact of such treatment on the mind of the spouse. Ultimately, it has to be determined by the Court that the conduct causes reasonable apprehension in the mind of the other person.

The hon’ble court in the landmark case of Samar Ghosh v. Jaya Ghosh[29] has observed that the mental cruelty cannot be established through direct evidence and hence, it shall be proved through facts and circumstances of the case. Similarly, in the case of Praveen Mehta v. Inderjeet Mehta[30]the court held that a feeling of anguish, depression and frustration in one spouse caused due to the conduct of the other spouse shall be appreciated only on assessing the facts and circumstances of the case. In the case Gurnaib Singh v. State of Punjab[31] the Apex Court has held that an act of a spouse which leads to mental depression to the other spouse constitutes cruelty.

II. JUDICIAL INTERPRETATION OF MENTAL CRUELTY AGAINST HUSBAND

Though cases filed by wife against husband and in-laws under Domestic Violence Act and 498-A of Indian Penal Code to claim maintenance and divorce are increasing day by day but all complaints are not filed with bonafide intension. Freedoms of education, job opportunities, economic independence and social attitude have brought tremendous change in the status of women. Though it is the women who have always been subjected to be tortured and harassed by the husband and relatives, in fact saying this will not be proper as cases of torture and harassment against the husband by the wife is increasing day by day. Under the Hindu Marriage Act the concept of cruelty as a ground for divorce can be pleaded by either spouse, but the burden of proof lies on the spouse who is subject of cruelty.

Considering the misuse of those legislative provisions provided for security of women in society are in various cases misused as weapon to unleash personal vendetta on their husbands and innocent relatives and there are certain grounds on which cruelty against husband can be proved[32].

There are many instance in which the honorable judiciary has considered the different acts of a wife under the Hindu marriage Act held as ‘cruel’ to the husband. In Kalpana v. Surendranath[33] it has been observed that where a wife who refuses to prepare tea for the husband’s friends and the frequent insults on various occasion was considered by the court as cruelty to husband. InAnil Bharadwaj v Nimlesh Bharadwaj[34]the wife who refuses to have sexual intercourse with the husband without giving any reason was proved as sufficient ground which amounts to cruelty against husband.In a recent case of Mrs. Deepalakshmi Saehia Zingade v. Sachi Rameshrao Zingade[35]petitioner’s wife filed a false case against her husband on the ground of ‘Husband Having Girl Friend’ which is proved as false in a court of law which was considered to be cruelty against husband. The cited cases are few instances to relay and confirm the changing trend of cruelty as a ground to claim for divorce with strong notion that it is used in specific cases and misused generally by spouses.

Conclusion

In the cases of cruelty the Court has to approach the problem not by having regard to some isolated incidents alone but to the whole of marital relations of the parties. Further, the Court in such cases is not concerned with a reasonable man or a reasonable woman and it has to deal with certain precautions without any apprehension.

The Term ‘cruelty’ consists of unwarranted and unjustifiable conduct on the part of defendant causing other spouse to endure suffering and distress thereby destroying peace of mind and making living with such spouse unbearable, completely destroying real purpose and object of matrimony. It would of course be difficult to define the expression, there cannot be any hard and fast rule in interpreting cruelty and therefore the term can not be put in a water tight compartment. It must be judged on the facts of each case having regard to the surrounding circumstances. Whether one spouse is guilty of cruelty is essentially a question of fact and previously decided cases have little value. But the concern in this era of modern matrimony is, how to strengthen the institution of marriage, where relations are considered as formality and what should be the mechanism to vigor the family values in the upcoming generation, where spouses are not ready to accept challenges of modern life. Recent trends in matrimonial cases have shown a shift from traditional divorce to fabricated divorce on baseless grounds, and for which to prove their personal affiliation  rather priorities sometime they exaggerate to take the plea of either dimension of cruelty. The judiciary is only a hope in this regard to suggest or formulate an apparatus by which the real intension of the parties can be judged.

*Associate Professor of Law, Rajiv Gandhi National University of Law, Punjab. ap.rgnul@gmail.com.

[1] Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778

[2] Halsbury’s Laws of England, Vol.13, 4th Edition Para 1269

[3] (1966) 2 All ER 257

[4] (1951) 1 All ER 955, p 958

[5] (1952) AC 525, p 545 See also Evans v. Evans [1965] 2 All ER 789

[6] (1947) 1 All E.R. 582 at p. 585

[7] (1962]) 3 All ER 897

[8] Sec. 13- 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-

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty;

[9] N. Nandi, ‘Encyclopedia of Hindu Law’, Dwivedi Law Agency, Allahabad, 3rd Ed. 2013(Reprint). p720

[10] A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534; Prakash v. Kavita, AIR 2008 Raj 111

[11] Section 27 of The Special Marriage Act, 1954, provides for 12 grounds for divorce. One of them is cruelty, Section 2 of The Dissolution of Muslim Marriages Act, 1939 also provides for dissolution of the marriage on the ground of cruelty, Section 32 of The Parsi Marriage and Divorce Act, 1936, provides for 11 grounds for divorce. One of them is cruelty, Section 10 of The Indian Divorce Act, 1869, provides for 7 grounds of dissolution of marriage of Christians. One of them is adultery coupled with cruelty.

[12] A. Jayachandra v. Aneel Kaur, A.I.R. 2005 S.C. 534.

[13] V. Bhagat v. Mrs. D. Bhagat A.I.R. 1994 S.C. 710.

[14] Chetan Dass v. Kamla Devi [2001] 3 S.C.R. 20; Donaldson v. Donaldson (1917) 31 Idaho 180; Luther v. Luther (1978) 5 R.F.L. 285.

[15] A.I.R., 1975 SC 1534

[16] Justice A.K. Srivastava, Cruelty as a Ground for Divorce or Judicial Separation under the Hindu Marriage Act, 1955, 2 J.T.R.I. Jorunal 1 – 5 (1995).

[17] Evans v. Evans (1790) 1 Hagg. Con. 35; Simpson v. Simpson (1951) 1 All E.R. 955; Russel v. Russel (1897) A.C. 395; Sheldon v. Sheldon (1966) 2 All E.R. 257; Brayan A. Garner, Black’s Law Dictionary (8th Ed. 2004).

[18] Shobha Rani v. Madhukar Reddi A.I.R. 1988 S.C. 121; Jamieson v. Jamieson (1952) 1 All E.R. 875.

[19] Savitri Pandey v. Prem Chandra Pandey A.I.R. 2002 S.C. 591; Broja Kishore Ghosh v. Smt. Krishna Ghosh A.I.R. 1989 Cal. 327; Dunkley v. Dunkley (1938) S.A.S.R 325.

[20] Hoovamma v. Vishwanath ILR 2009 Kar 4193; Jem v. Jem (1937) 34 Haw. 312.

[21] A. Jayachandra v. Aneel Kaur, A.I.R. 2005 S.C. 534.

[22] V. Bhagat v. Mrs. D. Bhagat A.I.R. 1994 S.C. 710.

[23] Chetan Dass v. Kamla Devi [2001] 3 S.C.R. 20; Donaldson v. Donaldson (1917) 31 Idaho 180; Luther v. Luther (1978) 5 R.F.L. 285.

[24] Buchler v. Buchler (1947) 1 All ER 319; Mamta Namdeo v. Ghanshyam Bihari Namdeo A.I.R. 2013 C.G. 88; Padmaja Chakravarty, Mental Cruelty as a Ground of Divorce, 14 Central India Law Quaterly 95 – 97.

[25] Manisha Tyagi v. Deepak Kumar A.I.R. 2010 S.C. 1042.

[26] N.G. Dastane v. S. Dastane [1975] 1 S.C.R. 675.

[27] Siraj Mohmed Khan Janmohmed Khan v. Haizunisa Yasin Khan and Anr. [1982] 1 S.C.R. 695; Rajani v. Subromonian A.I.R. 1990 Ker. 1; Gannath Pattnaik v. State of Orissa [2002] 1 S.C.R. 845.

[28] Saroj Rani v. Madhukkar Reddi [1988] 1 S.C.R. 1010.

[29] Samar Ghosh v. Jaya Ghosh (2007) 4 S.C.C. 511; Vinita Saxena v. Pankaj Pandit, A.I.R. 2006 S.C. 1662.

[30] Durga Prasanna Tripathy v. Arundhati Tripathy, A.I.R. 2005 S.C. 3297; Praveen Mehta v. Inderjeet Mehta A.I.R. 2002 S.C. 2582.

[31] Gurnaib Singh v. State of Punjab (2013) 7 S.C.C. 108; D.D. Basu, Hindu Law 172 (1st Ed. 2005).

[32] (i) Misuse of Dowry Laws, Domestic Violence Act and ‘Sec: 498-A’ of IPC by wife against husband and in-laws of husband through lodging false complaints. (ii) Desertion by wife, (iii) Adultery by the wife, (iv) Wife opting out for second marriage without applying for the divorce proceedings, (v) Threatening to leave husband’s home and threat to commit suicide by the wife, (vi) Cruel behavior, (vii) Refusing to cook food properly or on time and breaking of the mangalsutra in the presence of husband’s relatives. (viii) Abusing and accusing husband by way of insulting in presence of in-laws or before office staff members, (ix) Wife refusing to have physical relations with husband without any sufficient reasons, (x) Lowering reputation of the husband by using derogatory words in presence of family members and elders, (xi) Threatening to lodge false FIR against husband and in-laws, (xii) Some other grounds of cruelty i.e. mental disorder and unsoundness of wife, Impotency of wife, illicit relationship of wife with some other person and initiating criminal proceedings against husband and in-laws of husband with mala-fide intention by the wife.

[33] AIR 1985 All 253

[34] AIR 1987 Del 111

[35] AIR 2010 Bom 16

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