CREULTY-GROUND OF DIVORCE

INTRODUCTION

. The Hindu Marriage

Act, 1955 under Sec 13(1) (1-a) articulates the
provisions relating to
cruelty as the other party has, after the
solemnisation of the mar-
riage, treated the petitioner with cruelty. This
provision did not define
the term cruelty. Under section 498(A) (a) of
Indian Penal Code de-
fines cruelty as any wilful conduct which is of
such a nature as is likely
to drive the woman to commit suicide or to
cause grave injury or dan-
ger to life, limb or health (whether mental or
physical) of the wom-
an or (b) harassment of the woman where such
harassment is with
a view to coercing her or any person related to
her to meet any un-
lawful demand for any property or valuable
security or is on account
of failure by her or any person related to her to
meet such demand.
Cruelty thus may be Physical or Mental.
Physical Cruelty constitutes
a violence of certain degree where bodily
injury is inflicted or where
there is reasonable apprehension of danger to
life, limb or health.
Mental Cruelty denotes a set of circumstances
of malicious false accu-
sation, rudeness, forcing wife to prostitution,
threatening a pregnant
wife, subjecting the other partner to indignity.
Prior to the amend-
ment, the Supreme Court examined this
concept in the landmark
case of N.G Dastane v. S.Dastane, the court
observed that “the enquiry
therefore has to be whether the conduct
charges as cruelty is of such
a character as to cause in the mind of the
petitioner a reasonable ap-
prehension that it will be harmful or injurious
for him to live with the
respondent.” In the case of Sirajmohmedkhan
v. Haizunnisa & anr,,
the Court stated that the concept of legal
cruelty changes according
to the changes and advancement of social
concept and standards of
living. Wherever cruelty is to be examined the
entire background of
the life of the parties to marriage has to be
considered. In matters of
cruelty continues acts of cruelty has to be
established. In V. Bhagat v.
D. Bhagat, it was observed by the court that
mental cruelty in Section
13(1) (1-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 other.
Mental cruelty is of such a
nature that the parties cannot reasonably be
expected to live togeth-
er. Though it is for the court to decide the case
based on facts and
circumstances but what constitutes cruelty is
an important aspect of
all concern. The law has been misused by both
husband and wife in
filing suit for divorce against each other taking
the ground as cruelty.
Even a mere happening or not happening of
event has also creates
a distance and misunderstanding between
parties which inclines to-
wards the ground for divorce. The essential
ingredients of cruelty are
fact of Separation, Intention to bring
cohabitation to an end, absence
of consent and absence of conduct giving
reasonable cause to quite
sible for that party to live with other. Mental
cruelty is of such a
nature that the parties cannot reasonably be
expected to live togeth-
er. Though it is for the court to decide the case
based on facts and
circumstances but what constitutes cruelty is
an important aspect of
all concern. The law has been misused by both
husband and wife in
filing suit for divorce against each other taking
the ground as cruelty.
Even a mere happening or not happening of
event has also creates
a distance and misunderstanding between
parties which inclines to-
wards the ground for divorce. The essentia
The Hindu Marriage Act, 1955 under Sec 13(1) (1a) articulates the provisions relating to
cruelty as the other party has, after the solemnization of the marriage, treated the petitioner
with cruelty. This provision did not define the term cruelty. Under section 498(A) (a) of
Indian Penal Code defines cruelty as any willful conduct which is of such a nature as is likely
to drive the woman to commit suicide or to cause grave injury or dan-ger to life, limb or
health (whether mental or physical) of the woman or (b) harassment of the woman where
such harassment is with a view to coercing her or any person related to her to meet any un-
lawful demand for any property or valuable security or is on account of failure by her or any
person related to her to meet such demand. Cruelty thus may be Physical or Mental. Physical
Cruelty constitutes a violence of certain degree where bodily injury is inflicted or where there
is reasonable apprehension of danger to life, limb or health. 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. Prior to the amend-
ment, the Supreme Court examined this concept in the landmark case of N.G Dastane v.
S.Dastane, the court observed that “the enquiry therefore has to be whether the conduct
charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable
ap-prehension that it will be harmful or injurious for him to live with the respondent.” In the
case of Sirajmohmedkhan v. Haizunnisa & anr,, the Court stated that the concept of legal
cruelty changes according to the changes and advancement of social concept and standards of
living. Wherever cruelty is to be examined the entire background of the life of the parties to
marriage has to be considered. In matters of cruelty continues acts of cruelty has to be
established. In V. Bhagat v. D. Bhagat, it was observed by the court that mental cruelty in
Section 13(1) (1a) 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 other.
Mental cruelty is of such a nature that the parties cannot reasonably be expected to live
together. Though it is for the court to decide the case based on facts and circumstances but
what constitutes cruelty is an important aspect of all concern. The law has been misused by
both husband and wife in filing suit for divorce against each other taking the ground as
cruelty. Even a mere happening or not happening of event has also creates a distance and
misunderstanding between parties which inclines to-wards the ground for divorce.
Cruelty can also be:
(i) when husband or the in-laws ask for dowry.
(ii) Any of the spouse verbally abusing the other.
(iii) The Supreme Court also held the act of wife as cruelty when she cooks for herself
only and not her husband12, or not visiting the husband when he is sick, or not
interfering into any sexual relation without any reason or probable cause, the court
held that “sex plays an important role in marital life and cannot be separated from
other factors that lend to matrimony a sense of fruition and fulfilment”
.
(iv) In two cases, serious accusations and counter-accusations without any substantial
proof thereof was said to constitute cruelty, as it was found that marriages after
such circumstances could not have survived any further

TYPES OF CRUELTY:
Now that we have discussed cruelty in length, we know one thing for sure that the courts
keep on amending and widening the scope of cruelty with respect to women. So cruelty can
be categorized into two types:

Physical cruelty
Hereby under physical cruelty, we are not referring to any violence that takes place anywhere
outside but the matrimonial physical violence resulting in cruelty. Any physical violence,
bodily injuries, the threat to life, limb and health apparently causing apprehension in the mind
of the woman would constitute physical cruelty on the spouse. Establishing Physical cruelty
is not much of a task because one of the most common reasons for divorce is physical
violence. Assault in itself is a grave offence as stated under Section 351 of the Indian Penal
Code. Section 320 of the Indian Penal Code defines grievous hurt. Hence, we can conclude
that assault, grievous hurt and cruelty are somewhat interrelated to each other and do not
pertain much of a difference.

Mental cruelty
Now it is not just about physical cruelty, mental cruelty has the same weightage compared
with physical cruelty. Ascertaining mental cruelty is kind of more challenging than proving
physical cruelty. Apart from the physical harm if any woman is inflicted with any kind of
mental stress or has to compromise her mental peace for her spouse or have to constantly go
through mental agony, then that amounts to mental cruelty. However, we will never come to
know about the psychology of an individual and sometimes people are hypersensitive in
nature so in that case if someone accuses someone of having exhibited cruelty then it cannot
be entirely true. Therefore the person will not be entitled to ask for a divorce on grounds of
cruelty. Mental strain can happen in various ways so there are no specific criteria which
would amount to mental cruelty for example, if the spouse is forcing the wife to do
something without the consent or willingness of the wife. Anything not expressed or hidden
by the spouse which creates a sense of doubt also amounts to mental cruelty.

Mental cruelty is a state of mind and feeling with one of the spouses due to the behavior or
behavioral pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult
to establish by direct evidence. It is necessarily a matter of inference to be drawn from the
facts and circumstances of the case.
A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of
the other can only be appreciated on assessing the attending facts and circumstances in which
the two partners of matrimonial life have been living. The inference has to be drawn from the
attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be
a correct approach to take an instance of misbehaving in isolation and then pose the question
whether such behavior is sufficient by itself to cause mental cruelty. The approach should be
to take the cumulative effect of the facts and circumstances emerging from the evidence on
record and then draw a fair inference whether the petitioner in the divorce petition has been
subjected to mental cruelty due to conduct of the other.

In A . Jayachandra vs. Aneel Kaur (2005) 2 SCC 22, the court observed as under:
“the expression ‘cruelty’ has not been defined in the Hindu Marriage Act. Crulety can be
physical or metal. Cruelty which is a ground for dissolution of marriage may be defined as
willful and unjustifiable conduct of such character to cause danger to life, limb or health,
bodily or mental, or as to give rise to a reasonable apprehension of such danger. The question
of mental has to be considered in the light of the norms of marital ties of the particular society
to which the parties belong, their social values, status, environment in which they live.
Cruelty, as noted above, includes mental cruelty, which falls within purview of a matrimonial
wrong. Cruelty need not be physical. If from the conduct of the spouse, same is established
and/or an inference can be legitimately drawn that the treatment of the spouse is such that it
causes an apprehension in the mind of the other spouse, about his or her mental welfare then
this conduct of cruelty”.

HISTORICAL BACKGROUND
Hindu marriage is a holy sacrament in the life of a Hindu with other various sacraments,
which are crucial for the complete life. Marriage is the valid way for male and female to live
together and perform their duties as husband-wife. In 1869 the Indian Divorce Act was
passed but it had remained in applicable to the Hindus and after the Independence on 18th
may 1955 The Hindu Marriage Act has been passes which governs all the matters of
marriages in hindu religion.
When it was first passed, the Hindu Marriage Act did not have ‘cruelty’ as a ground for
divorce. It was after an amendment in 1976 that this basis became available for seeking both
divorce and judicial separation.
While Parliament did insert the term ‘cruelty’ in the Act, it did not supply an exhaustive
definition. As a result, the term has since been understood according to its interpretation by
the judiciary over the years – during which time the courts have evolved grounds for
providing relief in cases of both physical and mental cruelty. Even before the 1976
amendment, the Supreme Court had examined the concept of legal cruelty in Dastane v
Dastane (1975). In that case, the court held that the wife threatening she would end her life,
and verbally abusing the husband and his father, among other acts, amounted to mental
cruelty, and granted divorce to the husband.
Justice YV Chandrachud had then observed, “The inquiry therefore has 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 him to live with the
respondent. It is 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 as to give rise to a reasonable
apprehension of such a danger.”
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 demands for
dowry by the husband or his relatives was a form of cruelty.The courts have 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 judgement reads, “If one spouse establishes extramarital affair with another
lady/man, it is considered as an act damaging the foundation of the marriage. And if one of
the spouses 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.”

PRESENT POSITION
Section 13 of the Act deals with divorce. As enacted originally it did not have cruelty as one
of the grounds for seeking divorce. The Legislature of Uttar Pradesh wished to include
cruelty also as a ground for divorce and with that view in mind by its Act No.13 of 1962,
Section 13 of the Hindu Marriage Act was amended to include cruelty as a ground for
divorce. The amendment was to the effect that in sub-section (1) of Section 13, after clause
(a), clause (1a) was inserted as under:
“(ia)- has persistently or repeatedly 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 other party, or”
This ground was almost similar to the ground of cruelty under Section 10(1)(b) for judicial
separation but one distinction was made and that was that the words “persistently or
repeatedly” were added. By this addition cruelty as a ground for divorce was made stricter
than what it was for judicial separation.This led to an amendment in the Act where cruelty as
a ground for divorce was added into the Act with the inclusion of legal definition to the term
cr Before the amendment of the Hindu Marriage Act in 1976, cruelty was a ground for
judicial separation only.
The change in law in the year of 1976 made it a ground for divorce as well “keeping in view
the changing mores of the society”. The amendment also made it clear that in order to
constitute cruelty there is no need for an apprehension of danger or injury to life to him/her
while living together. The words “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 under this Act
in 1976. other party,” were omitted from Section 10(1) (b) of the Act. Under Hindu Marriage
Act,19 it is laid down that,
a marriage can be “dissolved by a decree of divorce on the ground that… after the
solemnization of marriage,treated the petitioner with cruelty.” Therefore, after marriage it is
open for both husband and wife to get adecree for divorce if either of them treats the other
cruelly. The general idea, however, is that it is usually the husbands who treat their wives
with cruelty. But it is not so. Under the Indian Divorce Act, 1869 cruelty as a ground for
divorce was available to a wife only, but, under the Special Marriage Act, 1954 it is available
to the husband as well as to the wife who may present a petition on the ground that the
respondent has, since the solemnization of marriage, treated the petitioner with cruelty. 20 It
is also important to note that the term ‘respondent’ even includes a “child who beat his father
on the behest of the mother.”21 Where the husband fails to protect his wife from his nagging
parents, he has been held to be guilty of cruelty.

TYPES OF CRUELTY:
Now that we have discussed cruelty in length, we know one thing for sure that the courts
keep on amending and widening the scope of cruelty with respect to women. So cruelty can
be categorized into two types:

Physical cruelty
Hereby under physical cruelty, we are not referring to any violence that takes place anywhere
outside but the matrimonial physical violence resulting in cruelty. Any physical violence,
bodily injuries, the threat to life, limb and health apparently causing apprehension in the mind
of the woman would constitute physical cruelty on the spouse. Establishing Physical cruelty
is not much of a task because one of the most common reasons for divorce is physical
violence. Assault in itself is a grave offence as stated under Section 351 of the Indian Penal
Code. Section 320 of the Indian Penal Code defines grievous hurt. Hence, we can conclude
that assault, grievous hurt and cruelty are somewhat interrelated to each other and do not
pertain much of a difference.

Mental cruelty
 Ascertaining mental cruelty is kind of more challenging than proving physical cruelty. Apart
from the physical harm if any woman is inflicted with any kind of mental stress or has to
compromise her mental peace for her spouse or have to constantly go through mental agony,
then that amounts to mental cruelty. However, we will never come to know about the
psychology of an individual and sometimes people are hypersensitive in nature so in that case
if someone accuses someone of having exhibited cruelty then it cannot be entirely true.
Therefore the person will not be entitled to ask for a divorce on grounds of cruelty. Mental
strain can happen in various ways so there are no specific criteria which would amount to
mental cruelty for example, if the spouse is forcing the wife to do something without the
consent or willingness of the wife. Mental cruelty is a state of mind and feeling with one of
the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical
cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of
inference to be drawn from the facts and circumstances of the case.
In Shobha Rani v Madhukar Reddi (1988) - The SC held that repeated demands for dowry
by the husband or his relatives was a form of cruelty.The courts have also given similar relief
in other cases, including those of persistent drunkenness and repeatedly making unfounded
allegations.

LOOPHOLES
It is true that some of the laws are biased towards women to compensate the ill treatment that
they have gone through in their lives and that they are facing presently. However, without
carrying out any investigation as to whether the complaint filed is true or not, the husband
and all other members can have to face social stigma.
On the contrary we cannot forget other laws such like marital rape which are not at all
favourable to women. Thus there is a need to clearly lay down the laws relating to cruelty in
all its forms and kinds. It would therefore be expected of the lawmakers to provide the ‘term’
a ground to stand upon rather than keeping it hanging. Till the concept of cruelty is not clear
and properly laid down the burden will always be on the judiciary to decide whether an act is
cruelty or not depending upon the facts and circumstances of the situation of the case and the
parties to the case.
Cruelty even being a grave offence is still not properly taken into consideration may be
because people in our culture have become used to it.Even if we try to eradicate it and change
the mindset of our society it is nearly impossible because of women fear to file complaint
against their husbands dur to fear,family pressure or lack of awareness etc.

CONCLUSION
“No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.”
It can be said that cruelty by either husband or wife is a breach of the right to dignity and
liberty. The Constitution of India, which is the fundamental law of the land, ensures the right
to life with dignity under Article 21. Inflicting physical and mental pain and suffering
amounts to a breach of it. The signal of the Supreme Court appears to be that while dealing
with allegation of cruelty as a ground for divorce the courts should have in their mind that the
petitioner has to prove that the respondent had behaved in such a way that the petitioner
cannot reasonably be expected to live with the other. In very exceptional cases divorce may
be granted on mere accusations and allegations but regard must be had to the context in
which they have been made.In present time women are being more benefited from law, many
judges are prejudiced that women are vulnerable and they are victims of cruelty. The male on
the other hand feel that they are helpless in many matters but the balance must be maintained
between the spouses so that no body claims to be suffered.Hence for these types of cases
Judges are resorting to humanitarian approach. They did not use the law till certain limit,
when they feel that the matter cannot be resolved then only they go for the decree of divorce.