1

DIVORCE UNDER GROUND OF CRUELTY AND ITS DRAFTING

ABSTRACT
In recent times the divorce have increased due to many reasons. There are so many conflicts
which arises between the couple and eventually leads to divorce. Cruelty is one of the main
ground for the divorce. Our legal system only identifies the Cruelty by husband and his relatives
as a ground for divorce.
This paper deals with the Cruelty as one of the main ground for the divorce and a draft petition
of divorce under Section 13 (1) (ia) of The Hindu Marriage Act 1955. Cruelty can be done in two
ways- physically and verbally and Section 13 of Hindu Marriage Act covers both ways as a
ground for Divorce.

KEYWORDS- Divorce, Cruelty, Husband.`

MEANING OF CRUELTY

Cruelty is a conduct of such a character as to have caused danger to life or health, bodily or mental,
gives rise to reasonable apprehension of such danger. Under the Hindu Marriage Act, Special
Marriage Act, Parsi Marriage and Divorce Act and Divorce act it is a ground for both Judicial
Separation and Divorce.

The concept of Cruelty has changed a lot, it is not as same as it was hundred and fifty years back.
In the earlier times, Cruelty basically means physical Cruelty like beating, or torching someone
physically. Earlier, it was basically against men but now it is both against men and women.

The formulation contains the basic element of cruelty and includes both mental and physical
cruelty, though it embodies the typical nineteenth century emphasis upon the necessity of
protecting the petitioner and the belief that no conduct can amount to cruelty in law unless it has
the effect of producing actual or apprehended injury to petitioner’s physical or mental health. It
also emphasizes the injury need not be actually suffered; a reasonable apprehension of injury is

1
Authored By Shalini Vasishtha, Amity Law School, Noida

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enough. But where there is no probability of injury, offence is not committed. The difficulty of
applying this test arises on account of the fact that the respondent’s conduct may not cause any
injury to a normal person, but it may cause injury to a hypersensitive petitioner.

Now there are 2 types of cruelty

• Physical cruelty.
• Mental cruelty.

PHYSICAL CRUELTY-

Acts of one spouse against another spouse which results in the injury to the body, limb or health
or causing a reasonable apprehension thereof been traditionally considered as a cruelty. It totally
depends on the fact of the cases that what act will come under the cruelty. In Kausalya v. Shakira2,
husband ill- treated the wife, beat her so much so that she had to go to the police station to lodge
a complaint against her husband. The court held that according to the standards of all the civilized
world, these would constitute cruelty, even though injuries might not be so serious as to require
the medical treatment.

In Saptami v. Jagdish3 where husband abused the wife continuously and one day in her father’s
house, he pushed her against the wall, was also a clear case of cruelty. a single act of violence may
amount to cruelty.

In Ashok v. Santosh4, during the intercourse, the wife used to pull the flaccid penis of her husband.
The Delhi high court held this to amount to cruelty, as pulling of the flaccid penis can cause
extreme pain, if carelessly and contemptuously done, such pull of penis is amount to cruelty.

The ground for divorce under clause (A) of Parsi law is ‘ GREVIOUS HURT’. The Parsi marriage
and divorce act never uses the word ‘CRUELTY’, it always uses the word ‘Grievous Hurt’.

2
AIR 1961 PUNJ 520
3
(1969) 87 CWN 502
4
AIR 1987 DEL 63

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Under Muslim law, if husband habitually assaults the wife then only it is considered to be a cruelty
otherwise doing a single act of assault is not cruelty. Only habitual beating will get covered under
cruelty according to Muslim law.

MENTAL CRUELTY-

As I have discussed that physical cruelty is the only one exists in earlier times but now there is a
mental cruelty also, which is at the increasing rate and get recognized in modern times. Intention
is not important in cruelty but the mental condition or mental state cannot be ignored.

Basically when one spouse torture another spouse mentally like by taunting continuously, then that
will be considered as a mental cruelty.

In N. Sreeadecharya v. Lasantha5 In this case wife used to insult the husband on trivial matters.
she used to insults him publicly and every one just laughs at him. On one occasion, she insulted
him in the bus in front of everyone, then hold him with his collar, then one day she made him cook
a food for her, when he cooked the food for her and he served her in the plate, she just threw it by
saying that the food is not good and afterwards she insulted him in front of his friends. She just
wanted to kill her husband and sometimes she used to say that she wants that she wishes that he
got killed in some accident so that she get his provident funds and insurance money. Husband got
depressed by all this, he used to have a sleepless nights and his health started to get degraded. And
this case was the clear of cruelty and explains the mental cruelty so easily and clearly.

Another high watermark case on mental cruelty is Destine v. dastans6 . In this case wife used to
put filthy, bad, false allegations on her husband and his family members. She used to taunt her
husband, threaten him and his family . she uses the bad words for his family. She used to say that
I want the whole dastane family destruction, I will make you loose your job, she even speaks bad
about and to his parents. She even used to lock her husband down when he returned from the office
and they has girl child from their marriage, she used to rub chilly powder on her tongue. It was
said that she was somewhat mentally unstable but whatever the condition is the truth is that
husband is one who had to suffer all the things and this case comes under cruelty.

5
AIR 1970 MYS 232
6
AIR 1975 SC 1534

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SOME POINTS IN CRUELTY

• False accusation of adultery and unchastity- In the famous English case Sheldon v.
Sheldon7 , the husband denied to have a physical relationship with his wife for 6 years.
They both were living under the same roof, same room , even they both were sharing the
same bed. They both sleep on the same bed but still husband did’ not agree to get sexually
involve with his wife because of which the wife started getting irritated and get depressed.
Even the doctors informed him about the bad condition of his wife but after knowing
everything also he didn’t changed his attitude which results in the worst condition of the
wife. Then after some time wife filed for divorce and court granted her a divorce as there
was a mental and physical injury caused to wife by his husband.
In Kusum v. Kampta8 case Beg., J observed that the wife can handle anything in India but
the False accusation of adultery is beyond her tolerance limits.
In Chandra v. Sudesh9, wife left his husband home and start loitering with other people
because of which husband get tensed and mental and moral torture is caused to him and
this amounts to cruelty.
• Demand of Dowry- Demanding dowry from the bride or the girl or her parents comes
under cruelty according to Indian law. So any husband or his family will get punished if
they are demanding for dowry.
• Persistent refusal to have marital intercourse- A happy married life needs a normal and
healthy sexual relationship. If this is not present in the marriage because of the choice of
the spouse or ill health of a spouse, then entirely depends on the facts of the cases that it is
cruelty or not. But if one of the spouse willfully denies to have a sexual relationship with
the spouse then that amounts to mental cruelty. All of this is observed by Leila Seth, J. in
the case Shakuntala v. Om Prakash10

7
(1966) 2 ALL ER 257
8
AIR 1965 ALL 280
9
AIR 1971 DEL 208
10
AIR 1981 DEL 53

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 • Injury to Private Parts- This means that because of the action of one spouse, if the other
spouse get injury on his/her private parts, then that amounts to cruelty. If one of the spouse
is having a sexual intercourse in the cruel way. This can be seen in Ashok v. Santosh case.
• Drunkenness- According to the English decision, drunkenness is not the cruelty but in
Hindu culture it is cruelty. M.L. Jain, J. observed that if the spouse is drinking continuously
beyond the limits and he do it every day then this causes stress to the other spouse. So it
comes under the cruelty.
• False criminal charges- There is so many times when the wife and husband make false
criminal charges, even this amounts to cruelty, mental cruelty.
In Kalpana v. Surendra11 , wife lodged a complaint against the husband under Section 307
and 406 of IPC and Section 4 under Dowry Prohibition Act because of which warrants
were issued against her husband and his relations and they has to get the bail from the court
but afterwards it turn out that all the allegations were false. The court said that this amounts
to cruelty. In Shyamlata v. Suresh12 case the proceedings were dropped out for the want of
prosecution, the wife filed a complaint against her husband and in- laws. The court held
that this will not come under cruelty.
• Refusal to have children- It means that if one of the spouse don’t want to have a child and
instead of the wish of the other child the spouse didn’t agree to have the kids, then that will
come under cruelty as it frustrates the other spouse. If one of the spouse says that he will
have a sexual intercourse with the contraceptives only and other spouse is against it then it
amounts to cruelty. If wife terminates her pregnancy twice without any reason then it
amounts to cruelty or if wife got her pregnancy terminated against the wish of the husband
then also it is considered as a cruelty.
• Birth of an illegitimate child- If the wife is carrying a child of someone else’s then that is
cruelty13. If after getting married, wife gave birth to a child within 6 months then that is
cruelty if the child is not of the husband. But it is written in our law that no person can file
a divorce before the completion of 1 year of their marriage.

11
AIR 1985 ALL 253
12
AIR 1986 P & H 383
13
Mandan Lal V. Sudesh Kumar AIR 1983 DEL 93.

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 • Threat to commit suicide- If any one of the spouse threatens the other spouse that he/she
will commit suicide if he will do that or if he will not, then that will amount to cruelty
because you can’t force anyone to do anything against his will as it is considered as a
cruelty. We can see that in a case Dastane v. Dastane where wife gave a threat to his
husband that if he will not agree to whatever she says then she will commit suicide. This
comes under cruelty.
• False complaint to the employer- If any of the spouse lodged a false complaint against the
other spouse to his/her employer and he is getting effected then that is cruelty.
In Kiran v. Surendra14 case , the wife made the false allegations against her husband who
was the top class office of Ministry of External Affairs to the superior officer and these
letters damaged the reputation of the husband. The court said that this is cruelty.
In Jordan v. Chopra15 case the husband wrote a letter accusing her wife to her superior
officer. He accused her of adultery because of which she get effected and Court held that
this amounts to cruelty.
• In Harbhajan singh v. Amarjeet kaur16 case wife lodged a false complaint against her
husband to his bank employers. Those letters which a wife wrote the employers says that
the husband had done a fraud in the bank and forging signatures he had withdrawn some
amount of money from the bank. So it is cruelty by wife against his husband as these were
very serious allegations.
• Verbal Abuses and insults using filthy and abusive language- It is now very clear that if
the spouse is doing verbal abuse, insulting the other abuse in a serious way by using filthy
and abusive language, then that will amount to cruelty.
• Ordinary wear and tear of a married life- At every issue, it cannot be said that it is cruelty
like if the spouse is moody, selfish, arrogant, boorish, stingy, irritable then it is not cruelty
as minor things are not cruelty.
In Raj Kumar v. Ram Prasad17 case the wife used to abuse her husband and sometimes she
even refused to cook the food till the time the husband will not send money to her family

14
(1982) RLR Note 32.
15
AIR 1985 NOC 45
16
AIR 1986 MP 41.
17
(1968) 70 PLR 879.

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 and even she brought a tawiz so that he start hating his parents but Court help that all these
things are not come under cruelty.
In Narayan v. Prabha18 case the mother-in-law didn’t allow her daughter-in-law to take
bath in cold water, to touch some things during her period time, never allows her to go and
talk to neighbors, always wanted her to obey her, she didn’t even allow her to go to watch
movie, one day in anger the daughter-in-law destroyed her tobacco which she was addicted
to. So Court said that whatever the daughter-in-law has done will not be amount to cruelty.
In Anna v. Tarabai19 case the husband wants her wife to go with him on some events and
sometimes he even forces her to do that but the wife didn’t like to go out with him. In this
Court said that whatever husband one is normal and justified, this has nothing to do with
cruelty or this did not come under cruelty.
In Santosh v. Praveen20 case the wife lived with her husband only for 3-4 days and after
that she accused him that he is doing mental and physical cruelty on her. The court says
that after living only for 3-4 days, no one can find out or no one can do cruelty in these less
days. So it is not more than the initial wear and tear of married life.
In the case J.L. Nanda v. Veera Nanda21 case the court held that raising of voice, normal
fights does not amount to cruelty.

Defense of cruelty- Now the insanity is not the good defense for cruelty as it cannot be said
that the person is not mentally fit or stable that is why he or she is behaving like this or
acting like this. Court does not take the insanity as a defense of cruelty now because if the
one spouse is suffering from insanity then because of him the other spouse has to suffer
which is unfair on the part of other spouse. So this is no longer the defense of the cruelty.
Another point is self-defense. It is still a good defense of cruelty. It can be said that in self-
defense I have done that act, then the court can get convince, if you prove that whatever
you have done against your spouse is done in self-defense, then court can give decision in
your favor.

18
AIR 1964 MP 28.
19
AIR 1970 MP 36.
20
AIR 1987 P & H 65.
21
AIR 1988 SC 407.

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 SOME CASE LAWS-
• BHAGAT V. BHAGAT22
In this case the husband was a lawyer and wife calls her husband a lunatic and said that he
and his whole family in insane. Her this action stresses the husband and her whole family.
So the court held that wife had done a cruelty against her spouse.

• SHANTI DEVI V. RAGHAV PRAKASH23

In this case the wife put the allegation on her husband that he is impotent, which puts a big
question on his manhood. This causes stress, mental agony and pain to the husband.

• JALAN V. JALAN24
In this case the wife of an army officer send a letter to the superior authority saying that he
has a affair with another woman from last three years and she wanted them to change his
field to high altitude. The letter which were written by wife were send to the President and
Prime Minister which is a big deal. Afterwards the allegation was proved wrong or false.
So the court said that all these things cause harm to the reputation of the husband, he got
humiliated, mentally tortured and he got stressed. So this amounts to cruelty by his wife
against her husband.

• RITA V. BRIJ KISHORE GANDHI25

In this case the court says that drunkenness is not cruelty under Hindu Marriage Act, but if
the drinking is strongly apposed or protested by the other spouse and then also if he do the
drinking then it is amount to cruelty and can be a ground to divorce.

• A. V. B.26

22
AIR 1994 SC 710.
23
AIR 1986 RAJ. 13.
24
AIR 1988 ALL 239.
25
AIR 1984 DEL 291.
26
AIR 1985 GUJ 121.

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 In this case the court says that the baseless, wild allegation by husband on his wife is mental
cruelty. In this case the husband puts the allegation on his wife that she was unchaste, which
is a big allegation on anyone. Because of which she got insulted and she get stressed. So
this amounts to cruelty by husband against his wife.

• RAJINDER SINGH JOON V. TARA WATI 27

In this case the husband met with an accident which is serious in Assam. The wife was in
Delhi at that time, so she got informed. She did not go to met him, when the husband was
bought to Delhi, at that time also she did not go to see him even for once. The court held
that is cruelty and the wife is guilty of cruelty.

• JINLAL ABROL V. SARLA DEVI28

In this case the husband said that the wife is suffering from some disease because of which
the foul smell is coming from her nose , and that this amounted to cruelty on the wife’s
part. The court held that by itself, would not and never be amount to cruelty.

• JYTISH V. MEERA29
In this case the court said that if one of the spouse willfully refused to have a sexual
intercourse with the other spouse then this can cause frustration, irritation, mental stress to
the spouse. So it is a cruelty.

CONCLUSION

Basically cruelty in the eyes of law is both physical and mental. It is not all about the
hitting. The cruelty can be done by one spouse to another mentally like by humiliating him
in front of everyone. The decisions of the cases and some grounds like drunkenness
depends on the facts of the cases. Even the demand of dowry is a cruelty. Earlier, about

27
AIR 1980 DEL 213.
28
AIR 1978 J & K 69.
29
AIR 1970 CAL 266.

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hundred and fifty years ago, the cruelty was totally different from now. Now the meaning
of the word in the eyes of the law is wide. According to Muslim law, if the husband is
habitually assaulting his wife, then it is amount to cruelty, his single actions are not cruelty.
By reading these many case laws I have observed many things like, that if we talk about
sexual intercourse between husband and wife, then no spouse can willfully refuse to have
a sexual intercourse with his wife, if any one them is doing it then it amounts to cruelty.
Having sexual intercourse cruelty or which can cause a lot of aim to the spouse is also a
cruelty. Now, insanity is not the good ground for the defense of cruelty because it is said
that if any one spouse is suffering from the insanity, then his actions may cause stress or
harm to the other spouse and it is unfair for the other spouse. So it is no longer a good
defence. Self- Defence is a good defence for cruelty. It can be taken as a defence that the
action which is done by one spouse against the another spouse is done in self- defence. So
this is the good defence of cruelty. Small things like if one of the spouse is moody, arrogant,
selfish, strict, boorish, irritable, inconsiderate, stingy, whimsical, these small things are not
considered as a cruelty. Ordinary fights in married life, raising of the tone of the voice and
small misunderstandings are some more things which cannot be considered as a cruelty.
Cruelty is a small word having a wide, deep meaning in the eyes of the Law.

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 SAMPLE OF DRAFTING PETITION FOR DIVORCE UNDER GROUND OF
CRUELTY

IN THE COURT OF THE _____________ JUDGE AT _________

MATRIMONIAL CASE NO. __________ OF 20__

IN THE MATTER OF:

MRS. Mallika PETITIONER

VERSUS

MR. Sanjeev RESPONDENT

PETITION FOR DECREE OF DIVORCE UNDER SECTION 13(1)(ia) OF HINDU

MARRIAGE ACT, 1955

MOST RESPECTFULLY SHOWETH:

The Petitioner, above named states as under:

1. That marriage of the Petitioner and the Respondent was solemnized on __________ at
____________ according to Hindu rites and ceremonies. The marriage was registered with
the Registrar of marriages at ___________. Certified copy of the extract from the
concerned register is attached herewith as Annexure P-1.

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2. That the status and place of residence of the Parties to the marriage before the marriage
and at the time of filing this petition is given as under:

i) Place of residence before the Marriage

ii) Place of residence at the time of filing the Petition

3. That from the marriage ______ couple has been blessed with one boy aged 3 years.

4. That the Petitioner and his wife were living together happily at the matrimonial house.
That on _______ husband of the Petitioner has expelled the Petitioner after merciless
beatings, when she questioned him about his drunken nature and misusing of money for
drinking liquor with his friends.

5. The Petition has not in any manner necessary to or condoned the acts complained of or
connived at, but the Respondent is treating the Petitioner with cruelty after immediately
after two weeks of solemnization of the marriage.

6. The Petition is not being presented in collusion with the respondent.

7. The Petition is being presented without any unnecessary or improper delay on the part
of the Petitioner.

8. There is no other legal ground as to why the decree prayed for should be not granted in
favour of the Petitioner.

9. That no litigation has taken place between the parties to the Petition earlier.

9. This Hon'ble Court has jurisdiction to entertain and try this Petition as the marriage was
solemnized at ____________ the parties last resided together at _____________ and even
presently the respondent is residing within the Jurisdiction of this Hon'ble Court.

10. In the facts and circumstances of case mentioned herein above this Hon'ble Court may
graciously be pleased to:

PRAYER

That the Petitioner, therefore, prays:

a) for grant of decree of Divorce in favour of Petitioner and against the Respondent; and

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b) Any other relief or reliefs which the court may deem proper under the circumstances be
also awarded to the petitioner.

PETITIONER

THROUGH

______________ Advocate

Place :

Date :

VERIFICATION

I, Mallika, state on solemn affirmation that whatever contained in paragraphs ____ to Para
No __________ of the Petition is true to my own knowledge and that whatever contained
in paragraphs No _____ to Para No ________ is based on information received and
believed to be true to me.

Signed and verified this _______ day of _______ 20 _______ at _______

PETITIONER

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