Lawwatch

Cruelty as a flourishing ground for Divorce

Cruelty is an adequate ground for dissolving a marriage solemnized under
a valid law, on a petition filed by either of the party in marriage. But
what constitutes cruelty is not spelt out in law. This creates some
confusion among the stakeholders of divorce petition and they bring in
anything and everything under the sun as an instance of cruelty to get a
quick divorce which the law has never envisaged at all. The legislature
has consciously left this job of determining what all things come under
cruelty, to the concerned court to be determined on assessing all the
facts and circumstances of each case. This is primarily meant to avoid
auto-limitation and restrictive operation in deciding divorce cases and
thereby enable the court to keep its ambit wide open.

Grounds for divorce in Muslim law

The Dissolution of Muslim Marriage Act 1939 is probably the only Indian
law that enlists six situations where an act of husband may amount to
cruelty in the perspective of the wife. The situations - available only
to the wife to invoke - are:

  • the husband assaults her habitually and makes her life miserable by
    cruelty of conduct even if such conduct does not amount to physical
    ill-treatment

  • the husband associates with women of ill-repute or leads an infamous
    life

  • the husband attempts to force her to lead an immoral life

  • the husband disposes of her property or prevents her from exercising
    her legal rights over it

  • the husband obstructs her in the observance of her religious
    profession or practice, and

  • the husband has more than one wives and does not treat her
    equitably.

Though the law sets apart the reasons exclusively for women they can be
used as guiding indications in deciding cases filed by men where similar
situation exists.

Cruelty not defined in other laws

The Hindu Marriage Act 1955 originally did not include “cruelty” as a
ground for divorce, but for judicial separation alone. However due to
the changing mores of the society it has been made a ground for divorce
in its amendment in 1976. However in a catena of decisions the courts
have enlisted many instances of cruelty which would serve as a guiding
force in similar cases. A birds-eye-view of them will make one arrive at
a broad understanding of what all things constitute cruelty in the
judicial eye. The basic principle upheld in almost all such decisions is
that cruelty is nothing but willful infliction of bodily or mental pain.
But in a finer classification cruelty can be further elaborated as
physical, mental, moral, social and even emotional in nature. The courts
through those decisions make out in unequivocal terms that any act of
whatsoever nature that makes it impossible for both the spouses to live
together without intense hatred and rancor, is nothing but cruelty.

In physical cruelty there shall be visible direct evidence. But in
mental or other kinds of cruelty there would be no direct evidence but
only intangible or indirect evidence which would be inferred from the
instances both parties bring in. However consistent infliction of mental
torture may very well come within the contours of cruelty.

Some instances of cruelty

Let us see some of the instances of behavior which the court declared as
cruelty.

In general, cruelty includes willful and unjustifiable conduct - both
physical and mental - that may cause danger to life, limb and health.
Trivial quarrels, petty quibbles and trifling differences between
spouses that would happen in every married life cannot be construed as
cruelty or unacceptable behavior. The acts of cruelty complained of
should be something more than ordinary ‘wear and tear’ of married life.
But continuous ill-treatment, absence of sexual relation or denial of
sex for long to the spouse, conscious neglect, total indifference,
purposeful humiliation etc may come within the purview of cruelty. It is
not correct to consider an isolated instance of misbehavior as cruelty
but the facts and circumstances should be taken into consideration in a
cumulative manner.

Therefore any isolated incident of cruelty, other than grave and weighty
misconduct, against a spouse can’t be a ground for divorce. Any abnormal
behaviour unacceptable to the other party and the society at large will
constitute cruelty. In order to constitute cruelty there must be harsh
or painful conduct of certain amount and for a relatively prolonged
period. What is cruelty in one case may not be cruelty in another.

Mere filing of a complaint against the other party to marriage is not
cruelty if the complaint is based on concrete facts and justifiable
reasons. On the other hand, if the allegations in the complaint are
false, or on flimsy ground the leveling of such accusations against the
other spouse can be termed as cruelty. Any of the spouses cohabiting
with another individual is cruelty. But a wife making baseless
allegations about her husband having illicit relationship with other
woman unsupported by concrete facts is declared as mental cruelty.
Assaulting the wife in a state of intoxication and creating intolerable
nuisance at her workplace would amount to cruelty. Separation of a
spouse voluntarily from the company of the other is termed cruelty.
Contracting a second marriage during the subsistence of the first one by
a spouse will amount to cruelty. One of the spouses not telling the
other about affliction of sexually transmitted disease while continuing
sexual relations with the other spouse is cruelty. The wife refusing to
maintain sexual relations with the husband amounts to cruelty.
Unjustified refusal of intercourse to the other party to the marriage
constitutes cruelty but there is considerable difficulty in convincing
the court that the refusal is unjustifiable.

Any conduct of a spouse which inflicts mental pain and suffering upon
the other and thereby makes it impossible for him/her to live with the
other, comes within the ambit of cruelty. An act that a spouse cannot
endure in a normal circumstances and standards is deemed to be cruelty.
There is no hard and fast dividing line between the conduct which is
considered cruel and which is not. It is not easy for anyone to measure
it by any absolute and objective standard.

In dealing with cruelty the entire matrimonial relationship between both
as a whole must be taken into account. It is a question of fact. The
question that whether an act complained of constitutes cruelty is to be
determined from the peculiar facts and circumstances of the marital
relationship between the spouses. The spouse seeking divorce on the
ground of cruelty must prove that the other spouse had persistently
treated the one with cruelty.

Some landmark Judgments

Let us see some of the classic judgments which try to delineate cruelty
in different perspectives.

One old high profile case still being referred to in almost every
judgment on cruelty - particularly mental cruelty - is V Bhagat v D
Bhagat
(1994 SCC 337).

Another one is Naveen Kohli v Neelu
Kohli
(AIR 2004 All 1), the
judgment of which describes the impact of physical cruelty after
analyzing the facts of the case in other countries too.

Samar Ghosh v Jaya Ghosh (2007
4 SCC 511) is yet another high profile case, the judgment of which
provides a detailed account of what constitutes mental cruelty based on
authentic documents and judicial pronouncements from India and other
countries even though no uniform standard could be fixed to serve as
guidance in such a extensive issue.

In K Srinivas Rao v D A
Deepa
( Civil Appeal No 1794
of 2013 ) the Supreme Court held that mental cruelty can be done without
even staying under one roof. The order highlights the need for
negotiated settlement in regard to issues of cruelty so as to prevent
the marriage from reaching a state of irrevocable breakdown.

The judgment in Suman Sing V Sanjau
Singh
(2017 4 SCC 85)
reiterated that a few isolated incidents of long past, which had been
found to be condoned due to compromising behavior of the parties
subsequently, cannot be considered cruelty, as per the norms laid down
in earlier binding cases.

Conclusion

When there is cruelty, the matrimonial relation will deteriorate into
one which makes marital life of the pairs full of agony, distress and
mental pain. Therefore the safe course for both parties for a better
living is to get a legal divorce. If the marital relation deteriorates
into a level which no reasonable person would tolerate, it deserves
nothing but ending up in divorce.

However, as Lord Denning says, \”If the door of cruelty were opened too
wide, we should soon find ourselves granting divorce for incompatibility
of temperament.

This is an easy path to tread, especially in undefended cases. The
temptation must be resisted lest we slip into a state of affairs where
the institution of marriage itself is imperiled.\” We, as a people, do
not want to derail the institution of marriage by exuberantly defining
cruelty as wider as possible.

Tolerance is the foundation of happy marriage. Strategic adjustments and
mutual respect of one another are necessary social requirements of a
sound marital relation. Whenever such qualities disappear from the
spouses due to substantive reasons or flimsy ego clashes, they queue up
before the family court citing the other person’s cruelty as a reason
for fighting each other and pass though some ignominious proceedings to
end up their marriage – an institution indispensable not only for
upbringing the children in a healthy social beings but also for
maintaining the healthy fabric of the society they live in.

Even if both the spouses think there is sufficient reason for divorce
the right way for them is to negotiate the issues and settle the
differences in a civilised manner. Contesting the case with facts and
circumstances resembling some fairy tales and unimaginable lies, as is
being practiced in our family courts, is to be discouraged.

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