Under
section 13 (1) (i-a) of the Hindu Marriage Act, 1955 (as amended by the
1976 Act) on a petition presented by either party, the marriage can be
dissolved by a decree of divorce on the ground that the other party has
treated the petitioner with cruelty. Prior to the amendment, “Cruelty”
was one of the grounds for judicial separation under section 10 of the
Act. Under that section, “Cruelty” was given an extended meaning by
using an adjectival phrase, viz. “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”.
Meaning & Determination of “Mental” Cruelty: The
expression “Cruelty” has not been defined in the Hindu Marriage Act,
1955. “Cruelty” can be either physical, mental, intentional or
unintentional. The question of mental cruelty 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. Mental cruelty is a matrimonial wrong.3
It is not possible to lay down a precise definition or to give exhaustive
description of the circumstances, which constitute “Cruelty”.
“Mental” cruelty broadly means, when either party causes mental pain,
agony or suffering of such a magnitude that it severs the bond between the
wife and husband and as a result of which it becomes impossible for the
party, who has suffered, to live with the other party. In other words, the
party who has committed wrong is not expected to live with the other
party.
In
case of physical cruelty, the court has no problem in determining
it. It is a question of fact and degree. If it is mental,
the problem arises. In such a case:
(i)
the nature of cruel treatment must be enquired first;
(ii)
the impact of such treatment in the mind of the spouse, i.e.
whether it caused reasonable apprehension that it would be harmful or
injurious to live with the other spouse.
Therefore,
the inference has to be drawn by taking in to consideration the nature of
the conduct and its effect on the complaining spouse.5
Test
of reasonable man not applicable: Although under section
10(1)(b), the apprehension of the petitioner that it will be harmful or
injurious to live with the other party, has to be reasonable. But the
concept of reasonable man as known to the law of negligence cannot be
imported for judging the matrimonial relations. The court cannot apply to
the habit or hobbies of spouses, the test whether a reasonable man
situated similarly will behave in a similar fashion.5
Injury
to the health of the petitioner need not be proved: The cruelty
should not be judged from a solitary incident, but on an overall
consideration of all relevant circumstances. The Supreme Court in V.
Bhagat v. D. Bhagat6
had observed that mental cruelty under section 13(1) (i-a) can broadly
be defined as under:
(i)
the conduct inflicting upon other party such mental pain and
suffering as would make it not possible for that party to live with the
other;
(ii)
injury to the health of the petitioner need not be proved.
Regard
must be to the following:
(i)
the social status of the parties;
(ii)
educational level of the parties;
(iii)
their physical & mental conditions;
(iv)
the society they move in;
(v)
their customs, traditions;
(vi)
sanctity and importance of marriage in a community life;
(vii)
other similar circumstances;
(viii)
the possibility or otherwise of the parties ever living together in
case they are already living apart;
(ix)
all other relevant facts and circumstances which cannot be set out
exhaustively.
Grave & Weighty Conduct: To constitute “Cruelty” the
conduct complained of should be “grave & weighty” i.e.
something more serious than “ordinary wear & tear of married
life’. The conduct should be such that the petitioner cannot reasonably
be expected to live with the other spouse.7
Physical violence not essential: Physical violence is not
absolutely essential to constitute “Cruelty” and a consistent course
of conduct inflicting immeasurable mental agony and torture may well
constitute cruelty within the meaning of section 10 of the Act. ‘Mental
cruelty’ may consist of verbal abuse and insults by using filthy and
abusive language leading to constant disturbance of mental peace of the
other party.8
Instances
of “Mental Cruelty”
(i)
In Dastane v. Dastane9,
the conduct of the respondent was held to be cruelty within the meaning of
section 10(1)(b) of the Act. The letters written by the wife threw light
on the fact that the wife used to get into fits of temper and say things
for which she would express regret later. She made admissions to having
behaved very “badly” and had harassed her husband.
The threat that she will put an end to her own life or that she
will set the house on fire, the threat that she will make him lose his job
and have the matter published in newspapers and the persistent abuses and
insults hurled at the appellant and his parents were all of so grave in
order as to imperil the appellant’s sense of personal safety, mental
happiness, job satisfaction and reputation. Her once too frequent
apologies never reflected genuine regrets but were mere devices to tide
over a crisis temporarily.10
(ii)
In Shobha Rani’s11
case, S, the appellant wife was post graduate in biological sciences.
M was the respondent husband, a doctor. They were happily married on
December 19, 1982. But their happiness did not last long. They started
exchanging letters with bitter feelings. The wife moved the court for
divorce on the ground of cruelty i.e. the husband and his parents
made dowry demand. And the circumstances and the evidence of parties led
to the conclusion that the demand of dowry went on with the support of the
husband. Although, the offence under section 498A IPC was not made out,
but the demand of dowry is otherwise prohibited under law and amounted to
cruelty under section 13(1) (i-a) entitling the wife to get a decree for
dissolution of marriage.12
(iii)
In A. Jaya Chandra v. Aneel Kaur, the appellant and
the respondent were married on 10.10.1978 and it was a love marriage. Both
were doctors by profession. They had two major children. The husband was
Tamilian and the wife was Sikh. Both were working in a hospital
established by appellant’s father. The wife used to give unnecessary
instructions to the husband making his life miserable. The husband found
the behaviour of the wife humiliating and amounting to mental cruelty;
husband filed a petition under section 13 of the Hindu Marriage Act, 1955
before the Family Courts, Hyderabad. Respondent wife had ill-treated her
husband, abused him in vulgar language in the home and at the hospital and
at other places thereby causing mental agony, damage and loss personally
and professionally and also in the social circle; allegations were made
about his character also. Caveats were filed at different places with a
view to forestall legal action, and create an impression of innocence.
Caveats were lodged at the wrong address of the appellant.
Taking
advantage of own wrong
The
relief prayed for is given only if the court is satisfied that the
petitioner is not in any way taking advantage of his own wrong. In many
marriages, the parties can discover many a cause for complaint but such
grievances arise mostly from temperamental disharmony. Such disharmony or
incompatibility is not cruelty and will not furnish cause for the
dissolution of marriage. The court takes into consideration only grave and
weighty incidents and not trifles of the married life.
In
Chetan Dass v. Kamala Devi13,
the husband had illicit relations with another woman and the wife was
prepared to live with the appellant but on the condition that he should
dissociate himself from the other woman. The allegations were made by the
husband about her dissatisfaction with the living conditions at his
parent’s place was found to be incorrect by the court. The decree for
divorce, on the ground of desertion on the part of his wife without any
reasonable cause was found to be incorrect. Behaviour of the
appellant fell in the category of the misconduct on his part. The
court did not allow the husband to take advantage of his own wrong. He was
not granted decree of divorce on the ground of marriage having been
irretrievably broken.
Form
of Evidence: In Physical cruelty, the evidence can be tangible
and direct, but in the case of mental cruelty there may
not be direct evidence. In the absence of direct evidence, courts
must probe into the mental process and mental effect of incidents that are
brought out in evidence 14.
The
expression “Cruelty” has been used in relation to human conduct or
human behaviour. It is the conduct in relation to or in respect of
matrimonial duties and obligations. And in delicate human relationships
like matrimony, one has to see the probabilities of the case. The concept,
proof beyond the shadow of doubt is to be applied in criminal
trials and not to civil matters and further not to matters of such
delicate personal relationships as those of husband and wife. Therefore,
the probabilities in a case has to be seen and legal cruelty has to be
found both:
(i)
as a matter of fact; and
(ii)
as the effect on the mind of the complainant spouse as a result of
the acts and omissions of the other.
Often
the two steps intermingle
Preponderance of probabilities: Within the wide range of
probabilities, the Court has often a difficult choice to make but it is
this choice which ultimately determines where the preponderance of
probabilities lies. The following matters demand closer scrutiny:
(i)
status of parties;
(ii)
nature and gravity of an issue determining the manner of attaining
reasonable satisfaction of the truth of the issues.
The
degree of probability depends on the subject-matter. The proof must be
clear, taking into consideration for gravity of the offence. In civil
cases, therefore, the test to apply is whether on a preponderance of
probabilities, the relevant fact is proved15.
Proof beyond reasonable doubt not required Proof beyond
reasonable doubt is a proof by a higher standard governing criminal and
quasi-criminal trials where the liberty of the subject is involved.
Liberty of a subject may not be taken away on a mere preponderance of
probabilities.
A
doubt arises regarding the existence of the
fact to be proved if the probabilities are balanced and a
reasonable mind is not able to find where the preponderance lies. In such
a case, the benefit of such reasonable doubt goes to the accused.
The
abovestated considerations can not be imported in trials of a purely civil
nature. Neither section 10 nor section 23 requires that the petitioner
must prove his case beyond a reasonable doubt. Under section 23, the court
can pass a decree if it is “satisfied” on matters mentioned in clauses
(a) to (e) of the section. And the word “satisfied” means satisfied on
a “preponderance of probabilities” and not beyond a reasonable doubt16.
Unintentional
but Inexcusable Conduct Intention is not
a necessary element to establish cruelty under section 13(1)(i-a) Hindu
Marriage Act.
If
there is intention to harm, harass or hurt inferred by the nature of the
conduct or brutal act complained of, the cruelty can be established
easily. But the absence of intention does not make any difference if by
ordinary sense in human affairs, the act complained of can be regarded as
cruelty. The relief to the party should not be denied on the ground of
absence of deliberate or willful ill-treatment17.
So,
intention is not an essential element for establishing cruelty under
matrimonial law. The test is whether the acts or conduct of the party
charged was himself or herself a cruel man or woman. Intention is the
requirement of the offence of “Cruelty” defined under section 498A
IPC. Section 13 (1)(i-a) of the Hindu Marriage Act provides that the party
has after the solemnization of the marriage treated the petitioner with
cruelty. There may be instances of cruelty by the unintentional but
inexcusable conduct of any party. In such cases, the act of cruelty may be
established. The context and the setup in which the word “Cruelty” has
been used in the section, the intention is not a necessary element in
cruelty. The question in such cases is generally whether the conduct of
the party charged was cruel according to the ordinary sense of that word
rather than whether the party charged was himself or herself a cruel man
or woman18.
To
conclude, one must bear in mind that the problems before the court in such
cases are those of human beings and the psychological changes in a
spouse’s conduct are to be kept in mind for deciding such petitions.
Although an insignificant conduct may cause pain in the mind of another,
but before the conduct can be called cruelty, it must have certain pitch
of severity. Further, a too technical and hyper-sensitive approach would
be counter-productive to the institution of marriage. In such cases, the
courts do not deal with the ideal husbands and ideal wives, but with
particular man and woman before it.
1.
Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105: AIR 1989 SC 121.
2.
Ibid, Dastane v. Dastane, AIR 1975 SC I 534.
3.
A. Jayachandra v. Aneel Kaur, 2005 AIR SCW 163.
4.
Supra Note 1.
5.
Supra Note 2.
6.
(1994) 1 SCC 337.
7.
Supra Note 3.
8.
Ibid.
9.
Supra Note 2.
10.
AIR 1975 SC 1534.
11.
Shobha Rani v. Madhukar Reddi, AIR 1989 SC 121.
12.
2005 AIR SCW 163.
13.
AIR 2001 SC 1709.
14.
Supra note 3.
15.
Ibid.
16.
Ibid.
17.
Supra note 1.
18.
Ibid.
