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 women can only be subject 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 use this section as a powerful weapon against their husband.
This paper is a humble attempt to find out what all acts/omissions amounts to cruelty. How women use the loopholes in law to work for their own benefit? Authors also intend to explore and find out reason as to why such practice is increasing day by day with the aid of recent case laws. Towards the end authors aim to find out possible suggestions in order to deal with the issue.
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(Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778).
Cruelty is considered as a ground for divorce in various laws. 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. Some provisions under different laws are:
· Section 13 of The Hindu Marriage Act, 1955: Under section 13 of The Hindu marriage act, cruelty is a ground for divorce.
· 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.
Every law has its backside. People often tend to mis-use laws to satisfy their personal needs while ignoring the main purpose for which the law was enacted. Now a days, the laws which were enacted to prevent the interest of women act as a strong weapon of harassment and cruelty against men. 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.
II. Grounds for cruelty
A wife's conduct of:
- humiliating her husband in the presence of family members and friends (Krishna Banerjee v. Bhanu Bikash Bandyopadhyay , AIR 2001 Cal 154), taunting her husband on his physical incapabilities, denying him access to physical relationship, Wife opting out for second marriage without applying for the divorce proceedings, deliberately wearing clothes which her husband dislikes, neglect, Extra-marital affairs of wife can also be a ground of cruelty against the husband, coldness and insult, threatening to commit suicide, keeping husband outside the door of house, Cruel behavior of wife where wife tearing the shirt of the husband, refusing to cook food properly or on time and breaking of the mangalsutra in the presence of husband’s relatives, visiting her parent's family off and on against her husband's wishes, undergoing an abortion despite her husband asking her not to do so, refusing to do household work, complaining to husband's employer, disobedience.
All these are not acts of physical violence but yet it has an effect on the husband's mind and due to this, the husband's health suffers and therefore these acts can be termed as cruel (Sudhir Shah & Asscociates , Cruelty as a Ground For Divorce).
There are countless case laws dealing with the subject of cruelty which may be referred here but even then it is fact that no hard and fast rules can be laid down as to what act or conduct will amount to cruelty in any given case.What may amount to cruelty in one case may not amount to cruelty in another case.
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. In other words, the party who has committed wrong is not expected to live with the other party (S.Hanumantha Rao v. S.Ramani, AIR 1999 SC 1318). Making false allegations by wife against the husband amounts to mental cruelty.
In order to consummate marriage, ordinary and complete sexual intercourse must take place (Gudivada Venkateswararao v. Gudivada Nagamani, AIR 1962 AP 151). If the serious allegations against husband having illicit relationship with another woman leveled by wife in written statement remain unsubstantiated, it amounts to cruelty against husband (Surinder Mohan Chopra v. Nirmala Chopra, AIR 2007(DOC) 183 (P & H)(DB). Marriage would be avoided or dissolved on the ground of impotence if it is established that at the time of marriage either spouse was incapable of effecting the consummation, either due to structural defect in the organs of generation rendering complete sexual intercourse impracticable or due to some other cause.
The wife leveled charge of second marriage on husband, placing reliance on voter’s list. It was held that the electoral roll was not cogent evidence to prove second marriage of husband (Raj Kumari Jaiswal v. Ramesh Kumar Jaiswal ,AIR 2007 Cal 94).
Adultery can be a ground for dissolution of marriage. False allegation of adultery against husband amounts to divorce (Prem Chand Pandey v. Savitri Pandey ,AIR 1999 All 43).
In case of Bipin Chandra Jaisinghbhai Shah Vs Prabhawati ,(1956) SCR 838 the essential conditions for the offence of desertion are prescribed as regards deserting spouse:
· The factum of separation
· Intention to bring co habitation permanently to an end
As regards deserted spouse:
· Absence of consent
· Absence of conduct giving a reasonable cause to the spouse leaving the matrimonial home for the necessary intention.
Where the husband himself, his sister and his parents were always crazy to have a child in the family but the wife always dashed their hopes by resorting to termination of pregnancy twice, this conduct of the wife amounts to mental cruelty at least, if not physical to her husband and the husband’s will within his right to claim decree of divorce on that ground (Satya v. Siri ram, AIR 1983 P & H 252).
If the husband takes the plea of cruelty by wife, then the burden lies on him to establish his case (R.Sivasubramaniam v. S. Krishnaveni, (AIR 2007 (NOC) 584 (Mad)).
It is no doubt open for the petitioner husband in a petition for divorce on ground of cruelty to seek a decree of divorce on grounds arising out of charges leveled in the written statement by the respondent wife which amounts to cruelty (Section 13, Hindu Marriage Act,1955). The wife tearing of bridal garland on the marriage day itself also amounts to cruelty (J.Sudhakara Shenoy v. Vrinda Shenoy , AIR 2001 Karn 1)
In this case petitioner/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 so it can be considered as cruelty against husband(Mrs. Deepalakshmi Saehia Zingade v. Sachi Rameshrao Zingade, AIR 2010 Bom 16).
Wife leading immoral life amounts to cruelty. The wife had illicit relations with another person. it was held that the conduct of wife amounted to mental cruelty and hence the order decreeing divorce in favor of husband was proper (Vimla Ladkani v. Dr Chandra Prakash Ladkani, AIR 1996 MP 86).
Acts of commission by a woman in filing a criminal complaint against her husband and his relatives resulting in the husband being in distress in jail constitute mental cruelty to him and, therefore, he is entitled to get the relief of divorce, the Madras High Court has held. The judges said what conduct would amount to cruelty was a question of fact to be decided on the facts and particulars of each case. Citing a Supreme Court judgment, the Judges observed that cruelty would normally consist not of harmful acts but of injurious reproaches, complaints, accusations or taunts. It should be established that one party in the marriage, ignoring consequences, had misbehaved, which the other party could not be called upon to endure, and that misconduct had caused injury to health or a reasonable apprehension of such injury (K. T. Sangameswaran, Man granted divorce on grounds of cruelty, June 4, 2012, The Hindu).
Distress and social humiliation heaped on a husband by his wife by filing a false complaint and getting him arrested would amount to cruelty, which is a valid ground for divorce, the Madras high court has said. A division bench comprising Justice Elipe Dharma Rao and Justice M Venugopal, passing orders on an appeal filed by a man, said: "The mental cruelty will continue to hurt a person throughout and any amount of healing words or healing touch would not wipe out the tears/scars, which continue to cause hurt and prick one's life." The bench said filing of a criminal case, the man's detention in judicial custody for twenty-two days and his acquittal by the criminal court clearly constituted mental cruelty meted out to him, who admittedly would have undergone a traumatic experience and humiliation in the social circle. All these acts would clearly fall within the ambit and purview of cruelty," the bench concluded, adding that the husband was entitled to the relief of divorce. The man had filed a divorce plea in the family court on the ground that his wife quarreled with him and his family members for trivial matters and frequently threatened to commit suicide unless he agreed to separate from the joint family. His petition said she later lodged a complaint of dowry harassment and ill-treatment against him and six of his family members (A Subramani, Man gets divorce for harassment by wife, Jun 2, 2012, The Times of India).
III. Section 498A of IPC and its mis-use
Initially section 498A came into existence in order to protect women from dowry harassment and domestic violence. But presently, the instances of misuse of this provision have become a daily phenomenon. It is no wonder that Supreme Court in the landmark case of Sushil Kumar Sharma vs. Union of India (2005 (6) SC 266). has condemned 498A as ‘Legal Terrorism’. Since cruelty is a ground for divorce under section 13 (1) (ia) of Hindu marriage Act, 1955. Wife often use this provisions in order to threaten husband.
According to the information received from the Hon’ble High Courts (during the year 2011), 3, 40,555 cases under Section 498-A IPC were pending trial in various courts towards the end of 2010. There were as many as 9, 38,809 accused implicated in these cases excluding Punjab and Haryana courts (243rd report of Law commission on section 498A of IPC). This data makes it crystal clear that day by day the problem is getting more severe.
A strict law in this regard needs to be passed by the parliament in order to punish those who act malafidely and tries to misguide the system of law. Law commission in its 243rdreport opined that the Section together with its allied Cr.PC provisions shall not act as an instrument of oppression and counter-harassment and become a tool of indiscreet and arbitrary actions on the part of the Police(243rd report of Law commission on section 498A of IPC).
When women accuse their husbands under S.498A IPC by making the offence non-bailable and cognizable, if the man is innocent he does not get a chance quickly to get justice and ‘justice delayed is justice denied’(243rd report of Law commission on section 498A of IPC).
Women NGOs should not serve as a catalyst to promote frivolous complaints rather they should fight against false complaints. Trivial matters should be dealt in trivial manner. Wife and their relatives should be made aware of the consequences of their act.
It has been observed that, during the pendency of the case filed under section 498A, husband and their relatives are forced to come to court in order to defend their case. In the process, even though final verdict is in favour of husband, the mental and financial agony suffered during the entire proceeding is also a matter of concern. Hence, focus should also be on speedy and prompt disposal of the cases. For this some amendments should be brought into force which specifies time-period for the same. Unless required, husband should not unnecessarily be burdened to show physical presence. Further, some concepts should be made clear in order to do away with ambiguity.
By now it is clear that the law is tilted towards women. In order to combat with the present scenario, law should be made gender neutral. In addition to this, penalty should also be given for making false accusation. It is rightly said that :
The significance of the court's directive goes beyond what happens to Section 498A. It marks a conceptual shift, a turn away from the culture where women were seen only as victims who were incapable of leveling false allegations. The conception of women as the silent suffering sort who could do no wrong has influenced the administration of justice in both open and subtle ways. The assumption of women's innocence is apparent in laws devised to deal with rape and other crimes against women where the presumption of innocence is not available to the accused (Amend dowry law to stop its misuse, SC tells govt, Aug 17, 2010, The Times of India).
Hence, some flexibility should be there.
Unlike centers for women, for men no such organization is there. In order to deal with mental torture, some centers across the country should be established.
IPSITA MISHRA, BA.LLB (HONS.), 3RD YEAR,
NATIONAL LAW UNIVERSITY, ODISHA.