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Key takeaways

  • Matrimonial issues involve sensitive human and emotional relationships. It necessitates reciprocal respect, esteem, love, and affection, as well as enough room for fair modifications with the spouse.
  • In addition, the partnership must adhere to social conventions. Matrimonial behaviour is now governed by a statute that was drafted with such norms and the changing social order in mind.
  • With some exclusions, divorce refers to the legal breakup or dissolution of marriage so that one can leave his or her spouse and be free of marital obligations.
  • Every matrimonial act that annoys the other spouse may not be considered cruelty. Simple irritations and quarrels between spouses that occur in everyday marital life may not be considered cruelty.
  • Cruelty in marriage can come in a variety of forms, from subtle to severe. It can be expressed by words, gestures, or silence, and it can be aggressive or nonviolent.


The Hindu Marriage Act did not include "cruelty" as a reason for divorce when it was initially enacted. This basis became accessible after an amendment in 1976, allowing for both divorce and judicial separation. While granting a divorce, the Bombay High Court decided that a wife writing to her husband's employer with false claims about him constituted actionable cruelty under the Hindu Marriage Act, 1955. “The brutality is physical as well as mental,” a division bench of Justices VM Deshpande and SM Modak wrote in their decision. It may inflict mental suffering to the opposite side if claims are stated in writing and are unfounded.”

Separation was a grey area in Hindu law in Ancient India since marriage was seen as an unbreakable bond between the pair. Manu stated that a spouse cannot be delivered by her significant other by bargaining or deserting, implying that the conjugal bond cannot be severed in any case. Despite the fact that Hindu law does not contemplate separation, it has been held that if it is viewed as a built-up custom, it has the force of law.

Divorce was traditionally predicated on the fault basis under the Modern India Hindu Marriage Act, 1955. According to Section 13(1), there are nine grounds for divorce for both the husband and the wife, and under Section 13(2), there are two grounds for divorce for women seeking divorce on their own. Other divorce grounds include breakdown under Section 13(1), viz Sections (viii) and (ix), which were renamed clauses I and (ii) of Section 13(1A), mutual consent divorce under Section 13-B, and customary divorce and divorce under special legislation.

Divorce, on the other hand, differs from judicial separation in that it terminates all mutual obligations and rights of the husband and wife, with the exception of Sections 25 and 26 (maintenance and alimony) (custody, child education). Judicial separation, on the other hand, simply suspends marital rights and obligations for the duration of the judgement.

Ground for divorce under Hindu Law

Voluntary sexual intercourse with any person other than his or her spouse; “cruelty”; desertion for a continuous period of not less than two years immediately preceding the presentation of the petition; cessing to be a Hindu by conversion to another religion; and being incurable of unsound mind are all grounds for divorce under Section 13 of the Act. Furthermore, Section 13B allows for "divorce with mutual consent."

The grounds for divorce under Section 27 of the Special Marriage Act of 1954 apply to marriages solemnised under that Act.

The Hindu Marriage Act did not include "cruelty" as a reason for divorce when it was initially enacted. This basis became accessible after an amendment in 1976, allowing for both divorce and judicial separation.

While the term "cruelty" was included in the Act, Parliament did not provide an exhaustive definition. As a result, the phrase has come to be understood as the judiciary has interpreted it throughout time - during which time the courts have developed grounds for affording relief in both physical and mental cruelty instances.

The Supreme Court had already considered the issue of legal cruelty in Dastane v Dastane before the 1976 amendment (1975). In that case, the court determined that the wife's threats of suicide and verbal abuse of the husband and his father, among other things, amounted to mental cruelty, and granted the husband divorce.

“The inquiry thus has to be whether the behaviour charged as cruelty is of such a type as to cause in the mind of the petitioner a reasonable anxiety that living with the respondent will be hurtful or damaging to him,” Justice YV Chandrachud had said at the time. It is not required, as it is under English law, that the cruelty is of such a nature that it poses a “danger” to life, limb, or health, or that it gives rise to a reasonable fear of such a danger.”

In the years since the courts have ruled that a number of acts amounted to mental cruelty. The Supreme Court ruled in Shobha Rani v Madhukar Reddi (1988) that the husband's or his relatives' continuous demands for dowry constituted cruelty.

Similar relief has been granted in other circumstances, such as prolonged drinking and making baseless charges repeatedly. The recent Bombay High Court decision is an example of the latter. “If one spouse establishes an extramarital affair with another lady/man, it is seen as an act destroying the foundation of the marriage,” according to the ruling. And if one of the spouses makes such charges but fails to prove it, it is considered an act of cruelty because it causes emotional agony to the other spouse.”

  • Desertion - “The expression ‘desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without such party's consent or against such party's wish and includes the willful neglect of the petitioner by the other party to the marriage, and it’s grammatical .” In other words, desertion refers to one spouse's permanent absence or forsaking of the other for no apparent reason and without the consent of the other. In order to commit the offence of desertion in the case of a deserting spouse, two elements must be met: the reality of the separation and the desire to stop cohabitation permanently (animus deserendi). Similarly, in the case of the deserted spouse, two factors are required: a lack of agreement and a valid cause of action for the partner leaving the matrimonial house to fulfil the above-mentioned objective. The court concluded in Savitri Pandey v. Prem Chand Pandey that "there can be no desertion without prior cohabitation by the parties." “The offence of desertion is a path of behaviour that exists independently of its duration,” the court stated in Bipin Chander Jaisinghbhai Shah vs Prabhawati. “However, as a ground for divorce, it must have existed for at least 3 years at the time prior to the presentation of the petition or, in cases where the offence appears as a cross-charge, of the answer.” Desertion as a basis for divorce differs from the statutory reasons of adultery and cruelty in that the offence constituting the basis for the motion of desertion isn't necessarily full, but is inchoate until the healthy is formed. Desertion is the act of continuing to engage in offensive behaviour.”
  • Cruelty - Cruelty was not a valid reason for divorce prior to 1976. It served as justification for judicial separation. Cruelty is now a cause for divorce under the Amendment Act. According to the Oxford Dictionary, The term "cruelty" hasn't been defined, yet it's been used to describe human behaviour or behaviour. It's how you act around or in relation to marriage status responsibilities and obligations. It's a pattern of behaviour that is moving in the other direction. Cruelty can be mental or physical, and it can be purposeful or inadvertent. Cruelty has not been defined under the Act, but it is considered in marital problems as conduct that endangers the petitioner's life with the respondent, according to the court in Savitri Pandey vs Prem Chandra Pandey. Cruelty is defined as an act that endangers a person's life, limb, or health. Cruelty, for the purposes of the Act, is that one spouse has handled the other and expressed such feelings toward her or him as to have inflicted bodily injury, or to have created cheap apprehension of bodily injury, suffering, or to have wounded health. Cruelty can be both physical and mental. Other spouse analogues' behaviour that creates mental agony or worries about the opposite spouse's marital situation is referred to as mental cruelty. Cruelty "therefore presupposes the petitioner's approach with such cruelty as to elicit an accessible fear that it may be damaging or destructive to him." In the case of Smt. Nirmala Manohar Jagesha vs. Manohar Shivram Jagesha, the court held that "in a divorce case, false, baseless, scandalous, malicious, and unproven allegations made in the written statement may amount to cruelty to the other party, and that party would be entitled to a divorce decree on that ground. Simple little aggravations, squabbles, and natural wear and tear of marital life that occurs in everyday life in all families would not be sufficient for an award of separation on the grounds of cruelty, according to the court in Gurbux Singh versus Harminder Kaur.
  • Adultery - Adultery, according to Reydon, is "consensual sexual intercourse between a married person and a member of the opposite sex, not the other spouse, while the marriage is in existence. The Supreme Court ruled in Subbaramma v. Saraswati that a single act of adultery is sufficient grounds for divorce or judicial separation. “The unwritten taboos and laws of social decency in this nation, particularly in village regions, must necessarily be taken into account,” the court said in the same instance. Unless an excuse is given that is consistent with an innocent interpretation, the only conclusion that the Court of Justice can draw is that an unknown person was found alone with a young woman after midnight in her apartment, in an actual physical juxtaposition, the only conclusion that the Court of Justice can draw must be that the two have committed an act of adultery together.”
  • Insanity - Section 13(iii) of The Marriage Laws (Amendment) Act, 1976, allows a petitioner to obtain a divorce or judicial separation if the respondent has been enduring mental anguish of such a nature and intensity that the petitioner cannot rationally be forced to live with the respondent. The Supreme Court declared in Ram Narayan v. Rameshwari that in cases of schizophrenia mental disorder, the petitioner must prove not only the mental disorder but also that the petitioner could not fairly be expected to live with the respondent. It was discovered in St. Alka Sharma v. Abhinesh Chandra Sharma that the spouse was so frigid and nervous on the first evening of marriage that they were unable to coordinate in a sexual act. She was found to be unable to work with domestic machines. She fizzled in an attempt to clarify the direction of peeing in front of all of her relatives. The court ruled that she was suffering from schizophrenia and that her spouse was entitled to a divorce.

Cruelty in India

Even though cruelty is a serious crime, it is rarely discussed. Isn't it because we Indians are so used to it? Even if we try our hardest, we will not be able to change everyone's thinking since in India, women rarely file complaints against their husbands and in-laws because to fear, family pressure, societal pressure, a lack of understanding, or a lack of access to police or police failure. Finally, they come to terms with their situation through enduring violence as well as all of the aforementioned stresses.

As a result, the Court has decided that the lack to establish precise dates, timings, and details concerning the way of cruelty should be viewed as a secondary consideration.

Cruelty can be physical or mental, depending on the circumstances and a variety of other elements such as the victim's education, social background, and sensitivity. What constitutes cruelty is a matter of reality. The basic goal of all of these activities is to protect a woman's dignity in her marital household. Cruelty is determined by the wife's matrimonial ties with her husband and in-laws, their diverse cultures, health, and everyday interactions.

• Physical cruelty - By physical cruelty, we do not mean any violence that occurs outside of the home, but rather conjugal physical aggression that results in cruelty. Physical abuse on the husband would include any physical assault, bodily injuries, or threats to life, limb, or health that appear to cause fear in the woman's mind. Establishing Physical cruelty is not a difficult chore because physical violence is one of the most common causes of divorce. One of the reasons for the dissolution of a marriage under the Muslim Marriage Act of 1939 is "habitual assaults." Assault is a serious crime, according to Section 351 of the Indian Penal Code. Cause of great harm is a cause for divorce under the Parsi Marriage and Divorce Act, 1936. The Indian Penal Code defines serious harm under Section 320. As a result, we can argue that assault, grave bodily harm, and cruelty are all intertwined and have little difference.

• Mental cruelty - It is no longer simply about physical brutality; mental cruelty now bears the same weight as physical abuse. It's a little more difficult to prove mental cruelty than it is to prove physical cruelty. Apart from physical harm, any woman who is subjected to mental stress, has to sacrifice her mental serenity for her spouse, or is subjected to chronic emotional torment is subjected to mental cruelty. However, we will never fully understand an individual's mentality, and some people are hypersensitive by nature, so accusations of cruelty cannot be 100% accurate. As a result, the person will be unable to seek a divorce based on cruelty. Mental strain can manifest itself in a variety of ways, thus there are no hard and fast rules about what constitutes mental cruelty. For example, if the husband forces the wife to do anything against her choice. Mental cruelty includes whatever the partner does not express or hides that generates a sense of mistrust. The facts and circumstances of each case must be considered while establishing a case of mental cruelty. However, you can prove mental cruelty in court in the following ways: Your testimony, whether oral or written, is adequate evidence of mental cruelty. Incorporate instances of mental cruelty into your vocal or written evidence, such as prolonged non-cohabitation or denial of a physical relationship, verbal and physical abuses, haughty behaviour, incompatible or ever-increasing differences of opinion that aggravate the domestic relationship. The finest evidence is audio and video evidence, which is widely accepted by the court. Witness testimony might also help you enhance your case.


It is true that there are fewer divorce complaints filed on the grounds of cruelty. People, in general, seek to settle into whatever situation they find themselves in. However, you must recognise that the provisions provided will assist and protect you from ill-treatment. As a result, legislation may differ depending on state laws or the grounds that fall under the definition of cruelty. So, in my opinion, if any of you are interested in learning more about the reasons that would fall inside the definition of cruelty, you should visit a local lawyer or research your state's relevant statutes.

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