Cruelty — ‘Cruelty’ is one of the common grounds in all the personal laws on which a decree for Judicial separation and Divorce can be obtained. It is also a ground for separate residence and maintenance (for the wife) and it is a valid defence for defeating a claim for restitution of conjugal rights.
In Binda v. Kaunsllia (1890) ILR 13 All. 126 at 160, Tekait Man Mohini Jemadai v. Basanta Kumar Singh (1901) ILR 28 Col. 750 these cases come up before Court for restitution of conjugal rights, in these cases for the first time ‘Cruelty’ was pleaded by the defendant as a defence. In the latter half of the nineteenth century, the Shastric texts had no where mentioned cruelty on the basis on which judicial separation can be claimed. In following cases Yamunabai and Narayan Jagannath Bhilde v. Narayan Moreshvar Pendse, (1876) ILR 8 All 126. Binda v. Kaunsillia, (1891) ILR 8 All 126, Dular Koer v. Dwarka Nathi Misser, (1907 ILR 34 Cal 97) and Moonshree Buzloor Rehlemm v. Shumsoonissa Begum (1867) 11 MIA 551 cruelty was accepted a ground for judicial separation for the first time.
Moonshee Buzloor case of Privy Council can be said to have laid the foundation of the rule that cruelty as a ground for judicial separation, later it became the guide and the precedent that our High Court followed. The trend shows that in past, Indian Judiciary was following the same standard about cruelty as that of English.
The Cruelty has not been defined any where, the reason being that in the delicate relationship of husband and wife, acts of cruelty are infinitely variable and have been changing complexion with increasing complexities of life in the background of differing cultural levels and social norms.
Black stone law dictionary defines ‘Cruelty’ as the “the intentional and malicious infliction of physical suffering upon living creatures particularly human beings or as applied to the latter, the wanton, malicious and unnecessary infliction of pain upon the body or the feelings and emotions”.
The accepted legal meaning of ‘cruelty’ both in England and as well as in India is the expression as opined by Lopes and Lindley LJJ in Russell v. Russell (1897) AC 395.
In India, Cruelty has been defined in Indian Penal Code in the explanation to section 498-A “as any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or harassment of the woman whether such harassment is with a view to coercing her, or any person related to her, to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
The only Act in which Cruelty as a marital offence is though not defined but given six illustrations of cruelty is “The Muslim Dissolution of Marriage Act” 1939.
A Muslim wife may obtain a decree for dissolution of her mariage if the husband treats her with cruelty, that is to say he
a. Habitually assaults her or makes her life miserable by cruelty or conduct even if such conduct does not amount to physical ill-treatment;
b. Associates with woman of evil repute or leads an infamous life, or
c. Attempts to force her to lead an immoral, or
d. Disposes of her property or prevents her from exercising legal rights over it, or
e. Obstructs her in observance of her religious profession or practice, or
f. If he has more wives than one, does not treat her equitably in accordance with the injunction of Quran.
The Hindu Marriage Act, 1955 introduced the concept of divorce under certain circumstances. These resolve under fault theory of divorce, which is based on the hypothesis that one party is guilty of matrimonial offence and the other is innocent.‘Cruelty’ places a major role in the guilty theory.
Under the Hindu Marriage Act, 1955 cruelty was not the ground of divorce but was only ground of judicial separation under Sec. 10 (1) (b), where the other party “has treated the petitioner with such cruelty as to cause as reasonable apprehension that it will be harmful or injurious for the petitioner to live with the other party.”
The amendment made in 1976 of the HMA, 1955, cruelty was made the ground of divorce by adding Sec. 13 (1) (1-a) to the said Act, which provides for the dissolution of the marriage in cases where the other party” has after the solemnization of the marriage, treated the petitioner with cruelty”.
As word “cruelty” in the Act is not defined by any word of limitations so it is very difficult to depict what is cruelty to grant a degree of divorce. Physical cruelty can be easily depictable. The difficulty usually arises in finding mental cruelty. There can be numerous causes of mental cruelty. As what Lord Denning said in Sheldon v. Sheldon : “The categories of cruelty are not closed. Each may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct, which may constitute cruelty. New type of cruelty may crop up in any case depending on the human behaviour capacity or in capability to tolerate the conduct complained of, such is a wonderful realm of cruelty.”
The concept of cruelty is subjective, which is different from man to man, person to person, judge to judge and society to society. Therefore there are different causes of cruelty. These are drunkenness attempt and threat to commit suicide, demand of dowry, false allegations of adultery, insanity, impotency, false allegations of Sec. 498A etc., communication of disease, reprehensible conduct which includes nagging, jealousy, irritating temper, quarrelling mentality and foul tongue, Indignity, neglect and indifference, abuses and insults, callous neglectful and deliberately harsh — conduct, undue familiarity, peculiar behaviour, cumula-tativeness of acts and conducts, ordinary wear and tear of married life, incompatibility of temperament, simple trivialities, minor quarrels and frailty, quarrels on account of mother-in-law, contracting a second — marriage, Desertion, Joint family deprivation of property, various causes related to s*x such as s*xual weakness, impotency and persistent refusal to have marital intercourse, abortion, refusal to consummate the marriage, incapability to bear a child, refusal to have children or abuse of parent hood, excessive s*xual-intercourse, giving birth to an illegitimate child, subjecting the wife to prostitution, husband and his family members compelling wife to have extra-marital s*x, s*x-perversion and unnatural offences. These are some of the defined causes of cruelty, which were given signal by Judiciary too.
Acts that can be categorized as cruelty, A wife’s conduct of :
 humiliating her husband in the presence of family members and friends.[1]
 denying him access to physical relationship.[2]
 wife making scandalous allegations against the husband.[3]
 wife leaving husband’s home, leaving behind a child.[4]
 threatening to commit suicide.[5]
 quarrelsome wife beating the husband and also the in-laws.[6]
All these are not acts of physical violence but yet have 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. Moreover recently the Supreme Court has held that a husband can seek divorce if he is subjected to mental agony and cruelty due to constant nagging by his wife. A three-Judge Bench held that nagging by a wife in regard to her husband’s relations with women, casting doubt on his reputation, character and fidelity would be a valid ground for seeking divorce.[7]
Similarly, a husband’s conduct of :
 humiliating[8] and ill-treating his wife.[9]
 drunkenness.[10]
 turning wife out from the house.[11]
 impotency of husband (both legal and mental cruelty).[12]
 having a love affair after the marriage.[13]
 taunting her for not having any child or giving birth to female children.[14]
 demanding dowry.[15]
In one of the cases, the conduct of a wife abusing her husband and his family members, in her letters, in defamatory and derogatory language and accusing her husband of infidelity was considered as cruelty affilicted by her upon her husband. In a decided case a Learned Judge of a High Court held that the accusation made by the husband in his written statement, opposing the petition of his wife and alleging therein without proving the same, that his wife was leading an adulterous life, was cruelty afflicted by the husband upon the wife. In order to find out whether a particular act is cruel or not, one has to look upon the effect which is caused by that act. If the effect is that by a particular act harm has been caused to the body or mind of the other, the said act is an act of cruelty.
The S.C. in Shobha Rani and Madhukar Reddi AIR 1988 SC 121 defined “cruelty” as conduct in relation to human conduct or behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is the course of conduct of one, which is adversely affecting the other. Cruelty may be mental or physical or intentional or unintentional.
In the recent case of Bhagat v. Bhagat, AIR 1994 SC the S.C. through judicial ingeniousness defined ‘mental cruelty’ in such manner as to include within its view irretrievable breakdown of marriage.”
In recent case of A. Jayachandra v. Aneel Kaur, (2005) 2 SCC part I. In this case Court Held, that mental cruelty has to be considered in the light of the social status of parties, their education, physical and mental conditions, customs and traditions — Court to draw inference and decide on the basis of the probabilities of the case having regard to the effect on the mind of the complainant spouse because of the acts or omissions of the other spouse — However, where the conduct complained of itself is bad enough and per se unlawful or illegal, the impact or injurious effect on the other spouse need not be considered — In such cases, cruelty will be established if the conduct itself is proved or admitted — To constitute cruelty, the conduct complained of should be “grave and weighty” whereupon it can be concluded that the petitioner spouse cannot be reasonably expected to live with the other spouse — It must be something more serious than “ordinary wear and tear of married life” — Filing of divorce petition by husband — Both husband and wife were professional doctors — Wife suspecting husband’s fidelity, character and reputation (though such allegations denied by her) — She admitting to have advised her husband to follow five things, most of which were related to ladies working in the hospital, like, not to call female staff members for work in hospital during off-duty hours and not to work behind closed doors with certain members of staff — She using abusive language against her husband and alleging extramarital relationship with another married lady (denied by her, but evidence establishing the contrary) — Held, the so-called advices were nothing but casting doubt on the reputation, character and fidelity of her husband — Constant nagging on those aspects amounted to causing indelible mental agony and amounted to cruelty — That apart, wife’s conduct subsequent to filing of divorce petition indicating irretrievable breakdown of marriage — Held, husband entitled to decree of divorce.
Acts that cannot be categorized as Cruelty
Indian people of whatever race and religion they may be and to whichever class of society they may belong to are basically tolerant. Unless the treatment received by a person from his or her spouse is extremely grave and unbearable. It is not treated as a cruel conduct giving a ground for dissolution of marriage. Still we do not have cases of divorce on the ground of husband snoring at night or wife refusing to accompany husband to a party.
* persuasion by husband to accompany him to places.[16]
* wife suffering from epilepsy is not cruelty under S. 10 of the Act,
* wife refused to live with husband in a family where two persons were suffering from T.B., she agreed to live in separate house with husband.[17]
* allegation of wife in writing that husband was having adulterous relationships.[18]
* no relief to husband’s petition where wife is ill-treated for extra dowry.[19]
* husband and wife employed, wife’s insistence to continue with job & also adjust to marital life.[20]
* temperament of spouses not conductive to each other resulting in petty quarrels.[21]
* quarrels between husband and wife due to presence of mother-in-law[22] (ordinary quarrels do not constitute cruelty).
* Failure of husband to protect wife at the time of ill-treatment by in-laws and wife’s attempt to commit suicide within 5 days of marriage.[23]
Defence to Cruelty
Insanity is no longer a defence to cruelty. Provocation or self-defence is still a good defence to a charge of cruelty.[24] Acquiescence to the acts or conduct of the defendant is also a good defence to a charge of cruelty, but submission to acts must be voluntary. If the petitioner has no option but to submit, he or she cannot be precluded from basing the ground upon these acts.[25]
Quantum of Proof
The cruelty need not be beyond all reasonable doubts. Cruelty may be proved on balance of probabilities. Relying on words “satisfied” in S. 23. Hindu Marriage Act (in other Indian matrimonial statutes also the same word has been used). The learned Judge in Dastane v. Dastane[26] said that “satisfied” means, “satisfied on preponderance of probabilities”, and not satisfied beyond reasonable doubts. It is submitted that it is a welcome departure from the rigid test of “beyond all reasonable doubts” particularly when in modern law, adultery, desertion and cruelty are not so much regarded as matrimonial offences, but more or less as instances leading to breakdown of marriage. The Supreme Court also said that :
“The concept — a proof ‘beyond shadow of doubt” — is to be applied to criminal trials and certainly not to matters of such delicate personal relationship as those of husband and wife.”
The lacunae regarding the cruelty is that though all legal systems provided the matrimonial relief based on ‘Cruelty’ yet all of them failed to define the legal concept of ‘Cruelty’, which creates a lot of confusion in interpreting the legal concept of cruelty. Therefore it has to be suggested that some criteria or some standard of norms should be imposed upon the word ‘Cruelty’ for providing the remedy of divorce on the basis of it. So an attempt has been made after going through the views of the apex Court & various High Courts that what guideline should the Court follow in giving the decree of divorce on the ground of cruelty.
An attempt has not been made to present a suitable definition of cruelty rather a methodology is to be formulated as to find out the legal concept of cruelty in given case.
For deduction of legal cruelty in matrimonial law, a simple equation has been applied which Courts can follow as a yardstick or guideline in deducing the mental cruelty.
In order to find out the element of cruelty the Court should not only weigh the defendant’s conduct but at the same time must weigh it from the victim’s point of view.
|- Physical Pain [of such nature that it
| would be injurious & harmful for
| the petitioner to live with the counter part]
|
C + F |
Cruelty = ------ |
E ± A |
| Mental Pain [of such nature
| that no reasonable person
|_ of that class would tolerate]
Here,
C = Conduct of the defendant
F = Frequency of the said conduct
E = Endurance of the complainant/Petitioner
A = A reasonable apprehension of such conduct.
* Conduct of the defendant “C” :—
Conduct of the defendant should be “grave and weighty”, and these acts should cause any type of pain on the complainant.
* Frequency of the conduct ‘F’ :—
Frequency of the conduct is an important element as this element can convert a trivial act into a grievous one. The frequency of the conduct always can tell the story of the defendant. For e.g. Solitary incident of beating resulting in minor injury cannot be taken as a proof of cruelty envisaged by the provisions of Sec. 13(1)(i-a). But if the frequency of the said conduct is accelerated to several times it may constitute cruelty.
* Endurance of the complainant ‘E’ :—
Endurance of tolerance is a psychological factor and its quality depends upon complainant’s health, s*x, age, temperament, culture and the interaction between the parties. “The conduct alleged must be judged up to a point by reference to the victim’s capacity for endurance, in so far as that capacity is or ought to be known to the other spouse.”
* A reasonable apprehension of such conduct ‘A’ :—
For deducing ‘Cruelty’, there must be an apprehension of harmful or injurious conduct on the part of the defendant to the petitioner.
So by this equation Court can deduce out the cruelty.
Some other suggestions regarding cruelty are following. Mere ‘Cruelty’ is a ground for both judicial separation and divorce in the HMA, 1955. It has suggested that mere ‘Cruelty’ should not be the ground for divorce. For the decree of divorce on the ground of ‘Cruelty’ one should prove an additional ground such as adultery, unsound mind, leprosy, venereal disease etc. with it. Mere cruelty should be made a ground for judicial separation only.
Further, an explanation in the following terms should be inserted: “Explanation for the purpose of this section, persistent demands for dowry shall be deemed to be an act of the husband treating the wife with cruelty, where the demands are made by the husband, or with his connivance or acquiescence.” Further the factors, which contribute in the cause of cruelty like age-difference, joint family, drinking habit, and dowry — demands, which would have been avoided at the time of marriage, should not be made the base is of cruelty later on.
Lastly it has suggested that only one ground that is “Irretrievable — break — down of marriage” should be made the ground for divorce instead of less than one dozen grounds as it is now.
lol.... for seeking divorce in india be prespared to spend 7 to 10 yrs to get it and getting yourself ddrained out financially
