The Hindu Marriage Act of 1955, which governs the law relating to Indian marriages between Hindus, and the Special Marriage Act of 1954, which governs the law relating to all Indian marriages regardless of religious denominations, contain an identical ground for divorce: “cruelty” after solemnisation of the marriage.
However, these Acts do not define what cruelty is. Judicial pronouncements on the definition of “cruelty” are therefore critical for determining who can file a cruelty-based divorce petition, in both Hindu and non-Hindu marriages.
According to the law laid down by the Supreme Court in several judgments, there are three types of cruelty. The first one is physical, i.e., violent conduct causing pain to the spouse; the second is mental cruelty, which makes it impossible to reasonably expect one’s spouse to put up with the conduct complained of and live with the other; and the third, legal cruelty.
Since “cruelty” is legally defined, it would be helpful to refer to judicial pronouncements which have discussed the concept in the context of granting divorce to aggrieved spouses.
The Supreme Court’s case law is instructive in this regard. In Shobha Rani v Madhukar Reddi (1988) (Supreme Court), the wife alleged that the husband and his parents demanded dowry. In its ruling, the apex court emphasised that “cruelty” can have no fixed definition.
According to the court, “cruelty” is the “conduct in relation to or in respect of matrimonial conduct in respect of matrimonial obligations”. It is the conduct which adversely affects the spouse. Such cruelty can be either ‘mental’ or ‘physical’, intentional or unintentional. For example, unintentionally waking your spouse up in the middle of the night may be mental cruelty; intention is not an essential element of cruelty but it may be present. Physical cruelty is less ambiguous and more “a question of fact and degree.”
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To judge whether or not something is mental cruelty, the nature of the cruel treatment has to be examined, and the mental impact it has on the spouse, and whether it causes reasonable apprehension in the mind of that spouse that it would be “harmful” or “injurious” for them to live with the other spouse. Cruelty then is ultimately a matter of inference which is to be drawn by taking into account the nature of the conduct and the effect it has on a complaining spouse.
According to the court, when dealing with such complaints of cruelty it is important for the court to not search for a standard in life, since cruelty in one case may not be cruelty in another case. What must be considered include the kind of life the parties are used to, “their economic and social conditions”, and the “culture and human values to which they attach importance.”
The nature of allegations need not only be illegal conduct such as asking for dowry. Making allegations against your spouse in your written statement filed before the court in judicial proceedings may also be held to constitute cruelty. For instance, in the Supreme Court case of V. Bhagat vs D. Bhagat (1994), the wife alleged in her written statement that her husband was suffering from “mental problems and paranoid disorder”. The wife’s lawyer also levelled allegations of “lunacy” and “insanity” against the husband and his family while he was conducting a cross-examination. The court held these allegations against the husband to constitute “cruelty”.
While the above case involved allegations levelled by the wife against her husband, the case of Vijaykumar Ramchandra Bhate vs Neela VijayKumar Bhate (2003) in the Supreme Court involved the reverse. The husband alleged in his written statement that his wife was ‘unchaste’ and had indecent familiarity with a person outside wedlock and that his wife was having an extramarital affair. These allegations, given the context of an educated Indian woman, were held to constitute “cruelty” by themselves.
So far, we have discovered that claiming divorce and levelling serious allegations in written statements may result in the grant of divorce.
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The next case is that of Samar Ghosh vs Jaya Ghosh (2007) (Supreme Court), which deals with a matrimonial dispute between two IAS officers. The husband alleged that his wife made a unilateral decision to not have a child and did not allow him to show affection to her daughter (from her first marriage). Further, she showed scant regard for his health, refused to cook for him and asked him to leave her flat, thereby humiliating him, and refused to cohabit with him. The court found that the wife’s conduct amounted to mental cruelty and restored the decision of the trial court which granted the husband divorce.
Recently, in the case of Joydeep Majumdar vs Bharti Jaiswal Majumdar (2021), the Supreme Court heard a case in which the husband accused his wife of mental cruelty for making allegations of adultery and defamatory complaints to his superiors in the army and other authorities resulting in a court of inquiry and thereby affecting his career. It was an act of mental cruelty, the court held, irrespective of whether the allegations were proved in a court of law or not.
While judging whether the conduct is cruel or not, what has to be seen is whether that conduct, which is sustained over a period of time, renders the life of the spouse so miserable as to make it unreasonable to make one live with the other. The conduct may take the form of abusive or humiliating treatment, causing mental pain and anguish, torturing the spouse, etc. The conduct complained of must be “grave” and “weighty” and trivial irritations and normal wear and tear of marriage would not constitute mental cruelty as a ground for divorce.
In some cases, the conduct need not even be sustained over a period of time, and if it is grave enough, then even any emotionally draining act meted out once can amount to mental cruelty.
In the case of Narendra vs K. Meena (2016), the apex court held that in Hindu society, a son is expected to take care of his parents in old age and that a wife should not try to force him to leave them without a justifiable reason. In this case, the parents were being almost fully taken care of by the son and had almost no independent income.
For the sake of argument, let us elaborate on some potential differences in the facts and circumstances of the parties before the court. Let us assume that the parents of the petitioner were well-to-do and had an independent income, that the parties were well-educated and belonged to a society in which children were expected to live independently, and prior to marriage, both the parties had actually discussed living separately from the family. With such differences in the facts and circumstances, in such cases where the wife wants to live separately from the husband’s parents, will it amount to mental cruelty committed against the husband? It does not seem so.
The keywords used in the illustrative examples given by the top court in the case of Samar Ghosh vs Jaya Ghosh (2007) of what may constitute mental cruelty are ‘may’ and ‘can’. So, while in a given case, denying sex for a considerable period without any physical problem or valid reason ‘may’ amount to mental cruelty, it will not necessarily be so in all cases. Thus, the use of the word ‘may’ or ‘can’ underscores the indeterminate nature of what constitutes this cruelty.
In conclusion, the first attempt of a court in dealing with matrimonial matters is to try and see if there is any scope of reconciliation and whether the marriage can be saved. If reconciliation is not possible, then the conduct which is complained of as being cruel must be examined. In judging the conduct, what has to be seen is whether the conduct complained of as being cruel is such that the wronged party cannot be reasonably asked to put up with that conduct and not whether it creates a reasonable apprehension in the mind of the spouse that it would be harmful or injurious for him or her to live with the other.
Raghav Tankha is a lawyer practising in Delhi.