FAMILY LAW

CRUELTY AS A GROUND
FOR DIVORCE
ASSIGNMENT

SANDRA MARIYA KOSHI BBA LLB, ROLL NO. 26, 4TH SEMESTER.
INTRODUCTION

Matrimonial matters are matters of delicate human and emotional relationship. It

demands mutual trust, regard, respect, love and affection with sufficient play for reasonable
adjustments with the spouse. The relationship has to conform to the social norms as well. The
matrimonial conduct has now come to be governed by statute framed, keeping in view such
norms and changed social order.

Divorce in general means the breakage or dissolution of marriage with the help of law, so
that one can leave his or her spouse and become free from marital duties with some exceptions.

In Modern India, Hindu Marriage Act, 1955, divorce was mainly based on fault theory.
The theory of fault includes 9 grounds for divorce according to section 13(1), for both the
husband and a wife to seek a divorce, and under section 13(2) two grounds of fault arise for
women to seek divorce by themselves. They're also available other divorce ground such as Break
down ground under section 13(1), viz clauses (viii) and (ix) which were renumbered as clause (i)
and (ii) of section 13(1A), Divorce by mutual consent under section 13-B, and customary divorce
and divorce under a special law. Divorce put the marriage to end, It ceases all the mutual
obligation of husband and wife, they are free to go there on way. This leads to end all bonds
between them except concerning section 25 (maintenance and alimony) and section 26 (custody,
maintenance, and education of children). There is available much ground on which husband and
wife could take divorce.
 Section – 13(1)(Ia) Of The Hindu Marriage Act-1955

The Hindu Marriage Act-1955 has given the legal provision for divorce on basis of
cruelty under section – 13(1)(ia) as follows;

“Any marriage solemnized, whether before or after the commencement of this Act, may,
on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on
the ground that the other party has, after the solemnization of the marriage, treated the petitioner
with cruelty”.

What Is Cruelty ?

In English law in an early case, Russel v. Russel 1, cruelty is defined as under :

“Cruelty is a conduct of such a character as to have caused danger to life or health, bodily
or mental gives rise to reasonable apprehension of such danger.”

 Act should be "grave and weighty" so as to come to the conclusion that the
husband and wife cannot be reasonably expected to live together.
 It must be something more serious than "ordinary wear and tear of married life“
 Every matrimonial conduct, which may cause annoyance to the other, may not
amount to cruelty.
 It may be words, gestures or by mere silence, violent or non-violent.

It is difficult to lay down a precise definition or to give exhaustive description of the

circumstances, which would constitute cruelty.

How cruelty was established as a ground for divorce

If we study the history of the Hindu Marriage Act, 1955, cruelty was never taken into
consideration as a ground for divorce but was applied only in cases of judicial separation. Here
the aggrieved party or the petitioner has to prove that the cruelty is so grave or so unbearable that
it is getting difficult to carry forward with his or her spouse (the defender). But this was upheld

1
Russell v. Russell - 865 S.W.2d 929 (Tex. 1993)
by the Supreme Court in a landmark case of Narayan Ganesh Dastane Vs. Sucheta Narayan
Dastane2 in 1975.

This led to an amendment in the Act where cruelty as a ground for divorce was added
into the Act with the inclusion of legal definition to the term cruelty under this Act in 1976.
However, the Court also held that the courts should decide the case on grounds of cruelty only
based upon the subject matter of the case. After the amendment in this act, there was not much
distinction between the grounds of cruelty resulting in judicial separation and grounds of cruelty
resulting in divorce except for two words that are added are “persistently or repeatedly”. By this
addition, the establishment of cruelty as a ground for divorce was given much more importance
than proving it as a ground for judicial separation. This ground was added under Section 10(1) of
the Hindu Marriage Act,1955 and now “Cruelty” has a self-contained definition.

Intention To Cruelty

Motive, malignity or malevolent intention has never been considered as an ingredient of

cruelty.

In England when in 1937 cruelty was recognised a ground for divorce, the English courts
took the view that conduct would cruelty only if the respondent intended to hurt or cause injury
to the petitioner or if his acts were aimed at the other. If the conduct of the respondent was not
the result of any intention to harm or injure but of pure selfishness or indifference, he could not
be said to be guilty of cruelty. This resulted in injustice, and the courts were driven back to the
presumption that person might be taken to intend the mutual and probable consequences of acts,
and tries to mitigate the harshness of the rule. Gradually the English courts started receding from
this doctrinaire position and in 1952 in Jamieson v. Jamieson3, the House of Lords observed that
an actual intention to injure is not an essential element and unintentional acts might amount to
cruelty Finally, in 1963 in William v. William,4 and Gollins v. Gollins,5 where the House of
Lords have discussed the entire case law on cruelty, the intention as an element of cruelty was
rejected.

2
Narayan Ganesh Dastane Vs. Sucheta Narayan Dastane 1975 SCR (3) 967.
3
Jamieson v. Jamieson (1952) AC 525
4
William v. William ,1963 2 All ER 994.
5
Gollins v. Gollins ,1963 2 All ER 966
 Under the Hindu Marriage Act, 1955, the court has held without apprehension thereof, to
least hesitation that intention is not an essential ingredient of cruelty. PL conduct, not directly
aime Sayal v. Sarla6, The same view was his wife from the acts and condu held by the Bombay
High Court in Bhagwat v. Bhagwat.7 Although intention is not an essential ingredient of cruelty,
yet an act or conduct which has an intention to injure, will certainly constitute cruelty.

Act \ Conduct Aimed At The Petitioner

If an act is directly aimed at the petitioner, even in the absence of a desire to injure or to
inflict misery, it will amount to cruelty. Thus, a display of temper, emotion or perversion, giving
vent to one's feelings, may amount to cruelty, if it could be shown plainly and distinctly to have
caused injury, or apprehension thereof, to health, life or limb. On the other hand, when act or
conduct, not directly aimed at the petitioner such as drunkenness, gambling. crime or sexual
offences against third person, done generally for the gratification of one's selfish desire, then it
cannot be ordinarily said to be aimed at the other. 8 Sexual offences directly relevant to the
husband's conjugal obligations may amount to ill-treatment of wife. Thus, a criminal and
indecent assault by a husband on his step-daughter amounts to cruelty to wife, although there
may be no intention to hurt or injure the wife.9 In Bhagwat v. Bhagwat10, the husband's acts were
aimed at wife's brother and her son, but the court held that these amounted to cruelty to wife.

TYPES OF CRUELTY:

Cruelty for the purpose of section 13 (1) (-a) is to be taken as a behavior by one spouse
towards the other, which causes reasonable apprehension in the mind of the latter that it is not
safe for him or her to continue the matrimonial relationship with the other. The courts keep on
amending and widening the scope of cruelty with respect to women. So, cruelty can be
categorized into two types:

6
Sayal v. Sarla, AIR 1961 Punj 125.
7
Bhagwat v. Bhagwat, AIR 1977 Bom. 80
8
Cooper v. Cooper, (1954) 2 All ER 415.
9
Ivens v. Ivens, (1954) 3 All 446.
10
Bhagwat v. Bhagwat AIR 1967 Bom 80.
 Physical cruelty

Hereby under physical cruelty, It is not referring to any violence that takes place
anywhere outside but the matrimonial physical violence resulting in cruelty Any physical
violence bodily injuries, the threat to life, limb and health apparently causing apprehension in the
mind of the woman would constitute physical cruelty on the spouse Establishing. Physical
cruelty is not much of a task because one of the most common reasons for divorce is physical
violence Assault in itself is a grave offence as stated under Section 351 of the Indian Penal Code
Section 320 of the Indian Penal Code defines grievous hurt. Hence, we can conclude that assault
grievous hurt and cruelty are somewhat interrelated to each other and do not pertain much of a
difference.

Mental cruelty

Mental cruelty has the same weightage compared with physical cruelty. Ascertaining
mental cruelty is kind of more challenging than proving physical cruelty. Apart from the physical
harm if any woman is inflicted with any kind of mental stress or has to compromise her mental
peace for her spouse or have to constantly go through mental agony, then that amounts to mental
cruelty. However, we will never come to know about the psychology of an individual and
sometimes people are hypersensitive in nature so in that case if someone accuses someone of
having exhibited cruelty then it cannot be entirely true. Therefore the person will not be entitled
to ask for a divorce on grounds of cruelty. Mental strain can happen in various ways so there are
no specific criteria which would amount to mental cruelty for example, if the spouse is forcing
the wife to do something without the consent or willingness of the wife. Anything not expressed
or hidden by the spouse which creates a sense of doubt also amounts to mental cruelty.Mental
cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral
pattern by the other Unlike the case of physical cruelty. mental cruelty is difficult to establish by
direct evidence it is necessarily a matter of inference to be drawn from the facts and
circumstances of the case.
 In A Jayachandra vs Aneel Kaur11, the court observed as under

"The expression cruelty has not been defined in the Hindu Marriage Act Crulety can be
physical or metal Cruelty which is a ground for dissolution of marriage may be defined as willful
and unjustifiable conduct of such character to cause danger to life limb or health bodily or
mental or as to give rise to a reasonable apprehension of such danger. The question of mental
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 Cruelty, as noted above
includes mental cruelty, which falls within purview of a matrimonial wrong Cruelty need not be
physical If from the conduct of the spouse same is established and/or an inference can be
legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the
mind of the other spouse, about his or her mental welfare then this conduct of cruelty”

Is a man entitled to a divorce?

In the landmark judgement of Mayadevi v. Jagdish Prasad 12 in February 2007, the

Supreme Court held that any kind of mental cruelty faced by either of the spouses not just the
woman but men as well can apply for a divorce on grounds of cruelty. In this case, the
respondent filed an application of divorce after a repeated course of cruelty inflicted by his wife
and as alleged by the husband (respondent) that the wife did not provide food to him and his
children and blamed the husband and his family members instead.

Hence, a man is also entitled to divorce if he is inflicted with any kind of cruelty.

11
A Jayachandra vs Aneel Kaur (2005) 2 SCC 22
12
Mayadevi v. Jagdish Prasad, AIR 2007 SC 1426
 Conclusion

On basis of these various points we can say how in history there was no such law, which
governs the matter of divorce in Hindu society but with the implementation of the Hindu
Marriage Act-1955, this vacuum has been filled with proper directions and the law very well
handling these matters with the help of the courts.

There are many grounds for the divorce provided by law but since we are mainly
concerned to the cruelty and in context of this we have seen how the courts have interpreted
cruelty within the boundaries of law according to the situation.

When we go for the interpretation of the section 13 (1)(ia) of the Hindu Marriage Act-
1955 we can find that the cruelty cannot be restricted in a boundary of physical harm but it has
the meaning beyond that. As in the case of Naveen Kohli the court said physical violence is not
absolutely essential to constitute cruelty, a consistent course of conduct inflicting immeasurable
mental agony and torture may constitute cruelty and also in case of Yudhishthir Singh court has
held that a husband cannot ask his wife that he does not like her company, but she can or should
stay with other members of the family in matrimonial home, such an attitude is cruelty in itself
on the part of the husband. It means the way for deciding the matter of cruelty the court can
apply their own discretionary power.

At last we can conclude that anybody can reach the court for the divorce on basis of
cruelty, but, the case will be decided by the mere facts of that case, court can extend or
summarize the meaning of cruelty according to their own interpretation but within the boundary
of the law.