Introduction

If from the conduct of his spouse it is established 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 amounts to cruelty. Cruelty is to be taken as a behavior by one spouse towards the other, which
causes a reasonable apprehension in the mind of the later that it is not safe for him or her to continue the
matrimonial relationship with the other. Any conduct of the respondent which would render harmful or injurious
for the petitioner to live with the respondent or is of such a nature so as to create a reasonable apprehension to
that effect would amount to mental cruelty. Thus, it is a matter of inference to be drawn by taking into account
the nature of the conduct and its effect on the complaining spouse. Cruelty was not recognized by the Courts as a
ground of Divorce but then came the landmark case of Dastane v. Dastane which introduced cruelty as a ground
of Divorce
Section under different acts for cruelty

Section 13 of the Hindu Marriage Act, 1955.

Divorce.

(1) 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

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his
or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the
presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental
disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the
respondent.

Section 85 of the BNS:

"85. Husband or relative of husband of a woman subjecting her to cruelty. — Whoever, being the husband or the
relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a
term which may extend to three years and shall also be liable to fine."

Explanation:
For the purposes of this section, "cruelty" means:

(a) Any willful conduct which is likely to cause grave injury or danger to life, limb, or health (whether mental or
physical) of the woman; or

(b) Harassment of the woman where 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.

Section 86 of the BNS:

"86. This section further clarifies the nature of harassment and cruelty, providing comprehensive coverage and
ensuring clarity in its application.
Bench of Judges :

1. Y.Chandrachud.
2. Y.V. Goswami.
3. P.K. Untwalia.

Provisions of Hindu Marriage Act, 1955. :

1. Section 10. Judicial separation.—1[(1) Either party to a marriage, whether solemnized before or after the
commencement of this Act, may present a petition praying for a decree for judicial separation on any of the
grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified
in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.]

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to
cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied
of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do
so.

2. Section 12. Voidable marriages - (1) (c) that the consent of the petitioner, or where the consent of the guardian
in marriage of the petitioner 4[was required under section 5 as it stood immediately before the commencement of
the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)], the consent of such guardian was obtained by
force 5[or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the
respondent]

3. Section 13. Divorce- (1) 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—
1[(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his
or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the
petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;
or]

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental
disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the
respondent.

{Explanation.—In this clause,— (a) the expression “mental disorder” means mental illness, arrested or
incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes
schizophrenia; (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind
(whether or not including sub—normality of intelligence) which results in abnormally aggressive or seriously
irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical
treatment; or}

23. Decree in proceedings - (1) In any proceeding under this Act, whether defended or not, if the court is satisfied
that;

(b) where the ground of the petition is the ground specified 3* * * in clause (i) of sub-section (1) of section 13,
the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of,
or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty
Background of cruelty :

What is Cruelty ?

Cruelty in the intentional and deliberate infliction of physical or emotional pain, suffering, or distress on others ,
often for the pleasure, gain, or to assert power or control. It involves a lack of empathy, compassion, or regard for
the well-being and dignity of others.

Type of cruelty

1. Physical
If any act results in injury to the body, health, or limb causing reasonable apprehension of danger, then it
amounts to physical cruelty. Instances like ill-treatment, beating, causing bruises on the body amount to
physical cruelty. It is easy to establish physical cruelty than mental cruelty. In establishing physical cruelty,
a single act of violence is enough. Before declaring the judgment, it is important to consider the whole
matrimonial relation like environment, age, physical and mental condition, status, education, etc. Where
physical cruelty is alleged, it is necessary that full particulars and specific allegations must be made in the
petition.
a. Assault.
b. Battery.
c. Torture.
d. Physical Abuse.
e. Neglect.

2. Mental
In 1976, Section 13(1)(i)(i-a) was inserted to incorporate the concept of mental cruelty in the Hindu
Marriage Act, 1976. Mental cruelty is considered more injurious and grievous as compared to physical
cruelty. Today, the cause of most broken marriages is mental harassment. Mental harassment refers to
behavior that may cause pain and injury to the mind. Instances like threats of physical cruelty also
constitute mental cruelty. Mental cruelty can broadly be defined as the conduct that inflicts upon the other
party such mental pain and suffering as would make it not possible for that party to live with the other. It
is tough to prove mental cruelty, therefore the court has to be more cautious while dealing with mental
cruelty cases.
a. Mind Games.
b. Emotional Exploitation.
c. Psychological Torture.
d. Brain Washing.
e. Coercive Control.
The Court interpreted cruelty as an act that causes a reasonable “Apprehension” of being harmful or injurious for
the petitioner to live or reside with the respondent.

Cruelty as a ground for Divorce :

Out of all matrimonial offenses, cruelty is the most difficult offense to define. In the case of Sukumar vs Tripathi,
the court held that a complete list as to what constitutes cruelty can never succeed, therefore the legislature and
the judiciary avoided formulating a definition of cruelty. The concept of cruelty is very vast and flexible; therefore,
it is necessary to deal with every case cautiously. The facts and circumstances of every case are very different
and the courts should decide the case on grounds of cruelty only based upon the subject matter of the case.
However, when we talk about marital abuse, we can conclude certain conditions such as:

a. Physical violence like burning any limb of the body, beating or neglecting in providing food, or starving.
b. Humiliating in a public place or presence of one’s friends or family.
c. Keeping in illegal confinement.
d. False charge of unchastity or that the spouse is suffering from venereal disease.
e. The false charge against the wife that she was not a virgin at the time of marriage.
f. Misbehavior with the mother of the husband.
g. Voluntary abortion without the consent of the petitioner.
h. False charge of impotence.
i. Repeated abuses, taunts, nagging, curses, and rebukes.
j. Drunkenness mixed with neglect in maintaining the family.
Fact of the Case :

The Appellant is Dr. Narayan Ganesh Dastane, passed his M.Sc. in Agriculture from the Poona University. He is
well-educated and qualified man who worked on various projects on national and international level. The
Respondent is Sucheta, passed her B.Sc. from the Delhi University. She has obtained master's degree in social
work. She is well-educated woman whose father works as an Under Secretary in the Commerce of Ministry of
the Government of India.
The Respondent's parents arranged her marriage with the Appellant in April 1956. But before finalising the
marriage proposal, the Respondent's father, B. R. Abhyankar, sent letters to the Appellant informing him
regarding an incident occurred where the Respondent suffered from a 'bad attack of sunstroke' which affected her
mental condition for some time from which she recovered and mentioned 'cerebral malaria' as another reason for
the brief decline of her mental health.

He further stated that after a course of treatment, she was cured at the Yeravada Mental Hospital, and asked the
Appellant to discuss the matter, if necessary, with the doctors at the hospital, which the Appellant followed and
upon the Doctor's confirmation of the Respondent's father's statement, he did not make any further inquiries at
the Yeravada Mental Hospital. The marriage ceremony was performed on May 13, 1956. On March 1957, a
daughter was born to the couple named Shubha, and on March 21, 1959, a second daughter was born named
Vibha.

In January, 1961, the Respondent went to Poona to attend the Appellant's brother's marriage ceremony. The
Appellant got the Respondent examined by Dr. Seth, a Psychiatrist at the Yeravada Hospital, fortnight after the
marriage. As per Appellant's claim, she had promised to see Mr. Seth but she denies the fact that she had made
that kind of promise. The Respondent believed that the Appellant was concocting a case of unsound mind against
her. They lived together until February 1961, and on the day of parting, she was three months pregnant.

During the Appellant's stay in Delhi, he wrote a letter to the Police asking for protection as he feared his life was
in danger from the Respondent's parents and relatives. On the 19th, they briefly interacted with each other which
were another opportunity where the parties spewed more venom at each other, and on a subsequent day,
Respondent renewed his request for Police protection.

On March 23, 1961, the Respondent addressed a letter to the Appellant complaining against his conduct and
asking for maintenance of herself and the daughters. The Respondent also wrote a application to the Secretary,
Ministry of Food and Agriculture of India, stating that the Appellant had deserted her and treated her with extreme
cruelty, and asking the Government to make separate provision for her maintenance. Respondent's statement
regarding the Appellant's ill-treatment and desertion was recorded by an Assistant Superintendant of Police. The
cross-complaints and recorded statements amongst the parties were futile and did not bear any fruit.

On August 1961, a third daughter named Pratibha was born to the family. The Appellant wrote a letter to the
father of Respondent complaining about the Respondent's conduct and expressed regret for not being given a
proper invitation for the naming ceremony of his own child. On December 15, 1961, the Appellant informed the
Respondent's father that he had decided to move to the Court for seeking separation from the Respondent.
On February 19, 1962, proceedings were instituted in the Trial Court where the Appellant asked for the annulment
of his marriage under Section 12 (1)(c) of the Hindu Marriage Act, 1955 on the ground that his consent for the
marriage was obtained by fraud. The Appellant alleged that the Respondent was treated at Yeravada Hospital for
Schizophrenia and the Respondent's father fraudulently depicted the state of her mental health to him to obtain
his consent to the marriage. Alternatively, he asked for divorce under Section13 (1)(iii), Hindu Marriage Act,
1955, on the ground that the Respondent was of unsound mind.

Alternatively, the Appellant asked for judicial separation under Section 10(1)(b) on the ground that the
Respondent had treated him with cruelty which created a reasonable apprehension in his mind that it would be
harmful and injurious for him to live with her.

Issues:

1. Whether the Burden of Proof of cruelty lies on the Petitioner or not?

2. Whether the facts have to be established beyond a reasonable doubt in matrimonial matters?
3. Whether the act of sexual intercourse amounts to condonation of cruelty?

Contentions of the parties:

Allegations of Husband (Dr.Dastane)

1.The respondent used to describe the mother of appellant as a boorish woman.

2.On the day of 'Paksha' (the day oil which oblations are offered to ancestors) she used to abuse the appellant's
ancestors.

3.She beat her daughter Shubha while she was running on a high temperature of 104 degrees.

4.One night she started behaving as if she was 'possessed'. She tore off the Mangal-Sutra once and said that she
will not put it on again.

5.She used to switch on the light at midnight and sit by the bedside of husband nagging him through the night, as
a result he literally prostrated himself before her on many occasions."

Allegations of Wife (Sucheta)

Special instructions given by my husband.
1.On rising up in the morning, to look after the minor.
2.Not to fill milk vessel or container or tea cup to the brim.
3.Not to serve meals in brass plates cups and vessels
4.After serving the first course during meals, not to constantly and continuously ask 'what do you want?' but to
inform at the beginning of the meals how much and which are the courses.
5.Not to do any work with one hand.
6.To regularly apply to her 'Kajal' and give him tomato juice.
7.Not to talk.

Judgement :

The Supreme Court of India held that the appellant's contention regarding his wife being of unsound mind was
fabricated by him. The contention regarding the respondent inflicting cruelty on the appellant has been proven to
exist within the meaning of Section 10(1)(b) of Hindu Marriage Act, 1955, but the appellant's act of engaging in
sexual intercourse with the respondent leads to 'condonation of cruelty' in the eyes of law. The respondent was
willing to return to the household shared by both parties as she realized her mistakes.

As regard to the question of condonation (forgiveness of the matrimonial offence and the restoration of an
offending spouse to the same position as he or she occupied before the offence was committed), both restoration
and forgiveness have to occur by the appellant.

The evidence of condonation consists in the fact that the spouses led a normal sexual life despite the respondent's
acts of cruelty. The intent to restore and forgive the offending spouse to the original status may be reasonably
inferred as the parties lead a life of intimacy which represents a normal matrimonial relationship, uninfluenced
by the respondent's conduct.

The judgment establishes that the petitioner bears the burden of proving cruelty by a preponderance of probability,
not beyond reasonable doubt. Furthermore, cruelty is not limited to physical abuse but encompasses mental
cruelty as well, which can manifest in various forms of emotional harm. The court also recognized the concept of
condonation, where continued cohabitation after knowledge of cruelty can be seen as forgiveness. The judgment
also emphasizes that cruelty is not defined by a single act but by a pattern of behavior that negatively impacts the
petitioner’s well-being. Given the subjective nature of cruelty, courts must assess each case individually,
considering the unique circumstances and the impact on the petitioner.

The appellant condoned the respondent after which she did not act in the manner as she did before the condonation.
Hence, the respondent will not be held liable for cruelty and the divorce petition will not be granted.

We therefore hold that the respondent was guilty of cruelty but the appellant condoned it and the subsequent
conduct of the respondent is not such as to amount to a revival of the original cause of action. Accordingly, we
dismiss the appeal and direct the appellant to pay the costs of the respondent.
Key Findings of the Supreme Court :

Nature of Cruelty: The Court provided clarity on the understanding of cruelty. It was held that cruelty, as a ground
for divorce, need not be physical. Even mental pain, agony, or suffering can come under its ambit.

Degree of Cruelty: The Supreme Court opined that it’s not necessary for cruelty to cause danger to life, limb, or
health. It is sufficient if it makes life together so unbearable that they can’t reasonably be expected to live together.

Conduct Evaluation: The Court emphasized evaluating the entirety of the marital relationship, analyzing instances,
and not isolating individual incidents. The conduct of both parties to the marriage has to be examined.

Proof and Probability: The apex court stated that in matrimonial disputes, the standard of proof doesn’t have to
reach the rigorous level of criminal cases, i.e., beyond a reasonable doubt. If the probability factor is present, and
the conduct seems likely, it might be considered enough.

Key issues highlighted by the court :

• Does the burden of proof lie upon the petitioner?

Yes

The court, while addressing the issue of the burden of proof, categorically affirmed that it is the responsibility of
the petitioner. In the 23rd para of the judgment, the court remarked, “Doubtless, the burden must lie on the
petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the
party which denies it.” The court reasoned that proving a positive over a negative is much easier. Therefore, it is
the duty of the petitioner to prove that the respondent has treated him with cruelty, pursuant to which he has filed
for a decree of judicial separation under Section 10(1) of the Hindu Marriage Act (hereinafter referred to as
H.M.A.).

Now, the question lies: does the petitioner need to prove it beyond reasonable doubt as held by the Bombay High
Court? The apex court answered that proving beyond a reasonable doubt is not required. The petitioner must
prove the circumstances, and the court will examine the probability considering those circumstances. Therefore,
the petitioner must prove a mere preponderance of probability and not beyond a reasonable doubt.
As per Section 3 of the Indian Evidence Act, a fact can be said to be proved if the court is satisfied that it exists
and such that a reasonable prudent man is supposed to act on its existence. While examining Section 10 H.M.A.
and Section 23 H.M.A. (jurisdiction of the court to pass decree), the court found out that neither of the sections
confers a duty upon the respondent to prove facts beyond a reasonable doubt.

• Did the court regard condonation in this matter?

Yes

The appellant has contended that there was no condonation, whereas it is found implicit in the respondent’s
argument. As per Section 23(1)(b) of the H.M.A., the appeal can be dismissed if cruelty is condoned. The fact
that the respondent was three months pregnant when she left the home in 1961 implies the act of condonation on
the part of the appellant. The court answered the question in the 57th para of the judgment, observing that “The
evidence of condonation consists here in the fact that the spouses led a normal sexual life despite the respondent’s
-acts of cruelty. This is not a case where the spouses, after separation, indulged in a stray act of sexual intercourse,
in which case the necessary intent to forgive and restore may be said to be lacking.”

The court had defined condonation as forgiveness of matrimonial offence and restoration of the offending spouse
to the same position he or she occupied before the offence was committed. The court has affirmed that there is
strong evidence of condonation in the present case, as strong as the presence of cruelty.

The evidence of condonation is implicit in the fact that spouses have led a normal sexual life despite the
respondent’s cruel acts. It is not the case where both spouses have indulged in a stray act of sexual intercourse
after separation. Instead, both spouses have performed such acts during their cohabitation. This shows
condonation on the part of the appellant.

• Does cruelty consist of a single act?

No

Cruelty is inherently subjective, making it a complex issue to define and assess. The landmark case of Samar
Ghosh v. Jaya Ghosh[1] underscored this complexity, emphasizing that what constitutes cruelty is heavily
influenced by individual circumstances. Factors such as upbringing, education, cultural background,
socioeconomic status, and personal values all play a crucial role in shaping one’s perception and experience of
cruelty.

Moreover, the nature of mental cruelty is dynamic, evolving with societal shifts and changing norms. Conduct
deemed cruel today could have been considered acceptable in the past. This fluidity underscores the challenge of
establishing a rigid framework for determining cruelty. Consequently, courts must approach each case with a
nuanced understanding, considering the unique circumstances and the subjective experiences of the parties
involved.
The court further highlighted that illustrative examples of cruelty can be provided but should not be treated as
definitive criteria. The absence of a specific act from a predefined list does not preclude a finding of cruelty.