Jitendra Chauhan College of Law,

Mumbai

Family Law - II

Dissolution of marriage
under Hindu law on the
grounds of Cruelty and
Desertion

Submitted to Submitted by
Prof. Dr. Chhaya Shah Hiren Raja
Prof. Navanitha Warrier Class: SY L.L.B
Div & Roll no – B 104
ACKNOWLEDGEMENT
I am overwhelmed in all humbleness and gratefulness to acknowledge my depth to all those
who have helped me to put these ideas, well above the level of simplicity and into something
concrete.
I would like to express my special thanks of gratitude to my teacher Dr. Chhaya Shah & Prof.
Navanitha Warrier Professor, Law who gave me the golden opportunity to do this wonderful
project on the topic "Dissolution of marriage under Hindu law on the grounds of Cruelty
and Desertion”, which also helped me in doing a lot of Research. I am really thankful to them.

Any attempt at any level can't be satisfactorily completed without the support and guidance of
my parents and friends. I would like to thank my parents who helped me a lot in gathering
different information, collecting data and guiding me from time to time in making this project,
despite of their busy schedules, they gave me different ideas in making this project unique.

Hiren Paresh Raja

SY L.L.B B 104
Jitendra Chauhan College of Law
Table of Content
Introduction…………….......................................................................1

What is cruelty? ……........................................................................... 1

Cruelty as a ground for Divorce……………………………….………1

How cruelty was established as a ground for divorce ……………….2

Other provisions under the law…………………………….………….2

How does cruelty work in India?...............................................……....3

What is Desertion?.........................................………………………...4

Concept and elements of desertion…................................……………4

Desertion as a continuing offence……………….……………………6

Termination of desertion……………………………………………...6

Burden and problem of proof………………………………………...7

Conclusion……………………………………………………….......7

References/Bibliography………………………….……………….....8
Introduction
An Indian girl has always been encountered with this term “pati parmeshwar” which means
your husband is your God. No doubt the women of this century do not believe in such a concept
anymore but there are people especially the women who still think their survival is difficult
without a spouse. Here the women are not to be blamed entirely because little did they know
their so-called “parmeshwar” concept was a myth. Every relationship goes through different
phases so does a marriage, but is it valid to abuse the rights that the spouses have over each
other? A marriage never comes with a condition, in fact it is a tag to a relationship and no
person marries to eventually get divorced. Everyone puts an effort to save their relationship by
keeping aside all the differences because marriages in India hold major importance but things
are different when you are no longer able to handle the situations.

What is cruelty?
Cruelty refers to violent acts. However, a mere quarrel, petty outrageous behaviour or
differences between the spouses does not come in the ambit of cruelty because this is something
that is common in a day to day married life. Conducts that would amount to cruelty should be
grave and severe in nature. Grave violence doesn’t always mean physical violence. Though
physical violence is an essential factor that constitutes cruelty but apart from that a continuous
process of ill-treatment or mental or physical torture to either of the spouse would also amount
to cruelty.

Cruelty as a ground for Divorce

The day-to-day situations in a matrimonial life creates an ambiguity within the couples to lead
their life with each other peacefully. Although there is no such exhaustive definition to what
all condition would lead to an offence of cruelty but if we go through a case of marital abuse
happening around us, then we can conclude of certain conditions such as:
• The physical violence on the spouse.
• Having affairs or committing adultery with not just the spouse’s knowledge but even
publically accepting it.
• And also in cases where either of the spouses is falsely accused of committing adultery.
• The constant manifestation of agony, rage with the addition of yelling or abusing at the
spouse.
• Demoralizing and restricting the spouse by every means to be an independent individual
and compelling the spouse to be in a marital relationship where the spouse is left with
no other option but to depend on the other.
Not disclosing any fact or incident of an acquired sexually transmitted disease while they are
already into marital life. And the list goes on.
The conduct by either of the spouse should be of such a nature which should fall in the ambit
of cruelty under the Matrimonial Law. The Court needs to look after all the background and
circumstances because of which the couple wants to get separated. Basically, the Court has to
investigate the reason for the deterioration of the marriage.

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Divorce in general terms means the dissolution of a marriage with the help of a lawyer and by
the prescribed Law. One can go for divorce when either of the parties or both of them want to
get separated and free themselves from the existing relationship. However, every state has its
own laws regarding marriage.

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 by the Supreme Court in a landmark case of Narayan Ganesh Dastane Vs. Sucheta
Narayan Dastane 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.

Other provisions under the law

Section 498A of IPC deals with the offence of cruelty against a wife by her husband and/or in-
laws.
Ingredients of Section 498A
• The woman must be legally married to her husband.
• The woman must have been subjected to some sort of cruelty or marital abuse.
• Such cruelty must be done by her husband himself or the relatives of the husband and
here the terms relative only includes the husband’s parents, brothers and sisters and
nobody other than them, not even any close friend or any distant relatives.
• However, if the husband commits such cruelty he shall be liable for imprisonment
which may extend to three years with fine.
Explanation to Section 498A under the Indian Penal Code
The expression “cruelty” has been defined in a wider perspective under this section, that is:
1. The commencement of any wilful conduct of such a nature which would likely drive
the wife to commit suicide or would cause her grave injuries or danger by inflicting
physical or mental harm to life, limb or health of the wife.

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 2. Harassing the wife where such harassment is done with a view to coerce her or her
relations to meet any unlawful demands for any property or valuable security or is done
in the result of her or any of her relation’s failure in meeting such demand.
Related case law
In the case of Reema Aggarwal Vs. Anupam and Ors of 2004, Reema was harassed by her
husband Anupam, mother-in-law, brother-in-law and father-in-law for not being able to
provide enough dowry. The accused forced Reema to put some acidic and poisonous substance
in her mouth to end her life because of which she was rushed to the hospital. The Court held
that the husband of the second wife who marries her during the subsistence of earlier legal
marriage is not the husband within the meaning of Section 498A because it was the second
marriage of both Reema and Anupam and hence, the second wife cannot invoke this section.
The respondents were acquitted of the charged offences under Sections 307, 498A of IPC.
Cruelty under Section 13(1)(ia) of the Hindu Marriage Act talks about the behaviour of one
spouse towards the other which results in a reasonable apprehension in the mind of the latter
that it is not safe for him or her to continue to stay in the matrimonial relationship anymore
with the other.

How does cruelty work in India?

• Cruelty even being a grave offence is still less talked about. Because we Indian are so
used to it, aren’t we? Even if we try our best we still cannot change everyone’s mindset
because here in India women seldom come up with any complaint against their
husbands and in-laws because of fear, family pressure, societal pressure or lack of
awareness or no access to police or failure in work on part of the police. And at last,
they settle themselves by suffering violence and in addition to that, all these above-
stated pressures.
Hence, the Court has held that the failure to establish exact dates, timings and details about the
manner of cruelty are to be treated secondarily.
• Cruelty can be both physical and mental depending upon the circumstances and many
other factors such as education, social background, the sensitivity of individual victim.
What amounts to cruelty is a question of fact. The main intention behind all these acts
is to safeguard a woman’s dignity in her matrimonial home. Matrimonial relationships
between the wife with her husband and her in-laws, their different cultures, state of
health and their daily interactions determine cruelty.
Kinds of cruelty
Now that we have come this long discussing cruelty, we know one thing for sure that the courts
keep on amending and widening the scope of cruelty with respect to women. So cruelty can be
categorised into two types:
• Physical cruelty
Hereby under physical cruelty, we are 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.

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‘Habitual assaults’ under the Muslim Marriage Act, 1939 is one of the grounds for the
dissolution of a marriage. Assault in itself is a grave offence as stated under Section 351 of the
Indian Penal Code. Under the Parsi Marriage and Divorce Act, 1936, causing grievous hurt is
taken as a ground for divorce. 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
Now it is not just about physical 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 100% 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.

What is Desertion?
“Desertion is not the withdrawal from a place, but from a state of things.”
Halsbury’s Laws of India defines desertion as a ‘total repudiation of the obligation of
marriage’. The word desert literally means ‘to abandon or give up or forsake without any
sufficient reason or intention to return’. In a marriage, if one spouse leaves the matrimonial
alliance without any sufficient cause he is said to be at ‘fault’.
Marriage is considered a sacrament and preserved as a social institution. In olden times, it was
believed that this special contract could be put to an end only when one of the spouses was
guilty of an act which undermined the importance of this institution. This was the foundation
of the fault based theory of marriage. In a bid to preserve this holy union, the society reprimands
the guilty spouse and provides no remedy of divorce for him, thereby restricting the right to
file for divorce to the spouse with the clean hands. The ambiguity and complexities of the law
have been interpreted by the judiciary which attempts to render justice to the innocent party.
In spite of this attempt, there is a scope for abuse and misuse of the law by the guilt spouse.

Concept and elements of desertion

Section 13(1) (ib) of the Hindu Marriage Act, 1955 deals with desertion as a ground for divorce
and the explanation of the same reads: “The expression “desertion” means the desertion of the
petitioner by the other party to the marriage without reasonable cause and without the consent
of or against the wish of such party, and includes the willful neglect of the petitioner by the
other party to the marriage, and its grammatical variations and cognate expressions shall be
construed accordingly”. There are mainly four basic elements which are primarily to be
satisfied to constitute desertion. The first two are to be present in the deserting spouse.
1. The fact of separation (factum deserdendi)

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 2. The intention to desert ( animus deserdendi)
Desertion is a state which occurs only on the co-existence of both of these elements. If
either of these two ingredients is absent, the petition for divorce on desertion fails.
The interesting phenomenon in desertion is that either of the elements can precede the other;
however, desertion will result only when both coincide and form a union.
When a petition is filed, the first step is proving the fact of separation and the intention
separately while the second step is to prove their union. It is fairly easy to prove the physical
act of separation either from the conductor from the state of minds. The difficulty arises
on proving the animus i.e. the intention for desertion. This intention is required throughout
the period of desertion. The petitioner is expected to prove intention through conduct
as a person’s mind cannot be read. In this process, there are two ways in which the deserting
spouse has an opportunity to misuse the position of law:
There exist cases where the separation was consensual (like when the husband is on a voyage)
with no animus to desert. While separated, one of the spouses may develop the intention to
bring an end to the cohabitation permanently on the expiry of the consensual period. With the
separation and the consequent formation of intention, the act of desertion commences which
the deserted spouse is expected to prove. The exact duration of supervening intention is
difficult to prove thereby giving an edge to the deserting spouse, and the deserted spouse is in
a worse off position as she had consented to something she could not object(like a husband
leaving for a business trip).
The quality of permanence in intention to leave the matrimonial home is one of the essential
sub-elements in desertion which differentiate it from willful separation. If there is just
temporary separation without the intention to leave permanently, there is no desertion.
In this law, if a person decides to return just before the expiry of two years and claims to have
no intention of permanent separation, the so deserted spouse will have no recourse in law
Apart from these elements in the deserting spouse, there are two other elements which have to
be present in the deserted spouse:
1. Absence of consent
2. The absence of conduct which led to the other spouse leaving the matrimony.
The deserted spouse filing the petition is the one who must sufficiently prove and provide
evidence for his conduct showing unmistakably that the desertion was against his will. Courts
have held that it is not enough for the petitioner to show that he was unwilling that the
respondent stays out rather he must have expressly declared his wishes to the deserting spouse
or make it clear that the absence was against his wish. With this burden on the deserted spouse,
there arise times when illiterate, and submissive women cannot expressly convey their consent
or rather lack it. This creates problems in discharging their burden of proof providing for the
deserting spouse to take advantage of. If there is no proof of lack of consent, the consensual
separation is not a matrimonial offence using volenti non fit injuria.
It is additionally important to note that for a matrimonial relief on the ground of desertion, it is
necessary to show the passage of the statutory period of two years and the same must be
continuous. Therefore, it can be illustrated that a deserting spouse has an opportunity to take
advantage of the law right from the fulfillment of basic elements of desertion.

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Desertion as a continuing offence
The petition for divorce on the grounds of desertion can be filed only after a period of two
years from the commencement of the co-existence of animus and the factum. Desertion is
known as continuing offence as the element of permanence necessarily requires that the factum
and animus must continue during the entire statutory period preceding the presentation. If the
spouse returns before the expiry of two years and then leaves again, the waiting period of two
years commences all over again from the time he left again. If such period is interrupted, the
broken periods may not be added together so as to establish a summed period of two years. The
legislature provided this buffer period as a sort of cooling off period so that couples can rethink
and reconsider their decision before ending the holy matrimony.
Desertion is known as an inchoate offence as it continues from the day it commences to the
day it is terminated by the conduct of the deserting spouse or by the presentation of the petition.
It becomes a complete fault based matrimonial offence only when the deserted spouse files for
divorce.
Keeping the intent of the legislature in mind, providing a period of two years is also problematic
in a few ways. There may be instances where the deserting spouse may return within two
years on reconsideration of his decision, but the law provides for recommencement of the
additional period of two years on his departure again providing him with an opportunity to
abuse the leeway provided for reconciliation. The legislature overlooks the consequence on the
deserted spouse who is left without any support or maintenance. The trauma of being deserted
for a period just less than two years might lead to the attitude of non-acceptance of the renewal
of the marriage by the deserted spouse. The legislature might have good intentions in protecting
the marriages, but it seems to be working out the assumption that the deserted spouse would
always want the cohabitation to resume as soon as the deserting spouse returns. This
presumption by the legislature provides the deserting spouse a chance to abuse the law.

Termination of desertion
As seen above, desertion as a ground for relief differs from other such as adultery or cruelty as
in that offence the cause of action of desertion is not complete until the petition seeking relief
is filed. This means that through an act or conduct of the deserting spouse, the desertion can be
put to an end. Desertion can come to an end in the following ways:
1. Resumption of co habitation
2. Resumption of marital intercourse
3. Supervening animus revertendi or offer of reconciliation.
Resumption of cohabitation and marital intercourse should be with the intention of
permanency. The deserting spouse may return just before the completion of the statutory period
or engage in intercourse with the deserted spouse only to leave again. In both these cases, the
offence of desertion is terminated although the deserter has no real intention to resume
cohabitation but merely seeks to forestall or defeat impending judicial proceedings. When
the offer of reconciliation is made, there lies an opportunity for misuse. Courts have said that
unjustified refusal of the offer of reconciliation would not only terminate desertion but also
reverse the process and “put the boot on the other leg “making the innocent spouse guilty of

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desertion now. This can be used by the deserting spouse for defense even when he has no
intention of actual reconciliation.
Recognizing this loophole, the Courts have sought to restrict such abuse of this provision by
laying down stipulations such as casual acts of intercourse are not to be considered as proof of
resumption of the marital relationship. Additionally, the offer of reconciliation must be genuine
and in good faith. There may be instances where the deserting spouse has given just cause for
leaving the matrimonial home. In these instances, the deserted spouse cannot possibly be
expected to subject herself to a risk of recurrence and should be allowed to refuse
reconciliation. Under the Matrimonial Clauses Act, 1973, if parties resume cohabitation during
the period of desertion with a view to effect reconciliation, but the same does not come about,
desertion will not be terminated but the period during which parties lived together will be
deducted. This should also be accepted by the Indian courts. They must do so by taking into
account the facts and circumstances both prior and subsequent to the desertion and also
determine whether the deserting spouse can be reasonably said to be ready and willing to
resume the marital relationship.

Burden and problem of proof

The Court has held that the onus of proving desertion and all its elements rests on the petitioner
as, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies
it. This principle accords with common-sense as it is “so much easier to prove a positive than
a negative”. However, the Courts are often faced with a problem of conflicting evidence, and
it is difficult to decide which of the conflicting factual version given by the two spouses is
correct. This is especially so since such cases occur within the privacy of the four walls of the
house and in the absence of witnesses to corroborate evidence, the circumstances are hostile to
the discovery of the truth. This translates into an advantage for the deserting spouse. Following
the English Courts, the Supreme Court initially held that such proof must be beyond reasonable
doubt. Eventually, the courts held that matrimonial offence may be proved on the
preponderance of probabilities. However, there have been cases which have been decided on
the beyond reasonable doubt standard thereby placing an immense burden on the innocent party
to get relief and letting the deserter go scot free.
Due to the subjectivity and absence of any guidelines for the determination of desertion
petitions, the discretion and prejudices play a huge role in the process. It is true that every case
needs to be weighed according to the individual facts and background, however for consistency
in dispensing justice; there is a need to introduce guidelines for the judges.

Conclusion
It is true that there are a lower number of complaints lodged for divorce on grounds of cruelty.
Because people any way prefer settling themselves with whatever condition they are in. But
you need to understand that the provisions made are going to help and safeguard you from ill-
treatments. So, laws may vary according to particular State Laws or the grounds which would
fall under the scope of cruelty. So in my opinion, if at all any of you want to know about the
grounds that would fall under the scope of cruelty then you should consult a local lawyer or
study the related statutes of your state.

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References/Bibliography
Online Sources
• https://blog.ipleaders.in/desertion-ground-divorce/
• https://blog.ipleaders.in/cruelty-as-a-ground-for-divorce/
• https://www.legalserviceindia.com/legal/article-8703-theories-of-divorce.html
• https://indiankanoon.org/doc/1591531/

Offline Sources
• Family Law -2 - BY Prof. H.D. Pithawalla

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