CRUELTY
SECTION 13(1) (ia) HINDU MARRIAGE ACT.—
Under the modern Hindu law, cruelty was a ground both for judicial separation and divorce.
Originally, when cruelty was a ground for judicial separation alone under Section 10 of the Hindu Marriage Act, 1955, the petitioner was required to show that the respondent had treated him or her with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party.
After passing Marriage Laws (Amendment) Act, 1976 cruelty has been a ground of divorce.
Earlier cruelty had to be such which would affect the physical or mental health of other spouse. Section 13(1) (i-a) of the Act now requires that the other party has, after the solemnization of marriage treated the petitioner with cruelty.
The Marriage Law (Amendment) Act, 1976 which makes cruelty a ground for divorce, has changed the wording of the clause thus: Respondent has treated the petitioner with cruelty.
The change in the definition of cruelty will signify that an act or omission or conduct which constitutes cruelty is a ground for divorce or judicial separation even if it causes no apprehension of any sort in the mind of the petitioner.
It is no more required that cruelty must affect the physical or mental health of the party. Thus, it is now sufficient to establish cruelty as a ground of divorce and it has been left to the courts to determine on the facts of each case, whether the conduct amounts to cruelty.
G.V.N. KAMESWARA RAO V. G. JALILI,
In G.V.N. Kameswara Rao v. G. Jalili, the Supreme Court has further elucidated this concept.
The court observed that the act of cruelty need not be of such nature as to create reasonable apprehension that it would be harmful for petitioner to live with the other party.
The court further observed that social status of parties is a relevant consideration while deciding whether the act constitutes cruelty or not.
The cases decided under the old provision emphasise the reasonable apprehension aspect of cruelty, without much bothering about the nature of the act or conduct constituting cruelty.
SAYAL V. SARLA
Thus, in Sayal v. Sarla, wife administered her husband a "love-potion" hoping thereby her husband would be in her palm. It was her misfortune that what she thought to be a love potion turned out to be a deadly poison.
Since this act of the wife resulted in the hospitalisation of the husband for considerable time and thereby created a reasonable apprehension, the Court granted a decree to the husband.
Now, it seems that the emphasis will be on act or conduct constituting cruelty.
It is submitted that in construing whether an act, omission, or conduct amounts to cruelty, the court will, nevertheless, consider its impact on the mind of the petitioner.
In view of this, the cases decided under the old definition of cruelty will still be relevant.
DEFINITION AND MEANING OF CRUELTY
No precise definition of cruelty exists, nor is it possible to do so. Acts or conduct constituting cruelty can be so numerous and varied that it would be impossible to fit them into any water-tight compartments.
Cruelty as a concept defies definition. It can be judged after taking into account all the facts and circumstances of the case and cannot be determined by a fixed rigid formula.
Cruelty may be subtle or brutal. It may be physical or mental. It may be by words, gestures, or by mere silence. It can be violence, some attitude or even mere silence.
The legal concept of "cruelty" neither has been defined in H.M.A, 1955 nor can be defined in the literal words. However, the observations made by the Supreme Court in various cases including Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105, A. Jyachandra v. Aneel Kaur, (2005) (S.C.) can be noticed wherein it was observed that -
What constitute cruelty cannot be defined universally as it depends upon the facts and circumstances of the each and every case. In determining whether an act amounts to cruelty, the court must be practical and not philosophical. The court shall examine the case not in respect of an ideal husband and ideal wife, rather in light of actual practical circumstances. The court will inquire as to “whether the conduct charged as cruelty is of such a character as to –
a. Cause her actual physical harm or apprehension of physical harm as was observed in Dastane v. Dastane, (1975) (S.C.) (3 Judges Bench), or
b. Cause her mental pain and sufferings which make it impossible to live with respondent as was observed in V. Bhagat v. Mrs. D. Bhagat, (1994)(S.C.) (2 Judges Bench), or
c. Stoop below the accepted standards of human conducts and basic human dignity as was observed in Manisha Tyagi v. Deepak Kumar, (2010)(S.C.) (2 Judges Bench).
Thus, from the above discussion it is explicit that the term "cruelty" has been explained in relation to human conduct or human behavior. It is a conduct in relation to or in respect of matrimonial duties and obligations. The Supreme Court has expanded the scope of the term “cruelty”. The cruelty may be mental or physical, intentional or unintentional and includes both acts and omissions.
Cruelty complained of must satisfy the conscience of the court to believe that relations between the parties had deteriorated to such an extent due to the conduct of one of the spouses that it has become impossible to live together without agony, torture or distress or that the atmosphere in the house is so surcharged that it is not conducive for the mental or physical health of any of the parties.
To constitute cruelty the conduct that is complained against should be grave and weighty for arriving at the conclusion that the petitioner cannot be reasonably expected to live with the other spouse.
NAVEEN KOHLI V. NEETU KOHLI,
The Supreme Court has observed that the conduct complained of should be grave and weighty. It should be such that no reasonable person should tolerate it. It should not be ordinary wear and tear of marriage.
In the instant case, the husband had floated three companies. The wife published news items against the Article of Association of companies as to affect the stature of husband as an established business man.
She opened accounts by forging the husband’s signatures. She filed several criminal and civil actions against him.
All her actions indicated that she wanted to make his life a miserable hell. Under the circumstances it was held that the marriage was wrecked beyond salvage.
Cruelty should not always be of such character as to cause danger to life or health, but harm to or injury to health, reputation and mental pain will also amount to cruelty.
The legal concept of cruelty has varied from time to time and from society to society with the change in social and economic conditions.
In early English law, intention was considered to be an essential element of cruelty; in modern law it is no longer so. The modern law takes the view that the objective is to accord protection to the innocent party.
There is a large volume of case law around the legal concept of cruelty in India as well as abroad. Since the human nature is basically the same everywhere, the foreign decisions on cruelty can be of help to us.
INTENTION TO BE CRUEL IS NOT MATERIAL.—
At one time in English law intention to be cruel was an essential ingredient of cruelty. Subsequently, a change of attitude took place and intention to injure no longer remained an essential element of cruelty.
In 1952, House of Lords (per Lord Meeriman) said that an actual intention to injure was not an essential element and that unintentional acts may amount to cruelty.
Similarly, motive, malignity or malevolent intention are not essential elements of cruelty, though if they exist they would be factors of considerable importance.
If bitter waters are flowing, it is not necessary to inquire from what source they spring.
WILLIAMS V. WILLIAMS,
In intention as an element of cruelty was finally rejected.
Under Hindu law also, intention or motive is not an essential element of cruelty. In cruelty mens rea is not important. Mental cruelty also need not be intentional.
BHAGWAT V. BHAGWAT
In above case, the husband tried to strangulate wife's brother on one occasion and on another occasion her younger son. It was established that on both the occasions the husband acted in a fit of insanity.
NAIK, J., SAID :
"The conduct of the husband in the case is such as to amount to cruelty, even in the absence of an intention to be cruel. Insanity, therefore, should not bar to relief claimed by the wife.
The schizophrenia from which the husband is suffering periodically is no good defence to the plea of cruelty put forward on behalf of the wife."
If the act or conduct is intentional, obviously it amounts to cruelty.
SHOULD THE ACT OR CONDUCT CONSTITUTING CRUELTY BE AIMED AT THE PETITIONER?—
At one time the English courts said that acts or conduct constituting cruelty must be aimed at the petitioner.
But, now it is no longer necessary, that act or conduct constituting cruelty be aimed at the petitioner A criminal and indecent assault by a husband on his stepdaughter amounts to cruelty to wife although there is no intention to hurt or injure the wife. In Bhagwat v. Bhagwat, the Indian Court also took this view.
SHOULD THE ACT OR CONDUCT COMPLAINED OF BE THAT OF THE RESPONDENT?—
Most wives in Hindu society still live in the joint families, with all its advantages and disadvantages. A question may arise as to whether it would amount to cruelty if the act or conduct complained of is not of the respondent but of some member (or members) of the joint family?
SHYAM SUNDER V. SANTADEVI,
Soon after the marriage, the wife was locked up, kept without food, ill-treated by the members of the joint family, while the husband stood there idly, without least caring to protect his wife.
It was held that an intentional omission to protect his wife from the ill-treatment of the members of the joint family, amounts to cruelty on the part of the husband.
Thus, the court gave a wider meaning to the husband’s Dharma (duty) to accord protection to his wife. The husband is known as pati (protector). The Shastra enjoins: "The husband, howsoever weak he might be, must protect his wedded wife."
Thus, husband’s failure to protect his wife from the cruelty of others may amount to cruelty on his part.
GOPAL V. MITHILESH,
But in Gopal v. Mithilesh, the court held that husband’s stand of neutrality between his mother and wife and thereby allowing his wife to be nagged by his mother did not amount to cruelty to the wife: this was the normal wear and tear of Hindu family life, the judge observed.
DEVA KUMAR V. THILAGAVATHY
In Deva Kumar v. Thilagavathy on the other hand, just within five days of marriage, the in-laws treated her so harshly that she was driven to commit suicide, it was held that it amounted to cruelty.
CRUELTY OF THE CHILD
Ordinarily, cruelty by a child of the parties towards one of its parents does not amount to cruelty, but when a child so identifies himself with one of the parents and collaborates with that parent to perpetuate cruelty on the other parent, the conduct of the child will be considered as cruelty on the part of the other parent.
SAVITRI V. MULCHAND,
Thus, in Savitri v. Mulchand, the mother and the son acting in concert to harass the father, the son grabbed the testicles of the father and squeezed them on his refusal to do what the mother and the son wanted him to do.
The court held that this would amount to cruelty on the part of the wife towards the husband.
