Cruelty: Judicial Interpretation

Section 13 (1) (i a) of the Hindu Marriage Act, 1955, provides for the ground for divorce and judicial separation on the basis of cruelty.

Section 13 (1) (i a) of the Hindu Marriage Act, 1955:

Any marriage solemnised, 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 solemnisation of the marriage, treated the petitioner with cruelty.

Before passing of the Marriage Laws (Amendment) Act 1976, cruelty was a ground only for judicial separation and the petitioner was required to prove 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. The Marriage Laws (Amendment) Act, 1976 which makes cruelty also a ground for divorce, has changed the wording of the clause thus: “respondent has treated the petitioner with cruelty”. This change signifies that an act or omission or conduct which constitutes cruelty is a ground for judicial separation or divorce. Even if it causes no apprehension of any sort in the mind of the petitioner.

In Smt. Mayadevi v. Jagdish Prasad, AIR 2007 SC 1426, case, honourable Justice Dr. Arijit Pasayat, in para 13 says “the foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven.”

Cruelty has not been defined in the matrimonial laws. It has been the policy of legislation to avoid such a definition. The Dissolution of Muslim Marriage Act, however, mentions, by way of example six situations when an act may amount to cruelty. These six situations, available to the wife only are :

1. that the husband assaults her habitually and makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment;
2. that the husband associates with women of ill-repute or leads an infamous life;
3. that the husband attempts to force her to lead an immoral life;
4. that the husband disposes of her property or prevents her from exercising her legal rights over it;
5. that the husband obstructs her in the observance of her religious profession or practice; and
6. that the husband has more than one wives and does not treat her equitably in accordance with the injunctions of the Quran,

The legislature has, in almost all the matrimonial laws, left it to the judiciary to interpret, analyze and define what cruelty is. The judiciary has crossed lengths and breadths in discharging its burden and has declared every human activity creating physical or mental hardship as amounting to cruelty.

In Thomas v. Thomas, (1948) 2 All E.R. 98 case, the Court held that physical force which causes bodily injury is cruelty.

In Hall V. Hall, (1962) 3, All E.R. 518 case, the Court held that conduct of the other party which puts the health of the petitioner in jeopardy, systematic neglect and abuse, drunkenness is cruelty.

In Carpenter v. Carpenter, (1955) 2 All E.R. 449 case, the Court held that refusal to co-operate in family affairs, a false charge of adultery is cruelty.

In Statham v. Statham, (1928) All E.R. 219, case, the Court held that a cruelty to a child to wound the mother’s feelings, insulting conduct resulting in melancholia, installing a woman in the house and threatening to elope with her, association with other women, conviction for a criminal offence in which the other spouse is implicated against his/her will, excessive or revolting sexual demands is cruelty.

In Sheldon v. Sheldon, (1966) 2 All E.R. 257 case, Richard Sheldon, married Barbara Sellers. The husband had to go on his work to Scotland for about a year. He came home occasionally for weekends, but he never had sexual intercourse with his wife on these visits. It continued even after his return from Scotland after 1 Year. They used to sleep in the same bed but the husband did not response the wife. It affected the health of the wife, even the doctor had to spoke with the husband about his conduct. But all had been proved vain. Thereafter she filed a divorce petition on the ground of cruelty against her husband. The Court held that the husband’s refusal of sexual intercourse over so long period without excuse, causing great injury to his wife’s health, amounted to cruelty. The petition was granted.

In Bravery v. Bravery, (1954) 3 All E.R. 59 case, the Court held that sterilization by the husband without the wife’s consent is cruelty.

In Forbes v, Forbes, (1955) 2 All E R. 311 case, the Court held that unreasonable insistence on the use of contraceptives is cruelty.

In Russel v. Russel 1897(A.C.)(395) case, Earl Russel and Mabel Scott married in 1890 and then in December 1891, Mrs. Russel filed a petition of Judicial Separation against Mr. Russel. She accused her husband of committing sodomy with a male friend. However, she could not win in the case. Thereafter, Mr.Russel filed a petition for Judicial Separation stating that it was the cruelty on the part of her wife by making a false charge of sodomy. And it was granted and then Mrs. Russel made an application for appeal against the decision. The Appeal authority decided cruelty as the conduct of such character as to have caused danger to life, limb or health or as to give rise to reasonable, apprehension of such danger.

In Buchler v. Buchler (1947) 1 ALL.E.R. 319 Case, it so happened that the husband formed an association with a male friend. This caused the wife great distress and she had to face comments from relatives and neighbours. The husband did not pay proper attention to her request to end the relationship and also cleared his throat to leave if she did not like it. When she approached for considering cruelty in the side of the husband, the Court held that there must be something more serious than ordinary wear and tear of the matrimonial life. So it was not considered as cruelty in this case. It means that to constitute cruelty in the side of the petitioner, the petitioner should prove that the facts are such as that is more serious than ordinary wear and tear of the matrimonial life.

In Iqbal Kaur v. Pritam Singh, AIR 1963 Punj 2 case, the Court held that misconduct in relation to the third person, communication of venereal disease, unwarranted imputations of unchastity is cruelty.

In Madan Lal v. Sudesh Kumari, AIR 1988 Del 93 case, the Court held that where the wife gave birth to an illegitimate child, the child being born only six months after the marriage with the full development, it has been held to be cruelty to the husband and entitled to divorce notwithstanding that on same facts, he could have availed remedy of decree of nullity under Section 12 (1) (d)74 of the Hindu Marriage Act, 1955.

In Smt. Arati Mondal v. Bhupati Mondal, AIR 2009 Cal 200 case, the Calcutta High Court held cruelty need not be intentional. Act of deprivation of conjugal right on the part of the wife toward her husband is the worst form of cruelty.

In Smt. Mamata Dubey v. Rajesh Dubey, AIR 2009 All 141 case, the court held that constantly accusing the husband of having adulterous relationship with others which proved later to be false and sending the family members to jail under Section 498-A of I.P.C. amounts to cruelty.

In Rajiv Dinesh Gadkari v. Smt. Nilangi Rajiv Gadkari, AIR 2010 (1) Bom R 45 case, husband residing in the U.S.A. and forcing his wife to adopt American life. The court held that asking the wife to wear a particular type of dress or compelling her to drink wine or alcohol amounts to cruelty and entitle to divorce.

In Manisha Tyagi v. Deepak Kumar, AIR 2010 SC 1042 case, the court held that to establish cruelty, it is not necessary that physical violence should be used. However, continued ill-treatment, cessation of marital intercourse, the indifference of one spouse to the other may lead to an inference of cruelty.

In Debal Kumar Bakshi v. Smt. Bithi Bakshi, AIR 2010 (NOC) 437 (Cal)  case, a complaint was made by wife against husband and mother-in-law. Husband and mother-in-law called at the police station. Ultimately, allegations made by wife proved to be false. Therefore, such baseless allegations amount to cruelty and afford ground of divorce.

Similarly insistence to change his or her religion, a complete denial of coitus, have all been held to be acts of cruelty.

Understanding the Ambit of the Word “Cruelty”:

Cruelty can be of both kinds: physical and mental. It is physical when the body is injured. It is mental when feeling and sentiments are wounded. The petitioner may be meted with the cruelty of either or both types. However, cruelty has to be distinguished from the ordinary wear and tear of family life.  A workable definition may accordingly be suggested as under. Following inclusions in the definition of cruelty should be available to the petitioner for seeking divorce if matrimonial relief has at all to be made meaningful. From different case laws Cruelty shall mean and include:

(a) any mental pain sufficient to cause or which causes

1. hurt to the sentiments; or
2. fear, agony, and harassment; or
3. shock and surprise; or
4. any disease relating to gastro or/and nervous system; or
5. depression, listlessness, insomnia or high/low blood pressure; or
6. any disease relating to heart, mind, or skin; or
7. divulging a family or matrimonial secret; or
8. calling names or hurling abuses;

(b) any physical pain or infliction sufficient to cause or which causes

1. grievous hurt; or
2. beating or use of force of any kind; or
3. restrictions on movements sufficient to cause wrongful restraint or wrongful confinement; or
4. restrictions on association amounting to a denial of fundamental rights; or
5. denial of food, shelter or other physical facilities; or
6. beating or causing physical pain or denial of food, shelter, and other physical facilities to the near and dear ones;

(c) moral injury sufficient to cause or which causes :

1. attack and /or loss of reputation; or
2. denigration or scandal; or
3. suspicion against character; or
4. false charge of habitual drinking or use of any intoxicant sufficient to cause annoyance or danger to the petitioner; or
5. false charge of keeping concubine or paramour or moving or associating with women or men of ill-repute and bad character without reasonable excuse thereof; or
6. aspersions on or the unwarranted accusations of the personality and achievements; or
7. tarnishing of the image; or
8. false allegations against the virtues, acts, and conduct; or
9. false accusation of leading an immoral life;

(d) social harm and /or degradation by-:

1. creating or propagating contempt in the society; or
2. making false accusations to the master, the employer, or the guardian with the intention to harm the petitioner; or
3. defamation; or
4. encouraging or inciting people for the social boycott of the petitioner; or
5. calling the petitioner names, in the public; or
6. obstructing or attempting to obstruct either himself/herself or in association with others the petitioner from the Use of family, community or public home, eating houses, parks, wells, places of worship and entertainment; or
7. encouraging, propagating or inciting casteism, regionalism, linguism, clannishness, and untouchability; or

(e) Ignoring, obstructing or attempting to obstruct family traditions, practices and culture; or

(f) Causing annoyance, irritation, and pin-pricks by words, acts or conduct sufficient to call upon the mental and physical health; or

(g) Insults in private or in public by words, acts or conduct; or

(h) unreasonable or excessive demands on the economy of the family or misuse or abuse of the family income or property; or

(i) refusal to normal intercourse; or

(j) nagging; or

(k) political incompatibility; or

(l) indifference to nationalism and/or apathy towards the national good; or

(m) making the marriage impossible to be endured and rendering life almost unbearable.

Cruelty Under IPC, 1860:

A new dimension has been given to the concept of cruelty. Explanation to
Section 498-A of I.P.C. 1860 provides that any willful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute cruelty. Such willful conduct which is likely to cause grave injury or danger to life, limb or health (whether mental or physical of the woman) would also amount to cruelty. Harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security would also constitute cruelty.

Cases wherein there was no cruelty:

In Savitri Pandey v. Premchandra Pandey AIR 2002 SC 591 case, the Court held that the cruelty cannot be decided on the basis of sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. A few stray instances indicating a short-tempered nature and somewhat erratic behaviour are not sufficient to prove cruelty for the purpose of Section 13 of the Hindu Marriage Act, 1955.

In Anna Saheb v. Tarabai AIR 1970 MP 36 case, the Court held that persuading and pressing on an unwilling wife to accompany the husband to his place is not cruelty.

In Tulsa v. Pannalal AIR 1963 MP 5 case, the Court held that solitary and or occasional beating of the wife by the husband is not cruelty.

In J.L. Nanda v. Veena Nanda 1988 SCC 122 case, the Court held that petty quarrels and troubles are not cruelty.

In Harpal Sharma v. Tripta ani (1994)1 HLR 151 (P&H) case, the Court held that beating of the child and quarrel between the couple is not cruelty.

In Shyamlal v. Saraswati Bai AIR 1967 MP 204 case, the Court held that refusal to give treatment and diet as prescribed by a doctor, because that was beyond the means of the husband is not cruelty.

In Harjit Kaur v. Roop Lal (2004)1 HLR 143 (P&H) case, the Court held that mere consumption of alcohol by the husband unaccompanied by abuses, insults, and violence is not cruelty.

In Virender Kumar v. Santro Devi (2003)2 HLR 401 (P&H)  case, the Court held that mere filing of an FIR. u/S. 498-A, IPC by wife against the husband is not cruelty.

In Rajesh Kumar Singh v. Rekha Singh (2005)1 HLR 759 (All DB.) case, the Court held that to live with a wife who is a victim of gang rape is not cruelty.

In Radha Rani v. Har Bhagwan (2004)1 HLR 50 (P&H) case, the Court held that initiation of legal proceedings u/S. 498-A, and 323 IPC against the husband which failed is not cruelty.

In Kamlesh v. Prem Prakash (1989)1 HLR 554 (Raj) case, the Court held that wife going to her parents’ house without husband’s permission is not cruelty.

In Rajinder Prasad Jain v. Rama Jain 1980 HLR 122 (P&H) case, the Court held that husband negligent about wife’s health, not visiting her even after she gave birth to a child is not cruelty.

In the next article, we shall study a few more case laws to understand the ambit of the word “cruelty”