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In
the previous edition, we have discussed about Adultery
In this edition let us know about cruelty.
Under
clause (ia) of sub-section (1) of section 13 and under sub-section
(1) of section 10 of the Hindu Marriage Act, 1955 cruelty
is a ground of divorce as well as judicial separation respectively.
Whether a particular act or conduct complained of is covered
under the ground of cruelty or not, will always be decided
on facts and circumstances in each case.
What
is Cruelty?
Under the English Law, legal concept of cruelty is conduct
of such a character as to cause danger to life, limb or
health (physical or mental) or as to give rise to a reasonable
apprehension of such danger. Before the amendment of the
Hindu Marriage Act, which was brought in the year 1976,
the rigid meaning and interpretation was given to the ground
of cruelty. But even before the amendment, the Supreme Court
in Dastane Vs. Dastane, AIR 1975 SC 1534, tried to give
a literal meaning to the ground of cruelty applicable in
terms of divorce or judicial separation.
Though
the concept of English Law and the Hindu Marriage Act in
terms of cruelty as a ground for divorce or judicial separation
is more or less the same, yet the learned Judges in India
still hold that marriage is a sacrament taking into consideration
the social and cultural conditions of our country.
In
Sukumar Vs Manohar Shivaram Jagesha, the Court observed:
The question whether a particular act or behaviour would
amount to cruelty or not depends upon the character, way
of life of the parties, their social and economic conditions,
their status, customs and traditions. Each case is to be
decided on the facts of its own. The judges and the lawyers
should not import their own notions of life while dealing
with matrimonial cases.
Classification
of Cruelty:
Cruelty is classified into two heads.
1. Physical cruelty and
2. Mental cruelty
Physical
Cruelty:
It is a settled law that physical violence is not necessary
ingredient of cruelty. Unending accusations and imputations
can cause more pain and misery than a physical beating.
Therefore, it goes without saying that the act of cruelty
consists of mental torture or physical violence. If it is
a physical violence, there will be no problem for a court
to arrive at a decision while determining a case presented
before it, but in case of mental torture or harassment,
the court finds comparatively more difficult to come to
final conclusion.
Firstly
the court begins its enquiry as to the nature of cruel treatment
as well as the impact of that treatment in the mind of the
spouse. Ultimately it is a matter of inference to be drawn
by taking into account of the nature of the conduct and
its effect on the complaining spouse.
Kaushalya
Vs Wisakhi Ram:
The husband had been ill treating the wife and beating her.
On one occasion she had to go to the police station to lodge
a complaint against her husband. The Punjab and Haryana
High Court observed that according to the standards of all
civilized world these acts would constitute cruelty, even
though injuries might not be serious as to require medical
treatment.
Saptmi
Vs Jagdish:
It was held that if a husband constantly abuses and insults
the wife and occasionally resorts to physical violence against
her, it amounts to cruelty.
Mental
Cruelty:
An act of mental cruelty is far more severe and dangerous
than an act of physical violence. The eye opener cases of
mental cruelty are Mohit Bhatnagar Vs Sangeeta Bhatnagar
and Deepak Johri Vs Kum Kum Johri, the case of Mohit Bhatnagar
has since been decided by the Matrimonial Court after 7
years of long battle and the case of Deepak Johri is still
pending in the High Court of Delhi.
Deepak
Johri and his wife Kum Kum Johri have been living separately
for more than 12 years and the Court has yet to decide their
fate. Criminal proceedings against Mohit Bhatnagar are still
going on. As per my opinion, the non-decision of such cases
for a very long time, also amount to mental torture, agony,
and punishment of the highest order. In other words this
amounts to mental cruelty to both the parties on account
of delay oriented procedure prevalent in the courts, whatever
be the reasons.
In
the judgment of the Supreme Court in V. Bhagat Vs D.
Bhagat, the learned judges granted the relief by cutting
short the delay oriented procedure adopted by the District
Court as well as the High Court of Delhi. Every matrimonial
petition may be heard on day to day basis, and be disposed
of within six months from the service of the petition on
the respondent. The High Court is also required to dispose
of every appeal within three months of the service of the
notice of appeal to the respondent.
Inspite
of the fact that the law provides that every matrimonial
proceeding should be completed within six months, no serious
efforts are made either by the courts or by the advocates
to adhere to the time limit. And the reality is that no
matrimonial proceedings are completed before five or ten
years. This long delay itself is also the cause of mental
torture or mental cruelty to all aggrieved parties facing
matrimonial proceedings in the courts.
How
to prove mental cruelty?
The standard of in case of mental cruelty need not be beyond
reasonable doubt, as is required in the criminal trials.
What is required in such cases is that the court must be
satisfied of preponderance of probabilities and not satisfaction
beyond all reasonable doubts.
The
act of mental cruelty in matrimonial homes, matrimonial
violence and wife battering continues all over the world.
Often the unwanted acts of mental cruelty prove to be much
more devastating than the acts of physical violence.
Mental
cruelty can be inflicted by many ways. A false criminal
case to harass the husband would be an act of cruelty. Refusal
to have marital intercourse, false complaints to the employees
by the wife, an act of nagging, false, scandalous, malicious
and baseless charges etc. come under the purview of mental
cruelty.
Kiran
Mandal Vs Mohini Mandal:
Where a wife is found to be of bad temperature and makes
false allegations against her husband that he had illicit
relations with his brother's wife. It amounted to an act
of cruelty.
Harbhajan
Singh Vs Amarjit Kaur:
The wife not only refused to do household work, but in the
presence of guests, also forced the husband to clean the
dining table, utensils and crockery. She even slapped the
husband. She used to keep her husband waiting outside the
house for half an hour or more on his return from the office.
She went to the extent of levelling false charges of embezzlement
against her husband to the bank authorities, where he was
employed.
Shanti
Devi Vs Raghav Prakash:
The wife made an allegation that her husband was impotent.
She also put on fire the doctoral thesis of her husband,
which was yet to be submitted. The husband was a lecturer
in the college.
Ashok
Kumar Vs Vijay Lakshmi:
False allegations of the wife that an attempt by the husband
was made to burn her amounts to cruelty.
Condonation
of Cruelty:
Condonation is forgiveness of conjugal offence with full
knowledge of all circumstances. To constitute condonation
there must be two things, viz., forgiveness and restoration.
Forgiveness is the essence of condonation. To be condonation,
it must completely restore the offending party and must
be followed by cohabitation. There is no condonation unless
conjugal cohabitation has been resumed or continued.
While
filing a petition for divorce, on the ground of cruelty
in the matrimonial court, the aggrieved party is required
specifically to mention that he / she has not condoned the
cruelty. Even in an affidavit, he / she is required to mention
the non - condonation of cruelty to get a decree of divorce
on the basis of cruelty.
to be continued....
Sandeep Shenoy Click here if you would like to Contribute or send a feedback.
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