Family Law Final Draft.docx

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW (U.P.) Session- 2017-18

Subject: Family Law I

Final Draft On

CRUELTY AS A GROUND FOR DIVORCE

SUBMITTED TO:

SUBMITTED BY:

Ms. SAMREEN HUSSAIN

DEEPAK KUMAR RAV

ASSISTANT PROFESSOR(Family Law) DR. RMLNLU, LUCKNOW

SECTION- A ENROLL NO.- 59 SEMESTER- III

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ACKNOWLEDGEMENTS I would like to express my special thanks of gratitude to our Assistant Proffesor Mrs. Samreen Hussain who gave me the golden opportunity to do this wonderful project on the topic Cruelty as ground of divorce which also helped me in doing a lot of research and came to know about so many new things I am really thankful to her. I would also like to thank my seniors and my dear batch-mates for providing the necessary mental support to complete this project.

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TABLE OF CONTENTS INTRODUCTION4 DEFINITION OF CRUELTY ...................................................................................................................... 5 CRUELTY AS GROUND FOR LIVING SEPARATELY AND DIVORCE ............................................. 6 THE AMENDMENT OF 1976 ..................................................................................................................... 7 CONCEPT OF MENTAL CRUELTY INCORPORATED ......................................................................... 7 EMERGING HORIZONS OF CRUELTY AS A GROUND FOR DIVORCE ........................................... 8 EVIDENCE AND BURDEN OF PROOF IN RELATION TO CRUELTY. ............................................ 11 FINDINGS .................................................................................................................................................. 12 SUGGESTIONS: ........................................................................................................................................ 12 CONCLUSION ........................................................................................................................................... 13 BIBLIOGRAPHY ....................................................................................................................................... 13

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INTRODUCTION Amongst the nine fault grounds of divorce as contained in S. 13 (1) of the Hindu Marriage Act, 1955; cruelty is arguably the most discussed ground for divorce under which both husband and wife are entitled to sue for divorce. Judicial bodies have witnessed a seemingly high number of litigations of divorce in recent times where the alleged ground for claiming divorce has been cruelty by one of the spouse. There may be illustrations where the Supreme Court of India has attempted to define cruelty, yet all such definitions are indicative and inclusive in nature and an exhaustive and precise definition of cruelty for the purpose of Hindu Marriage Act still awaits its master; essentially because cruelty is a dynamic concept with changing facets with changing generations so as to conform to the social needs. This makes the determination subjective in nature and for the sake of convenience and better comprehensiveness of the research work, the author has performed the research in relevance to societal factors in a two-fold time frame as depicted under. Inaugural chapter of the research work deals with the established virtues of cruelty as a ground for divorce and the touchstone for determination of cruelty in a particular case as laid down by the Supreme Court. The author has also analyzed the objectivity and certainty of such test in light of judicial pronouncements which is then followed by an analysis of emerging horizons of cruelty as a ground for divorce. Drawing an analogy between the two, the author has tried to trace the trajectory adopted by the courts in such divergence and also examined the impact of misuse of cruelty as a ground for divorce, which is followed by the findings of the author as to where lies the fallacy in such a misuse and if it is possible for cruelty to pass an objective test. The author has then substantiated the research suggesting what needs to be done in the present course of time to draw a harmony between rights, interests and social panorama; subsequently giving the conclusive remarks.

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DEFINITION OF CRUELTY Section 13 (1) (ia) of the Hindu Marriage Act, 19551 provides that treating the petitioner with cruelty after the solemnization of marriage can be a ground for divorce. The section however, does not give any definition of the term cruelty. This only makes it difficult for the Courts to apply this law. However, subsequently an amendment in the IPC in the early eighties defined a new offence in the form of section 498A.2 It reads: “...For the purpose of this section, “cruelty” means— (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or 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.” This definition made things a lot easier for the Courts to adjudicate on the same. The first part on the definition connotes a wide range of activities wherein the nature of the acts is so cruel in nature so as to make the woman commit suicide or cause grave injury to her life or limb. The second part adds to the former and even includes those acts which are tantamount to demand for dowry. Prima facie it is an exhaustive definition encompassing all aspects which could constitute cruelty. However, the Courts have not stopped when it comes to limiting the definition attributable to cruelty in the Hindu Marriage Act, 1955. In Ravi Kumar v. Julmidevi3, the Supreme Court was of the opinion that cruelty would mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behavior. It qualified the same by saying that sometimes cruelty in a matrimonial relationship may take the form of violence, sometimes it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty. In Ashok Kumar Pal v. Sawan Pal 4, the Court in unequivocal terms said that the definition of cruelty would be wider than the one provided in the IPC.

1

Hindu Marriage Act, 1955, § 13(1)(ia).

2 Indian Penal Code, § 498A. 3 (2010) 4 SCC 476. 4

(2008) 70 AIC (Cal).

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The Parliament appears to have avoided the danger of any attempt at giving a comprehensive or inclusive or exclusive definition of 'cruelty' and left it for the judge-made laws. As such the matter is now left to the courts to determine on the facts and circumstances of the case whether the conduct amounts to cruelty or not. CRUELTY AS GROUND FOR LIVING SEPARATELY AND DIVORCE Under the Hindu Marriage Act, 1955, as enacted originally, though cruelty was one of the grounds for obtaining judicial separation but it was not a ground for obtaining divorce. The word cruelty was not defined in the Act but in Section 105 which dealt with judicial separation the word cruelty was used in a restricting sense because it was provided that either party to a marriage may present petition praying for a decree for judicial separation on the ground that the other party has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party. Cruelty as a concept stands emerging and it has been the duty of judicial bodies to determine its ambit time and again. Initially the element of intention was also mandated as an ingredient of cruelty for the purpose of the act, however it was soon visible that such a requirement shall defeat the very purpose of incorporating cruelty as a ground under S. 13. Cruelty was hence determined to be viewed from a consequence oriented approach and not an act oriented approach. Judicial bodies have narrowly construed cruelty in the initial years and though there was no straitjacketed formula for the same; the ground of cruelty could only be invoked when the act(s) in question is so grave that it shall imperil the institution of marriage. Moreover, the courts were usually confined to physical cruelty only; thus applying the literal rule of interpretation to the provision. Nagging, scolding and even incompatibility of temperament as grounds of divorce were alien to Indian jurisprudence. It can thus be inferred that cruelty was limited to the act causing injury or its apprehension and the judicial test for the determination of cruelty was the presence of such an injury or apprehension so much so that it is fatal to the marital relationship.6

5

Hindu Marriage Act, 1955, § 10. Kaslefaky v. Kaslefaky, (1950) 2 All ER 398. The test has been affirmed by the Supreme Court in many cases, latest in Ravi Kumar v. Jumlidevi, (2010) 4 SCC 476. 6

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THE AMENDMENT OF 1976 Prior to the amendment made in Section 10 of the Hindu Marriage Act, the concept of cruelty, as it was stated in the old Section 10 (1) (b), was critically examined by the Supreme Court in Dastane v. Dastane7. It was therein observed that the enquiry in any case covered by that provision had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for the petitioner to live with the respondent. It was also pointed out that it was not necessary, as under the English Law, that the cruelty must be of such a character as to cause danger to life, limb or health or to give rise to the reasonable apprehension of such a danger, though, of course it being harmful or Injurious to health, reputation, working character or the like, would be an important consideration in determining whether the conduct of the respondent amounted to cruelty. What was required was that the petitioner must prove that the respondent has treated the petitioner with such cruelty as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the respondent. Now after the amendment in Sections 10 and 13 made by the Parliament in the year 1976, cruelty simpliciter has been made a ground for judicial separation and for divorce without putting any statutory rider. There is now no requirement of law that the party seeking divorce on the ground of cruelty must prove that the respondent had persistently and repeatedly treated the petitioner with cruelty. Further, the petitioner has also not to prove that he/she was treated with such cruelty as to cause a reasonable apprehension in his/her mind that it will be harmful or injurious to him/her to live with the other party. Now the scheme appears to be to liberalize the provisions relating to judicial separation and divorce. In the statement of Objects and Reasons of the Marriage Laws (Amendment) Act, 1976 also, the object was stated to be so. CONCEPT OF MENTAL CRUELTY INCORPORATED The jurisprudence related to cruelty being a ground for divorce is not limited to physical cruelty, but also has been extended to include and mental cruelty. Cruelty contemplated by the clause may be both physical and mental. If it is physical the court should have no problem to determine it because it is a question of fact and degree. It is the mental cruelty which may pose a problem and may present difficulty with the courts. It may not be possible for the courts to define mental cruelty exhaustively

7

A.I.R. 1975 SC 1534

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can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put in with such conduct and continue to live with the other party. In Bhagwat v. Bhagwat,8 the Supreme Court went on to define mental cruelty as tat conduct which inflicts upon the other party such mental pain and suffering that it would become impossible for the party to live with the other. The definition thus is in the lines of the definition provided for cruelty, the onus on the petitioner is to show that the mental cruelty should be of such nature so as to render living together impossible. To judge mental cruelty, the Court has to go into the intensity, gravity and stigmatic impact of the cruel treatment even if such cruel treatment is meted out only once.9 What is cruelty has to be determined according to the facts of the case, what is cruelty or one may not amount to cruelty for the other. Subsequently, in Praveen Mehta v. Inderjeet Mehta,10 the Court defined mental cruelty as a state of mind or feeling. Willful unjustified interference by one spouse in the sphere of life of another is one species of cruelty in the same manner as rough or dominating conduct of unnatural sexual practices. Now mental cruelty need not be proved to be such as to cause danger to the health, limb or life of the petitioner. Cruelty should be of the type which will satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent that it has become impossible for them to live together without mental agony, torture or distress. EMERGING HORIZONS OF CRUELTY AS A GROUND FOR DIVORCE Substantive changes in the interpretation of cruelty as a ground for divorce have been vigilant in past few years since the courts have done away not only with the test of intention to cruel act but also the requirement of injury or apprehension of injury in the petitioner’s mind. This fundamentally enhances the ambit of mental cruelty, and rightly so because many a times it happens that a marital relationship is rendered fructuous by activities that do not cause an injury or apprehension. This broadened interpretation is a welcome change because it is in synchronization with the legislative

8

AIR 1994 SC 10.

9

Vijaykumar Ramchandra Bhate v. Neela Bhate, AIR 2003 SC 2462.

10

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intent of amending the provision of cruelty in 1976.11 The present stand is such that any act or omission, if considerably good enough to spoil the marital institution substantially so much so that it becomes impossible for a reasonable man to live with the spouse, then it is sufficient to invoke the ground of cruelty.12 Apart from it, the courts have heavily incorporated the effect of social strata in such determination as highlighted in the case of Gurbax Singh v. Harinder Kaur.13 Additionally, there is an inclusion of indirect activities leading to cruelty within the realm of the provision under S.13, Hindu Marriage Act.14 With the changed stand of cruelty determination in matrimonial cases in modern times, there are many new facets of cruelty that have emerged. This is no doubt helping the cause of the principle and leading to justice, it cannot be denied that instances of misuse of the same are also visible. The emerging horizons of cruelty are discussed as under: a. Unnatural carnal intercourse Unnatural carnal intercourse has been held to be a ground for establishing cruelty15 which is really an illogical extension of the provision insofar as there is no inclusion of consent of the aggrieved party in the same. It is made even more interesting in light of the ongoing debate over S.377 of Indian Penal Code. It is imperative to misuse since the law has neither means nor authority to peep into the bedrooms of citizens. b. False accusations of a criminal act After the case of Kusumlata v. Kampta Prasad16, it is a well settled legal proposition that a false accusation of a crime by a spouse shall lead to an act of cruelty. It is contended in favour of this inclusion that the person so prejudiced suffers miserable loss to his or her happiness. However, a false accusation is not necessarily a mala fide accusation and hence it need not be taken for granted that an accusation, if false was procured with a mala fide intent. The facet is hence flawed to an extent.

11

A Jayachandra v. Aneel Kaur, AIR 2005 SC 534. This viewpoint was advised in the 59th Report of Law Commission of India as well. 12 Ibid. 13 AIR 2011 SC 114. 14 Savitri v. Mulchand, AIR 1987 Del 52 15 Balbir v. Dhirdas, AIR 1979 P&H 162 16

AIR 1965 All 280.

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c. Persistent refusal to sexual intercourse A very dynamic approach has been adopted by the courts in this context since the courts have laid down the general rule that a normal and healthy sexual intercourse is a part of marital bliss. This is a welcome addition since a willful denial without any cause often leads to unnecessary mental trauma to the spouse, especially the parties and young and newly married. Marital obligations must be performed and any refusal to it amounts to cruelty, as opined by the court.17 When a healthy wife did not consent to have sexual intercourse and averred that she was never interested in the second marriage, it was held to be an act of cruelty.18 d. Refusal to have children Refusal of any of the spouse to have children makes the other spouse eligible to apply for divorce since it is considered to be a ground for divorce by the court.19 The stand is again controversial since it cannot be taken for granted that having children is a necessary obligation of a marital relationship. The face of a marital relationship changes with times and generation and it is a common practice in foreign countries not to have children for long after marriage. In light of the same, Indian Jurisprudence on the point needs to be altered accordingly. e. Birth of an illegitimate child In Madan Lal v. Sudesh Kumar20, the court held that the birth of an illegitimate child within six months of marriage amounts to cruelty. Such an inclusion is erroneous in law because a marriage can be annulled on the ground of pre-marriage pregnancy as per S. 12 (2)(b)(ii) and hence the inclusion is an unnecessary encroachment of S. 13 over S. 12. f. False complaints to the employer Complaints made to the employer shall also lead to cruelty if they are false, as per the decision in Lajwanti Chandhok v. O.N. Chandhok12. The author again submits that a distinction need be drawn between a false complaint and a mala fide complaint since a false complaint need not

17

Shakuntla v. Om Prakash, AIR 1981 Del 53.

18 Mohini Chawla v. Subhash Chander Chawla, 2009 P&H 33. 19 Satya v. Siri Ram, AIR 1963 P&H 252 20

AIR 1988 Del. 93

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necessarily be filled with malice. This is another instance where exaggerating extension of cruelty as a concept has led to the defeat of divorce provisions. g. Threat to commit suicide When a spouse threatens suicide in order to induce the other to do or abstain from doing something legal, it amounts to cruelty. Therefore, in Shakuntala v. Om Prakash,21 the Court held that such a threat was indeed tantamount to cruelty and furnished divorce. When suicide has been attempted, the Court has all powers to pronounce cruelty. h. Overly ambitious sexual desires Bombay High Court in a judgment ruled that the man was subjected to cruelty and mental trauma owing to the excessive sexual desires of the wife. This is another valuable facet since a plethora of woman face this problem in the country owing to patriarchal male dominated structure of the society. It is compellingly clear from the emerging facets of cruelty as a ground for divorce as well as the author’s comment that there is substantive good added to the society however the dark side of the same can also not be neglected. The misuse of cruelty as a ground for divorce is very much prevalent in the present times. EVIDENCE AND BURDEN OF PROOF IN RELATION TO CRUELTY. Since Hindu Marriage Act, 1955 is not a penal statute, it is a well settled legal proposition that the judgments have to be based on balance of probabilities and not on proof beyond reasonable doubt.22 Further, the court has been of the opinion that the evidence in most cases is of the relatives associated to the parties and it should not be brushed aside merely on the ground that the testimony is associated to any of the parties. Rather, the court shall objectively determine the correctness of the testimony. However, the court has not laid down so far any such objective test. As far as the burden of proof is concerned, it rests with the party instituting the application for divorce and is successfully discharged on establishment of a prima facie case in its favour. 23 It si a settled law that the burden of proving lies on the petitioner. However, it does not need to be done beyond 21

22

Dastane v. Dastane, 1975 SC 1534

23

Ibid.

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reasonable doubt. In Dastane v. Dastane, it has been held that although the burden of establishing cruelty lies on the petitioner, the same can be done by a balance of probabilities. FINDINGS Throughout the research work, the author has made following discoveries amenable to cruelty as a ground for divorce under Hindu Marriage Act, 1955:1. It is impossible to assign an objective test for the determination of cruelty in a given case. Owing to its dynamic nature and dependence on social and other factors, judicial bodies have very rightly emphatically applied subjective tests to determine cruelty in a given case. Assessing an objective test to the same would either make it too narrow to interpret, or shall pigeon hole the whole concept thereby leaving outside its realm many of the ‘cruel’ acts. 2. The liberal interpretation of cruelty as a ground for divorce is justified, but needs to be regulated. It is indubitably true that liberal interpretation of the term has given it a wide meaning and rightly so, since it gives a new shape to the 1976 amendment of the provision. However, there must be a judicial check on it by means of a mechanism so as to avoid its abuse and misuse in the society. 3. Emphasis shall be more on the pre-marital background of the girl while determining cruelty and not otherwise. It has been observed by the author throughout the research that prime reliance of social considerations is based by the court on the social strata of the husband which should not be the case because it is the woman making much of the social adjustments at the time of the marriage. Ideally, due consideration to the pre-marital status of the girl must be given. SUGGESTIONS: Keeping in view the analysis of the case laws and the discoveries made thereof, the author suggests that there can be some sort of objectivity introduced by the judicial guidelines ought to be released by the Supreme Court. In the historic case of Vishakha v. State of Rajasthan15, Supreme Court of India, in order to perform absolute justice as facilitated by the Constitution of India laid down important guidelines so as to make the provisions of women safety at work place of prior importance. A similar attempt can be made by the Supreme Court in order to safely determine the ambit of

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exercise of discretion by the judiciary while determining cruelty in a case at hand. The author further suggests that the legislature must incorporate some element of penal nature in the provision of cruelty which shall lead to a two-fold benefit, firstly, not sparing the brutal acts of violence committed but not reported under criminal law and secondly, extending the element of proof beyond reasonable doubt so that the number of false case fall and interests of justice are not hampered.

CONCLUSION The author has visited a plethora of case laws throughout the research work along with principles of statutory interpretation, and can submit in the end that determination of cruelty is highly subjective depending on a case to case basis. This no doubt serves the interests of justice in a great manner, but at the same time leads to abuse and misuse as well. The subjective interpretation coupled with a dynamic face given to cruelty by judiciary makes it an emerging aspect in matrimonial litigations as depicted in an exclusive chapter by the author. It cannot be denied that the misuse is defeating the very purpose of this enactment and must be subject to some judicial guidelines as suggested by the author above. The author also advocates for the introduction of penalties in the provision to cut down the false accusations and punish the guilty accordingly. Apart from the absence of a liberal interpretation, it is witnessed in some later years that there is no uniformity in judicial decisions as to the incorporation of societal and other factors leading to high range arbitrariness. Where on one hand, abusive tone of the husband has been ruled to be insufficient to establish cruelty; the similar behavior of the wife has been held to be cruel in a marital relationship. The author is in the know of the patriarchal society of the country as well the importance of subjectivity in the interests of justice, however there needs to be a judicial check by virtue of judicial guidelines on the element of discretion or else a blind exercise of discretion shall lead to injustice in result.24

24

Mohinder Sain Garg v. State of Punjab. Supreme Court of India acknowledged in this case that it is a court of equity, but rendered it advisable to have a check on exercise of discretion by virtue of guidelines.

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BIBLIOGRAPHY Books Referred: 1. Diwan, Dr. Paras. “Modern Hindu Law”, Allahabad Law Agency, Delhi, 201

Web Resources: 2. http://theglobaljournals.com/paripex/file.php?val=January_2014_1389889205_5b59f_28. pdf

3. http://www.lawyersclubindia.com/forum/LIST-OF-DIVORCE-JUDGEMENTSON-MENTAL-CRUELITIES-DONE-BY-WIFE-85793.asp 4. http://family-law.lawyers.com/divorce/grounds-for-divorce-cruelty.html 5. http://sudhirlaw.com/qhEyy146vb/articles/cruelty-as-a-ground-for-divorce

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