PRITY KUMARI, 2nd Year
B.A.LLB, Central University of South Bihar
As a typical Indian girl, I have always been encountered with the terminology called “pati parmeshwar”. The Manusmriti says about the women that “Girls are supposed to be in the custody of their father when they are children, women must be under the custody of their husband when married and under the custody her son as widows. Under no circumstance is she allowed to assert herself as independent.” As it is well known to everyone that “ Change is the rule of nature”. The changes can be seen in the behaviour of the man as well as women and the women are no more dependent on men for their every need. They are trying to explore the world, flying in the skies with the help of their beautiful wings, diving in the deep seas and not only trying to go beyond the fourwalls but also painting these walls with their own colors.
The marital relationship demands mutual trust, regard, respect, love and affection from both sides. The matrimonial conduct may be of unfounded variety and must be something more serious than “ordinary wear and tear of married life”. It may be words, gestures or by mere silence, violent or non-violent and the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other.
Conduct has to be considered in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is very difficult to lay down a precise definition or to give any exhaustive description of the circumstances, which could lead to the offence of cruelty. Physical violence is not absolutely essential to constitute cruelty but requires a consistent course of conduct inflicting immeasurable mental agony and torture. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other spouse.
Marriam Webster Dictionary:- Marital conduct held (as in a divorce action) to endanger life or health or to cause mental suffering or fear.
Lexico Dictionary:- Behaviour which causes physical or mental harm to another, especially a spouse, whether intentionally or not.
Although there is no any exhaustive definition in the statutory provisions to what all the condition would lead to cruelty but after considering and analysing the case-laws, we can conclude certain conditions which are as follows :- The physical violence on the spouse, having affairs or committing adultery, the constant manifestation of agony, rage with the addition of yelling or abusing at the spouse, demoralizing and restricting the spouse, not disclosing any fact or incident of an acquired sexually transmitted disease while they are already into marital life and the list goes on.
Meaning of Cruelty
Lord Alfred Denning, an English judge, had stated that when it comes to cruelty, each case may be different because the conduct of people cannot be similar and there is no limit to conduct. “New type of cruelty may crop up in any case depending upon human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the beautiful realm of cruelty,” he said.
If we go through the history of the Hindu Marriage Act, 1955, cruelty was never taken into consideration as a ground for divorce but was only available in cases of judicial separation. In this case, the aggrieved party has to prove that the cruelty is so grave or unbearable that it is getting difficult to carry forward with his or her spouse. But this was upheld by the Supreme Court in a landmark case of Narayan Ganesh Dastane Vs. Sucheta Narayan Dastane in 1975.
This case led to an amendment in the Act where cruelty as a ground for divorce was added with the inclusion of legal definition to the term cruelty under this Act in 1976. Further, it was held that the courts should decide the cases related to the offence 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 selfcontained definition.
Legal Provisions related to Cruelty
Section 498A of I.P.C talks about the cruelty and if we look at the provision then we can understand that it has treated husband and their relatives as a perpetrator. The meaning of cruelty under this section is that there should be any wilful neglect and that neglect would be of such a nature that is likely to drive the women to commit suicide or grave injury or danger to her life , limb or health( whether mental or physical). Cruelty also means harassment of the woman, the harassment would be related to coercing her or any person related to her for their unlawful demand that could be related to property or valuable security.
Under the Hindu Marriage Act,1955, section 10(1)(b) treated cruelty as one of the grounds for judicial separation and says that the party to a marriage can pray for the decree for judicial separation on the ground of cruelty but it also talks about the condition that the cruelty is of such a manner that cause a reasonable apprehension in the mind of the practitioner and that cruelty should be injuries and harmful to the petitioner to live with the other spouse.
Section 13(1)(ia) of Hindu Marriage Act, 1955, is a legal provision for divorce on the ground of cruelty. This provision states that either husband or wife may dissolve the marriage by a decree of divorce on the ground of cruelty but here the condition is that the cruelty must have been done after the solemnization of the marriage. This section does not talk about the conducts which would be termed as cruelty and thus, it gives a wider interpretation. The petitioners are now able to use it as they want to use it.
There are some lacunas in the existing law which can hamper the successful implementation of the law. Some of the grey areas are –
• Judiciary acts as an ‘agents of wives ’. There are cases in which wives had brutally hit husband and husband’s relatives. The attacks are fatal in nature. But there are no laws on this. The wife has got a free license to hit the husband and have an easy escape.
• Judges do not dismiss the case if the wife does not attend the case proceedings. Even if she does not attend the proceedings for years, the case continues to go on. Also, judges take months and sometimes years to decide upon one bail petition. This makes the men neither free of charge nor lets him live a happy life.
• The Section 498A is non-bailable and a cognizable offence. The judiciary should change it to a bailable and non-cognizable offence. Bails should be granted to the husband so that if the case is filed on false grounds, there is a course of action left.
In Arnesh Kumar v. State of Bihar , the Court observed that the fact that Section 498A, IPC is a cognizable and non-bailable offence, it is more often than not is used as a weapon rather than shield by disgruntled wives.
In Manju Ram Kalita v. State of Assam , it was held that cruelty should be determined by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide, etc. It is to be established that the woman has been subjected to cruelty continuously or at least in close proximity of time of lodging the complaint.
In Bhagwat v. Bhagwat,4 the conduct of the husband to strangulate the wife’s younger brother and her younger son has been recognized as an act of cruelty. In A. Jaya Chandra v. Aneel Kaur,5 the Supreme Court held that the cruelty should be in reference to the human conduct or behaviour. The conduct should be of such nature that it can be concluded that the petitioner spouse cannot be expected to live with the other spouse. In the Indian law as well as that of the English law, it has been held that the cruelty must be pointed towards the petitioner. It has also been held that if the wife is being ill treated by the members of the family in front of the husband and he looks idly, it amounts to be the wilful neglect, and thus amounts to cruelty.
In Balram Prajapati vs Susheela Bai, the petitioner filed the divorce petition against his wife on the ground of mental cruelty and proved that his wife’s behaviour with him and his parents was aggressive and uncontrollable. Many times, she had filed the false complaint against her husband. The court accepts the petition and grants the decree of divorce on this ground.
Whether Second wife is entitled to get divorce on this ground?
No, the Second wife is not entitled and it was seen in the case of Reema Aggarwal Vs. Anupam and Ors, she 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 as a ground of divorce can act as a weapon and as well as shield for the women. So, it is the duty of the court to give their decision very wisely. The law needs to be treated equally among all the members unless there is no any exceptional situation. It is the demand of the time that the law needs some changes with the changing needs of the society. It can’t be used by the perpetrators according to their whims and fancies.
5 2005 SC 534.
6 Sunder v. Shantadevi, 1962 Ori 60.