Cruelty as a ground of Divorce – Section 13 of Hindu Marriage Act 1955
I have already heard “pati parmeshwar” which in other words mean husband is your God. No doubt this generation does not believe in such concepts anymore but there are people who still think that a wife cannot survive without a spouse. Most of the women do not understand that their “parmeshwar” concept is just imagination. Every relationship has its own ups and downs and no relationship goes through same phase as any other relationship, but I don’t think it’s valid to abuse the rights that the spouses have towards each other. A relation whether it’s marriage or any other, it never comes with conditions. Divorce means dissolution of marriage.
Cruelty basically means violent or cruel action. Actions that would amount ot cruelty should be grave and severe in nature. Here, grave violence doesn’t always mean physical violence, it can also be ill- treatment or mental or physical torture to either of the spouse can be said cruelty.
Section 13 Hindu Marriage Act 1955 – Divorce
Divorce among Hindus was not recognized until the parliament passed Hindu Marriage Act, 1955. It was said that a marriage can only with the death of one spouse. Divorce earlier was considered as sin.
British India only had the Divorce Act, 1869 which provided divorce in India for people belonging to religion of Christianity. Other than this there was not divorce procedure in India.
In 1955 the parliament passed the Hindu Marriage Act 1955 and procedure related to concept of divorced was introduced. In this Act, the term Divorce has not been defined. There are various grounds of Divorce under Section 13 of the Hindu Marriage Act.
Grounds of Divorce
- Section 13 (1)(I) – Adultery
When a voluntary or consensual intercourse between the one’s spouses with someone outside the wedlock is adultery. It is considered to be matrimonial offence when the marriage exists. Adultery is only demanded when the intercourse was consensual.
In Joseph Shine v. Union of India, Supreme Court ruled that adultery is not a crime and stuck down Section 497IPC. It was stated that two individuals may part if one cheats but to attach criminality to infidelity is going too far. It is considered to be a personal matter and how to the husband and wife deals with it is a matter of privacy. Loss like this of moral commitment in marriage creates dents in the relationships. There’s no compulsion for Divorce but still if they wish to they can proceed.
- Section 13 (1)(IA) – Cruelty
Cruelty can be of two types physical and mental. It is easier to encounter to physical cruelty by collecting evidences and proofs whereas, it is difficult to establish the instance of mental cruelty. Cruelty is an offence under 498A IPC.
In case of Pravin Mehta v. Indrajeet Mehta, the court defined mental cruelty as ‘The state of Mind.’ Cruelty Includes:
- False Accusations of Adultery.
- Demand of Dowry.
- Refusal to have children or marital intercourse.
- Birth of Child.
- Threat to commit suicide. Wide’s writing false complaints to the employer of the Husband.
- Incompatibility of temperament.
- Irretrievable breakdown of the marriage.
Ingredients of Section 498A
- The woman must be legally married to the Husband.
- The woman must have faced some sort of cruelty or marital abuse.
- Such cruelty must be done by the Husband or in-laws.
- If the Husband commits such cruelty, he shall be liable for imprisonment which may extend to three years with fine.
- Section 13 (1) (IB) – Desertion
It simply means abandoning the As per Section 10(1) of HMA[vi], divorce can happen if a spouse (petitioner) has been deserted for almost two years immediately after preceding the presentation of the petition.
- Section 13 (1) (II) – Conversion
If any of spouse wishes to convert into another religion without the consent of other spouse, a divorce can a granted.
- Section 13 (1) (III) – Insanity
There is a requirement of insanity as a ground of Divorce i.e the respondent has to be of unsound mind.
- Section 13 (1) (V) – Venereal Disease
If any of the spouse is suffering from any Venereal disease which can be sexually transmitted and that is incurable is a ground of Divorce. (Example AIDS)
- Section 13 (1) (VI) – Renunciation
When one of the spouse renunciates the World, that is, has become an ascetic, then the other spouse can file a divorce.
- Section 13 () (VII) – Presumption of Death
If any of the spouse is not heard for a continuous period of seven years then he or she will be presumed to be dead. The decree of Divorce is still granted if the spouse is alive but unheard remains invalid.
Cruelty as a ground of Divorce
The day to day things during a exceeding marital life creates an ambiguity among the couples to steer their life with one another peacefully. Though there’s no such complete definition to what all condition would cause an offence of cruelty however if we tend to bear a case of marital status abuse happening sround North American Country, then we are able to conclude of sure conditions like:
- The physical violence on the significant other.
- Having affair or committing free love with not simply the spouse’s data however even if public accepted.
- And conjointly in cases, wherever either of the spouses is incorrectly suspected of committing free love.
- The constant manifestation of agony, rage with the addition of yelling or abusing at the significant other.
- Demoralizing and limiting the married person equivalent by each suggests that to be an freelance individual and compelling the significant other to be in a very marriage whenever the significant other is left with no other choice however to rely on the opposite.
- Not revealing any truth or incident of an non-inheritable sexually transmitted sickness whereas they’re already into maritak status life and therefore the list goes on.
The conduct by either of the significant other ought to be of such a nature that ought to fall within the scope of cruelty below the jurisprudence. The Court has to take care of all the background and circumstances owing to that the couple need to urge separated. Basically, the Court has got to investigate the explanation for the deterioration of the wedding.
Divorce generally terms suggests that the dissolution of a wedding with the assistance of a attorney and by the prescribed Law. One will choose divorce once either of the parties or each of term wish to urge separated anf free themselves from the present relationship.
However, each state has its own law relating to wedding.
How Cruelty has established as a ground of Divorce
If we tend to study the history of the Hindu Marriage Act, 1955, cruelty was never taken into thought as a ground for divorce however was applied solely in cases of fiat. Here the aggrieved party or the petitioner has got to prove that the cruelty is thus grave around unendurable that it’s obtaining troublesome o hold forward together with his or her significant other.
However this was help by the Supreme Court in a very landmark case of Narayan Ganesh Dastane v. Sucheta Narayan Dastane in 1975.
This led to an to an change within the Act whenever cruelty was a ground for divorce was supplementary into the Act with the inclusion of legal definition to the term Cruelty under this Act in 1976.
However, the Court conjointly control that the courts ought to decide the case on grounds of cruelty solely based mostly upon the topic matter of the case. When the change during this act, there wasn’t a lot of distinction between the grounds of cruelty leading to fiat and grounds of cruelty leading to divorce apart from two words that “persistently or repeatedly”. By this addition, the institution of cruelty as a ground for divorce was given far more importance than proving it as a ground for fiat. This ground was supplementary below section 10(1) of Hindu Marriage Act, 1955 and currently “cruelty” encompasses a self-contained definition.
Author: Neha Ghuge,
Government Law College, Mumbai/Second Year