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Family Law project

Name Rahul Chauhan

Roll No. 15060

Group No. 7

Topic Cruelty a ground for divorce

Submitted to Dr. Kamaljit Kaur (Associate

Contents
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Introduction

According to Vedas, a marriage is, the union of flesh with flesh and bone with bone, so
long as the husband is alive the wife enjoined to regard him as her god, similarly the wife is
described as the half of the body of the husband (Aradhangini) who shares with him equally
the fruits of all his acts whether they be good or bad.

The object of marriage according to Hindus is the procreation of the children and the proper
performance of religious ceremonies. The sanctity of marriage was held to be so great that
it was regarded to have some divine origin and thought to be predestined.

Marriage as a sacramental union implies several thing, first the marriage between man and
woman is of religious or holy character but not a contractual union as in Gopal Krishna v.
Mithilesh Kumari1. It is not mere contract in which a consenting mind is indispensible. For a
Hindu, marriage is obligatory not merely for begetting a son in order to discharge the debts
of his ancestor but also for the performance of other religious rites, and Manu has
commented In the Vedic period, the sacredness of the marriage tie was repeatedly
declared; the family ideal was decidedly high and was often realized. Only the present
Hindu Marriage Act has introduced divorce. Manu disapproves divorce and remarriage of
women. None can trace out divorce in ancient Hindu Law. According to Naradra and
Kautilya If the husband, be missing or dead, or retired from the world, or impotent, or
delegated, in these five calamities of woman may take another husband. But Manu had
opposed this idea.

According to Manu the husband is declared to be one with the wife. Neither by sale nor by
repudiation is a wife released from her husband. Only a maiden is given in marriage. In
Shivanandy v. Bhagavanthymma2, the court observed that marriage is binding for life
because the marriage rite completed by saptapadi before the consecrated fire creates a

1
AIR 1979 All 316
2
AIR 1962 Mad 400
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relegious tie when once created cannot be untied. It is not a mere contract in which a
consenting mind is indispensable.

Grounds of Divorce
Section 13 of Hindu Marriage Act provides

Divorce (1) Any marriage solemnized, 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

(i) Has, after solemnization of the marriage, had voluntary sexual intercourse with any
person other than his or her spouse; or

(ia) Has after solemnization of the marriage, treated the petitioner with cruelty; or

(ib) Has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition; or

(ii) Has ceased to be a Hindu by conversion to another religious; or

(iii) Has been incurably of unsound mind, or has been suffering continuously or
intermittently from mental disorder of such kind and to such an extent that the petitioner
cannot reasonably be expected to live with the respondent.

Explanation In this clause, -

(a) The expression mental disorder means mental illness, arrested or incomplete
developed of mind, psychopathic disorder or other disorder or disability of mind and
includes schizophrenia;

(b) The expression psychopathic disorder means a persistent disorder or durability of

iv) Has been suffering from a virulent and incurable form of leprosy; or

v) Has been suffering from venereal disease in a communication form; or

vi) Has renounced the world by entering any religious order; or

vii) Has not been heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of it, had that partly been alive.
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Cruelty as A Ground For Divorce

The Marriage Laws (Amendment) Act, 1976 introduced cruelty as a ground of divorce in
section 13(1) (ia). The word cruelty has not been defined by the Act, previously cruelty was
not a ground for judicial separation.

Cruelty may either be physical or mental. Physical cruelties will necessarily constitute a
violence of certain degree and such degree of violence, sufficient to constitute a legal
cruelty will vary with the status of each parties in each case. Where bodily injury is inflicted
or there is a reasonable apprehension of danger to life, limb or health, bodily or mentally it
is easy to conclude that cruelty has taken place.

On the other hand, mental cruelty denotes a set of circumstances which though fall short of
actual physical violence may yet act of cruelty. It is difficult to observe as to what amounts
to or constitute cruelty to justify it as a ground for an action in all action in all cases and
each case has to be judged on its own facts and circumstances having regards to the
conduct of the parties.

In Asha Handa v. Baldev Raj Handa3, it was observed that the incompatibility of
temperament and defect of behaviour is not sufficient to prove cruelty; conduct complained
must be grave, weighty and beyond ordinary wear and tear of married life; for cruelty;
intention is immaterial.

In Vimlesh v. Parkash Chand Sharma4, it was held that solitary instance of cruelty would not
constitute cruelty so as to grant a decree for divorce rather behaviour of the other party has
to be persistently and repeatedly treating the other spouse with such cruelty as to cause a
reasonable aspersion in the mind of the husband or wife that it will be harmful or injurious
for him or her to live with the other party. The expression persistently means continue
firmly or obstinately and the expression repeatedly means to say or to do over again.

Allegations by the wife that the husband had tried to burn her which were found to be false
and baseless were held amounting to mental cruelty; Ashok Kumar v Vijay Lakshmi5. A
threat to commit suicide by the wife would amount to infliction of mental cruelty on the
husband but it should not be uttered in a domestic tiff; Puspa Rani v. Vijay Pal Singh6.

Allegations made in the written statement can never be the basis of divorce on the ground
of the cruelty. The petitioner must have been treated with the cruelty prior to the petition.
A petitioner approaching the court with Petition for divorce on the ground of cruelty can

3
AIR 1985 Del 76
4
AIR 1992 All 261
5
AIR 1992 Del 182
6
AIR 1994 All 220
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succeed only if he proves the act of cruelty on which hi petition is based upon. No
subsequent acts either by way of allegations in the written statement, responsible or not,
baseless or not, can be taken help of in order to show cruelty as in A v. H7. The law is
settled that the filing of the false complaints to the police and other authorities and
initiation of false prosecution amounts to cruelty. It is also settled that the complaints filed
to the employer or personal authority which are found to be baseless and scandalous may
amounts to cruelty.

Cruelty as interpreted by the courts is of two kinds Physical cruelty and mental cruelty.
Physical cruelty may consist of physical violence and bodily danger. Physical violence may
consist of actual or threatened violence. A single act of Violence may not amount to cruelty.
A solitary incident of beating resulting in minor injuries cannot be said as an act of cruelty
(Vimlesh v Parkash Chandra8 ) . But even a single act of violence, if grossly violent, amounts
to cruelty.

Insulting statements from in laws whether amounts to cruelty

Section 13(1) (i-a) of the Hindu Marriage Act, 1955 provides that if one spouse has treated
the other spouse with cruelty the other spouse may seek a decree of divorce against the
offending spouse.

In the present case the question arises is whether the act amounts to cruelty within the
ambit of section 13(1) (a) if the act or conduct complained of is not of the respondent
husband but of some member of the family.

In Kasinath Sahu v. Devi9, It was held that where the mother in law misbehaved and the
wife suffered, it was no defence for the husband to say that it was his mother who was
responsible, as he has to protect his wife and silence would amount to mental cruelty. This
view was reiterated in Ravindernath v Parmila Bala AIR 1979 Ori 85.

A contrary view was expressed by the Allahabad High Court in Gopal Krishna v. Dr.
Mithilesh Kumari, AIR 1979 All 316. In that case the wife was aggrieved with the conduct of
her mother-in-law. No complicity or interest or interest of husband was found involved in it.
The complaint was about his disinclination to intervene in the matter and restrain his
mother from behaving in the fashion she did towards his wife. The appellant, in the
circumstances, to our mind, could not be held to have acted in a manner which could be
said to be inexcusable in any sense of that term. The matter, in our opinion, did not go
beyond a mere state of affairs, in which no vileness of appellants mind, any selfish interest
or delight in the respondents pain was involved. The omission complained of was not of

7
AIR 1993 Bom 70
8
Ibid with footnote 4
9
AIR 1971 Ori 295
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such a grave and weighty nature as to constitute cruelty within the meaning of section 13(1)
(i-a). It was part of life which not only the wife but the husband had also to suffer if he was
attached to her

It may be noted that a new dimension has been given to the concept of cruelty by
legislature by introducing section 498A in the Indian Penal Code. This section provides that
whoever, being the husband or relative of the husband of a woman, subjects his women to
cruelty shall be punished with imprisonment for a term which may extend to three years
and shall also be liable to fine. In Sobha Rani v. Madhukar Reddy10 , demanded the

Mental Cruelty
In v. Bhagat v. D. Bhagat AIR 1994 SC 710, It was observed that it is not necessary before a
party claiming divorce to prove that the mental cruelty complained is of such a nature as to
cause an apprehension in his or her mind that it will be harmful or injurious for him or her to
live with the other party. While arriving at such a conclusion, regard must be had to the
social status, educational level of the parties, the society they move in, the possibility or
otherwise of the parties even living together in and all other relevant facts and
circumstances. The allegations of the wife that the husband who was an advocate is a
lunatic and there is a streak of insanity running through his entire family amounts to mental
cruelty.

Threat to commit suicide by the wife would amount to infliction of mental cruelty on the
husband. But threat to commit suicide uttered in a domestic tiff does not amount to cruelty
(Deva Kumar v. Thilagavathi11)

Ordinary wear and tear of married life does not amount to cruelty; Harjit Kaur v. Jaswant
Singh12. If husband is overbearing, harsh, abusive and resorts to violence, it goes beyond
the ordinary wear and tear of married life.

The wife asking her husband to live apart from his parents because of ill-treatment of her
mother-in-law per se does not amount to cruelty; Urmila Devi v Devinder Kumar13, Where
the wife had a feeling of financial insecurity and wanted to have independent income, it was
held that she could not be said be acting with cruelty if she did not stay with her husband
especially when the spouses were employed even at the time of marriage.

10
1988 MLR
11
1995 Mad 116
12
1996 (1) HLR 217 (P&H)
13
1983 HLR 529(Del)
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Case Laws
Naveen Kholi vs. Nellu Kholi14

The facts of this case are-

The appellant, Naveen Kohli got married to Neelu Kohli on 20.11.1975. Three sons were born out
of the wedlock of the parties.

According to the appellant, the respondent is bad tempered and a woman of rude behaviour. After
marriage, she started quarrelling and misbehaving with the appellant and his parents and ultimately,
the appellant was compelled to leave the parental residence and started to reside in a rented
premises from May 1994.

The appellant alleged that in the month of May 1994, when he along with the respondent and their
children visited Bombay to attend the golden jubilee marriage anniversary of his father-in-law, he
noticed that the respondent was indulging in an indecent manner and found her in a compromising
position with one Biswas Rout. Immediately thereafter, the appellant started living separately from
the respondent since May 1994. The appellant suffered intense physical and mental torture.

According to the appellant, the respondent had withdrawn Rs. 9, 50,000/- from the Bank Account of
the appellant and deposited the same in her account. The appellant alleged that the respondent got
a false first information report registered against him under Sections 420/467/468 and 471 IPC,
which was registered as Case No. 156 of 1995. According to him, the respondent again got a case
under Sections 323/324 I.P.C. registered in the police station Panki, Kanpur City and efforts were
made to get the appellant arrested.

Husband field for divorce on grounds of cruelty, Trial Court recorded specific finding about wife
harassing and torturing husband, mentally, physically and financially. Decree of dissolution of
marriage passed by Trial Court marriage under Section 13, Hindu Marriage Act.

Wife appealed in High Court and HC held evidence on record not properly appreciated by Trial Court.
A finding that husband immorally cohabited with another lady recorded by the High Court. On that
ground held, that it amounted to misconduct and was condonable for the purpose of Section
13(1)(a) of the Hindu Marriage Act and suit for divorce dismissed.

Hence, the husband is appealing in SC for the decree of divorce.

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AIR 2004 All 1
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Bibliography
Books