CRUELTY AS A GROUND FOR DIVORCE

I.INTRODUCTION:-

women in India have had to face atrocities at all stages of life in various forms. In a matrimonial relationship
they have had to suffer mental and physical trauma and yet they were expected to stay loyal and obedient to
their husbands. With the adoption of a rights-based Constitution, this lowly position of women has been
sought to be changed. Many legislations have been enacted to protect the women and their rights from being
infringed and thereby giving them freedom and power to oppose the atrocities being committed on them.
Cruelty in a matrimonial relationship was recognized as a ground for divorce in as late as 1976 through an
amendment in the Hindu Marriage Act, 1955. Cruelty against husbands by the wives surfaced up not very
long ago and is an equally important issue of concern.

India is a diverse country which has been the birthplace of various religions such as Hinduism,
Buddhism, Jainism and Sikhism. Through ages the country has witnessed different forms of religious
practices and customs and its impact on the lives of the people. Till a very recent time, Hindu families and
the customs performed by them were drenched in age-old customs and traditions. For a Hindu, marriage is
obligatory and sacramental and not a mere contractual relation as it is for the Muslims. It is considered as a
bond of seven births, ordained by gods. According to the Vedas the aims of a Hindu marriage are dharma
(practice of religion), praja (progeny), and rati (sexual pleasure). All Hindus have to pass through four
Ashrams (stages) in his life-cycle - Brahmacharya (celibacy), Grihastha (householder), Vanaprashta
(proceeding to the forest for the pursuit of higher learning), and Sanyasa (renunciation of the world). All
religious texts of the Hindus unanimously agree that Grihastha (householder) is the most important of all the
ashram.

Customs form an important source of law and nevertheless many of the personal laws of the country are
derived from ancient customs. A hesitant effort to codify the personal laws of the Hindus was made in as
early as 1920. however, the proper codification took place in 1955 and 1956 when four major legislations
were passed by the Parliament. The legislations were The Hindu Marriage Act, 1955; The Hindu Adoption
and Maintenance Act, 1956; The Hindu Succession Act, 1956 and The Hindu Minority and Guardianship
Act, 1956. Legally speaking, Hindus by religion, Jains, Buddhists and Sikhs are regarded as Hindus and are
therefore governed by the aforementioned acts. Similarly the Muslims are governed by The Muslim Personal
Law (Shariat) Application Act, 1937 which are unlike the Hindu law, un-codified.

II.DIVORCE UNDER THE HINDU LAW :-

It is said that a house is a cursed place where women is not respected and that a family which accord respect
and reverence of women is a place of happiness and prosperity. There are many misnomers regarding the
position of women in the ancient times. Women were not always considered to be inferior to men. According
to the Rig-ved women were equal to men in respect of access to and capacity for the highest knowledge even
the knowledge of the Absolute. In a matrimonial alliance the wife was given the same respect and position as
the husband in matters of religious rights and she was also free to participate in religious ceremonies along
with her husband. Thus the Rigveda accorded the highest social status to the qualified women those days.

According to the Hindu society, marriage is a sacrament. Due to the fact that marriage is more sacramental
than contractual, the concept of divorce was not known in the Hindu society earlier times. It was considered
to be indissoluble. Various ancient thinkers like Atri, believed that under no circumstances should a woman
be divorced or abandoned.However there are also sufficient evidence on the fact that although divorce was
not prominent in the Hindu society, it did exist amongst them.A man could abandon his wife if she did not
conceive within eight years or if the child died within ten years or if the wife gave birth only to girl child
within a period of eleven years of marriage. Not only this the text says that a man should leave his wife if she
is sharp tongued or if she pursues intoxicants or if she has a paramour and indulges in immoral conduct. A
wife who persistently does what is unpleasant and unfavorable to her husband who suffers from diseases like
leprosy, who ill- treats the household servants, and who squanders away her husband's hard-earned wealth
should be divorced without delay.

Cruelty as a ground of divorce was not prevalent before the codification of laws in 1955-1956. It was in the
Renaissance period of 19th and 20th century that finally, movements were initiated to bring about a positive
change in position of women. The reform movements and organizations started by Raja Ram Mohan Roy and
Ishwar Chandra Vidyasagar created pressure which led to a “change in the attitude towards marriage and
divorce”. One such example was the passage of the Civil Marriage Act, 1872 which led to enforcement of
monogamy. Before Independence, provinces such as Baroda and Kolkata brought about laws which
permitted dissolution of marriage but it was the piece of social legislation passed in 1955 which legally
recognized cruelty as a valid ground of judicial separation.

However, the Hindu Code faced numerous criticisms on the ground that it attempted to shatter the principles
on which the Hindu society was based. According to many orthodox traditionalists the introduction of the
clause of divorce would damage the fabric of Hindu society by giving a major blow to the institution of
marriage. It was said by one Lakshmi Kanta Moitra that the introduction of the provision which allowed
cruelty as a ground of divorce was the “rudest possible shock which was repugnant to Hindu notions of
marriage which the Shastras had rendered 'sacred and absolutely inviolable'. But keeping in mind the social
fact of modern life, it was not possible to adhere to the preconceived notion of inviolability and permanent
union between man and woman. It was very natural for the framers of the Act, despite all orthodox
opposition, to provide for divorce. Following English law, the Act provides for nullity of marriage, divorce
and judicial separation”.
III.CRUELTY AS A GROUND OF DIVORCE UNDER HINDU LAW :-

Sectoin 13 (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
decree of divorce on the ground that the other party-

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty.

Of all matrimonial offences cruelty is the most difficult to define. The legislatures and judges have
deliberately avoided formulating any definition of cruelty because there are no set and defined parameters of
what constitutes cruelty. In the case of Sukumar v. Tripathi the court observed that “no attempt at drawing a
complete list as to what constitutes cruelty can ever succeed”. Moreover an act which has held to been cruel
in one case might not be so in another as it completely depends upon the facts and circumstances of each
individual case.

Lord Denning in the case of Sheldon v. Sheldon :-The categories of cruelty are not closed. Each case may be
different. We deal with the conduct of human beings who are not generally similar. Among the human beings
there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any
case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of
Such is the wonderful realm of cruelty.

However, in the famous English case of Russel v. Russel which contains the earliest formulation of cruelty,
an attempt was made to define it.

Cruelty was held to be a conduct of such character as to have caused danger to life or health, bodily or
mentally, gives rise to reasonable apprehension of such danger. The definition includes both physical and
mental cruelty within its scope but it also emphasizes on the typical nineteenth century belief that no act can
amount to cruelty unless it creates an apprehension or actually causes injury to the petitioner.

In a recent judgment it has been held by the Supreme Court that since cruelty is being used in relation to
human conduct or human behavior, it is all the more difficult to define it. It is the conduct in relation to or in
respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the
other.

Before the amendment of the Hindu Marriage Act in 1976, cruelty was a ground for judicial separation only.
The change in law in the year of 1976 made it a ground for divorce as well keeping in view the changing
mores of the society. The amendment also made it clear that in order to constitute cruelty there is no need for
an apprehension of danger or injury to life to him/her while living together. The words 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,” were omitted from Section 10(1) (b) of the Act. Under Hindu Marriage Act, it is
laid down that, a marriage can be “dissolved by a decree of divorce on the ground that after the solemnization
of marriage, treated the petitioner with cruelty.” Therefore, after marriage it is open for both husband and
wife to get a decree for divorce if either of them treats the other cruelly. The general idea, however, is that it
is usually the husbands who treat their wives with cruelty. But it is not so. Under the Indian Divorce Act,
1869 cruelty as a ground for divorce was available to a wife only, but, under the Special Marriage Act, 1954
it is available to the husband as well as to the wife who may present a petition on the ground that the
respondent has, since the solemnization of marriage, treated the petitioner with cruelty. It is also important to
note that the term ‘respondent’ even includes a “child who beat his father on the behest of the mother.”
Where the husband fails to protect his wife from his nagging parents, he has been held to be guilty of cruelty.

Intention of the alleged party is one of the common things which the courts see while determining whether a
particular act is cruel or not. The words “has treated” in the Act denotes a conscious action on the part of
respondents where an act of cruelty is established. Despite this, intention is not an essential ingredient of
cruelty. In the case of Bhagwat v. Bhagwat , the Bombay High Court based on the facts of the case held that
though the intention of the husband was not to be cruel to his wife, his act amounted to cruelty. Though he
suffered from schizophrenia it was not a good defence to the plea of cruelty taken by the wife.

the acts of the respondents have to be grave in order to constitute cruelty. At the same time it would be seen
whether it would be bearable for a reasonable human being to live under such circumstances. Since marriage
is a delicate and pious bond the determination of cruelty has to be done based on the psychological changes
in the behaviour of the spouse. Mere petty quarrels and quibbles are not sufficient to constitute cruelty. The
Supreme Court also said that tolerance and adjustment are necessary to keep a marriage going and therefore
trifling differences between the spouses or quarrels cannot be exaggerated to the extent of filing for divorce.

The United Nations General Assembly defines "violence against women" as "any act of gender-based
violence that results in, or is likely to result in, physical, sexual or mental harm or suffering to women,
including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in
private life.

Matrimonial cruelty can take place either physically, mentally, emotionally or sexually. Since India has been
patriarchal society, women have been treated inferior to the men since ages. They have been treated as their
property and are expected to serve them throughout their lives.

Physical cruelty is not a rare phenomenon in the country. The National Family Health Survey (NFHS-4)
conducted by the Union ministry has revealed that one-third of ever-married women (33%) have ever
experienced spousal physical, sexual, or emotional violence by their current husband.Among ever-married
women age 15-49 that have experienced physical violence and sexual violence since age 15, 83 percent
report their current husbands as perpetrators of the violence. The women under study report that the most
common form of sexual violence committed by their husbands was the use of physical force to have sexual
intercourse especially when they did not want to (6%).Marital rape is also a form of cruelty inflicted upon
women. Rape within the institution of marriage is not an offence in India even when it comprises of physical,
sexual and mental cruelty. It is an intrusion upon the basic right to dignity of the women. The Justice Verma
Committee Report also points out that, according to 2010 study around 18.8 per cent of women are raped by
their partners not once but on many occasions. Not only in India, is violence against women present, but even
in the Unites States the reports indicate that around 10-14% of women experience rape within the institution
of marriage.

10% of the women who reported emotional violence shared that their husbands usually said or did something
to humiliate them in front of other people whereas 8% said that their husbands insulted them or made them
feel bad about themselves. Apart from them, another 6% complained that their husbands threatened them to
hurt someone close to them.

The report also highlights the fact that women in rural areas were more likely (36%) than women in urban
areas (28%) to experience one or more forms of spousal violence. These statistics are evident of the various
dimensions of cruelty inflicted on women. Since India is signatory member of The “United Nations
Convention on the Elimination of All Forms of Discrimination against Women” (CEDAW) it has viewed that
discrimination against women violates the principles of equality of rights and respect for human dignity.
Based on the above data, it is evident that cruelty occurs in various forms. There is no one type of cruelty and
therefore it becomes all the more difficult to lay down what it exactly constitutes. Mental cruelty includes
inflicting agony and distress on the partner in some way which makes it difficult for the two persons to live
together. Physical cruelty includes beating, slapping and other forms of physical harm. Sexual cruelty on the
other hand includes forcing the partner to indulge in intercourse or unnatural sex. The courts in India have
also recognized denial of sex in a marriage as a component of mental cruelty.

Sheldon Vs Sheldon (1966) 2 All ER 257

Lord Denning stated, “the categories of cruelty are not closed”.

“Each case may be different. We deal with the conduct of human beings who are not generally similar.
Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of
cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the
conduct complained of. Such is the wonderful realm of cruelty. These preliminary observations are intended
to emphasise that the court in matrimonial cases is not concerned with ideals in family life. The court has
only to understand the spouses concerned as nature made them, and consider their particular grievance. As In
matrimonial affairs we are not dealing with objective standards, it is not a matrimonial offence to fall below
the standard of the reasonable man (or the reasonable woman). We are dealing with this man or this woman.

IV. EXPANDING CONTOURS OF MENTAL CRUELTY :-

Mental cruelty in Section 13(1) (i-a) 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 term ‘mental cruelty’ as a ground for divorce, where one spouse's course of conduct (not involving actual
violence) creates such anguish that it endangers the life, physical health, or mental health of the other
spouse.Mental cruelty cannot be put within a straightjacket definition. What constitutes mental cruelty is not
limited neither constant. This human problem unfortunately exists all over the world.Changing lifestyle,
education, family patterns, modernization and globalization, and the increase in use of social and electronic
media are some of the numerous factors which are responsible for the changing diameters of mental cruelty.
What earlier was not an act of cruelty is considered to be mental cruelty in today’s times.

In Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan, the Supreme Court stated that the
concept of legal cruelty changes according to the changes and advancement of social concept and standards
of living. Some of the factors which have been recognized by the Supreme Court to constitute mental cruelty
are indifference on the part of either spouse, continuous ill treatment, regular taunts, cessation of marital
intercourse and an assertion on the part of husband that the wife is unchaste and such to name a few. Not
only are these, continuous threats to dissolve the marriage and harassment have also been recognized as
grounds of mental cruelty.

In the case of Samar Ghosh v. Jaya Ghosh, the Supreme Court gave a list of illustrations which depict mental
cruelty. The list however, is not exhaustive. “Unilateral decision of refusal to have intercourse for a
considerable period without any physical incapacity or valid reason may amount to mental cruelty. Unilateral
decision of either husband or wife after marriage not to have a child may amount to mental cruelty. Frequent
rudeness of language, petulance, and indifference, sustained abusive and humiliating treatment calculated to
torture or render miserable the life of the spouse could amount to mental cruelty.

Apart from this if the husband or the wife undergoes sterilization or abortion (in the latter case) without the
knowledge or consent of the spouse may also amount to mental cruelty. In the case referred to here, the
husband had filed a case for mental cruelty on the ground that his wife did not cook for him while she made
it only for herself. The Supreme Court had recognized this act of the wife as an act of mental cruelty.
Section 2 (viii) of the Dissolution of Muslim Marriage Act also acknowledges mental cruelty. The section
reads as or makes her life miserable by cruelty of conduct even if the conduct does not amount to physical ill-
treatment. Under Muslim law, “lian or imprecation, which is false accusation of adultery, is a ground of
divorce.

Another point of debate is the decision of the Apex court and other High Courts which have held that denial
of sex amounts to mental cruelty. Although the courts have accepted this proposition, the issue of marital
rape has yet not been decided by the courts. Marital rape has yet not been decriminalized but it itself
constitutes inflicting mental cruelty on the wife as it connotes lack of respect, dignity and sensitivity towards
her and violates of the right to life and liberty under Article 21 as enshrined in the Constitution of India. The
woman cannot be treated as someone who does not have a say over her body and someone who has no right
to deny sexual intercourse to her husband. marriage is not a contract for legal sexual pleasure. If denying sex
is equivalent to inflicting mental cruelty on the husband then forcing the wife to do the same is inflicting
mental cruelty on her. It is therefore necessary that the courts or the Parliament make this point of law clear
and unambiguous by getting away with the exception to Section 375 of IPC and thereby criminalizing marital
rape.

GOPESH DEKA VS PHUL KUMARI DEKA

The marriage between Gopesh Deka (appellant) and Phul Kumari Deka (respondent) was solemnized on 5 th
August, 2011 under the Hindu Marriage Act.A male child was born to them on 1 st September, 2012. The
appellant claimed that the respondent behaved in a rude manner with the appellant and also with the parents
and sister of the appellant. It was further claimed by the appellant that his sister was assaulted by the
respondent and an FIR had been lodged in that regard.It was also contended that the appellant’s parents had
been physically assaulted by the respondent.According to the appellant, the respondent had left her marital
home on 30th December, 2011, (4.5 months after marriage), and had not returned after that.The appellant
further claimed that after leaving the marital home the respondent had not shown any intention of returning
back.On the basis of the above facts the appellant filed a Hindu Marriage Act (H.M.A) petition against the
respondent under the Section 13(1) (ia) of the Hindu Marriage Act, 1955, seeking dissolution of the marriage.

Respondent
A detailed written statement denying the allegations was filed by the respondent. The respondent claimed
that it was the appellant who had behaved in a cruel manner. It was further claimed that a complaint was filed
against the appellant by the respondent under Section 498-A of IPC though the appellant was acquitted in the
proceeding.In the written statement all the allegations made against the respondent was denied.
Issue(s): Is there any cause of action? Was the plaintiff subjected to cruelty by the defendant? Is the
plaintiff the wrongdoer? Is the plaintiff entitled to decree as prayed for? To what other reliefs are the parties
entitled to?

Decision of the court:

Trial Court
The case was filed in the Family Court, Barpeta, Assam in 2015.The court took a note of the evidence
available on record and analyzed the same keeping in view the legal position. Hence, the petition was
dismissed by the family court on 26th May, 2015.The marriage was not dissolved by the court.
High Court

Aggrieved by the judgment of the trial court, the appellant escalated the matter to the High Court in 2018.The
court after having taken note of the evidence arrived at a conclusion that the appellant has failed to prove the
allegations against the respondent. Hence, the court dismissed the petition filed by the appellant under the
Section 13 (1) (ia) of the Hindu Marriage Act, 1955, on 26 th March, 2019. The marriage was not dissolved.

ANALYSIS OF THE DECISION OF THE COURT :-

The judgment of both the Trial Court and the High Court came to an apt conclusion over the proceedings of
the case. They looked deeply into the matter and ensured that all the facts where present. They took a note of
the evidences available on record and analyzed the same keeping in view the legal position.
The appellant seeked for a decree of divorce on the ground of cruelty. He made allegations on the respondent
stating physical assault by her on his parents and sister. But this allegation could not be established by the
evidence. During the cross examination the appellant admitted that the respondent still possesses both the
mental and the physical ability for the continuation of her conjugal life. Also he had admitted that he had
nowhere mentioned in the evidence that his sister was assaulted by the defendant.
Even during the examination of the evidence of the appellant’s first witness, there was no direct allegation
on the respondent amounting to cruelty.Infact during the cross examinations the appellant’s witness admitted
that both the parties have the capacity to continue their conjugal life and also in his presence he had never
witnessed any sort of physical assault between the parties. Also the appellant’s second witness stated that he
and the appellant had tried to bring the respondent back home as she bears all the qualities of a woman with
whom one would want to spend a conjugal life.
The evidences which were produced by the appellant himself showed that the differences between the parties
are not that it could be considered as a broken marriage. And hence a decree of divorce could not be granted.
Also the respondent had failed when she had filed a proceeding against the appellant under Section 498- A of
IPC.
In view of all the above instances, the High Court was of the opinion that the Judgment by the Trial Court
need not call for inference. And hence a Decree of Divorce was not entitled.

BISMITA SAIKIA V. PRANJAL DUTTA, 2018 (3) GLT 420

In this case the appellant claimed that the respondent had assaulted the mother and the sister of the appellant
and had also used filthy language. The evidences produced in this case established the allegations and
accordingly the decree of divorce was granted.

MALTHI RAVI M.D. V. B.V. RAVI M.D. (2014) 7 SCC 640

In this case the evidences produced through records indicated that there were instances of mental cruelty and
hence the Hon’ble Supreme Court granted the decree of divorce.
SAMAR GHOSH V. JAYA GHOSH, (2007) 4 SCC 511

In this case the Hon’ble Supreme Court has laid down that, if there stands a long period of continuous
separation, and then the marital bond is beyond repair. Hence A decree of Divorce was granted

V.LEGAL ANALYSIS OF THE CONCEPT OF CRUELTY :-

“Human mind is extremely complex and human behaviour is equally complicated. Similarly human
ingenuity has no bound; therefore, to assimilate the entire human behaviour in one definition is almost
impossible. The concept of cruelty is wide in ambit. What may be cruelty in one case may not amount to
cruelty in another. It differs among different people depending upon their social background and status,
family upbringing, level of education, financial position, traditions, customs and beliefs and their sensitivity
to such an issue. The law in India, especially the Hindu law has because of this reason not defined what
exactly cruelty is. It has been left to the courts to decide and lay down precedents as to what is cruelty under
a given factual situation.

VI. CRUELTY AGAINST WOMEN:-

Various personal laws in India have laid down cruelty as a ground of divorce. Sec. 2 (vii) of Dissolution of
Muslim Marriage Act, 1939, provides as under A woman married under Muslim law shall be entitled to
obtain a decree for the dissolution of her marriage on the ground that the husband treats her with cruelty.

Under Section 32 (dd) of Parsi Marriage and Divorce Act, 1936 the word cruelty has been made a ground of
dissolution of marriage as under That the defendant has since the solemnization of marriage treated the
plaintiff with cruelty or has behaved in such a way as to render it in the judgment of the Court improper to
compel the plaintiff to live with the defendant.

Section 10 of the Indian Divorce Act, 1869 provides. “Any wife may present a petition to the District court or
the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization
thereof (her husband) has been guilty of adultery coupled with such cruelty as without adultery would have
entitled her to a divorce.

The expression “cruelty” has been interpreted under Sec. 27 (d) of Special Marriage Act, 1954 as under The
respondent has, since the solemnization of marriage, treated the petitioner with cruelty”. Section 13(1) (ia) of
Hindu Marriage Act, 1955 provides. “The other party has, after the solemnization of marriage, treated the
petitioner with cruelty.” Cruelty as a ground for divorce in this Act was introduced through the amendment
of 1976. Before that it was only a valid ground for judicial separation but not a valid ground for divorce.
Apart from these personal laws the Indian Penal Code also makes cruelty against women an offence under
Section 498A of the Code. The section reads as,Whoever, being the husband or the relative of the husband of
a woman, subjects such woman to cruelty shall be punishable with imprisonment for a term which may
extend to three years and shall also be liable to fine. The nature of offence is non-bailable, cognizable and
non compoundable. It covers not only physical cruelty but also mental cruelty in the form of “torture and
abnormal behaviour.

In order to protect feminine gender from violence within the family and to make right to life as guaranteed
under Art. 21 of the constitution of India more meaningful, the Parliament enacted Protection of Women
from Domestic Violence Act, 2005, The act provides for a penalty of one year of imprisonment and fine up
to Rs. 20,000 in case the wife is subject to any form of domestic violence. Section 498A however, offers
remedy only to the women who are subject to cruelty by their husbands or the family of their husband. The
husbands who are subject to cruelty, especially mental cruelty have no remedy under this section.

VII. CRUELTY AGAINST MEN :-

The laws relating to cruelty against husbands by the wives are not as clear as it is vice-versa. Due to the
prolonged dominance of men over women in our country, it is difficult to accept the proposition that women
also inflict cruelty on their husbands. However due to the rise in consciousness among women and soaring
waves of feminism along with increase in education and independence among the women, they have started
misusing the provisions of law against their husbands in order to meet their needs and demands. The courts in
India in various instances have taken note of this fact and have granted divorce to husbands on grounds of
mental cruelty inflicted upon them by their wives.

In a case where the wife always demanded money from her husband and on failure to give her, she would
threaten him to falsely implicate him in a case of dowry demand and to kill her children and thereby put the
blame on him. the Supreme Court granted the husband the decree to dissolve the marriage on grounds of
mental cruelty committed by the wife.

In another case where a woman filed a complaint under Section 498A, the court on investigation found that
the complaint was a false one which the women had made only to embarrass and incarcerate her husband and
his family members. The filing of a false complaint was held to be an act of cruelty committed by the wife
and therefore the court granted divorce. It is a settled point of law that if either spouse lodges a false
complaint, “it would invariably amount to cruelty and would enable the other spouse to file a petition for
divorce.

Section 498A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband
or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a
woman.Many of such complaints are not bona fide. At the time of filing of the complaint, implications and
consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the
accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement.

It is an accepted proposition that there has been a rise in the misuse of Section 498A in order to rope in the
husband and his family and relatives including old parents and grand -parents as well. On the basis of false
and exaggerated allegations the wives have tried to put the blame on their husbands. This results in mental
harm and agony thereby causing mental cruelty. The vague allegations made without any verifiable evidence
results in “harassment and even arrest of innocent family members, including women and senior citizens.The
courts have acknowledged this fact in a number of decisions. The result is that once the wife files a false
complaint, the police lodge the F.I.R. and thereafter the husband, and his relatives in some cases, is
apprehended without being given a chance to say anything. The entire burden of proof is upon the husband to
proof his innocence.

A.P. RANGA RAO VS VIJAYALAKSHMI (1990 (1) HLR 601.) (I (1990) DMC 567)

FACT OF THE CASE :-The appellant (herein after referred to as the petitioner) married the respondent on
9 9-1968, according to caste custom. On account of the lawful wedlock she gave birth to a daughter on 3-7-
1969. The case of the petitioner is that the respondent used to tease him and provoke him often. On several
occasions she threatened to commit suicide. She insisted on the petitioner to start a separate establishment
after severing his connection with the other members of his family, namely, mother, brother, brother's wife
and unmarried brother. In or about March 1969, the respondent consumed bug poison and she was admitted
in the Government Stanley Hospital. She deserted the petitioner in June 1970. By the intervention of
mediators, who consisted of close relations, she later joined and she again left the house in February 1971.
Subsequently in October 1972 she returned. In June-July 1973, she again attempted to commit suicide by
consuming glass pieces. According to him, Mr. V.M. Day, Advocate, attempted to settle the matter amicably,
but of no use. On account of the various acts of the respondent, he is put to extreme mental agony and that
the respondent has also developed ulcer. Hence, he filed the petition for dissolution of marriage on the
ground of desertion and cruelty. In addition he prayed for custody of the minor child.

The said position was resisted by the respondent and she would contend that all the allegations in the petition
are untrue. The petitioner agreed to pay Rs. 100 per mensem to her as maintenance. He failed to do so. He
later filed O.P. 407 of 1973, for judicial separation. It was not pressed. She went to the house of the petitioner
to reside with him even after the dismissal of the said petition. But it was only the petitioner who suddenly
left the house without intimating the respondent. She would state that she is willing to reside with her
husband, the petitioner. To substantiate the allegations, the-petitioner examined himself as PW 1 and also
examined seven other witnesses and filed Ex. A. 1 to A. 11. On the side of the respondent, besides examining
herself, three other witnesses were examined and Ex. B. 1 to B. 3 were marked.

The trial Assistant Judge dismissed the petition holding that the petitioner has not made out any of the
grounds of desertion or cruelty. He was unsuccessful before the appellate court. Hence this second appeal.

Court held that, In the result, the appeal is allowed. The judgment and decree of the courts below are set aside
and the petition O.P. 629 of 1977 filed by the appellant is allowed and there will be a decree for dissolution
of marriage between the appellant and the respondent under Section 13(1)(i-a) of the Hindu Marriage Act.

Where the wife threats to commit suicide, it would amount to mental cruelty caused to
the husband.

RADHESHYAM SHARMA VS KUSUM SHARMA (1990 (2) HLR 230) (I (1990) DMC
290)

FACT OF THE CASE :-This appeal is by the husband/petitioner whose petition for grant of
divorce under Section 13 of the Hindu Marriage Act on the ground of cruelty and desertion,
has been dismissed by the trial Court. It is not disputed that the appellant married the
respondent sometimes in May, 1982. This petition for divorce was presented on 12-9-1986.
The respondent did not appear in the Court and, therefore, the petition proceeded ex-parte
against her. According to the allegations, after the marriage of the appellant with the
respondent she came to her father-in-law's place and remained with the appellant for five
days and thereafter deserted the appellant. During this period of five days, it is stated that the
respondent denial sexual intercourse with the appellant. According to the learned counsel for
the appellant, denial of sexual inter-course by the respondent amounts to cruelty. So far as the
desertion is concerned, it may be stated that according to the allegations, the respondent
deserted the appellant five days after the marriage in May, 1982.

Court held that, this appeal is allowed. The judgment passed by the trial Court is set aside
and instead a decree for divorce is granted to the appellant. Under the circumstances,
however, the parties are directed to bear their own costs of the case.

Where the wife refuses to have sexual intercourse and there in no reason for such
refusal, that would amount to cruelty subjected to husband.
SRI TAPAN CHAKRABORTY VS SMT. ANJALI CHAKRABORTY

(AIR 1993 Cal 10, 97 CWN 210, I (1993) DMC 572)

The petitioner/ husband is the appellant. He filed Matrimonial Suit No. 685 of 1987 at
Alipore for dissolution of marriage on the ground of cruelty. It is an admitted position that the
petitioner was married to the respondent on the 10th of May, 1968 according to Hindu rites
and customs. The petitioner is an engineer and obtained HMC in Mechanical Engineering
from the U.K. The parties did not dispute that for some time, after the marriage, the
relationship between the two continued to be good. Out of the wedlock, two female children
were born to the parties. The petitioner had a business and it continued smoothly till
November, 1985, when the workshop of the petitioner came to be under lock-out. The
petitioner averred that he had a very good income from the business and the paternal
properties and the respondent could live a luxurious life. But since November, 1985, as stated
by the petitioner, there was a financial stringency. It was alleged that since then, the
respondent started misbehaving towards the petitioner by abusing and in other ways. The
petitioner also made out a case that the respondent suspected that the petitioner had illicit
relation with other women. The petitioner felt hurt because the respondent abused him in the
presence of the children. For sometime past, according to the petitioner, the respondent along
with her children, were living separately from the petitioner. It was summed up that the
matrimonial ties in between the petitioner and the respondent had broken. On these
allegations, the petitioner filed the suit for divorce.

Court held that,the petitioner/ husband has not proved the ground of cruelty. That being the
position, the suit was liable to be dismissed. The learned Trial Court has rightly dismissed the
suit. The judgment and decree of the learned trial court are hereby confirmed.

Petty quarrels between husband and wife cannot be so serious as amounting to cruelty
and entitling husband to move for divorce.

VIII. CONCLUSION :-

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Keeping
this in mind it can be said that cruelty by either husband or wife is a breach of the basic right to dignity and
liberty. The Constitution of India, which is the grund-norm of the country, ensures the right to life with
dignity as it is a part of right to life under Article 21. Inflicting physical and mental pain and suffering on the
other amounts to a breach of the same.

Due to the growing modernization and breakdown of family systems, the rate of divorce in India is
increasing annually. According to the reports of the National Crime Investigation Bureau, the number of
complaints filed under Section 498A of IPC has been increasing proportionally since the beginning of the
21th century. Out of the complaints very few cases end up in conviction while in most of them the husbands
are acquitted.

It is true that some of the laws are biased towards women to compensate the ill treatment that they have
suffered in the past years and that they are facing currently. To support the proposition we can take the
example of Section 32(2) of the Protection of Women from Domestic Violence Act, 2005 which provides
that “Upon the sole testimony of the aggrieved person, the court may conclude that an offence under sub-
section (1) of section 31 has been committed by the accused.” However, without carrying out any
investigation as to whether the complaint filed is true or false, the husband and his family members can have
to face social stigma and mental agony.

On the contrary we cannot forget the lacunae in laws such as that relating to marital rape which are not at all
favourable to women. Thus there is a need to clearly lay down the laws relating to cruelty in all its forms and
kinds. It would therefore be expected of the lawmakers to provide the ‘term’ a ground to stand upon rather
than keeping it hanging. Till the concept of cruelty is not clear, the burden will always be on the judiciary to
decide whether an act is cruelty or not depending upon the facts and circumstances of the situation and the
parties to the dispute.