Cruelty: A flourishing ground for Divorce

Cruelty is an adequate ground for dissolving a marriage solemnized under a valid law, on a petition filed by either of the party in marriage. But what constitutes cruelty is not spelled out in law. This creates some confusion among the stakeholders of divorce petition and they bring in anything and everything under the sun as an instance of cruelty to get a quick divorce which the law has never envisaged at all. The legislature has consciously left this job of determining what all things come under cruelty, to the concerned court to be determined by assessing all the facts and circumstances of each case. This is primarily meant to avoid auto-limitation and restrictive operation in deciding divorce cases and thereby enable the court to keep its ambit wide open.

Grounds for divorce in Muslim law

The Dissolution of Muslim Marriage Act 1939 is probably the only Indian law that enlists six situations where an act of husband may amount to cruelty in the perspective of the wife. The situations - available only to the wife to invoke - are:

• the husband assaults her habitually and makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment
• the husband associates with women of ill-repute or leads an infamous life
• the husband attempts to force her to lead an immoral life
• the husband disposes of her property or prevents her from exercising her legal rights over it
• the husband obstructs her in the observance of her religious profession or practice, and
• the husband has more than one wives and does not treat her equitably.

Though the law sets apart the reasons exclusively for women they can be used as guiding indications in deciding cases filed by men where similar situation exists.

Cruelty not defined in other laws

The Hindu Marriage Act 1955 originally did not include “cruelty” as a ground for divorce, but for judicial separation alone. However due to the changing mores of the society, it has been made a ground for divorce in its amendment in 1976. However, in a catena of decisions the courts have enlisted many instances of cruelty which would serve as a guiding force in similar cases. A birds-eye-view of them will make one arrive at a broad understanding of what all things constitute cruelty in the judicial eye. The basic principle upheld in almost all such decisions is that cruelty is nothing but willful infliction of bodily or mental pain. But in a finer classification cruelty can be further elaborated as physical, mental, moral, social and even emotional in nature. The courts through those decisions make out in unequivocal terms that any act of whatsoever nature that makes it impossible for both the spouses to live together without intense hatred and rancor, is nothing but cruelty.

In physical cruelty there shall be visible direct evidence. But in mental or other kinds of cruelty there would be no direct evidence but only intangible or indirect evidence which would be inferred from the instances both parties bring in. However consistent infliction of mental torture may very well come within the contours of cruelty. 

Some instances of cruelty

Let us see some of the instances of behavior which the court declared as cruelty.

In general, cruelty includes willful and unjustifiable conduct - both physical and mental - that may cause danger to life, limb and health. Trivial quarrels, petty quibbles and trifling differences between spouses that would happen in every married life cannot be construed as cruelty or unacceptable behavior. The acts of cruelty complained of should be something more than ordinary ‘wear and tear’ of married life. But continuous ill-treatment, the absence of sexual relation or denial of sex for long to the spouse, conscious neglect, total indifference, purposeful humiliation etc may come within the purview of cruelty. It is not correct to consider an isolated instance of misbehavior as cruelty but the facts and circumstances should be taken into consideration in a cumulative manner.

Therefore any isolated incident of cruelty, other than grave and weighty misconduct, against a spouse can’t be a ground for divorce. Any abnormal behaviour unacceptable to the other party and the society at large will constitute cruelty. In order to constitute cruelty there must be the harsh or painful conduct of a certain amount and for a relatively prolonged period. What is cruelty in one case may not be cruelty in another?

The mere filing of a complaint against the other party to the marriage is not cruelty if the complaint is based on concrete facts and justifiable reasons. On the other hand, if the allegations in the complaint are false, or on flimsy ground, the leveling of such accusations against the other spouse can be termed as cruelty. Any of the spouses cohabiting with another individual is cruelty. But a wife making baseless allegations about her husband having an illicit relationship with another woman unsupported by concrete facts is declared as mental cruelty.  Assaulting the wife in a state of intoxication and creating intolerable nuisance at her workplace would amount to cruelty. Separation of a spouse voluntarily from the company of the other is termed cruelty. Contracting a second marriage during the subsistence of the first one by a spouse will amount to cruelty.  One of the spouses not telling the other about the affliction of sexually transmitted disease while continuing sexual relations with the other spouse is cruelty. The wife refuses to maintain sexual relations with the husband amounts to cruelty. Unjustified refusal of intercourse to the other party to the marriage constitutes cruelty but there is considerable difficulty in convincing the court that the refusal is unjustifiable.

Any conduct of a spouse which inflicts mental pain and suffering upon the other and thereby makes it impossible for him/her to live with the other comes within the ambit of cruelty. An act that a spouse cannot endure in normal circumstances and standards is deemed to be cruelty. There is no hard and fast dividing line between the conduct which is considered cruel and which is not. It is not easy for anyone to measure it by any absolute and objective standard.

In dealing with cruelty the entire matrimonial relationship between both as a whole must be taken into account. It is a question of fact. The question that whether an act complained of constitutes cruelty is to be determined from the peculiar facts and circumstances of the marital relationship between the spouses. The spouse seeking divorce on the ground of cruelty must prove that the other spouse had persistently treated the one with cruelty.

Some landmark Judgments

Let us see some of the classic judgments which try to delineate cruelty in different perspectives. 

One old high profile case still being referred to in almost every judgment on cruelty - particularly mental cruelty - is V Bhagat v D Bhagat (1994 SCC 337).

Another one is Naveen Kohli v Neelu Kohli (AIR 2004 All 1), the judgment of which describes the impact of physical cruelty after analyzing the facts of the case in other countries too.

Samar Ghosh v Jaya Ghosh (2007 4 SCC 511) is yet another high-profile case, the judgment of which provides a detailed account of what constitutes mental cruelty based on authentic documents and judicial pronouncements from India and other countries even though no uniform standard could be fixed to serve as guidance in such a extensive issue.  

In K Srinivas Rao v D A Deepa ( Civil Appeal No 1794 of 2013 ) the Supreme Court held that mental cruelty can be done without even staying under one roof. The order highlights the need for a negotiated settlement in regard to issues of cruelty so as to prevent the marriage from reaching a state of irrevocable breakdown.

The judgment in Suman Sing V Sanjau Singh (2017 4 SCC 85) reiterated that a few isolated incidents of long past, which had been found to be condoned due to compromising behavior of the parties subsequently, cannot be considered cruelty, as per the norms laid down in earlier binding cases.

Conclusion

When there is cruelty, the matrimonial relation will deteriorate into one which makes marital life of the pairs full of agony, distress and mental pain. Therefore the safe course for both parties for a better living is to get a legal divorce. If the marital relation deteriorates into a level which no reasonable person would tolerate, it deserves nothing but ending up in divorce.

However, as Lord Denning says, "If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament.

This is an easy path to tread, especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperiled." We, as a people, do not want to derail the institution of marriage by exuberantly defining cruelty as wider as possible.

Tolerance is the foundation of happy marriage. Strategic adjustments and mutual respect of one another are necessary social requirements of a sound marital relation. Whenever such qualities disappear from the spouses due to substantive reasons or flimsy ego clashes, they queue up before the family court citing the other person’s cruelty as a reason for fighting each other and pass though some ignominious proceedings to end up their marriage – an institution indispensable not only for upbringing the children in a healthy social beings but also for maintaining the healthy fabric of the society they live in.  

Even if both the spouses think there is sufficient reason for divorce the right way for them is to negotiate the issues and settle the differences in a civilised manner. Contesting the case with facts and circumstances resembling some fairy tales and unimaginable lies, as is being practiced in our family courts, is to be discouraged.

The author can also be reached at rajankila@hotmail.com