CRUELTY as held by SC/HC in various judgements

Bhaskar for SOCIAL JUSTICE (Legal & Social Activist) 28 December 2010

VERY GOOD AVNISH JI There should be equilibrium in law and justice and its should not be gender biased. Today women is claiming ,maintenance whether they have any real problem with their husband or not but they are claiming it as a matter of right and it becomes business now to earn easy money. Marry the rich person , do quarrel with them and then claim maintenance and alimony. When she is not ready to co-operate and take care of her husband and family then why she should get any maintenance/alimony. IT MUST BE STOPPED AND BE GIVEN ONLY IN DESERVING CASES WHERE HUSBAND IS GUILTY AND WIFE IS INNOCENT.IT WILL SAVE THE FAMILIES. It is a jungle raj and way to become rich on others money. If husband has duty to maintain her wife then wife has also duty to take care of him and give love and affection. So there should be no maintenance at all for wife's who are just trying to enrich them by using this ANDHA KANOON. Certain suggestions to preserve families and to save them:  No maintenance till guilty is proved and if husband is ready to reconcile and bear all the expenses of wife and children if she re-joins him.  No maintenance and alimony in the 2nd marriage if she has got it in the first divorce.  No maintenance if she can maintain her or her parents can maintain her and if husband is ready to take her back.  Compulsory mediation for avoiding long legal battle.  Law should be such that both husband and wife try to reconcile .  Law should not be favoring anyone to ensure that marriages are saved. Domestic violence complaint / fir should be filed within 24 hours of alleged incidence in place of today's situation in which wife and her parents try to black mail the husband and his family to agree to their terms and if they do not agree then they file case even after many years. DV Act must be applicable equally to men and women as today women is more aggressive and ill-treat, abuse, beat husbands and in-laws but the DV Act not applicable to them. It must cover wife's and their families to ensure equality and justice. Limits provided in the Act for filing mutual consent Divorce after 1 year separation, desertion of 2 year,3 years for IRBM etc. should be removed and it should be only 3 months so both can start their life’s afresh. When two persons can marry without any waiting period then there should be no waiting period for separation. The most important thing is to fix time limit for completion of hearing and disposal of case in any court say 6 months only. The cases must be tried on fast track basis. The infrastructure of the legislative system should be strenght4ened and cases must be disposed off within 6 months. For filing cases some minimum requirement of proofs etc. must be there and it should not be like this that for any small small issue anybody can go and file the case. Specially for family matters pre-litigation mediation must be compulsory and the behavior/flexibility of each party in resolving the issue must be recorded and should be base of their case in future (if any). Pre-neputal agreement should be made legal so husband and wife are aware before hand what they are going to get or loose if they part there ways and they should be allowed to take divorce on the terms mentioned in the agreement without going to court. MAXIMUM LIMIT OF MAINTENANCE AMOUNT BE FIXED IN THE ACT ITSELF TO STOP ITS MIS-USE THERE MUST BE STRICT PENAL PROVISIONS FOR PETITIONER AND ADVOCATES FOR FILING FALSE CASES.IT WILL REDUCE LARGE NUMBER OF FALSE CASES. AS PER STATATICS 95% DOWRY/ DOMESTIC VIOLANCE CASES ARE FALSE.ONCE JUDGES START PUNISHING THOSE INVOLVED IN SUCH CASES THERE WILL BE SEA CHANGE. Dowry law, Hindu Marriage law, Domestic violence Act etc. must be made equal for both husband and wife. Lacs of husband are suiciding because of these biased laws. FILE REPRESENTATION BEFORE COMMITTE OF PETITIONS OF RAJYA SABHA FOR CHANGE OF 498a TO STOP ITS MISUSE BEFORE 30.12.2010 If husband has a duty to maintain his wife then he must have some rights also and if wife has right of maintenance then she must have some duties also. The government of India who has enacted this type of illogical law has on its own part giving this type of maintenance/allowance etc. to citizens of India if they don’t have any earning/job etc. NO not at all. In NAREGA they are just giving guarantee of work for 100 days and wages for the days worked so this should also be applicable to husband and wife also. This blackmailing by wife's must be stopped forthwith.

Tajobsindia (Senior Partner ) 28 December 2010

@ Avnish,

You seems ot have bought the whole of Manupatra it seems so to me :-)

So do you have

1. SC and D HC Judgment on "constructive desertion under HMA as well as under S. 125 CrPC" ?

2. "Welfare classification" of women ?

Rgds.

Avnish Kaur (Consultant) 28 December 2010

is it below?

SC: There is no absolute right to maintenance

			CASE NO.:

			Appeal (civil) 20-21 of 1999

			PETITIONER:

			SAVITRI PANDEY

			Vs.

			RESPONDENT:

			PREM CHANDRA PANDEY

			DATE OF JUDGMENT: 08/01/2002

			BENCH:

			R.P. Sethi & Y.K. Sabharwal

			JUDGMENT:

			SETHI,J.

			Alleging cruelty and desertion against the husband, the appellant-

			wife approached the Matrimonial Court under Section 13 of the Hindu

			Marriage Act (hereinafter referred to as "the Act") praying for

			dissolution of her marriage with the respondent by a decree of

			divorce.

			She also prayed for direction to the respondent to return her

			ornaments

			given to him at the time of marriage. The Family Judge allowed the

			petition and dissolved the marriage of the parties on the ground of

			desertion by the husband. The appellant was also granted a decree of

			Rs.12,000/- towards the price of the scooter, allegedly given at the

			time of the marriage and payment of Rs.500/- per month as permanent

			alimony. Both the husband and the wife preferred appeals against the

			order of the Family Court as the wife was not satisfied with the

			part of

			the order refusing to grant a decree in her favour in respect of

			properties claimed by her and the husband was aggrieved by the order

			of

			dissolution of the marriage by a decree of divorce. Both the appeals

			were disposed of by the impugned order holding that the appellant-

			wife

			herself was a defaulting party and neither the allegations of cruelty

			nor of desertion were proved. The order passed under Section 27 of

			the

			Hindu Marriage Act and for permanent alimony was also set aside. The

			grievance of the appellant-wife is that the High Court was not

			justified

			in setting aside the findings of fact arrived at by the Family Court

			and

			that she had proved the existence of cruelty and desertion against

			the

			respondent. It is contended that as the appellant-wife was proved to

			have been living separately, it was to be presumed that the

			respondent

			had deserted her.

			The facts of the case giving rise to the filing of the

			present

			appeals are that marriage between the parties was solemnised on

			6.5.1987. The appellant-wife lived with the respondent-husband till

			21st

			June, 1987 and according to her the marriage between the parties was

			never consummated. After 21st June, 1987 the parties started living

			separately. The appellant alleged that her parents spent more than

			Rs.80,000/- with respect to the ceremonies of the marriage and also

			gave

			several articles in the form of ornaments, valuables, cash and kind

			as

			per demand of the respondent. The respondent and his family members

			allegedly made further demands of Colour TV, Refrigerator and some

			other ornaments besides hard cash of Rs.10,000/-. The father of the

			appellant obliged the respondent by giving him Rs.10,000/- in the

			first

			week of June, 1987 but could not fulfil the other demands of his

			parents. The respondent and his family members were alleged to have

			started torturing the appellants on false pretexts. Aggrieved by the

			attitude of the respondent and his family members, the appellant

			states

			to have filed a petition under Section 13 of the Act seeking

			dissolution

			of marriage by a decree of divorce along with prayer for the return

			of

			the property and grant of permanent alimony. The respondent also

			filed

			a petition seeking divorce and grant of other reliefs. However, on

			14.5.1996 the respondent filed an application for withdrawal of his

			matrimonial case which was allowed on 19.5.1996. The appellant had

			alleged that the respondent was having illicit relations with a lady

			residing in Gaya at Bihar with whom he was stated to have solemnised

			the

			marriage. The allegations made in the petition were denied by the

			respondent and it was stated that in fact the appellant-wife was

			taking

			advantage of her own wrongs.

			On the basis of the pleadings of the parties, the following

			issues

			were framed:

			"1. Whether the defendant has treated the petitioner with

			cruelty? If so, its effect?

			2. Whether the petitioner is entitled to relief under

			Sec.27 of the Hindu Marriage Act? If so, its effect?

			3. Whether the defendant is entitled to any relief? If

			so, its effect?

			4. To what relief, parties are entitled?"

			It may be noticed that no issue with regard to alleged desertion

			was insisted to be framed. With respect to the issue of cruelty, the

			Family Court concluded that no evidence had been led to prove the

			allegations. The Court, however, held: "but it is proved that the

			respondent had deserted the petitioner, hence the petitioner will

			get or

			is entitled to for a decree of divorce". On appreciation of evidence

			led in the case, the Division Bench of the High Court held:

			"We also do not find any evidence that the wife has been

			treated with cruelty by the husband. We are also of the

			view that there is no evidence that petitioner is deserted."

			We have heard the learned counsel for the parties and

			perused the

			record.

			Treating the petitioner with cruelty is a ground for divorce

			under

			Section 13(1)(ia) of the Act. Cruelty has not been defined under the

			Act but in relation to matrimonial matters it is contemplated as a

			conduct of such type which endangers the living of the petitioner

			with

			the respondent. Cruelty consists of acts which are dangerous to

			life,

			limb or health. Cruelty for the purpose of the Act means where one

			spouse has so treated the other and manifested such feelings towards

			her

			or him as to have inflicted bodily injury, or to have caused

			reasonable

			apprehension of bodily injury, suffering or to have injured health.

			Cruelty may be physical or mental. Mental cruelty is the conduct of

			other spouse which causes mental suffering or fear to the matrimonial

			life of the other. "Cruelty", therefore, postulates a treatment of

			the

			petitioner with such cruelty as to cause a reasonable apprehension in

			his or her mind that it would be harmful or injurious for the

			petitioner

			to live with the other party. Cruelty, however, has to be

			distinguished

			from the ordinary wear and tear of family life. It cannot be

			decided on

			the basis of the sensitivity of the petitioner and has to be

			adjudged on

			the basis of the course of conduct which would, in general, be

			dangerous

			for a spouse to live with the other. In the instant case both the

			trial

			court as well as the High Court have found on facts that the wife had

			failed to prove the allegations of cruelty attributed to the

			respondent.

			Concurrent findings of fact arrived at by the courts cannot be

			disturbed

			by this Court in exercise of powers under Article 136 of the

			Constitution of India. Otherwise also the averments made in the

			petition and the evidence led in support thereof clearly shows that

			the

			allegations, even if held to have been proved, would only show the

			sensitivity of the appellant with respect to the conduct of the

			respondent which cannot be termed more than ordinary wear and tear of

			the family life.

			No decree of divorce could be granted on the ground of

			desertion

			in the absence of pleading and proof. Learned counsel for the

			appellant

			submitted that even in the absence of specific issue, the parties had

			led evidence and there was sufficient material for the Family Court

			to

			return a verdict of desertion having been proved. In the light of

			the

			submissions made by the learned counsel, we have opted to examine

			this

			aspect of the matter despite the fact that there was no specific

			issue

			framed or insisted to be framed.

			"Desertion", for the purpose of seeking divorce under the

			Act,

			means the intentional permanent forsaking and abandonment of one

			spouse

			by the other without that other's consent and without reasonable

			cause.

			In other words it is a total repudiation of the obligations of

			marriage.

			Desertion is not the withdrawal from a place but from a state of

			things.

			Desertion, therefore, means withdrawing from the matrimonial

			obligations, i.e., not permitting or allowing and facilitating the

			cohabitation between the parties. The proof of desertion has to be

			considered by taking into consideration the concept of marriage

			which in

			law legalises the s*xual relationship between man and woman in the

			society for the perpetuation of race, permitting lawful indulgence in

			passion to prevent licentiousness and for procreation of children.

			Desertion is not a single act complete in itself, it is a continuous

			course of conduct to be determined under the facts and circumstances

			of

			each case. After referring to host of authorities and the views of

			various authors, this Court in Bipinchandra Jaisinghbhai Shah v.

			Prabhavati [AIR 1957 SC 176] held that if a spouse abandons the

			other in

			a state of temporary passions, for example, anger or disgust without

			intending permanently to cease cohabitation, it will not amount to

			desertion. It further held:

			"For the office of desertion, so far as the deserting spouse

			is concerned, two essential conditions must be there, namely

			(1) the factum of separation, and (2) the intention to bring

			cohabitation permanently to an end (animus deserendi).

			Similarly two elements are essential so far as the deserted

			spouse is concerned: (1) the absence of consent, and (2)

			absence of conduct giving reasonable cause to the spouse

			leaving the matrimonial home to form the necessary intention

			aforesaid. The petitioner for divorce bears the burden of

			proving those elements in the two spouses respectively.

			Here a different between the English law and the law as

			enacted by the Bombay Legislature may be pointed out.

			Whereas under the English law those essential conditions

			must continue throughout the course of the three years

			immediately preceding the institution of the suit for

			divorce, under the Act, the period is four years without

			specifying that it should immediately precede the

			commencement of proceedings for divorce. Whether the

			omission of the last clause has any practical result need

			not detain us, as it does not call for decision in the

			present case. Desertion is a matter of inference to be

			drawn from the facts and circumstances of each case. The

			inference may be drawn from certain facts which may not in

			another case be capable of leading to the same inference;

			that is to say, the facts have to be viewed as to the

			purpose which is revealed by those acts or by conduct and

			expression of intention, both anterior and subsequent to the

			actual acts of separation. If, in fact, there has been a

			separation, the essential question always is whether that

			act could be attributable to an animus deserendi. The

			offence of desertion commences when the fact of separation

			and the animus deserendi co-exist. But it is not necessary

			that they should commence at the same time. The de facto

			separation may have commenced without the necessary animus

			ort it may be that the separation and the animus deserendi

			coincide in point of time; for example, when the separating

			spouse abandons the marital home with the intention, express

			or implied, of bringing cohabitation permanently to a close.

			The law in England has prescribed a three years period and

			the Bombay Act prescribed a period of four years as a

			continuous period during which the two elements must

			subsist. Hence, if a deserting spouse takes advantage of

			the locus poenitentiae thus provided by law and decide to

			come back to the deserted spouse by a bona fide offer of

			resuming the matrimonial home with all the implications of

			marital life, before the statutory period is out or even

			after the lapse of that period, unless proceedings for

			divorce have been commenced, desertion comes to an end and

			if the deserted spouse unreasonably refuses to offer, the

			latter may be in desertion and not the former. Hence it is

			necessary that during all the period that there has been a

			desertion, the deserted spouse must affirm the marriage and

			be ready and willing to resume married life on such

			conditions as may be reasonable. It is also well settled

			that in proceedings for divorce the plaintiff must prove the

			offence of desertion, like and other matrimonial offence,

			beyond all reasonable doubt. Hence, though corroboration is

			not required as an absolute rule of law the courts insist

			upon corroborative evidence, unless its absence is accounted

			for to the satisfaction of the court."

			Following the decision in Bipinchandra's case (supra) this

			Court

			again reiterated the legal position in Lachman Utamchand Kirpalani v.

			Meena alias Mota [AIR 1964 SC 40] by holding that in its essence

			desertion means the intentional permanent forsaking and abandonment

			of

			one spouse by the other without that other's consent, and without

			reasonable cause. For the offence of desertion so far as deserting

			spouse is concerned, two essential conditions must be there (1) the

			factum of separation and (2) the intention to bring cohabitation

			permanently to an end (animus deserendi). Similarly two elements are

			essential so far as the deserted spouse is concerned: (1) the

			absence of

			consent, and (2) absence of conduct giving reasonable cause to the

			spouse leaving the matrimonial home to form the necessary intention

			aforesaid. For holding desertion proved the inference may be drawn

			from

			certain facts which may not in another case be capable of leading to

			the

			same inference; that is to say the facts have to be viewed as to the

			purpose which is revealed by those acts or by conduct and expression

			of

			intention, both anterior and subsequent to the actual acts of

			separation.

			To prove desertion in matrimonial matter it is not always

			necessary that one of the spouse should have left the company of the

			other as desertion could be proved while living under the same roof.

			Desertion cannot be equated with separate living by the parties to

			the

			marriage. Desertion may also be constructive which can be inferred

			from the attending circumstances. It has always to be kept in mind

			that

			the question of desertion is a matter of inference to be drawn from

			the

			facts and circumstances of each case.

			There is another aspect of the matter which disentitles the

			appellant from seeking the relief of divorce on the ground of

			desertion

			in this case. As desertion in matrimonial cases means the

			withdrawal of

			one party from a state of things, i.e., a marital status of the

			party,

			no party to the marriage can be permitted to allege desertion unless

			he

			or she admits that after the formal ceremonies of the marriage, the

			parties had recognised and discharged the common obligation of the

			married life which essentially requires the cohabitation between the

			parties for the purpose of consummating the marriage. Cohabitation

			by

			the parties is an essential of a valid marriage as the object of the

			marriage is to further the perpetuation of the race by permitting

			lawful

			indulgence in passions for procreation of children. In other words,

			there can be no desertion without previous cohabitation by the

			parties.

			The basis for this theory is built upon the recognised position of

			law

			in matrimonial matters that no-one can desert who does not actively

			or

			wilfully bring to an end the existing state of cohabitation.

			However,

			such a rule is subject to just exceptions which may be found in a

			case

			on the ground of mental or physical incapacity or other peculiar

			circumstances of the case. However, the party seeking divorce on the

			ground of desertion is required to show that he or she was not taking

			the advantage of his or her own wrong.

			In the instant case the appellant herself pleaded that there

			had

			not been cohabitation between the parties after the marriage. She

			neither assigned any reason nor attributed the non-resumption of

			cohabitation to the respondent. From the pleadings and evidence led

			in

			the case, it is apparent that the appellant did not permit the

			respondent to have cohabitation for consummating the marriage. In

			the

			absence of cohabitation between the parties, a particular state of

			matrimonial position was never permitted by the appellant to come

			into

			existence. In the present case, in the absence of cohabitation and

			consummation of marriage, the appellant was disentitled to claim

			divorce

			on the ground of desertion.

			No evidence was led by the appellant to show that she was

			forced

			to leave the company of the respondent or that she was thrown away

			from

			the matrimonial home or that she was forced to live separately and

			that

			the respondent had intended animus deserendi. There is nothing on

			record to hold that the respondent had ever declared to bring the

			marriage to an end or refuses to have cohabitation with the

			appellant.

			As a mater of fact the appellant is proved to have abandoned the

			matrimonial home and declined to cohabit with the respondent thus

			forbearing to perform the matrimonial obligation.

			In any proceedings under the Act whether defended or not the

			court

			would decline to grant relief to the petitioner if it is found that

			the

			petitioner was taking advantage of his or her own wrong or disability

			for the purposes of the reliefs contemplated under Section 23(1) of

			the

			Act. No party can be permitted to carve out the ground for

			destroying

			the family which is the basic unit of the society. The foundation of

			the family rests on the institution of a legal and valid marriage.

			Approach of the court should be to preserve the matrimonial home and

			be

			reluctant to dissolve the marriage on the asking of one of the

			parties.

			For upholding the judgment and decree of the Family Court,

			Shri

			Dinesh Kumar Garg, the learned counsel appearing for the appellant

			submitted that as after the decree of divorce the appellant had

			remarried with one Sudhakar Pandey and out of the second marriage a

			child is also stated to have been born, it would be in the interest

			of

			justice and the parties that the marriage between them is dissolved

			by a

			decree of divorce. In support of his contention he has relied upon

			judgments of this Court in Anita Sabharwal v. Anil Sabharwal [1997

			(11)

			SCC 490], Shashi Garg (Smt.) v. Arun Garg[1997 (7) SCC 565], Ashok

			Hurra

			v. Rupa Bipin Zaveri [1997 (4) SCC 226] and Madhuri Mehta v. Meet

			Verma

			[1997 (11) SCC 81].

			To appreciate such a submission some facts have to be

			noticed and

			the interests of public and society to be borne in mind. It appears

			that the marriage between the parties was dissolved by a decree of

			divorce vide the judgment and decree of the Family Court dated

			8.7.1996.

			The respondent-husband filed appeal against the judgment and decree

			on

			19.1.1997. As no stay was granted, the appellant solemnised the

			second

			marriage on 29.5.1997, admittedly, during the pendency of the appeal

			before the High Court. There is no denial of the fact that right of

			at

			least one appeal is a recognised right under all systems of civilised

			legal jurisprudence. If despite the pendency of the appeal, the

			appellant chose to solemnise the second marriage, the adventure is

			deemed to have been undertaken at her own risk and the ultimate

			consequences arising of the judgment in the appeal pending in the

			High

			Court. No person can be permitted to flout the course of justice by

			his

			or her overt and covert acts. The facts of the cases relied upon by

			the

			learned counsel for the appellant are distinct having no proximity

			with

			the facts of the present case. In all the cases relied upon by the

			appellant and referred to hereinabove, the marriage between the

			parties

			was dissolved by a decree of divorce by mutual consent in terms of

			application under Section 13B of the Act. This Court while allowing

			the

			applications filed under Section 13B took into consideration the

			circumstances of each case and granted the relief on the basis of

			compromise. Almost in all cases the other side was duly compensated

			by

			the grant of lumpsum amount and permanent provision regarding

			maintenance.

			This Court in Ms.Jorden Diengdeh v. S.S. Chopra [AIR 1985 SC

			935]

			suggested for a complete reform of law of marriage and to make a

			uniform law applicable to all people irrespective of religion or

			caste.

			The Court observed:

			"It appears to be necessary to introduce irretrievable

			breakdown of marriage and mutual consent as grounds of

			divorce in all cases. .... There is no point or purpose to

			be served by the continuance of a marriage which has so

			completely and signally broken down. We suggest that the

			time has come for the intervention of legislature in these

			matters to provide for a uniform code of marriage and

			divorce and to provide by law for a way out of the unhappy

			situation in which couples like the present have found

			themselves.

			Marriage between the parties cannot be dissolved only on the

			averments made by one of the parties that as the marriage between

			them

			has broken down, no useful purpose would be served to keep it alive.

			The legislature, in its wisdom, despite observation of this Court has

			not thought it proper to provide for dissolution of the marriage on

			such

			averments. There may be cases where, on facts, it is found that as

			the

			marriage has become dead on account of contributory acts of

			commission

			and omission of the parties, no useful purpose would be served by

			keeping such marriage alive. The sanctity of marriage cannot be

			left at

			the whims of one of the annoying spouses. This Court in V. Bhagat v.

			Mrs.D.Bhagat [AIR 1994 SC 710] held that irretrievable breakdown of

			the

			marriage is not a ground by itself to dissolve it.

			As already held, the appellant herself is trying to take

			advantage

			of her own wrong and in the circumstances of the case, the marriage

			between the parties cannot be held to have become dead for invoking

			the

			jurisdiction of this Court under Article 142 of the Constitution for

			dissolving the marriage.

			At this stage we would like to observe that the period of

			limitation prescribed for filing the appeal under Section 28(4) is

			apparently inadequate which facilitates the frustration of the

			marriages

			by the unscrupulous litigant spouses. In a vast country like ours,

			the

			powers under the Act are generally exercisable by the District Court

			and

			the first appeal has to be filed in the High Court. The distance,

			the

			geographical conditions, the financial position of the parties and

			the

			time required for filing a regular appeal, if kept in mind, would

			certainly show that the period of 30 days prescribed for filing the

			appeal is insufficient and inadequate. In the absence of appeal, the

			other party can solemnise the marriage and attempt to frustrate the

			appeal right of the other side as appears to have been done in the

			instant case. We are of the opinion that a minimum period of 90 days

			may be prescribed for filing the appeal against any judgment and

			decree

			under the Act and any marriage solemnised during the aforesaid

			period be

			deemed to be void. Appropriate legislation is required to be made in

			this regard. We direct the Registry that the copy of this judgment

			may

			be forwarded to the Ministry of Law & Justice for such action as it

			may

			deem fit to take in this behalf.

			There is no merit in these appeals which are dismissed with

			costs

			throughout.

			.......................J.

			(R.P. SETHI)

			.......................J.

			(Y.K.

			SABHARWAL)

			January 8, 2002

Tajobsindia (Senior Partner ) 29 December 2010

@ Ms. Avnish Kaur

Is abv. re. for me ?

b chandrakant (qa coor) 29 December 2010

Avnishji very very thanks for all this help. i also need such type of help. i m feeling very helpless without a proper guide. how can i contact you and discuss my case . i feel you can definitely help me in my case. please help me to get out of this dirty drama. i want to live my life happily with my parents and family.

one tortured husband

Bhaskar for SOCIAL JUSTICE (Legal & Social Activist) 30 December 2010

Section 10 of The Indian Divorce Act, 1869, provides for 7 grounds of dissolution of marriage of Christians. One of them is adultery coupled with cruelty.

None of these Acts, however, define as to what cruelty is.

The idea, the meaning and the concept of cruelty changes from time to time, varies from place to place and differs from individual to individual. It is not the same for persons situated in different economic conditions and status.

Perhaps this is the reason why the Legislature has not, in any of the Acts, defined as to what cruelty is and has left it to the best judgement of the Judiciary to decide as to what amounts to cruelty to a particular person in a particular set of circumstances.

Various Judges have, in numerous judgements, defined as to what amounts to cruelty, but once again those definitions are not general but are related to the facts of those particular cases.

The question of cruelty is to be judged on the totality of the circumstances. In order to term a conduct as cruel it should be so grave and weighty that staying together becomes impossible. A conduct to be cruel must be more serious than the ordinary wear and tear of marriage.

You will be surprised to know that out of 100 cases of divorces, in 95 cases, the ground for divorce is cruelty and in the majority of them the cruel conduct complained of is physical violence. However, cases of mental cruelty are also not unknown to our Courts and, at times, complaints are made of a spouse afflicting cruelty upon another, without physical violence, just by his or her conduct of saying something or refraining from doing something.

By cruelty we normally think a conduct, a behaviour, an act of physical violence. The

normal idea of cruelty in the common man's mind is assaulting somebody. However cruelty as a ground for matrimonial relief is just not physical violence. Cruelty as a ground for divorce need not be physical only. It may be mental. And believe me, mental cruelty is of a worse kind than that of physical violence.

A wife's conduct of :

- humiliating her husband in the presence of family members and friends,

- taunting her husband on his physical incapabilities,

- denying him access to physical relationship,

- neglect,

- coldness and insult,

- deliberately wearing clothes which her husband dislikes,

- purposely cooking food which her husband is not fond of,

- visiting her parent's family off and on against her husband's wishes,

- undergoing an abortion despite her husband asking her not to do so,

- threatening to commit suicide,

- refusing to do household work,

- keeping husband outside the door of house,

- complaining to husband's employer,

- disobedience,

all these are not acts of physical violence but yet it has an effect on the husband's mind and due to this, the husband's health suffers and therefore these acts can be termed as cruel.

james (pro) 06 February 2011

Can any one share judgments for below CRUELTY as held by SC/HC in various judgments

1. Declining to go to matrimonial home even when her father-in-law had died ...

2. Not attending funeral ceremony of father-in-law ...

3. Not discharging marital obligations ...
Not understanding responsibilities of a house wife ... Not understanding ways of world

Many thanks for your help.

Ambika (NA) 06 February 2011

Bhaskar ji, please check about refusing to prepare the food ....this particular point was( I had read in one of the SC judgements, I have to hunt for it to post it) not taken as cruelty in one of the judgements from SC. Again all these facts which you have so clearly mentioned would be seen within a certain context...and do not stand absolute in themselves

Not undertanding responsibilities of a housewife is a very very vague term so is way of the world as we do not live in a static world...

Disobedience also is very vague and can be countered...in equal relationships there is no subordination and domination, the use of the word disobedience conveys that one orders about and the other one obeys...gone are the days when housework was considered or managing the house was considered as good for nothing work and the status a housewife was ascribed to was subordinate to husband, household work is now considered as one of the productive but unpaid work and there is now strong advocacy to include the value of the household work in GDP.

A woman wants to wear salwar Kameez and husband wants her to wear Sari...I am not sure whether wearing salwar kamiz would be considered as crulty by the honorable court...

I know we would eventually differ in our views, but stil I consider it worth the while to express mine and read some of you.

Bhaskar for SOCIAL JUSTICE (Legal & Social Activist) 07 February 2011

Ambika Ji,

I do agree that this is a small issue may be husband has denied for something so wife denied preparing food etc. but here we are talking about legality of these charges wheter they fall under the category of cruelty or not.

Arup (UNEMPLOYED) 07 February 2011

please check about refusing to prepare the food ....this particular point was( I had read in one of the SC judgements, I have to hunt for it to post it) not taken as cruelty in one of the judgements from SC

YES, NO CRUELTY.

Arup (UNEMPLOYED) 07 February 2011

THERE IS A CLASH BETWEEN PERSONAL LIBERTY AND MATRIMONIAL CRUELTY.

WHERE IS THE LIMIT?

WHERE IS THE LINE TO DEVIDE BOTH SIDES..

Atish (Proprietor) 01 March 2011

Dear Sir,

My case is exactly based on this case which came in the Pune Mirror last year. Sir could you please guide me as to where I could obtain the case law from and what section was it under. I am fighting under the Shia act.

Regards

atish

Avnish Kaur (Consultant) 01 March 2011

its a persistent refusal to cook food without any genuine justification to be taken as cruelty.

courts are not fools to take a wife fallen ill not cooikng food as cruelty.

pujols20 (Techie) 02 March 2011

Can someone please post the judgements for these grounds below.

- humiliating her husband in the presence of family members and friends,
- coldness and insult,
- visiting her parent's family off and on against her husband's wishes,
- refusing to do household work,

Thanks !

Atish (Proprietor) 02 March 2011

I thank all who have answered me on the above issue.

Regards

Atish

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