‘Cruelty’ as a ground for Divorce – The Blog of Daksh Pandit

Section 13 of the Hindu Marriage Act, 1955 [“the Act”] postulates various grounds upon which the husband or wife can file a petition before the court seeking dissolution of marriage. The scope of this article is confined to one of the grounds viz. ‘cruelty’ envisaged in Section 13(ia) of the Act which entitles the parties to file a petition seeking dissolution of marriage on the ground that after solemnization of the marriage, the petitioner was treated with cruelty by his or her spouse. However, the dilemma arises when one has to attribute what kind of acts amounts to cruelty as the Act nowhere defines cruelty, therefore, the definition of “cruelty” has been left to the interpretation of courts. In Shobha Rani vs Madhukar Reddi ¹, the Supreme Court recognized two facets of cruelty viz. physical and mental. While the courts will have no problem in detecting the physical acts of cruelty, it is the mental aspect which requires deliberation and determination by the courts. In this regard, in Shobha Rani (supra), the Supreme Court introduced two-fold approach to determine mental cruelty viz.

The enquiry must begin as to the nature of the cruel treatment.
The impact of such treatment in the mind of the spouse i.e. whether it caused reasonable apprehension that it would be harmful or injurious to live with the partner.

The court observed as follows-

“The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties.

The Court further observed that ultimately, it is a matter of inference that is to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, the court acknowledged that there may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal in which case the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted and it is immaterial whether the spouse intended to cause mental cruelty or caused it unintentionally upon the Petitioner. The Supreme Court categorically held that intention is not a necessary element in cruelty. In V. Bhagat vs D. Bhagat², the Supreme Court further defined mental cruelty as follows-

“18. Mental cruelty in Section 13(1)(ia) 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 situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such 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 ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations regard must also be had to the context in which they were made.”

Therefore, whether a spouse has been subjected to cruelty has to be governed from case-to-case basis by taking all the facts and circumstances into account and no straight jacket formula can be applied to determine cruelty. In Parveen Mehta v. Inderjit Mehta³, the Supreme Court further observed that in discerning whether a spouse has been subjected to cruelty, the inference has to be drawn by taking all the facts and circumstances into consideration, cumulatively. In case of mental cruelty, it is not a correct approach to take an instance of misbehavior in isolation and then pose a question whether such behavior is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty. Therefore, a consistent pattern must be shown by the Petitioner that the acts of cruelty were repeatedly inflicted upon the Petitioner by the spouse and one isolated incident of cruelty cannot warrant a decree of divorce on the ground of cruelty.

Burden of Proof

The Supreme Court in the matter of Dr. N.G. Dastane vs Mrs. S. Dastane⁴ held that the burden of proof in a petition of divorce lies on the petitioner, however, given the proceedings under the divorce petition are of civil nature, therefore, the burden of proof need not be of beyond a ‘reasonable doubt’ which is required in criminal proceedings. The court referred to Section 23 of the Act which categorically states that before passing the decree of divorce, the court needs to be ‘satisfied’ on matters mentioned in clauses (a) to (e) of the Act. The Supreme Court observed that the word ‘satisfied’ must be construed to mean ‘satisfied’ on a preponderance of probabilities and not ‘satisfied’ beyond a reasonable doubt. As mentioned hereinabove, from the conduct and facts and circumstances itself, the court is empowered to draw an inference as to whether the petitioner was subjected to cruelty or not. The judgment of Supreme Court in Dr. N.G. Dastane (supra) was quoted with approval by Supreme Court in a recent judgment viz. Smt. Roopa Soni v. Kamalnarayan Soni⁵

What kind of acts amounts to mental cruelty

While it is a matter of determination from a case-to-case basis by cumulatively taking into account the instances of cruelty. However, as observed in Shobha Rani (supra) there are conducts or instances which per se amounts to cruelty in which case the court need not venture into the enquiry whether such conduct adversely impacted the Petitioner. In the matter of Samar Ghosh vs Jaya Ghosh⁶, the Supreme Court, although reiterated that no uniform standard can be laid down for determining cruelty, however, deemed it appropriate to enumerate some instances of human behavior which may come under the parameters of ‘mental cruelty’. The said instances enumerated by the court are mentioned hereinbelow which are only illustrative and not exhaustive-

If after taking into consideration the complete matrimonial life of the parties, it is found that the parties have suffered acute mental pain, agony, and suffering which would make it impossible for the parties to cohabit with each other then it would come within the broad parameters of mental cruelty.
If, on a comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that the situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
Mere coldness or lack of affection cannot amount to cruelty, however, frequent rudeness of language, petulance of manner, indifference and neglect may reach such degree that it makes the married life for the other spouse absolutely intolerable and thus amount to cruelty.
Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of the other for a long time may lead to mental cruelty.
A sustained course of abusive and humiliating treatment calculated to torture, discommode or render the life of the spouse miserable.
Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of, and the resultant danger or apprehension must be very grave, substantial and weighty.
Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction. Emotional upset may not be ground for grant of divorce on the ground of mental cruelty.
Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.
The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
If a husband submits himself for an operation of sterilization without medical reasons and without consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
Unilateral decision of either husband or wife after marriage not to have child from marriage may amount to cruelty.
Where there has been a long period of separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on contrary, it shows scant regard for feelings and emotions of the parties. In such situations, it may lead to mental cruelty.

In supplementary to the above, it is also pertinent to mention decisions of High Courts and Supreme Court, wherein instances of cruelty have been discussed on the basis of which, decree of divorce has been granted-

In K. Srinivas vs K. Sunita⁷, the Supreme Court has categorically held that unsubstantiated allegations of dowry demand against the husband and his family members which have the potential impact on the reputation of the parties, when made without any sense of accountability or care for its consequences, amounts to cruelty.
In Vijaykumar Ramchandra Bhate vs Neela Vijaykumar Bhate⁸, the Supreme Court held that gross unsubstantiated allegation of infidelity in a marriage which potentially tarnishes reputation of spouse, amounts to cruelty.
In Prabin Gopal vs Meghna⁹, the Kerala High Court observed that a child has right to the love and affection of both parents. Similarly, the parents have the right to receive the love and affection of the child. Any act on the part of the one parent calculated to deny the love and affection of the child to the other parent by alienating the child from him/her amounts to mental cruelty.

Can Irretrievable breakdown of marriage be a ground for divorce?

Notably, Section 13 of the Act does not envisage irretrievable breakdown of marriage, a ground of divorce. However, in a given facts and circumstances wherein the husband and wife have completely failed to find a common ground between them and resorted to pursuing a divorce litigation laying vile allegations against each other, not only exacerbating the semblance of remaining relationship between them but completing closing the door upon a possible resolution, so much so that even if the parties are dissuaded by the court from filing or pursuing the divorce proceedings, the relationship between the parties would only remain on the paper and the very sanctity of the institution of marriage is rendered nugatory. Should the court, in such cases, put quietus to the matrimonial bond between the parties by granting the decree of divorce? If yes, then as a sequitur, are courts vested with the power to grant divorce to parties on a ground which does not find mention in the statute book viz. irretrievable breakdown of marriage?

Although, the High Court and the District Court are not vested with the powers to go beyond the statute however, the Supreme Court is equipped with the powers bestowed by Article 142 of the constitution, to pass such order or decree as is necessary for doing complete justice. In Shilpa Sailesh vs Varun Sreenivasan¹⁰, the constitution bench of the Supreme Court was posed with the question that whether the Supreme Court, in exercise of power under Article 142(1) of the constitution of India, can grant a decree of divorce when, upon the prayer of one of the spouses, it is satisfied that there is complete and irretrievable breakdown of marriage, notwithstanding the opposition to such prayer by the other spouse? Before arriving at the conclusion, the Supreme Court referred to decisions in which the Supreme Court had exercised powers under Article 142 to grant decree of divorce on the ground of irretrievable breakdown of marriage viz-

V. Bhagat vs D. Bhagat (supra)

In this case the husband filed a petition of divorce on the ground of adultery and mental cruelty against his wife. The wife in her written statement denied the allegations and in turn accused the husband and his family of being unsound mind and hallucinating things. The case had been pending for 8 years and despite directions of the Supreme Court, the trial court was unable to expedite the trial. Allegations were laid by the husband that the wife was attempting to stall the proceedings. The Supreme Court noticed that the marriage has turned into hell between the parties as both the spouses have levelled serious allegations against each other. The husband calls the wife adulteress, and the wife calls the husband a lunatic. The Supreme Court observed that in view of the serious allegations, the parties cannot be asked to live with another. The court further observed that despite the wife’s allegations against her husband viz. lunatic, etc. the wife says that she wants to live with the husband. Therefore, the obvious conclusion is that she has resolved to live in agony only to make life of her husband a miserable hell which amounts to mental cruelty to the husband. In view of the said facts and circumstances, the court held that it is abundantly clear that the marriage between the parties has broken down irretrievably and there is no chance of their living together again. The court invoked plenary powers under Article 142 and granted the decree of divorce.

Munish Kakkar vs Nidhi Kakkar¹¹

The parties had been engaged in various litigations, including divorce proceedings for nearly two decades. However, the parties opposed divorce by mutual consent. The Respondent – wife was based in Canada, to where she had shifted, and was statedly taking medication for depression. The Appellant – husband complained of loneliness and lack of co-habitation, causing mental and physical torture. Several attempts to mediate, and efforts made by counsellors, psychologists, the panchayat and even the courts did not yield results. In these circumstances, the Supreme Court exercised the power Under Article 142(1) of the Constitution of India, recognizing the futility of a completely failed and broken-down marriage. While observing that there was no consent of the Respondent – wife for grant of divorce, the Court felt that there was no willingness on her part either to live with the Appellant husband. What was left in the marriage were bitter memories and angst, which increased with the passage of time, as the Respondent – wife was reluctant to let the husband live his life by getting a decree of divorce.

Sivasankaran vs Santhimeenal¹²

The marriage had taken place in February 2002, and after about a year, divorce proceedings were initiated and the decree of divorce was passed in 2008 Under Section 13(1)(i-a) of the Hindu Marriage Act. The Appellant – husband had remarried within six days of the passing of the decree of divorce. The Respondent wife filed an appeal and the dispute had remained pending till it reached Supreme Court. Attempts to resolve the dispute through mediation and settlement between the parties bore no fruit. The Respondent – wife was resistant to accept the decree of divorce, even though she was aware that the marriage was but only on paper. Observations on the difficulty faced by women in the form of social acceptance after a decree of divorce, and also the need to guarantee financial and economic security were elucidated. However, the Supreme Court, relying on the earlier decision in Munish Kakkar (supra), observed that there was no necessity of consent by both the parties for exercise of powers Under Article 142(1) of the Constitution of India to dissolve the marriage on the ground of irretrievable breakdown of marriage, albeit the interest of the wife is also required to be protected financially so that she may not have to suffer financially in future and she may not have to depend upon others. Accordingly, the Supreme Court passed a decree of divorce by exercising the jurisdiction Under Article 142(1) of the Constitution of India.

Therefore, by referring to the above cases, the Supreme Court concluded that a marriage can be brought to an end by exercise of power under Article 142 of the Constitution in case of irretrievable breakdown of marriage. However, the Supreme Court added a caveat and stated that the grant of divorce on the ground of irretrievable breakdown of marriage by the Supreme Court is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that ‘complete justice’ is done to both parties. The court should be fully convinced and satisfied that the marriage is unworkable, emotionally dead, and beyond salvation. The factum of irretrievable breakdown of marriage must be factually determined and firmly established. For this purpose, the following factors need to be taken into consideration-

Period of time the parties had cohabited after marriage.
When the parties had last cohabited.
The nature of allegations made by the parties against each other and their family members.
The orders passed in the legal proceedings from time to time.
Cumulative impact on the personal relationship.
Whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation and when the last attempt was made, etc.
The period of separation should be sufficiently long and anything above six years would be a relevant factor.
The above facts have to be evaluated keeping in view the economic and social status of the parties, including their educational qualification, whether the parties have any children, their age, etc.

Conclusion

Cruelty as a ground for divorce is routinely taken by an erring husband or wife, however, in order to establish cruelty, especially mental cruelty, it is imperative for the Petitioner to show a persistent pattern or abuse repeatedly inflicted upon the Petitioner by the spouse. The Act does not define ‘cruelty’ as it takes within its sweep a number of instances depending upon the facts and circumstances. The Supreme Court has further held that a set of facts stigmatized as cruelty in one case may not be so in another, as cruelty largely depends on the kind of lifestyle the parties are accustomed to or their social and economic conditions. Therefore, the entire matrimonial life of the parties has to be considered in order to come to a logical conclusion and in exceptional circumstances, as observed hereinabove, the Husband or Wife, as the case maybe, can approach Supreme Court for grant of decree of divorce on the ground of irretrievable breakdown of marriage.

By Daksh Pandit