This blog is inscribed by Yashika Goplani.
Divorces have developed as a conceivable result of relationships today. The separation rates in the present era are expanding dynamically and the reason behind many of them is ‘cruelty’ suffered by the spouse and the current pandemic situation has increased the rate indeed. Mental cruelty has a more decimating impact on wellbeing than physical viciousness.
The Matrimonial Causes Act of 1857 coined cruelty as a ground for divorce but the jurisprudence of mental cruelty began from the Russell case (1897) where cruelty was defined as ‘it consists of the wilful infliction of bodily or mental pain”. It was not clear whether mental cruelty contains intention as an important element or not. In some cases it was considered that if there is no injury caused intentionally, then there is no cruelty. But mental cruelty is a subjective topic and so intention is not considered as an element for proving it.
The provisions of Indian statutes which consider cruelty as a ground for divorce and judicial separation are, Section 13(1) (i) of Hindu Marriage Act, 1955;
- Section 10 (1) (x) of The Divorce Act, 1869;
- Section 27(1) (d) of The Special Marriage Act, 1954;
- Section 32 (dd) of The Parsi Marriage and Divorce Act, 1936;
- Section 2 (viii) of The Dissolution of Muslim Marriage Act, 1939;
but none of them defines what constitutes cruelty. Therefore, it has been a topic of debate over a period of time. The meaning and concept of mental cruelty evolved through judicial interpretations in India. The first case to identify mental cruelty in India was Dastane v. Dastane (1975), even before the inclusion of the same in the legislations. Under section 10(1) (b) of the Hindu Marriage Act, 1955, the treatment of the petitioner with such cruelty 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 amounts to cruelty for the purpose of applying for judicial separation.
The Concept Of Cruelty- Judicial Interpretation
Relief as far has not been given solely to physical cruelty but mental injury too. Even before including this word, cruelty was observed in N.G. Dastane (Dr.) v. S. Dastane (1975) [2 SCC 326]. There happened a recent case in the High Court of Kerala, Ranjith. P.C. v. Asha Nair, wherein an appeal was filed by the petitioner after the original petition was dismissed by the family court on not having enough evidence for proving cruelty by the respondent to him. But the court said that the family court went wrong in appreciating the evidence as something short of mental cruelty. It was claimed by the petitioner that the respondent forced him to leave his mother as she is causing trouble for her. This tantamount to torturing the husband although the court even stated that, No family is totally devoid of clashes among members constituting it. It is common for elders to scold and sometimes abuse youngsters. Making a daughter in law to do the house hold/domestic work is also not something unusual. But the court held that consistently poking the husband for separation from his family and threatening him of conducing suicide leads to mental cruelty and the same is not acceptable. It establishes an adequate ground for divorce and therefore, the dissolution of marriage is granted.
It was stated in A. Jayachandra v. Aneel Kaur (2005) [2 SCC 22] that, “cruelty’ has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional”. Through the judicial interpretations, it can be viewed that cruelty is considered only when the ill-conduct happens for a fairly long period and not on one isolated incident. The movie Thappad when viewed from the legal view raises the question that whether a slap can be the reason for divorce or not? Since it has happened for one single event it cannot be considered cruelty but can be a reason for a no-fault divorce. Although no-fault divorce is not yet acceptable in India, it is known by a different name, that is, “Irretrievable Breakdown of Marriage”.
Even in the case of Shobha Rani v Madhukar Reddi, where the husband and relatives on a regular interval demanded dowry was considered as cruelty. But small fights, in everyday life do not constitute mental cruelty.
Since mental cruelty is subjective, it includes many situations and is not restricted to only women. Husbands too suffer from it, some of the instances of the same are, if a wife threatens and makes suicide attempts several time if the husband did not make a separate house (A.P.Ranga Rao v. Vijayalakshmi), wife making irresponsible, baseless and wild allegations of lack of manliness and importance of the husband (Nirmala Manohar Jagesha v. Manohar Shriram Jagesha), Repeated allegations of adultery against husband by wife (Baliram v. Sumitra) and many more such examples.
COVID-19 situation has increased the chances of family abuse for women. The privacy needed for the spouses has deteriorated. A clinical psychologist Varkha Chulani said that “A lot of Indian marriages survive because people are out at work and socializing separately but this lockdown has compelled spouses who are not in sync with each other to cohabit in a limited space so all incompatibilities are thrown at each other’s face.” The pressure of working from home, managing household chores, child studies, and the private relationship between husband and wife has suppressed many people.
As marriages are considered a sacrosanct relation, divorces are treated as a source of shame in orthodox families, especially in India. This cruelty sometimes results in mental illness which is still a social stigma in our society. For divorced people, the suicide rate is 3.5 times higher than the normal rate.
In 2018, domestic violence against women was the top crime against women in India according to the National Crime Reports Bureau (NCRB). It is becoming difficult for the suffering women to follow the stay-at-home institution leading to a kind of mental torture. Constant sex demands by husbands against the wish of the wife, the threats by relatives are making the life of women hell, leading to depression and in making false moves. UN has aptly described women abuse during the lockdown as a ‘shadow pandemic’ situation.
Marriage is considered as one of the special elements of a human’s life and it cannot be dissolved unless there is a considerable reason for the same. Mental cruelty is one of the grounds which are more dangerous than the physical violence since one can barely express what he is going through in his mind. It straightforwardly impacts on the feelings of a person. But this cruelty is to be considered keeping in view a reasonable human being and not by taking into consideration a more emotional person since law works on reasonability.
· How Indian courts have seen mental cruelty as grounds for divorce (May 14, 2020), available at https://indianexpress.com/article/explained/explained-how-indian-courts-over-the-years-have-seen-mental-cruelty-as-grounds-for-divorce-6407154/.
· Salai varun, Can you file for divorce over ‘just a slap’ in India? A legal view on ‘Thappad’ (May 18, 2020), available at https://www.thenewsminute.com/article/can-you-file-divorce-over-just-slap-india-legal-view-thappad-124774.
· Shruti Mahajan, Making daughter-in-law do housework not unusual: Kerala HC declines to accept narrative that mother-in-law was villain in matrimonial life (May 31, 2020), available at https://www.barandbench.com/news/litigation/making-daughter-in-law-do-housework-not-unusual-kerala-hc-declines-to-accept-narrative-that-mother-in-law-was-villain-in-matrimonial-life.