The Hon’ble Justice of the High Court at Calcutta, H.L. Dattu, J. once while pronouncing a judgement had observed that "Marriages are made in heaven, or so it is said. But we are more often than not made to wonder what happens to them by the time they descend down to earth."
All the statutory matrimonial laws in India have laid down the grounds of divorce to attain a certainty in the matter and to avoid unnecessary troubles for both the parties to a failed marriage. Of all the grounds, the most commonly sought for ground for divorce is cruelty.
Cruelty, no doubt constitutes a strong ground for divorce of marriage as cruelty is the very antithesis of love and affection. – (2000)II DMC 126 (Cal - DB). Interestingly, however, the word “cruelty” has not been defined in these matrimonial laws, instead, have purposefully evaded to render or even to attempt to define the word and thereby limiting or circumscribing its potential. By not defining the word ‘Cruelty’, Legislature has quite rightly given the term ample scope and opportunity to grow and mature rather than being peddled by stereo-typed and straight-jacket interpretation and choke itself to insufficiency.
In A. Jayachandra v. Aneel Kaur reported in (2005) 2 SCC 22, the Apex Court observed, "The expression cruelty has not been defined in the Act. Cruelty can be physical or mental...” Thus the statutes have very deftly touched upon the word to include both the tangible and the intangible aspect of the term ‘Cruelty’ and left the rest upon the Judiciary to decide on the comprehensiveness and scope of the word.
The Shorter Oxford Dictionary defines 'cruelty' as 'the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another's pain; mercilessness; hard-heartedness'.
The Hon’ble High Court at Calcutta in a case reported in (1996)2 Cal HT (HC) 42 had held that it is immensely difficult to provide a comprehensive definition of the word “cruelty”.
Lord Stowell's proposition in Evans v. Evans (1790) 1 Hagg Con 35 was approved by the House of Lords and may be put thus: before the court can find a husband guilty of legal cruelty towards his wife, it is necessary to show that he has either inflicted bodily injury upon her, or has so conducted himself towards her as to render future cohabitation more or less dangerous to life, or limb, or mental or bodily health. He was careful to avoid any definition of cruelty.
The concept of cruelty has been summarized in Halsbury's Laws of England [Vol.13, 4th Edition Para 1269] as "The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits."
Following from the definitions and a host of judicial decisions, it may be safe to say that cruelty, as a ground for divorce, can be classified under two broad headings of Physical cruelty and Mental cruelty.
Physical cruelty has a very clear cut understanding of the term. As the term suggests, there has to be cruelty and that too physical – cruelty of any form which is met upon the body of an individual. It is as it sounds shall be perceivable and thus physical cruelty is a comparatively easier allegation to prove. Any physical injury attributable to any act of the accused spouse shall amount to physical cruelty.
“Unlike physical cruelty, ‘Mental Cruelty’ is difficult to establish; the anguish, disappointment and frustration caused in the mind of one spouse have to be inferred from the attending circumstances.”— Parveen Mehta v. Inderjit Mehta (2002)5 SCC 706
Therefore as we see, mental cruelty is a state of mind caused by the some acts of the accused spouse and hence it is difficult to ascertain for the Court the mental state of a person in black and white and as such the term Mental Cruelty is a more than difficulty concept to comprehend and thereafter to define.
However, let us first discuss a few definitions laid down by various jurists in their attempt to shed some light on the topic:-
The term "mental cruelty" has been defined in the Black's Law Dictionary [8th Edition, 2004] as: "Mental Cruelty - As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse."
In 24 American Jurisprudence 2d, the term "mental cruelty" has been defined as under: "Mental Cruelty as a course of unprovoked conduct toward one's spouse which causes embarrassment, humiliation, and anguish so as to render the spouse's life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse."
But the moment one tries to contemplate “what is mental cruelty ?” one will inevitably end up with the answer “anything which causes mental agony to the other spouse”. As easy as it may sound, the moment one tries to fathom the factors which agonies an individual’s mind is the very moment that the horizon of possibilities open and one is awestruck as to discern the variety of combinations and permutations at work.
In Hanumantha Rao v. S. Ramani, the Apex court laid down, “Mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and husband and as a result of which it becomes impossible for the party who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to live with the other party” – (1999)3 SCC 62: (1999)I DMC 628(SC)
In Savitri Pandey v. Prem Chandra Pandey reported in (2002) 2 SCC 73, we find a faint smell of definition of the term- "Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other.”
But from practical experiences we can say that what may agonies ‘A’ may not agonies ‘B’; again something which does not cause agony to ‘C’ may agonies ‘B’. Therefore mental cruelty, as we see, is a relative term and thus it is upon the court to decide from case to case what amounts to mental cruelty and what not. However the interesting twist comes when we find that what may be said to have amounted to mental cruelty in one case, may very well be rejected as a cause of mental cruelty in another.
No particular conduct can be dubbed as cruelty in all circumstances. The court wants to see that the party aggrieved and pleading on a fact or a series of facts being causes of mental cruelty has to make out a specific case that the conducts/ facts alleged, actually amounts to cruelty. – AIR 2011 SC 114.
In a landmark judgement passed by the Supreme Court of India in Samar Ghosh v. Jaya Ghosh, the Apex court has held that “there cannot be any comprehensive definition of the concept of 'mental cruelty' within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental 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. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.” – (2007)4 SCC 511
So the bone of contention in cases relating to mental cruelty is that ‘What constitutes Mental Cruelty?’ since a proper definition is neither available nor desired, the best way to comprehend the concept the mental cruelty is by analysing the components or facts which constitute mental cruelty.
In this context, the case of Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr., reported in (1981) 4 SCC 250, deserves a special mention wherein the Apex Court stated that the concept of legal cruelty changes according to the changes and advancement of social concept and standards of living.
Thus cruelty, more so mental cruelty, is not a fixed or stagnant idea of law, but a dynamic and an ever changing legal aspect which is to be understood with respect to the time and social norms and a few more variables.
In Rajani v. Subramonian AIR 1990 Ker. 1 the Kerala High Court had aptly observed that the concept of cruelty depends upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance, judged by standard of modern civilization in the background of the cultural heritage and traditions of our society.
In Gananath Pattnaik v. State of Orissa reported in (2002) 2 SCC 619 the Supreme Court held, "The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs.
It is thus a well settled principle of law that similar or same conducts may not amount to mental cruelty in all cases. The court is to take in to account the backgrounds of the parties, the social status of the parties and upbringing of the parties in deducing whether mental cruelty has actually taken place in that case. – (2007)4 SCC 511
Time and again it has been held by various courts that “the concept of cruelty has varied from time to time, from place to place and from individual to individual according to the social and economic status of the parties.” – (2004)II DMC 233 (All-DB)
It is thus an accepted view that there cannot be any straight jacket formula for mental cruelty. “To constitute cruelty, Physical violence is not absolutely necessary. Inflicting mental agony is also cruelty. Mental cruelty may constitute of verbal abuse and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other spouse.” – AIR 1988 Ker 244
But we must keep in mind that “the word cruelty as a matrimonial offence has been used in its ordinary sense. It has not esoteric or artificial meaning. There must be some grave or weighty matters to constitute cruelty.” – (1964)I WBLR 1085
Now, once it is established that cruelty has been perpetrated by one spouse on the other, in any form whatsoever, irrespective of the motive or intention of such accused party, cruelty shall be considered to have been done. Therefore as laid down in Gollins v. Gollins reported is (1963)3 All ER 966 – there may be cruelty without the intention to injure.
In 2007, in the case of Samar Ghosh v. Jaya Ghosh, a three Judge Bench of the Supreme Court laid down some very vital conditions and components of mental cruelty. In the instant case, the Apex Court was of the opinion that “the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.
No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour 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.
(vii) 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.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) 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.
(x) 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 behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the 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.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous 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 the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” – (2007)4 SCC 511
Having discussed the components or constituents of mental cruelty, let us now discuss some specific cases where in a particular act may in most cases than none be construed as cruelty being perpetrated unless disproved. Mental cruelty can be said to have been caused on the following grounds:-
· Abortion without consent: Aborting foetus in the very first pregnancy by a deliberate act without consent of the husband shall amount to cruelty on the husband by the wife – (1983)I DMC 182 and –(1987) Del 86
· Abortion without consent of the husband causes mental torture and deprives the husband of the pleasure and pride of being a father. – AIR (1955) All 253
· However, giving birth to an illegitimate child shall amount to cruelty on the husband and where the wife admits as to such illegitimacy of the child given birth, cruelty shall be construed to have been committed by the wife on the husband. – (1950)2 All ER 398
· Cruelty to children for the purpose of causing pain and suffering to the other spouse also amounts to mental cruelty. – (1950)2 All ER 398
ð False accusations: Raising false charges of infidelity against the spouse shall be regarded as cruelty of the falsely accused spouse.
· Again false accusation by one spouse on the other of living in adultery or of unchastity or that of having illicit relation with any person out of the wedlock shall also amount to cruelty. – AIR 1985 Cal 431, -- AIR 1986 Cal 150 and – AIR 1989 Cal 120
· However, mere allegations that the husband was living with another woman in illicit intimacy was not by itself cruelty – (1991)I DMC 296
· It is also to b borne in mind that for an allegation to be termed as “false” the same has to be disproved categorically. Mere failing to prove a fact for dearth of material evidence does not ipso facto mean the same to have been disproved i.e. false. If allegation is not proved for want of sufficient evidence, no cruelty shall be construed to have been committed unless it is proved that the allegations are totally false. – (2007)1 Cal HN 503.
ð Scandalous and baseless allegation during the litigation against spouse and family members cannot be brushed aside lightly.
· Irresponsible and scandalous allegations in the written statement incriminating the husband and his relatives shall amount to cruelty against the husband. – 1978 Raj 140; – (1994)II DMC 346; – 1994 SC 710; – (2004)I DMC 954 (MP).
· False accusation by one party on the other of having extramarital affair is also a good ground of cruelty – (1990)1 Cal LJ 53, – 1994 Cal WN 769
· Wife made baseless and false allegation in the written statement. In oral evidence the wife also made baseless and scandalous allegations against the husband. It shall amount ot cruelty – AIR 2001 Ker 71; – AIR1987 Del 52; – AIR 1982 Del 107
· When wife has made false allegations against her husband in the written statement and also while giving evidence strongly supported her allegations made against the husband, the court held it as an instance of cruelty on husband. – (1993)1 Cal HN 213; – (1998)I DMC 37 Cal-DB; – (1996)2 Cal HN 46
ð However in a judgement reported in the AIR 2005 P&H 134, the High Court states that “Merely because there are allegations and counter allegations which may be false, it cannot be interpreted automatically that the parties practised cruelty nor can that be the grounds for dissolution of marriage”
· Filing of false case under section 498A of Indian Penal Code with the sole object to harass the husband and his near relations is also solid ground of cruelty. The embarrassment, humiliation and suffering that is caused owing to the arrest and detention of husband and family members in a false case under section 498A shall enable the husband to divorce the wife on the soul ground – 2011(2) CCC 339 (Bom) and (1996)I DMC 598 MP. False case under sections 363, 366, 376 also amounts to cruelty on the accused spouse. – (1996)I DMC 620
· However, a complaint, under section 406 or 498A, which is pending adjudication initiated by the wife cannot be pleaded as a ground for cruelty – (1996)I DMC 127.
· Repeated demand of dowry and mental torture amounts to mental cruelty – AIR 1988 SC 958, however a false case initiated under the garb and pretext of false complain of demand of dowry with an ulterior motive to harass the husband is mental cruelty on the husband.
· Again, writing defamatory complaints and letters to the employers and colleagues of the husband would amount to cruelty by the wife. – AIR 1986 Del 60; – AIR 1988 Del 14; – (1995)I DMC 329
· Complaints or letters to superiors of spouse containing false and baseless allegations would amount to cruelty – (2000)10 SCC 540.
⇒ Therefore as we can see that the mere term “mental cruelty” includes a very vast and never-ending stretch of fantastic possibilities and thus the legislature has left the interpretation of the same at the hands of the judiciary. However, while considering the concept and the word in context of its legal diction, as a ground for divorce, court shall consider a few tips and regulations as has been laid down in various precedents:-
“The court should consider whether the conduct of the counter-petitioner(opposite party) is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the court can find that there is cruelty on the part of the counter-petitioner.” – (2002)2 SCC 296
In V. Bhagat vs. D. Bhagat, (1994)1 SCC 337, the Apex court has in an unambiguous and clear language put down the meaning of the term in a nutshell. “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 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.”
However, just as a solitary incident of cruelty is not ordinarily enough to constitute mental cruelty, arguements and fights over trivial and mundane matters of life how so prolonged it may be, shall also not be considered to have constituted as cruelty against the petitioner. “Cruelty being a question of fact the circumstances of each case must be taken into consideration including the physical and mental condition and the position in life of the parties. However he conduct complained of must be serious and higher than ordinary wear and tear of married life” – Lord Denning in MC Ewan vs. MC Ewan –1964 108 Sol. Jo 198 (CA)
However, having all this, we still find ourselves at a juncture from where we can still not provide a proper or definite definition of the term; we can only try to explain the term in the light of various precedents.
In the words of Lord Watson, “Any definition would be either so wide as to be nugatory or too narrow to fit in ever varying events of human life. Neither can we define other terms applicable to human conduct such as ‘honesty’ for instance or ‘good faith’ or ‘malice’ or danger’ or ‘reasonable apprehension’ such rudimentary term elude aprioric definition. They can be illustrated but not defined.”
“The categories of cruelty are not closed. Each case may be different. We deal with the conducts 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 cases of cruelty may crop up in any case depending upon the human behaviour, capacity or incapacity to tolerate the conduct complained of – such is the wonderful realm of cruelty” – Lord Denning in Sheldon v. Sheldon (1966)2 All ER 257
In Shobha Rani vs. Madhukar Reddi, AIR 1988 SC 121 the Apex court says “There has been a marked change in the life around us. In matrimonial duties and responsibilities in particular, there is a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case. 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. The Judges and lawyers, therefore, should not import their own notions of life. Judges may not go in parallel with them. There may be a generation gap between the Judges and the parties. It would be better if the Judges keep aside their customs and manners. It would be also better if Judges less depend upon precedents.”
Therefore it has been quite rightly and aptly held by Lord Denning, L.J. in Kaslefsky v. Kaslefsky [(1950) 2 All ER 398, 403] that, "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 imperilled."
Soumyadeb Sinha (5th year)
Department of Law