Divorce Law in India – Cruelty as a ground for Divorce

Cases for divorce are increasing on a daily basis with marriages becoming more fragile then ever. However, one needs to understand that under Indian perspective especially Hindu Marriages are always treated as a sacrosanct and not a mere contract (like Muslim marriages) and hence being treated as sacrosanct; the courts try to make sure that the marriage can be saved either by mediation or compromise. Giving a divorce degree by a court is the last resort when it comes to the conclusion that the marriage is beyond repair because of the FAULT of one Spouce.

The entire process of divorce is a very tedious process if the other party is contesting (i.e. against the divorce) and is not willing to give divorce.

Under Hindu Marriage Act of 1955, the common grounds of dissolution of marrige (i.e. grounds on which divorce can be granted) are –

    • Cruelty
    • Desertion
    • Adultery
    • Unsoundness of mind or mental disorder
  • Other less common grounds are
    • Change of religion
    • Vulnerable disease
    • Person not heard of for 7 Years

The most common ground for divorce in India is CRUELTY. Where one spouse (generally woman) alleges cruelty from husband or her in-laws. This is the most common sighted ground for getting a divorce in India.

What is CRUELTY?

Cruelty – Basically means being cruel. There is no specific definition of cruelty mentioned in any legislative text.

  •  It has been explained by various Judicial Cases – it can differ from person to person, case to case, situation to situation.
  • Conduct that may amount to cruelty in one case may not amount the same in another case as it depends upon situation, experience and relation between the parties.

Matrimonial offences are between a particular man & a particular woman

  • Cruelty has not been defined.
  • Ravi Kumar’s case –Cruently can be of infinite variety it may be subtle or brutal by gesture or words. It can be physical or any other form. Can be in silence or attitude. In such situation all these factors commutatively considered and amounts to cruelty.
  • Physical and mental condition of parties need to ascertained.
  • Long period in delay in proceeding cannot be a ground of cruelty.
  • Standard of Proof required on cruelty is based on preponderance of probabilities and not beyond reasonable doubt.
  • It also depends on lifestyle of parties, their economic status.
  • After the amendment 1976 –
    • Physical cruelty – fact and degree – demand of dowry – its illegal and not paid results in ill treatment of women

Following are the various scenarios which Courts have ruled as being CRUEL or NOT.

  1. Physical violence is not absolutely essential to establish cruelty. Consistent course of conduct inflicting immesuralble mental agony and torture may well constitute cruelty.
  2. A single act of violence which is of grievous nature and is inexcusable may constitute cruelty.
  3. Some incidence of beating if established are more than enough.
  4. A mere plea if other spouse is using filthy and abusive language cannot be expected as proved and establish. Give particulars. – For which inference can be drawn.
  5. Allegation should not only be pleaded but also should be PROVED. Specific incidence of cruelty should be pleaded – Vishnu Shankar pandey course
  6. J Nanda case – some wear and tear of marriage
    • Co-habitation cannot be destructed because of different temperament of spouses. It has to be accepted for better or worse. Ordinary instances of cruelty does not amount to cruelty.
  7. Threat to committing suicide   – Dastana Case –  = Cruelty = pankaj mahajan case.
  8. unnatural sex with wife  Vineet joglekar – = cruelty.
  9.  Long period of without sex by wife = cruelty – vishwanathan case
  10. Husband proved to be impotent = cruelty
  11. Wife consistently says to live alone with him and not parents = Not cruelty BUT without any justifiable reason still insist then = CRUELTY.
  12. filling of police complaint against husband – SC – Shrinivas Rao –  = Not cruelty BUT if the allegation are proved FALSE by court of law then it amounts to CRUELTY.
  13. aborting by wife without consent of husband = cruelty – shama ghose case and suman kapor case.
  14. Loans taken by husband – creditors come and ask for loan = cruelty manpreet verma – husband taking loan in name of wife and not paying
  15. = wife alleged reckless and false allegation against husband and wife = Cruelty
  16. new wedded – cancer or severe hearing loss = cruelty
  17. scandous allegation – against husband and all family members
  18. suman singh – some isolated incident long past – condoned – now filling petition – NO Cruelty
    • acts have to be in recurring in nature. Continuous one – proximate to the filling of the case.
  19. other spouce refuses to participate in the proceeeing inspite of the notice being served  – considering other allegation of the petition = this itself constitute cruelty = sukidina hidath case.
  20. A persist course or dishonest course – cruelty
  21. Persistent drunkenness and then conduct that inflict pain and misery would amount to cruelty
  • Manita saxena – unsoundness of mind as a case of cruelty = CRUELTY – but if the conduct is Grave. It is to protect the spouce from further abuse.
  • Summa Ghosh SC Case on Cruelty – about 14 illustrations have been mentioned
  • Man is always saying she is listening to her mother – interference by parents – adding fuel to the fire.
  • Changing thining of the yong – concept of cruelty is also changing –
  • Every act has to be judged in relation attended circumstances and mental condition of the parties.
  • Shoba Rani case – new type of cruelty may comeup
  • Categories of cruelty are not closed – concept of cruelty change with the time. Human conduct and Human Mind gives a preceise what amount to cruelty.
  • As times are changing we are moving from fault theory to irretrievable breakdown of theory
  • Naveen Kholi case – started this irretrievable grounds of marriage – in realty the marriage is dead – This ground is not available to the trial court. Only the Supreme court u/s 142 can dissolve marriage on this ground.
  • Jordon Dingre – Munish Thakar Case 2020