The other day in my support group -- 360 degrees back to life -- I was involved in a healthy discussion with my colleagues about marriage and divorce. Both these topics arouse a lot of passion, especially in India, where we believe in the sanctity of marriage even as we are forced to confront the reality that divorce is on the rise. When one of the male members of the group remarked that "the law seemed to be tilted more towards women, especially in divorce cases", I decided to write about cruelty in divorce from the male's perspective.
What is cruelty under the Hindu Marriage Act?
S.13 (1) any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty...
In the legal context, "cruelty" is perhaps one of the most difficult concepts to define. The definition of cruelty varies from case to case, and is influenced variables such as the socio-economic status of the parties and the specific circumstances of the marriage. Whereas physical cruelty is more visible and easy to define - you can't argue much about the existence of a black eye or broken nose - mental cruelty is a far trickier beast to pin down in a marriage.
I recently handled an interesting case in which both the spouses, let's call them Vikram and Sunaina, worked in the aviation industry; he was a pilot and she an airhostess. After one year of marriage Sunaina's behaviour took a bizarre turn. She started drinking heavily and dating other men. When Vikram filed for divorce, he did it under the grounds of cruelty, as cruelty would also mean "such behaviour by a spouse that it would render it unbearable to stay with each other." After all, which husband would tolerate his wife dating other men while she was married to him?
"[W]here it was once implicitly understood that men have no feelings and don't suffer, the court today accepts that they too can be traumatised and undergo mental agony."
When defining cruelty in a marriage, you have to also take into consideration the severity of the act or allegations and how often it is repeated. For example, a recent judgment of the Calcutta High Court held that a wife's repeated accusations of sexual perversion and other slurs (without evidence) against her husband amounted to mental cruelty and was therefore grounds for divorce.
However, the term "cruelty" should not be twisted and used as a mean just to end a marriage. It should meet the court's definition of being of "such a nature that the parties would be unable to live with each other."
The Supreme Court gives a few guidelines on what would be described as cruelty in marriage:
- Unilateral decision of refusal to have intercourse for a considerable period without any physical incapacity or valid reason may amount to mental cruelty.
- Unilateral decision of either husband or wife after marriage not to have a child may amount to mental cruelty.
- Acute mental pain, agony and suffering to a degree that would not make it possible for the parties to stay with each other.
- On a comprehensive appraisal of the entire matrimonial life, if it becomes clear that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party.
- Mere coldness of manner or lack of affection cannot amount to mental cruelty. However, frequent rudeness of language, petulance, indifference and neglect could reach a degree that makes married life for the other person intolerable.
- Feeling of deep anguish, disappointment, frustration in a spouse caused by the conduct of the other over a long time may amount to mental cruelty.
- Sustained abusive and humiliating treatment calculated to torture or render miserable the life of the spouse could amount to mental cruelty.
- Sustained unjustifiable conduct affecting the physical and mental health of the spouse. However, the treatment complained about and resultant apprehension must be very grave, substantial and weighty.
- A husband undergoing sterilisation without medical reasons and without the consent or knowledge of his wife may lead to mental cruelty.
- A wife undergoing sterilisation or abortion without medical reasons or without the consent or knowledge of the husband may lead to mental cruelty.
- 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 could amount to mental cruelty.
What is interesting in that these conditions cannot be taken under the ambit of normal wear and tear of marriage. Bickering occasionally, or even often, for example, cannot be deemed as cruelty.
Socio-legal implications of this law
The parameters of cruelty are not fixed and are ever evolving. In fact, this law is seen to be reflective of the changing times. It endorses the view that men and women are equal in marriage. There was a time when a wife regularly returning home late from work could be construed as cruelty in a marriage, which, thankfully, is no longer the case -- with many working women today, such a scenario is now viewed in the context of the times. Similarly, where it was once implicitly understood that men have no feelings and don't suffer, the court today accepts that they too can be traumatised and undergo mental agony.
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 and social conditions.
Perhaps this is the reason why the legislature has not given a clear-cut definition as to what cruelty is and has left it to judiciary to decide as to what amounts to cruelty to a particular person in a particular set of circumstances.
But despite its amorphous nature, cruelty has a firm footing in the law: all the Marriage Acts prevalent in India have the provision for cruelty as grounds for divorce.