CRUELTY AS A GROUND OF DIVORCE: SHOULD IT BE CONSIDERED AS MARITAL CRIME?

AUTHOR: PIYALI CHAKRABORTY, ADVOCATE, DISTRICT & SESSIONS COURT, ALIPORE, WEST BENGAL

Abstract

Marriage is a sacred union between two individuals who vows to be together and fulfill all their respective responsibilities. In the Hindu religion, marriage is considered to be a pious obligation that one needs to observe during their lifetime. It is assumed that once a person is married to their partner, their bond sustains for ages and the union is unbreakable. Gone are those days when people perceived marriage from a spiritual point of view. In the current generation, the majority of the population perceives marriage as a burden and a compulsion rather than a pious obligation required to be observed to make themselves eligible to be called for living in a “decent society”. This societal pressure creates inner burden in one or both the spouses eventually leading them towards path of various unwelcoming acts such as cruelty, adultery, marital rape etc. The terms “marital rape” and “marital crime” are often interpreted synonymously, however the two terms are dissimilar in actual sense. The term “marital crime” is a broader term that encompasses all forms of offenses punishable under the penal laws in India. The paper seeks to find the answer through relevant case laws and interpretation of statutory provisions.

Keywords

Marriage, Cruelty, Marital crime.

Objective of study

The objective of the present study is twofold:

To understand the legal position of cruelty specially under Hindu Law
To understand whether cruelty can be called as marital crime

Research Question: Can cruelty be considered as marital crime?

Hypothesis: Cruelty can be considered to be marital crime due to its heinous nature of inflicting harm upon the spouse

Scope and Limitation: Marital crime and marital rape are often considered synonymously to each other. However, in literal sense, they are two different concepts. Marital crime is a broader term that encompasses all those acts that can be punishable under penal laws. Examples of marital crime are marital rape, domestic violence, desertion etc. the author in the present study strives to explore whether cruelty can be considered as marital crime and be punishable under penal laws.

Review of Literature

Ayushi Laxmi Verma (2018) in her paper “Cruelty As a Ground for Divorce Trends Through The Ages: A Study” discussed legal aspects of cruelty including the historical attempts to frame laws on cruelty. The author discussed cruelty as a ground for divorce in context with Hindu Law through various case laws.

Aditi Raj and Himanshu (2022) in their paper “CRUELTY AS A GROUND FOR DIVORCE: ANALYZING THE SPHERE OF MENTAL CRUELTY” discussed the legal position of cruelty under various religious laws and has also discussed how the concept if cruelty is not restricted to women in its application rather men too are facing cruelty.

Arshdeep Ghuman (2018) in their paper “CRUELTY AS A GROUND FOR DIVORCE” made a comparative study of the legal position of cruelty under various religious laws and discussed the judicial stand on cruelty.

From the above literature review, it has been observed that the topic of discussion is more or less same in the scope of its discussion. In the present paper, the author seeks to examine whether cruelty can be brought under the purview of marital crime or not.

Introduction

India is a sacred country with various religious and cultural beliefs. Our guiding principles can be traced in ancient texts such as Vedas, Manusmriti, Arthashastra, etc. Hindus consider marriage as one of the pious obligations that need to be observed once during their lifetime. Marriage is a sacrament that ties two people in a special bond for ages. A blissful marriage comes with various rights and responsibilities of spouses towards each other and each other’s families and taking care of various needs and demands. Thus, the traditional belief on marriage is that once a couple is married, the tie cannot be broken.

Over the period of time, a contrary belief system has emerged regarding marriage. An example of this live-in relationship where couples prefer staying in a marriage-like relationship without actually solemnizing marriage. One of the significant factors that led to the change in mindset regarding marriage is disputes taking place between the couple.

What is more disturbing is that there has been a significant rise in the divorce cases in India. One of the major reasons behind increasing divorce cases is due to infliction of cruelty by the spouses. Cruelty can make a person vulnerable and cause apprehension of threat in his life and liberty. In this context, one of the important questions that arises here is can cruelty be brought under the purview of marital crime and can the spouse inflicting cruelty be punished under the penal laws?

According to statistics published in the National Journal of Community Medicine, a study was undertaken to understand socio-demographic factors for divorce in India wherein it was found that divorce was most prevalent among people belonging to the Hindu religion (92%), and the major reason for divorce is cruelty by spouse (48%).

Cruelty- A conceptual understanding

The term “cruelty” is a broader concept which in simple terms can be understood by all those acts which can be construed to cause imminent danger to life and liberty of person. Although there is no recognized definition of cruelty, for the first time the term cruelty has been a statutory definition under Section 86 of Bharatiya Nyay Sanhita (BNS), 2023. Historically for the first time, an attempt was made to define the term “cruelty” in the case of Russel v Russel in the following manner- “Cruelty was held to be a conduct of such character as to have caused danger to life or health, bodily or mentally, gives rise to a reasonable apprehension of such danger”.

Lord Denning in the case of Sheldon v Sheldon had articulately mentioned the legal position of cruelty. As human conduct varies from one person to another, so will the cruel behavior vary from person to person. It is not possible to define what exactly amounts to cruelty. However it would vary from case to case.

Laws addressing cruelty

Section 498A Indian Penal Code

Section 498A of the Indian Penal Code (IPC) is perhaps the most misused provision of our legal system. Section 498A of the IPC empowers women to file a criminal complaint against their husbands and relatives for cruelty within their matrimonial home. Although it was inserted to address the issue of domestic violence majorly faced by women in their matrimonial homes, the provision drew the attention of courts and the legal fraternity of its increasing misuse. With the introduction of new criminal laws, the provision finds its place under Sections 85 and 86 of Bharatiya Nyay Sanhita (BNS). Recently, the Supreme Court while dealing with the case urged to make necessary amendments to BNS due to its possible misuse by women by using police machinery.

Protection of Women from Domestic Violence Act, 2005

Protection of Women from Domestic Violence Act, 2005, or PWDV Act is a law passed by the parliament to address the issue of domestic violence faced by women in their matrimonial homes. Since every person has the right to lead a dignified life, her dignity cannot be compromised at the behest of her marriage. With this understanding parliament enacted this law to empower women to file a complaint and to get relief from their in-laws if she is subjected to any kind of violence as mentioned in the Act. Section 3 of the PWDV Act enlists four kinds of abuses that she may suffer in her matrimonial home and that may attract legal consequences. They are- (i) Physical abuse, (ii) Sexual abuse, (iii) Verbal and emotional abuse; and (iv) economic abuse.

Marriage and cruelty

It is a fact that no two individuals can be the same with respect to their character. Marriage requires adjustments and understanding between the spouses in order to lead a harmonious conjugal life. In marriage, marital discontentment is natural. However, sometimes it is due to a person’s attitude and not the conduct of the husband or his in-laws that would create circumstances so difficult that one may find unfit to sustain in that environment. In Rosamma Kurian v State of Kerala the deceased died by committing suicide. On scrutiny, it was found that matrimonial disagreement is a very common aspect of marriage and the appellant didn’t commit any act that would be treated as cruelty in the eyes of the law. It was revealed that the deceased was hyper-sensitive by nature and frequent discord between the appellant mother and the deceased made her suffer in mental agony which induced her to commit suicide.

In the landmark case of Narayan Ganesh Dastane v Sucheta Narayan Dastane The Supreme Court recognized cruelty as grounds for divorce. Earlier cruelty was only considered as ground for judicial separation. In the instant case, the petitioner, Narayan Ganesh Dastane filed a petition for annulment of marriage on the ground of fraud, a petition for divorce for unsoundness of mind, and a petition for judicial separation on the ground of cruelty. According to the petitioner, the petitioner through a letter sought information from the respondent’s father regarding the status of her health as she was suffering from mental health issues and was undergoing treatment. In the letter sent by the respondent’s father, he stated that at present she has fully recovered from the health issue that she was suffering and her treatment was completed. After getting married, it was revealed that the respondent was behaving with cruelty towards their children and the petitioner and that the marriage was solemnized by way of fraud.

The Court stated that the burden of proof in a civil suit lies on the petitioner by the principle of preponderance of probabilities. Thus, the court rejected the petition for annulment of marriage and petition for divorce. The case has garnered its significance due to its dealing with three major issues- (a) Legal interpretation of the term cruelty; (b) Cruelty as a ground for divorce; and (c) test for establishing cruelty.

Conclusion

The paper as discussed earlier tried to examine whether cruelty can be brought under the purview of marital crime or not. From the above discussion, it is clear that cruelty cannot be brought under the purview of marital crime. Although it has been observed in various cases that the nature of the act in order to be called cruelty is such that it makes life difficult for survival and people often approach court by filing petition for divorce on the ground of cruelty, its legal and conceptual position is different. If we apply the Pigeon Hole Theory as propounded by John Salmond, cruelty as a concept is ever-evolving due to changes in the behavior of human conduct. Cruelty cannot be put in a narrow hole and said that only a particular act amounts to cruelty. Thus, it is difficult to get a standard definition of cruelty, although an attempt has been made by introducing Section 86 of Bharatiya Nyay Sanhita, 2023. In order to bring cruelty under the purview of marital crime, cruelty needs to be defined. Since it is difficult to define this umbrella term, it is left up to the judiciary to decide whether a conduct of parties amounted to cruelty or not.