Cruelty as a Ground for divorce

INTRODUCTION

It is said that a house is a cursed place where women is not respected and that a family which accord respect and reverence of women is a place of happiness and prosperity. However, in the present circumstance it is important to note the cruelty should not be restricted to one gender and should be a gender-neutral approach encompassing all the gender types. Furthermore, there are several types of cruelty that can be inflicted on a person, mental and physical. There has been evolution of cruelty as a ground for divorce in several different personal laws and through different cases. Different countries have different standards for cruelty leading to marriage.[1] Therefore the article will take a wholesome approach to the concept of cruelty as a ground for divorce through different ages mentioning the important movements associated with it as such as the Feminist movement, Me Too Movement and the other contemporary trending movement that are structured to ensure that there is proper awareness of the cruelty clauses. Lastly, the article will try to portray a gender-neutral approach towards the concept of cruelty in marriage thus encompassing different marriages in toto.

DEFINITION of CRUELTY

Oxford Dictionary defines cruelty as the quality of being cruel and inflicting suffering. Cruelty has not been explicitly defined under any family law statue. However, under section 13 (1) (i)(a) of the act, the context of human conduct in behaviour it has been portrayed in the form of matrimonial duties and obligations.

The Indian parliament in order to do something about marital violence and cruel treatment of introduced section 498 in the Indian Penal Code which ensures that a person's conducts towards the business of the other which adversely affects the others business included cruelty.

Therefore, violence which has a grievous nature satisfies the test of cruelty in marital relationships. The number of sections with considered cruelty as a specific ground for divorce. Section 81 C of the Matrimonial Causes Act recognises cruelty as a ground for divorce. Section 13 of the Hindu Marriage Act 1950 also takes into account cruelty as a specific ground for divorce. In defining cruelty there are several factors which come into play which include the economic and other factors of the people, their cultural and also the human values.

There are different types of cruelties which includes physical and mental cruelty, legal cruelty among others. Physical cruelty consists of acts which affect the physical health of a person and inflict injury aur causes someone to believe that there is apprehension of injury.

Legal cruelty on the other hand is something which has the character of endangering the life slim health body and mental of a person or a reasonable apprehension of such danger. In such cases the intention to injured is not a necessary ingredient of cruelty. There are various examples of legal quality which includes centre near Silchar recruitment reception of marital intercourse studied neglect in difference on the part of the husband and an assertion on the part of the husband that the wife is unchaste.

Mental cruelty on the other hand has a wide literature and to the jurisprudence in the present times. According to the literature revolving around mental cruelty it can be defined as any conduct which inflicts upon the other parties such mental pain and suffering as would make it not possible for the other party to live with the other. This was held in the case of Vinita Saxena vs Pankaj Pandit[2]. Examples of mental cruelty include filing of character causing such apprehension to cause mental agony and pain that a person may be forced to commit suicide.

There are different aspects of cruelty for different personal laws.

Muhammad Ullah the test for cruelty is based on coronavirus in angular material standard and the husband the one who is the perpetrator and would cause bodily and mental pain to the wife. This was created in the case of Shamsunnisa Begum v G. Subban Basha And Anr [3]. There are certain elements enshrined in the dissolution of Muslim Marriage Act, 1939 which led to cruelty. This includes the habit of assaulting of the wife and making the life measurable by physical ill-treatment or by a conduct short of that associated with women of evil reputed leading and infamous life for preventing her from exercising in her right. The cruelty provision has been interpreted in the light of the prophets exhortations that women are as tender as glasses and he is a best man who is time to his wife.

According to the Zoroastrian personal law which is governed by the Parsi marriage and divorce act 1936 which was amended in 1988 is almost in sync with the special Marriage Act. In the Parsi marriage and Divorce Act, 10 Grounds were laid which can lead to divorce under Section 32 of the act. Cruelty was stated as one of the grounds for divorce. Held in the case of Solomon Devasahayam v. Chandirah May[4]. Where cruelty was stated as a ground for divorce separation. This was held to be in consonance with section 27(1) of other Special Marriage Act, 1954 and Section 23 of The Dissolution of Muslim Marriage Act 1939.

One of the most striking features in the cruelty being treated as a ground for divorce can be seen from the point of view of the Christian personal law. The Christian personal law has had a number of amendments and changes because of various popular movements that have come about to changing the stance taken by the Christians to include cruelty as a ground for divorce. Previously under section 22 of the Indian Divorce Act,1869 it was pointed out the Christian spouses are not entitled to dissolution of marriage on the grounds of adultery cruelty or desertion. This created discrimination and held to be against Article 15 of the Constitution Pragati Varghese V. Cyril George Varghese[5]. Subsequently the 90th report of the law commission gave recommendations for the inclusion of these three constituents as a ground for divorce. To the fact that the personal laws of other religion give the right to cruelty as a ground for divorce available for the Christians. This created discrimination for the Christians in respect the Hindus Muslims in the Parsi is women and was not reasonable. Subsequently 1983 under the director of joint women's programme a Christian women's Institute a number of changes were made in the personal law. Initiatives were taken to include as a ground for divorce and subsequently a committee was formed and cruelty was inducted as a ground for divorce under the Indian divorce act.

Therefore, considering the differences in the various personal laws relating to divorce and serious discriminations and exclusions that occur because of that the need of the hour is a Uniform Civil Code where in all the people belonging to one country would be treated equal and the positive provisions applicable to a particular religion will be applicable to the other people as well. The law makers further have to consider the inclusion of cruelty from the perspective of the males. The personal law legislation lacks on the consideration of the males being at the receiving end of cruelty in marital relationships. Therefore, it is important to consider every one from a neutral perspective to ensure true equality as has been enshrined in the Constitution.

[1] Prichard, E. A. “Cruelty as a Ground for Divorce a Mensa Et Thoro in Virginia.” Virginia Law Review, vol. 43, no. 1, 1957, pp. 125–132. JSTOR; Kuo, Margaret. “Spousal Abuse: Divorce Litigation and the Emergence of Rights Consciousness in Republican China.” Modern China, vol. 38, no. 5, 2012, pp. 523–558. JSTOR.

[2] Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778

[3] Shamsunnisa Begum vs G. Subban Basha And Anr., 1994 (2) ALT Cri 143

[4] Solomon Devasahayam v. Chandirah May, 1968 Mad.L.J. 28

[5] Pragati Varghese V. Cyril George Varghese, 1997 SCC OnLine Bom 184.