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Marriage and Divorce Law
Cruelty
It means such treatment as to cause a reasonable apprehension in
the victim’s mind that it will be harmful or injurious for the
petitioner to live with the erring spouse.
Cruelty may be physical or mental. Cruelty may be subtle, brutal,
by words, gestures, silence, indifference, violence, or
non-violence. Legal cruelty means injury causing reasonable
apprehension to injury to life, limb or health. Willful and
unjustified interference by one spouse in the life of the other
may be cruelty. It is not restricted to physical violence. It may
extend to behaviour, which may cause pain and injury as well as
renders the matrimonial home a brutal home. Rough and domineering
conduct, excessive or unnatural sexual practice, or disgusting
accusations of unchastely, adultery or unkindness or persistent
nagging, out burst of temper without any course, etc. contemplates
mental cruelty. This may cause more serious injury than physical
cruelty.
Before the courts, the acts of cruelty are judged objectively. The
test is not whether a spouse is cruel but whether the conduct of
the wrong-doer is such as affecting the victim cruel from a
reasonable point of view that the conduct may cause pain and
injury to the mind so as to render the matrimonial home very
unhappy. An intention on the part of one spouse to injure the
other is not, however, a necessary element of cruelty as a
matrimonial offence. Hence, where the spouses are of a normal
physical and mental health, proof of persistent refusal or
inability to perform sexual act would amount to cruelty in
contrast to cases where desertion without reasonable excuse, does
not by itself amount to cruelty.
The question of cruelty is determined from the whole facts and
circumstances of the case including their culture, temperament,
status in life, state of health, daily life and other factors.
Wife’s refusal to have sexual intercourse and bear children leads
to mental ill health of husband amounts to cruelty and broadly
speaking, cruelty means such treatment as to cause reasonable
apprehension in the petitioner’s mind that it will be injurious
for the petitioner to live with the other souse.
Section 13 (1) (ia) of the Act 68 of 1976, reads:
“13(1) Any marriage solemnized, either 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 divorcee on the
ground that the other party.
(i) x x x x
(ia) has, after the solemnization of marriage treated the
petitioner with cruelty.”
The Act 68 of 1976 does not contain what would constitute
cruelty. However, the act empowers the trial court to
interpret, analyze and define cruelty in a case, depending upon
variety of factors. The broad and liberal test for interpreting
Section 13 (1) (ia), as amended up to date, is to find out whether
cruelty is of such type, that the petitioner cannot reasonably be
expected to live in company of the respondent.
Physical cruelty 0may consist of physical violence. It may
be actual or threatened violence whereas the germ of mental
cruelty lies on the conduct of the respondent, which would cause
injury to the petitioner to live with the respondent or is of such
nature, so as to create a reasonable apprehension to that effect.
It is, therefore, essential and vital to prove that mental cruelty
can even cause more grievous injury and create in the mind of
injured spouse, reasonable apprehension that it will be impossible
or unsafe to live with the erring party. The conduct alleged must
also be viewed from the angle of the victim’s capacity or
incapacity for in durance insofar as, that is to be known to the
offending spouse and cruelty is in generality, in its character, a
cumulative charge.
Whether the respondent has treated the petitioner with cruelty,
can only be answered after all the facts and matrimonial relation
of the parties and interaction in the daily life as may be
disclosed by evidence, has been taken into account.
The case canvassed before the trial court should contain such
ingredients for physical or mental cruelty and revival of
matrimonial cruelty from time to time. Before allowing the
petition it is necessary that the cruelty in the facts and
circumstances of the case should satisfy the conscience of the
court to believe that the marital relations between the parties
had deteriorated to such extent by reason of the conduct of the
respondent that it became impossible for the petitioner and
respondent to live together without wild bickering and open day to
day confrontation.
The ground of cruelty has been specified in the statute, which
means that dissolution of marriage can be maintained on a solitary
act of cruelty without adding a new ground by imperative process.
The court considers the entire evidence and the material brought
on record and after hearing the counsels for the parties gives its
findings. The incidents of cruelty as a matter of fact and conduct
of parties relating to it plays a positive role in helping the
court to form its conclusion that acts of commission or omission
on the part of the other spouse and its other family members are
bound to result in the great physical or mental torture of the
petitioner and no victim can be expected to endure such a conduct
for a long time and such findings defines that such a conduct of
other spouse falls within the term ‘cruelty’. If ill-treatment or
beating is found as a fact on appreciation of evidence, it
empowers the court to hold the other spouse guilty of such cruelty
as would entitle the petitioner to live separate and demand
maintenance.
When one of the spouses is ill-treated by the parental relatives
of the other spouse, it would be a question of fact on the
appreciation of the evidence whether there was ill-treatment or
cruelty. The cruelty by father and brothers of the other spouse is
not cruelty within the meaning of Section
13 (1) (ia) of the Hindu Marriage Act, 1955. In such
case, the conduct of the in-laws with no complicity or interest of
the petitioner being involved in it may not be considered as
treatment with cruelty. In such cases on the appreciation of the
material on the record, it may be designated that after taking
into account the entire matrimonial relationship, surrounding
circumstances, character and personality of petitioner with all
its limitations can’t be characterized as one of cruelty towards
respondent.
The word ‘treated’ denotes a conscious action and includes an
omission, which has to be cruel in order to call for a decree of
divorce. Taunting and insult with the sole object to humiliate and
degrade by in-laws in presence of the erring spouse, amounts to an
implicitly party to cruelty. Implicitly party to the cruelty is of
such a grave and weighty nature so as to constitute cruelty, as
omission to rescue the petitioner is blame-worthy, within the
meaning of Section 13 (i) (ia).
Primarily the burden is on the party who claims divorce on the
basis of cruelty. However the burden shifts to the opposite party
if it pleads reasonable cause of justification for withdrawing
from the company of the other spouse. Hindu Marriage Act, 1955,
Section 13 and Delhi High Court Rule 7 (iv) speak about the
requirements of Rule regarding giving specific acts of cruelty in
petitions seeking dissolution of marriage. The purpose of the rule
is to make the respondent known what case he has to meet. The
allegations of the matrimonial offence of cruelty are contained in
the divorce petition which lead to framing of issues as to whether
the respondent has treated the petitioner with cruelty as alleged.
If it is found that the allegations are vague and not in
conformity with Rule 7 (iv) in the absence of disclosure of date,
month, time and also the place of commission / omission of the
matrimonial offence of cruelty, then the incidents of cruelty may
be supposed as unsubstantiated and the petition is dismissed. It
is the duty of the trial court to look in to the merits of the
incidents of cruelty and determine it rule 7 (iv) of the Hindu
Marriage Act Rules, 1979 provides that in the case of alleged
cruelty, the date and circumstances in which it began, the
specific acts of cruelty and the occasions when and the place
where such acts were committed should be stated in the petition in
addition to the particulars required to be given under Order VII
Rule 1 of the code of Civil Procedure. The object of those
provisions and the functions of the particulars is to present full
picture with sufficient details of the cause of action so as to
make the opposite party understand the case. It helps to define
and limit the issues to be tried.
When immediately after the marriage, the respondent told the
petitioner that it has no mind to marry and there would never be
any marital relations and made the petitioner sleep separately
from it and did not allow the marriage to consummate. When the
petitioner requested the respondent to have marital relations for
which the respondent threatened the petitioner with death. This
conduct, if proved, would lead to an inference that marriage tie
instead of being a source of inspiration, became a source of
frustration and misery for the petitioner. It is for this reason
the petitioner may allege that the respondent treated it with
cruelty.
The requirement of the rule is only to give specific acts of
cruelty and the occasion when and place where such acts were
committed. Where there is specification of place of commission is
the matrimonial home, and the allegations are not vague and with
reasonable definiteness the primary facts of alleged cruelty have
been given, the requirement of the Rule is satisfied as the object
of the Rule calling upon the petitioner to give specific acts of
cruelty by giving occasions and the place where the said acts were
committed is only with a view to enable the respondent to know
what case he had to meet and thus prevent a surprise at the trial.
The petition should contain averments indicating with reasonable
definiteness the primary facts of alleged cruelty; it is not open
to the trial court to brush aside such allegations as vague and if
the court commits wrong, the order becomes appealable under
section 28 of the Hindu Marriage Act, 1955.
Where the allegations are that the misbehavior of the respondent
had reached to such a stage when it had become impossible for the
petitioner to live with the respondent due to tension created in
the former’s mind. The requirement of the rule framed under the
acts as also form prescribed, make it mandatory for the petitioner
to state the acts of cruelty in separate paragraphs with dates and
time. The requirement under the rule framed is not fulfilled when
not even a single date and time is stated in the petition or in
the evidence. The court may take view that the general allegations
are not sufficient to substantiate cruelty.
The initiative to prove the allegations must be taken by the
petitioner. It is the duty of the petitioner to produce the best
evidence, the law also enjoins a duty on the court under section
23 to satisfy itself about the existence of any ground before
granting any relief. The intention of the legislature is that the
public interest requires that the marriage bond be not set aside
lightly or without strict enquiry. It is, thus, on the
satisfaction of the court that a relief can be granted.
The petitioner alleges that the marriage between, the parties has
not been consummated. The respondent states that during the time
the parties lived together, almost on all dates there was sex.
Here the medical evidence of an independent board of doctors may
determine the falsity or truth of the case of the parties. The
medical evidence of doctor is subject to cross-examination by
other party. The falsity or truth of the case of either of the
parties would best be established by the medical evidence of
Doctor, after he be cross-examination. Enabling the parties to
subject the Doctor to cross-examination is permissible under
Evidence Act.
Before this amendment, i.e., marriage Amendment Act of 1976, in
Hindu Marriage Act, 1955, Section 13 (1) (ia) speaks about
cruelty as a ground for divorce. The board test to be applied in
interpreting Section 13 (1) (ia) has to be the test whether the
cruelty is of such type that the petitioner can not reasonably be
expected to live with the respondent or living together of the
spouses had become incompatible. An attempt to define cruelty was
made. Factual background of each case has relevance. It was
incumbent upon the petitioner to prove cruelty as to cause
reasonable apprehension in the mind of the petitioner that it will
be harmful or injurious for the petitioner to live together with
the other spouse.
The Marriage Laws Amendment Act (68 of 1976) was passed to
introduce drastic changes and obliged the court to decide pending
cases as if they have been originally instituted under the Act as
amended. The Act, inter alia, provided also for divorce on cruelty
as mentioned in amended provision, viz, Section 13 (1) (ia).
In the legislative background, the Act originally provided cruelty
as a ground only for judicial separation under section 10 of the
Act and not for divorce under Section 13.
It was by the Hindu Marriage (Amendment) Act, 1964 (Act no.
44 of 1964) that the change was introduced in the form of section
13 (IA) by which it became possible to obtain decree for divorce
two years after passing of decree for judicial separation provided
that parties did not resume cohabitation during that period.
The positive effect of the Amending Act is that any of the spouses
can claim either judicial separation or divorce on the ground of
cruelty as contemplated under the aforesaid clause. It may be
mentioned that there is an analogous provision, viz, Section 27
(1) (d) in the Special Marriage Acts, 1954, for obtaining divorce
on ground of cruelty. This provision was also interpreted by
various courts. The appealing feature of the amending Act is that
it intends to liberalize the law of divorce.
The recommendations of Law Commission in its 59th report and
statement of objects and reasons of the Amending Act in order to
examine the legislative intention can be looked into by the courts
to examine the purpose of finding out what the state of affairs
was before the amendment but it can not be referred to for
understanding the meaning of any particular words in the statute
itself. The statement of objects and reasons has always been held
to be an unsafe guide while interpreting the substantive
provisions of any enactment. It the Shastrik Hindu Law divorce was
unknown. Then came the Act, which introduces Judicial Separation
and that too on a certain condition. After the passing of the Act
and the Special Marriage Act, various suggestions discharge
towards amendment to liberalize of law relating to divorce were
made by general public. New trend of thinking had developed in
society.
Hindu Marriage Act, 1955, (as amended up to date) Section 13 (1) (ia)
tells us about cruelty as a ground for divorce. The broad test to
be applied in interpreting Section 13 (1) (ia) has to be whether
the cruelty is of such type that the petitioner can not reasonably
be expected to live together with the other spouse or living
together of the spouses had become incompatible. Amendments of the
Hindu Marriage Act, 1955, were, made from time to time with
intention to liberalize the law of divorce in accordance with the
modern trend.
The Act originally provided cruelty as a ground only for judicial
separation under section 10 and not for divorce under section 13.
It was by the Hindu Marriage (Amendment) Act, 1964 (Act no.44 of
1964) that the change was introduced in the form of Section 13
(IA) by which it became possible to obtain a decree for divorce
two years after passing of the decree for judicial separation
provided the parties did not resume cohabitation during that
period. Old Section 10 (1) (b) read as under:
“10(1) Either party to a marriage, whether solemnized
before or after the commencement of this Act, may present a
petition to the district court praying for a decree for judicial
separation on the ground that the other party;
(a) …………………………………………………………….
(b) Has treated the petitioner with such cruelty as to cause a
reasonable apprehension in the mind of the petitioner that it will
be harmful or injurious for the petitioner to live with the other
party.”
By Act no. 68 of 1976, as mentioned earlier, drastic changes were
brought about in the Act. A provision for divorce by mutual
consent was introduced. Waiting period for obtaining divorce was
reduced from one year to six months. A right of repudiation of
marriage to girls subjected to child marriage was conferred and
the Amending Act was applied also to pending proceedings with a
view to avoid multiplicity of suits and consequent appeals. New
Section 13 is substituted for the former Section and sub – section
(1) (I-a) providing for dissolution of marriage also on the ground
of cruelty in introduced. Section 10 is amended so as to transfer
the grounds for judicial separation or divorce on the new grounds
enumerated therein. Section 13 (1) (i-a) reads thus:
“13.(1) Any marriage solemnized, whether before or after
the commencement of this 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) XXXXXXXXXXXX
(i-a) has, after the solemnizations of the marriage, treated the
petitioner with cruelty;
(i-b) …………………………………………………………………
The net effect of the Amending Act is that any of the spouses can
claim either judicial separation or divorce on the ground of
cruelty as contemplated under the aforesaid clause. It may be
mentioned that there is an analogous provision, viz, section 27
(1) (d) in the Special Marriage Act, 1954, for obtaining divorce
on the ground of cruelty. This provision was also interpreted by
various High Courts before Dastane,s decision in Supreme Court by
applying the old English concept of doctrine of danger as was
applied while interpreting old Section 10 (1) (b) of the Act.
Before the learned single Judge it was contended on behalf of the
respondent that cruelty contemplated under the Act as amended
meant cruelty, as it is understood under the old English concept,
as the object of the amending Act was to nullify the effect of the
decision of the Supreme Court in Dastane’s case (supra) and to
restore the ratio laid down by various courts prior to the
decision and to bring the new provision at par with Section 27 (1)
(d), Special Marriage Act. Reliance was placed in support of this
proposition on Madanlal’s case the learned Judge hearing this
appeal did not agree with the view taken in the said decision as a
result, the matter was referred to the Division Bench, being
unaware of the fact that decision rendered in Madanlal’s case was
confirmed by other Division Bench in letters patent Appeal no. 28
of 1980 decided on 10th March, 1980. The Division Bench to which
the matter was referred also did not agree with the view taken in
Madanlal’s case as according to it, the intention of the Amending
Act was to liberalize the law of divorce in accordance with the
modern law and not to restore the doctrine of danger which now is
discarded even in England and hence reference to the Full Bench.
In Madanlal’s (supra) case the learned Judge refused to look in to
the recommendations of the Law Commission as contained in its 59th
Report and the statement of Objects and Reasons of the Amending
Act in order to examine the legislative intention, on the ground
that this was impermissible except for purposes of finding out
what the state of affairs was before the amendment. It was also
held that even though the Amending Act generally intended to make
and has actually made some provisions relating to divorce liberal
it may not be liberal “on a particular aspect”.
The statement of objects and reasons accompanying the bill which
ultimately amended the Hindu Marriage Act in 1976. It read as
follows:
“The objects of the legislation are mainly, (1) to liberalize the
provisions relating to divorce, (2) to enable expeditious disposal
of proceedings under the Act, and (3) to remove certain anomalies
and handicaps that have come to light after the passing of the
Act”. (See the Gazette of India, Extraordinary, Part II, Jan –
April, 1976, page 780).
The statement of objects and reasons can not be referred to except
for the purpose of finding out what the state of affairs was
before the amendment. It can not be referred to for understanding
the meaning of any particular words in the statue itself. The
statement of objects and reasons has always been held to be an
unsafe guide while interpreting the substantive provisions of any
enactment. Secondly, even though the Act intended to make and has
actually made liberal some provisions relating to divorce on a
particular aspect a provision may not be made liberal. If the
provision of cruelty as a ground of divorce were to be liberal
then in view of the decision of the Supreme Court in Dastane V.
Dastane, it was not even necessary to amend the act. The fact that
the Parliament thought it fit to amend the ground relating to
cruelty and brings it on par with the language used in the Special
Marriage Act shows that on this aspect the intention of the
Legislature, as it revealed through the words, was not to
liberalize the ground relating to cruelty. Furthermore, “where a
word has been construed judicially in a certain legal area, it is,
right to give it the same meaning if it occurs in a statute
dealing with the same general subject matter, unless the context
makes it clear that the word must have a different construction”.
(See Maxwell on The Interpretation of Statutes, 12th Edition, page
278). I have, therefore, no hesitation in holding that the
expression to be found in Section 13 (1) (i-a), Hindu Marriage
Act, endorses necessarily the concept of cruelty as it is
understood under the English Law”.
The view that either the recommendations of the Law Commission or
the statement of objects and reasons can not be looked in to for
judging the legislative intention even in case of doubt, is not
correct. The law on this point is no
more res integra. No more the old approach is held valid either in
India or in Western countries. In the case of Sagnata Investment
Ltd V. Norwich Corporation Lord Denning freely referred and to the
report of the Royal Commission on Betting, Lotteries and Gaming
and to the minister’s speech in the House of Commons on the bill
for construing the Betting, Gaming and Lotteries Act of 1963 and
1964. The decision of the House of Lords in Fothergill V. Monarch
Airlines Ltd. is an indication of the shift in favour of more
liberal use of legislative materials. The position is in no way
different in India. In the case of Union of India V. Steel Stock
Holders Syndicate Poona, free use of the statement of objection
and reason was made while interpreting some of the provisions of
the Indian Railways Act, pertaining to the provision relating to
breach of contract. In K.P. Varghese V. Income – Tax Officer,
Ernakulam, not only the statement of object and reasons of the
bill was referred but even the speech made by the mover of the
bill was referred.
The examination of 59th report and the statement of objects and
reasons of the relevant bill refers to the social background
against the back drop of which the bill was introduced. In the
Shastik Hindu law divorce was known. Then came the Act which
permitted judicial separation and divorce on some different
grounds. On the ground of cruelty only judicial separation was
permissible before 1964, after which divorce was permitted after
waiting for a period of two years of the passing of decree for
judicial separation and that too on certain conditions.
Examination of the grounds either for divorce or for judicial
separation would reveal that the “fault theory” predominated.
After the passing of the Act as well as the Special Marriage Act,
various suggestions for their amendment all directed towards
liberalization of law relating to divorce were put forth by
members of parliament as well as the general public. New trend of
thinking had developed in society. The thinking was that there is
no use maintaining the marriage as a façade in the absence of
emotional and other bonds which are the very essence of the
marriage. It was considered better in the interest of healthy
society to dissolve the marriage than meaninglessly to try it to
linger on the fault theory was thus considered as outdated and the
“irretrievable breakdown theory” became favourite. The Law
Commission was requested to examine the matter and the Commission
presented the 59th Report of the Union Law Minister on 6th March
1974. The committee on Status of Women in India generally
supported the amendments proposed by the Law Commission.
The statement of Objects and Reasons in terms refers to all these
matters and the 59th Report of the Law Commission. The topic of
cruelty as a ground for divorce is contained in para 2.12 to 2.17
of the Report. It reads thus:
“2.12. A draft on the following lines was suggested during
our discus that the respondent has since the solemnization of the
marriage treated the petitioner with such cruelty that the
petitioner can not reasonably be expected to live with the
respondent.”
2.13. It may incidentally he mentioned here that in many
countries, matrimonial relief is provided ot the aggrieved spouse
on the ground of cruelty. This redress is usually justified on the
ground of the principle of production.
2.14 to 2.16. Having considered all aspects of the
matter, we have come to the conclusion that it is sufficient to
provide for cruelty as a ground of divorce, and it should be left
to the courts to determine on the facts of each case whether the
conduct amounts to cruelty.
2.17. Accordingly, we recommend that in Section 13 (1)
Hindu Marriage Act, a new clause should be added as follows:
“has treated the petitioner with cruelty”.
It would be seen that the above phraseology suggested by the Law
Commission is broadly lifted and put in Section 13 (1) (ia). It is
sufficient to notice that the suggestion to add even certain
limited words contained in para 2.12 was rejected because the
Commission considered “that the court would even in the absence of
such words broadly adopt the same approach”.
11. In Dastane’s case the standard of cruelty was watered
down from doctrine of danger to the reasonable apprehension that
it is harmful or injurious for one spouse to live with the other
as envisaged in old section 10 (1) (b). Even this legislative
standard of cruelty on which Supreme Court laid great stress is
made to disappear by Act 68 of 1976. Cruelty as a matrimonial
offence has now no specified caveat tagged to it. It is now
cruelty simpliciter. It is a well know canon of interpretation
that every amendment is intended to bring about a change in the
existing law and is not an exercise in futility. This position is
indeed not debated before us. The contention is that intention was
to bring back the concept of cruelty at par with the age old
English concept of doctrine of danger and to nullify the effect of
Dastane’s case. It is difficult ot accept. In the first place
there is not even a whisper in the statement of Objects and
Reasons directly or indirectly about Dastane’s case or the view
that prevailed before that decision. Secondly the bill in terms
refers to the recommendation contained in 59th Report which itself
is submitted on 6th March 1974 i.e. more than one year before the
decision in Dastane’s case. When entire general trend of the
Amending Act is towards a forward step of liberalization of
divorce it is fallacious to hold that only with relation to
cruelty as to ground for divorce intention was to make the law
more stringent and to move backward. Indeed, in view of law laid
down in Dastane’s case earlier decision interpreting Section 27
(1) (d) Special Marriage Act, are no longer good law and deserve
to be reviewed.
There is yet another aspect to the question. The whole of the
English Law relating to cruelty is judge made. The first leading
decision on the point is Russell V. Russell. Rayden on Divorce 9th
Edition page 123, para 79 states the law as under:
“Legal cruelty, may be defined as conduct of such a character as
to have caused danger to life limb or health bodily or mental or
as to give rise to a reasonable apprehension of such danger. Where
conduct over a period of years is relied on as constituting
cruelty, it is very difficult to prove to the satisfaction of the
court that there was reasonable apprehension of danger to health
where actual injury is not proved. The fact that a marriage has
broken down is no reason in itself for a finding for cruelty”.
This definition of cruelty was consistently applied in India while
interpreting either provision of the Act or the Special Marriage
Act before Dastane’s case. Legislative history or law in England
will indicate that even there, the aforesaid concept has become
outdated. Sweeping changes made in England in the law relating to
divorce is a pointer. Matrimonial Causes Act, 1965, was amended by
the Divorce Reforms Act, 1969, permitted divorce on the sole
ground of irretrievable breakdown of marriage. Section 2 (1) of
the said Act says:
“the court hearing the petition for divorce shall not hold the
marriage to have broken down irretrievably unless the petitioner
satisfies the court of one or more of the following facts, that is
to say:
(a) that the respondent has committed adultery and the
petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the
petitioner can not reasonably be expected to live with the
respondent;
(c) that the respondent has deserted the petitioner for a
continuous period of at least two years immediately proceeding the
presentation of the petition;
(d) that the parties to the marriage have lived apart for a
continuous period of at least two years immediately proceeding the
presentation of the petition and the respondent consents to a
decree being granted;
(e) that the parties to the marriage have lived apart for a
continuous period of at least five years immediately proceeding
the presentation of the petition.”
The Matrimonial Causes Act 1973, which repealed the 1969 Act
contains analogous provisions. The behaviour of a type that the
petitioner can not reasonably be expected to live with the
respondent is a valid ground for divorce even in England. This
change in the approach can not be ignored and it can not be
reasonably held that Indian Parliament in 1976 was oblivious of
those developments. It is pertinent to notice that changes
suggested by the Law Commission and accepted by the Parliament are
on almost similar lines. In this back ground also it is not
possible to attribute intention to restore the higher standard of
cruelty contemplated under the old concept, viz, danger to life,
limb or health or reasonable apprehension thereof.
13. What is cruelty simpliciter? It is not possible to
comprehend the human conduct and behaviour for all times to come
and to judge it in isolation. A prior definition of cruelty is
thus not possible and that explains the general legislative policy
with the exception of the Dissolution of the Muslim Marriage Act
to avoid such definition and leave it to the courts to interpret
analyze and define what would constitute cruelty in a given case
depending upon many factors such as social status, background,
customs, traditions, caste and community upbringing public opinion
prevailing in the locality etc. It is in this background that the
suggestion contained in para 2.12 of the 59th Report was turned
down and the limiting words, namely “such cruelty that the
petitioner can not reasonably be expected to live with the
respondent were not incorporated on the view that the court would
even in the absence of such words broadly adopt the same
approach”. After referring to the fact that the divorce on the
ground of cruelty is usually justified on the ground of principle
of protection the final draft as mentioned in para 2.17 was
suggested and which as referred to above was accepted by the
parliament in toto. The broad test, therefore, that will have to
be applied in interpreting Section 13 (1) (i-a ) has to be whether
the cruelty is of such type that the petitioner can not reasonably
be expected to live with the respondent or living together of the
spouses had become incompatible.
A single judge of this court in the case of Kalpana Shripati Rao
v. Shripati v. Rao has also taken a view of the matter similar to
the Londhe. The bare reading of the judgment will indicate that
the view taken in Madanlal’s case has not been approved in this
judgment. However with out referring the matter to the larger
Bench it has been held that by Act 68 of 1976 not only there is no
reversion to the old English concept but there is a forward march
towards liberalization of the divorce on the ground of cruelty and
even the statutory limitations have now been done away with. In
Ashwini Kumar Sehgal V. Smt. Swatantar Sehgal taking a view that
Act, 68 of 1976 has simplified the concept of cruelty, the Punjab
and Haryana High Court has aptly observed:
“cruelty in such cases has to be of the type which should satisfy
the conscience of the court to believe that the relation between
the parties had deteriorated to such an extent due to the conduct
of one of the spouses that it has become impossible for them to
live together without mental agony, torture or distress”.
In Balbir Kaur V. Dhir Dass it has been held that cruelty admits
in its ambit and scope such acts that might even cause mental
agony. Almost on the same lines is the view taken in Dr. Shrikant
Rangacharya Adya V. Smt Anuradha. In Sulekha Bairagi V. KamaAla
Kanta Bairagi Calcutta High Court has taken a view that the
cruelty need not be of such a character as to cause danger to
life, limb or health or to give a rise to and that it has to be of
the type contemplated under Section 10 (1) (b). However
accordingly to this High Court, Act 61 of 1976 has made no change
in the law s declared in Dastane’s case by the Supreme Court. For
the reasons which need not be repeated we are not in agreement,
with the later part of the view. In Raj Kumar Manocha V. Anskuka
Manocha, Punjab and Haryana High Court has followed in terms the
view taken in Madanlal Sharma’s case, without giving any
additional reasoning. In P.V. P. also decision in L.P.A NO. 28 of
1980 has been followed in substance.
The cruelty contemplated under Section 13 (1) (i-a) of the
Act neither attracts the old English doctrine of danger nor the
statutory limits embodied the old Section 10 (1) (b). The cruelty
contemplated is a conduct of such type that the petitioner can not
reasonably be expected to live with the respondent.
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