Divorce under Hindu Law-Cruelty

Under clause (ia) of sub-section (1) of section 13 and under sub-section (1) of section 10 of the Hindu Marriage Act, 1955 cruelty is a ground of divorce as well as judicial separation respectively. Whether a particular act or conduct complained of is covered under the ground of cruelty or not, will always be decided on facts and circumstances in each case.

What is Cruelty?
Under the English Law, legal concept of cruelty is conduct of such a character as to cause danger to life, limb or health (physical or mental) or as to give rise to a reasonable apprehension of such danger. Before the amendment of the Hindu Marriage Act, which was brought in the year 1976, the rigid meaning and interpretation was given to the ground of cruelty. But even before the amendment, the Supreme Court in Dastane Vs. Dastane, AIR 1975 SC 1534, tried to give a literal meaning to the ground of cruelty applicable in terms of divorce or judicial separation.

Though the concept of English Law and the Hindu Marriage Act in terms of cruelty as a ground for divorce or judicial separation is more or less the same, yet the learned Judges in India still hold that marriage is a sacrament taking into consideration the social and cultural conditions of our country.

In Sukumar Vs Manohar Shivaram Jagesha, the Court observed:
The question whether a particular act or behaviour would amount to cruelty or not depends upon the character, way of life of the parties, their social and economic conditions, their status, customs and traditions. Each case is to be decided on the facts of its own. The judges and the lawyers should not import their own notions of life while dealing with matrimonial cases.

Classification of Cruelty:
Cruelty is classified into two heads.
1. Physical cruelty and
2. Mental cruelty

Physical Cruelty:
It is a settled law that physical violence is not necessary ingredient of cruelty. Unending accusations and imputations can cause more pain and misery than a physical beating. Therefore, it goes without saying that the act of cruelty consists of mental torture or physical violence. If it is a physical violence, there will be no problem for a court to arrive at a decision while determining a case presented before it, but in case of mental torture or harassment, the court finds comparatively more difficult to come to final conclusion.

Firstly the court begins its enquiry as to the nature of cruel treatment as well as the impact of that treatment in the mind of the spouse. Ultimately it is a matter of inference to be drawn by taking into account of the nature of the conduct and its effect on the complaining spouse.

Kaushalya Vs Wisakhi Ram:
The husband had been ill treating the wife and beating her. On one occasion she had to go to the police station to lodge a complaint against her husband. The Punjab and Haryana High Court observed that according to the standards of all civilized world these acts would constitute cruelty, even though injuries might not be serious as to require medical treatment.

Saptmi Vs Jagdish:
It was held that if a husband constantly abuses and insults the wife and occasionally resorts to physical violence against her, it amounts to cruelty.

Mental Cruelty:
An act of mental cruelty is far more severe and dangerous than an act of physical violence. The eye opener cases of mental cruelty are Mohit Bhatnagar Vs Sangeeta Bhatnagar and Deepak Johri Vs Kum Kum Johri, the case of Mohit Bhatnagar has since been decided by the Matrimonial Court after 7 years of long battle and the case of Deepak Johri is still pending in the High Court of Delhi.

Deepak Johri and his wife Kum Kum Johri have been living separately for more than 12 years and the Court has yet to decide their fate. Criminal proceedings against Mohit Bhatnagar are still going on. As per my opinion, the non-decision of such cases for a very long time, also amount to mental torture, agony, and punishment of the highest order. In other words this amounts to mental cruelty to both the parties on account of delay oriented procedure prevalent in the courts, whatever be the reasons.

In the judgment of the Supreme Court in V. Bhagat Vs D. Bhagat,(1994)1SCC337,AIR1994SC710 the learned judges granted the relief by cutting short the delay oriented procedure adopted by the District Court as well as the High Court of Delhi. Every matrimonial petition may be heard on day to day basis, and be disposed of within six months from the service of the petition on the respondent. The High Court is also required to dispose of every appeal within three months of the service of the notice of appeal to the respondent.

Inspite of the fact that the law provides that every matrimonial proceeding should be completed within six months, no serious efforts are made either by the courts or by the advocates to adhere to the time limit. And the reality is that no matrimonial proceedings are completed before five or ten years. This long delay itself is also the cause of mental torture or mental cruelty to all aggrieved parties facing matrimonial proceedings in the courts.

How to prove mental cruelty?
The standard of in case of mental cruelty need not be beyond reasonable doubt, as is required in the criminal trials. What is required in such cases is that the court must be satisfied of preponderance of probabilities and not satisfaction beyond all reasonable doubts.

The act of mental cruelty in matrimonial homes, matrimonial violence and wife battering continues all over the world. Often the unwanted acts of mental cruelty prove to be much more devastating than the acts of physical violence.

Mental cruelty can be inflicted by many ways. A false criminal case to harass the husband would be an act of cruelty. Refusal to have marital intercourse, false complaints to the employees by the wife, an act of nagging, false, scandalous, malicious and baseless charges etc. come under the purview of mental cruelty.

Kiran Mandal Vs Mohini Mandal:Punjab-Haryana High on 10/3/1989
Where a wife is found to be of bad temperature and makes false allegations against her husband that he had illicit relations with his brother's wife. It amounted to an act of cruelty.

Harbhajan Singh Vs Amarjit Kaur: Supreme Court on 23/10/2002
The wife not only refused to do household work, but in the presence of guests, also forced the husband to clean the dining table, utensils and crockery. She even slapped the husband. She used to keep her husband waiting outside the house for half an hour or more on his return from the office. She went to the extent of levelling false charges of embezzlement against her husband to the bank authorities, where he was employed.

Shanti Devi Vs Raghav Prakash: Rajasthan High Court on 29/10/1984

The wife made an allegation that her husband was impotent. She also put on fire the doctoral thesis of her husband, which was yet to be submitted. The husband was a lecturer in the college.The value of the thesis to a student who wants to do Ph. D. is undoubtedly great and any damage done to it is bound to upset him and causes irreparable mental agony and torture. Unfortunately, the burning of thesis by Shanti Devi wife cannot be ignored and it is bound to be treated as an act of great cruelty.

Ashok Kumar Vs Vijay Lakshmi:
False allegations of the wife that an attempt by the husband was made to burn her amounts to cruelty.

Condonation of Cruelty:
Condonation is forgiveness of conjugal offence with full knowledge of all circumstances. To constitute condonation there must be two things, viz., forgiveness and restoration. Forgiveness is the essence of condonation. To be condonation, it must completely restore the offending party and must be followed by cohabitation. There is no condonation unless conjugal cohabitation has been resumed or continued.

While filing a petition for divorce, on the ground of cruelty in the matrimonial court, the aggrieved party is required specifically to mention that he / she has not condoned the cruelty. Even in an affidavit, he / she is required to mention the non - condonation of cruelty to get a decree of divorce on the basis of cruelty.

Custody of Children

Section 26 of the Hindu Marriage Act, 1995 deals with the custody of children. The matrimonial court can grant the custody of the child, as an interim measure, in a case pending before it.

The Section gives the appropriate court (usually the Court of Additional District Judge) ample power, to issue directions, or pass orders, during the pendency of the proceedings, or at any time thereafter, for the custody, maintenance and education of minor children of the couple who are partner to the proceedings.

The wishes of the children, wherever it is possible to do so, are always kept in mind by the courts, while passing orders in connection with the custody of the minor children. The power to make such orders includes the power to revoke, suspend or vary them and includes interim orders as well as final orders.

Property of Minor Children:
This section does not speak about the property of the minor children. In fact, the provisions of this section can not be interpreted to affect the ordinary law of guardianship of minor children. This section does not speak about the property of the minor children; it speaks only of their custody, maintenance, and education, or in other words the guardianship of their persons.

The factors, which the court keeps in mind, while deciding the question of the minor children:
There are of course various factors, which have to be kept in mind by the courts deciding the question of the custody of the minor children. The High Court of Himachal Pradesh observed that “The welfare of the minor is the crucial thing to be regarded by the court”. (In Paraminder Lal Sarin Vs Suma Lata, AIR 1984 HP1)

The orders passed by the competent court in regard to the custody of the children, pending disposal of the case, are not final. These are interim orders. They are subject to change, depending upon the circumstances of the case. The court has very wide powers to change, vary or alter its earlier order in case the need arises.

Procedure followed by the courts while deciding the custody of minor children:
The normal procedure adopted by the courts is very simple. The mother invariably gets the custody of the child, if the child is below the age of five years. After the child has crossed the age of five, the custody of the male child goes to the father, and custody of female goes to the mother. But the court has ample powers to deviate from the normal procedure, taking into consideration the facts and circumstances of each case brought before it.

A. V. Venkatakrishnaiah Vs S A Sathyakumar:
The father had remarried and had a son from his second wife. It was quite probable that more issues may be appearing in due course. The step – motherly treatment is proverbial in this country. In the court also minor refused to go to his father. The father was likely to have not much time left to look after his son, who would be left with his step mother. Taking all the facts into consideration, the Karnataka High Court held that the welfare of the child was not secure in his father’s house, and its custody was refused to him though being an officer in a Bank, he was in a position to look after the child well and had made several deposits in the bank in the name of the child. Therefore the petition of the father for the custody of the child was, dismissed by the Hon’ble High Court.

Court decision safeguards abandoned Child’s future:
The five - month old unnamed girl, who was abandoned by her mother three days after being born, was restored to her guardians, thanks to the landmark judgment by the Lucknow bench of Allahabad High Court. Ironically, the High Court did not honor the claims of either Mr. Sarwan Kumar Sinah to seek custody of the child, or those of Mr. Shakil Aziz, who approached the court on religious grounds.

The Division Bench of the High court, comprising Justice D. K. Trivedi and Justice I. P. Vashistha, lamented the absence of any rules. Devices or regulations adopted by the State Government for adoption and upbringing of such abandoned children, especially since it is a welfare state, spending enormous amounts on populist scheme. The court ruled in favour of a bank officer. Mr. Manoj Rajan Asthana, because he could bring up the child in the best possible manner. His wife, Mrs. Nandini Asthana being a science post graduate, who could take good care of the child’s education in a better way than the wife of the other two contenders, who were not even graduates, the Court observed.

“Both me and Mrs. Asthana are highly educated, financially better placed than the other two contenders, and are much younger than them to ensure proper upbringing of the child” the Asthanas had said.

Regarding Mr. Shakil Azizs claim that being the daughter of Muslim parents, the child should be handed over to a Muslim family only, the Judge observed: “Every infant is a child of God, radiating innocence of an angel. It has no religion, it is man made customs and practices, which emboss him with sectarian brands.” The Court said that child should make her own decisions about her religious beliefs when she comes of age. The Court hoped that her foster parents would bring her up in a liberal environment where human values were given better consideration than dogmatic philosophies.

The unfortunate child was born at the local Dufferin Hospital on April 1st, 1995. Her mother’s name, as per hospital records is Shama, wife of Khalil, a resident of Rakabganj, Lucknow. However, when her mother deserted her and a search was launched, the address was found to be fake. The child, who would otherwise have landed into some orphanage proved to be luckier than other such abandoned children as on reading the news in a local paper, Mr. Shravan Kumar Sinah, a school teacher from Gaya (Bihar) who happened to be in town to visit his brother, went to the hospital to seek the girl’s custody as he had been childless for the past 29 years.

However Mr. Shakil Aziz, also without a child for the past 22 years, finding that there was already a claimant for the child’s custody, appealed to the High Court, seeking guardianship of “daughter of a Muslim family”. But the Court ruled that since Ms. Shama’s name and address could not be verified there was no proof of her religion. While the case was still pending in the High Court, an issueless Mr. Asthana also filed an application to seek the custody of the child.

The Court, while seeking advice of various government and non government organisation on the issue, ordered Dufferin Hospital Superintendent Dr. S. S. Negi to take of the child while the case was being decided in the Court. The High Court also asked Judge J. C. Mishra to ascertain the most suitable guardian for the child. The High Court in its order, has attached a condition that if the Asthana family was not found taking good care of the child, the court will change its decision.