Saturday, 28 May 2022

Cruelty as Ground of Divorce Under Hindu Law

 Cruelty as Ground of Divorce Under Hindu Law


As Per the Ancient Hindu Law, marriage is a sacred institution and it is one of the ten sacraments and therefore, divorce was not recognised unless approved by customs. However, Hindu Marriage Act, 1955 changed this position with the introduction of Section 13, which in its operation is retrospective as well as prospective. It lays down 15 grounds for divorce available to husband and wife or to wife only.


Theories of divorce:

Fault Theory: Under this theory, marriage can be ended when one party to the marriage is responsible or liable for the offence under matrimonial offences done against another spouse. Only the innocent spouse can seek this remedy. The only drawback of this theory is when both the spouse are at fault, then no one can seek these remedy of divorce.


Mutual Consent: Under this theory, the marriage can be dissolved by mutual consent. If both the spouse mutually gives their consents to end the marriage, they can take the divorce. But many philosophers criticise this theory as this concept is immoral and leads to hasty divorce.


Irretrievable Breakdown: According to this theory, the dissolution of marriage happens due to failure of the matrimonial relationship. The divorce can be taken by the spouse as a last resort i.e. when both of them are not able to live together again.


Cruelty: Cruelty as a ground for divorce has been laid down in Section 13 (1)(I-a). Cruelty is also an offence under Section 498A of the Indian Penal Code. In Shobha Rani V. Madhukar Reddi, the definition of the word ‘cruelty’ was expanded. The concept refers to human conduct in relation to matrimonial obligations and includes mental as well as physical cruelty, intentional or unintentional. To determine physical cruelty, one needs to determine to what degree and why the harm was caused. For instance, keeping in illegal confinement, starving or causing fractures of any organ. Whereas, for the mental cruelty, one needs to infer what has been the impact of such cruel treatment of the mind of the spouse. For instance, mental cruelty against wife by husband: False accusation of adultery, demand for dowry, impotency of Husband, the problem of drunkenness of husband, aggressive and uncontrollable behaviour of the husband etc. Instances of mental cruelty against husband by wife: humiliating the husband in front of his family and friends, undertaking the termination of pregnancy without husband consent, making false allegation against him, denial for Martial Physical Relationship without a valid reason, ill-treatment to the husband parents and family etc.


Judicial Pronouncements: 

  • In Shobha Rani case, it was held that lack of intention cannot be a ground for evading punishment. 

  • In A. Jayachandra v. Aneel Kaur, it was held that cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger.

  • In K. Srinivas v. K. Sunita, 2014 it was found that the wife had lodged a false complain against the husband to embarrass and incarcerate him and his family members. The filing of a false complaint was held to be an act of cruelty committed by the wife and therefore the court granted divorce.

  • In Mayadevi V. Jagdish Prasad, 2007 it was held that both and husband can apply for a divorce on grounds of cruelty, not just the wife.   


Other grounds of divorce:

  1. Adultery:  Section 13(1)(i)

  2. Cruelty:  Section 13 (1)(i-a)

  3. Desertion: Section 13(1)(i-b)

  4. Conversion: Section 13(1)(ii)

  5. Unsound Mind: Section 13(1)(iii)

  6. Leprosy: Section 13(1)(iv)

  7. Venereal Disease: Section 13(1)(v)

  8. Renouncing the World: Section 13(1)(vi)

  9. Unheard of for seven years or more: Section 13(1)(vii)

  10. Judicial Separation Decreed: Section 13(1A)(i)

  11. Non-restitution of conjugal rights: Section 13(1A)(ii)

  12. Bigamy: Section 13(2)(i)

  13. Rape, Sodomy, bestiality: Section 13(2)(ii)

  14. Maintenance decreed to wife: Section 13(2)(iii)

  15. Consummation of marriage: Section 13(2)(iv)


Grounds 1-11 are available to both husband and wife and the remaining 12-15 are only available to wife. 


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