Introduction:
A marriage is considered as sacred and an important social institution all over the civilized society. The patriarchy which is being practiced for thousands of years has suppressed women at every stage of life. Marriage had also become an institution for the suppression of women. Nowadays, with the increase in the number of women in taking education, the view of suppression is changing significantly. Women are started voicing against atrocities that are being committed on them.
In the Hindu Marriage Act 1955, the grounds for divorce are Adultery, Cruelty, Desertion, Conversion, Mental disorder, Leprosy, Vulnerable Diseases etc.[1] Under the Hindu Marriage Act, it is given that the marriage can be dissolved if one party treated others with cruelty.[2] The husband can also file a petition for divorce on the grounds of cruelty from the wife.[3] Allowing husbands to file plea on the grounds of cruelty is better to avoid the fake complaints and maintain gender equality.
The cruelty can be physical or mental. In case V Bhagat vs. D Bhagat[4] the Supreme Court said that mental cruelty must be of such a nature where the parties cannot live together. Also, the Supreme Court in the case of divorce on the ground of cruelty said that “marriage is a delicate and pious bond and to make it going, tolerance and adjustment to an extent is necessary. The act of respondent is to be grave in order to constitute cruelty.”
India is a diverse country and home for many religions and their diverse cultures. Certain practices of some religions are regulated by their personal laws like Muslim personal laws, Hindu laws, etc. Hindu laws are applicable for Buddhists, Jain, and Sikhs.
Various Personal Laws and Cruelty as a Ground for Divorce
- Hindu Personal laws:
With the amendment in the Hindu Marriage Act in the year 1976, the cruelty constitutes a ground for divorce. Before that, it was just a ground for judicial separation.
- Muslim Personal Laws:
Under Section 2 (viii) of the Dissolution of Muslim Marriage act, 1939, a marriage can be dissolved on the grounds of cruelty. It states that, “a woman married under Muslim law shall be entitled to obtain a decree of dissolution of her marriage if the husband treats her with cruelty.”[5] Also, under Muslim law, if the Muslim woman falsely accused of adultery then she can claim the divorce on that ground. But it comes to be true, then she cannot file divorce under Islam.[6]
- Christian Laws:
The divorce of persons professing Christian religion regulates by the Indian Divorce Act, 1869. Section 10 (1) of the Indian Divorce Act contains grounds for dissolution of marriage. The act has given that, “the marriage can be dissolved if the respondent has treated the petitioner with such cruelty as to cause the reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.”[7]
- Persian Law:
Cruelty is a ground for divorce as well as judicial separation under Parsi Marriage and Divorce Act, 1936. Under section 32 (dd) of the act, it has been said that if the court felt improper to compel the plaintiff to live with the defendant, then on the discretion of the court, to decide whether it should be a grant for a decree of divorce or judicial separation.[8]
- Jewish Law:
Jewish law of marriage and divorce is derived from Mosaic and Talmud laws. The Jewish doesn’t have codified laws and that why there is much uncertainty prevailed among the Jewish community.[9] In the case of Mozelle Robin Solomon vs Lt. Col. R.J. Solomon[10] has laid down the entire laws on Jewish marriage and divorce. Jewish women can file a divorce petition on the ground of cruelty.
There is no definite meaning of cruelty, its meaning is not limited nor constant. With the changing lifestyles, modernization, education, family patterns, use of social media, etc. are some of the factors which change the diameter of cruelty.[11] Also, the concept of legal cruelty are changes with the changes of social concepts and standard of living.[12] Also in the report of the Royal Commission on Marriage and Divorce (1956) said that, “We consider that, not to have a limited definition, but to keep the concept of cruelty to such adjustments as it is desirable to make through the media of judicial decisions to accord with the changing social conditions.”[13]
In the case of Samar Ghosh vs Jaya Ghosh[14], the court said that the unilateral refusal to have sexual intercourse for a considerable time without any valid reason amounts to mental cruelty. Also, is in the case of having a child. But the Delhi High Court while dealing with the divorce plea held that “marriage is not a contract for legal sexual pleasure.”[15]
Conclusion
In the cases of grave cruelty, divorce should be granted. Cruelty also violates the fundamental rights which are given by the constitution of India to every citizen. But on the other hand, there are some confusions on the name of cruelty as its meaning is not definite. With the changing norms and lifestyle of the society, the ambit of cruelty has been changing.
The Supreme Court in its judgments said that denial to have sex amounts to mental cruelty. But if denying to have sex inflicts mental cruelty on the husband, then having forceful sex with women also amounts to mental cruelty on women as there is no consent and dignity involved in it. So, it’s necessary that the courts or parliament make this point very clear.
References:
[1] Section 13, Hindu Marriage Act, 1955
[2] Section 13(1) (ia), Hindu Marriage Act, 1955
[3] Section 27(1), Special Marriage Act, 1954
[4] (1966) 2 All E R 257
[5] Section 2 (viii), Dissolution of Muslim Marriage Act, 1939.
[6] Zafar Hussain vs Ummat-Ur-Rehman, 49 Ind Cas 256
[7] Section 10 (1) (x), The Indian Divorce Act, 1869
[8] Section 32 (dd), Parsi Marriage and Divorce Act, 1936
[9] Nikieta Aggrawal, Jewish law of Marriage and divorce in India, ipleaders (January 30, 2017), https://blog.ipleaders.in/jewish-law-marriage-divorce/, (visited on July 23, 2020)
[10] (1979) 81 BOMLR 578
[11] Ayushi Verma, Cruelty as a ground for divorce trends through ages: a study, 2018 IJLMH volume 1
[12] Sirajmohammadkhan Janmohmadkhan vs Hafizunnisa Yasinkhan, (1981) 4 SSC 250
[13] Marriage and Divorce: Report of Royal commission, (June 1, 1956), Volume 8
[14] (2207) 4 SSC 511
[15] Sneha Agarwal, Marriage is not a contract for an legal sexual pleasure: Delhi HC, India Today (February 25, 2018), https://www.indiatoday.in/mail-today/story/-marriage-not-a-contract-for-legal-sexual-pleasure-delhi-court-1177073-2018-02-25, (visited on July 23, 2020)
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