-By Mohd Rameez Raza & Neha Tripathi
The Hindu Marriage Act, 1955 (‘Act’ hereafter) lays down marital laws that are applicable to Hindus, Jains, Buddhists, and Sikhs. Up until the 1970s, the ground for divorce under the Act did not include ‘cruelty’. The various grounds were: voluntary sexual intercourse with any other person than his or her spouse; ceasing to be a Hindu by conversion to another religion; being incurable of unsound mind; desertion for a continuous period of not less than two years immediately preceding the presentation of the petition. In 1976, the word ‘cruelty’ was introduced under Section 13 (1)(ia) of the Act. Immediately after this introduction, many conclusions were made on its basis by the courts and the provision was interpreted in many ways. This article will examine the various interpretations of Section 13 (1)(Ia) made by the Indian courts of law and why we need an exhaustive definition of the word cruelty in the present time.
One of the known cases where the judiciary identified cruelty in a divorce case was back in 1975 in Dastane v. Dastane [AIR 1975 SC 1534]. The counsel, in this case, cited Denning L.J., in Kaslefsky v. Kaslefsky [1950 2 All ER 398] that;
“If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament. This is an easy path to tread especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperiled.”
The Hon’ble Supreme Court after acknowledging this stated that the acts committed by the wife, in this case, cannot be overruled; such as beating the daughter when she was sick, or turning on the light at night and sitting on the bedside to nag the husband. The Hon’ble Supreme Court concluded the decision in favor of the husband citing cruelty by the wife.
Later, in Shobha Rani v. Madhukar Reddi [AIR 1988 SC 121], the court said cruelty need not have an underlying motive of intention and the case was ruled in favour of the wife; not just on the basis of demands of dowry by the husband and the family; the act of demanding dowry would also amount to cruelty and trauma. Further, in Narendra v. K. Meena [(2016) 9 SCC 455] in 2016, the Hon’ble Supreme Court stated that attempted suicide by the wife amounted to cruelty on husband and a successful execution could have led the husband into serious trouble. Asking him to separate from the family as a son amounts to cruelty as in Hindu tradition, a son is obligated to take care of his family. The decision was based on the case of Pankaj Mahajan v. Dimple [(2011) 12 SCC 1], wherein it was held that giving repeated threats to commit suicide amounts to cruelty. The division bench comprising Justice Rakesh Kumar Jain and Justice Harnaresh Singh denied a husband’s plea for divorce on the grounds of mental cruelty saying an enquiry was needed to understand the nature and its impact on the spouse.
Since 1976, many cases have been filed and many rulings have been made on cruelty. These cases present the ambiguous nature of the term cruelty. This ambiguity is irksome given how frequently it has been employed in divorce cases. The denial in one case and acceptance of the ground of mental cruelty in another indicates an intrinsic problem of inconsistency and lack of clarity, a rather dangerous cusp of justice and injustice. With the arrival of the mental health movement in India, it is time to acquire a more sound and extensive understanding of mental cruelty. Physical cruelty is easier to identify and observe, unlike mental cruelty that requires a clinical and psycho-social enquiry.
In Narendra v. K. Meena, mental cruelty was shown to be a result of a woman’s “western thoughts inspired” desire to stay away from in-laws. In this case, what was equally astonishing was how a suicide attempt was seen as a possible plot to torture the husband and thus, another ground for mental cruelty. If seen from a mental health discourse, illnesses like depression, anxiety, schizophrenia and stress are one of the major risk factors for suicide. Therefore, to see it in the light of an Indian saas-bahu stereotype is harmful, or to think of it as a tactic to evade the obligation to live with the husband’s family, is equally concerning. Similarly, in the case of Pankaj Mahajan v. Dimple Kajal where the husband’s plea was denied because the Punjab & Haryana Court concluded, “it is yet to be seen if the mental cruelty is dangerous or not as a ground of divorce.” In this case, it was significant to consider as to what brought a man to a court of law to pursue a legal dissolution of marriage. The court should have at least considered the plea instead of outrightly declaring mental cruelty a frivolous ground for divorce. This judgement is confusing and begs the following question: On what basis will mental cruelty be evaluated or who will determine it?
Currently, the power to determine the definition falls within the ambit of a judge’s discretion. This discretion has been helpful in many cases but equally harmful in others. We need to define cruelty to avoid its murkier implementation as the trauma resulting from mental cruelty can have a serious impact on an individual’s life and people around him/her. Trauma challenges a sense of internal security and safety. It has the power to impact self-confidence and can have life-altering changes in the way we see life. Marriage ties that might have offered a sense of belonging can feel like a burden and a scary space. The betrayal and breach of trust can even lead to violence, furthering the intensity of the trauma. The judicial system needs to recognize the increasing research on mental abuse and its roots.. A clinical psychologist or a psychotherapist specializing in abuse and trauma work can help us in identifying behavioral changes that result from abuse. This identification is significant because: a) it will create a scientific knowledge base around the subject of mental cruelty; b) it will help in eliminating/limiting the subjective interpretations by the judges. This process will also help in strengthening Section 498A of Indian Penal Code, 1860 which has been struggling with the same ordeal. Section 498A being a cognizable and non-bailable offence has attracted its share of criticism. In many cases such as Arnesh Kumar vs State of Bihar [(2014) 8 SCC 273], a vague understanding of cruelty can be seen. The court concluded on the note that, “the arrest must be based on a reasonable satisfaction with respect to genuineness of the case”. To avoid its misuse, the Hon’ble Supreme Court laid down comprehensive provision to push for“no automatic arrest”. The provisions are in place to ensure that vague and cryptic allegations cannot prove cruelty. That is exactly what needs to be understood here. We cannot rely on such varying definitions provided by judges in various cases anymore. No committee or checklist can help determine “genuineness”. Only a scientific and psycho-social enquiry into the construct of mental cruelty would be of help.
To be able to integrate mental health with law and its facets, it is time that we give meaning and interpretation of the aforesaid a serious thought. With the arrival of the new Mental Health Act, 2017, we have managed to establish its need but are we really aware of mental health or suicide or the severe impacts of mental abuse?
[The authors are Mohd Rameez Raza, a student of Bachelor of Law at Integral University, India and Neha Tripathi, an independent researcher based out in Lucknow.]