Classic Case on defenition of Cruelty

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Jan 15, 2006, 11:48:37 AM1/15/06
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CASE NO.: Appeal (civil) 3930 of 2002




DATE OF JUDGMENT: 11/07/2002




Leave granted.

What is the meaning and import of the expression 'cruelty' as a
matrimonial offence is the core question on the determination of which
depends the result and the fate of this case.

The appellant is the wife of the respondent. They were married
according to Hindu rites and customs on 6th December, 1985. The
marriage was preceded by negotiation between the two families, ring
exchange ceremony, etc.A meeting between the boy and the girl was also
arranged at Yamuna Nagar in the State of Haryana. After marriage the
spouses stayed together at Panipat where the respondent was posted as a
Judicial Officer. They lived together till 28th April, 1986 when they
parted company never to stay together again. It is the case of the
respondent that right from the first day of the marriage he sensed
something abnormal with his wife; he was unable to consummate the
marriage as there was no cooperation from the side of the wife for
sexual intercourse. Despite several attempts cohabitation was not
possible for lack of cooperation on the part of the wife. It is the
further case of the respondent that when he first met his wife when
some members of the two families met he had noticed that she was
looking very frail and weak. When he wanted to know the reason for
such state of her health her father and other relations told him that
she had been undergoing a strict diet control and had been making
efforts to reduce her w.eight

On questioning his wife immediately after the marriage the respondent
could ascertain that she was suffering from some ailment and she was
under the treatment of Vaid Amar Nath Sastry of Chandigarh. On 10th
December, 1985 the respondent took his wife to see Mr.Sastry at
Chandigarh who informed him that father of the girl was his close
friend and he was already seized of the problems of her health. He
gave some medicines to be taken by her. Thereafter they returned to
Yamuna Nagar where parents of the respondent were living. Subsequently,
the respondent took the appellant to Panipat where he was posted and
they started living there and continued with the medicines.In February,
1986 the appellant agreed to be examined byDr.B.M.Nagpal of Civil
Hospital, Panipat. The doctor advised a thorough check up and
diagnosis. However, this was not possible since the appellant did not
cooperate and ultimately gave out because she was not interested in
taking any medical treatment.

The respondent further alleged that the state of health of the
appellant continued to deteriorate; she continued to lose weight; she
suffered from asthmatic attacks; on account of her ailment her behavior
became quarrelsome; and on trifle matters she threatened to leave the
matrimonial home. It was further contended that during her stay at
Panipat when Surinder Singh Rao and Virender Jain, friends of the
respondent visited his place, the appellant refused to prepare tea and
started misbehaving with him in presence of the outsiders thereby
causing embarrassment to him. Ultimately on 28th April, 1986 her
brother and brother's wife came to Panipat and took the appellant with
them.It was the further case of the respondent that when the appellant
was with her parents several attempts were made by him offering to give
her the best possible medical treatment so that the condition of her
health may improve and both of them could lead a happy married life.
All such attempts failed. The offer of medical treatment was rejected
and even nature of the ailment suffered by her was not disclosed to the

On one occasion when Shri S.K. Jain, a senior officer of the Judicial
Service, then the Legal Remembrancer of Haryana and who later became a
Judge of the High Court was discussing the matter with the parties with
a view to bring about a settlement the appellant caught hold of the
shirt collar of the respondent and created an ugly and embarrassing
situation. Again on 30th July 1986 the appellant accompanied by a
number of persons searched for the respondent in the Court premises at
Kaithal and not finding him there forcibly entered his house and
threatened him. A report about the incident was sent to the superior
officer of the respondent. Alleging the aforestated facts and
circumstances the respondent filed the petition in August, 1996 seeking
dissolution of the marriage on the grounds of cruelty and desertion.

The appellant refuted the allegations made in the petition. She denied
that her husband had been misled regarding the state of her health
before their marriage. She alleged that the marriage was duly
consummated and the phera ceremony was performed; and that her husband
had been expressing full love and affection towards her. She denied
that she suffered from any serious ailment and had been treated by Vaid
Amar Nath Sastri. It was her case that she had become pregnant from the
wedlock but unfortunately there was miscarriage. It was the further
case of the appellant that the respondent and his parents wanted to
pressurisethe appellant and her parents to agree for a divorce by
mutual consent.On 21st June, 1987 when a meeting of relations of both
sides took place at the house of her mother's sister Smt.Parakash Kapur
at Yamuna Nagar the respondent stated that the appellant was too frail
and weak; that she must be suffering from some disease and therefore,
he was not prepared to take her back. Thereafter several attempts were
made by her parents and other relations to persuade the respondent to
take the appellant to his house but such attempts were of no avail on
account of want of any response from the respondent and his parents.

On the pleadings of the parties, the Trial Court
framed the following issues :

"1) Whether the respondent-wife has
deserted the petitioner, if so, its
effect? OPP

2)Whether the respondent-wife is
guilty of cruelty, if so, its effect?

3)Whether this petition is barred by
latches, in accordance with
Section 23(1a) and (d) of the Act?


Both the parties led evidence, both oral and documentary, in support of
their cases. The Trial Court on assessing the evidence on record,
dismissed the petition for divorce filed by the respondent.

The respondent filed an appeal, FAO No.42-M/99 before the High Court
assailing the judgment of the Trial Court.The appeal was allowed by the
learned Single Judge by the judgment rendered on 1st June, 2000. The
learned Single Judge granted the prayer of therespondent for
dissolution of the marriage on the ground of cruelty and further held
that as the marriage took place about 14 years ago and there was no
child out of the wedlock it would be in the interest of justice that
the parties should be separated from each other. The operative portion
of the judgment is quoted hereunder :

"In view of the discussion as such the
only conclusion which can be arrived
at is that despite the fact that the
respondent is a good lady but has
created the aforesaid situation because
of her own act and conduct concerning
the non-disclosure of her state of
health and concealment by her above
acted as a mental and physical cruelty
to the appellant which entitles him to a
decree of divorce. Therefore, the
findings of the learned District Judge
on issue Nos.1 to 3 are reversed.

For the foregoing reasons, the
appeal is allowed, marriage between
the parties stands dissolved and a
decree of divorce on the grounds of
desertion and cruelty is hereby granted
in favour of the appellant (husband)
and against the respondent (wife). In
the circumstances of the case, the
parties are left to bear their own costs.
However, it would be appropriate to
ask the husband not to remarry till
30.9.2000. Hence ordered accordingly."

The wife, who is the appellant herein, filed an appeal before the
Division Bench, Letters Patent Appeal No.1000 of 2000, assailing the
judgment of the learned Single Judge.The Division Bench of the High
Court by the judgment rendered on 8th August, 2000 dismissed the
Letters Patent Appeal in limine. The Division Bench held: "Even
otherwise, in the facts and circumstances of the case in hand, in our
view, it cannot be said that the husband has tried to take advantage of
any wrong on his part. Rather, he did make the best possible effort to
explore the possibility of detecting the deficiency or disease, if any,
and for treatment of poor health of his wife. But, all in vain. We find
no merit in the Letters Patent Appeal. It is, therefore, dismissed in
limine." The said judgment is under challenge in this appeal.

Shri Ujjagar Singh, learned senior counsel appearing for the appellant
contended that in the context of facts and circumstances of the case
the High Court has erred in granting the prayer for divorce by the
respondent on the sole ground of cruelty. He further contended that
even assuming that the spouses did not enjoy normal sexual relationship
with each other on account of frail health of the appellant and there
were heated exchanges between the parties followed by the appellant
catching hold of shirt collar of the husband, that is not sufficient to
establish a case of cruelty for the purpose of Section 13(1)(ia) of the
Act. Shri Singh also contended that if the ground of cruelty fails
then the further ground stated in favour of the decree of divorce that
the marriage has irretrievably broken down will be of no avail to the

Shri Sudhir Chandra, learned senior counsel appearing for the
respondent strenuously contended that in the facts and circumstances of
the case the High Court rightly recorded the finding of cruelty by the
appellant towards the respondent. Elucidating the point Shri Sudhir
Chandra submitted that the respondent was kept in the dark about the
poor state of health of the appellant at the time of the marriage
negotiations despite the query made by him about the reason for her
frail and weak health. After marriage when the respondent was prepared
to provide the best possible medical treatment to improve her health
neither the appellant nor her parents extended their cooperation in the
matter. Further, the erratic and impulsive behavior of the wife caused
serious embarrassment to the respondent before his friends and
colleagues. The cumulative effect of all the aforesaid facts and
circumstances of the case, according to Shri Sudhir Chandra, give rise
to reasonable apprehension in the mind of the respondent that it is not
safe to continue matrimonial relationship with the appellant. Thus a
case of cruelty for the purpose of Section 13(1)(ia) was made out. It
was the further contention of Shri Sudhir Chandra that the respondent
remarried in December, 2000, two years after the judgment of the Single
Judge and nearly four months after the judgment of the Division Bench
was rendered. In the facts and circumstances of the case, urged Shri
Sudhir Chandra, this is not a fit case for this Court to interfere with
the judgment and decree passed by the High Court in exercise of its
jurisdiction under Article 136 of the Constitution of India.

As noted earlier, the learned Single Judge granted the respondent's
prayer for dissolution of the marriage on the ground of 'cruelty'.
Therefore, the question arises whether in the facts and circumstances
of the case a case for divorce under Section 13(1)(ia) of the Hindu
Marriage Act,1955 (for short 'the Act') has been made out. The answer
to this question depends on determination of the question formulated

In Section 13(1) it is laid down that :

"Divorce.- (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

xxx xxx xxx

(ia)has, after the solemnization of
the marriage, treated the petitioner
with cruelty;"

Under the statutory provision cruelty includes both physical and mental
cruelty. The legal conception of cruelty and the kind of degree of
cruelty necessary to amount to a matrimonial offence has not been
defined under the Act. Probably, the Legislature has advisedly
refrained from making any attempt at giving a comprehensive definition
of the expression that may cover all cases, realising the danger in
making such attempt. The accepted legal meaning in England as also in
India of this expression, which is rather difficult to define, had been
'conduct of such 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' (Russel v. Russel [(1897) AC 395 and Mulla
Hindu Law, 17th Edition, Volume II page 87]. The provision in clause
(ia) of Section 13(1), which was introduced by the Marriage Laws
(Amendment) Act 68 of 1976, simply states that 'treated the
petitioner with cruelty'. The object, it would seem, was to give a
definition exclusive or inclusive, which will amply meet every
particular act or conduct and not fail in some circumstances. By the
amendment the Legislature must, therefore, be understood to have left
to the courts to determine on the facts and circumstances of each case
whether the conduct amounts to cruelty. This is just as well since
actions of men are so diverse and infinite that it is almost impossible
to expect a general definition which could be exhaustive and not fail
in some cases. It seems permissible, therefore, to enter a caveat
against any judicial attempt in that direction (Mulla Hindu Law, 17th
Eidition, Volume II, page 87).

This Court in the case of Dastane vs. Dastane, AIR 1975 SC 1534,
examined the matrimonial ground of cruelty as it was stated in the old
Section 10(1)(b) and observed that any inquiry covered by that
provision had to be whether the conduct charged as cruelty is of such a
character as to cause in the mind of the petitioner a reasonable
apprehension that it will be harmful or injurious to live with the
respondent. It was further observed that it was not necessary, as under
the English law that the cruelty must be of such a character as to
cause danger to life, limb or health, or as to give rise to a
reasonable apprehension of such a danger though, of course, harm or
injury to health, reputation, the working character or the like would
be an important consideration in determining whether the conduct of the
respondent amounts to cruelty or not. In essence what must be taken as
fairly settled position is that though the clause does not in terms say
so it is abundantly clear that the application of the rule must depend
on the circumstances of each case; that 'cruelty' contemplated is
conduct of such type that the petitioner cannot reasonably be expected
to live with the respondent. The treatment accorded to the petitioner
must be such as to cause an apprehension in the mind of the petitioner
that cohabitation will be so harmful or injurious that she or he cannot
reasonably be expected to live with the respondent having regard to the
circumstances of each case, keeping always in view the character and
condition of the parties, their status environments and social values,
as also the customs and traditions governing them.

In the case of Savitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73,
this Court construing the question of 'cruelty' as a ground of divorce
under Section 13(1)(ia) of the Act made the following observations :

"Treating the petitioner with cruelty is
a ground for divorce under Section
13(1)(i-a) of the Act.Cruelty has not
been defined under the Act but in
relation to matrimonial matters it is
contemplated as a conduct of such
type which endangers the living of the
petitioner with the respondent. Cruelty
consists of acts which are dangerous to
life, limb or health. Cruelty for the
purpose of the Act means where one
spouse has so treated the other and
manifested such feelings towards her
or him as to have inflicted bodily
injury, or to have caused reasonable
apprehension of bodily injury, suffering
or to have injured health. Cruelty may
be physical or mental.Mental cruelty
is the conduct of other spouse which
causes mental suffering or fear to the
matrimonial life of the other. "Cruelty",
therefore, postulates a treatment of the
petitioner with such cruelty as to cause
a reasonable apprehension in his or
her mind that it would be harmful or
injurious for the petitioner to live with
the other party. Cruelty, however, has
to be distinguished from the ordinary
wear and tear of family life. It cannot
be decided on the basis of the
sensitivity of the petitioner and has to
be adjudged on the basis of the course
of conduct which would, in general, be
dangerous for a spouse to live with the
other.In the instant case both the
trial court as well as the High Court
have found on facts that the wife had
failed to prove the allegations of cruelty
attributed to the respondent.
Concurrent findings of fact arrived at
by the courts cannot be disturbed by
this Court in exercise of powers under
Article 136 of the Constitution of India.
Otherwise also the averments made in
the petition and the evidence led in
support thereof clearly show that the
allegations, even if held to have been
proved, would only show the sensitivity
of the appellant with respect to the
conduct of the respondent which
cannot be termed more than ordinary
wear and tear of the family life."

This Court, construing the question of mentral cruelty under Section
13(1)(ia) of the Act, in the case of G.V.N.Kameswara Rao vs. G.Jabilli,
(2002) 2 SCC 296, observed :

"The court has to come to a conclusion
whether the acts committed by the
counter-petitioner amount to cruelty,
and it is to be assessed having regard
to the status of the parties in social
life, their customs, traditions and other
similar circumstances.Having regard
to the sanctity and importance of
marriages in a community life, the
court should consider whether the
conduct of the counter-petitioner is
such that it has become intolerable for
the petitioner to suffer any longer and
to live together is impossible, and then
only the court can find that there is
cruelty on the part of the counter-
petitioner. This is to be judged not
from a solitary incident, but on an
overall consideration of all relevant

Quoting with approval the following passage from the judgment in
V.Bhagat vs. D.Bhagat, (1994) 1 SCC 337, this Court observed therein:

"Mental cruelty in Section 13(1)(i-a)
can broadly be defined as that conduct
which inflicts upon the other party
such mental pain and suffering as
would make it not possible for that
party to live with the other. In other
words, mental cruelty must be of such
a nature that the parties cannot
reasonably be expected to live together.
The situation must be such that the
wronged party cannot reasonably be
asked to put up with such conduct and
continue to live with the other party.It
is not necessary to prove that the
mental cruelty is such as to cause
injury to the health of the petitioner.
While arriving at such conclusion,
regard must be had to the social
status, educational level of the parties,
the society they move in, the possibility
or otherwise of the parties ever living
together in case they are already living
apart and all other relevant facts and
circumstances which it is neither
possible nor desirable to set out
exhaustively. What is cruelty in one
case may not amount to cruelty in
another case. It is a matter to be
determined in each case having regard
to the facts and circumstances of that
case. If it is a case of accusations and
allegations, regard must also be had to
the context in which they were made".

Clause (ia) of sub-Section (1) of Section 13 of the Act is
comprehensive enough to include cases of physical as also mental
cruelty. It was formerly thought that actual physical harm or
reasonable apprehension of it was the prime ingredient of this
matrimonial offence. That doctrine is now repudiated and the modern
view has been that mental cruelty can cause even more grievous injury
and create in the mind of the injured spouse reasonable apprehension
that it will be harmful or unsafe to live with the other party. The
principle that cruelty may be inferred from the whole facts and
matrimonial relations of the parties and interaction in their daily
life disclosed by the evidence is of greater cogency in cases falling
under the head of mental cruelty. Thus mental cruelty has to be
established from the facts (Mulla Hindu Law, 17th Edition, Volume II,
page 91).

In the case in hand the foundation of the case of 'cruelty' as a
matrimonial offence is based on the allegations made by the husband
that right from the day one after marriage the wife was not prepared to
cooperate with him in having sexual intercourse on account of which the
marriage could not be consummated.When the husband offered to have the
wife treated medically she refused. As the condition of her health
deteriorated she became irritating and unreasonable in her behaviour
towards the husband. She misbehaved with his friends and relations.
She even abused him, scolded him and caught hold of his shirt collar in
presence of elderly persons like Shri S.K.Jain. This Court in the case
of Dr.N.G.Dastane Vs. Mrs.S.Dastane (supra), observed : "Sex plays an
important role in marital life and cannot be separated from other
factors which lend to matrimony a sense of fruition and fulfillment".

Cruelty for the purpose of Section 13(1)(ia) is to be taken as a
behavior by one spouse towards the other which causes reasonable
apprehension in the mind of the latter that it is not safe for him or
her to continue the matrimonial relationship with the other. Mental
cruelty is a state of mind and feeling with one of the spouses due to
the behavior or behavioral pattern by the other. Unlike the case of
physical cruelty the mental cruelty is difficult to establish by direct
evidence. It is necessarily a matter of inference to be drawn from the
facts and circumstances of the case. A feeling of anguish,
disappointment and frustration in one spouse caused by the conduct of
the other can only be appreciated on assessing the attending facts and
circumstances in which the two partners of matrimonial life have been
living. The inference has to be drawnfrom the attending facts and
circumstances taken cumulatively. In case of mental cruelty it will not
be a correct approach to take an instance of misbehavior in isolation
and then pose the question whether such behaviour is sufficient by
itself to cause mental cruelty. The approach should be to take the
cumulative effect of the facts and circumstances emerging from the
evidence on record and then draw a fair inference whether the
petitioner in the divorce petition has been subjected to mental cruelty
due to conduct of the other.

Judged in the light of the principles discussed above what we find is
that right from the beginning the matrimonial relationship between the
parties was not normal; the spouses stayed together at the matrimonial
home for a short period of about six months; the respondent had been
trying to persuade the appellant and her parents to agree to go for
proper medical treatment to improve her health so that the parties may
lead a normal sexual life; all such attempts proved futile. The
appellant even refused to subject herself to medical test as advised by
the doctor.After 21st June, 1987 she stayed away from the matrimonial
home and the respondent was deprived of her company. In such
circumstances, the respondent who was enjoying normal health was likely
to feel a sense of anguish and frustration in being deprived of normal
cohabitation that every married person expects to enjoy and also social
embarrassment due to the behavior of the appellant. Further, the
conduct of the appellant in approaching the police complaining against
her husband and his parents and in not accepting the advice of the
superior judicial officer Mr.S.K.Jain and taking a false plea in the
case that she had conceived but unfortunately there was miscarriage are
bound to cause a sense of mental depression in the respondent. The
cumulative effect of all these on the mind of the respondent, in our
considered view, amounts to mental cruelty caused due to the stubborn
attitude and inexplicably unreasonable conduct of the appellant.

The learned Single Judge in his judgment has discussed the evidence in
detail and has based his findings on such discussions. In the Letters
Patent Appeal the Division Bench on consideration of the facts and
circumstances of the case agreed with the findings recorded by the
learned Single Judge. In the context of the facts and circumstances on
record we are of the view that the learned Single Judge rightly came to
the conclusion that the prayer of the respondent for dissolution of the
marriage on the ground of cruelty under Section 13(1)(ia) of the Act
was acceptable. Therefore, the Division Bench committed no error in
upholding the judgment of the learned Single Judge.

As noted earlier the parties were married on 6th December, 1985. They
stayed together for a short period till 28th April 1986 when they
parted company.Despite several attempts by relatives and well-wishersno
conciliation between them was possible.

The petition for the dissolution of the marriage was filed in the year
1996. In the meantime so many years have elapsed since the spouses
parted company. In these circumstances it can be reasonably inferred
that the marriage between the parties has broken down irretrievably
without any fault on the part of the respondent. Further the respondent
has re-married in the year 2000. On this ground also the decision of
the High Court in favour of the respondent's prayer for dissolution of
the marriage should not be disturbed. Accordingly this appeal fails
and is dismissed. There will, however, be no order for costs.

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