HMA 13(1)(ia): Divorce based on "Cruelty" can be physical or mental

[Pitchai Muthu]

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The expression “cruelty” has not been defined, however Section
13(1)(ia) of the Hindu Marriage Act 1955, provides:

13 Divorce —
(1) Any marriage solemnised, 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;
(ia) has, after the solemnisation of the marriage, treated the
petitioner with cruelty;

Cruelty can be physical or mental

Cruelty, which is a ground for dissolution of marriage, may be defined
as willful 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. The question of mental
cruelty has to be considered in the light of the norms of marital ties
of the particular society to which the parties belong, their social
values, status, and environment in which they live.

If from the conduct of the spouse, an inference can be legitimately
drawn that the treatment of the spouse is such that it causes an
apprehension in the mind of the other spouse, about his or her mental
welfare, then this conduct amounts to cruelty. Cruelty may be physical
or corporeal or may be mental. In physical cruelty, there can be
tangible and direct evidence, but in the case of mental cruelty, there
may not at the same time be direct evidence. In cases where there is
no direct evidence, Courts are required to probe into the mental
process and mental effects of incidents that are brought out in
evidence. It is in this view that one has to consider the evidence in
matrimonial disputes.

Cruelty may be mental or physical, intentional or unintentional. If it
is physical, the Court will have no problem in determining it. It is a
question of fact and degree. If it is mental, the problem presents
difficulties. First, the inquiry must begin as to the nature of cruel
treatment, second the impact of such treatment in the mind of the
spouse, whether it caused reasonable apprehension that it would be
harmful or injurious to live with the other.

Ultimately, it is a matter of inference to be drawn by taking into
account the nature of the conduct and its effect on the complaining
spouse. However, there may be a case where the conduct complained of
itself is bad enough and per se unlawful or illegal. Then the impact
or injurious effect on the other spouse need not be inquired into or
considered. In such cases, the cruelty will be established if the
conduct itself is proved or admitted.

Physical violence is not absolutely essential to constitute cruelty

To constitute cruelty, the conduct complained of should be “grave and
weighty” so as to come to the conclusion that the petitioner spouse
cannot be reasonably expected to live with the other spouse. It must
be something more serious than “ordinary wear and tear of married
life”. Physical violence is not absolutely essential to constitute
cruelty, and that a consistent course of conduct inflicting
immeasurable mental agony and torture may well constitute cruelty.
Mental cruelty may consist of verbal abuses and insults by using
filthy and abusive language leading to constant disturbance of mental
peace of the other party.

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Every matrimonial conduct, which may cause annoyance to the other, may
not amount to cruelty. Mere trivial irritations, quarrels between
spouses, which happen in day-to-day married life, may also not amount
to cruelty. Cruelty in matrimonial life may be of unfounded variety,
which can be subtle or brutal. It may be words, gestures or by mere
silence, violent or non-violent.1

The concept of cruelty has varied from time to time, from place to
place and from individual to individual in its application according
to social status of the persons involved and their economic conditions
and other matters. The question whether the act complained of was a
cruel act is to be determined from the whole facts and the matrimonial
relations between the parties. In this connection the culture,
temperament and status in life and many other things are the factors
which have to be considered. All these factors need be considered for
judging the conduct complained of in relation to the fact as to
whether it amounts to matrimonial offence of cruelty.2

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Now it would be sufficient to show that the conduct of one of the
spouses is so abnormal and below the accepted norm that the other
spouse could not reasonably be expected to put up with it. The conduct
is no longer required to be so atrociously abominable which would
cause a reasonable apprehension that it would be harmful or injurious
to continue the cohabitation with the other spouse. Therefore to
establish cruelty it is not necessary that physical violence should be
used. However continued ill-treatment cessation of marital
intercourse, studied neglect, indifference of one spouse to the other
may lead to an inference of cruelty.3

Cruelty is a mixed question of law and fact

What is cruel treatment is to a large extent a question of fact or a
mixed question of law and fact and no dogmatic answer can be given to
the variety of problems that arise before the Court in these kind of
cases. The law has no standard by which to measure the nature and
degree or cruel treatment that may satisfy the test. It may consist of
a display of temperament, emotion or pervasion whereby one gives vent
to his or her feelings, without intending to injure the other. It need
not consist of direct action against the other but may by misconduct
indirectly affecting the other spouse even though it is not aimed at
that spouse.

It is necessary to weight all the incidents and quarrels between the
parties keeping in view the impact of the personality and conduct of
one spouse upon the mind of the other. Cruelty may be inferred from
the facts and matrimonial relations of the parties and interaction in
their daily life disclosed by the evidence and inference on the said
point can only be drawn after all the facts have been taken into
consideration. Where there is proof of a deliberate course of conduct
on the part of one, intended to hurt and humiliate the other spouse,
and such a conduct is persisted, cruelty can easily be inferred.
Neither actual nor presumed intention to hurt the other spouse is a
necessary element in cruelty.4

It is difficult to lay down a precise definition or to give exhaustive
description of the circumstances, which would constitute cruelty. It
must be of the type as to satisfy the conscience of the Court that the
relationship between the parties had deteriorated to such extent due
to the conduct of the other spouse that it would be impossible for
them to live together without mental agony, torture or distress, to
entitle the complaining spouse to secure divorce. Physical violence is
not absolutely essential to constitute cruelty and a consistent course
of conduct inflicting immeasurable mental agony and torture may well
constitute cruelty. Mental cruelty may consist of verbal abuses and
insults by using filthy and abusive language leading to constant
disturbance of mental peace of the other party.

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Treated with cruelty denotes a conscious action

The Court dealing with the petition for divorce on the ground of
cruelty has to bear in mind that the problems before it are those of
human beings and the psychological changes in a spouse’s conduct have
to be borne in mind before disposing of the petition for divorce.
However insignificant or trifling, such conduct may cause pain in the
mind of another, but before the conduct can be called cruelty, it must
touch a certain pitch of severity. It is for the Court to weigh the
gravity. It has to be seen whether the conduct was such that no
reasonable person would tolerate it. It has to be considered whether
the complainant should be called upon to endure as a part of normal
human life. Every matrimonial conduct, which may cause annoyance to
the other, may not amount to cruelty. Mere trivial irritations,
quarrels between spouses, which happen in day-to-day married life, may
also not amount to cruelty. Cruelty in matrimonial life may be of
unfounded variety, which can be subtle or brutal. It may be by words,
gestures or by mere silence, violent or non-violent.5

The word “treated” as used in Section 13(1)(ia) denotes a conscious
action and includes an omission which has to be cruel in order to call
for a decree of divorce. Thus, a conscious act, cruel in nature is the
requirement of the provision.6

Disclaimer: This article is not a substitute for professional legal
advice. This article does not create an attorney-client relationship,
nor is it a solicitation to offer legal advice.

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