Article on "Cruelty in India" by Shrutika Harshada Bhanushali

 

By Shrutika Harshada bhanushali

Ibsar school of law

Sem – VII

Cruelty in India

INTRODUCTION

As a child I always came across my grandmother considering my grandfather as God or so as the typical Indian term “pati parmeshwar” in which she considered her husband to be God. Me belonging from today’s generation always found this thing fascinating, we do not believe in such a concept anymore but there are people especially the women in our society who still think their survival is difficult without a spouse, but the women are not to be entirely blamed for this situations because they live in such mentality. Because their so-called “parmeshwar” concept was is a myth off course. The relationship where a man and woman come together for their rest of life where they should love and respect each other equally, marriage does not give you the right to abuse or rule your partner to treat her as personal slave to torture your partner. A marriage never comes with a condition in India mostly women’s take the extra effort to save their marriage, puts an effort to save their marriage by keeping aside all the differences. When the partner is unable to handle the situation they opt for divorce. In past years men used to beat their wife for dowry they used to torture her treat her as slave as results the cruelty was considered as ground for the divorce or judicial separation. For women’s safety the dowry prohibition act was introduced.  Domestic violence act was introduced for the protection of women in India.

What is cruelty?

So what is cruelty? Cruelty means violent situation. However, a small argument, anger or differences between the partners do not come in the act of cruelty. Such conducts that would lead to cruelty should be severe in nature. Severe violence doesn’t always mean physical violence. Though physical violence is an important consideration that include cruelty but apart from that a continuous process of wrong treatment that is mental or physical torture to either of the spouse would also lead to cruelty. Cruelty is considered as the ground for divorce.

 

Cruelty as a ground for Divorce

According to the Hindu Marriage Act previously it did not have ‘cruelty’ as a ground for divorce. It was after an amendment which was set in 1976 post that “cruelty” became available for seeking both divorce and judicial separation.

The day-today situation in a married life creates a transparency within the couples to lead their life peacefully. However there is no such definition to what all things might lead to an offence of cruelty but if we go through a case of marital abuse happening around us, then we can conclude of certain conditions such as:

 

·         The physical violence can happen on any side of spouses.

·         Having an extra marital affair ,or adultery  with knowledge of spouse or publically accepting it is one of the ground for divorce

·         The constant torture ,rage ,anger yelling abusing ,not treating your spouse properly is considered to be  ground for divorce

·         Disrespecting or discouraging your spouse.

·         Not disclosing any truth or incident of an acquired STD while they are already into marital life and so on.

·         Also when the wife is wrongly accused of compelling adultery.

·         If with all conditions the cruelty is proved by the marital law the cruelty is done. Police investigation is done the court looks after if all the conditions are fulfilled.

Divorce in over-all terms Separation of partners the termination of a marriage with the help of a lawyer and by the marital Law. One can go for divorce when either of the spouses or both of them want to get separated and free themselves from the current relationship.

 

How cruelty was established as a ground for DIVORCE.

If we study the past of the Hindu Marriage Act, 1955, cruelty was not on into consideration as a ground for divorce but was applied only in cases of judicial separation. Here the distressed party or the petitioner has to prove that the cruelty is so severe or so worst that it is getting difficult to go forward with his or her spouse. But this was indorsed by the Supreme Court in a revolutionary case of Narayan Ganesh Dastane vs. Sucheta Narayan Dastane in the year 1975.

 

This led to an alteration in the Act where cruelty started acting as a ground for divorce and was added into the Act with the including a lawful definition to the term cruelty under this Act in 1976. However, the Court also made sure that court should decide the grounds of cruelty on the basis of the case. After the alteration in the act, there was not much difference between the grounds of cruelty in judicial separation and grounds of cruelty in divorce except for two words that are added are “persistently or repeatedly”. By this addition of cruelty as a ground for divorce was given more importance than proving it as a ground for judicial separation. This ground was added under the Section 10(1) of the Hindu Marriage Act, 1955 and now “Cruelty” has a lawful definition.

 

Other provisions under the law

Section 498A of IPC deals with the offence of cruelty against a wife by her husband and/or in-laws

Ingredients of Section 498A

·         The woman must have been inflicted by any kind of cruelty.

·         The woman and man must be lawfully married.

·         To prove cruelty in marriage the cruelty must be done by the husband or wife or the family members of Partners respectively.

·         If the cruelty is compelled by husband he is liable for imprisonment under sec 498 a of Indian penal code which may extend to three years and fine.

 

Explanation to Section 498A under the Indian Penal Code

The expression “cruelty” has been defined in a wider vision under this section, that is:

“The beginning of any willful conduct of such a nature which would likely drive the wife to commit suicide or would cause her grave injuries or danger by inflicting physical or mental harm to life, limb or health of the wife.”

If there’s harassment done or force her or her relations to meet any unlawful demands such as property dowry or valuable safety.

 

Related case law

In the case of Smt. Mayadevi Vs. Jagdish Prasad : A.I.R.2007 SUPREME COURT 1426, honourable Justice Dr. Arijit Pasayat, in para 13 says “ the foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling difference should not be exaggerated and magnified to destroy what is said to have been made in heaven. “It means, if the tolerance extends beyond limit, then a party has to approach before the court. These are some examples related with this matter. IN this case of Reema Aggarwal Vs. Anupam of 2004, Reema was harassed by husband Anupam(along with his mother and father) for not being able to provide dowry. The defendant forced Reema to put some poisonous substance in her mouth to end her life because of which she was rushed to the hospital. The Court held that the husband of the second wife who marries her during the subsistence of earlier legal marriage is not the husband within the meaning of Section 498A because it was the second marriage of both Reema and Anupam and hence, the second wife cannot invoke this section. The respondents were acquitted of the charged offences under Sections 307, 498A of IPC. Cruelty under Section 13(1)(ia) of the Hindu Marriage Act  Does not consit the proper defination of cruelty but in normal terms it means the physical and mental torture .

 

How does cruelty work in India?

Cruelty is a serious offence and yet less talked about . Even if we try and change, we still cannot change everyone’s mindset because here in India women rarely come up with any complaint against their husbands and in-laws because of fear, family pressure, society pressure, lack of awareness. And alas they end up suffering violence.

Cruelty can be both physical and mental depending upon the conditions and many other factors such as education, social upbringing, the compassion of individual victim. The main purpose behind all these acts is to safeguard a woman’s self-esteem in her marital home. Marital relationships between the wife with her husband and her in-laws, their different cultures and ways off living, state of health and their daily interactions determine cruelty and the nature of it.

 

Kinds of cruelty

Cruelty can be mentally or physically. Physical cruelty includes harsh treatment, beating ,etc mental cruelty includes abuse torture doubtful nature  etc .

Physical cruelty

Under physical cruelty, we are not referring to any violence that takes place anywhere outside but the matrimonial life. Any physical violence, injuries, health apparently and any threat to life causing uneasiness in the mind of the woman would institute physical cruelty on the spouse. Establishing Physical cruelty is not much of a task because one of the most common reasons for divorce is physical violence.

There are some prime examples under such references of Physical Cruelty:

‘Habitual assaults’ under the Muslim Marriage Act, 1939 is one of the grounds for the dissolution of a marriage. Assault in itself is a grave offence as stated under Section 351 of the Indian Penal Code.

Under the Parsi Marriage and Divorce Act, 1936, causing serious hurt is taken as a ground for divorce. Section 320 of the Indian Penal Code defines grievous hurt. Hence, we can conclude that assault, grievous hurt and cruelty are somewhat interrelated to each other and do not pertain much of a difference.

 

Mental cruelty

Nowadays it’s not just about physical pressure, mental cruelty has the same weightage compared with physical cruelty. Determining mental cruelty is more of a challenge than proving physical cruelty. Apart from the physical harm if any woman is inflicted with any kind of mental stress or has to negotiate her mental peace for her spouse, then that totals to mental cruelty. However, we will never come to know about the psychology of an individual and sometimes people are hypersensitive in nature so in this case if someone accuses someone of having exhibited mental cruelty then it cannot be 100% true. Mental straining can happen in various ways so there are is no one specific standard which would total to mental cruelty for example, if the spouse is forcing the wife to do something without consent of the wife, anything not expressed by the spouse which creates a sense of doubt also amounts to mental cruelty. Mental cruelty as ground for divorce when first passed the Hindu Marriage Act did not have ‘cruelty’ as a ground for divorce. It was after an alteration in 1976 that this basis became available for seeking both divorce and judicial separation. While the term ‘cruelty’ in the Act, without thorough definition.

 

Is a man entitled to a divorce?

In the milestone judgment of Maya Devi Vs. Jagdish Prasad in February 2007, the Supreme Court held that any kind of mental cruelty faced by either of the spouses not just the woman but men as well can opt for a divorce on grounds of cruelty. In this landmark case, the husband was facing cruelty repeatedly by wife. He stated that he’s wife used to not give him food to him and family. This amount to torture so he was entitled to get divorce on the ground of cruelty according to new amendment a man is too entitled to get divorce under cruelty in marriage .a man is also entitled to divorce if he is having any kind of cruelty. According to new amendment in cruelty mental harassment is added as ground for divorce

 

Conclusion

The situation in cruelty in marriage has been changed drastically. Women started misusing the power. Men were helpless as this offence was non cognizable they used to suffer, mentally and physically the status of one is affected. Hence complaints for divorce on grounds of cruelty have been reduced nowadays because now there are strict laws related to cruelty .Indian Judiciary says that Cruelty can be decided by the education, life style and social Status of the spouse because people nowadays prefer settling themselves with whatever condition they are in. But one needs to understand that the provisions made are going to help and safeguard .This change was mandatory as everyone is entitled for justice and not just as a tool for defense.