Sunday 17 May 2015

Grounds of Divorce Section 13 of Hindu Marriage Act

Grounds of Divorce Under Hindu Marriage Act, 1955

Post by Shama Sinha , Advocate   

Email-advshamasinha@gmail.com 


 According to Section 13 of Hindu Marriage Act, 1955 lays down as under:

      

  Section 13. 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:-


            i) is living in adultery; or

           ii) has ceased to be a Hindu by conversion to another religion; or

          iii) has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition; or

          iv) has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or

           v) had, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or

          vi) has renounced the world by entering any religious order; or

         vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; or

        viii) has not resumed cohabitation for a space of two years or upwards after the passing of a decree for judicial separation against that party; or

          ix) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree.

    (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground:-

        i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:

        Provided that in either case the other wife is alive at the time of the presentation of the petition; or

       ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.

Section 13 of the Hindu Marriage Act, 1955, describes the following grounds of divorce as under:

    • Adultery

              Adultery means Sexual intercourse between a married person and a third party. Courts once used adultery, once the sole ground for divorce in some jurisdictions, to punish the guilty. Today courts are more interested in the economic impact of adultery, if any, on the marital estate. The legal definition of adultery however varies from country to country and statute to statute. While at many places adultery is when a woman has voluntary sexual intercourse with a person other than her husband, at other places adultery is when a woman has voluntary sexual intercourse with a third person without her husband’s consent. In the traditional English common law, adultery was a felony. Although the legal definition of "adultery" differs in nearly every legal system, the common theme is sexual relations outside of marriage, in one form or another.
              Hindu Marriage Act, 1955, Section 13(1)(i) describe Adultery as a ground of divorce but does not describe what is Adultery? Adultery is describe under Section 497 of the Indian Penal Code (IPC), 1860, as an offence and is punishable. Section 497 describes Adultery as under:
      Section 497. Adultery. - Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rap, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall be punishable as an abettor.
              Analysis
      • An adultery can be committed only by a man and not by woman;
      • The person committing adultery must also know or should have reason to believe that woman with whom he had intercourse is the wife of another man; and
      • The sexual intercourse should not amount to the offence of rape.

            Adultery cannot be committed without a woman’s consent. Yet, the section burdens man alone for the offence. Though the reasons for this may be justifiable, the woman here is always treated as a victim of the offence. Hence, this section does not contemplate a situation where the same married woman has sexual intercourse with more than one person other than her husband without her husband’s consent. It is highly implausible that even in such a situation the woman would always be the victim and not the person who provokes the offender for the crime. No doubt that the law, as it stands, is inadequate. But the law still stands as it is.

             

       Constitutional Validity of Section 497

              In Yusuf Abdul Aziz Vs The State of Bombay and Husseinbhoy Laljee, 1954 SCR 0930 : AIR 1954 SC 0321, the Constitutional Validity of Section 497 was challenged before Apex Court under Article 14 of Constitution of India on the grounds that it makes an arbitrary discrimination based on sex. Supreme Court held that:


      Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two articles read together validate the impugned clause in section 497 of the Indian Penal Code.

             In Sowmithri Vishnu Vs Union of India and Another, (1985) Supp.1 SCR 0741 : (1985) Supp.SCC 0137 : AIR 1985 SC 1618, the petitioner challenges the validity of Section 497 of the Penal Code which defines the offence of'adultery' and prescribes punishment for it. Supreme Court held that:



      The alleged transformation in feminine attitudes, for good or for bad, may justly engage the attention of the law-makers when the reform of penal law is undertaken. They may enlarge the definition of 'adultery' to keep pace with the moving times. But, until then, the law must remain as it is. The law, as it is, does not offend either Article 14 or Article 15 of the Constitution. Incidentally, the demand of the petitioner that sexual relationship of a husband with an unmarried woman should also be comprehended with the definition of 'adultery' is a crusade by a woman against a woman. If the paramour of a married woman can be guilty of adultery, why can an unmarried girl who has sexual relations with a married man not be guilty of adultery ? That is the grievance of the petitioner.



              Adultery Cases



              In Earnest John White Vs Mrs. Kathleen Olive White and Others, 1958 SCR 1410 : AIR 1958 SC 0441, Husband filed dissolution of marriage on the ground of her adultery. Trial Court had granted the divorce and High Court had reversed the decree of divorce. Appeal before Supreme Court and Supreme Court held that:
      The wife went to Patna and stayed with respondent No. 2 under an assumed name. They occupied the same room, i.e., room No. 10. There was undoubtedly a guilty inclination and passion indicated by the conduct of respondent No. 2 and there is no contrary indication as to the inclination and conduct of the wife. On the other hand her conduct as shown by the evidence is so entirely consistent with her guilt as to justify the conclusion of her having committed adultery with respondent No. 2 and therefore the finding of the Courts below as to the guilt should be reversed.
          In Hirachand Srinivas Managaonkar Vs Sunanda, AIR 2001 SC 1285 : 2001(2)SCR 491 : 2001(4) SCC 125 : 2001(2) SCALE 514 : 2001(3) JT 620, held that:

          

      Facts of the Case:
      The appellant is husband of the respondent. On the petition filed by the respondent- under section 10 of the Act seeking judicial separation on the ground of adultery on the part of the appellant a decree for judicial separation was passed by the High Court of Karnataka on 6.1.1981. In the said order the Court considering the petition filed by the respondent, ordered that the appellant shall pay as maintenance Rs.100/- per month to the wife and Rs.75/- per month for the daughter. Since then the order has not been complied with by the appellant and the respondent has not received any amount towards maintenance. Thereafter, on 13.9.1983 the appellant presented a petition for dissolution of marriage by a decree of divorce on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period of more than one year after passing of the decree for judicial separation.
      Held that:
      Husband who continued to live in adultery even after decree at the instance of wife could not succeed in petition seeking decree for divorce and that section 23(1)(a) barred the relief.



              Conclusion
              The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.



    • Conversion

              Conversion of the spouse to other religion was only for the purpose of circumventing the provision of Section 494 of Indian Penal Code, 1860. Conversion to Islam by a Hindu spouse does not per se lead to dissolution of the marriage. It only gives a right to the other spouse to file a petition under S.13(1)(ii) of the Hindu Marriage Act for divorce. Under the pristine Hindu Law as well, conversion did not operate per se as a dissolution of marriage. A Hindu spouse who ceased to be a Hindu by conversion to another religion does not acquire any right under the Hindu Marriage Act. On the other hand, he or she exposes himself or herself to a claim for divorce by the other spouse on the ground of such conversion. The spouse who remains a Hindu gets a right under S.13(1)(ii) of the Hindu Marriage Act to seek dissolution of the marriage with the spouse who since the marriage ceased to be a Hindu by conversion to another religion. The right of non converting spouse is indefeasible. The statute does not provide for any qualification on such right of the non converting spouse. Nor does the Hindu Marriage Act state that the conversion shall be a conversion without the consent of the other spouse in order to entitle such spouse to apply for divorce. A conversion does not cease to be a conversion within the meaning of S.13(1)(ii) if it is with the consent of the other spouse. We cannot read into the statute something which is not intended in the context; nor can we qualify a disqualification in the matter of conversion as one with the consent of the other spouse so as to take it out of the purview of S.13(1)(ii).
              Situation before enforcement of Hindu Marriage Act
              In Re: Ram Kumari, 1891 Calcutta 246, where a Hindu wife became convert to the Muslim faith and then married a Mohammedan, it was held that her earlier marriage with a Hindu husband was not dissolved by her conversion. She was charged and convicted of bigamy under S.494 of Indian Penal Code, 1860.
              In Gul Mohammed V. Emperor AIR 1947 Nagpur 121, a Hindu wife was fraudulently taken away of the accused a Mohammedan who married her according to Muslim law after converting her to Islam. It was held that the conversion of the Hindu wife to Mohammedan faith did not ipso facto, dissolve the marriage and she could not during the life time of her former husband enter into a valid contract of marriage. Accordingly, the accused was convicted for adultery under Section 497 of Indian Penal Code, 1860.
              Situation After enforcement of Hindu Marriage Act
              A marriage solemnised, whether before or after the commencement of the Act, can only be dissolved by a decree of divorce on any of the grounds enumerated in S.13 of the Act. One of the grounds under S.13(1)(ii) is that “the other party has ceased to be a Hindu by conversion to another religion”. 
              For understanding more on divorce on conversion we need Sections 11 and 15 of the Hindu Marriage Act, 1955, as under:-
      Section 11. Void marriages.- Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of S.5
      Section 15. Divorced persons when may marry again. - When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal the time for appeal has expired without an appeal having been presented r an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marriage again.
      Provided that it shall not be lawful for the respective parties to marry again unless at the date of such marriage at least one year has elapsed from the date of the decree in the court of the first instance.
                  A marriage performed under the Act cannot be dissolved except on the ground available under S.13 of the Act. In that situation parties who have solemnised the marriage under the Act remain married even when the spouse embraces Islam in pursuit of other. A second marriage by an apostate under the shelter of conversion to Islam would nevertheless be a marriage in violation of the provisions of the Act by which he would be continuing to be governed so far as his first marriage under the Act is concerned despite his conversion to Islam. The second marriage of an apostate would, therefore, be illegal marriage qua his wife who married him under the Act and continues to be Hindu. Between the apostate and his Hindu wife the second marriage is in violation of the provisions of the Act and as such would be non est.
              Section 494 of Indian Penal Code
      Section 494. Marrying again during lifetime of husband or wife. - Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
      Exception - This section does not extend to any person whose marriage with such husband or wife has been declare void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

              The necessary ingredients of the Section 494 are: 
      (1) having a husband or wife living;

      (2) marries in any case;

      (3) in which such marriage is void;

      (4) by reason of its taking place during the life of such husband or wife. 
              In Sarla Mudgal v. Union of India, 1995(2) Civil Court Cases 100 (S.C.)
      18. It is no doubt correct that the marriage solemnised by a Hindu husband after embracing Islam may not be strictly a void marriage under the Act because he is no longer a Hindu, but the fact remains that the said marriage would be in violation of the Act which strictly professes monogamy. 
      19. The expression “void” for the purpose of the Act has been defined under S.11 of the Act. It has a limited meaning within the scope of the definition under the section. On the other hand the same expression has a different purpose under S.494, IPC and has to be given meaningful interpretation. 
      20. The expression “void” under S.494 IPC has been used in the wider sense. A marriage which is in violation of any provisions of law would be void in terms of the expressions used under S.494 IPC. 
      21. A Hindu marriage solemnised under the Act can only dissolved on any of the grounds specified under the Act. Till the time a Hindu marriage is dissolved under the Act none of the Hindu marriage is dissolved under the Act none of the spouses can dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of S.494 IPC. Any act which is in violation of mandatory provisions of law is per se void. 
      22. The real reason for the voidness of the second marriage is the subsisting of the first marriage which is not dissolved even by the conversion of the husband. It would be giving a go-bye to the substance of the matter and acting against the spirit of the Statute if the second marriage of the convert is held to be legal. 
      23. We also agree with the law laid down by Chagla, J. in Robasa Khanum V. Khodadad Irani’s case (supra) wherein the learned Judge has held that the conduct of a spouse who converts to Islam has to be judged on the basis of the rule of justice and right or equity and good conscience. A matrimonial dispute between a convert to Islam and his or her non-Muslim spouse is obviously not a dispute “ where the parties are Muslims ” and, therefore, the rule of decision in such a case was or is not required to be the “ Muslim Personal Law ” . In such cases the Court shall act and the Judge shall decide according to justice, equity and good conscience. The second marriage of a Hindu husband after embracing Islam being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of S.494 IPC.
      24. Looked from another angle, the second marriage of an apostate-husband would be in violation of the rules of natural justice. Assuming that a Hindu husband has a right to embrace Islam as his religion, he has no right under the Act to marry again without getting his earlier marriage under the Act dissolved. The second marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and as such would be void.
      25. The interpretation we have given to S.494 IPC would advance the interest of Justice. It is necessary that there should be harmony between the two com- munities. Result of the interpretation we have given to S.494 IPC would be that the Hindu Law on the one hand and the Muslim Law on the other hand would operate within their respective ambits without trespassing on the personal laws of each other. Since it is not the object of Islam nor is the intention of the enlighten Muslim community that the Hindu husband should be encouraged to become Muslims merely for the purpose of evading their own personal laws by marrying again, the courts can be persuaded to adopt a construction of the laws resulting in denying the Hindu husband converted to Islam the right to marry again without having his existing marriage dissolved in accordance with law. 
      26. All the four ingredients of S.494 IPC are satisfied in the case of Hindu husband who marries for the second time after conversion to Islam. He has a wife living, he marries again. The said marriage is void by reason of its taking place during the life of the first wife. 
      27. We, therefore, hold that the second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of S.494 IPC.
           Thus the above judgment established that:
      1. under Indian Penal Code, 1860, S.494 - Second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of S.494 IPC;

      2. Marriage performed under the Act - Cannot be dissolved except on the grounds available under S.13 - Parties who have solemnised the marriage under the Act remain married even when the husband embraces Islam in pursuit of other wife; and

      3. A marriage solemnised under a particular statute and according to personal law cannot be dissolved according to another personal law, simply because one of the spouses had changed his or her religion.

    • Mental disorder/Unsound Mind

    • Kollam Chandra Sekhar VS Kollam Padma Latha (2014)1SCC225

    • (1) Hindu Marriage Act, 1955 - Sections 13(1)(iii) and 9--Divorce--Appellant-husband made out ground for dissolution of marriage under Section 13(1)(iii)--Question involved--Whether marriage between parties can be dissolved by granting decree of divorce on basis of one spouse's mental illness which included schizophrenia under Section 13(1)(iii)

      Inability to manage his or her affairs is an essential attribute of an "incurably unsound mind". The facts pleaded and the evidence placed on record produced by the appellant in this case does not establish such inability as a ground on which dissolution of marriage was sought for by him before the trial court.
      Any person may have bad health this is not their fault and most times it is not within their control as in the present case, the respondent (wife) was unwell and was taking treatment for the same. The illness had its fair share of problems. Can this be a reason for the appellant (husband) to abandon her and seek dissolution of marriage after the child is born out of their union? Since the child is now a grown up girl, her welfare must be the prime consideration for both the parties.

      (2) Hindu Marriage Act, 1955 - Section 13(1)(iii)--Divorce--"Mental disorder" or "unsound mind" as ground available to party to get dissolution of marriage--Inability to manage his or her affairs is essential attribute of "incurably unsound mind"--Section 13(1)(iii) does not make mere existence of mental disorder of any degree sufficient in law to justify dissolution of marriage.       
    •  Ratio Decidendi:
      "Decree for dissolution of marriage shall not be granted on basis of one spouse's illness unless same is proved by positive and substantive evidence."

    • Vinita Saxena vs Pankaj Pandit(2006)3SCC778


    • (1) Hindu Marriage Act, 1955 - Section 13 (1) (ia) and (iii)--Divorce--Cruelty--Mental disorder The word 'cruelty' has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.
      Mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.
      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.
      The legal concept of cruelty, which is not defined by statute, is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. The general rule in all questions of cruelty is that the whole matrimonial relations must be considered, that rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complains accusations or taunts. It may be mental such as indifference and frigidity towards wife, denial of a company to her, hatred and abhorrence for wife or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage, however mindless of the consequences , has behaved in a way which the other spouse could not, in the circumstances, be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellant's side, ought this appellant to be called on to endure the conduct? From the respondent's side, was this conduct excusable? The Court has then to decide whether the sum total of the reprehensible conduct was cruel.
      Under Section 13 (1) (iii) of the Hindu Marriage Act, 1955, mental disorder' as a ground of divorce is only where it is of such a kind and degree that the appellant cannot reasonably be expected to live with the respondent. Where the parties are young and the mental disorder is of such a type that sexual act and procreation of children is not possible ,it may furnish a good ground for nullifying the marriage because to beget children from a Hindu wedlock is one of the principal aim of Hindu Marriage where sanskar of marriage is advised for progeny and offspring.
      (2) Marriage--Without sex--Is anathema--Sex is foundation of marriage.

    •  Naveen Kohli vs Neelu Kohli( 2006)4SCC558

    • Hindu Marriage Act, 1955 - Section 13 (1) (ia)--Divorce--Cruelty--Irretrievable breakdown of marriage--Petition for divorce by husband on ground of cruelty of wife--Parties living separately for more than 10 years--Large number of criminal and civil proceedings initiated by wife respondent against husband appellant -- Some proceedings also initiated by husband against wife--Matrimonial bond between parties--Is beyond repair--Marriage between parties--Only in name--Marriage wrecked beyond hope of salvage--Public interest and interest of all concerned lies in recognition of fact--And to declare defunct de jure what is already defunct de facto--High Court ought to have visualised that preservation of such marriage is totally unworkable--And would be greater source of misery for parties--Not to grant decree of divorce--To be disastrous for parties--Judgment of High Court set aside--Marriage between parties directed to be dissolved--Appellant husband in view of his financial standing to pay Rs. 25 lakhs to respondent wife towards permanent maintenance--Recommendation to Union of India to seriously consider bringing amendment in Hindu Marriage Act to incorporate irretrievable breakdown of marriage as ground for grant of divorce. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into service, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955.
      Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.
      Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.
      From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again.
      The High Court ought to have appreciated that there is no acceptable way in which the parties can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist.
      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". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. 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 within the meaning of Section 10 of the Act. 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.
      The word 'cruelty' has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case. There may be instances of cruelty by unintentional but inexcusable conduct of any party. The cruel treatment may also result from the cultural conflict between the parties. Mental cruelty can be caused by a party when the other spouse levels an allegation that the petitioner is a mental patient, or that he requires expert psychological treatment to restore his mental health, that he is suffering from paranoid disorder and mental hallucinations, and to crown it all, to allege that he and all the members of his family are a bunch of lunatics. The allegation that members of the petitioner's family are lunatics and that a streak of insanity runs though his entire family is also an act of mental cruelty.
      "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.
      The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions and their culture and human values to which they attach importance. Each case has to be decided on its own merits.
      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.

      Sharda vs Dharmpal (2003)4SCC493

       Hindu Marriage Act, 1955 - Sections 5 (ii) (b), 12 (1) (b) and 13 (1) (iii)--Code of Civil Procedure, 1908--Section 151, Order XXXII, Rule 15--Indian Lunacy Act, 1912--Section 41--Constitution of India--Article 21--Matrimonial dispute--Petition by husband for divorce on ground of unsoundness of mind of wife--Husband also filing application for direction for medical examination of wife for her unsoundness of mind--Whether matrimonial court has jurisdiction to direct wife to undergo medical examination for unsoundness of mind?--Held, “yes”--Whether such direction violates personal liberty under Article 21?--Held, “no”--However, Court should exercise such power if applicant has strong prima facie case--And there is sufficient material before Court--If despite order, spouse refuses to submit to medical examination--Court entitled to draw adverse inference against spouse.
      The Court after elaborate discussion concluded :
      (1) A matrimonial court has the power to order a person to undergo medical test.
      (2) Passing of such an order by the Court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.
      (3) However, the Court should exercise such a power if the applicant has a strong prima facie  case and there is sufficient material before the Court. If despite the order of the Court, the respondent refuses to submit himself to medical examination, the Court will be entitled to draw an adverse inference against him.
      In certain cases, medical examination by the experts in the field may not only be found to be leading to truth of the matter but may also lead to removal of misunderstanding between the parties. It may bring the parties to terms.
      In matrimonial disputes, the Court has also a conciliatory role to play--even for the said purpose it may require expert advice.
      Under Section 75 (e) of Code of Civil Procedure and Order XXVI, Rule 10A, the civil court has the requisite power to issue a direction to hold a scientific, technical or expert investigation.
      The question as to whether a person is mentally ill or not although may be a subject-matter of litigation, the Court having regard to the provisions contained in Order XXXII, Rule 15 of the Code of Civil Procedure, Section 41 of the Indian Lunacy Act as also for the purpose of judging his competence to examine as a witness may issue requisite directions. It is, therefore, not correct to contend that for the aforementioned purposes, the Court has no power at all. The prime concern of the Court is to find out as to whether a person who is said to be mentally ill could defend himself properly or not. Determination of such an issue although may have some relevance with the determination of the issue in the lis, nonetheless, the Court cannot be said to be wholly powerless in this behalf. Furthermore, it is one thing to say that a person would be subjected to test which would invade his right of privacy and may in some case amount to battery ; but it is another thing to say that a party may be asked to submit himself to a psychiatrist or a psychoanalyst so as to enable the Court to arrive at a just conclusion. Whether the party to the marriage requires a treatment or not can be found out only in the event, he is examined by a properly qualified psychiatrist. For the said purpose, it may not be necessary to submit himself to any blood test or other pathological tests.
      If the Court for the purpose envisaged under Order XXXII, Rule 15 of Code of Civil Procedure or Section 41 of the Indian Lunacy Act can do it suo motu, there is no reason why it cannot do so on an application filed by a party to the marriage.
      Even otherwise, the Court may issue an appropriate direction so as to satisfy himself as to whether apart from treatment, he requires adequate protection inter alia by way of legal aid so that he may not be subject to an unjust order because of his incapacity. Keeping in view the fact that in a case of mental illness, the Court has adequate power to examine the party or get him examined by a qualified doctor, therefore, it was clear that in an appropriate case the Court may take recourse to such a procedure even at the instance of the party to the lis.
      Furthermore, the Court must be held to have the requisite power even under Section 151 of the Code of Civil Procedure to issue such direction either suo motu or otherwise which, according to him, would lead to the truth.
      In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia.... etc. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouse seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specifically conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phrase “personal liberty” this right has been read into Article 21, it cannot be treated as absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In matters of aforesaid nature, where the Legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so-called right to privacy of the respondent. Thus, the Court has to reconcile these competing interests by balancing the interests involved.
      If for arriving at the satisfaction of the Court and to protect the right of a party to the lis who may otherwise be found to be incapable of protecting his own interest, the Court passes an appropriate order, the question of such action being violative of Article 21 of the Constitution of India would not arise. The Court having regard to Article 21 of the Constitution of India must also see to it that the right of a person to defend himself must be adequately protected.

       V.Bhagat vs Mrs D.Bhagat (1994)1SCC337

    •      Making false allegations and filing false case is cruelty

    • Leprosy

    • Venereal disease

    • Renounced the World

    • Not heard alive for seven years

    • Judicial Separation

    • No Resumption of Co-habitation


    • Cruelty
    •  
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