Shambhavi Shani, Nyayshastram
“When the matrimonial relation has ceased to exist de facto, it should, unless there are special reasons to the contrary, should cease to exist de jure also.” – Justice Salmond.
Introduction
Keeping Justice Salmond’s words in mind the primary question which surfaces is the integral nexus between mental cruelty and irretrievable breakdown of the marriage.
Since the passing of the Marriage Laws Amendment Act (1976), cruelty has been a ground for divorce. Coagulation of what exactly constitutes mental cruelty in still up in the air and thus the courts evade giving a tabulated definition and use its discretion depending upon the evidence in an individual case. Courts have made several attempts to indicate what mental cruelty is. All the attempts gather around a non-exhaustive notion about it, i.e. abusive and humiliating treatment by a spouse, torturous act and discommode actually affecting the physical and/or mental health of such spouse.[1] The test of cruelty is a subjective one[2]. Thus courts have always played a vital role in deciding the matters of cruelty and has always walked an extra mile to give a bit of clarity and codification to the very concept. The case of Samar Ghosh v. Jaya Ghosh [3] is a landmark judgment in the very same line. It puts forward a few instances (only illustrative and not exhaustive) which can be determined as incidents of mental cruelty.
The present article critically analyses the landmark Judgment delivered by a three-judge bench in 2007. Further, it aims to reach a non-exhaustive notion of mental cruelty and related aspects.
Grounds for determining mental cruelty
What constitutes mental cruelty is a burning question. The judgment delivered by the apex court specifically dictates 14 instances which were considered as mental cruelty. The court said acute mental pain, agony and suffering could be the broad parameters of mental cruelty. Frequent rudeness, petulance of manner, indifference, deep anguish, disappointment, frustration, humiliating treatment, torture, a departure from the ordinary standard of conjugal kindness, deriving sadistic pleasure, unilateral decisions about sterilization, vasectomy, pregnancy, abortion, ill-treatment and neglect till an intolerable degree making cohabitation virtually unendurable can constitute mental cruelty. In Shobha Rani v. Madhukar Reddi,[4] a new tangent was given. Any willful conduct which is of such a nature driving someone to commit suicide, unrealistic and excessive sexual or materialistic demands likely to cause grave injury and danger to life and health (mental and/or physical) can be the cases of mental cruelty. Wife’s conduct of sending letters to the Prime Minister about false allegations and dowry demands and alleged extramarital affair with no legal backing was considered mental cruelty in M.K Malhotra v. Smt. Kirti Malhotra[5]. Erratic fashion and continuous threats of committing suicide were considered a ground for mental cruelty in R. Balasubramaniam v. Smt. Vijaylakshmi Balasubramaniam[6].
Another aspect highlighted by the Judgment is regarding sexual life of spouses. Unilateral decision of refusal to have intercourse for a considerable period without a valid reason may amount to mental cruelty. English court was of the same opinion in many cases like Knott v. Knott[7], Sheldon v. Sheldon[8], Walsham v. Walsham[9], Cackett v. Cackett[10] and White v. White[11]. The Judgment also says the unilateral decision by any of the spouses about not having a child or undertaking abortion without the consent of the other is mental cruelty. The same thing was said in Satya v. Sri Ram[12].
The most essential constituent which was thoroughly stressed by the court in the Judgment was the irretrievable breakdown of the marriage.
The inextricable knot between the irretrievable breakdown of marriage and mental cruelty
Irretrievable breakdown of marriage means the marriage has broken down so severely that there is no chance of getting back together. It refers to a situation where the married couple is together, but the emotional attachment, feelings, respect, love, affection, care, the longing has vanished. It leaves the marriage with no purpose and hence is said to be the irretrievable breakdown of the marriage. The Legislature has not yet included it as a ground for divorce in Hindu Marriage Act, 1955[13] but the courts and especially the Supreme Court has shown special concern over the matter with a view to do complete justice and shorten the agony of the parties engaged in long-drawn battle. The 71st Report of Law Commission of India[14] in 1978 briefly dealt with the concept irreparable damage to marriage and considered it as the Breakdown Theory for granting of a divorce. Although this theory has not been codified. However, Supreme Court has granted a divorce in many cases relying on this theory practising its Inherent Jurisdiction under Article 142 of the Constitution[15] which says that Supreme Court can pass a decree as may be necessary for doing complete justice between the parties. In cases like Naveen Kohli and Neelu Kohli[16] and Rishikesh Sharma v. Saroj Kumar,[17] it was held that a prolonged period of separation leading to mental agony has left the matrimonial bond beyond repair and hence the divorce was granted. In the English case of Warr v. Warr[18] the court held
“The respondent deserted the petitioner for a continuous period of at least two years immediately preceding the petition for divorce under mental cruelty; hence the marriage is beyond repair”.
Again in Samar Ghosh v. Jaya Ghosh[19] the court specifically said:
“A long period of continuous separation may be fairly concluded that the matrimonial bond is beyond repair and the marriage has become fiction though supported by a legal tie. By refusing to sever that tie does not serve the sanctity of marriage,, on the contrary, it shows scant regard for the feelings and emotions of the parties which may lead to mental cruelty.”
Evasion of courts from providing a structured definition
Many courts at many times have rendered a divorce on the basis of mental cruelty, nevertheless, they have also cleverly evaded from providing a comprehensive definition. Why a structured definition has not been given can be subject to many reasons and justifications. The concept of mental cruelty has changed according to changes and advancement of social concept and standards of living. Also, it depends upon the type of life the parties are accustomed to or their economic or social conditions, their culture and human values to which they attach importance, judged by standards of modern civilization in the background of the cultural heritage and traditions of our society. For example, removal of Mangalsutra by the wife was not considered as mental cruelty in Hanumath Rao v. S. Ramani[20]. However, the wife not cooking food for the husband was considered as mental cruelty in Samar Ghosh v. Jaya Ghosh[21] because the wife was making food for herself but not for a husband. Hence, the reasoning behind the judgments is very subjective and dynamic. The enquiry must begin as to the nature of that cruel treatment and then its impact. In a Canadian case Chouinard v. Chouinard[22], the Supreme Court of New Brunswick held that:
“Determination of mental cruelty must depend on the evidence in the individual case. No uniform standard can be laid down for guidance; behaviour which may mental cruelty in one case may not be in other.”
In Shobha Rani’s[23] case, the court said:
“Each case may be different, a new type of cruelty may crop up, in any case, depending upon human behaviour, capacity or incapacity to tolerate the conduct. Such is the wonderful realm of cruelty.”
In Rajani v. Subramoniam,[24] the court held that the concept of cruelty depends upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values judged by a standard of modern civilization in the background of the cultural heritage and traditions of our society. Hence, what constitutes mental cruelty for one stratum of society might not be for the other. For example not wearing Mangalsutra might not constitute mental cruelty in a well educated and progressive strata of society or in a case where an Indian man marries an American woman as wearing Mangalsutra is not her cultural heritage and tradition but in some underdeveloped, not well educated, very traditional and orthodox rural area where wearing Mangalsutra is a taboo it might be considered mental cruelty. Hence, the approach should be to take a cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference.
Changing scenario of domestic violence and mental cruelty
Initially, there was no ground of mental cruelty for divorce, only after the Marriage Laws (Amendment) Act of 1976, cruelty (mental and physical) has been a ground for divorce. Violence, whether mental and physical has been omnipresent and has been considered to be there since the very inception of civilizations and societies across countries, continents, cultures and lifestyles. Nevertheless, the fact is that domestic violence remains concealed in the pretended notions of love and care, thereby legitimated in its various manifestations from simple oppression to exploitation and suppression.[25] However, since independence, the Indian Parliament has tried to remove VAW (violence against women) through legal reforms by framing many laws and Acts like Dowry Prohibition Act, 1961 and by duly amending them like the insertion of Sections 498A and 304B in the Indian Penal Code, 1860. The Declaration on the Elimination of Violence against Women[26] has been made, making it an internationally recognized issue. During the 49th World Health Assembly, the Member States accepted that violence is a public health priority.[27] Protection of Women from Domestic violence Act of 2005, increasing recognition to mental cruelty as a ground for divorce and a holistic yet subjective approach towards this issues and making it not gender-specific but taking a gender-neutral approach has been observed and the related dimensions have changed over time.
COVID 19, Lockdown, Cruelty and Violence
More than 50% rise in domestic violence was reported during the lockdown. A Report prepared by NALSA documents showed that a total of 144 cases of abuse were filed in Uttarakhand alone, followed by increasing cases in Haryana and New Delhi.[28] In 2020, between March 25 and May 31, 1477, complaints of domestic violence were registered. This 68 days period recorded more complaints than the last ten years during the same months.[29] Domestic violence has often been studied as an abusive expression triggered by financial stress, mental stress, fear, and of course, systemic patriarchy, that has furthered the cases of financial abuses, and at times, even murders. The sense of isolation and financial and medical anxiety coming along with the deadly pandemic and sinking economy has increased the frequency of terror within homes and most certainly challenged the concept of ‘escape’ for the victims. Work, school, and homes sans the abusers being different mediums of escape for women and children before the lockdown do not exist anymore. Hence, the cases of abuse and mental cruelty have risen given the mental health discussion burning in society.
Conclusion
India has taken a step forward towards the issue of mental cruelty. Thus, it can be safely concluded that as to what constitutes the required mental cruelty for the said provision will not depend only upon the numerical count of such incidents or only on the continuous course of such conduct but go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude necessary for maintaining a conducive matrimonial home. The test of cruelty is a subjective one but a common notion can be conducted which may cause or pose a danger to life, limb or health, bodily or mentally or to give a reasonable apprehension of such danger. Courts have played a significant role and have always walked the extra mile to give clarity on the subject. It is about time to give a legislative effect to the same. Breakdown Theory is eventually becoming the very backbone of mental cruelty cases. Hence, different dimensions of violence and related aspects have evolved and it shows our society a mirror regarding where we are heading. This brings us back to Justice Salmond’s words and impels us to ponder upon the same.
[1] Fleck v. Fleck, 79 N.D. 561 (1953, Supreme Court of North Dakota). [2] Luther v. Luther, [1978] 5 R.F.L. (2d), 285 (Supreme Court of Nova Scotia). [3] (2007) 4 SCC 511. [4] AIR 1988 SC 121. [5] AIR 1987 Del. 267.
[9] I All E.R. 774 (1949). [10] I All E.R. 677 (1950). [11] 2 All E.R. 151 (1948). [12] AIR 1983 Punj. & Har. 252. [13] Hindu Marriage Act, 1955. (https://www.indiacode.nic.in/handle/123456789/1560?locale=enn). [14] Law Commission, The Hindu Marriage Act 1955- Irretrievable Breakdown of Marriage as a Ground For Divorce, 1978 (http://lawcommissionofindia.nic.in/51-100/Report71.pdf) [15] Art. 142, the Constitution of India (https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf) [16] (2006) 4 SCC 558. [17] 2006 (12) SCALE 282. [18] I All ER 85 (1975). [19] Supra 3. [20] AIR 2012 SC 2586, in Vishwanath Sitaram Agrawal v. Sarla Vishwanath.
[21] Supra 3. [22] 10 DLR (3d) 263. [23] Supra 4. [24] AIR 1990 Ker. 1. [25] Sharma A. “Social Dimensions of Domestic Violence against Women” 3 The Delhi University Journal of the Humanities and the Social Sciences 185 (2016) http://journals.du.ac.in/humsoc/pdf/Sharma_Final_12.pdf, last seen on 14/08/20. [26] UN General Assembly Resolution, “The Declaration on the Elimination of Violence against Women” No.48/104(1994). Article1,https://www.un.org/en/genocideprevention/documents/atrocitycrimes/Doc.21_declaration%20elimination%20vaw.pdf last visited on 14/08/20. [27] World Health Organization “Jakarta Declaration on Leading Health Promotion into the 21st Century” July 1997, http://www.who.int/healthpromotion/conferences/previous/jakarta/declaration/en/ Accessed on 14/08/2020. [28] Ayushree Nandan, “Is domestic violence the next pandemic in India”, Times of India (May 21, 2020), https://timesofindia.indiatimes.com/blogs/voices/is-domestic-violence-the-next-pandemic-in-india/, last seen on 14/08/20. [29] Vignesh Radhakrishnan, Sumant Sen, Naresh Siggaravelu “Domestic Violence Complaints 10 year high during lockdown”, The Hindu (22 June 2022)https://www.thehindu.com/data/data-domestic-violence-complaints-at-a-10-year-high-during-covid-19-lockdown/article31885001.ece, last visited on 14/08/20.