By Ananya Khanna, Symbiosis Law School, Pune
The Indian judiciary is only in the nascent stage of developing an unwavering position on cruelty as a ground for divorce. This case discusses the issue of cruelty and irretrievable breakdown of marriage as grounds of divorce before and subsequent to the 1976 amendment of the Hindu Marriage Act. The analysis provided by the author also highlights the undulating positions adopted by the Courts while addressing the issue.At the same time, it is crucial to understand the judicial approach to deciding whether the factual matrix merits a decree of judicial separation or divorce.The evolution of cruelty as a ground for divorce encompasses its varying definitions and prerequisites of proof of reasonable apprehension.
FACTS OF THE CASE
In this case, an army officer, and an advocate, got married according to Hindu rites on 17.11.1991. However, they soon fell apart, and started living separately from 31.12.1992 onwards. The husband filed a petition for divorce on the ground of cruelty, before the District Court of Gurgaon under Section 13 of the Hindu Marriage Act. The husband alleged that the wife was rude, ill- mannered, quarrelsome and schizophrenic, and that she had made his life a living hell. He alleged that she shouted and made scenes and humiliated him in front of his officers and jawans, made allegations of sodomy against him, and allegations against his old and infirm father of molesting her. Besides, the husband also alleged that the wife filed various criminal cases against him, which ended in either his acquittal, discharge, or were quashed, thereby indicating that they were all false. Further, that she hurled filthy abuses on him and his family members, compared him to a barking dog, and had erratic sexual behaviour. According to him, she has been constantly threatening him as well as his family that since she and her two uncles are advocates they would make the lives of the husband and his family miserable. The husband complained that the wife had been making baseless complaints to his superiors, which has affected his career prospects in the Army. The husband filed a claim for cruelty against his wife.
The wife also made equally vile allegations of dowry demand, sodomy, and mental and physical torture in various ways. In sum, there were innumerable complaints and allegations made against each other. Best efforts for reconciliation were made by the Court but to no effect. The trial Court on evaluation of the entire evidence found that even though it was a case where marriage had broken, but under the law as it exists, the marriage could not be dissolved on the ground of irretrievable breakdown. The Court found both the parties at fault, and did not grant the decree of divorce as the husband could not prove cruelty of wife so as to entitle him to a decree of divorce. On appeal against this by the husband, the single judge observed that the wife had exceeded all limits of decency and crossed the ‘Lakshman Rekha’ when she went to the extent of lodging a false FIR, and when she tried to humiliate him in front of his superiors. The Court found both the parties at fault, and adopted a middle path by granting a decree of judicial separation under Section 10 of the Hindu Marriage Act, so that the parties might ponder over their differences and re-unite, for the welfare of their daughter.
The husband accepted the order of the single judge, but the wife went in appeal before the Division Bench of the Punjab and Haryana High Court. This Court also observed that even though the marriage had irretrievably broken down, but in the absence of such statutory ground the marriage cannot be dissolved on this ground. The Division Bench proceeded on the basis of allegations of cruelty, and was convinced that the wife’s behaviour amounted to mental cruelty of the worst type. Her allegations of sodomy against her husband, lodging false FIRs and complaints against him, and making allegations against her infirm father-in-law of molesting her, all amounted to cruelty and were certainly intolerable behaviour. The Court held that cruelty as alleged by the husband stood proved, and consequently, the single judge order was set aside and a decree of divorce granted to the husband.
The wife again went in appeal against the Punjab and Haryana High Court, Division Bench order, and came before the Supreme Court.
JUDGMENT OF THE SUPREME COURT:
The Apex Court in its judgment stated that, “We are of the opinion that the High Court erred in granting a decree of divorce to the husband. She had come in appeal before the Division Bench complaining that the Appellate Court had wrongly granted the decree of judicial separation even after concurring with the findings of the Trial Court that the husband had failed to establish cruelty by the wife. Therefore even if the appeal had been dismissed, the findings recorded by the Trial Court in her favour would have remained intact. The effect of the order passed by the Division Bench is as if an appeal of the husband against the decree of judicial separation has been allowed. Both the parties had failed to make out a case of divorce against each other. The husband had accepted these findings. Therefore he was quite content to wait for the statutory period to lapse before filing the petition for divorce, which he actually did on 9.5.2002. On the basis of the proven facts the Trial Court was more inclined to believe the wife, whereas the learned Single Judge of the High Court found both the parties to be at fault. Hence the middle path of judicial separation had been accepted. Therefore, it was not a case where it was necessary for the Division Bench to correct any glaring and serious errors committed by the Court below which had resulted in miscarriage of justice. In our opinion there was no compelling necessity, independently placed before the Division Bench to justify reversal, of the decree of judicial separation. In such circumstances it was wholly inappropriate for the Division of High Court to have granted a decree of divorce to the husband”[i].
The Supreme Court in its judgment held that the Division Bench of the High Court had committed an error in granting the decree of divorce, and thus, the Supreme Court set aside the Division Bench’s order by restoring the single judge order of granting judicial separation.
ANALYSIS OF THE JUDGMENT:
Section 13(1)(ia) of the Hindu Marriage Act, 1955 states that, “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- has, after the solemnization of the marriage, treated the petitioner with cruelty[ii]”
Cruelty is a ground for matrimonial relief under all the matrimonial law statutes in India. However, it has not been defined, and the concept of cruelty varies from time to time. What was cruelty yesterday might not be cruelty today, and what is cruelty today might not necessarily be understood as an act of cruelty tomorrow. The Supreme Court in Ravi Kumar v. Julmi Devi[iii] very aptly said that cruelty has no definition, and in fact, such definition is not possible. Cruelty in matrimonial cases can be of infinite variety, it being a very subjective concept. In the case of Naveen Kohli v. Neelu Kohli[iv], the Supreme Court examined the development of the concept of mental cruelty in matrimonial cases, and observed that before the 1976 amendment in the Hindu Marriage Act, 1955 cruelly was not a ground for claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial separation under Section 10 of the Act. By the 1976 amendment, cruelty was made a ground for divorce and the words which have been omitted from Section 10 are “as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party”. Therefore, today, it is not necessary for a party claiming divorce to prove that the cruel treatment is of such a nature as to cause a reasonable apprehension that it will be harmful or injurious for him or her to live with the other party. Now, it is 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.
Cruelty not only includes physical cruelty, but also mental cruelty. In Shobha Rani v. Madhukar Reddi[v], the Supreme Court held that that cruelty may be mental or physical, intentional or unintentional. The Supreme Court defined mental cruelty in V. Bhagat v. D. Bhagat[vi] 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. 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.
Thus, in the case of Manisha Tyagi v. Capt Deepak Kumar, both the trial Court and the appellate Court (single judge) had upon after carefully examining the case and considering the conduct of the parties over a period of time, found that the husband could not prove cruelty on part of the wife. The trial Court explained that to say that a person started to bark like a dog, and a person is a dog are two different things. The Court also said that the allegations of the wife against the husband of unnatural sex cannot be equated with sodomy. Thus, the fact that the wife had been treating her husband with cruelty could not be established. Both the Courts had agreed that the marriage had broken down, and was irretrievable, but, since that was not a valid ground for divorce under the Hindu Marriage Act, divorce could not be granted.
The Appellate Court granted a decree of judicial separation to the husband, since it came to the conclusion that by doing this, the couple could get more time to ponder over the issues, while keeping in mind the welfare of their daughter. If the parties reconciled their differences, then the decree of judicial separation would not hold valid, and if, they do not decide to reconcile, then, either party could ask for the dissolution of marriage on the basis of the decree of judicial separation. As is known to us by the facts, the husband had accepted the decree granted by the single judge, and after the expiry of one year, even filed for divorce. However, the wife challenged the grant of decree of judicial separation to the husband by the Appellate Court. The wife complained that the single judge had wrongly granted the decree of judicial separation to the husband, despite both the Courts (trial and appellate) coming to the conclusion that the husband could not prove cruelty of wife. The Division Bench held that that the wife’s acts amounted to cruelty of the worst kind, and thus it granted a decree of divorce to the husband.
It is important for us to note here, that it was not the husband who went in appeal against the grant of decree of judicial separation. Rather, it was the wife who had challenged the decree, and later even challenged the order of the Division Bench. Still, the Division Bench of the Punjab and Haryana High Court granted the relief of divorce, as initially sought by the husband, as if, it was he who had challenged the decree of separation and appealed for divorce. Also, even if the wife’s appeal against decree of separation had been dismissed, the trial Court’s findings of her acts not amounting to cruelty towards the husband would still have remained intact. And as mentioned above, the effect of the order passed by the Division Bench is as if an appeal of the husband against the decree of separation has been allowed.
As is proved by the facts, the Trial Court was more inclined to believe the wife, whereas the learned Single Judge of the High Court found both the parties to be at fault. Thus, the middle path of judicial separation had been accepted. There was no need for the Division Bench to grant the decree of divorce as this was not a case where there was a need for the Court to correct any glaring and serious errors committed by the Courts below which had resulted in a miscarriage of justice. The trial Court and the appellate Court had both concluded that the husband could not prove cruelty by the wife. Thus, the Apex Court very aptly stated that, “In our opinion there was no compelling necessity, independently placed before the Division Bench to justify reversal, of the decree of judicial separation. In such circumstances it was wholly inappropriate for the Division of High Court to have granted a decree of divorce to the husband”.
Manisha Tyagi v. Capt Deepak Kumar is a matrimonial case with a chequered history which indicates element of subjectivity in judicial approach in the same set of circumstances. Firstly, the trial and appellate Courts found that the husband could not establish that his wife had treated him with cruelty, and thus divorce could not be granted. The middle path of judicial separation was adopted. However, the Division Bench of the Punjab and Haryana High Court granted divorce, and concluded that the acts of the wife amounted to cruelty. The Division Bench completely ignored the findings of the two previous Courts, and held the wife’s acts as cruelty towards husband. The Court granted divorce to the husband, and by doing so, in a way responded as if the husband had appealed against judicial separation. Thus, the Supreme Court aptly reversed the order of the Division Bench, and upheld the granting of judicial separation by the single judge of the High Court, as the Division Bench had no need to justify their reversal of judicial separation, and grant divorce.
Edited by Raghavi Viswanath
[i] Para 30, Manisha Tyagi v. Capt Deepak Kumar, AIR 2010 SC 1042
[ii] Section 13(1)(ia) of the Hindu Marriage Act, 1955
[iii] (2010) I DMC 411 SC
[iv] (2006) 4 SCC 558
[v] (1988) 1 SCC 105
[vi] (1994) 1 SCC 337