MENTAL CRUELTY AS A GROUND FOR DIVORCE

UNDER HINDU MARRIAGE ACT 1955

[highlight] By Sudhanshu Pathania, Student, The Law
School, University of Jammu[/highlight]
Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and
physical injury that causes danger to life, limb and health. The intangible acts of cruelty through
mental torture are not judged upon one single act but series of incidents. Certain instances like the
food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act etc are
included under cruelty.

[pullquote]It is a well known saying that marriages are made in heaven but when they
turn into hell, parties seek a decree for divorce.[/pullquote]
The sources of Hindu Marriage act are the Vedas and they state that one a couple is
tied in this holy institute of marriage, they can’t separate. However in the act, there
is a decree for divorce in its section 13. In here the grounds for divorce vary from
adultery to cruelty and even renouncement from the world by entering into a
religious order is one of them.

Under the Hindu Marriage act,1955 as enacted originally, though cruelty was one of
the grounds for obtaining judicial separation, yet it was not a ground for obtaining
divorce. After its amendment, cruelty was made a ground for both divorce and
judicial separation.
In the clause 13(1)(a) of Hindu marriage act, only cruelty is mentioned and not
specified whether it is mental or physical cruelty. The courts have interpreted it in a
broader prospective and said that it includes both physical and mental and we are
dealing with the latter here.
It is not possible to define mental cruelty exhaustively. Prior to the amendment, the
Supreme Court examined this concept in the landmark case named Dastane v.
Dastane[1]. Here in it was observed that the conduct of the respondent should be
such to cause reasonable apprehension in the mind of the petitioner to live with the
respondent. It was also pointed out that unlike in England, here it is not necessary
to prove that the respondent has treated the petitioner with cruelty and reasonable
apprehension in the mind of the plaintiff shall suffice.
After the amendment, the courts were flooded with applications of divorce on the
grounds of mental cruelty and the courts were to do the tedious task of defining
cruelty.
As observed from Lord Pearce[2]:
“It is impossible to give a comprehensive definition of cruelty, but when
reprehensible conduct or departure from the normal standards of conjugal kindness
causes injury to health or an apprehension of it, it is, I think, cruelty if a reasonable
person, after taking due account of the temperament and all the other particular
circumstances would consider that the conduct complained of is such that this
spouse should not be called on to endure it.”

The Supreme Court in Samar Ghosh v. Jaya Ghosh[3] tried to enumerate

instances that constituted mental cruelty. These instances were only illustrated and
not exhaustive.
They said: 
(i) On consideration of complete matrimonial life of the parties, acute mental pain,
agony and suffering as would not make possible for the parties to live with each
other could come within the broad parameters of mental cruelty. 
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it
becomes abundantly clear that situation is such that the wronged party cannot
reasonably be asked to put up with such conduct and continue to live with other
party. 
(iii)  Mere coldness or lack of affection cannot amount to cruelty, frequent
rudeness of language, petulance of manner, indifference and neglect may
reach such a degree that it makes the married life for the other spouse
absolutely intolerable. 
(iv) Mental cruelty is a state of mind.  The feeling of deep anguish,
disappointment, frustration in one spouse caused by the conduct of other for a long
time may lead to mental cruelty. 
(v) A sustained course of abusive and humiliating treatment calculated to torture,
discommode or render miserable life of the spouse. 
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting
physical and mental health of the other spouse. The treatment complained of and
the resultant danger or apprehension must be very grave, substantial and weighty. 
(vii) Sustained reprehensible conduct, studied neglect, indifference or total
departure from the normal standard of conjugal kindness causing injury to mental
health or deriving sadistic pleasure can also amount to mental cruelty. 
(viii) The conduct must be much more than jealousy, selfishness, possessiveness,
which causes unhappiness and dissatisfaction and emotional upset may not be a
ground for grant of divorce on the ground of mental cruelty. 
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which
happens in day to day life would not be adequate for grant of divorce on the ground
of mental cruelty. 
(x) The married life should be reviewed as a whole and a few isolated instances over
a period of years will not amount to cruelty. The ill-conduct must be persistent for a
fairly lengthy period, where the relationship has deteriorated to an extent that
because of the acts and behaviour of a spouse, the wronged party finds it extremely
difficult to live with the other party any longer, may amount to mental cruelty. 
(xi) If a husband submits himself for an operation of sterilization without medical
reasons and without the consent or knowledge of his wife and similarly if the wife
undergoes vasectomy or abortion without medical reason or without the consent or
knowledge of her husband, such an act of the spouse may lead to mental cruelty. 
(xii) Unilateral decision of refusal to have intercourse for considerable period without
there being any physical incapacity or valid reason may amount to mental cruelty.
  (xiii) Unilateral decision of either husband or wife after marriage not to have child
from the marriage may amount to cruelty. 
(xiv) Where there has been a long period of continuous separation, it may fairly be
concluded that the matrimonial bond is beyond repair. The marriage becomes a
fiction though supported by a legal tie. By refusing to sever that tie, the law in such
cases, does not serve the sanctity of marriage; on the contrary, it shows scant
regard for the feelings and emotions of the parties. In such like situations, it may
lead to mental cruelty.
  As they are only for illustrative purposes only, hence the courts have to interpret
whether there has been any mental cruelty or it is mere wear and tear of marital
life. Only grave and weighty acts on the part of the respondent constitute mental
cruelty.
 Following are some conducts which have been held to constitute mental cruelty.
Demand for dowry by the husband and his family is mental cruelty. Wife abusing her
husband and using foul language is mental cruelty. Not visiting husband who was
seriously ill constituted mental cruelty. Abstaining from making any sexual relation
without any probable cause constitutes cruelty.
 
In a case, the wife cooked food only for herself but not for her husband and the
apex court held it to constitute mental cruelty on the husband[4].
 
In two cases, serious allegations and counter allegations without proof thereof have
been held to have constituted cruelty, as it was found that the marriage after such
allegations could not in any circumstance be continued any further[5] [6].

 
RESTITUTION OF CONJUGAL RIGHTS
 
Section 9: Restitution of conjugal rights:
"When either the husband or the wife has without reasonable excuse withdrawn from the
society of the other, the aggrieved party may apply by petition to the district Court for
restitution of conjugal rights and the Court, on being satisfied the truth of the
statements made in such petition and that there is no legal ground why the application
should not be granted, may decree restitution of conjugal rights accordingly.
Explanation: Where a question arises whether there has been reasonable excuse for
withdrawal from the society, the burden of proving reasonable excuse shall be on the
person who has withdrawn from the society".
Order 21 Rule 32 of C.P.C. Decree for specific performance for restitution of conjugal
rights,or for an injunction:
"(1) where the party against whom a decree for the specific performance of a contract,
or for restitution of conjugal rights, or for an injunction, has been passed, has had an
opportunity of obeying the decree and has wilfully failed to obey it, the decree may be
enforced (in the case of a decree for restitution of conjugal rights by the attachment of
his property, or in the case of a decree for the specific performance of a contract, or for
an injunction) by his detention in the civil prison, or by the attachment of his property,
or by both.
(2)...................................................
(3) Where any attachment under subrule (1) or sub-rule (2) has remained in force for
(six Months) if the Judgment-debtor has not obeyed the decree and the decree-holder
has applied to have the attached property sold, such property may be sold; and out of
proceeds the Court may award to the decree-holder such compensation as it thinks fit,
and shall pay the balance (if any) to the judgment-debtor on his application.
(4) Where the Judgment-debtor has obeyed the decree, and paid all costs of executing
the same which he is bound to pay, or where, at the end of (six months) from the date
of the attachment on application to have the property sold has been made or if made
has been refused, the attachment shall cease.
Rule 33. Discretion of court in executing decrees for restitution of conjugal rights:
(1) Notwithstanding anything in R. 32, the Court either at the time of passing a decree
(against a husband) for the restitution of conjugal rights or at any time afterwards may
order that the decree (shall be executed in the manner provided in this rule).
(2) Where the Court has made an order under sub-rule (1), it may order that in the
event of the decree not being obeyed within such period as may be fixed in this behalf,
the judgment-debtor shall make to the decree-holder such periodical payment as may be
just and if it thinks fit, require that the judgment -debtor shall, to its satisfaction secure
to the decree-holder such periodical payment.
(3) The Court may from time to time vary or modify any order made under sub-rule (2)
for the periodical payment of money, either by altering the times of payment or by
increasing or diminishing the amount, or may temporarily suspend the same as to the
whole or any part of the money so ordered to be paid and again revive the same, either
wholly or in part as it may think just.
(4) Any money ordered to be paid under this rule may be recovered as though it were
payable under a decree for the payment of money".
A combined residing of the above substantive and procedural provisions relating to the
grant of relief of destitution of conjugal rights by Court makes it clear that the decree for
restitution of conjugal rights contemplated to the granted under section 9 of the Act is
intended by the statutory law to be enforced in species under O. 21 Rr. 32 and 33 by
applying financial sanctions against the disobeying party. Additionally always a Court can
enforce its decree through its contempt powers. The Judicial committee of the privy
council in Moonshed Buzloo Rhueem v. Shumsoon Nissa Begum, (1867) 11 Moo Ind App
551, held that a suit for restitution of conjugal rights filed by a Muslim husband was
rightly filed as a suit for specific persormance it is on the same lines that order 21 Rule
32 of the code of civil procedure speaks of a decree granted for restriction of conjugal
rights as a decree of specific performance of restitution of conjugal rights. Conjugal
rights connote two ideas. (A) "the right which husband and wife have to each other's
society and (b) "marital intercourse". (See the dictionary of English Law by Earl Jowitt P.
453) In Wily v. Wily (1918) P. 1 "an offer by the husband to live under the same proof
with his wife, each party being free from molestation by the other was held not an offer
to matrimonial cohabitation". (See N. R. Raghavachariar's Hindu Law, 7th Edn. Vol II p.
980. Gupt's Hindu Law of Marriage P. 181 and derrett's Introduction to Modern Hindu
Law para 308). In other words, sexual cohabitation is an inseparable ingredient of a
decree for restitution of conjugal rights. It follows, therefore that a decree for restitution
of conjugal rights passed by a civil Court extends not only to the grant of relief to the
decree holder to the company of the other spouse, but also embraces the right to have
marital intercourse of the enforcement of such a decree are firstly to transfer the choice
to have or not to have marital intercourse to the state from the concerned individual and
secondly to surrender the choice of the individual to allow or not to allow one's body to
be used as a vehicle for another human being's creation to the state. Relief of restitution
of conjugal rights fraught with such serious consequences to the concerned, individual
were granted under section 9 of the Act enables the decree-holder through application of
financial sanctions provided by order 21 Rules 32 and 33 of C.P.C. to have sexual
cohabitation with an unwilling party even by imprisonment in a civil prison. Now
compliance of the unwilling party to such a decree is sought to be procured, by applying
financial sanctions by attachment and sale of the property of the recalcitrant party. But
the purpose of a decree for restitution of conjugal rights in the past as it is in the present
remains the same which is to coerce through judicial process the unwilling party to have
sex against that person's consent and freewill with the decree-holder. There can be no
doubt that a decree of restitution of conjugal rights thus enforced offends the inviolability
of the body and the mind subjected to hte decree and offends the integrity of such a
person and invades the marital privacy and domestic intimacies of such a person The
uninhibited tragedy involved in granting a decree for restitution of conjugal rights is well
illustrated by Anna saheb v. Tara Bai . In that case, Division Bench of the Madhya
Pradesh High Court decreed the husband's suit for restitution of conjugal rights
observing ":but if the husband is not guilty of misconduct, a petition cannot be dismissed
merely because the wife does not like her husband or does not want to live with
him............." What could have happened to Tarabai thereafter may well be left to the
eader's imagination . According to law, anna saheb against her will.
 
The origin of this remedy for restitution of conjugal rights is not to be found in the British
common law it is the medieval Ecclesiastical law of England which knows no matrimonial
remedy of desertion that provided for this remedy which the Ecclesiastical courts and
later ordinary courts enforced. But the British Law commission presided over by Mr.
Justice scarman, (as he then was) recommended recently on 9-7-1969 the abolition of
this uncivilized remedy of restitution of conjugal rights accepting that recommendation of
the British Law commission the British parliament through section 20 of the Matrimonial
proceedings and property Act, 1970 abolished the right to claim restitution of conjugal
rights in the English courts. Section 20 of that Act reads thus:
"No person shall after the commencement of this Act be entitled to petition the High
Court or any country Court for restitution of conjugal rights".
 
But our ancient Hindu system of Matrimonial law never recognised this institution of
conjugal rights although it fully upheld the duty of the wife to surrender to her husband.
In other words, the ancient Hindu law treated the duty of the Hindu wife to abide by her
husband only as an imperfect obligation incapable of being enforced against her will . It
left the choice entirely to the free will of the wife. In Bai Jiva v. Narsingh Lalbhai (ILR
1927 Bom 264 at p. 268) a division Bench of the Bombay High Court judicially noticed
this fact in the following words:
"Hindu law itself even while it lays down the duty of the wife of implicit obedience and
return to her husband, has laid down no such sanction or procedure as compulsion by
the courts to force her to return against her will".
 
It is to be noted that similar provisions as to restitution of conjugal rights exist in other
personal laws as well. Muslim equates this concept with securing to the other spouse the
enjoyment of his or her legal rights.5 Earlier, it was also attached with the specific
performance of the contract of marriage.

In Abdul Kadir v. Salima, the Allah bad High Court decided that the concept of
restitution must be decided on the principles of Muslim Law and not on the basis on
justice, equity and good conscience. The laws relating to Christians6 and Parsis7 also
deal with the concept of Restitution of Conjugal rights. To sum up, under all personal
law, the requirements of the provision of restitution of conjugal rights are the following:

- Withdrawal by the respondent from the society of the petitioner.

- The withdrawal is without any reasonable cause or excuse or lawful ground.
- There should be no other legal ground for refusal of the relief.
- The court should be satisfied about the truth of the statement made in the petition.
 
The Explanation under Section 9 of the Hindu Marriage Act, 1955 puts specific statutory
burden upon the person who has withdrawn from the society of the applicant to show
reasonable excuse for withdrawing from the society of the applicant. Had it been a case
of Section 9 of the Hindu Marriage Act, 1955, it would have been burden upon the
respondent applicant to prove reasonable excuse for the withdrawal from the society of
the applicant. The explanation under Section 9 of the Hindu Marriage Act, 1955 is as
under:
Explanation: - Where a question arises whether there has been reasonable excuse for
withdrawal from the society, the burden of proving reasonable excuse shall be on the
person who has withdrawn from the society.
In the cases under Section 9 of the Hindu Marriage Act, the burden is upon the non-
applicant to show cause for withdrawal from society of applicant and if no sufficient
reason is shown by non-applicant for living separate from applicant, the Court can pass
the decree for restitution of conjugal rights. Even after such decree, if non-applicant will
not discharge his/her obligation and there is no restitution of conjugal rights between the
parties for a period of one year, as per Sub-Clause (ii) of Sub-section (1A) of Section 13,
the applicant of petition under Section 9 , can seek divorce decree.
It maybe true that no such specific provision has been made putting burden upon the
person who has withdrawn from the society to show reasonable excuse for withdrawing
from the society of the applicant for proceedings seeking divorce on the ground of
desertion, but some principle can be applied when the fact of marriage is admitted and
the applicant proves by his evidence that the non-applicant has withdrawn from the
applicant and period of two years has passed from the presentation of the divorce
petition. This burden upon the appellant is negative burden and, therefore, principle of
law applicable for proving a negative issue, can be applied which shall be in consonance
with the explanation under Section 9 of the Hindu Marriage Act, 1955.
The Appellant if would have continued with proceedings under Section 9 of the Hindu
Marriage Act and would have obtained decree under said proceedings, he could have
filed the petition for divorce an year after decree in proceedings under Section 9 of the
Hindu Marriage Act.
Question rises can Section 9 & 13 be entertained simultaneously?
In the light of above reason, the pendency of petition under Section 9 of the Hindu
Marriage Act, 1955 might have created unnecessary multiplicity of proceedings (i.e.
divorce petition and RCR petition), contradiction and hurdle in deciding the matrimonial
dispute between the parties.
If husband / wife are willing to wait for response for RCR, then you can withdraw the
petition u/s 13. If you want a divorce then withdraw petition u/s 9 as things have gotten
worse citing reasons as filed in petition u/s 13 of HMA. both the sections are
contradictory in the stricto sensu terms. But in generic sense you have right to proceed
with both. Or you can withdraw both - and wait forever.
Petition u/s 9 was suggested by lawyer just as a measure for bail if she files for criminal
cases. In that case, (notice is never issued to her for RCR), there is no effective RCR for
divorce consideration. So going for a fresh divorce case is the only option.
 

In Sushila Bai v. Prem Narayan, the husband deserted his wife and thereafter was totally unresponsive towards
her. This behavior was held sufficient to show that he had withdrawn from the society of his wife, and therefore
the wife’s petition for restitution of conjugal rights was allowed. The defense to this principle lies in the concept of
a ‘reasonable excuse’. If the respondent has withdrawn from the society of his spouse for a valid reason, it is a
complete defense to a restitution petition.
Opinions of the Court
The court will normally order restitution of conjugal rights if:
i. The petitioner proves that the respondent spouse has without reasonable excuse withdrawn from his/her
society
ii. The statements made by the aggrieved spouse in the application are true, and
iii. There is no legal ground why the petitioner’s prayer should not be granted
The court has held in various cases that the following situations will amount to a reasonable excuse to
act as a defence in this area:
i. A ground for relief in any matrimonial cause.
ii. A matrimonial misconduct not amounting to a ground of a matrimonial cause, if sufficiently weighty and grave
iii. Such an act, omission or conduct which makes it impossible for the petitioner to live with the respondent.
[quote]It is significant to note that unlike a decree of specific performance of contract, for restitution of conjugal
rights, the sanction is provided by the court where the disobedience to such a decree is willful that is deliberate,
in spite of opportunities.[/quote]
During the time of introducing the provision for restitution of conjugal rights in the Special Marriage Act, 1954 and
the Hindu Marriage Act, 1955, there were heated debates in the Parliament for and against it.