Cruelty

cruelty
The most used terminology in the courts of law is “Your Honor I cannot continue this sacred relation because of the cruelty committed on me”, but the shocking and sad state of affair is that the opposite party comes with more severe allegations alleging cruelty which the makes the job of the courts impossible to decide the case and resulting into everlasting litigation, mental agony.
Before I say what cruelty is in the terms of law, it is very important to understand the meaning of the word which is “cruel behavior or attitudes” or if we talk in legal perspective “behavior which causes physical or mental harm to another, especially a spouse, whether intentionally or not.” Since now a days it has become really difficult to tolerate the other person because of the patience level and expectations, most of the cases are coming forward with a tagline divorce on the ground of cruelty. Then the question arises as to what can be termed as cruelty and how it can be proved in the courts of law.
And most of the cases fail in the court of law is due to the lack of evidence because the acts committed under cruelty are committed within the four walls of the house and the mere exaggerated allegations to any level goes unproved resulting into injustice to the party who is a genuine sufferer and result into the suffering for the party against whom the allegations are put forward.
I wish to quote some instances which could be termed as cruelty and the Hon’ble Courts have time and again have taken those instances as such which goes beyond the purview of the normal wear and tear of life and which actually can be considered as cruelty and making it difficult for one spouse to live with the other or that the marriage has broken irretrievably that the parties cannot be expected to live together under one roof.
Instances which could be considered as cruelty and accepted by the Hon’ble Courts as cruelty can be categorized as follows:-
1. Act of the wife not allowing her husband to live in matrimonial home constitutes both mental and physical cruelty.
2. Where the husband remained unemployed during his stay with his wife and started spending money on liquor indiscriminately, used to come home late at night, gave physical beatings as well as mentally tortured the wife and also demanded share in his wife’s flat.
3. Threatening the husband that she would commit suicide, persuaded husband to leave his parents, filed false case under section 498A of the IPC and also dowry case against husband and his family members.
4. Conduct of the husband of continues abusing and ugly and foul language and also alleging the wife of having an extra-marital relationship without any good reason will make the relation between the parties a soured relation and as such the parties cannot be expected to live together.
5. Verbal abuses and insults by using foul and abusive language, disturbing mental peace and every conduct which causes a mental tension as to affect the health or likely to affect the health of the other spouse will be considered as cruelty.
6. A spouse staying away can cause mental cruelty to the other spouse by sending vulgar and defamatory letters or notices or filing false complaints containing indecent allegations or by initiating number of judicial proceedings making the others spouse’s life miserable.
7. Culture, human value, economic and social conditions will be an important factor in deciding the allegations made in the cruelty.
8. Lack of mutual trust, confidence, faith and having doubt on each other whenever the other spouse fails to answer the call and making remarks on her character will amount to cruelty, rupturing the matrimonial relation and the other spouse cannot be expected to stay in that environment.
9. Where the husband is lethargic, does not work, is parasitical, selfish or callous provides no money for the household or refuses to undertake payment to meet the household expenses, the wife cannot be expected to stay with the husband.
10. Spouses not behaving in a respectful and cordial manner with the parents of each other would be considered as cruelty.
11. Constant insults, abuses and accusations of adulterous character which make the married life impossible to be endured, constitute mental cruelty of a kind worse than physical violence.

Above mentioned are just the glimpse of the cases in which the Hon’ble Courts have held the have the cruelty being committed by one spouse towards to the other and the courts cannot expect the other spouse to stay in that house wherein he/she has lost their most cherished fundamental right of life with respect and dignity. The Idea of bringing the cruelty as a ground for divorce is to maintain the self respect and dignity of the spouses living under the same roof and who have decided to stay together for their life in all good and bad times.
Last but not the least is that whenever the spouses comes before the court of law to file their cases with the weak evidence or lack of evidence, the cases end up in dismissal and harassment, but after the amendment of the Information Act, 2009 any spouse can keep a audio or video recording, messages etc. to be used in the court of law to ensure a speedy justice.

Restitution of Conjugal Rights : A Comparative Study among Indian Personal Laws

– ANUJA AIYAPPAN

CHAPTER 1

 

1.1 Restitution of Conjugal Rights: Concept and Origin

Marriage under all matrimonial laws is union imposing upon each of the spouses certain marital duties and gives to each of them certain legal rights. The necessary implication of marriage is that parties will live together. Each spouse is entitled to comfort consortium of the other. So after the solemnisation of the marriage if either of the spouses without reasonable excuse withdraws himself or herself from the society of the other then aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights. The court after hearing the petition of the aggrieved spouse, on being satisfied that there is no legal ground why the application shall be refused and on being satisfied of the truth of the statements made in the petition may pass a decree of restitution of conjugal rights.

A decree of restitution of conjugal rights implies that the guilty party is ordered to live with the aggrieved party. Restitution of conjugal rights is the only remedy which could be used by the deserted spouse against the other. A husband or wife can file a petition for restoration of their rights to cohabit with the other spouse. But the execution of the decree of restitution of conjugal rights is very difficult. The court though is competent to pass a decree of restitution of conjugal rights, but it is powerless to have its specific performance by any law. The non-compliance of the issued decree results to constructive destruction on the part of the erring spouse. At present as per the provisions available under the Indian personal laws, the aggrieved party move a petition for a decree of divorce after one year from the date of the passing of the decree and the competent court can pass a decree of divorce in favour of the aggrieved party. The decree of restitution of conjugal rights can be enforced by the attachment of property, and if the party complained against still does not comply, the Court may also punish him or her for contempt of court. But under no circumstances the court can force the erring spouse to consummate marriage. Decree of restitution of conjugal rights could be passed in case of valid marriages only.

As stated by Paras Diwan, the remedy of restitution of conjugal rights was neither recognized by the Dharmashastra nor did the Muslim law made any provisions for it. It came with the Raj. Restitution of conjugal rights has its roots in feudal England, where marriage was considered as a property deal and wife was part of man’s possession like other chattels. The concept of restitution of conjugal rights was introduced in India in the case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum , where such actions were regarded as considerations for specific performance.

In modern India, the remedy is available to Hindus under Section 9 of the Hindu Marriage Act, 1955, to Muslims under general law, to Christians under Section 32 and 33 of the Indian Divorce Act, 1869, to Parsis under Section 36 of the Parsi Marriage and Divorce Act, 1936 and to persons married according to the provisions of the Special Marriage Act, Section 22 of the Special Marriage Act, 1954.

The provisions for restitution of conjugal rights are identical in Section 22 the Special Marriage Act, 1954 and Section 9 of the Hindu Marriage Act, 1955. It is as follows:

“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 of 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.”

 

The restitution of conjugal rights is often regarded as a matrimonial remedy. The remedy of restitution of conjugal rights is a positive remedy that requires both parties to the marriage to live together and cohabit.

 

The conceptualization of the provision for restitution of conjugal rights under Muslim law by Tayabji is as follows: 

“Where either the husband or wife has, without lawful ground withdrawn from the society of the other, or neglected to perform the obligations imposed by law or by the contract of marriage, the court may decree restitution of conjugal rights, may put either party on terms securing to the other the enjoyment of his or her rights”

Thus the Muslims equate this concept with securing to the other spouse the enjoyment of his or her legal rights. Earlier, it was also attached with the specific performance of the contract of marriage. In Abdul Kadir v. Salima , the Allahbad 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.

 

To sum up, under all personal law, the requirements of the provision of restitution of conjugal rights are the following:

• The 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.

1.2 Sufficient Cause for Withdrawal and Burden of Proof

 

The fundamental rule of matrimonial law that one spouse is at liberty to the society and comfort of the other spouse, forms the foundation of the right to bring a suit for the restitution of conjugal rights. The court has the duty of granting a decree for restitution in the cases where either spouse has abandoned or withdrawn from the society of the other. When the question arises whether there has been reasonable excuse for the withdrawal of the respondent from the society of the aggrieved party, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society. But this concept is only secondary in nature. The primary object of showing proof or onus rests with the petitioner. Once the petitioner has proved his/her case, the burden of proof then shifts to the other party to prove the defence of a ‘reasonable excuse or cause’. Here the term ‘society’ corresponds to cohabitation, and ‘withdrawal’ signifies cessation of that cohabitation and bringing to end consortium. This must be a voluntary act of the respondent.

 

In Sushila Bai v. Prem Narayan, the husband deserted his wife and thereafter was totally unresponsive towards her. This behaviour 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 defence 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 defence to a restitution petition. 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.

 

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 wilful that is deliberate, in spite of opportunities.

 

 

CHAPTER 2

2.1 Constitutionality: Relief of Restitution of Conjugal Rights

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. In Shakila Banu v. Gulam Mustafa , the Hon’ble High Court observed:

“(The concept of restitution of conjugal rights) is a relic of ancient times when slavery or quasi-slavery was regarded as natural. This is particularly so after the Constitution of India came into force, which guarantees personal liberties and equality of status and opportunity to men and women alike and further confers powers on the State to make special provisions for their protection and safeguard.”

 

The constitutional validity of the provision for restitution of conjugal rights has time and again been questioned and challenged. The earliest being in 1983 before the Andhra Pradesh High Court in T.Sareetha v. T. Venkatasubbaiah where the Hon’ble High Court held that the impugned section was unconstitutional. The Delhi High Court in Harvinder Kaur v Harminder Singh though had non-conforming views. Ultimately Supreme Court in Saroj Rani v. Sudharshan gave a judgment which was in line with the Delhi High Court views and upheld the constitutional validity of the Section 9 of the Hindu Marriage Act, 1955 and over-ruled the decision given in T. Sareetha v. T. Venkatasubbaiah .

 

2.2 Application of the Provision in Different Communities

The restitution of conjugal rights is one of the reliefs that are provided to the spouses in distress in the institution of marriage by law. Decree of restitution of conjugal rights could be passed in case of valid marriages only. Apart from legislation relating to matrimonial law, courts in India in case of all communities have passed decrees for restitution of conjugal rights.

 

2.2.1 Hindu

Section 9 of the Hindu Marriage Act, 1955 provides for the restitution of the conjugal rights. The aggrieved party may apply, by petition to the District Court, for the restitution of conjugal rights. One of the important implications of Section 9 of the Hindu Marriage Act, 1955 is that it provides an opportunity to an aggrieved party to apply for maintenance under Section 25 of the Hindu Marriage Act, 1955. Maintenance can also be obtained by the party in case when the action is pending under Section 25 of the Hindu Marriage Act, 1955. So, a wife who does not want a judicial separation or disruption of marriage can attain maintenance from her husband without filing a suit for the same under the Hindu Adoptions and Maintenance Act, 1956. Another important implication of the section is that it provides a ground for divorce under Section 13(1A) of the Hindu Marriage Act, 1955 on a condition that there has been no restitution of conjugal rights between them for a period of one year or more after the passing of a decree for restitution of conjugal rights. The legal grounds for refusing to grant relief are:

• For instance, any ground on which the respondent could have asked for a decree for judicial separation or for nullity of marriage or for divorce;

• Reasonable excuse for withdrawing from the society of the petitioner;

• Any conduct on the part of the petitioner or fact tantamount to the petitioner taking advantage of his or her own wrong or any disability for the purpose of such relief;

• Unnecessary or improper delay in instituting the proceeding.

 

2.2.2 Muslim

If the husband either deserts a wife or neglects to perform his marital obligations without any proper reason, then the wife can apply for restitution of conjugal rights. Even husband can apply for restitution of conjugal rights. But the court can refuse to grant order of restitution of conjugal rights for following reasons:

• Cruelty by husband or in-laws

• On the failure by the husband to perform marital obligations

• On non-payment of prompt dower by the husband

 

2.2.3 Christian

A Christian husband and wife can also apply for an order of restitution of conjugal rights. The Court cannot pass the decree for following reasons:

• Cruelty of husband or wife

• If either of the spouse is insane

• If any one of the spouse marries again

 

2.2.3 Parsi

Where a husband/wife shall have deserted or without lawful cause ceased to cohabit with his/her spouse, the party so deserted or with whom cohabitation shall have so ceased, may sue for the restitution of his or her conjugal rights and the court if satisfied of the truth of the allegations contained in the plaint and that there is no just ground why relief should not be granted, may proceed to decree such restitution of conjugal rights accordingly.

 

 

CHAPTER 3

3.1 Provisions for Restitution of Conjugal Rights under Hindu, Christian and Muslim Law

When either of the spouses has withdrawn from the society of the other without reasonable cause, the other person may file a suit for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. Similarly a Christian husband or wife can file a petition for restitution of conjugal rights under Section 32 and 33 of the Indian Divorce Act, 1869. The provision under Muslim law is almost the same as under the modern Hindu law, though under Muslim law a suit in a civil court has to be filed and not a petition as under other laws. A petition for restitution of conjugal rights is maintainable only when there is a valid marriage.

The concept of gender discrimination has not been incorporated in the Hindu Marriage Act, 1955 and all are treated as equals under the Section 9. There is no classification of sexes in Section 9 and all equals have been treated equally in this area. In Hyde v. Hyde and Woodmansee , the status of partners in Christian marriage was stated as “Marriage has been well said to be something more than a contract, either religious or civil – to be an Institution. It creates mutual rights and obligations, as all contracts do, but beyond that it confers a status. The position or status of “husband” and “wife” is a recognised one throughout Christendom: the laws of all Christian nations throw about that status a variety of legal incidents during the lives of the parties, and induce definite lights upon their offspring.” While in Muslim law where a wife refuses to live with her husband without any lawful cause, the husband can sue for the restitution of conjugal rights and likewise the wife has the right to demand for the fulfilment of marital duties by the husband. But this right is not absolute as the Muslim husband being dominant in matrimonial matters, and as the Quran enjoins the husband to retain his wife with kindness or to dismiss her with kindness, the Court leans in favour of the wife and requires strict proof of all allegations necessary for matrimonial relief. Under the Muslim law a Muslim husband can defeat wife’s petition for restitution at any time by pronouncing talaq on her.

In Hindu law the relief of decree for restitution of conjugal rights is an equitable relief and equitable considerations must be considered before compelling the defendant to return to cohabitation with the plaintiff. Similar is the law with respect to the marriage governed by Mohammedan law and Christian law. Relief of restitution of conjugal rights is discretionary.

The defences for the restitution petition under the Hindu Marriage Act, 1955 and the Indian Divorce Act, 1869 is very broad and it puts down that if the withdrawal of the respondent from the society of the petitioner is “without reasonable excuse”, it is in defence to restitution petition. Under Muslim law, Tyabji has used the expression “without lawful ground”. It is accepted that the expression “without reasonable excuse” and “without lawful ground” should have same meaning.

Under the Hindu Marriage Act, 1955 anything which constitutes a ground for nullity, dissolution of marriage or judicial separation is a defence against a petition for restitution of conjugal rights. Accordingly under the Section 33 of the Indian Divorce Act, 1869 applicable for Christians nothing can be pleaded as defence against a petition for restitution of conjugal rights which would not be a ground for judicial separation or for a decree of nullity of marriage. Under Muslim law grounds of void and irregular marriages, marriage avoided by the exercise of option of puberty and other provisions under the Dissolution of Muslim Marriage Act, 1939, are defences for a petition for restitution of conjugal rights. A petition may also be rejected if the husband has been made an outcaste by his community.

A marriage in violation of the age prescribed under Section 5 (iii) of the Hindu Marriage Act, 1955 being neither void nor voidable, a decree for restitution of conjugal rights cannot be refused on the ground of the violation. For Indian Christian according to Section 60(1) of the Indian Christian Marriage Act, 1872 it is required that at the time of marriage the bride should not be less than eighteen years and bridegroom should not be less than twenty-one years. The non-age does not render the marriage void or voidable. Thus the marriage remains a valid marriage; a decree for restitution of conjugal rights cannot be refused.While in Muslim law under Section 2 (vii) of the Dissolution of Muslim Marriage Act, 1939 when the marriage has been avoided in the exercise of option of puberty the suit for restitution of conjugal rights fails.

As far as the Hindus and Christians are concerned the existence of a co-wife is a sufficient cause entitling the wife to withdraw herself from the society of her husband which can be taken as a defence by the wife against a restitution petition. While under Muslim law controlled polygamy is allowed. So, a Muslim wife cannot refuse the comfort-consortium to husband because of husband’s taking a second wife. But in certain situations, a husband’s second marriage may involve cruelty to the first wife justifying her refusal to live with him. In Itwari v Asghari , a restitution petition filed by the Muslim husband against his first wife the court had held that it cannot compel the wife to live with husband and can refuse the relief if the court feels that it would not be just and reasonable to do or it would be inequitable to pass decree. In India bigamous marriages are now to great extent disapproved by the courts. Some High Courts have considered it as cruelty by the husband and denied on that ground the relief of restitution of conjugal rights.

Cruelty need not always be physical and it can also be mental. The Section 13 (1) (ia) of the Hindu Marriage Act, 1955 can be used as defence of cruelty against a petition for restitution of conjugal rights. The definition of ‘cruelty’ or what all actions constitute cruelty has not been specified in the Hindu Marriage Act, 1955 or the Indian Christian Marriage Act, 1872 or the Indian Divorce Act, 1869. Thus, in Hindu law as well as Christian law the courts have the wide power and discretion to decide what constitute cruelty. While in Muslim law, Section 2 (viii) of the Dissolution of Muslim Marriage Act, 1939, both physical cruelty as well as legal cruelty together with all instances of cruelty is included under the definition of cruelty. The relief of restitution of conjugal rights can be denied to the husband if any of the instances of cruelty as given under the section are proved against him.

In Hindu law and Christian law, the separation agreements are not part of the matrimonial statutes. They are regulated by the general law of contract. While in Muslim matrimonial law the spouses are permitted to enter certain agreements, either at the time of marriage or even after. Also a valid separation agreement is a good defence to a suit for restitution of conjugal rights.

The concept of dower is specific to Mohammedan law only. A Muslim wife living separate from the husband on account of non payment of prompt dower, restitution of conjugal rights cannot be granted subjected to certain conditions. If the husband sues for restitution of conjugal rights before consummation of the marriage takes place then non-payment of dower is a complete defence to suit, and the suit will be dismissed. If the suit is brought after the consummation of the marriage then a decree for restitution of conjugal rights on payment of prompt dower is to be passed. There is no absolute right in a husband to claim restitution of conjugal rights against his wife unconditionally; the courts have discretion to make the decree conditional on the payment of her unpaid dower debt or to impose other suitable conditions considered just, fair and necessary in the circumstances of each case.

 

3.2 Conclusion

You can take a horse to the water, but you can’t make him drink, is a very popular proverb and the provision for restitution of conjugal rights under the Indian personal laws seems to be akin. The court can pass a decree for restitution of conjugal rights and order the erring spouse to cohabit with the aggrieved spouse. Also under the Indian law a decree of restitution of conjugal rights can be executed by attachment of the respondent’s property. But it is to be noted that the court cannot compel the defaulting spouse to physically return to the comfort-consortium of the decree-holder spouse.

As understood from the previous chapters, the restitution of conjugal rights is a part of the personal laws of the individual, thus they are guided by ideals such as religion, tradition and custom. A very important feature of restitution of conjugal rights to be emphasized is that it is a remedy is aimed at preserving the marriage and not at disrupting it as in the case of divorce or judicial separation. It serves to aid prevention of the breakup of marriage, thus is a means of saving the marriage. So the restitution of conjugal rights remedy tries in promoting reconciliation between the parties and maintenance of matrimonial. It tries to protect the society from denigrating. But the final decision is that of the parties whether to obey the decree of restitution of conjugal rights and to continue with the matrimony or not.

 

BIBILIOGRAPHY

Books:

1. V.P. Bharatiya, Syed Khalid Rashid’s Muslim Law, (4th ED. : 2004) (Eastern Book Company Lucknow)

2. Dr.Paras Diwan, Law of Marriage and Divorce, (5th ED. : 2008), (Universal Law Publishing Co)

3. M.N.Das, Marriage and Divorce, (6th ED. : 2002) (Eastern Law House New Delhi)

4. A.G.Gupte, Hindu Law, (1st ED. : 2003) (Premier Publishers Delhi)

5. S.P.Gupte, Hindu Law in British India, (2nd ED. : 1947) (Premier Publishers Delhi)

6. Asaf A.A.Fyzee, Outlines of Muhammadan Law, (5th ED. : 2008) (Oxford University Press New Delhi)

 

Articles:

1 Aditya Swarup, Constitutional Validity of Restitution of Conjugal Rights: Scope and Relevance, http://works.bepress.com/adityaswarup/8 , (Last Visited : Feb. 27, 2011)

2 Vimal Balasubrahmanyan, Conjugal Rights vs Personal Liberty: Andhra High Court Judgment, http://www.jstor.org/stable/4372307, (Last Visited : Mar. 03, 2011)

3 Vimal Balasubrahmanyan, Conjugal Rights: Shift in Emphasis Needed, http://www.jstor.org/stable/4373507, (Last Visited : Mar. 02, 2011)

4 Lucy Carroll, Talaq-i-Tafwid and Stipulations in a Muslim Marriage Contract: Important Means of Protecting the Position of the South Asian Muslim Wife, http://www.jstor.org/stable/312203, (Last Visited : Mar. 02, 2011)

5 Saloni Tuteja, Restitution Of Conjugal Rights: Criticism Revisited, http://www.legalserviceindia.com/articles/abol.htm, (Last Visited : Feb. 28, 2011)

6 Arlette Gautier, Legal regulation of marital relations: an historical and comparative approach, http://lawfam.oxfordjournals.org/content/19/1/47.abstract#target-1, (Last Visited : Mar. 11, 2011)

7 Frances Raday, Culture, religion and gender, http://wunrn.com/news/2008/03_08/03_03_08/030308_culture_files/030308_culture.pdf , (Last Visited : Mar. 10, 2011)

 

TABLE OF CASES:

1. Abdul Kadir v. Salima, ILR (1886) 8 All. 149

2. Abdul Karim v. Aminabai, AIR 1935 Bom. 308

3. Alopbai v. Ramphal Kunjhilal,AIR 1962 MP 211

4. Gurdial Kaur v. Mukand Singh, AIR 1967 Punj 235

5. Harvinder Kaur v. Harminder Singh, AIR 1984 Del. 66

6. Hyde v. Hyde and Woodmansee, (1866) LR 1 P. & D. 130

7. Itwar v Asghari , AIR 1960 All. 684

8. Kanna v Krishnaswami, AIR 1972 Mad. 247

9. Moonshee Buzloor Ruheem v. Shumsoonissa Begum, (1867) 11 MIA 551

10. Mt.Anis Begum v. Malick Muhammed Istefa Wali Khan, AIR 1933 All 634

11. Peddagiri v. Peddagiri,AIR 1963 AP 312

12. Raj Mohammad v. Saeeda Amina Begum, AIR 1976 Kant 200

13. Samraj Nadar v. Mohinder Singh , AIR 1970 Mad 434

14. Saroj Rani v. Sudharshan, AIR. 1984 SC 1562

15. Sukram v. Mishri Bai, AIR 1979 MP 144

16. Sushila Bai v. Prem Narayan, AIR 1964 MP 225

17. Shakuntala v. Babu Rao, AIR 1963 MP 10

18. Sushila Bai v. Prem Narayan, AIR 1964 MP 225

19. T.Sareetha v. T. Venkatasubbaiah, AIR 1983 AP. 356

20. Teja Singh v. Sarjit Kaur, AIR 1962 Punj 195

 

Cruelty Against Husband in India

DHAWESH PAHUJA

In India where marriage is the union between man and woman to get social status in the society and marriage is nothing but procreation and caring of the child. According to Westmark Marriage has been often like as an institution made by itself. As there is increase in number of marriages every day, at the same time breakdown of marriages in the society has also been seen to be increasing whether by fault of husband or wife. Though cases filed by wife against husband and in-laws under Domestic Violence Act and 498-A of IPC to claim maintenance and divorce but all complaints are not filed bona-fidely. Freedoms of education, job opportunities, economic independence and social attitude have brought tremendous change in the status of women. The balance of scale has tilted reversely in favour of women.

Cruelty is an inhuman treatment and it is an act that causes mental sufferings and endangers to the life and health of the other. Cruelty may be in the form of physical as well as mental by the act either of the husband or the wife. Though it is the women who have always been subjected to be tortured and harassed by the husband and relatives, in fact saying this will not be proper as cases of torture and harassment against the husband by the wife is increasing day by day. Cruelty is the main ground to seek divorce as defined under ‘Sec 13(1) (i-a)’ of ‘The Hindu Marriage Act, 1955’ and party who is filing a case must prove that living between husband and wife became impossible.

There are many provisions made applicable for the protection of the women, which has got recognition from our constitutional law. The biased nature of these laws is evident from that fact that unlike almost all laws in INDIA the burden to prove innocence lies on the accused and this means as soon as the complaint is made by the aggrieved person/ wife, the result is that the husband and his family may be immediately arrested and will be considered as accused in the eyes of law. According to the ‘Section 498-A’ of the ‘IPC’ the wife and her parental family can charge any or all of the husband’s family of physical or mental cruelty but genuineness of the case has to be looked into by the court as this section is cognizable, non-compoundable and non-bailable in nature.

What amounts to cruelty against husband? Though it is the duty of the court to decide the case based on facts and circumstances but what amounts to cruelty is an important aspect as misuse of Laws by the wife against husband in society is growing day by day and most apparently some Indian Urban educated women have turned the tables and are using these laws as weapon to unleash personal vendetta on their husbands and innocent relatives and there are certain grounds on which cruelty against husband can be proved:-

• Misuse of Dowry Laws, Domestic Violence Act and ‘Sec: 498-A’ of IPC by wife against husband and in-laws of husband through lodging false complaints.

• Desertion by wife which means wife deliberately intending for separation and to bring cohabitation permanently to an end.

• Adultery by the wife means wife having sexual relationship with some other person during the lifetime of marriage and there must be strict law to punish wife who has committed adultery.

• Wife opting out for second marriage without applying for the divorce proceedings.

• Threatening to leave husband’s home and threat to commit suicide by the wife.

• Cruel behavior of wife where wife tearing the shirt of the husband, refusing to cook food properly or on time and breaking of the mangalsutra in the presence of husband’s relatives.

• Abusing and accusing husband by way of insulting in presence of in-laws and in some cases wife abusing husband in front of office staff members.

• Wife refusing to have sex with husband without any sufficient reasons which can be considered as a ground of cruelty and husband can file a divorce petition.

• Lowering reputation of the husband by using derogatory words in presence of family members and elders.

• Lodging FIR against husband and in-laws which has later proved as false report.

• Conduct and misbehavior of the wife against husband i.e. pressuring husband to leave his home, insisting for the separate residence, mentally torture and disrespectful behavior towards husband and in-laws as well.

• Some other grounds of cruelty i.e. mental disorder and unsoundness of wife, Impotency of wife, illicit relationship of wife with some other person and Wife suffering from the filarial.

• Extra-marital affairs of wife can also be a ground of cruelty against the husband.

• Initiating criminal proceedings against husband and in-laws of husband with mala-fide intention by the wife.

CASE LAWS: situations in Hindu marriage where a wife was held as ‘cruel’ to the husband and the Hindu divorce law was applied by the Supreme Court:

I. Mrs. Deepalakshmi Saehia Zingade v/s Sachi Rameshrao Zingade (AIR 2010 Bom 16)

In this case petitioner/wife filed a false case against her husband on the ground of ‘Husband Having Girl Friend’ which is proved as false in a court of law so it can be considered as cruelty against husband.

II. Anil Bharadwaj v Nimlesh Bharadwaj (AIR 1987 Del 111)

According to this case a wife who refuses to have sexual intercourse with the husband without giving any reason was proved as sufficient ground which amounts to cruelty against husband.

III. Kalpana v. Surendranath (AIR 1985 All 253)

According to this case it has been observed that where a wife who refuses to prepare tea for the husband’s friends was declared by the court as cruelty to husband.

Though the amendments introduced in the penal code are with the laudable object of eradicating the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relatives, i.e. fast emerging. A strict law need to be passed by the parliament for saving the institution of marriage and to punish those women who are trying to misguide the court by filing false reports just to make the life of men miserable and ‘justice should not only be done but manifestly and undoubtedly be seen to be done’.