Is The Supreme Court Ready To Reinterpret “Cruelty”?
Aditya Bhattacharya and Tanushree Pande*
Recently, the courtroom battle between two senior government officials to seek divorce might have gained some attention but the legal aspect was absolutely ignored by the media. Samar Ghosh v. Jaya Ghosh1 has reinterpreted the stand taken by the Hon’ble Supreme Court in the field of family law. For the first time the Court took into consideration circumstantial aspects of family life such as “rationing in emotions in the arena of love, affection, future planning and normal human relations” to invoke Section 13(1)(i-a) of the Hindu Marriage Act that deals with mental cruelty. If the judgments of the Supreme Court is taken into consideration, then the first time the Court took a clear and definitive stand on the aspect of mental cruelty was in N.G. Dastane (Dr.) v. S. Dastane2 where the Court clearly and categorically said that the conduct of cruelty should be of such character that it should leave a reasonable apprehension that it would be harmful to live with the other spouse any more. But then we also see that the Indian courts never interpreted the decision of Dastane v. Dastane2 in any further matter, neither did we see courts taking any cognizance of the foreign judgments especially of the Australian and American courts which were reinterpreting matters related to family law in the light of the neo conservative values in commonwealth societies. The 1970s saw Rosenbaum v. Rosenbaum3 and the 1990s saw Hybertson v. Hybertson4 which again and again said that mental cruelty in the matter of divorce has to be reinterpreted in the light of changing times; the court has to take into consideration the local customs, traditions, ethnic and religious backgrounds, physical or mental health of the other spouse and other cultural differences to decide upon mental cruelty. The Indian courts in early 1980s tried to come up with a clear stand in Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan5 where the concept of changing social needs and values were taken care of but again we see that the judicial pronouncements were mere verbatim reproductions of Dastane v. Dastane2, the concept of married life and all the emotional and physical aspects were never aptly discussed by the courts.
The age of interpretation
Post-1985 we see a catena of cases which did nothing but repeat and re-repeat the concept of marriage but never dwelled into the emotional aspects and the circumstantial aspect upon which a married life is established, in Shobha Rani v. Madhukar Reddi6 where the Supreme Court gave a brief but definitive test for “cruelty” and said:
In Rajani v. Subramonian7 the Kerala High Court aptly observed that:
“… 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 to which they attach importance, judged by our standard of modern civilization in the background of cultural heritage and traditions of our society.”
What made the above decision of the Kerala High Court special is the independent stand it gave in conjunction with the concept of mental cruelty. The decision was short and sweet, the age-old decisions of Fleck v. Fleck8 and Bravery v. Bravery9 were not taken into consideration; it was an all in all independent decision with reference to the changing Indian mindset. The 1990s witnessed nothing special, the previous matters were moulded into different situations producing the same results. V. Bhagat v. D. Bhagat10 was the only decision which came up with a concrete stance on mental cruelty. The Supreme Court in this matter said that mental cruelty is not based upon the intention of the parties; relief to the party cannot be denied on the ground of absence of any deliberate or wilful ill-treatment. So, for the first time we see that “intention” is not a factor that needs to be considered to check cruelty.
The modern junction
The advent of 21st century saw Chetan Dass v. Kamla Devi11 where we see the Supreme Court refusing to accept any submission to establish “irretrievable breakdown of marriage”. The decision came as a great surprise as the Court refused to recognise the social pattern of the urban Indian who has grown out of the traditional mould of safeguarding relationships and is ready to move away from difficult and impractical matrimonial liabilities. In 2002 Savitri Pandey v. Prem Chandra Pandey12 and Gananath Patnaik v. State of Orrisa13 added two more tests to establish mental cruelty, the “test of reasonable apprehension” and “test of social and economic status”. The above decisions clearly interpret that the Indian courts were still trapped in the conservative mindset, they refused to give decisions which could help an ailing spouse come out of a relationship which is destroying his/her life, dignity and psyche. It was only in 2004 that we see the courts again in action, in A. Jayachandra v. Aneel Kaur14 where the Court went beyond the purview of direct evidence associated with “mental cruelty” and said:
“In cases where there is no direct evidence the court has to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that the court has to consider the evidence in matrimonial disputes.”
The ratio of A. Jaychandras case14was further used in Vinita Saxena v. Pankaj Pandit15 where it was said that one has to see beyond the normal circumstances to establish cruelty. Further in the same year the Court clearly indicated in Rishikesh Sharma v. Saroj Sharma16 that where it is not possible for parties to live together, the courts should not compel the parties to live together. The above decisions came as a great breather as the society needed such decisions. The concept of mental cruelty had gone a long way, no longer it was confined to danger related to life, limb and body17 but it was about practical reality. If two people cannot live a life together, the courts must not force them to live together, they must be given the independence to unburden themselves from the matrimonial liabilities. If the marriage has broken down beyond repair it would be unrealistic for law not to take notice of that fact and it would be harmful and injurious to the interests of the parties18. All these years the courts in spite of giving correct interpretations were reluctant to give a bold decision regarding the “mental cruelty” and its subsequent connection with “irretrievable breakdown of marriage”. Ghosh v. Ghosh1 established this connection; the Court in this matter took into consideration even small pieces of arguments and looked beyond the concept of “normal wear and tear of matrimonial life” and interpreted the term in its strict sense. The Court was fresh and modern in its approach and came with a clear stand that if a spouse refuses to participate in the normal matrimonial routine and if he/she refuses to do all those little but important things which a spouse is supposed to do, then the whole foundation of matrimonial life is weak and if the parties feel that this foundation should be done away with, the courts should not force the two parties to be together again. What one needs to understand is that in the modern day “mental cruelty” is not about the mental anguish that two people in marriage experience, it is about the expression of responsibility towards one another. If one feels that the matrimonial strain is beyond the mental capacity of a person, he/she has every right to move away from it. The Indian judiciary took nearly two decades to understand that; but the biggest question lies now! What shall be the stand of the courts after Ghosh v. Ghosh1, will it preserve its opinion or will it again start the game of interpretation?
* The authors are second-year students of law at the National Law Institute University, Bhopal.
(2007) 4 SCC 511
(1975) 2 SCC 326 : AIR 1975 SC 1534 : (1975) 3 SCR 967
(1976) 38 Ill.App.3d. 1 : 349 NE 2d 73
(1998) 582 NW 2d 402
(1981) 4 SCC 250 : 1981 SCC (Cri) 829 : AIR 1981 SC 1972 : (1981) 22 GLR 1175 : (1981) 3 Scale 1400
(1988) 1 SCC 105 : 1988 SCC (Cri) 60
AIR 1990 Ker 1, (1990) 1 DMC 561
79 N D. 561
(1954) 1 WLR 1169
(1994) 1 SCC 337 : AIR 1994 SC 710 : 1993 (4) SCALE 488
(2001) 4 SCC 250 : AIR 2001 SC 1709 : 2001 (3) SCALE 399
(2002) 2 SCC 73 : AIR 2002 SC 591 : (2002) 1 SCR 50 : (2002) 1 UJ 273
(2002) 1 SCR 845
(2005) 2 SCC 22 : AIR 2005 SC 534 : (2004) (10) SCALE 1530
(2006) 3 SCC 778
(2007) 2 SCC 263
See Russell v. Russell, (1895) P. 315 (CA)
See Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558
http://www.ebc-india.com/practicallawyer/index.php?option=com_content&task=view&id=7006&Itemid=54
Very nice work done by the student of National Law institute University... Now the judiciary has to think over this high burning issue....instead to interpret the law rather the parties facing the problem in their each and every second in their life.....
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