Chapter - V EXPANDING HORIZON OF CRUELTY BY THE MARRIAGE LAW (AMENDMENT ACT, 1976).EXPANDING HORIZON OF CRUELTY BY THE MARRIAGE LAW (AMENDMENT ACT, 1976). Cruelty is the cumulative effect of many humiliating acts. It is an ingredient of many offences against the person, Dealing with the multifaces aspect cruelty professor Allen Writes.' Cruelty, thus, in its expanding form, is more than a display of temper. It involves the realm of the evil and wicked, of crutolity, of malignancy and of indignitis, and all these endanger the mental or physical health of ore of the spouse. Cruel conduct is such conduct as would tender co-habitation physically unsafe and in that case refusal to continue is totally justified. No one of such hostile acts may in itself amount to legal cruelty, but the combined effect of them all may well break down the health of their victim, and indeed their continuance as a whole "course of conduct" may be, like the torturing drip of water on the brow, a worse ordeal than isolated outbursts of violence. "It may be safely asserted," said Lord Penzance in Kelly v. Kelly (1869) L.R. 2 P. & D. 31 and 59, "that a wife is not a domestic slave, to be driven at all costs, short of personal violence, into compliance with her husband's demands. And if force, whether physical or moral, is systematically exerted for this purpose, in such a manner, to such a degree, and during such length of time as to break down her health and render serious malady imminent, the interference of the law cannot be 1. Aspect of Justice, 1999 Indian Reprints, pp. 197-198.320 justly withheld, by any court which affects to have charge of the wife's personal safety." The principle has been followed in more cases than it is necessary to cite, and it is, indeed, part of the larger principle that in the adjudication of matrimonial offences like cruelty at, and not merely a single aspect of it. Lord Penzance refers to domination "systematically exerted," and that seems to be the essence of the cumulative effect, as distinct from recurrent quarrels and discords and what we have called the “unkindnesses" which few matrimonial relationships can escape. The line of distinction between mere domestic differences and "courses of conduct" amounting in sum to cruelty is often difficult to draw, and there can be no invariable rule for it. Sometimes the difference between being churlish and being cruel certainly seems thin, but the decision, on the total effect, must be between cruelty or not-cruelty : there are no half-way houses and no "degrees" of cruelty in matrimonial law, though of course they exist over a wide range in popular interpretation of the term. In it's expanded horizon the concept of cruelty has gone far away from the Blackstoian doctrine of "Intolerable Illtemper" behaviour of the either of the parties. The "Doctrine of Danger" propounded in Russel V. Russets' is gradually being replaced by the doctrine of protection. Though English courts have not fully made themselves immune from the clutches of Russele dicta, yet the post, 1976 Amendment Act has heralded a new chapter with regard to the interpretation of cruelty as a ground for Divorce. Now venomous and malevolent, Statements made or after conduct lowering either of the parties in the estimation of friends, family members and associates have been held to constitute cruelty. Excessive 1.1897, A.C 395.320 justly withheld, by any court which affects to have charge of the wife's personal safety." The principle has been followed in more cases than it is necessary to cite, and it is, indeed, part of the larger principle that in the adjudication of matrimonial offences like cruelty at, and not merely a single aspect of it. Lord Penzance refers to domination "systematically exerted," and that seems to be the essence of the cumulative effect, as distinct from recurrent quarrels and discords and what we have called the “unkindnesses" which few matrimonial relationships can escape. The line of distinction between mere domestic differences and "courses of conduct" amounting in sum to cruelty is often difficult to draw, and there can be no invariable rule for it. Sometimes the difference between being churlish and being cruel certainly seems thin, but the decision, on the total effect, must be between cruelty or not-cruelty : there are no half-way houses and no "degrees" of cruelty in matrimonial law, though of course they exist over a wide range in popular interpretation of the term. In it’s expanded horizon the concept of cruelty has gone far away from the Blackstoian doctrine of "Intolerable Illtemper" behaviour of the either of the parties. The "Doctrine of Danger" propounded in Russel V. Russel' is gradually being replaced by the doctrine of protection. Though English courts have not fully made themselves immune from the clutches. of Russele dicta, yet the post, 1976 Amendment Act has heralded a new chapter with regard to the interpretation of cruelty as a ground for Divorce. Now venomous and malevolent, Statements made or after conduct lowering either of the parties in the estimation of friends, family members and associates have been held to constitute cruelty. Excessive 1, 1897, A.C 395,321 indulgences in drunkaues, which results into scandalous conduct of husband towards his wife and makes the of life miserable is also a new kind of cruelty. The infliction of pain for the mere purpose of causing pain or indulging vindictive passion combined with misconduct is also the new notions of cruelty. This it is desire to injustice the other party. This is the "spite or ill-will"! Lord Denning had already observed in Kaslefsky, Kaslefsky, that the. "The conduct of one party can properly be said to be aimed at the other when it consists of action or words actually or physically directed at him. Then it may be cruelty, even though there is no desire to injure the other or to inflict misery on him. It may consist in a display of temperament, emotion or perversion whereby the one gives vent to his or her feelings, not intending to injure the other, but making the other the object the butt at whose expense the emotion is relieved . . . When the conduct consists of direct action against the other, then it is not essential that there should be a specific intent to injure or even to cause distress." "In cases of this kind, if there is not desire to injure or inflict misery on the other, the conduct only becomes cruelty when the justifiable remonstrances of the innocent party provoke resentment on the part of the other which evinces itself in action or words actually or physically directed at the innocent party." ~ Similarly, in Fowler v, Fowler (1952) 2 T.L.R. 143, Denning LJ. expressed the opinion that if a husband insisted on using contraceptives against the will of the wife, knowing that she wished to have children, 1. (1951) P38 at 46, 2, Pre Lord Hodson in fowler. Foweles (1! 3. Pre Lord Hodson in fowler. Foweles (1 TLR 143 at 145, ‘TLR 143 at 145322 that might be cruelty; but that if a wife insisted on preventives because she was afraid to have children, this would not be cruelty, because the did not intend to injure her husband but was thinking only of her own safety. Under the English statute, Matrimonial Causes Act, 1973 cruelty is one of the facts indicative of a breakdown of marriage, and the wording of the clause are such as to give cruelty a very elastic meaning. The clause is worded thus: "The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent". Under the modern Hindu law, cruelty was a ground both for judicial separation alone under Section 13(1)(b) of the Hindu Marriage Act, 1955, the petitioner was required to show that the respondent had treated him or her with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. The Marriage Law (Amendment) Act, 1976 which makes cruelty a ground for divorce, has changed the wording of the clause thus: Respondent has treated the petitioner with cruelty. The change in the definition of cruelty will signify that an act or omission or conduct which constitutes cruelty is a ground for divorce or judicial separation even if it causes no apprehension of any sort in the mind of the petitioner. The cases decided under the old provision emphasised the reasonable apprehension aspect of cruelty, without much bothering about the nature of the act or conduct constituting cruelty. Now, it seems that the emphasis will be on act or conducted constituting cruelty. It is submitted that in constructing whether an act, omission, or conduct amounts to cruelty, the court will, nevertheless, consider its impact on the mind of the petitioner. In view of this, the cases decided under the old definition of cruelty will still be relevant. In GVN323 Kameswara Rao v. G. Jalili,’ the Supeme Court has further elucidated this concept. The court observed that the act of cruelty need not be of such nature as to create reasonable apprehension that it would be harmful for petitioner to live with other party, The court further observed that the social status for parties is relevant consideration while deciding whether the act constitutes cruelty or not. Cruelty should not always be of such character as to cause danger to life or health, or harm to or injury to health, reputation and mental pain will also amount to cruelty If the act or conduct is intentional, obviously it amounts to cruelty. There cannot be a graver matrimonial offence than to set out on a course of conduct with the deliberate intention of wounding or humiliating the other spouse and making his or her life a burden and then to continue in that course of conduct with the knowledge that it is seriously affecting his or her mental or physical health. If this is so, it hardly lies in the mouth of the respondent to say that there was no intention to treat the petitioner with cruelty. The conduct which is intended to hurt strikes with a sharper edge than a conduct in consequence of mere obtuseness or indifference. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weakness of the spouses, and probably no general statement is equally applicable in all cases except the requirement that the party seeking relief must show actual or probable injury to life, limb or health. 1, 2002 SC $76. 2. Devanti Devi v. Repan Janty, 2005 Shar, 49.324 The principles of law which have been crystallized by a series of judgements of this Court are recapitulated as under:- In the case of Sirajmohmedkhan Janmohamadkhan vs. Harizunnisa Yasinkhan', this Court stated that the concept of legal cruelty changes according to the changes and advancement of social concept and standards legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal ‘cruelty’. It is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal ‘cruelty’. In the case of Shobha Rani vs. Madhukar Reddi? this Court had an occasion to examine the concept of ‘cruelty’, The word ‘cruelty’ has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i)(a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The ‘cruelty! alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance in V. Bhagat vs. D. Bhagat’ the court observed as under.. "Mental cruelty in Section 13(1) (i-a) can broadly be defined 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. In other words, mental cruelty must be of such a nature that the 1. (1981) 4 SCC 250, 2. 1998, ISCC 105. 3. (1994) | SCC 337.325 parties cannot reasonably be expected to live together. 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. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be decided in each case having regard to the facts and circumstances of the case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made." The word ‘cruelty’ has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case. There may be instances of cruelty by unintentional but inexcusable conduct of any party. The cruel treatment may also result from the cultural conflict between the parties. Mental cruelty can be caused by a party when the other spouse levels an allegation that the petitioner is a mental patient, or that he requires expert psychological treatment to restore his mental health, that he is suffering from paranoid disorder and mental hallucinations, and to crown it all, to allege that he and all the members of his family are a bunch of lunatics. The allegation that members of the petitioner's family are lunatics and that a streak of insanity runs though his entire family is also an act of mental ‘cruelty’326 This Court in the case of Savitri Pandey vs. Prem Chandra Pandey reported in' stated that mental ‘cruelty’ is the conduct of other spouses which causes mental suffering or fear to the matrimonial life of the other. ‘Cruelty’, therefore, postulates a treatment of the petitioner with such ‘cruelty! as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. ‘Cruelty’ however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with other. This Court in the case of Gananth Patnaik vs. State of Orissa? reported in observed as under : "The concept of ‘cruelty’ and its effect varies from individual to individual , also depending upon the social and economic status to which such person belongs. 'Cruelty' for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to 'cruelty' and harassment in a given case.’ This Court, in the case of Parveen Mehta vs. Inderjit Mehta’ defined ‘cruelty’ as under: Cruelty for the purpose of Section 13(1) (i-a) is to be taken as a behaviour by one spouse towards the other, which cause reasonable apprehension in the mind of the latter that it is not safe for him or her to 1, 2002)2 SCC 73. 2.2002) 2 SCC 619. 3. (2002) 5 SCC 706.327 continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subject to mental 'cruelty' due to conduct of the other. In this case the Court also stated that so many years have elapsed since the spouses parted company. In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably. Chetan Das vs. Kamla Devi,' this Court observed that the matrimonial matters have to be basically decided on its facts. In the words of the Court: 1. 2001) 4 SCC 250,328 Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of ‘irretrievably broken marriage’ as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case. "In Sandhya Rani vs. Kalyanram Narayanan' this Court reiterated and took the view that since the parties are living separately for the last more than three years, we have no doubt in our mind that the marriage between the parties has irretrievably broken down. There is no chance whatsoever of their coming together. Therefore, the Court granted the decree of divorce. In the case of Chandrakala Menon vs. Vipin Menon’ the parties had been living separately for so many years. This Court came to the conclusion that there is no scope of settlement between them because, according to the observation of this Court, the marriage has irretrievably 1. (1994) 2 SCC 588, 2. (1993) 2 SCC 6.329 broken down and there is no chance of their coming together. This Court granted decree of divorce. In the case of Kanchan Devi vs. Promod Kumar Mittal’ the parties were living separately for more than 10 years and the Court came to the conclusion that the marriage between the parties had to be irretrievably broken down and there was no possibility of reconciliation and therefore the Court directed that the marriage between the parties stands dissolved by a decree of divorce. In Swati Verma vs. Rajan Verma’ a large number of criminal cases had been filled by the petitioner against the respondent. This Court observed that the marriage between the parties had broken down irretrievably with a view to restore good relationship and to put quietus to all litigation's between the parties and not to leave any room for future litigation, so that they may live peacefully hereafter, and on the request of the parties, in exercise of the power vested in this Court under Article 142 of the Constitution of India, the Court allowed the application for divorce by mutual consent filed before it under Section 13-B of the Hindu Marrriage Act and declared the marriage dissolved and granted decree of divorce by mutual consent. In Prakash Chand Sharma vs. Vimlesh’ the wife expressed her will to go and live with the husband notwithstanding the presence of the other woman but the husband was not in a position to agree presumably because he has changed his position by remarriage. But that as it may, reconciliation was not possible. 1. (1996) 8 SCC 90, 2. (2004) 1 SCC 123. 3. (1995) 4 SCC 642.330 In Naveen Kohali the count observed. Cruelty can be physical or mental cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omssions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In case where there is no direct evidence, Courts are required to331 probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes. The expression 'cruelty' has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unitentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel, treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted to constitute cruelty, the conduct complained of should be "grave and weighty" so as. to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts of cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of332 parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insult by using filthy and abusive language leading to constant disturbance of mental peace of the other party. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouses conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty.333 Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, voilent or non-violent. In Dastane vs. Dastane the apex court had led down that "Plainly, what we must determine is not whether the petitioner has proved the charge of cruelty having regard to the principals of English law, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent".' This requirement is no longer present in Section 13(1)(a) of the Act and no specified test is now tagged to ‘cruelty’. "Cruelty is cruelty simplicitor". At the outset it may also be pointed out that it is no more res integra that 'cruelty' as used in the Act also includes "mental cruelty." Although the said Amendment Act per se did a world of good especially for women at large in a patriarchal society like ours, some may argue that the judicial interpretation of cruelty and mental cruelty has been far from satisfactory. On a perusal and a through investigation of various judicial decisions, the glaring discrepancies in the interpretaion of the said term are unavoidable. Prima facie, it appears the women have been at the receiving end due to some conservative judicial interpretaion. It may be stated that the most paradigm example of orthodox judicial approach is the case of Kalpana Srivastava v. Surendera Nath’ wherein the Learned Judge in deciding whether the conduct of the wife amounted to cruelty against the husband inter alia observed, 1. AIR (I) 1975, 1534 2. AIR, 1985 All, 253,334 "Where a wife refuses to prepare tea for the friends of the husband she not only hurts his ego but causes him humiliation before his friends who may not be tiring of lavishing praises on their wives." With due respect to the Hon'ble Court, the said observation is wholy unwarranted. One may only wonder if the said observation would have remained a part of the judgement if the roles of the husband and wife were reversed. In the same case the Court further observed that, "Where a wife gets rid of a pregnancy without the consent of the husband, she causes him mental torture and deprives him of the pleasure and pride of being a father". Again, it may be argued that the said observation exhibited a certain sense of insensitivity towards women and disclosed an assumed machismo associated with our patriarchal society. Somewhere, this judgement was the manifestation of the inherent discrimination against women which was embedded in the very farbric of our society. The interpretation process has expanded the horizon of the cruelty. Cruelty is presumed to be present in the following new situations. Denial of Medical Treatment to the spouse, particularly on the very first day of her arrival in the matrimonial home and turning her out of the matrimonial home on the very first day are obviously acts of cruelty! Continuous ill-treatment, cessation of marital intercourse, studies neglect and indifferent total lack of affection and regard on the part of a spouse are also acts of cruelty.” 1. Balbir v. Dhirdas, 1979 P & H, 162. 2. Parimi v. Parimi, 1994 AP 92335, Expanding horizon of cruelty : post 1976 developments.- The Marriage Law (Amendment) Act, 1976 has changed the definition and meaning and scope of cruelty perceptively. Now the clause runs : the respondent has treated the petitioner with cruelty. Earlier the impact of the reformulation of the clause was not felt, but now our courts are gradually realizing the new dimensions of cruelty and interpreting it accordingly. False accusations of adultery or unchastity : That false accusation of adultery or unchastity amounts to cruelty came to be established at an early period. Such accusations can take various forms.' Thus, in Kusumlata v. Kampta Prasad,” false accusation of adultery were made orally, in lawyer's notice and in pleadings, while in Saptmi v. Jagdish the husband constantly called his wife a prostitute, a woman of the street. If a spouse is subjected to false accusations of adultery, insult, abuses, humiliation, false charges of immorality, it would make married life impossible to be endured and would make a very unhappy and miserable existence. This type of cruelty is worst than the acts of physical cruelty.’ In Paras Ram v. Kamleshi,’ the Punjab and Haryana High Court took the view that mere allegation of immorality in the written statement does not amount to cruelty, though the Delhi High Court took the view that if the respondent made false charges of adultery in cross-examination or in his disposition, it would amount to cruelty.° Indulgences in undue familiarity 1. Gurbachan v. Waryam, 1960 Punj 432; Iqbal v. Pritam, 1963 Punj 242; Kohli v. Kohli, 1969 Punj 397; Mohinder v. Bhagram, 1979 P&H 71; A. v. B 1985 Guj 127; Kamini v. Mukesh, Del, 221; ‘Neemai v. Minta, 1986 Cal 105; Pushpa v. Archana, 1992 MP 260. Meenakshi Mehta v. Atul Mehta, 2000 H.P. 73. 1965 All 280; Someshshekharan v. Thankamma v. Madhukar, 1988 Ker 308. 3. (1970) Cal 272; Kala Kumari v. Ram Bhawn Anand, AIR 2004 All. 54; Jai Dayal v. Shakuntala Devi, AIR 2004 Del. 39. 4. Kondal v. Rananyaki, 1924 Mad 49; Soosannamma v. Vargeese, 1957 TC 27; Krishna v. Alok, 1985 Cal 431; Kalpana v. Surendra, 1985 All 253, - 1962 P&H 60, 6, Pushpa v. Krishan, 1982 Del 60.336 with a third person with or without a promise to marry amounts to cruelty.' Our courts have consistently taken the view that false accusations of adultery amount to cruelty.” Wife Quarrelling with mother-in-law : Mere domestic quarrels on account of the presence of the mother-in-law in the family would not constitute mental cruelty.’ Mere misbehaviour with parents of husband and other relations does not amount to cruelty.' Demand of dowry : The demand of dowry from the wife or her parents and relations amounts to cruelty.’ But this should be distinguished from the Section 498-A, Indian Penal Code where under it is a criminal offence. Persistent refusal to have marital intercourse : Persistent refusal to have marital intercourse amounts to cruelty.’ In Shakuntala v. Om Prakash,’ Leila Seth, J. observed : "A normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this is not possible due to ill-health on the part of one of the spouses, it may or may not amount to cruelty depending upon the circumstances of the case. But wilful denial of sexual relationship by a spouse when the other spouse is anxious for it, would amount to mental cruelty, especially when the parties are young and newly married". This is consistent view taken by the courts.* Pranab v. Mrinmajee, 1976 Cal 156. Sadhna Srivastava v. Arvind Kumar Srivastava, 2006 All. 7. Yashoda Bai v. Krishnamoorthy, 1992 Kant 368. Renu v. Sanjai Singh, 2000 All, 201 (marriage) Sobha v. Madhukar, 1988 SC 1291. Navneet Kumar v. Meena Kumar, 2002 HP. 16, Jyothis v. Meera, 1970 Cal 266; Srikant v. Anirutha, 1980 Kant 8 Shakuntala v. Om Prakash, 1981 Del, 53. Anil Bhardwaj v. Nirmalesh, 1987 Del 11 (other cases have been reviewed),337 Wilful refusal to sexual intercourse and impotency: If refusal to have intercourse amounts to cruelty, so does the impotency. In Rita v. Balkrishna Nijhawan,! the Delhi High Court observed, .. the law is well-settled that if either of the parties to a marriage being of healthy physical capacity refuse to have sexual intercourse , the same would amount to cruelty entitling the other to a decree. In our submission it would make no difference in law whether denial of intercourse is the result of sexual weakness of respondent or it is because of his wilful refusal". This view has been confirmed by the Supreme Court in Sirajmohedkhan v. Hafizunissa,> a case under Section 125, Criminal Procedure Code. Wilful refusal to perform marital obligation amounts to cruelty.’ Drunkenness : Following English decision, a view is propounded that drunkenness per se is not cruelty.’ But it seems in the context of Hindu culture, there may be certain circumstances in which drunkenness may amount to cruelty. M.L. Jain, J. rightly observed that the habit of excessive drinking is a vice and cannot be considered reasonable wear and tear of marriage life. If a spouse indulges in excessive drinking and continues to do so inspite of remonstrances by the other, it may amount to cruelty, since it may cause great anguish and distress to the other spouse who may find living together not merely miserable but unbearable.’ This 1. 1973 Del. 200. 2. 1981, SC 1972, Parveen Mehta v. Inderjeet Mehta, 2002 SC 2582. This view has been has been consistently followed; See Shankar v. Madhavi, 1982 Cal 474; Hanuman v. Chandrakala, 1986 P&H 306. Jyotish v. Meera, 1970 Cal 266; Srikant v. Anirudha, 1980 Kant 8; Avinash v. Chandra Mohani, 1964 All 486; Nijhawan v. Nijhawan, 1973 Del 200; Shakuntala v. Om Prakash, 1981 Del 53; Anil y. Nirmalesh 1987 Del 111 4. Thus, in Chand v. Saroj, 1975, Raj. 88; Harjit Kaur v. Roop Lal, 2004 P. & H. 22; Usharani Lenka v Panigrahi Subash Chandra Dash, 2005 Ori. 3, it was held that drunkenness coupled with violence amounts to cruelty, through not excessive drunkenness. 5. Rita v, Brij, 1984 Del. 291338 decision gives a new dimension to cruelty, and considering our cultural context, it is a welcome decision. False criminal charges : In several cases it has been held that prosecution of a spouse by the other of a false criminal charge amounts to cruelty. Thus, it was held to amount to cruelty, where the wife launched prosecution of her husband on a false charge of bigamy under Section 494 of the Indian Panal Code.' In Kalpana v. Surendra, the wife lodged report against the husband and his other relations and warrants were issued, and they had to obtain bail from the court. But ultimately these turned out to be false charges. The Allahabad High Court held that this amounted to cruelty. In Shyamalata v. Suresh, the wife lodged complaint against her husband and in-laws under Sections 107 and 151, Cr.P.C. But proceedings were subsequently dropped for want of prosecution. The Punjab and Haryana High Court held that this conduct of the wife did amount to cruelty. The false allegation of the wife that her husband doused her in kerosene oil and wanted to set her ablaze amounts to cruelty. Refusal to have children : Just as wilful refusal to have sexual intercourse amounts to cruelty, the persistent refusal of a spouse to have any children amounts to cruelty. Thus, wilful refusal to have sexual intercourse to frustrate the other spouse's desire to have a child amounts to cruelty.’ Among Hindus (and for the matter every normal person wishes to have one or two children) the birth of a son is considered to be necessary for the salvation of the soul, and if one of the parties refuses 1. Raj. v. Raj, 1986 Pat. 362 2. 1985 All 253; Sadhna Srivastava v. Arvind Kumar Srivastava, 2006, All 7. 3. 1986 P & H 383; P.K. Vijayappan Nair v. J. Anmini Amma, 1997 Ker 170. 4 5 Ashok Kumar v. Vijay Laxmi, 1992 Del 182. Jyotish v, Meera, 1970 Cal, 266.339 to have marital intercourse or insists to have it only with the contraceptives, it would amount to cruelty. Wife's insistence to terminate pregnancy twice over for no valid reason despite husband's desire to have a child amounts to cruelty.' Similarly, when the wife got her pregnancy terminated without consulting her husband's and no valid reason it was held to amount to cruelty.” Peculiar behaviour : In Uma Wantt v. Arjuna Dev, though wife was not found insane, but she behaved in peculier manner such as she was not obedient and declined to cohabit, she did not understand the responsibilities of the housewife, after taking bath she would not put clothes properly, she urinated outside the house and in her own clothes and she had many other pranks and unusual behaviour. The Court said this amounted to cruelty. Non cordial behaviour in matrimonial home, disrespect towards elders and indulgence in false criminal complaints amounts to cruelty.* Birth of an illegitimate child : In Madan Lal v. Sudesh Kumars the court held that birth of a child within six months of marriage amounted to cruelty. No one should dispute this finding. But under section 12(2)(b)(ii), on the ground of pre-marriage pregnancy, the petition for annulment must be filed within one year of marriage. The judgment is socially just as no husband may be as large-hearted as to live with such a wife. 1. Satya v. Siri Ram, 1963 P. and H. 252 Kalpana v. Swendra, 1985 All. 253; Sushil v. Usha, 1987 Del. 86. 1995 P and H 312. Rama v. Holiuder, 1996 P. and H. 98 1988 Del. 93.340 Irretrievable breakdown of marriage amounts to cruelty : In Romesh Chander v. Savitri,! twenty five years had elapsed since the appellant- husband, a sanitary inspector, and the respondent-wife, a school teacher, had enjoyed the company of each other. The Supreme Court said that within these 25 years, this is the second round of litigation which routing through the trial court and the High Court had reached them. Both the Courts below found that even though the wife had cast serious aspersions on the character of her husband in the written statement as saying that he was in the habit of mixing with undesirable women in her presence. But it was not proved. The Supreme Court said that this marriage was dead physically and emotionally and continuance of the alliance for namesake would be prolonging the agony and affliction. The Supreme Court passed a decree dissolving the marriage on the husband expressing remorse and agreeing to transfer his only house in favour of his wife. But second marriage of husband does not mean and cannot be ground of irretrievable breakdown of marriage.” The Supreme Court has sounded a word of caution in Shyam Singh Kohli v. Sushma,’ by observing that in very extreme cases Court may make use of this ground. Court should not lightly dissolve marriage on this ground. ‘A new trend is discemible whereby divorce is granted on the ground of cruelty when marriage is found to be dead or irretrievably broken down.’ 1. 1995 SC, 851 2. Buti v. Gulab Chand, 2002 MP 123 3.2004 S.C. S111 4, Pawan Kumar v. Chanchal Kumari, AIR 1999 P.&H. 108; Dr. Naresh Purohit v. Dr. P.K. Shobhana, AIR 1999, M.P. 108; Poonam Gupta v. Ghanshyam Gupta, AIR 2003 All. 51; Sadhna Srivastava v. Arvind Kumar Srivastava, 2006 All. 7.341 The Supreme Court has given its seal of approval to this new trend in A. Jaya Chandra v. Aneel Kaur,' by observing that irretrievable breakdown of marriage is, though not a ground for dissolution of marriage, but in extreme cases, to do complete justice and shorten the agony of parties, a decree to dissolve the marriage may be passed. Threat to commit suicide : When a spouse threatens the other to commit suicide with a view to coercing the other to do something, it amounts to cruelty. Thus, in Dastane v. Dastane, the Supreme Court held that the threat given by the wife that she would commit suicide amounted to cruelty. In Shakuntala v. Om Prakash’ also Leila Seth, J. observed that threat given by the wife to commit suicide amounted to cruelty on the husband. In Savitri y. Mulchand,’ the wife took poison luckily saved. It was held that it amounted to cruelty on the part of wife.’ False allegations of insanity and lunacy : Allegations that husband and all members of his family are lunatics and a streak of insanity runs through his entire family amounts to cruelty.° In Rajan v. Shobha,’ the Bombay High Court said that wife's false, wild, reckless and scandalous allegations against husband's mother, married sisters and brother-in-law amounts to cruelty. False complaints to the employer : It seems to be now an established proposition of law that false, malicious, baseless, unproved alligation made by one spouse against the others in letter Addressed to the employer 1.2005 S.C. $34. 1975 SC. 1534. 1981 Del. $3. 1987 Del, 52. Meera v. Vijay, 1994, Raj. 33., Harshajan Singh v. Amarjeet Kaur AIR, 1986 SC, 411 Bhagat v. Bhagat, 1994 S.C. 710; 1997 Raj 158 (though in this case divorce was not granted as false allegations were by the petitioner. 7.1995 Bom, 246,342 of spouse or to any person in authority amounts to cruelty against the other. Thus, in Lajwanti Chandhok v. O.N. Chandhok,' it was held that wife's writing false anonymous complaint to the employer of the husband amounts to cruelty.’ In Kiran v. Surendr. wild allegations were made by the wife against her husband who was a Class I Officer in the Ministry of External Affairs, to the superior officer. These letters were very damaging to the reputation of the husband. The court held that this amounted to cruelty. Again, in Jordan v. Chopda;' the husband wrote several letters to superior officers of his wife containing malicious, false and baseless allegations, such as that the Government was exploiting her weakness to their advantage. By these letters the husband tried to malign her and accused her of adultery. The court held that these letters constituted cruelty against her.’ Wife used to abuse her husband and at times refused to cook for him as a protest for his sending money to his parents. She also brought a tawiz to create in him hatred for his parents. In Anna v. Tarabai,’ the husband on certain occasions persuaded his wife to accompany him and even pressed her for the same. This led to unpleasantness as the wife did not want to go with him. The court said that such conduct on the part of the husband was perfectly justified and it could not be said that he treated her with cruelty. In Santhosh v. Parveen,’ the wife had lived only for three or four days with her husband and thereafter complained of physical and mental cruelty which she could not 1982 NOC 111 See Girdharilal v. Santosh Kumar, (1982) 1 DMC 180. Kiran v. Surendra, (1982) RLR Note 37. 1985 NOC 45 See Savitri v. Mulchand, 1987 Del. 52 where these cases have been reviewed; see also Aruna v. Ramesh Chandra, 1988 All. 239., S.K. Mehsther v. Kirti AIR, 1987, Delhi. 266. 1970 MP. 36 7. 1987 P. and H. 65343 ‘ substantiate. The court dismissed her petition saying that it could not be more than initial wear and tear of married life. The Supreme Court in JL. Nanda v. Veena Nanda' confirmed the view. Wife having adulterous relationships and her paramour visiting her and taking active part in proceedings, would amount to cruelty.” Acts of conduct amounting to cruelty : No hard and fast rules can be laid down as to what acts or conduct will amount to cruelty in any given case. What may amount to cruelty in one case may not amount to cruelty in another case. In deciding whether on not a particular state of affairs amount to legal cruelty, the court has to consider the social status, environment, the education, the mental and physical conditions, and the susceptibilities of the innocent spouse as also the custom and manner of the parties whether act and conducts complained constitute cruelty have fap 5 3 to be construct in reference to whole matrimonial relationship. In Satya Narain v. Mamra,' the husband did not like his wife from the beginning and was living adulterous life and contracted a second marriage. It was held to be cruelty. Hiding facts like true age and previous marital status and the fact that wife's first husband had committed suicide amounts to cruelty Undue familiarity with the members of opposite sex may be mental cruelty in some cases.° 1988 S.C. 407 Vimala v, Chandra Prakash, 1996 H.P. 86 Rupal v. Kartaro, 1970 J. and K. 158, Reliance was placed on Walsham v. Walsham (1949) 1 All E.R. 774 and Jamieson v. Jamieson, (1952) 1 All E.R. 875. 4, 1997 Raj 118. 5. Rajkumari alias Chandrakala v. Nandlal, 2002 Raj. 345 6, Neelam Kumari v. Gurnam Singh, 2004 P. & H. 9.344 It may be that various acts or conduct complained of, by itself and in isolation to each other, do not amount to cruelty, but in their overall effect they amount to cruelty. In general, cruelty is, in its character, a cumulative charge. Cruelty may consist of a single act or conduct of the respondent or, it may consist of a series of acts, none of which by itself can be said to constitute cruelty, but in their totality they may amount to cruelty. It can also happen that the mental cruelty may be coupled with physical cruelty.' It may also be emphasised that the existence of cruelty depends not on the magnitude of acts or conduct but on consequence they produce on the other party.’ The general rule is that the matrimonial relations must be considered as a whole and this rule is of special value when cruelty consists of not violent act but of injurious reproaches, complaints, accusations or taunts. Thus, any conduct of one spouse which causes disgrace to the other spouse or subjects him or her to a course of annoyance and indignity amounts to legal cruelty. The harm apprehended may be mental suffering as distinct from bodily harm, for pain of mind may be even severer than bodily pain and a spouse disposed to evil may create more misery in a sensitive and affectionate spouse by a course of conduct addressed only to the mind than in fits of anger when he were to inflict occasional blows upon her person.’ No watertight definition of cruelty is possible.* In a petition for divorce on the ground of cruelty, it is incumbent on the part of the petitioner to narrate precise acts and conducts of cruelty made out against the respondent.’ Even after a divorce petition is 1. Saptmi v. Jagdish, 73 CWN 502. 2. Kusumlata v. Kampta Prasad, 1965 All, 280, 3. Serah v. Pyli, 1959 Ker. 75, 4. Sukumar v. Tripti 1962 Pat. 32 5. Amarject v. Kiran, 1985 P, and H. 356.345 filed if wife continues to write and make false, wild and reckless allegations against the husband, it would amount to cruelty." It has been held that- Cruelty has to be distinguished from normal wear and tear of marriage,” e.g. taking job elsewhere by wife per se is not cruelty especially under the circumstances where husband was not taking care of her.’ Similarly, refusal to give up job is not cruelty.’ Defence to cruelty : At one time insanity was considered to be a good defense to cruelty, but it is no longer so.’ Provocation to, and self-defence against cruelty are good defences to cruelty. Burden of proof : It is a settled law that the burden of proving adultery on desertion is on the petitioner. But petitioner need not prove it beyond any reasonable doubt.’ In Dastane v. Dastane,’ Chandrachud, J., after considering certain English and Australian decisions,’ has taken the view that though the burden of establishing cruelty lies on the petitioner, the cruelty may be proved on balance of probabilities. His Lordship said : words in S. 23, Hindu Marriage Act, 1955 "satisfied" must mean "satisfied on a preponderance of probabilities" and not "satisfied beyond reasonable doubt". But divorce cannot be granted on mere averments of cruelty in absence of cogent proof." Rajan v. Sobba, 1995 Bom, 246 2002 SC 591 Balkrishan v. Urmila, 2001 Raj. 404. Arunima Bhattacharjee v. Shyama Prasad Bhattacharjee, 2004 Cal. 161 Bhagwant v. Bhagwant , 1956 Bom. 80. Meachur v. Meachur, (1946) 2 All E.R. 307; Dastane v. Dastane 1975. S.C. 1534. Old view was that cruelty must be proved beyond any reasonable doubt: Bipinchandra v. Prapha, 1975 S.C. 176 : White v. White, 1958 SC. 441; Mahendra v. Sushila, 1965 SC 364. 8. 1975 SC 1534 9. Write v. Wright, (1948) 77 C.L.R. 191; Blyth v. Blyth (1966) | AIE.R. 524, 10. Karthikeyan v, Sarojini, 1998 Ker. 1936.346 + A perusal of the interpretative time process of post. 1976 Amendment Act. makes it very clear that our judiciary has adopted the reasonable apprehension doctrine of cruelty. In explaining the term “Treated the petitioner with cruelty' substituted by Act 68 of 1976, section 37 in section 13(1) (1-b) of the Hindu Marriage Act, 1955 our judiciary has adopted the Roman Theory of ATROX INJURIA, i.e. The single act of gross and Intolable insult would amount to cruelty even if. not attended by physical danger. The ghost of Lord Herschel dicta propounded in Russel's case is no longer hanging over upon our judicial thinking. Our judiciary has enlarged the scope of the phrase "Intolerable ill temper" behaviour coined by Black stone meant by! cruelty "a mensa it Tharo Propter Sacvitiam" which in English means. That Divorce can be granted if he conduct of either of the parties makes it improper or impossible to live together as in case of intolerable ill temper or adultery. Our judiciary seems to be in agreement with Thomas fuller that,’ "cruelty deserves no mercy" The judiciary has re emphasized the intolerable aspect of the conduct that constitutes cruelty and has underlined that. To constitute cruelty, the conduct complained of should be grave and weighty so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than ordinary wear and tear of married life. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the types as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent due to conduct of L. Common. 440. 2. Legal quotations Indian Reprints 1994. P, 127. ‘Ee347 the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce.! The standard in case of mental cruelty need not be beyond reasonable doubt, as is required in the criminal trials. What is required in such cases is that the court must be satisfied of preponderance of probabilities and not satisfaction beyond all reasonable doubts. The act of mental cruelty in matrimonial homes, matrimonial violence and wife bettering continues all over the world. Often the unwanted acts of mental cruelty prove to be much more devastating than the acts of physical violence. Mental cruelty can be inflicted by many ways. A false criminal case to harass the husband would be an act of cruelty, Refusal to have marital intercourse, false complaints to the employees by the wife, an act of nagging, false, scandalous, malicious and baseless charges etc. come under the purview of mental cruelty. In 24 American Jurisprudence 2d the term "mental cruelty" has been defined as under: "Mental cruelty as a course of unprovoked conduct toward one's spouse which causes embarrassment, humiliation, and anguish so as to render the spouse's life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse." Summarising the evolution or the 1, Maya Devi Jagdish Prasad AIR. 2007 SC. 1426.348 expanding horizon of the concept of cruelty after the 1976 Amendment Act by Hindu Marriage Act, Professor Kusum writes-' The concept of cruelty is fast expanding. This is evident in the changes in law as also in judicial interpretation of the term cruelty, which is in any case expansive enough to include a vast variety of situations. Under the HMA as enacted in 1955 cruelty was only a ground for judicial separation’ and not divorce, and that too, not every kind of cruelty but only such cruelty which caused a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for hinv/her to live with the other parties of the court thus had wide dgree of discretion in deciding whether a particular act amounted to cruelty or not. The concept was very subjective and varied from case to case depending on the culture, social background, temperament, physical and mental and mental conditions of the parties, and so on. We are in total agreements with professor Allen, when he writes that. The foregoing observations have been concerned primarily with one type only of matrimonial offence, and not with the many social problems which arise from the present alarming rate of divorce and separation. The mutual adjustment of spouses is an infinitely complex matter, and it is, and doubtless will always remain, a difficult, and sometimes a baffling, task to distinguish between cruelty and "wear and tear." The responsibility for intervening between husband and wife and affecting not only their destinies but the lives of their offspring is, and ought to be, grave and anxious, and it is seldom that one can feel completely satisfied that the whole story is known, that all the relevant Matrimonial Adjudication under Hindu Law. Fifty yer ofthe Supreme cour pp 237-239, Vi. India 2, Section 10 (1) (b) HMA.349 factors have been weighed in the balance, and that full justice has been done. This, I believe, is felt by most magistrates, even though today they have the great advantage of assistance from conciliating justice, Probation Officers and Marriage Guidance Councils. It can be said with confidence that nowadays all reasonable efforts are made to reconcile estranged spouses before they embitter their relations beyond repair by action at Jaw; but all too often the utmost efforts are in vain. As for cruelty, the great danger at the present time is that it is used increasingly as a cloak for incompatibility of temperament. There are, of course, many cases of unmistakable and inexcusable cruelty; but in the experience of the present writer, after having heard many complaints of cruelty, the genuine cases are far outnumbered by those in which it is evident that the whole trouble arises from faults on both sides. These defects are caused by a complete absence of that patience, tolerance and give and take which are essential to any successful marriage, but which do not seem to be realised as obligatory in many marriages today, especially of the young. When this fatal deficiency has produced as it is bound to do, consent quarrels and recriminations, probably accompanied by blows and slaps, and when one party or the other has decided that the experiment of matrimony has failed and must be abandoned, all kinds of trivial incidents will be dragged up as examples of cruelty by one spouse or the other. As I write, an example comes to hand of the kind of thing which is familiar to all judges and magistrates. In Thompson v. Thompson [1957] P. 19 the main issue was a technical point of estoppel with which are not now concerned. The pleadings, however, were of a prolixity which incurred the displeasure of the Court of Appeal, and this was the kind of cruelty which was alleged: "that during the year 1948 and 1949 whenever the petitioner's son visited the matrimonial home on leave350 from the Army the respondent continually nagged and complained of the extra work cast upon her and made it clear that she wished the petitioner's son to leave the matrimonial home." Denning L.J. observed "Just see what that come to. It simply means that six years ago the wife made some complaints which the husband considered unreasonable. Is that cruelty, or is it not rather part of the wear and tear of married life? Some practitioners seem to think that whenever a wife objects or complains of anything her complaint has only to be described as ‘nagging! and it becomes cruelty. It almost makes me wish that the courts had never allowed 'nagging' to be introduced as a head of cruelty." The wish will be echoed by many judgtes, commissioners and magistrates, and if in such cases “wear and tear" were kept more firmly in view, we should have less unprofitable exploration of the murky domains of motive and intention. Again, when faults are mutual, the alleged acts of cruelty are frequently committed on provocation (this often applies to physical batteries) and this is a factor not easy to assess. In most branches of the law, it is elementary that provocation is not a defence, but many be an extenuation provided that retaliation is reasonably proportionate to that which prompted it. I believe it to be well settled that provocation plays the same part in charges of cruelty; there are many old authorities to that effect,’ and if a modern pronouncement be needed, it may be found in Barker v. Barker{1949] P. 219, where Lord Merriman P. said "Lam going to palliate any infliction of blows on the wife, but it is obviously very material to consider what the circumstances are in which they are inflicted, and if she was acting provocatively, in a way which 1. See Rayden on Divorce, 6” ed., 88, p. 107, and notes.351 would legitimately arouse the husband's jealously, and doing it defiantly, outbursts of violence of this character are understandable if not excusable." "Not excusable" according to perfect virtue and restraint, but sufficient, it is submitted, to deny relief to the complaining spouse unless the retaliation is grossly in excess of the occasion. This, after all, is not only common sense but is inherent in the vital principle insisted on in King v. King! that, in order to judge the quality of incidents, it is necessary to view the matrimonial situation as a whole. To strike a balance between provocation and its "response to stimulus," according to ordinary human emotions, is indeed difficult, but it is open to question whether, in many instances, this factor is sufficiently weighed. 1 would add, as a deduction from experience, that violent response to provocation is by no means confined to one sex. If women are not so impulsive with hands and feet as ill- tempered men, not a few of them seem to have considerable skill in marksmanship with household objects which are (pace Denning L.J.) "aimed at" their provokers with high degree of "directness". One has known charges of cruelty brought by wives against husbands who have only just emerged from hospital after serving as targets in this manner. I should be sorry to give the impression that cruelly illtreated spouses should not be protected by the law or that marriages which have degenerated into mere implacable warfare- and there is no hatred like that which can develop between hostile husbands and wives-should be kept in existence; but I believe that the offence of "cruelty" tends today to be extended beyond it due bounds, and Indeed to be abused by some practitioners and their clients, in favour of persons who have not brought 1. (1953) AC 124.352 to marriage, or have not even tried to understand, what matrimony requires in humanity, sympathy and obligation. If it is to remain a fundamental institution of society. The Global recession has added a new dimension to the concept of cruelty. After losing their jobs. The husbands have started losing their identity and they are now in the new role of ‘stay at home dad.’ They are there to look after their children, to maintain home and things of that particular kind. This new tendency causes tension in domestic relation the husband, feels that he is at the mercy of his wife, the wife seems to suffer husband from super ego. This results in to wife tyranny. Hence automatically allegations of cruel treatment start and such treatment renders further living together insupportable. It has made impossible to proper discharge of the duties of married life. Act 46 of 1983 Amendment Act has introduced an entirely new offence hitherto unknown to criminal jurisprudence. Sec 498A reads as follows. "498A. Husband or relative of husband of a woman subjecting her to cruelty; whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation — For the purposes of this section cruelty means: (a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman or (b) harassment of the woman where such harassment is with a view to coercing her or any