Hindu Law: Divorce was mysterious to the shastric law and to the Hindu society for about two thousand years. The Hindu Marriage Act of 1955 allows divorce, while interpreting the provisions of the 1955 Act, the courts in this country also have alternatively relied both upon ‘fault’ and ‘break-down’ theories.
Explained: Cruelty And Desertion Under Hindu Law
New Delhi (ABC Live India); Hindu Law :The
assessment is not whether the blamed spouse ‘is cruel’, but whether the conduct
‘appears as cruel’ to the alleging spouse.
In India, ‘Marriage’ under Hindu law
was weighed a samskar, (sacrament), a pious obligation and, therefore,
indissoluble.
Divorce was mysterious to the
shastric law and to the Hindu society for about two thousand years. The Hindu
Marriage Act of 1955 allows divorce on grounds of adultery, conversion to another
religion, incurable insanity for three years, virulent and incurable leprosy,
virulent venereal disease, renunciation, unheard of for seven years and non-resumption of cohabitation for two years
or more after the passing of a decree for restitution of the conjugal rights or
for judicial separation. While interpreting the provisions of the 1955 Act, the
courts in this country also have alternatively relied both upon ‘fault’ and
‘break-down’ theories.
To establish cruelty, it is observed
that law has no foot rule to measure the nature or degree of cruelty to be
treated as actionable.
Where there is a reasonable
apprehension of injury in the future based as experience of the past reason
exists for granting relief on the ground of cruelty. There could be acts of cruelty without the
necessary element of intention.
The word “cruelty” has never been
defined and it has been designedly left by the judicial authorities to keep an
elastic form to meet the necessities of the changed requirements and concepts
of the society. It is in Rayden on Divorce, there is an attempt to define legal
cruelty.
From the view of Rayden, it is said
to be conduct of such a character as to have caused danger to life, limb, or
health (bodily or mental), or as to give rise to a reasonable apprehension of
such danger. Where the cruelty is of the type conveniently described as ‘mental
cruelty’, the guilty spouse must either intend to hurt the victim or at least
be unwarrantably indifferent as to the consequences to the victim9.
Desertion is a matter of inference to
be drawn from the facts ‘and circumstances of each case. The author intends to discuss in this article
as to the point of some controversy on the question on whom the burden of proof
lies to establish that the deserting spouse has just cause or not to leave the
matrimonial home.
We are bound by the decision in Bipin Chander
Jaisinghbhai Shah’s case (infra).The writer would, therefore, proceed to high
light the law from the point reached by the Hon’ble Supreme Court in the said
decision.
The ruling of Apex Court is clear and
unambiguous and it throws the burden on the petitioner seeking divorce. This
view is consistent with that expressed in famous decision of English Courts in
Pratt v. Pratt.
Unless the ratio decidendi refers to
the decision of Supreme Court in Lachman’s case, it is inapt to say the concept
of desertion under the Hindu Marriage Act is correctly understood.
To know fully, what constitutes
desertion, this case of Lachman Vs. Meena alias Mota is very important. In
Lachman Utamchnad Kirpalani Vs. Meena
alias Mota, AIR 1964 Supreme Court 40 approves the ratio laid down in the cases
of Dunn Vs. Dunn, 1948 (2) All E.R. 822,
and Brewer Vs. Brewer, 1961 ( 3) All
E.R. 957.
In fact, in this case of Lachman
(supra), the question as to what precisely constitutes “desertion” came up for
consideration before the Hon’ble Apex Court in an appeal from Bombay where the.
Court had to consider the provisions of s. 3(1) of the Bombay Hindu Divorce
Act, 1947, whose language is in par material with that of Section 10(1) of the
Act. The Hon’ble Bombay High Court held:”The inference may be drawn from
certain facts which may not in another case be capable of leading to the same inference;
that is to say, the facts have to be viewed as to the purpose which is revealed
by those acts or by conduct and expression of intention, both anterior and
subsequent to the actual acts of separation. If, in fact there has been a
separation, the essential question always is whether that act could be attributable
to an animus descrendi.
The offence of desertion commences
when the fact of separation and the animus descrendi co-exist. But it is not
necessary that they should commence at the same time. The de facto separation
may have- commenced without the necessary animus or it may be that the separation
and the animus descrendi coincide in point of time.”
Cruelty:-
It is difficult also to give a
precise definition of ‘Cruelty’ so as to include all acts which may amount to
‘cruelty’ in cases where no physical violence is involved. Where there are specific
charges of physical violence there is no difficulty in determining whether or
not they constituted ‘cruelty’. The difficulty arises when there is an averment
of cruelty without physical violence. Even here no violence of any sort is caused;
still the acts may amount to cruelty, if they are such as to raise a fear of
harm or injury in the aggrieved party. The health and safety of the wife or the
husband is the guiding consideration. It is thus abundantly clear that the
physical violence is not the sole ingredient of cruelty and that the language
of Clause (b) is wide enough to comprehend cases of physical as well as mental
cruelty. It is difficult to enumerate the acts amounting to mental cruelty.
What acts will constitute mental cruelty will obviously depend upon the
circumstances of each case.
In the case of Greene v. Greene,
(1916) P 188 it has been laid down that the Court has discretion to refuse
relief to a petitioner seeking a decree for restitution of conjugal rights even
in the absence of a matrimonial offence on the part of the petitioner. The
question for decision always is whether the wives have reasonable excuse for
leaving their husbands, and the test in all such cases is whether the conduct
of the husband is such that the wives consistently with their self respect and
dignity live in peace and security in the houses of their husbands and, in my
considered judgment, a wife cannot honourably live with her husband without
apprehension of danger to her life and health when the husband suspects her
fidelity
To find answer for this question, it
is apt to see the views of Rayden. He says that “In determining what
constitutes cruelty, regard must he had to the circumstances of each particular
case, keeping always in view the physical and mental condition of the parties,
and their character and social status…… Provided that the conduct in question
amounts to cruelty as defined above, it is immaterial that there is no danger
of its repetition, though the Court interferes not so much to punish the
respondent for the past hut to protect the petitioner for the future; however,
there is nothing in the authorities to justify the proposition that a decree
based on cruelty is a remedy given, not for a wrong inflicted, but solely as a
protection for the victim.”
According to Lord Justice Denning,
thus, there may be a situation in which the act of cruelty would exist in spite
of the absence of a malignant intention. In another case, Westall v. Westall,
(1949) 65 TLR 337, Lord Justice Denning observed thus ; “Although malignity is
not an essential element of cruelty as shows, nevertheless intention is an
element in this sense, that there must be conduct which is, in some way, aimed
by one person at the other … when there is no intent to injure, they are not to
be regarded as cruelty unless they are not only aimed at the other party but
also are plainly and distinctly proved, not merely to cause passing distress or
emotional upset, but actually to cause injury to health.”
“The general rule in all questions of
cruelty is that the whole matrimonial relations must be considered, and that
rule is of special value when the cruelty consists not of violent acts, but of
injurious reproaches, complaints, accusations or taunts12.” This is observed in
Iqbal Kaur Wife Of S. Pritam Singh vs Pritam Singh S. Nanak Singh, AIR 1963 P H
242.
What constitutes ‘Cruelty’?
In Earl Russell v. Countess Russel,
1897 AC 395, Lord Hobhonse stated at page 438 as follows: “…… cruelty has never
been confined to cases of personal danger, but has been judged by the wider and
more reasonable criterion expressed by Lord Stowell, namely, whether or no
conjugal duties have become impossible between the litigant husband and wife.”
In Lord Ashbourne’s judgment,
reference was made to Westmeath v. Westmeath, (1826-2 Hagg Ecc Supp 56), where
cruelty, according to Sir John Nicholl, existed when there was ill-treatment or
personal injury or the reasonable apprehension of personal injury. Lord
Herschell who gave a dissenting judgment, stated that “in a state of personal
danger no duties can be discharged; for the duty of self-preservation must take
place before the duties of marriage, which are secondary both in commencement
and obligation”.
Here, it is curious to see the
observations in Squire v. Squire, 1948-2 All ER 51, which is a decision of the
Court of Appeal (Tucker and Evershed, L. JJ., and Hodsan. J.). In this case, it
was held that it was not necessary that the acts which constitute cruelty
should be animated by any malignant design or intention. It would be sufficient
if they produce the consequences which constitute cruelty, as a person is
presumed to intend the natural consequences of bis acts. In Squire’s case,
1948-2 All ER 51, a wife suffering from insomnia compelled her husband to
remain awake at night to keep her company at the cost of his health and it was
held that though she was not actuated by any evil intention, the act
constituted cruelly.
Pearce J, in the case of Lissack v.
Lissack, 1950-2 All ER 233 , it was held that “in petitions based on cruelty
the duty of the court to interfere was intended, not to punish the husband for
the past, but to protect the wife for the future, and to withdraw from
consideration intolerable conduct which was due to insanity would render the
court powerless in cases where help was most needed.”
The Hon’ble Bombay High Court in
Cowasji Nusserwanji Patuck Vs Shehra Cowasji Patuck, AIR 1938 Bom 81, to show
that “even a single act of gross cruelty may be enough to constitute legal
cruelty, if it is such as to lead to a reasonable apprehension of further acts
of cruelty towards the aggrieved party.”
The doctrine of desertion:-
His Lordship Hon’ble Sri Justice Koka
Subba Rao , in Lachman Vs. Meena, observed that Under section 10 (1) (a) of the
Hindu Marriage Act,1955, a spouse can ask for judicial separation if the other
spouse has deserted her or him for a continuous period of not less than two
years.
This provision introduces a
revolutionary change in the Hindu law of marriage. It is given retrospective
effect. A spouse in India except in some states, who never expected any serious
consequences of desertion, suddenly found himself or herself on May 18, 1955,
in the predicament of his or her marriage being put in peril. If by that date
the prescribed period of two years had run out, he or she had no locus
penitential and could retrieve the situation only by mutual consent. Section 10
(1) (a) does not proprio vigore bring about dissolution of marriage. It is a
stepping stone for dissolution. On the deserted spouse obtaining a decree for
judicial separation, the said spouse can bring about divorce by efflux of time
under section 13 (1) (viii) of the Act.
The term ‘desertion’: –
The word “desertion” came under the
judicial scrutiny of the Hon’ble Supreme Court in Bipin Chander Jaisinghbhai
Shah v. Prabhawati, 1956 S.C.R. 838.
“For the offence of desertion, so far as the deserting spouse is
concerned, two essential conditions must be there, namely, (1) the factum of
separation, and (2) the intention to bring cohabitation permanently to an end
(animus descrendi). Similarly two elements are essential so far as the deserted
spouse is concerned: (1) the absence of consent, and (2) absence of conduct
giving reasonable cause to the spouse leaving the matrimonial home to form the
necessary intention aforesaid. The petitioner for divorce bears the burden of
proving those elements in the two spouses’ respectively.
His Lordship Sinha, J., dealt with
the mode of putting an end to the state of desertion as follows, at p., 852
:”Hence, if a deserting spouse takes advantage of the locus penitantiae thus
provided by law and decides to come back to the deserted spouse by a bonafide
offer of resuming the matrimonial home with all the implications of marital
life, before the statutory period is out or even after the lapse of that
period, unless proceedings for divorce have been commenced, desertion comes to
an end and if the deserted spouse unreasonably refuses the offer, the latter
may be in desertion and not the former.”
It is proceeded to laid down that the
duty of. the deserted spouse during the crucial period “Hence it is necessary
that during all the period that there has been a desertion the deserted spouse
‘must affirm the marriage and be ready and willing to resume married life on
such conditions as may be reasonable.”
Burden of Proof:–
“It is also well settled that in
proceedings for divorce the plaintiff must, prove the offence of desertion like
any other matrimonial offence, beyond all reasonable doubt. Hence, though
corroboration is not required as an absolute rule of law, the courts insist
upon corroborative evidence, unless its absence is accounted, for to the
satisfaction of the Court.”
Collating the aforesaid observations,
the view of the Hon’ble Supreme Court may be stated thus: Heavy burden lies
upon a petitioner who seeks divorce on the ground of desertion to prove four
essential conditions, namely.’
(1) The factum of separation;
(2) Animus deserendi;
(3) Absence of his or her consent;
and
(4) Absence of his or her conduct
‘giving reasonable cause to the deserting spouse to leave the matrimonial home.
The offence of desertion must be
proved beyond any reasonable doubt and as a rule prudence the evidence of the
petitioner shall be corroborated. In short the Hon’ble Apex Court equated the
proof required in a matrimonial case to that in a criminal case.
In Pratt v. Pratt (supra) the House
of Lords considered the said aspect. Lord Macmillan stated, at p. 438, thus:”In
my opinion, what is required of a petitioner for divorce on the ground of
desertion is proof that throughout the whole course of 3 years the respondent
has without cause been in desertion… In fulfilling its duty of determining whether,
on the evidence, a case of desertion without cause has been proved, the Court
ought not, in my opinion, to leave out of account the attitude of mind of the
petitioner. if, on the facts, it appears that a petitioning husband has made it
plain to his deserting wife that he will not receive her back, or if he has
repelled all the advances which she may, have made towards a resumption of
married life, he cannot complain that she has persisted without cause in her
desertion”.
The question of just cause:-
To answer this question of just
cause, it is pertinent to note the remarks of Lord Romer. His Lordship remarks
are relevant in this context. Lord Romer
observed: It would, in my opinion, be quite unreasonable to bold that the
respondent, guilty though she was of the serious matrimonial offence of desertion,
should be expected to present herself at her husband’s door without any
knowledge of how she would be received, ‘and therefore at the risk of being
subjected to the indignity of having admission refused by her husband or by one
of his servants…It could not be expected that she should suddenly make an
unheralded entry into his house.”
In Dunn v. Dunn15, Denning L.J., as
he then was, laid down the scope of burden of proof in such a case, at Page
823, thus: “The legal burden throughout this case is on the husband, as
petitioner, to prove that his wife deserted him without cause. To discharge
that burden, he relies on the fact that he asked her to join him and she
refused. That is a fact from which the court may infer that she deserted him
without cause, but it is not bound to do so. Once he proves the fact of
refusal, she may seek to rebut the inference of desertion by proving that she
had just cause for her refusal; and indeed, it is usually wise for her to do
so, but there is no legal burden on her to do so. Even if she does not
affirmatively prove just cause, the court has still, at the end of the case, to
ask itself: Is the legal burden discharged? Has the husband proved that she
deserted him without cause?”
This decision of Dunn’ case brings
out the well known distinction between legal burden and onus of proof. As to what constitutes desertion and
constructive desertion, the law laid down in Dunnv. Dunn, [1948] 2 All E.R.
822, and Brewerv. Brewer, [1961] 3 All E.R. 957 is approved in Lachmanv. Meena
(supra). From the above rulings, it is clear that legal burden always remains
on the petitioner; and onus of proof shifts and is a continuous process. But,
as the Lord Romer points out, the court has to hold on the evidence whether the
legal burden to establish desertion without cause has been established by the
petitioner.
As to the factum of ‘desertion’, the
legal position in Day v. Day [1957] 1 All E.R. 848. is stated thus, at p. 853
:”On the facts of the present case that involves the husband proving
affirmatively that the mind of the wife was not in any way affected by her
knowledge of the husband’s adultery. Clearly the burden is a heavy one, and
doubtless in many cases it will be one that a petitioner will not be able to
discharge.”
In Brewer- v. Brewer ([1961] 3 All
E.R. 957.), the Court of Appeal explained the views expressed by Lord Macmillan
and Lord Romer in Pratt v. Pratt (1). Willmer, L.J. after quoting the
observations of Lord Macmillan in Peatt’s casr (3), proceeded to state: “This
passage, although not necessary for the decision of that case, was expressly
approved and adopted by Lord Romer in Cohen v. Cohen ( [1939] 2 All E.R. 437.),
and must, I think, be accepted as authoritative having regard to the fact that
all the other members of the House expressed their concurrence with Lord
Romer.” The case-law here and in England throws the burden of proof on the
petitioning spouse to prove that desertion was without cause. The Hon’ble
Supreme Court, in Lachman Utamchand Kiriplani ‘s case, held that the definition
of desertion under section 10 of the Hindu Marriage Act, the argument proceeds,
is much wider than that under the English law or under the Bombay Act
considered by this Court. Emphasis is laid upon the following words in the
explanation to section 10 of the Hindu Marriage Act, 1955.
In this decision, the Hon’ble Apex
Court further laid down that The expression “includes”, the argument proceeds,
enlarges the scope of the word “desertion”, and takes in by definition the
conscious neglect on the part of the offending spouse, without the requisite
animus deserendi.
This argument, if accepted, would
impute an intention to the Parliament, whic\h was entering the field for the
first time, to bring about a revolutionary change not sanctioned even in a
country like England where divorce or separation for desertion had long been in
vogue.
We would be attributing to the
Parliament an incongruity, for, in the first part of the explanation it was
importing all the salutary restrictions on the right to Judicial separation. But
in the second part it would be releasing the doctrine, to a large extent, of
the said restrictions. By such a construction the legislation would be made to
defeat its own purpose.
On the other hand, the history of the
doctrine of “desertion” discloses some limitations thereon conceived in the
interests of society and the Parliament by the inclusive definition couched in
wide language could not have intended to remove those limitations. The
inclusive definition is only intended to incorporate therein the doctrine of
“constructive desertion” known to English law and the language is designedly
made wide to cover the peculiar circumstances of our society.
Constructive desertion:-
In Rayden on Divorce16, 7th Edn., the
expression “constructive desertion” is defined thus, at p. 155, as follows
:”Desertion is not to be tested by merely ascertaining which party left the
matrimonial home first. If one spouse is forced by the conduct of the other to
leave home it may be that the spouse responsible for the driving out is guilty
of desertion. There is no substantial difference between the case of a man who
intends to cease cohabitation and leaves his wife, and the case of a man who
compels his wife by his conduct, with the same intention, to leave him. This is
the doctrine of constructive desertion.”
Present principle of law, on the
question of animus, for to bring up briefly but specifically, in the case of
constructive desertion, the Hon’ble Judge proceeded to observe, at p. 156, thus
:”It is as necessary in cases of constructive desertion to prove both the
factum and the animus on the part of the spouse charged with the offence of
desertion as it is in cases of simple desertion. The practical difference
between the two cases lies in the circumstances which will constitute such
proof, for, while the intention to bring the matrimonial consortium to an end
exists in both cases, in simple desertion there is abandonment, whereas in
constructive desertion there is expulsive conduct.”
As was held in Lachman’s case, the
ingredients of desertion as well as constructive desertion are the same,
namely, animus and factum, though in one case there is actual abandonment and
in the other there is expulsive conduct. Under certain circumstances the
deserted spouse may even stay under the same roof or even in the same bed-room.
In our society, it is well known that in many a home the husband would be
guilty of expulsive conduct towards his wife by completely neglecting her to
the extent of denying her all marital rights, but still the wife, because of
social and economic conditions, may continue to live under the same roof. The
words “willful neglect” in the explanation were certainly designed to cover
constructive desertion in the English law. If so, it follows that wilful
conduct must satisfy the ingredients of desertion as indicated above. Hence,
the appellant could not take advantage of the inclusive definition unless he
established all the ingredients of constructive desertion, namely, animus, factum
and want of just cause.
There are rulings to say that
sections 9 and 10 bespeak distinct subjects. One with restitution of conjugal
rights and the other with judicial separation. In Lachman’s case, Supreme Court
held that we cannot import the provisions of the one into the other, except in
so far as the sections themselves provide for it. The explanation does not
expressly or by necessary implication equate reasonable cause with a legal
ground for sustaining a plea against an action for restitution of conjugal
rights. Indeed, it is a limitation on one of such legal grounds. There is an
essential distinction between the scope of the two sections. The Legislature
even in socially advanced countries lean,, on the side of sanctity of marriage
; therefore, under section 9 of the Act,
our Parliament imposes stringent conditions to non-suit a claim for restitution
of conjugal rights. On the same reasoning, under section 10 of the Act, it does
not permit separation of spouses on the ground of desertion except when the
desertion is without reasonable cause. The expression “reasonable cause” must
be so construed as to bring about a union rather than separation. The said
expression is more comprehensive than cruelty and such other causes.
In Edwards v. Edwards (L.R [1950] P. 8.) this idea was succinctly brought out. There it was stated that conduct short of cruelty or other matrimonial offence, might afford cause for desertion. So too, in an earlier decision in Yeatman v. Yeatman (L.R. [1868] 1. P. & D. 489.) It was held that reasonable cause was not necessarily a distinct matrimonial offence on which a decree or judicial separation or dissolution of marriage could be founded. I am, therefore. of the opinion that section 9 of the Act does not throw any light on the construction of the expression “without reasonable cause” and that whether there is a reasonable cause or not in a given case shall be decided only on the evidence and the peculiar circumstances of that case.
As a result of the above legal
position, it can be understood that the legal burden is upon the petitioning
spouse to establish by convincing evidence beyond any reasonable doubt that the
respondent abandoned him or her without reasonable cause. The petitioner must
also prove that there was desertion throughout the statutory period and there
was no bona fide attempt on the respondent’s part to return to the matrimonial
home and that the petitioner did not prevent the other spouse by his or her
action by word or conduct from cohabitation. The expression “willful neglect”
included in the section does not introduce a new concept in Indian law unknown
to the English law, but is only an affirmation of the doctrine of constructive
desertion. The said doctrine is not rigid but elastic and without doing violence
to the principles governing it, it can be applied to the peculiar situations
that arise in an Indian society and home. No inspiration could ‘be derived from
section 9 of the Act in order to construe the scope of the expression “without
reasonable cause” and whether there is a reasonable cause or not is a question
of fact to be decided on the facts of each case.
Conclusion:
The term ‘Cruelty’ has not been defined in Hindu Marriage Act,1955. It is really a question of inference. In judging this question, the entire marriage life of the parties and the inter-action of their mutual relations have to be considered against the background of the local conditions in which they live and move. As is discussed above, there must be at least some evidence in considering cruelty either of an intention to injure the other spouse or of facts from which such an intention can be inferred. What acts will constitute mental cruelty will obviously depend upon the circumstances of each case. Those acts cannot be put into a straight jacket, nor made conformable to any inflexible standard. It is really a question of inference “from the whole facts and atmosphere disclosed by the proof. The concept of legal cruelty as laid down in Russell v. Russell, (1897) A.C. 395, has been incorporated in § 10(b) of the Hindu Marriage Act,1955 and followed in a number of cases: Iqbal Kaur v. Pritam Singh, A.I.R. 1963 Punj. 242; Sayal v. Sarla, A.I.R. 1961 Punj. 125; Putual Devi v. Gopi Mandal, AIR 1963 Pat 93. The plea of insanity cannot be a valid ground to a charge of matrimonia cruelty, laid down in Williams v. Williams, [1963] 2 All E.R. 994, followed in Bhagwat v. Bhag-wat, AIR 1967 Bom 80. The principles as to what amounts to exceptional hardships, laid down in Bowman v. Bowman, [1949] 2 All E.R. 127, was followed in Meganaika v. Susheela, AIR 1957 Madra 423. Despite the Indian judiciary is clearly against considering the intention as relevant for proving ‘cruelty, the modern trend is that, what is material is the ‘impact’ or effect or the alleged conduct. Desertion is determined as not proved unless both the factum of separation and the animus deserendi are proved17. To assume for a while, the factum of intention as an essential ingredient of desertion, it excludes many a situation of actual break-down. While dealing with the defences of desertion, courts have often followed the fault notion alone.
I may conclude this paper with an
observation that personal laws control important traits of family life in India
such as inheritance, succession, divorce, and marriage etc. Marriage is
considered to be of utmost importance and the very basis of Indian Society. In
recent times, divorce cases are being increased. The writer hopes that the
concept of Hindu marriage cannot be treated like a contract. Imprudent and
unwise importance of the law of divorce may become an experiment or endeavour
to spoil all that is good in Hindu customs and traditions.
This Article is written by Author
Y.Srinivasa Rao Judge first published on his blog Articles on Law republished
in published interest