Layered divides

Divorces are increasing, and mental cruelty has become one of the major reasons for the same. Section 13(1) of the Hindu Marriage Act, 1955, outlines grounds for granting a divorce.

Mental cruelty as a ground for divorce differs on a case-to-case basis. The overall facts and circumstances are considered. In V. Bhagat v. D. Bhagat (1994), the Apex Court observed that mental cruelty under Section 13(1)(i-a) can broadly be defined as conduct that inflicts such mental pain and suffering upon the other party that it becomes impossible for them to continue living together. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot be expected to tolerate such conduct and continue living with the other party. It is not necessary to prove that the mental cruelty caused injury to the petitioner’s health. While arriving at such a conclusion, regard must be given to the social status and educational level of the parties, the society they move in, the possibility of the parties living together if they are already separated, and all other relevant factors. The Court stated that what constitutes cruelty in one case may not amount to cruelty in another.

The Supreme Court, in Smt. Roopa Soni v. Kamalnarayan Soni (September 2023), observed that historically, divorce law was built on a conservative framework based on the fault theory, where the preservation of marital sanctity from a societal perspective was a prevailing factor. With the adoption of a libertarian attitude, the grounds for separation or dissolution of marriage have been construed more broadly. The Court pointed out that even with a liberal interpretation of matrimonial laws, the socio-economic stigma and issues attached to a woman due to divorce or separation remain significant. The concept of social justice adjudication was also referred to.

In Samar Ghosh v. Jaya Ghosh (2007), the Supreme Court, after considering previous decisions and referring to the concept of cruelty, opined that cruelty differs from person to person, depending on upbringing, level of sensitivity, education, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values, and value systems.

In Naveen Kohli v. Neetu Kohli, a three-judge bench of the Supreme Court stated that the expression "cruelty" is used in relation to human conduct or behaviour. Cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court has no difficulty in determining it, as it is a question of fact and degree. However, if it is mental, the issue becomes more complex. To constitute cruelty, the conduct complained of must be "grave and weighty" to the extent that the petitioner cannot reasonably be expected to live with the other spouse. It must be something more serious than the "ordinary wear and tear of married life." The conduct must be assessed in light of various factors, such as the social status of the parties, their education, physical and mental conditions, customs, and traditions. It must be such that the Court is satisfied that the relationship has deteriorated to a point where living together would cause mental agony, torture, or distress, justifying divorce.

The Court clarified that physical violence is not essential to establish cruelty; a consistent pattern of behaviour causing severe mental agony and torture may also constitute cruelty. It emphasised that the key question is whether the conduct was such that no reasonable person would be expected to tolerate it. Not every act that causes annoyance amounts to cruelty. Trivial irritations and routine quarrels that occur in daily married life may not meet the threshold. Cruelty in a marriage can take many forms—it may be subtle or brutal, expressed through words, gestures, or even silence, and may be either violent or non-violent.

This judgment, along with Bhagat (supra), was also cited in the Supreme Court's Constitution Bench decision in Shilpa Sailesh v. Varun Sreenivasan (May 2023).

Cruelty is assessed on a case-to-case basis. The spouse making the allegation must prove that the other's behaviour was such that they could not reasonably be expected to continue living together. While every effort is made to save a marriage, in cases involving excessively grave allegations or where sustaining the marriage is simply impossible, the most viable and practical approach is divorce by mutual consent rather than a costly and time-consuming contested litigation.

The writer is a practising Advocate in Supreme Court and High Court of Delhi. Views expressed are personal