Libertatem Magazine

Explained: Mental Cruelty as a Ground for Divorce or Judicial Separation

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The present article seeks to anatomize the ground of ‘mental cruelty’ for claiming divorce or judicial separation. For this, the types of custody, the realm of judicial separation vis-a-vis mental cruelty, the procedure to prove the ground, among others are discussed.

Judicial Separation

Judicial Separation is a medium under the law to give some time for self-analysis to both the parties of a disturbed married life. Law gives a chance to both the husband and wife to rethink about the extension of their relationship while at the same time guiding them to live separately. By doing this, the law allows them the free space and independence to think about their future path and it is the last option available to both the spouses for the legal breakup of the marriage.

Section 10 of the Hindu Marriage Act, 1955 provides the Judicial Separation for both the spouse, those who are married under the Hindu Marriage Act, 1955. They can claim the relief of Judicial Separation by filing a petition. Once the order is passed, they are not bound to have cohabitation.

In Narasimha Reddy vs. M Boosammait was held that the decree of judicial separation does not end the marital status of the parties.


The Hindu Marriage Act defines divorce as “a dissolution of the marriage”. In the case of divorce, parties cease to be husband and wife. Divorce brings an end to the marriage and its mutual rights and the termination of commitments. The parties are free to marry again. Simply put when a marriage entered into as per the Hindu Marriage Act, 1955, gets dissolved and the spouses are free to end their ties with one another, results in the dissolution of marriage which is termed as a divorce.

‘Cruelty’ as a ground for Judicial Separation and Divorce

Section 13(1)(i) of The Hindu Marriage Act, 1955 defines cruelty as a ground for Judicial Separation or Divorce. It says that When the spouse treats his/her partner with cruelty or inflicts any mental or physical pain after the marriage. The sufferer can file a petition on the grounds of cruelty.

Cruelty includes both physical and mental cruelty. It is the res geste (events) that have adverse effects on the mental and physical health, social status, and lifestyle of the other party.

In Samar Ghosh v. Jaya Ghosh, Court considered the concept of cruelty and referring to Oxford Dictionary defines it as ‘the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another’s pain; mercilessness; hard-heartedness’.

In Shyamsundar v. Santadevi, the wife was badly harmed by her husband’s relatives and the husband also stood lazily, taking no steps to protect his wife. The Court held that the intentional neglect to protect one’s wife amounts to cruelty on the husband’s part.

Ascertaining mental cruelty is kind of more challenging than proving physical cruelty. Apart from the physical harm if any woman is inflicted with any kind of mental stress or has to compromise her mental peace for her spouse or has to constantly go through mental agony, then that amounts to mental cruelty. However, we will never come to know about the psychology of an individual and sometimes people are hypersensitive in nature so in that case if someone accuses someone of having exhibited cruelty then it cannot be entirely true. Therefore, the person will not be entitled to ask for a divorce on grounds of cruelty. Mental strain can happen in various ways so there are no specific criteria that would amount to mental cruelty for example, if the spouse is forcing the wife to do something without the consent or willingness of the wife. Anything not expressed or hidden by the spouse which creates a sense of doubt also amounts to mental cruelty.

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.

How to prove Mental Cruelty in the Court of Law?

Oral or written evidence is an acceptable basis for demonstrating mental cruelty. Strengthen the oral or written evidence with instances of mental cruelty such as constant non-cohabitation or rejection of physical relationships, verbal and physical assaults, arrogant conduct, incompatible or ever-increasing differences of opinion that exacerbate the domestic relationship.

Audio and video evidence are the best evidence and it is broadly admitted by the court. One can also strengthen his/her case with witness testimonies.

Procedure for Judicial Separation

  1. A petition under Section 10 of the Hindu Marriage Act, may be filed by either party to marriage seeking a decree of Judicial Separation relying on the grounds mentioned in the Act.
  2. After the petition is filed by one of the parties, the summons is passed to the other party.
  3. Both parties are required to furnish evidence to strengthen their claim.
  4. The judge hears the argument of each side and passes a decree.
  5. If the Court considers it just and reasonable to do so and upon being satisfied with the truth, it may pass the Decree of Judicial Separation.

Children Custody in Judicial Separation or Divorce

The mother and father both have an equal right to the custody of a child. Who gets the custody of the child, however, is a question which the court decides upon? While the statutes are conflicting when it comes to personal laws as opposed to secular enactment in the form of The Guardian and Wards Act, 1890, the court of competent jurisdiction strives to strike a balance between the two, all the while holding the welfare of the child as the paramount importance. However, just because the custody of a minor has been awarded to one parent, it does not mean that the other parent cannot see or be in contact with the child. The courts in India are very strict to ensure that a child gets the affection of both parents. The other parent gets visitation rights, the conditions of which are determined by the court.

Types of Custody

There are three types of Child custody in India. Following are the three-custody available to in India:

  1. Physical Custody: Physical custody when awarded to a parent, implies that the minor will be under the guardianship of that parent with visitation and periodical interaction with the other parent. The aim behind such a custody award is that the child lives in a safe and fulfilling environment but is also not deprived of the affection of the other parent during his formative years.
  2. Joint Custody: Joint custody of a child does not mean that the parents will both live together because of the child even though that what Indian courts believe is best for the welfare of a minor. It means that it will take turns for both parents to keep the infant in their custody. A child’s rotation between the custody of parents can vary from several days or a week or even a month. This not only helps the child because the love of both parents is not lost and in those early years, but the parents have also become part of the life of their child.
  3. Legal Custody: Legal custody of a child means that the parent granted legal custody takes every decision for the child. From where will the child study and what doctor will the child be treated by is part of legal custody. In most instances, courts grant legal custody to both the parents together but if the divorce is messy and the parents are, apparently, never going to agree with each other, the court grants the legal custody of the child to one parent.

A Claim of Maintenance in Judicial Separation and Divorce

Section 26 of the Hindu Marriage Act deals with the maintenance, education, and caring of the child and validates the child’s custody if and only if both the parents follow the Hindu religion. Under this act, the court can any point of time pass interim orders, judgments, amendments, etc. with respect to the child’s maintenance and can dispose of the pending decree within 60 days from the date of service of notice.

In Judicial Separation proceedings, the court shall pass orders with regards to the payment of maintenance and lump sums, the transfer of property, the extinguishment of succession rights, etc. Concisely, the power to pass financial orders vests with the court. Moreover, the mother of a minor cannot be discarded as the guardian just because she earns less than the father. The father has to provide for the child’s maintenance in such a case as it is a well-established principle of law that a step-mother has a primary obligation of affection towards her own children and the father would be at work all day, and hence, the mother would be the better guardian for the welfare of the minor child.

In Sohan Lal v. Kamlesh, the High Court of Punjab and Haryana held that in case of judicial separation, if a wife is not able to maintain herself, she is entitled to claim for maintenance from the husband.


A marriage is considered a sacred relation in our nation but a person should have an exit from a relationship when he/she is not happy with that relation. People have faith in the Hindu Marriage Act, 1955 that they can seek relief from the marriage by filing a divorce. This Act does not allow for leaving a relationship without any valid reason. Specific grounds on which the partner may file a case for judicial separation or divorce should be provided. This Act has a great rule to solve the disputes between the spouses and free them from marital ties. is now on Telegram. Follow us for regular legal updates and judgments from the court. Follow us on Google News, InstagramLinkedInFacebook & Twitter. You can also subscribe to our Weekly Email Updates. You can also contribute stories like this and help us spread awareness for a better society. Submit Your Post Now.

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