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

Must Read

India’s International ‘Retrospective Taxation’ Regime Vis-a-Vis PCA Rulings in Vodafone and Cairn in 2020

The imposition of retrospective taxation of foreign companies doing business in India has been at the helm of controversy...

What is the Real Estate (Regulation and Development) Act, 2016?

The Real Estate (Regulation and Development) Act, 2016 (“RERA”) is an Act of the Parliament. It seeks to protect...

Should the Exorbitant Amounts Charged for RT-PCR Tests be Refunded?

Introduction A plea has been filed in the Honourable Supreme Court of India seeking a refund of exorbitant amounts charged...

Should CCTV’s be Installed in the Police Station?

Introduction In a recent judgment, the bench led by Justice Nariman issued directions to both the state and Union Territory...

A Legal Analysis of the West Bengal Political Crisis on IPS Deputation

The Ministry of Home Affairs (MHA) has recently summoned three IPS officers of West Bengal (WB). The decision was...

Explained: Postal Ballot for NRIs

At the end of November 2020, Election Commission sent a proposal to the law ministry to amend the Representation...

Follow us

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.

Divorce

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.

Conclusion

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.


Libertatem.in 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.

LEAVE A REPLY

Please enter your comment!
Please enter your name here

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Latest News

SC: Under-21 Convicts Can Be Given Less Than Minimum Sentence, Resorts To Probation of Offenders Act

The Supreme Court resorted to the Probation of Offenders Act to sidestep the mandate under Section 397 of the Indian Penal Code that mentions a sentence of not less than 7 years to those convicted of armed robbery, to give a chance to two young convicts to reform their lives.

Environment Protection Act Passed at the Instance of Foreign Powers: NHAI in Karnataka HC

The National Highways Authority of India (NHAI) claimed in a submission that the Environment Protection Act 1986 was passed not only for the protection of the environment by the parliament but also at the instance of foreign powers. This statement was made while referring to a UN conference and got the NHAI into great trouble in the Karnataka High Court.

Delhi High Court To Implement a Hybrid System Through Virtual and Physical Hearing

On Friday the Delhi High Court said that they have initiated steps to implement a mode wherein hearing can be done by virtual as well as physical mode. The Delhi High Court is aiming to implement the Hybrid mode. It stated that when the particular bench is conducting a virtual hearing the lawyer may opt for this mode after giving prior intimation about the same.

Mercy Plea of Rajiv Gandhi Assassination Case To Be Decided in Four Weeks, TN Governor To Supreme Court

Tamil Nadu Governor Banwarilal Purohit on Thursday told the Supreme Court that a decision on the mercy petition of one of the convicts serving a life sentence for the assassination of former Prime Minister Rajiv Gandhi, AG Perarivalan will be taken within four weeks. The petition has been pending with the Governor since December 30, 2015.

Bombay High Court Questions FIR Over Journalist Alleged of Communist Comment on WhatsApp

An FIR lodged against the editor of Marathi newspaper, Rajkumar Chhajed has been questioned by the Bombay High Court. The Maharashtra Police has accused Chhajed of creating a rift between the two communities based on a WhatsApp message.

Allahabad High Court Expresses Dissatisfaction on Counsels Seeking Unnecessary Adjournments

The petition had been filed by Smt. Radha prayed to issue directions to Judicial Magistrate-I in Faizabad. The petition sought a speedy decision in...

[Delhi Riots] When the IT Ministry Calls Us, We Will Go Says Harish Salve To Delhi High Court

The Vice President and Managing Director of Facebook, Ajit Mohan told the Supreme Court that when the representatives of the company are called by the Information Technology Ministry they will come and record their statements.

Allahabad High Court Seeks Response on Compensation of Cutting Trees From National Highways Authority of India (Nhai) 

The Order had come in the form of a Public Interest Litigation (PIL) filed by a bunch of law students in Uttar Pradesh. The...

Doctrine of Proportionality Must Adhere to Reasonableness Principal Test: Madras High Court

Young Men's Christian Association built a commercial complex and leased it without having due permission. The District Collector & Tahsildar issued a show-cause notice...

Delhi High Court Refuses To Stay Release of ‘The White Tiger’ on the OTT Platform Netflix

A plea requesting a stay on the release of the film ‘The White Tiger’ by the American producer, John Hart Jr. alleging copyright violation was rejected by the Delhi High Court on Thursday.

More Articles Like This

- Advertisement -