CRUELTY & DESERTION

Discuss cruelty and desertion as the main grounds of divorce under Hindu Marriage Act, 1955 with case laws.

The concept of divorce was alien to the Hindu religion before the enactment of Hindu Marriage Act, 1955. To protect the basic rights of parties, the Government of India introduced the concept of divorce in the Hindu Marriage Act, 1955. Section 13 of Hindu Marriage Act, 1955 deals with the provisions of divorce and lays down many grounds for taking a divorce. Out of these grounds, Cruelty and desertion are one of main grounds.

Before 1976, cruelty was not a ground of divorce but it was only a ground for judicial separation. But after amendment in 1976, it was made a ground for divorce also.
According to section 13(1)(ia) of Hindu Marriage Act, 1955, if any of the spouse treats the another spouse with cruelty then the aggrieved spouse has right under this section to take a Divorce and get the marriage dissolved.

It is very difficult to define the term Cruelty and give a precise definition of it because the act of cruelty depends upon the human behaviour. That is why, we cannot confine it in an air tight container by assigning a precise definition to it. But in general, every act of one spouse against the another which creates an impression in the mind of latter spouse that now it becomes impossible to live with former spouse and this act affects fundamental rights of latter spouse, that act will be considered as “Cruelty”.

In a leading case of Dastane vs Dastane (AIR 1976 SC 1534), The Supreme Court defined the term cruelty and said, “ generally it happens that A spouse who does not care for the feelings and happiness of another spouse does a number of acts meant to injure the other spouse. It is a communicative effect which makes the behaviour cruel.”

  

The Constitution of India provides a very basic right that is right to live a dignified life and every act that affects this right, that act will be considered as Cruelty. Cruelty may be physical cruelty or may be mental cruelty. Physical cruelty affects the body of a spouse but mental cruelty affects the mind and its development.

It is very easy to prove the physical cruelty but it is very difficult to prove the mental cruelty by direct evidences. Because it is a state of mind and feeling of one of the spouses due to the behaviour of another spouse.

That is why, in a leading case of Parveen Mehta vs. Inderjit Mehta (AIR 2002 SC 2582), The Supreme court held that, “Mental Cruelty is necessarily a matter of inference to be drawn from the facts and circumstances of the case.”

  

Whereas section 13(1)(ib) of Hindu Marriage Act, 1955 deals with the provisions of Desertion. According to this section, if any of the spouse deserts the another spouse without any reasonable excuse then an aggrieved spouse can file a petition for divorce after a period of two years from the day when the desertion starts.

Here the word desertion means abandonment of the spouse without any reasonable excuse and without the consent of aggrieved spouse.

If a spouse files a petition for divorce on the ground of desertion then he has to prove five main things:-
• Abandonment of the spouse
• Intention to desert
• Desert the spouse without reasonable excuse
• Desert the spouse without his consent
• The statutory period of two years must have run out before a petition is presented.
The spouse who files a petition for divorce on the ground of adultery, he has to prove actual desertion and intention to desert. If these two things co-exist then only court will grant the decree of divorce.

In a leading case of Bipinchandra vs. Prabhavati (AIR 1957 SC 176), The Supreme Court held that, “ to constitutes desertion it is necessary to prove that the deserting spouse persisted in the intention to Desert throughout the statutory period of two years. There can be no desertion without an intention to Desert.”

According to Hindu Marriage Act, 1955, this section includes two types of desertion:-
• Actual Desertion
• Constructive Desertion

Where any spouse has left the matrimonial home and started residing apart from another spouse that is actual desertion whereas if both the spouses reside in matrimonial home but one of the spouses refuses to perform matrimonial obligations and refuses to matrimonial intercourse that is constructive desertion.

In both the cases an aggrieved party can file a petition for Divorce. But the initial burden of proof will be on the petitioner and he has to prove that the respondent has deserted him without any reasonable excuse and if he proves this thing then burden of proof will be shifted on the respondent and he will have to prove that he has deserted him because of a reasonable ground. If the respondent proves the reasonable excuse then the court will not grant the decree otherwise court will grant the decree of divorce.

In a leading case of Vijay Kumar vs. Suman[(1996) 1 HLR 24 (P&H)], Hon’ble Court held that, “persistent demand of dowry or physical and mental torture was held to be a reasonable cause for wife to desert her husband.”

Hence, it can be said that if any of the spouse treats another spouse with cruelty or if any of the spouse deserts another spouse without any reasonable excuse, then an aggrieved spouse has right to get the divorce on the ground of “Cruelty” or “Desertion” under section- 13 of Hindu Marriage Act, 1955.

  

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