A project submitted On Cruelty: Supreme Court Interpretation in Personal Law and Criminal Law In compliance to partial fulfilment of the marking scheme, for Trimester VII of 2015-2016, in the subject of Interpretation of Statutes
Submitted to Prof. Anirudh N. Bhatt
Submitted by: Group 12 Ms. Kruti Kamdar (A032) Mr. Sushant Ramakrishnan (A033) Course: B.B.A. LL.B. (Hons.) Received:
INDEX 1) List of Abbreviations …………………………………………………………………2 2) Table of Case Laws……………………………………………………………………3 3) Table of Statutes……………………………………………………………………….3 4) Introduction………………………………………………………………………….4-6 a) Problems relating to cruelty b) Hypothesis 5) Literature Review.……………………………………………………………….....7-11 a) Articles on cruelty 6) Interpretation of Court under Section 498A of IPC……………………………12-22 7) Marital Cruelty under Muslim Personal Law………….…………………………..23 8) Marital Cruelty under Hindu Marriage Act, 1955……………………………...24-26 9) Similarities and differences between Interpretations…………….……………..27-28 10) Comparative Study…………………………………………………………….….29-31 Comparison between UK and USA 11) Conclusion and Suggestions………………………………………………………32-34 12) Annotated Bibliography……………………………………...…………………...35-40
LIST OF ABBREVIATIONS 1
1. esp.
–Especially
2. ed.
– Edition
3. p.
– Page
4. ALT
–Appellate Law Tribunal
5. PPS
–Provisional Police Services
6. IPC
– Indian Penal Code
7. DGP
–Director General of Police
8. SCC
–Supreme Court Cases
9. AIR
–All India Reporter
10. Cr. L. J.
–Criminal Law Journal
11. P&H
–Punjab & Haryana
12. vs.
–versus
13. PTSD
–Post-Traumatic Stress Disorder
14. SC
–Supreme Court
15. MP
–Madhya Pradesh
16. Ors.
–Others
17. AP
–Andra Pradesh
TABLE OF CASES 2
1. Sushil Kumar Sharma vs. Union Of India, JT 2005(6) SC266 2. Jagdish Chander vs. State of Haryana, 1988 Cr. LJ 1048(P&H) 3. Kaliyaperumal vs. State of Tamil Nadu, 2004 (9) SCC 157 4. Inder Raj Malik vs. Sunita Malik, 1986(2) Cr.L.J 1510 5. Wazir Chand vs. State of Haryana, 1989 (1) SCC 244 6. Ram Kishan Jain & Ors vs. State of Madhya Pradesh, II (2000) DMC 628 7. State of Maharshtra vs. Jaiprakash Krishna Mangaonkar & Ors, II(2003) DMC 384 8. Annapurnabai @Bhoori vs. State of MP, I (2000)DMC 699 9. Ramesh DalajiGodad v State of Gujarat II (2004) DMC 124 10. U.SubbaRao&Ors v State of Karnataka II (2003) DMC 102; 11. Umesh Kumar Shah &Ors v State of Bihar, I (2004) DMC 260 12. RavinderBhagwanTodkar&Ors v State of Maharashtra &Ors I (2004) DMC 791 (DB) 13. Ashok Batra&Ors vs. State, I (2003) DMC 287 14.
BommaIlaiah v State of AP, II (2003) DMC 461
15. RavinderBhagwanTodkar&Ors v State of Maharashtra &Ors I (2004) DMC 791 (DB) 16. Savitri Devi vs. Ramesh Chand & Ors., II (2003) DMC 328 17. Sarita vs. Ramachandran, I (2003) DMC 37 (DB)
TABLE OF STATUTES 1. INDIAN PENAL CODE, 1860 2. CODE OF CRIMINAL PROCEDURE, 1973 3. CONSTITUTION OF INDIA 4. HINDU MARRIAGE ACT, 1955 5. INDIAN EVIDENCE ACT, 1872 6. CRIMINAL LAW (SECOND AMENDMENT) ACT NO. 46 OF 1983
INTRODUCTION 3
This paper is a research work on the subject of cruelty. It is an attempt to trace the origin of the concept and how it has evolved and reshaped itself from time to time. While the exact inception of the term is indeterminate, it would be safe to state that the practice of cruelty is not one which has been observed in human behavior gradually through a significant passage of time. In one way or the other, even before the term was coined, cruelty has existed for as long as mankind has. The term cruelty as defined in Black’s Law Dictionary is ‘the intention and malicious Infliction of mental or physical suffering on a living creature, esp. a human; abusive treatment. 1 The idea, the meaning and the concept of cruelty changes from time to time, varies from place to place and differs from individual to individual. It is not the same for persons situated in different economic conditions and status. By cruelty we normally think a conduct, behaviour, an act of physical violence. The normal idea of cruelty in the common man’s mind is assaulting somebody. However cruelty as a ground for matrimonial relief is just not physical violence. Cruelty as a ground for divorce need not be physical only. It may be mental. And believe me, mental cruelty is of a worse kind than that of physical violence. Cruelty is indifference to suffering, and even pleasure in inflicting it. Sadism can also be related to this form of action or concept. Cruel ways of inflicting suffering may involve violence, but affirmative violence is not necessary for an act to be cruel. For example, if a person is drowning and begging for help, and another person is able to help, but merely watches with disinterest or perhaps mischievous amusement, that person is being cruel — rather than violent. George Eliot stated that "cruelty, like every other vice, requires no motive outside of itself; it only requires opportunity." Bertrand Russell stated that "the infliction of cruelty with a good conscience is a delight to moralists. That is why they invented Hell."Gilbert K. Chesterton stated that "cruelty is, perhaps, the worst kind of sin. Intellectual cruelty is certainly the worst kind of cruelty."
1Bryan A. Gaener, Black’s Law Dictionary, 9th Ed. , 2009, p.434.
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Today, there is a large volume of case laws on cruelty in India and abroad. Since human nature and conduct are infinitely diverse. No hard and fast rules can be laid down as to what acts or conducts will amount to cruelty in any given case. However, there is a sea change in the attitudes of the courts. There is no difficulty in holding when physical violence amounts to cruelty. However deciding some clear cases, questions do arise in the sphere of mental cruelty or not. The reason is that mental cruelty may be of any kind or of infinite variety, new concept of mental cruelty may reveal. It may be subtle or brutal. It may be by words, gestures or even by mere silence. Perhaps this is the reason why the Legislature has not, in any of the Acts, defined as to what cruelty is and has left it to the best judgment of the Judiciary to decide as to what amounts to cruelty to a particular person in a particular set of circumstances. Various Judges have, in numerous judgments, defined as to what amounts to cruelty, but once again those definitions are not general but are only related to the facts of those particular cases. The question of cruelty is to be judged on the totality of the circumstances. In order to term a conduct as cruel it should be so grave and weighty that staying together becomes impossible. A conduct to be cruel must be more serious than the ordinary wear and tear of marriage. You will be surprised to know that out of 100 cases of divorces, in 95 cases, the ground for divorce is cruelty and in the majority of them the cruel conduct complained of is physical violence. However, cases of mental cruelty are also not unknown to our Courts and, at times, complaints are made of a spouse afflicting cruelty upon another, without physical violence, just by his or her conduct of saying something or refraining from doing something. In order to find out whether a particular act is cruel or not, one has to look upon the effect which is caused by that act. If the effect is that by a particular act harm has been caused to the body or mind of the other, the said act is an act of cruelty2.
2Kanchanapalli Lalitha kumari v. Kanchanapalli Ramaprasada Rao,1992 (2) ALT 631. The High Court held that the accusation made by the husband in his written statement, opposing the petition of his wife and alleging there in, without proving the same, that his wife was leading an adulterous life, was cruelty afflicted by the husband upon the wife. 5
Indian people of whatever race and religion they may be and to whichever class of society they may belong to are basically tolerant. Unless the treatment received by a person from his or her spouse is extremely grave and unbearable, it is not treated as a cruel conduct giving a ground for dissolution of marriage. Still we do not have cases of divorce on the ground of husband snoring at night or wife refusing to accompany husband to a party. In the first chapter, we have tried to put forth the broad meaning of the term 'cruelty' with the help of various definitions and illustrations in form of precedents. In the second chapter, we begin by introducing shortly the different criminal and personal law statutes that we have made use of for the sake of comparing the two. In the third chapter, we have analyzed the judicial principles on the matters of cruelty. That is we have focused on the ratio decidendi and obiter dicta held by the judiciary in cases regarding cruelty. We have stated some of the precedents and principles held by the judiciary in certain cases which has helped the legal fraternity to develop a new view with regards to the issue either by introducing a new view altogether or by altering an earlier one. We have analyzed on the differences and the common thread which the Judiciary has established between the cruelty in personal and criminal laws in India. In the fourth chapter, we have given a detailed comparative study of two major countries which currently have a better legal framework as compared to India namely the United Kingdom and the United States. In the fifth and final chapter contains a conclusive analysis of the concept of cruelty in a nutshell. Personal stand of the authors of this research work on this topic has been given. Also certain drawbacks and loopholes have been pointed out in the current legal framework and corrective measures have been recommended to repair the same.
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LITERATURE REVIEW
SUSPECTING HUSBAND OF EXTRA-MARITAL AFFAIR “CRUELTY”: COURT LUCKNOW: Levelling baseless allegations of illicit relationship and extra-marital affairs against one's husband amounts to serious cruelty and is a ground enough for divorce, ruled the Allahabad High Court's Lucknow Bench, granting divorce to a police officer of Provincial Police Services (PPS) after 18 years of marriage. The couple had been living apart for eight years and has a 17year-old daughter. The bench observed that it tried hard to settle the matter amicably through compromise and also referred the case to its Mediation Centre, but the couple did not agree to resolve the dispute. "Under these circumstances, when both the parties do not intend to live together as wife and husband, it would be better to free both of them from matrimonial obligations so that they may lead their independent life in the manner they want," the bench said. The couple was married in Pratapgarh on January 29, 1996. The husband was serving in Reserve Bank of India at the time of marriage. Later, he was selected in PPS and awarded President's Medal for eliminating Nirbhay Gujar Gang in an encounter. The couple had a daughter on July 28, 1997. However, fissures emerged in the relationship and the couple went apart in April 2006. The same year, the husband moved a suit under section 13 of the Hindu Marriage Act seeking divorce from his wife in the Family Court, Lucknow. In retaliation, the wife filed application for restitution for conjugal rights under section 9 of the Act in 2007. The additional principal judge of the Family Court dismissed the husband's divorce plea on May 3, 2008 whereas he allowed the wife's plea to live with the husband. Dissatisfied with the Family Court decision, both the parties challenged the verdict in the HC by filing First Appeal. Reverting the verdict of the family court after six years, a bench of justice Rajiv Sharma and justice Mahendra Dayal observed, "Considering the manner in which the proceedings of this case have been initiated and allegations and counter-allegations have been made by the parties against each other, we find that even if the suit for divorce is dismissed and parties are directed to live together, they will not reunite. More so, a court cannot compel them to reunite." 7
The husband had alleged in his divorce petition that his wife had been physically and mentally harassing him and due to this, it had become impossible for him to linger the relationship. Among other allegations, his wife had been suspecting that he was having an illicit relationship with a married woman living in Delhi. The wife in fact hired a spy to probe the affair. She complained to the DGP who set up a departmental inquiry. The husband was suspended during the inquiry and said he had to face humiliation among his colleagues and seniors. Later, he came out clean in the final inquiry, but the department stopped increments and imposed a censure entry. He had to appeal in UP Service Tribunal which quashed the department's punishment. The wife meanwhile scuffled with him and also threatened to consume poison at times, he alleged. Under such circumstances, the marriage has become irretrievable and there was no solution other than divorce, he pleaded. Reiterating the allegations of her husband's illicit relationship with a woman, it was contended by the wife that during departmental inquiry, the phone call details were collected which revealed that he used to talk for long with the woman, even late in the night. He would often be out of the house the whole night. This clearly indicated the allegations, she said. It was argued on behalf of the husband that even if it is accepted that he talked to some woman on phone, it cannot be inferred that they had developed illicit relationship and therefore to humiliate and harass him on the basis of suspicion could not be justified.3
SUPREME COURT’S RULING ON MENTAL CRUELTY NOT A LICENSE TO EXTRA-MARITAL AFFAIRS Notions of mental cruelty are highly subjective and vary among different sections of society. A Bench of the Supreme Court comprising Justices Dipak Misra and S J Mukhopadhaya had to grapple with this problem in the context of a wife’s complaint of cruelty against her husband because of his extra-marital affair, which eventually led to her committing suicide. The Bench referred to its previous judgment which held that “the mere fact that the husband has developed some intimacy with another, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to ‘cruelty’”. On the facts of the case before it, the 3Ravi Sisodiya, Suspecting Husband of Extra-Marital Affair “Cruekty”:Court,The Times of India, November 24, 2014 at Lucknow 8
court ruled, “True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498A IPC, would not get attracted. … Mere extra-marital relationship, even if proved, would be illegal and immoral… but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty to drive a woman to commit suicide, Section 498A would not be attracted.” Consequently, the husband’s conviction was set aside. The Supreme Court’s judgment should not be misconstrued as giving a licence to a husband to indulge in extra-marital affairs. An aggrieved wife can always sue the husband for divorce on the ground of marital infidelity. The judgment is in the context of a criminal prosecution which involves personal liberty of a person guaranteed by Article 21 of the Constitution. It is realistic, well-reasoned, balanced and heralds a salutary trend in our jurisprudence.4
MENTAL ABUSE: THE SILENT KILLER Unfortunately, mental abuse receives far less attention than physical abuse. Mental abuse can be just as devastating as physical abuse, however, particularly in the context of an intimate relationship that relies on trust and respect to function properly. Mental abuse in a marriage is one of the most devastating forms of abuse. Mental abuse is most likely to occur when your spouse is in a position to dominate you. In some cases this dominance is financial, such as when you are financially dependent on your spouse. In other cases the dominance is physical; even when the abuse is purely psychological, physical intimidation is a form of mental abuse even when actual physical violence does not occur. In other cases, the dominance may be rooted in personality types. An aggressive personality, for example, may find it easy to dominate you if you prefer a passive approach to conflict resolution. Abusers are usually quite insecure people. They exhibit a tendency to project their own shortcomings onto their spouse, and use it to justify "punishment." Abusers tend to lack empathy for other people, and as a result, see love in terms of possession rather than intimacy and respect. Most abusers refuse to admit that they are ever at fault, although some abusers will respond to 4Soli J Sorabjee, SC’s Ruling on Mental Cruelty Not A License To Extra Marital Affairs, The New Indian Express, February 22, 2015. 9
criticism by making token admissions of small shortcomings as a form of temporary tactical retreat. Life with an abuser is characterized by constant criticism over matters of small consequence, false accusations, threats and malicious humor. According to psychologist Steven Stosny, founder of CompassionPower in Washington, D.C., this behavior is designed to make you feel unworthy, fearful, ashamed and mentally unstable. The abuser, although domineering, will expect you to meet all of his emotional needs and will often blame you for his own bad moods or emotional upsets. An abusive spouse will seek to control your friendships, your comings and goings, your attitudes and your thoughts. He will deliberately trigger crises and then blame you for them. He may try to confiscate your cell phone or ATM card, or may break into your email account. If you confront him, he may insinuate that you are dishonest, that your memory is faulty or that you are mentally ill. The first stage of abuse is characterized by a breakdown in communication. Tension builds along with abusive behavior such as threats, sarcasm, ridicule, manipulation and various forms of intimidation. When confronted or faced with the loss of the relationship, the abuser may attempt an insincere but tearful reconciliation, ask for forgiveness, and resume the abusive pattern shortly thereafter. Abusive relationships are often characterized by frequent breakups and reconciliations.Mental abuse is designed to produce feelings of low self-esteem in order to render you easier to control. The late Dr. Janet GerringerWoititz, author of "The New York Times" bestseller "Adult Children of Alcoholics" and former professor of education at Montclair State University, reports that victims of mental abuse find it difficult to trust others even after the abusive relationship ends. Since lying to an abuser is often necessary for emotional survival, victims may find themselves lying to others as well, even when there is no need for it. Abuse victims often fear authority figures and suffer from indecisiveness. Victims of severe mental abuse often exhibit symptoms of Post-Traumatic Stress Disorder (PTSD), just as combat veterans do.5 5David Carnes, Mental Abuse: The Lethal Yet Invisible Phenomena, Livestrong.com, http://www.livestrong.com/article/138056-what-is-mental-abuse-marriage/.(last updated May 16, 2016.)
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RESEARCH QUESTIONS 1. What is the Interpretation of the term Cruelty under IPC and other Personal Laws? 2. How does the Court interpret Cruelty? 3. Is the term Cruelty interpreted in the same manner in foreign nations (particularly UK and USA)?
HYPOTHESIS 1. Cruelty is increasing against women, so there is different interpretation of the word. So as to interpret Cruelty under India Penal Code, 1860 and under Muslim Personal Law and Hindu Marriage Act, 1955. 2. Many laws are made but very few of them are implemented as required. The interpretation made by the Court should be in alliance with the Legislature. 3. In India, Cruelty is increasing at increasing rate and there are very few laws which help to overcome them. The developed countries also have laws avoiding and preventing Cruelty in their nations. That difference would help to bring out some solutions to overcome the lacuna in our Laws. While UK & USA have considered marital rape as a form of Cruelty the Legislature and Judiciary of India as of now have not even accepted the concept. This irrationality has led to gross injustice to the parties involved in marital suits in the recent past. MODE OF CITATION Mode of citation adopted in this research paper is the Bluebook, 19th Edition.
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INTERPRETATION OF THE COURT UNDER SECTION 498A OF IPC
To start with first we have to look that what this word marriage means. ‘Marriage is the voluntary union for life of one man and one woman to the exclusion of all others.’ It is a social institution where husband has the responsibility to take care and maintain his wife. He cannot neglect his duties. But on this great institution a stigma called ‘dowry’ still exists. Women are illtreated, harassed, killed, divorced for the simple reason that they didn’t brought dowry. For safeguarding the interest of woman against the interest of woman against the cruelty they face behind the four walls of their matrimonial home, the Indian Penal Code,1860(herein after referred to as I.P.C.) was amended in 1983 and inserted S.498A which deals with ‘Matrimonial Cruelty’ to a woman. Matrimonial Cruelty in India is a cognizable, non bailable and noncompoundable offence. It is defined in Chapter XXA of I.P.C. under Sec. 498A as: Husband or relative of husband of a woman subjecting her to cruelty. Whoever being the husband or the relative of the husband of a woman, subjects her to cruelty shall be punished with imprisonment for a term, which may extend to three years and shall also be liable to a fine. Explanation – for the purpose of this section, "cruelty" means: (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demands for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.6 The section was enacted to combat the menace of dowry deaths. It was introduced in the code by the Criminal Law Amendment Act, 1983 (Act 46 of 1983). By the same Act section 113-A has 6Ratanlal&Dhirajlal, The Indian Penal Code 917(30 th ed. 2008) 12
been added to the Indian Evidence Act to raise presumption regarding abetment of suicide by married woman. The main objective of section 498-A of I.P.C is to protect a woman who is being harassed by her husband or relatives of husband. Section 113-A of Indian Evidence Act7, reads as follows: Sec. 113-A, Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation- For the purpose of this section ‘dowry death’ shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860). The object for which section 498A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting Criminal Law (Second Amendment) Act No. 46 of 1983. As clearly stated therein the increase in number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some of cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, which constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure,1973 (in short ‘the Cr.P.C’) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in- law’s and relatives. The avowed object is to combat the menace of dowry death and cruelty8. The act of harassment would amount to cruelty for the purpose of this section. Drinking and late coming habits of the husband coupled with beating and demanding dowry have been taken to amount to cruelty within the meaning of this section, but this section has been held not to include a husband who merely drinks as a matter of routine and comes home late 9. In a case before Supreme Court it was observed that this section has given a new dimension to the concept of 7Ratanlal&Dhirajlal, The Indian Evidence Act, 1872, 560(21 st ed. 2009) 8Sushil Kumar Sharma vs. Union Of India, JT 2005(6) SC266 13
cruelty for the/ purposes of matrimonial remedies and that the type of conduct described here would be relevant for proving cruelty. Meaning of Cruelty: It was held in ‘Kaliyaperumal vs. State of Tamil Nadu 10’, that cruelty is a common essential in offences under both the sections 304B and 498A of IPC. The two sections are not mutually inclusive but both are distinct offences and persons acquitted under section 304B for the offence of dowry death can be convicted for an offence under sec.498A of IPC. The meaning of cruelty is given in explanation to section 498A. Section 304B does not contain its meaning but the meaning of cruelty or harassment as given in section 498-A applies in section 304-B as well. Under section 498-A of IPC cruelty by itself amounts to an offence whereas under section 304-B the offence is of dowry death and the death must have occurred during the course of seven years of marriage. But no such period is mentioned in section 498-A. In the case of ‘Inder Raj Malik vs. Sunita Malik11’ , it was held that the word ‘cruelty’ is defined in the explanation which inter alia says that harassment of a woman with a view to coerce her or any related persons to meet any unlawful demand for any property or any valuable security is cruelty. Kinds of cruelty covered under this section includes following: (a) Cruelty by vexatious litigation (b) Cruelty by deprivation and wasteful habits (c) Cruelty by persistent demand (d) Cruelty by extra-marital relations (e) Harassment for non-dowry demand 9JagdishChander vs. State of Haryana, 1988 Cr. LJ 1048(P&H) 102004 (9) SCC 157; 2004 SCC(Cr) 1417; 2003 AIR(SC) 3828 111986 (2) Crimes 435; 1986 (2) CRLJ 1510; 1986 RLR 220 14
(f) Cruelty by non-acceptance of baby girl (g) Cruelty by false attacks on chastity (h) Taking away children
The presumption of cruelty within the meaning of section 113-A, Evidence Act,1872 also arose making the husband guilty of abetment of suicide within the meaning of section 306 where the husband had illicit relationship with another woman and used to beat his wife making it a persistent cruelty within the meaning of Explanation (a) of section 498-A. Constitution Validity of Section 498-A In ‘Inder Raj Malik and others vs. Mrs. Sumita Malik’, it was contended that this section is ultra vires Article 14 and Article 20 (2) of the Constitution. There is the Dowry Prohibition Act which also deals with similar types of cases; therefore, both statutes together create a situation commonly known as double jeopardy. But Delhi High Court negatives this contention and held that this section does not create situation for double jeopardy. Section 498-A is distinguishable from section 4 of the Dowry Prohibition Act because in the latter mere demand of dowry is punishable and existence of element of cruelty is not necessary, whereas section 498-A deals with aggravated form of the offence. It punishes such demands of property or valuable security from the wife or her relatives as are coupled with cruelty to her. Hence a person can be prosecuted in respect of both the offences punishable under section 4 of the Dowry Prohibition Act and this section. This section gives wide discretion to the courts in the matters of interpretation of the words occurring in the laws and also in matters of awarding punishment. This provision is not ultra vires. It does not confer arbitrary powers on courts.
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In the leading case of ‘Wazir Chand vs. State of Haryana 12’, involving the death by burning of a newly married woman, the circumstances did not establish either murder or an abetted suicide and thus in-laws escaped the jaws of section 300 and 306, but they were caught in the web of this newly enacted section for prevention of harassment for dowry. Not to speak of the things they are persistently demanding from the girl’s side, the fact that a large number of articles were taken by her father after her death from her matrimonial abode showed that there was pressure being exerted on-in laws and continued to be exerted till death for more money and articles. With the rise in modernisation, education, financial security and the new found independence the radical feminist has made 498A a weapon in her hands. Many a hapless husbands and in laws have become victims of their vengeful daughter-in-laws. Most cases where Sec 498A is invoked turn out to be false (as repeatedly accepted by High Courts and Supreme Court in India) as they are mere blackmail attempts by the wife (or her close relatives) when faced with a strained marriage. In most cases 498A complaint is followed by the demand of huge amount of money (extortion) to settle the case out of the court. Sec 498A and the Allegation of Misuse: In the last 20 years of criminal law reform a common argument made against laws relating to violence against women in India has been that women misuse these laws. The police, civil society, politicians and even judges of the High Courts and Supreme Court have offered these arguments of the "misuse' of laws vehemently. The allegation of misuse is made particularly against Sec 498A of the IPC and against the offence of dowry death in Sec 304B. One such view was expressed by former Justice K T Thomas in his article titled 'Women and the Law', which appeared in The Hindu.21 The 2003 Malimath Committee report on reforms in the criminal justice system also notes, significantly, that there is a "general complaint" that Sec 498A of the IPC is subject to gross misuse; it uses this as justification to suggest an amendment to the provision, but provides no data to indicate how frequently the section is being misused. It is important therefore that such "arguments" are responded to, so as to put forth a clearer picture of the present factual status of the effect of several criminal laws enacted to protect women. 121989 SCC(Cr) 105; 1989 (1) SCC 244; 1989 AIR(SC) 378; 1989 (1) Crimes 173; 1989 (95) CRLJ 809 16
Domestic violence and abuse by spouses and family members are complex behaviours and the social organisation of courts, the police and legal cultures systematically tend to devalue domestic violence cases. Sec 498A was introduced in the IPC in 1983 and the reforms of the past 20 years have not been adequately evaluated at all by the government with respect to their deterrence goals, despite the institutionalization of law and policy to criminalise domestic violence. A program of research and development is urgently required to advance the current state of knowledge on the effects of legal sanctions on domestic violence. The narrow or perhaps almost negligible study done by law enforcement agencies about the deterrent effects of legal sanctions for domestic violence stands in high contrast with the extensive efforts of activists, victim advocates and criminal justice practitioners in mobilising law and shaping policy to stop domestic violence. It is important to do these studies to correct the general misconceptions that women are misusing the law by filing false cases against their husbands and in-laws in order to harass them and get them convicted. The perspective of the state and its agencies needs to change from that of protecting the husbands and in-laws against potential "misuse" of the laws of domestic violence to that of implementing their real purpose – to recognise that such violence is a crime and protect women who have the courage to file complaints against their abusers. Article 15 of Indian Constitution
Article 15 of the Constitution prohibits discrimination on grounds of religion, race, caste, sex or place of birth. However, it allows special provisions for women and children. Article 21A provides for free and compulsory education to all children from the ages of six to 14 years. Article 24 prohibits employment of children below 14 years in mines, factories or any other hazardous employment. The court also took note of Article 14 guaranteeing equality, and Article 21 providing that a person cannot be deprived of life and liberty except according to procedure established by the law. Similarly, Article 23 prohibiting human trafficking and forced labour was also referred to in the court’s judgment. Moving away from fundamental rights to the directive principles, the court pressed into service provisions relating to the health of women and children. Article 39(f) directs the State to ensure that children are given opportunities and facilities to develop in a healthy manner and in 17
conditions of freedom and dignity, and that childhood and youth are protected against exploitation and moral and material abandonment. Article 42 directs the State to make provisions for just and humane conditions of work, and maternity beliefs. Article 45 stipulates that the State shall provide early childhood care and education for all children until the age of six. Article 47 lays down the raising of level of nutrition and standard of living of people, and improvement of public health as a primary duty of the State. This section tries to maintain that every married woman needs to be given due respect and treated with care. It reinforces the fact that a woman is not a toy to be played with, to be thrown away at one’s whims and fancies and treated as inferior to any other. It inherently asks for husbands to treat their wives well and not misbehave or demand unjustly which in a way sends forth a message that a woman is a commodity for sale. What section 498A IPC tries to do is prevent and punish the above act and re-assert a woman’s right to live a peaceful and happy life. Use of Section 498 A by Indian Courts: Indian Courts had been using this provision to safeguard the women from facing the cruelty faced by them at their matrimonial home. 9 out of 10 of the cases are always related to dowry, wherein the woman is continuously threatened for want of more money and property which if remains unfulfilled , the married woman is tortured, threatened, abused- both physically and verbally and harassed. Like in the case of Ram Kishan Jain & Ors vs. State of Madhya Pradesh 13 due to insufficiency of dowry demands the woman was administered calmpose tablets and thereafter she even cut the arteries of both her hands. Sometimes, dowry may not be the cause but the woman for several reasons like her complexion or family status is tortured to death. In the case of Surajmal Banthia & Anr.v. State of West Bengal 14, the deceased was ill-treated and tortured for several days and even not given food several times. Her father- in-law also 13II (2000) DMC 628 14II (2003) DMC 546 (DB) 18
misbehaved with her quite often. This is the treatment that several young brides face when they move out of their parents’ home and into the house of her in-laws’. It is the duty of the court to prevent any of these abusers from escaping. The increasing rate of bride burning for want of more dowry and brutal torture of young wives, together with a clear escape of the abuser is a clear indication that the court has not taken any strong measures for the implementation of S. 498A IPC properly. As stated earlier many a times this victim turns into the abuser and is clearly not wronged but instead wrongs the husband and his family for no fault of theirs. Several cases show that the married woman takes advantage of the section and sends the respondents to jail under the ambit of this section. Many women rights’ groups justify the abuse of this section as being a common feature with all other laws and that also the ratio of false cases to that of true ones as being very low. But this still does not change the truth that there is slowly a rise in the abuse of S.498A IPC. In many judgments, the court has not considered mental cruelty caused to the woman but has concentrated only on any sign of physical cruelty. If evidence does not show that the woman was physically harassed, then the court does not look into the case. What the court does is call the woman hyper- sensitive15 or of low tolerance level and having an unstable mind16. Also S.498A IPC does not only deal with dowry deaths but also any willful conduct on part of the husband which causes harm to the wife’s ‘ life, limb or health (whether mental or physical).’To prove that cruelty was caused under Explanation a) of S.498A IPC it is not important to show or put forth that the woman was beaten up- abusing her verbally, denying her conjugal rights or even not speaking to her properly17 would fall into the ambit of mental cruelty.
15State of Maharshtra vs. Jaiprakash Krishna Mangaonkar&Ors II(2003) DMC 384 16Annapurnabai @Bhoori vs. State of MP I (2000)DMC 699 17Ramesh DalajiGodad v State of Gujarat II (2004) DMC 124 19
Showing any mercy to abusers or giving them the ‘benefit of doubt’ when some proof to torture at their hands is present is completely wrong. Like in the case of Ashok Batra&Ors vs. State18even though letters of the deceased stating that harassment had taken place was present, not treating them as strong evidence and giving the appellants a benefit of doubt without ordering for a further investigation into the matter is wrong. The judges have in several instances made a very narrow interpretation of this section, considering it to be only cruelty in relation to unlawful demands or dowry demands. In a particular case, the court went to the extent of stating that ‘merely because her in-laws or husband were to chastise the woman for improper or immoral conduct, it does not necessarily amount to cruelty.19’ This act of chastising the woman clearly amounts to mental cruelty, something that the court apparently failed to notice. Here, considering the woman to be a hypersensitive woman not used to usual wear and tear of social life is completely erroneous. In the case of BommaIlaiah v State of AP20 the husband of the complainant tortured the woman physically by forcing his wife to have sexual intercourse with him. He inserted his fingers and a stick in her vagina, causing severe pains and bleeding but the court found the husband of this woman guilty only under S. 325 IPC and not S, 498A IPC. Why? Her life both physically and mentally was at risk. Didn’t the court notice this? The court has in another case not punished the guilty under S.498A IPC even though medical reports clearly showed that the death was homicidal by throttling. This was simply because according to the court, even though there were dowry demands in the past, the court felt that proximity of the death to be caused due to such a demand was unlikely 21. Who decides this
18I (2003) DMC 287 19U.SubbaRao&Ors v State of Karnataka II (2003) DMC 102; Umesh Kumar Shah &Ors v State of BiharI (2004) DMC 260
20II (2003) DMC 461 21RavinderBhagwanTodkar&Ors v State of Maharashtra &Ors I (2004) DMC 791 (DB) 20
proximity? The cause and its effect on the woman’s health or life may be profound and even cause her mental unrest at a later stage. While on the on hand, women’s emancipation is the need of the hour and prevention of ever increasing dowry deaths and harassment needs to be stopped, it is also clearly noticed that women today are still tortured and often the court, being the ultimate savior also does not come to the rescue to protect these women. Misuse of Section 498 A in Modern World: A violation of this section, its goals and its aims is on the rise with the woman frivolously making false allegations against their husbands with the purpose of getting rid of them or simply hurting the family. The abuse of this section is rapidly increasing and the women often well- educated know that this section is both cognizable and non-bailable and impromptu works on the complaint of the woman and placing the man behind bars. Like in the case of Savitri Devi v Ramesh Chand &Ors 22, the court held clearly that there was a misuse and exploitation of the provisions to such an extent that it was hitting at the foundation of marriage itself and proved to be not so good for health of society at large. The court believed that authorities and lawmakers had to review the situation and legal provisions to prevent such from taking place. This section was made keeping in mind protection of the married woman from unscrupulous husbands but is clearly misused by few women and again this is strictly condemned in Saritha v R. Ramachandran23where the court did notice that the reverse trend and asked the law Commission and Parliament to make the offence a non-cognizable and bailable one. It is been a duty of the court to condemn wrongdoings and protect the victim but what happens when the victim turns into the abuser? What remedy does the husband have here?
22II (2003) DMC 328 23I (2003) DMC 37 (DB) 21
On this ground, the woman gets to divorce her husband and re-marry or even gain money in the form of compensation. Many women rights’ groups go against the idea of making the offence a non-cognizable and bailable one thinking that this gives the accused a chance to escape conviction. But what this would do is that it would give a fair chance to the man and above all help meet the ends of justice. Justice must protect the weaker and ensure that the wronged is given a chance to claim back his/her due. When women accuse their husbands under S.498A IPC by making the offence non-bailable and cognizable, if the man is innocent he does not get a chance quickly to get justice and ‘justice delayed is justice denied’. Therefore, the lawmakers must suggest some way of making this section non-biased to any individual such that the guilty is punished and the person wronged is given justice.
The position of the women in India is still bad. They still need rights to alleviate themselves in society but many a times fail to notice others’ rights as long as their rights are ensured. The educated woman of today must agree with the mantra of equality and demand the same but the trend is slowly getting reversed. Women are taking due advantage of the fact that they are referred to as the ‘weaker sex’ and on the foundation of rights ensured to them are violating others’ rights.
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MARITAL CRUELTY UNDER THE MUSLIM PERSONAL LAW
Instances of cruelty given in the provision of the Dissolution of Muslim Marriage Act 1939, include habitually assaulting the wife, making her life miserable by physical ill-treatment or by a conduct short of that, associating with woman of evil repute or leading an infamous life or preventing her from exercising her rights therein, obstructing her in the observance of her religious profession or practice and in case of bigamy treating her inequitably contrary to the Koranic injunction. In Islamic law, the concept of cruelty (zirar) is not limited. The cruelty provision is to be interpreted in the light of the Prophet’s exhortations that women are as tender as glasses (qawarir) and he is the best man who is kind to his wife.
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Section 2(viii)(a) of the concerned Act uses the words by cruel conduct even if such conduct does not amount to physical ill-treatment. This language is wide enough to include all cases of cruelty, not merely this, it would cover all types of misconduct or misbehavior, serious and not very serious on the part of the husband calculated to break spirit of the wife by physical or moral force which was systemically exerted on her to such a degree and to such a length of time resulting in undermining her health, it will amount to cruelty. Regarding cruelty of conduct the general test should apply, since the conduct that is cruel for one woman cannot be civilized enough for another just because of the religion of the parties. The point lies in the statutory words ‘makes her life miserable’ and the social status and standard of self-respect of the wife should be decisive to ascertain if the man’s conduct amounts to cruelty. A simple allegation of the wife, unsupported by independent testimony, is not sufficient in law to establish any charges mentioned in the law. In case of inequitable treatment between the co-wives which amounts to cruelty, the courts earlier providing maintenance to one wife only and ill-treatment forcing co-wife to leave the husband as instances of unequal treatment. In Umat-Ul-Hafiz v. TalibHussain (AIR1945 Lah.56), husband went abroad leaving behind his two wives in India. He provided maintenance to one wife and neglected the other. The court granted divorce to the neglected wife.
MARITAL CRUELTY UNDER THE HINDU MARRIAGE ACT 1955
Under the Hindu Marriage Act, 1955, as enacted originally, though cruelty was one of the grounds for obtaining judicial separation but it was not a ground for obtaining divorce. The word cruelty was not defined in the Act but in Section 10 which dealt with judicial separation the word cruelty was used in a restricting sense because it was provided that either party to a marriage may present petition praying for a decree for judicial separation on the ground that the other party has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party. Section 13 of the Act deals with divorce. As enacted originally it did not have cruelty as one of the grounds for seeking divorce. The Legislature of Uttar Pradesh wished to include 24
cruelty also as a ground for divorce and with that view in mind by its Act No.13 of 1962, Section 13 of the Hindu Marriage Act was amended to Include cruelty as a ground for divorce. The amendment was to the effect that in sub-section (1) of Section 13, after clause (a), clause (i-a) was inserted as under: "(i-a)- has persistently or repeatedly treated the petitioner with such cruelty as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party, or" This ground was almost similar to the ground of cruelty under Section 10(1 ) (b) for judicial separation but one distinction was made and that was that the words "persistently or repeatedly" were added. By this addition cruelty as a ground for divorce was made stricter than what it was for judicial separation. After the aforesaid amendment in 1976, now the ground of cruelty for judicial separation as well as for divorce became as under: "(i) has, after the solemnization of the marriage, treated the petitioner with cruelty;" It may be seen that by the said amendment the Parliament, in fact, has deleted the words ''as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party". In doing so the intention of the Parliament appears to be that it did not wish to define the legal conception of cruelty and the kind and degree of cruelty necessary to amount to a matrimonial misconduct giving a right to the other spouse to bring a petition for judicial separation or for divorce. Parliament appears to have avoided the danger of any attempt at giving a comprehensive or inclusive or exclusive definition of 'cruelty' and left it for the Judge- made-Laws. As such the matter is now left to the courts to determine on the facts and circumstances of the case whether the conduct amounts to cruelty or not. Cruelty contemplated by the aforesaid clause may be both physical and mental. If it is physical the court should have no problem to determine it because it is a question of fact and degree. It is the mental cruelty which may pose a problem and may present difficulty with the courts. Prior to the amendment made in Section 10 of the Hindu Marriage Act, , the concept of cruelty, as it was stated in the old Section 10 (I) (b), was critically examined by the Supreme Court in Dastane v. Dastane, A.I.R. 1975 SC 1534. It was therein observed that the enquiry in any case covered by that provision had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for the petitioner to live with the respondent. It was also pointed out that it was not necessary, as under 25
the English Law, that the cruelty must be of such a character as to cause danger to life, limb or health or to give rise to the reasonable apprehension of such a danger, though, of course its being harmful or Injurious to health, reputation, working character or the like, would be an important consideration in determining whether the conduct of the respondent amounted to cruelty. What was required was that the petitioner must prove that the respondent has treated the petitioner with such cruelty as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the respondent. Now after the amendment in Sections 10 and 13 made by the Parliament in the year 1976, cruelty simply has been made a ground for judicial separation and for divorce without putting any statutory rider. There is now no requirement of law that the party seeking divorce on the ground of cruelty must prove that the respondent had persistently and repeatedly treated the petitioner with cruelty. Further, the petitioner has also not to prove that he/she was treated with such cruelty as to cause a reasonable apprehension in his/her mind that it II be harmful or injurious to him/her to live with the other party. Now the scheme appears to be to liberalise the provisions relating to judicial separation and divorce. In the statement of Objects and Reasons of the Marriage Laws (Amendment) Act, 1976 also, the object was stated to be so. It may not be possible for the courts to define mental cruelty exhaustively can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. 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 reasonably be asked to put in with such conduct and continue to live with the other party. Now mental cruelty need not be proved to be such as to cause danger to the health, limb or life of the petitioner. Cruelty should be of the type which will satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent that it has become impossible for them to live together without mental agony, torture or distress. The following are some of the conducts which have been held to constitute mental cruelty-demand of dowry by the husband's parents with the support of the husband, wife abusing the husband and his parents in foul language and picking up quarrels, heavy drunkenness or addiction to drugs resulting in intemperate and violent behaviour and acts tending to Injure the health, wife not coming to see her husband in the hospital who was seriously injured husband having a love affair with another woman and keeping her in the same house, husband impotent 26
qua his wife, wife stating that her husband may be killed in an accident so that she may get insurance money constant insults abuses and accusations of adulterous character which make married life impossible. Mere allegations and counter allegations without proof thereof have been held to have constituted cruelty, as it was found that the marriage after such allegations could not in any circumstance be continued any further. The signal of the Supreme Court appears to be that while dealing with allegation of cruelty as a ground for divorce the courts should have in their mind that the petitioner has to prove that the respondent had behaved in such a way that the petitioner cannot reasonably be expected to live with the other. In construing such behaviour to be cruelty within the meaning of Section 13 of the Hindu Marriage Act, the courts will have to look into each and every case having regard to the facts and circumstances of that case. Social status and educational level of the parties, the society they move In, the possibility or otherwise of the parties ever living together and all other relevant facts and circumstances will also have to be seen. In very exceptional cases divorce may be granted on mere accusations and allegations but regard must be had to the context in which they have been made. Absence of Intention should not make any difference in the case, If by ordinary sense In human affairs, the act complained of, could otherwise be regarded as cruelty.24
SIMILARITIES AND DIFFERENCES BETWEEN INTERPRETATIONS
As can be inferred from the above chapter, both the personal statutes as well as the criminal laws have their own set of flaws. No one particular statute is perfectly viable when it comes to the concept of cruelty. Therefore, careful observation and interpretation is required by the Judiciary to ensure that all the provisions are being respectfully adhered to. In order to nullify the flaws of the statues, the need of the hour is for the Legislature to carefully analyze the various provisions hand-in-hand and make a special statue for the purpose of marital cruelty, which shall be a blend of the positive aspects of all the case laws. Firstly, the most prima facie and lethal flaw of the criminal statute i.e. the Indian Penal Code, is that the Code blatantly fails to ignore the masculine gender as victims of marital cruelty. The 24Justice A.K. Shrivastava, Judge, Delhi High Court, Cruelty as a Ground For Divorce Or For Judicial Separation Under Hindu Marriage ACT 1955, 1 J.R.T.I. Journal 2, AprilJune 1995) 27
provision was better suited to the earlier times, that is, at the time when the statute was brought into force, the society was evidently biased towards men, and women were basically assumed to be housekeepers only. However, the provision is still in force in the 21 st century which is ridiculous, as time and time again, it has been seen that this provision is now being grossly being misused to exploit the male fraternity. Having said that, the positive aspect about section 498A is that unlike the provisions under the personal laws, this section gives a clear cut definition of cruelty, therefore mitigating the scope for ambiguous assumption.
While the Muslim Personal law does give an exhaustive list of instances in a Muslim marriage deemed to fall under the umbrella of “cruelty” this Act too fails to extend the rights to the male partner in a marital relationship. Additionally, it has been seen more often than not that in disputes relating to Muslim Marriages, the courts usually straight away dismiss prayers for mental cruelty. This goes to prove that the Dissolution of Muslim Marriage Act 1939 is an extreme act, and in order for the court to accept a plea of mental cruelty, it requires the act to be coupled with a certain extent of physical cruelty as well, as it does not accept mental cruelty as a concept to stand on its own. Comparatively, the Hindu Marriage Act of 1955 is the least flawed, as the rights under Section 13 are extended to both the parties of the contract. Also, the grounds of cruelty are the same for judicial separation as well as divorce, thereby leaving little scope for ambiguity. The most pertinent flaw in all three laws which have been mentioned above, is that none of the acts provide for marital rape as a legal offence. Which means, the laws presume that wherein the husband and wife have been lawfully married, consent of either of the parties is immaterial for sexual intercourse to take place. This is the major line of difference when it comes to Indian and foreign criminal statutes. Clearly, it can be seen that out of the three statutes taken for the purpose of comparison, the Hindu Marriage Act seems to be the most dynamic one, in the sense that the provision seems to be tailor-made to suit the interests of one and all, and it does not suffer of any loopholes as such. The words “reasonable apprehension of danger” was promptly deleted by the Parliament, the
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intention being that the Court did not want those words to be a hindrance to a case which would otherwise create a valid cause of action. While dealing with a case of marital cruelty under Section 498A, the court decided that wherein the husband, on various occasions accused and alleged the wife to be impotent, such an allegation did not amount to cruelty wherein the medical tests proved that the wife in fact was impotent. On the other hand, in another instance wherein the court was dealing with a similar case under the Hindu Marriage Act of 1955, the court rightfully struck down that the truthfulness of the allegations is immaterial while dealing with cases of cruelty. Even going under the assumption that the party in fact was impotent, nevertheless, that does in no way give the other party a right to keep accusing or taunting the other partner for the same, to such an extent which amounts to sadistically pressurize the party and come in the way of their physical and mental well being. The Hindu Marriage Act allows for impotency to be a valid ground for divorce, and wherein a partner is not satisfied with the potency of his/her partner, he/she has every right to obtain a divorce on that ground. But if he/she decides to ignore that option and go ahead with the marriage, then they need to make their peace with the fact and move ahead in life, and they also do have an option to adopt. But, alleging the partner time and again would result into lowering the other party’s self esteem and also result into depression, therefore such act would amount to cruelty.
COMPARATIVE STUDY- UNITED STATES AND UNITED KINGDOM
Cruelty is cause for divorce in all states except North Carolina, Maryland and Virginia. It is also not recognized in the District of Columbia. Statues employ varying language to describe cruelty. For instance, the New York divorce statute provides “cruel and inhuman treatment”. Under the Minnesota statute also it was earlier described as “cruel and inhuman treatment.” The majority of the statutes use the term “extreme cruelty.” It has been recognized that no exact definition of “legal cruelty” can be given and the courts have made no attempt to define it precisely. The concept of cruelty has been developed by judicial decisions. It has been changing from time to time. The generally accepted principle laid down by 29
the courts is that when the legislature made “cruelty” a ground for divorce without further defining the term, it must be understood by the law as enunciated by the ecclesiastical courts. Cruelty was designated by such courts as “Saevitia” for the grant of a degree of judicial separation. The laws relating to cruelty in United States has travelled on the same lines on the same lines on which it has been developed by the English courts. The legal standard of cruelty was laid down in leading case of Russell v. Russell. It was held in that case that conduct must be of such a character as to cause injury to body, health or mind or which raises a reasonable apprehension of such injury to body and health. This has been the general standard which also found favor in American jurisprudence. As observed by Lord Penzance: The essential features of cruelty are similar. There must be actual violence of such character as to endanger personal health or safety or there must be a reasonable apprehension of it. The court, has Lord Stowell once said, has never been driven off this ground. The extent or limits of cruelty as laid down in Evans v. Evans has been approved and followed by the American courts. It was observed in that case: Mere austerity of temper, petulance of manner, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty: they are high moral offences in the marriage state undoubtedly, not innocent surely in any state of life, but they still are not that cruelty against which the law can relieve. In theory, American law too does not consider mere incompatibility of temperament or trivial causes or even marital wrongdoings which make life of the spouses unhappy as constituting cruelty. Religious, social, racial or political differences which fall below the standard of “legal cruelty” are not recognized as causes for separation. Various theories were developed by English courts such as the “aiming at” theory, the “protection” theory and the rule of “wear and tear” of conjugal life, to limit the concept of cruelty or contain it within legal bounds. All these theories have been engrafted without reluctance in the American law of divorce.
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Changes in the concept of cruelty were bound to occur with the exigencies of time. What could not have been, a hundred years ago, regarded as cruelty might be regarded as cruelty in the present day. Social changes, growth of equality of sexes have to a large extent expanded the concept of legal cruelty. A cursory glance over the law reports would reveal the extent the concept has undergone radical change. From refusal to speak to the other spouse to a threat to commit suicide, and from denial of sexual intercourse to refusal to have sexual intercourse without contraceptives have been held to amount to cruelty. In fact a Clark states: One further influence in the direction of expanding cruelty comes from a change in the underlying policy. A few courts today explicitly that the purpose to be served by making cruelty a ground for divorce is not to protect the plaintiff, but to enable the court to dissolve the marriages which have so far deteriorated that they no longer serve the interest of the parties or of the society. Since cruelty of mental cruelty covers a wide range of matrimonial misconduct or wrongdoings, this ground seems to have become most popular. Further there is much scope for the parties to obtain consensual divorce by alleging cruelty. The only difference, probably, if any, when it comes to legal cruelty in United Kingdom and the United States is that the latter, unlike the former one, has a separate legislature for each state of the country with some minor variations where as in United Kingdom, all of the nations contained therein follow a uniform code of procedure. Some of the examples of legal cruelty in the States are as follows: District of Columbia: legal separation from bed and board may be granted for cruelty: Provided, that where a final decree of divorce from bed and board has been granted and the separation of the parties has continues for two years since the date of such decree, the same may be enlarged into a decree of absolute divorce from the bond of matrimony upon the application of the innocent spouse. Hawaii: divorce may be granted for extreme cruelty, or when either party is guilty toward the other of such cruel treatment, neglect or personal indignities, though not amounting to physical
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cruelty, continued over a course of not less than sixty days, as to render the life of the other burdensome and intolerable and their further living together insupportable Kentucky: the provisions regarding divorce for cruelty are now applicable to the conduct of either husband or wife. West Virginia: Divorce from the bond of matrimony may be decreed for cruel or inhuman treatment, or reasonable apprehension of bodily hurt, and a charge of prostitution made by the husband against the wife falsely shall be deemed cruel treatment.25
CONCLUSION AND SUGGESTIONS
With the passage of time, the concept of cruelty has been grossly misused by the Indian Judiciary, for no apparent fault of theirs. Judiciary is after all bound by the legal framework provided by the Legislature. The mere fact that our nation has numerous criminal and personal acts, all of which expressly provide for cruelty as a valid ground for divorce, does not suffice. The unfortunate part is that none of them provide for a strict exhaustive interpretation for the 25SayyedJafferHussain, Marriage Breakdown And Divorce Law Reforms In Contemporary Society 135- 149(1sted.198). 32
meaning of the term cruelty. Apart from the Indian Penal Code which is the supreme substantive law regarding crimes, there are way too many personal laws which the court is mandated to take into consideration and with the increasing number of contradictions among the two, the Judiciary is in a soup as to which law will prevail, and this results more often than not, in injustice. The Court and Legislature have to make changes if the laws of matrimonial cruelty are to be of any deterrence. Looking into the recent observations and the increase in the misuse of this Section, there should be certain amendments which should be brought up in this law: 1. Role of Women NGOs: These organizations should investigate complaint properly without any bias towards the woman keeping in mind that the law is being misused largely to harass more women in husband’s family. They should not encourage any woman to file a criminal case against her in-laws for trivial matters. Foreign Women Organizations should also take responsibility of not allowing for complaint to be registered against NRI’s just to harass and extort huge amount of money from them. These organizations should also conduct survey/research on the misuse of the act and should educate people about its consequences. If these organizations are found to be assisting in filing false complaints, then they should be made liable for prosecution in the country where they are functioning. 2. Family Counselling Centres: Numerous cases of men being harassed by wife or/and in-laws have come to light from different parts of the country. As of now there is no organization, which can really help these harassed men and his family members, to listen their side of the story and put their point of view in front of the government. Need of the hour is to create family counseling centers across the country to help those aggrieved families. 3. Time bound Investigation and Trial: A speedy trial of 498(a) cases will not only ensure justice for the innocents that have been implicated in false charges, it will also lead to prompt redressal of the grievances of real dowry victims .The reduction in false cases will also reduce the burden on judiciary and expedite the processing of real cases. 4. Definition of Mental Cruelty: Mental cruelty has been vaguely defined in the act, which leaves scope of misuse. This should be clearly elaborated to remove loopholes in the law. There should be provision for men also to file a case for mental cruelty by his wife.
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5. Investigation by Civil authorities: The investigation into these offences be carried out by civil authorities and only after his/her finding as to the commission of the offence, cognizance should be taken. The government should create awareness among officers about its misuse. 6. Bailable: The main reason of 498a being misused to harass innocent is its non-bailable nature. This section should be made bailable to prevent innocent old parents, pregnant sisters, and school going children from languishing in custody for weeks without any fault of them. 7. Compoundable: Once FIR has been registered it becomes impossible to withdraw the case even if wife realizes that she has done a blunder and wants to come back to her matrimonial home. To save institution of marriage this should be made compoundable. Moreover, in the scenario where the couple decides to end the marriage by mutual divorce, continuation of criminal proceedings hamper their life. 8. Arrest Warrants: Arrest warrant should be issued only against the main accused and only after cognizance has been taken. Husband family members should not be arrested. 9. Penalty for making false accusation: Whenever any court comes to the conclusion that the allegations made regarding commission of offence under section 498a IPC are unfound, stringent action should be taken against persons making the allegations. This would discourage persons from coming to courts with unclean hands and ulterior motives. Criminal charges should be brought against all authorities that are collaborating with falsely accusing women and their parental families. 10. Court Proceedings: Physical appearance of the accused on hearing should be waved or kept low to avoid hassles in appearing to the court, especially for NRIs. The court should not ask to surrender passport of the husband and his family which could cost job of the husband and his family members. 11. Registration of Marriage and Gifts Exchanged: The registration of marriages should be made compulsory along with the requirement that the couple make a joint declaration regarding the gifts exchanged during marriage.
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12. Punish Dowry Givers: If the complainant admits giving dowry in the complaint, the courts should take cognizance of the same and initiate proceedings against them under the relevant sections of the Dowry Prohibition Act. 13. Penalize corrupt Investigation Officers: If it is apparent to the court that a fair investigation has not been conducted by the investigation officer, and that the husband and his family have been charge-sheeted without proper verification of the complaint, the investigation officer should be penalized for gross negligence of duty. 14. NRI Issues : Unless they are proven to be guilty after the due judicial process, NRIs should be a given a fair chance to justice by assuring them of the following -a) Permission to return to country of employment b) No impoundment/revocation of passport and no Interpol Red Corner Notices. c) No unnecessary arrests d) Expeditious investigation and trial 15. Gender Neutral: Everyone should have equal rights and responsibilities, irrespective of gender. In the current social context, there should be similar laws to protect harassed husband and his family members from an unscrupulous wife. 26 This Section only provides for the remedy to woman only and these days it is being used as a ‘brahamastra’ by the woman. It is a highly debatable issue these days, if this problem is not solved by legislation it may become a bane for the society. People’s trust over the judiciary will come to an end. So it’s high time that this Section be amended and some changes like mentioned above should be brought up in this law.
ANNOTATED BIBLIOGRAPHY CASES Sushil Kumar Sharma v. Union Of India And Ors, JT 2005 (6) SC 266 26After looking to the report of following suggestions have been made Justice Malimath Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, 2003 chapter 16. 35
In this case, a Petition was filed under Article 32 of the Constitution of India, 1950 praying to declare Section 498A of Indian Penal Code, 1860 to be unconstitutional and ultra vires in the alternative to formulate guidelines so that innocent persons are victimized by unscrupulous persons making false accusations. “The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial”. Prayer has been made to direct investigation by the Central Bureau of Investigation (in short the `CBI') in certain matters where the petitioner is arrayed as an accused. We do not find any substance in this plea. If the petitioner wants to prove his innocence, he can do so in the trial, if held. The Writ Petition is accordingly disposed of.
Jagdish Chander vs. State of Haryana, 1988 Cr. LJ 1048(P&H) The act of harassment would amount to cruelty for the purpose of this section. Drinking and late coming habits of the husband coupled with beating and demanding dowry have been taken to amount to cruelty within the meaning of this section, but this section has been held not to include a husband who merely drinks as a matter of routine and comes home late. As per prosecution evidence, Mst. Savitri Devi (deceased) was married to the appellant in the year 1980. After about four years of this marriage, she was brought to Civil Hospital Rohtak at about 2.30 a.m. on 31st July, 1984 and a ruqa Ex. PK was sent by the doctor at 3.30 a.m. to the IP charge, Police Post, Medical College, Rohtak. At about 7.10 a.m. the same day, she succumbed to her injuries and another ruqa (sic). PL was sent by the doctor to the said police Post. On 3rd Aug., 1984, statement of Kashmiri Lal, son of Aru Singh Arora, resident of 280, Ward No. 12, Mohalla Kassiwala, Hissar, was recorded and the same is Ex. PE. According to this statement the prosecution story was that Kashmiri Lal had three brothers, the eldest of them being Nand Kishore, the one younger to him was Bhagwan Dass and the next was Hukam Chand. Mst. Savitri Devi was pregnant for the last about 6/7 months. The appellant used to take liquor daily and harass her and give her beatings. She complained to Kashmiri Lal and his brothers about this several times and they tried to prevail upon
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the appellant and his father but all in vain. It was also learnt that Savitri Devi was being harassed on account of inadequate dowry. After coming to the conclusion that the appellant was not guilty Under Section 302, IPC, he could not record the conviction under Section 306, IPC. It has been repeatedly held by this Court that harassment or use of hot words against the deceased whereafter she committed suicide does not amount to abetment and, therefore, no offence was made out Under Section 306 IPC. It was also revealed that she did not herself put her on fire but had been burnt. In this case the appeal was accepted and the appellate was acquitted of his charges.
Kaliyaperumal vs. State of Tamil Nadu, 2004 (9) SCC 157 The appellants who were found guilty of offences punishable under Section 304B and Section 498A of the Indian Penal Code, 1860 by the Assistant Sessions Judge, Nagapattinam, unsuccessfully challenged the conviction before the Madras High Court. By the impugned judgment the High Court only reduced the sentence from nine years to seven years for the offence punishable under Section 304B IPC but confirmed the sentence five years as imposed in respect of offences punishable under Section 498A, on the allegation that Devasena committed suicide because of the cruelty and tortures perpetuated by the appellants who were her father-in-law and mother-in-law respectively along with husband Ashok Kumar. The appeal is allowed to the extent indicated above so far as accused Muthulakshmi is concerned, but fails so far as accused-appellant Kaliyaperumal is concerned.
Inder Raj Malik vs. Sunita Malik, 1986 (92) CRLJ 1510 One petition registered as Criminal Misc. (Main) 979185 was filed by Inder Raj Malik and three others against an order of Shri R. K. Jain, Metropolitan Magistrate, New Delhi. That order was passed on a complaint of Smt. order, the learned magistrate directed the summoning of the petitioners in respect of commission of an Suntia Malik. It was clear from the authorities that the High Court can interfere only when either the complaint does not disclose the essential ingredients of any offence or there is no evidence to support those allegations.
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The allegations of the complainant are that she was being continuously threatened that her son would be taken away unless she met the demands of the accused by way of compelling her parents to sell their property in Hauz Qazi. Prima facie such threats come within the purview of section 498-A Indian Penal Code which says that when the husband or the relative of a husband of a woman subject such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The word 'cruelty' is defined in the Explanation which, inter alia, says that harassment of a woman with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security is cruelty. It was held that the word ‘cruelty’ is defined in the explanation which inter alia says that harassment of a woman with a view to coerce her or any related persons to meet any unlawful demand for any property or any valuable security is cruelty. Ram Kishan Jain &Ors v State of Madhya Pradesh, II (2000) DMC 628 Appellants Ramkishan, Ramesh and Suresh have been convicted under Section 498A, I.P.C. and sentenced to rigorous imprisonment for three years and to a fine of Rs. 1,500/- each. Appellant Suresh has also been -convicted under Section 324, I.P.C. and sentenced to rigorous imprisonment for two years. Appellants Ramkishan, Ramesh, Meera Jain, and Pinki have been convicted under Section 324/34, I.P.C. and sentenced to rigorous imprisonment for two years each. Sunita (P.W. 1) was married to accused Suresh Jain on 22.2.1995. The couple lived happily for about four months at Raipur. There was unhappiness in the next six months and Sunita left her matrimonial home with her father on 30.11.1995. The prosecution case was that after four months of the marriage the accused persons started harassing and ill-treating Sunita. They asked her to bring a Yamaha motor-cycle and a colour T. V. as dowry. They also asked her to bring Rs. 40,000/- from her father so that her husband may commence cloth business with that money. Sunita and her father Sajjan Agrawal expressed their inability to meet such a demand. Thereafter the accused persons started torturing Sunita. They attempted to hang her, administer calmpose tablets to her and her husband cut arteries of her both the hands near the wrist joint with a blade. These injuries started bleeding. At that time accused Ramesh and Ramkishan had caught hold of her hands and accused Meera Jain and Pinki were holding her legs. Her husband uttered that she would die on account of bleeding from these arteries. The incident of cutting of the arteries was of 30.11.1995. The accused persons pleaded not guilty. Their defence was that Sunita and her father are trying to blackmail them. They never demanded any dowry or money. They never harassed or ill-treated Sunita. The 38
Trial Court after an exhaustive and critical analysis of the evidence on record held that Sunita was subjected to cruelty by appellants Ramkishan, Ramesh and Suresh and all the appellants had formed common intention to cause hurt to her and in furtherance of their common intention Suresh caused injuries to Sunita. The sentence of rigorous imprisonment of three years imposed upon appellants Ramkishan and Ramesh for the offence punishable under Section 498A, I.P.C. was reduced from three years to two years. With this modification in the sentence the appeal was dismissed.
ARTICLES
Ravi Sisodiya, Suspecting Husband of Extra-Marital Affair “Cruekty”:Court,The Times of India, November 24, 2014 at Lucknow This Article states about the couple, which was married in Pratapgarh on January 29, 1996. The husband was serving in Reserve Bank of India at the time of marriage. Later, he was selected in PPS and awarded President's Medal for eliminating Nirbhay Gujar Gang in an encounter. The couple had a daughter on July 28, 1997. However, fissures emerged in the relationship and the couple went apart in April 2006.The husband had alleged in his divorce petition that his wife had been physically and mentally harassing him and due to this, it had become impossible for him to linger the relationship. Among other allegations, his wife had been suspecting that he was having an illicit relationship with a married woman living in Delhi. The wife in fact hired a spy to probe the affair. She complained to the DGP who set up a departmental inquiry. The husband was suspended during the inquiry and said he had to face humiliation among his colleagues and seniors. Later, he came out clean in the final inquiry, but the department stopped increments and imposed a censure entry. He had to appeal in UP Service Tribunal which quashed the department's punishment. The wife meanwhile scuffled with him
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and also threatened to consume poison at times, he alleged. Under such circumstances, the marriage has become irretrievable and there was no solution other than divorce, he pleaded. The bench observed that it tried hard to settle the matter amicably through compromise and also referred the case to its Mediation Centre, but the couple did not agree to resolve the dispute. It was argued on behalf of the husband that even if it is accepted that he talked to some woman on phone, it cannot be inferred that they had developed illicit relationship and therefore to humiliate and harass him on the basis of suspicion could not be justified.
Soli J Sorabjee, SC’s Ruling on Mental Cruelty Not A License To Extra Marital Affairs, The New Indian Express, February 22, 2015 The author says that notions of mental cruelty are highly subjective and vary among different sections of society. He refers to the problem in the context of a wife’s complaint of cruelty against her husband because of his extra-marital affair, which eventually led to her committing suicide. He claims that the Supreme Court’s judgment should not be misconstrued as giving a licence to a husband to indulge in extra-marital affairs. An aggrieved wife can always sue the husband for divorce on the ground of marital infidelity. According to him, prima facie, the government’s action is an instance of insidious precensorship. Our Supreme Court in its celebrated decision on Maneka Gandhi has categorically ruled that the fundamental rights of freedom of expression can be exercised in India and also abroad. There is no territorial limitation to this fundamental right which has been frowned upon by our Supreme Court in its previous judgments. He refuses to believe that our country’s human rights record is so fragile that it would suffer incalculable damage on account of the testimony of a Green Peace activist. If her testimony is factually ill-founded and baseless, the government can refute it strongly with all the resources at its command rather than resort to measures usually adopted by totalitarian states and which are unbecoming of our democratic liberal state.
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David Carnes, Mental Abuse: The Lethal Yet Invisible Phenomena, Livestrong.com, http://www.livestrong.com/article/138056-what-is-mental-abuse-marriage/.(last
updated
May 16, 2016.) The author here is trying to put emphasis on the mental cruelty. Mental cruelty is the outcome of a bad relationship. Mental abuse is most likely to occur when your spouse is in a position to dominate you. In some cases this dominance is financial, such as when you are financially dependent on your spouse. In other cases the dominance is physical; even when the abuse is purely psychological, physical intimidation is a form of mental abuse even when actual physical violence does not occur. Most abusers refuse to admit that they are ever at fault, although some abusers will respond to criticism by making token admissions of small shortcomings as a form of temporary tactical retreat. He has given the characteristics of Abusive Relationships. According to him, the abuser, although domineering, will expect you to meet all of his emotional needs and will often blame you for his own bad moods or emotional upsets. An abusive spouse will seek to control your friendships,
your
comings
and
goings,
your
attitudes
and
your
thoughts.
He will deliberately trigger crises and then blame you for them. He may try to confiscate your cell phone or ATM card, or may break into your email account. If you confront him, he may insinuate that you are dishonest, that your memory is faulty or that you are mentally ill.
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