What Is Cruelty For A Woman May Not Be Cruelty For A Man, More Broad Approach Needed When Wife Seeks Divorce : Supreme Court

While allowing a petition filed by an estranged wife seeking divorce,  the Supreme Court on Wednesday (06.09.2023) said that the word ‘cruelty’ under Section 13(1)(ia) of the Hindu Marriage Act Act gives wide discretion to Courts ‘to apply it liberally and contextually’.

While interpreting the meaning of cruelty, the Court said that what is cruelty for a person, may not be cruelty for another and that the meaning has to be ascertained in its context. “It has to be applied from person to person while taking note of the attending circumstances.”, the Apex Court said.

“…an element of subjectivity has to be applied albeit, what constitutes cruelty is objective. Therefore, what is cruelty for a woman in a given case may not be cruelty for a man, and a relatively more elastic and broad approach is required when we examine a case in which a wife seeks divorce", a division bench of Justice Sanjiv Khanna and Justice M M Sundresh observed in this regard.

Referring to the Amending Act of 1976 of the HMA which introduced clauses (ia) and (ib) to Section 13 and Section 13A of the Act, that added various grounds for divorce, the Court observed that the Statement of Objects and Reasons of the Amendment Act makes it clear that the intention of the legislature was to liberalize the grant of divorce. In this background, the Apex Court said:

“Historically, the law of divorce was predominantly built on a conservative canvas based on the fault theory. Preservation of marital sanctity from a societal perspective was considered a prevailing factor. With the adoption of a libertarian attitude, the grounds for separation or dissolution of marriage have been construed with latitudinarianism.”

On the question of burden of proof in cases of divorce, the Apex Court said that it lies on the petitioner. “However, the degree of probability is not one beyond reasonable doubt, but of preponderance.” The Court clarified.

Forcing incompatible partners to stay together could cause more harm to the children, the Court observed:

"...the court must also keep in mind that the home which is meant to be a happy and loveable place to live, becomes a source of misery and agony where the partners fight. When there are children they become direct victims of the said fights, though they may practically have no role in the breakdown of marriage. They suffer irreparable harm especially when the couple at loggerheads, remain unmindful and unconcerned about the psychological and mental impact it has on her/him.”

In the matter at hand, the Apex Court noted that for fifteen years, the parties had been living apart. The Apex Court acknowledged that the marriage was no longer viable, and the relationship had essentially ended, lacking only a formal divorce decree.

The Apex Court while granting a decree of divorce to the parties and setting aside the order of the Trial Court and High Court, the Apex Court said:

“The Trial Court and the High Court adopted a hyper-technical and pedantic approach in declining the decree of divorce. It is not as if the respondent-Husband is willing to live with the appellant–Wife. The allegations made by him against her are as serious as the allegations made by her against him. Both the parties have moved away and settled in their respective lives. There is no need to continue the agony of a mere status without them living together.”

Advocate Dushyant Parashar appeared for the appellant.

Also Read - Keeping Spouses Together Despite Irretrievable Breakdown Of Marriage Is Cruelty To Both Parties : Supreme Court Dissolves Marriage

Irretrievably Broken Down Marriage Can Be Dissolved On Ground Of 'Cruelty' : Supreme Court

Case Title: Case Title: XXX v YYY, Civil Appeal No.__ of 2023 (Arising out of SLP (C) No.15793 of 2014)

Citation : 2023 LiveLaw (SC) 754; 2023INSC814

Click here to read/download order