I have on my desk a recent judgment of the Madhya Pradesh High Court (HC)’s Indore Bench, indeed heartwarming, which deserves to be followed by all other high courts and affirmed by the nation’s apex court. If the husband or in-laws of a married woman force her to give up her pursuit for education, it will amount to mental cruelty, the court held, arming her with a mighty ground for seeking dissolution of her marriage by a decree of divorce. To comprehend the importance and implications of this rather novel ruling we must briefly look at the history and the present status of the law of divorce in the country.
It is believed that the concept of divorce had no place in the ancient Indian law which rested on the rule of “once a marriage always a marriage” — even death of either party did not dissolve a marriage. The wife was the husband’s ardhangini (half body) that could not be cut off and thrown away. In the event of estrangement, the parties could only live separately without a formal dissolution of marriage. The relief of divorce was initially allowed by custom and usage, which according to the legal theory had precedence over religious law, and finally received statutory recognition after independence.
For the majority community, the remedy of divorce on limited grounds was recognised, before the commencement of the Constitution of India, by the Bombay Hindu Divorce Act of 1947 and the Madras Hindu (Bigamy Prevention and Divorce) Act of 1949. Their provisions on divorce were incorporated into the central Hindu Marriage Act of 1955. On the recommendation of the Law Commission of India chaired by former Chief Justice PB Gajendragadkar, divorce law under the Act was excessively liberalised in 1976, which largely diluted the sacred and perpetual character of marriage. What was, by religion, a sacrament binding a man and a woman into a lifelong companionship was turned by law into a new kind of relationship breakable in all kinds of adversities. Today, the Act incorporates as many as 15 grounds for divorce — 11 of them available to both spouses and the remaining four meant exclusively for women. The same law on divorce is found in the Special Marriage Act of 1954 and has been made a part, with minor variations, of the old marriage and divorce laws relating to the Christian and Parsi communities. The Dissolution of Muslim Marriages Act of 1939 had already empowered women to seek divorce on specified grounds.
“Treating with cruelty” one’s spouse is now an established ground for divorce under all the Acts mentioned above. This expression is not defined under any of these laws; only the Dissolution of Muslim Marriages Act mentions some illustrations of cruelty of behaviour. There has since been a deluge of judicial decisions explaining the meaning and scope of the word cruelty under various Acts. The courts have affirmed that cruelty can be both physical and mental and, saying that there cannot be a straitjacket formula for determining mental cruelty, have granted divorce on this ground in many diverse circumstances. The Supreme Court once observed that “Cruelty may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem in determining it as it is a question of fact and degree, but if it is mental the problem presents difficulties.” (GVN Kameswara Rao, 2002). The court specifically referred to the “the complainant-spouse’s education and status” as the decisive factor for determining what would amount to mental cruelty. In another case, the court observed that serious instances of mental cruelty cannot be regarded as ordinary “wear and tear” of married life so as to deny a decree of divorce.
{{/usCountry}}“Treating with cruelty” one’s spouse is now an established ground for divorce under all the Acts mentioned above. This expression is not defined under any of these laws; only the Dissolution of Muslim Marriages Act mentions some illustrations of cruelty of behaviour. There has since been a deluge of judicial decisions explaining the meaning and scope of the word cruelty under various Acts. The courts have affirmed that cruelty can be both physical and mental and, saying that there cannot be a straitjacket formula for determining mental cruelty, have granted divorce on this ground in many diverse circumstances. The Supreme Court once observed that “Cruelty may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem in determining it as it is a question of fact and degree, but if it is mental the problem presents difficulties.” (GVN Kameswara Rao, 2002). The court specifically referred to the “the complainant-spouse’s education and status” as the decisive factor for determining what would amount to mental cruelty. In another case, the court observed that serious instances of mental cruelty cannot be regarded as ordinary “wear and tear” of married life so as to deny a decree of divorce.
{{/usCountry}}At this stage of development of the divorce law has come a crucial decision pronounced by an HC judge, Gajendra Singh. A 12th class-pass girl aspiring to study further was married to a boy from a different city with a clear understanding that she would remain with her parents till she completed her graduation, occasionally visiting her husband’s place. The promise was not kept, and on her first visit to them the girl was pressured into living with them. The brave girl decided to go in for higher education at the cost of getting her marriage dissolved. She moved the local family court where allegations and counter-allegations were made by the parties against each other and the dispute dragged on for a long time. While the husband sought restitution of conjugal rights in terms of the Hindu Marriage Act of 1955, the girl invoked the Prevention of Domestic Violence against Women Act of 2005. Failing to get justice from the local family court and the first appellate court, she appealed to the HC. Considering several related factors and treating it as a case of irretrievable breakdown of marriage, a division Bench decided the case in her favour.
The most important aspect of the case, in the court’s opinion, was the girl’s keen desire to continue her education. The Bench cited apex court’s past rulings affirming that education is an inseparable part of the right to life under Article 21 of the Constitution. Observing that a wife was being asked to “sacrifice her dreams and career in the name of marital obligations”, the court ruled that “compelling the wife to discontinue her studies or creating such an atmosphere that she is put in a position not to continue her studies at the beginning of their marital life” amounted to mental cruelty under the Hindu Marriage Act of 1955, and eventually granted divorce to the appellant-wife. This is the point, laudable indeed, on which the judgment under reference is distinct from the earlier rulings on what may constitute mental cruelty qualifying as a ground for divorce.
Tahir Mahmood is professor of law and former member of the Law Commission of India.The views expressed are personal