CONCEPTUALIZING CRUELTY IN MARRIAGE : India, being a country of diverse faith & religions has seen a paradigm shift in the way religious customs were practiced. Not so long ago, Hindu families and their customs were mostly based on the ancient traditions where marriage was considered as a compulsory affair between two individuals. For Hindus, it was a pious association of two families, more than just contractual relationships. Scriptures also suggests that they believed it to be a union of seven births planned by the almighty. The Hindus were supposed to follow the ashram system, where they were guided through different ashrams in their life cycle. The four ashrams were; Brahmacharya (student); Grihasta (housekeeper); Vanaprashtha (forest dweller) and Sanyassa (abandoning the world). It is unchallenged belief that grihastha was the most important of all ashrams. Customs are an important source of law and nevertheless many of our personal laws are based upon ancient customs. Reluctantly, attempts were made as early as 1920 to codify Hindu personal law. However, correct codification took place in 1955 and 1956, when Congress passed four important laws. The legislations were The Hindu Marriage Act, 1955; The Hindu Adoption and Maintenance Act, 1956; The Hindu Succession Act, 1956 and The Hindu Minority and Guardianship Act, 1956. Legally, religious Hindus, Jains, Buddhists, and Sikhs are considered Hindus and are therefore subject to the above law.1 Similarly the Muslims are governed by The Muslim Personal Law (Shariat) Application Act, 1937 which are unlike the Hindu law, un- codified. For centuries, Indian women had to face cruelty in various ways at every stage of their lives. In marital relationships, they suffered emotional and physical trauma, yet they were expected to remain loyal and obedient to their husbands. With the adoption of a rights-based constitution, attempts were made to change the low status of this woman. Many laws have been passed to protect women and their rights from harm, giving them the freedom and power to oppose the cruelty committed against them. Cruelty in marriage were not recognized as a reason for divorce until 1976, after which through the amendment of the Hindu Marriage Act of 1955 it was included as a valid reason of divorce. The cruelty of a wife to her husband appeared a while ago and is just as important. OUTLINING CRUELTY AS A VALID GROUND FOR DIVORCE UNDER THE HINDU LAW Of all marital crimes, cruelty is the most difficult to define. Parliamentarians and judges deliberately refrain from developing a definition of cruelty because there are no fixed and defined parameters for what constitutes cruelty. Skull v. Tripathi, the court found, "attempts to edit the complete list of cruelty can never be successful." In addition, what is considered cruel in one case is entirely dependent on the facts and circumstances of one case and may not be the case in another. Lord Denning in the case of Sheldon v. Sheldon2 said, "The categories of cruelty are not closed. Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behavior, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty." However, a decade later the famous English case of Russel v. Russel3 attempted to define cruelty as following: "Cruelty was held to be a conduct of such character as to have caused danger to life or health, bodily or mentally, gives rise to reasonable apprehension of such danger. The definition includes both physical and mental cruelty within its scope but it also emphasizes on the typical nineteenth century belief that no act can amount to cruelty unless it creates an apprehension or actually causes injury to the petitioner". In a recent ruling, the Supreme Court observed that "cruelty is being used in relation to human conduct or human behavior, it is all the more difficult to define it. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other."4 Before the amendment of the Hindu Marriage Act in 1976, cruelty was a ground for judicial separation only. The 1976 revision of the law made cruelty a reason for divorce taking into account changes in social morals.5 The amendment also clarified that there is no need to be afraid5 of danger or harm to his/her life while cohabiting to compose cruelty. Article 10 (1) (b) of the Act omitted the phrase "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".6 The Hindu Marriage Act states that a marriage "dissolved by a decree of divorce on the ground that... after the solemnization of marriage, treated the petitioner with cruelty." Therefore, after marriage, if either the husband or the wife treats the other cruelly, both the husband and the wife are free to obtain a divorce decree. However, the general idea is that it is usually the husband who treats his wife cruelly. But that's not the case. Under the Indian Divorce Act of 1869, cruelty was only available to the wife as a reason for divorce, while the Special Marriage Act of 1954 was available to both husbands and wives. Defendants have treated the petitioner cruelly since their marriage.7 It is also important to note that the term "respondent" also includes "a child who beat her father at the request of her mother".8 If the husband does not protect his wife from his persistent parents, he will be guilty of cruelty.9 The defendant's intention is one of the common lookouts made by the court in determining whether a particular act is cruel. The word "treated" by law means the intentional act of a respondent which was found to be cruel. Still, intent is not an integral part of cruelty. In the case of Bhagwat v. Bhagwat10 of the Bombay High Court ruled that the husband did not intend to be cruel to his wife, but his actions were cruel. He suffered from schizophrenia, which was not a good defense against the cruel plea of a woman. Recently, while hearing a matter on cruelty as a reason for divorce, the Supreme Court ruled that defendants' actions must be significant in order to constitute cruelty. At the same time, it indicates whether a rational person is acceptable to live in such a situation. Marriage is a gentle and pious bond, so the judgment of cruelty must be based on the psychological changes in spouse's behavior. Small quarrels and petty arguments are not enough to justify cruelty. The Supreme Court also said that forgiveness and coordination are needed to continue the marriage, and therefore slight spousal differences and controversies cannot be exaggerated enough to apply for divorce. Marital cruelty can be physical, mental, emotional, or sexual. Because India is a patriarchal society, women have always been treated inferior to men. They are treated like their property and are intended to serve them throughout their lives. There is no one type of cruelty which makes it increasingly difficult to pinpoint exactly what it is. Mental cruelty involves causing agony and suffering to a partner in some way that makes it difficult for either person to live with. Physical cruelty includes beatings, slaps, and other forms of physical violence. Sexual cruelty, on the other hand, include forcing a partner to indulge in sexual intercourse or unnatural sex. Indian courts also recognize the denial of sexual intercourse in marriage as a component of mental cruelty. CHAPTER 3: MENTAL CRUELTY - STILL AN ABSTRACT CONCEPT? Mental cruelty under Section 13(1) (i-a) 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 Black's Law Dictionary (8th ed., 2004) describes the term "mental cruelty" as "(without actual violence) the behavior of a spouse that endangers life, physical health, or mental health of the other spouse. Mental cruelty does not fit the strict definition since the constituents of mental cruelty are neither limited nor constant. Changes in lifestyle, education, family patterns, modernization and globalization, and increased use of social media are some of the factors contributing to the changing dimensions of mental cruelty. Therefore, what may not be called an act of cruelty in past times, can fall in its sphere today. In the matter of Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan, the Supreme Court acknowledged that the concept of legal cruelty changes as social concepts and living standards change and evolve. Some of the factors recognized as mental cruelty by the Supreme Court are indifference from the spouse, persistent abuse, regular ridiculous remarks, refraining from making sexual relations, and blaming the spouse for it. Not only these, but the constant threat of dissolving marriage and harassment was recognized as the basis for mental cruelty. In the case of Samar Ghosh v. Jaya Ghosh, the Supreme Court gave a list of illustrations which depict mental cruelty. The list however, is not exhaustive. "Unilateral decision of refusal to have intercourse for a considerable period without any physical incapacity or valid reason may amount to mental cruelty. Unilateral decision of either husband or wife after marriage not to have a child may amount to mental cruelty. Frequent rudeness of language, petulance, and indifference, sustained abusive and humiliating treatment calculated to torture or render miserable the life of the spouse could amount to mental cruelty." Apart from that, if the husband or wife is sterilized without the knowledge or consent of the spouse, or (in the latter case) abortion, it can also be mental cruelty. In the case quoted here, the husband filed a lawsuit for mental cruelty because his wife did not cook for him, and she cooked for herself only. The Supreme Court recognized the wife's conduct as an act of mental cruelty. Another point of debate is the Supreme Court and other High Court decisions that ruled that denial of sex constitutes mental cruelty. The court has approved this proposal, but the issue of marital rape has not yet been decided by the court. Marital rape has not yet been criminalized, but it is itself a mental cruelty against wife. This means a lack of respect, dignity and sensitivity to his wife and violates her right to life and freedom under Article 21 of the Indian Constitution. The woman cannot be treated as someone "who does not have a say over her body and someone who has no right to deny sexual intercourse to her husband."10 The Delhi High Court correctly ruled that "marriage is not a contract for legal sexual pleasure." If denial of sexual intercourse is equivalent to inflicting mental cruelty on the husband, then forcing the wife to do the same is inflicting mental cruelty on her. Therefore, the court or parliament needs to clarify this legal issue by addressing the exception of Section 375 IPC, thereby making marital rape a criminal offense. CHAPTER 3: THE CONVENTION IF CRUELTY AGAINST WOMEN Various personal laws in India have established cruelty as a reason for divorce. Section 2 (vii) of the Dissolution of the Muslim Marriage Act of 1939 states: "A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on the ground that the husband treats her with cruelty..." Under Section 32 (dd) of the 1936 Parsi Marriage and Divorce Act, the word cruelty is the basis for the dissolution of marriage as under: "That the defendant has since the solemnization of marriage treated the plaintiff with cruelty or has behaved in such a way as to render it in the judgment of the Court improper to compel the plaintiff to live with the defendant." The Indian Divorce Act, under Section 10 provides "Any wife may present a petition to the District court or the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof (her husband) has been guilty of adultery coupled with such cruelty as without adultery would have entitled her to a divorce." Interpretation of the word "cruelty" can be found in Sec. 27 (d) of the Special Marriage Act, 1954 as: "The respondent has, since the solemnization of marriage, treated the petitioner with cruelty". Section 13(1) (ia) of Hindu Marriage Act, 1955 provides. "The other party has, after the solemnization of marriage, treated the petitioner with cruelty." Cruelty as a reason for divorce was introduced into this law by the 1976 amendment. Prior to that, it was not a valid reason for divorce, but for judicial separation only. Apart from these personal laws, Indian criminal law also makes cruelty against women criminal offense under section 498A of the law. The section reads as: "Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine."11 The section mandates the offence as non-bailable, cognizable and non-compoundable. It includes not only physical cruelty, but also mental cruelty in the form of "torture and abnormal behavior". Parliament has passed the Protection of Women from Domestic Violence Act, 2005 (PWDVA) in order to protect the feminine gender from family violence and make their right to life under Article 21 of the Indian Constitution more meaningful.12 The law provides for one year's imprisonment and a maximum fine of Rs. 20,000 when wife is exposed to domestic violence. However, Section 498A IPC provides relief only to women who have faced cruelty by their husband or their husband's family. Husbands exposed to cruelty, especially mental cruelty, do not have remedies under this section. CHAPTER 4: THE EMERGING CONCEPT OF CRUELTY AGAINST MEN The law on a wife's cruelty against her husband is not as clear as the other way around. It is difficult for women to accept that they are inflicting cruelty on her husband, as men continue to dominate women in our country. However, with increasing awareness of women, a wave of feminism, and increasing education and independence of women, women are beginning to abuse legal provisions for their husbands to meet their needs and demands. Indian courts have noted this several times and have allowed husbands to divorce because of the mental cruelty committed by the wife. In one case where the wife always asked her husband for money and he did not give it to her, she would threaten him to falsely drag him into a dowry case, kill her children, and thereby blame him, the Supreme Court ruled that the husband could end the marriage due to the mental cruelty committed by his wife. In another case in which a woman filed a complaint under Article 498A, the Court after investigation found that the complaint, she had made was incorrect solely to embarrass and imprison her husband and her family. The court granted divorce because filing a false proceeding was considered cruel on part of the wife. According to established procedural law, false complaints by one spouse are always cruel and the other spouse can apply for divorce. Section 498A was inserted as a statute with the praiseworthy purpose of punishing cruelty inflicted by a husband or his relatives against the wife, especially if the cruelty could lead to suicide or the murder of a woman. Many of these complaints are registered in malicious intent. At the time of filing the complaint, the impact and consequences are not visualized. Such complaints are against the defendants as well as the complainant.13 It is an accepted fact that the abuse of Section 498A is increasing due to the imprisonment of husbands and their families, as well as relatives including old parents and grandparents. The wives try to blame the husband based on false or exaggerated claims. This leads to mental harm and distress, which causes mental cruelty. Vague claims without verifiable evidence leads to harassment and even arrest of innocent families, including women and the elderly. The same has been acknowledged by the courts in several decisions. As a result, as soon as the woman files a false report, police lodge a F.I.R., arrests her husband, and in some cases his relatives who have no opportunity to speak. All burden of proof rests on the husband to prove that he is innocent. CHAPTER 5: CONCLUSION "No one can be tortured, cruel, inhumane, or degrading or punished." Against this background, cruelty by either husbands or wives is a breach of fundamental right to dignity and freedom. The Constitution of India i.e., the basic norm of India, guarantees the right to live with dignity as it is part of the right to life under Article 21. Inflicting physical and mental distress and inflicting suffering on others is the same as injuring others. Due to the modernization and collapse of the family system, the divorce rate in India is increasing year by year. According to reports from the National Crime Investigation Bureau, the number of complaints filed under Section 498A of the IPC has increased proportionately since the beginning of the 21st century. Very few cases have been convicted in proceedings, but in most cases the husband is acquitted.

Indeed, some laws have been prejudiced against women to compensate for the abuse they have endured and are currently undergoing over the past few years. To support the dissertation, Section 32(2) of the Protection of Women against Domestic Violence Act, 2005 can be expressed as an example here, which says "Upon the sole testimony of the aggrieved person, the court may conclude that an offence under sub-section (1) of section 31 has been committed by the accused." However, without investigating whether the complaints filed are correct or incorrect, the husband and his family can face social stigma and mental distress. On the contrary, we must not forget the loopholes in the law that are not at all advantageous to women. Therefore, the laws related to cruelty need to be clearly stated in all forms and types. Therefore, the legislature is expected to provide a foundation to the expression on which it can stand, rather than leave it as a hanging concept. Until the concept of cruelty becomes clear, it is always the responsibility of the judiciary to determine whether an act is cruel, depending on the facts of the situation and the parties to the dispute.