Law cannot differentiate between Hindu, Christian, Muslim or secular cruelty in divorce cases: Kerala High Court

The Kerala High Court recently held that matrimonial cruelty to justify divorce must have a uniform definition regardless of personal laws [Mary Margaret v Jos P Thomas]..A Division Bench of Justices A Muhamed Mustaque and Sophy Thomas said that law cannot recognise different varieties of cruelty based on religion regardless of the fact that personal laws include or exclude certain definitions for cruelty. The Court also drew inspiration from Article 44 (Uniform Civil Code) of the Constitution to arrive at this conclusion. "Law cannot recognise different varieties of cruelty as Hindu cruelty, Muslim cruelty, Christian cruelty or secular cruelty to justify a decree for divorce. The mere fact that Hindu Marriage Act and the Special Marriage Act refer to cruelty without any rider or explanation or the fact that the Divorce Act and the Dissolution of Muslim Marriage Act give indication of the nature of matrimonial cruelty that ought to be established, cannot justify the conclusion that the nature of matrimonial cruelty which would entitle the spouses for divorce is different under different personal laws," the Court said..Significantly, the Court explicitly stated that it is not in agreement with the theory that what constitutes cruelty to grant divorce can be different for persons belonging to different religions. "We discard the theory that the concept of matrimonial cruelty to entitle a spouse for divorce can be dissimilar and different for persons belonging to different religious faiths merely because different words are used in the relevant personal law statutes," the judgment said..Law cannot recognise different varieties of cruelty as Hindu cruelty, Muslim cruelty, Christian cruelty or secular cruelty to justify a decree for divorce.Kerala High Court.Therefore, the Court opined that matrimonial cruelty must have a uniform definition to justify the founding of a decree for divorce. Under Section 10(1)(x) of the Divorce Act, the cruelty must be such as to cause reasonable apprehension in the mind of the petitioner, spouse that it would be harmful or injurious for the petitioner to live with the respondent. However, the expression harmful or injurious cannot be limited to physical harm or injury, the Court said. "Anything that would hinder the ability of the spouse to blossom into his/ her fullness and to enjoy life in matrimony must be held to fall within the sweep of Section 10(1)(x) of the Divorce Act. Cruelty which is not defined in S.13(1)(1a) of the Hindu Marriage Act and S.27(1) of the Special Marriage Act and cruelty which is explained in S.2(viii) of the Dissolution of Muslim Marriage Act and S.10(1)(x) of the Divorce Act must all take inspiration from such understanding of matrimonial cruelty," the Court further said..We discard the theory that the concept of matrimonial cruelty to entitle a spouse for divorce can be dissimilar and different for persons belonging to different religious faiths merely because different words are used in the relevant personal law statutes.Kerala High Court.The Court passed the judgement on an appeal filed by a wife against the the decree of the family court which had granted divorce on the husband's application on the grounds of cruelty and desertion against her. The couple had married as per Christian rites and ceremonies in 1998 and had two daughters before the husband filed for divorce in 2009 which was granted by the family court in 2015. The main allegation of the husband was that from the inception of the marriage itself, his wife exhibited behavioural disorders which often turned violent and abusive. He also argued that his wife was inattentive to the children and that since 2005, she lived at her paternal house and ignored their children. Pertinently, he contended that even though the wife had been taken to various psychologists and psychiatrists, she did not co-operate or complete any course of treatment.The appellant wife however, stated that the allegations made by the husband were false and that she was ill-treated by him and his mother. It was that ill-treatment which caused mental stress for which she consulted doctors, she contended. .For the High Court, the main consideration was what can be construed as cruelty in the confines of matrimonial life, which it opined has to discerned on a case-to-case basis. "Cruelty can be physical and mental. Physical cruelty provides more of a direct evidence, that it can be perceptible when compared to mental cruelty. Mental cruelty can be drawn from the facts and circumstances of the case, whereas physical cruelty can be drawn from the conduct of one spouse towards other spouse which endangers the other spouse's physical health," the Court said..The Court primarily relied on the judgement of the Supreme Court in Samar Ghosh v Jaya Ghosh which elaborately discussed the nature and scope of mental cruelty as a ground of divorce.The top court had also observed that the concept of mental cruelty cannot remain static. "It is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa," the Court stated.In the instant, the Court noted that even the daughters of the couple had testified in support of the allegations of cruelty made by the husband. Further, a psychiatrist that the wife had consulted also testified that she suffered from an impulse control disorder but that the appellant had not completed her treatment. Therefore, the Court held that while one may suffer from mental stress or strain due to very many reasons, not taking treatment for the same in order to bring out a peaceful and harmonious family atmosphere, also may have to be counted as cruelty..On these grounds and on consideration of the facts and circumstances of the case, the Court dismissed the wife's appeal..[Read Judgment]

Law cannot differentiate between Hindu, Christian, Muslim or secular cruelty in divorce cases: Kerala High Court

Giti Pratap

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