Introduction judgment where the court has granted divorce

Introduction

 

Marriage in India is considered as a sacrament and pious.
The bride and groom take vows to live together for the rest of their lives, but
sometimes the marriage suffers a major setback due to various psychological and
emotional imbalances. No marriage is free from disputes but the problem arises
when there is a greater degree of disagreement between spouses which disturbs
their relationship to a greater extent resulting into ego clashes between
husband and wife. When the ego or sense of respect of a person is hurt, every
person reacts in a different form which comes out in form of cruelty. An act
may be cruel or not, depending upon its severity and nature. There are a number
of marriages united by astrology, divided by judgment where the court has
granted divorce by blending the concept of cruelty with irretrievable breakdown
of marriage1.

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The human psychology plays an important role in
determining the human conduct and behavior which has an inseparable nexus with
‘cruelty’.

Any human element within the ambit of what may be called
as a family or an ideal relationship shall be deemed to be called as the source
point of cruelty. Understanding the psychology of the other half of any
relationship undergoing mental or physical cruelty can help reaching the root
cause of cruel behavior or conduct. Stress should be laid down to preserve the
institution of marriage2
which could be achieved only by knowing the problem and finding an alternative
peaceful solution to it through mediating and counseling rather than opting for
divorce.

 

To
define cruelty precisely is not possible. It is nothing other than a person in
a dominating position exploiting a person in a weaker position through physical
force or mental assault. And this is all due to fundamental issue of
possessiveness, dominance, lack of understanding, issue of blind power last but
not the least undue influence.

No
problem is a problem without a solution and even the fundamental problems
behind cruelty can be dealt through a “DIALOGUE”, i.e mediation, counseling and
in hard cases negotiation.

The
Hindu Marriage Act, 1955 lays down cruelty as a ground for divorce under
section 13(1)(1-a), there is no clear definition laid down defining cruelty for
the first time the term cruelty was defined in case russel v. russel3  

In Suman Singh v.
Sanjay Singh4
Where husband seeks divorce from wife on the ground of cruelty done in some
past incidents the court in this case held that some isolated incidents that
took place long in past cannot become a subsisting cause of action to seek
divorce after 10 years. Incidents should be recurring in nature and should have
not been compromised by the other spouse in past.

 

Causes of Cruelty

 

Any kind of family dispute arises out of a cause and has
an effect in form of cruelty. It need not be a single cause but because of multiple
reasons which can be segregated broadly as –

Spouse rivalry –
Cruelty cannot be measured like dimensions of body. What is cruelty in one case
may not be the cruelty in other circumstance and largely depends upon the type
of life the parties are accustomed to or their economic and social conditions
and their culture and human values to which they attach importance.5 When
the ideologies don’t match there are chances of rivalry arising among the two
destroying the relationship slowly from the root. Spouse rivalry can be due to
emotional distress, financial problems, sexual desires, dowry demands, non –
cooperation, lack of understanding, or even some nuance reasons. Such reasons
creates disturbance in their life and causes various psychological imbalance
and results in causing cruelty upon the other spouse either mentally or
physically.

 

A small incidence of neglect or indifference may not
lead to rivalry and become a reason for cruelty, but when such incidences done
repeatedly affecting the other spouse physically and mentally will amount to
cruelty.

 

The Supreme Court of India while exercising inherit
powers under Article 142 has laid down precedents in various matters relating
to spouse rivalry where the marriage is broken irretrievably and there is no
chance of reconciliation between the parties.

(i)                      
In Romesh
Chandra v. savitri6,
in this case the husband was not dutiful and did not fulfill his
responsibilities towards the child. He contributed nothing towards the
upbringing of the child and therefore the marriage was dead and continuance of
it would amount to cruelty. The rivalry between spouses was for more than 25
years and finally decree of divorce was passed.

(ii)                    
Praveen
Mehta v. Inderjit Mehta7,
high degree of cruelty was inflicted upon husband by the wife. The parties
lived separately for 10 years and finally awarded divorce as their marriage was
dead.

Supreme
Court recently in Narendra v. K.Meena8
held that continuous effort of women asking the husband to separate from
his parents will amount to cruelty. The wife was highly suspicious in nature
and imposed various allegations on husband for extra marital affair and
repeatedly asked to separate from his family, such behavior was torturous the
husband and resulted in mental cruelty.

The cases of cruelty arise not only because of the
actions of other spouse but the actions of any of the spouse children by a
previous marriage. In Hall v. Hall9,
cruelty caused by husband in an indirect manner by going against the marriage
agreement and keeping the children from previous marriage at home, these
children behaved in a ruthless manner, and on one occasion beat her, but in
this case divorce was not granted since the child was a minor and the husband
repeatedly asked the child not to do so and took necessary steps to save the
marriage.

 

Such rivalry among spouses lead to irretrievable breakdown of
marriage where it becomes impossible for one spouse to live with other and the
court has to grant decree of divorce as the purpose of marriage is not served.

 

Sibling rivalry-
 

A marriage becomes stronger when a child is born, both
the husband and wife has equal responsibility to look after their children.
Sometimes parental attention is given only to one child because of its gender,
capabilities and the other child feels neglected. The fact that parents
knowingly or unknowingly have a favorite child has been proved in an English
survey whereas; the parents are not ready to accept the same. Such child
discrepancies in a parent’s treatment can create negativity in sibling
relationship10
and from an early age itself the feeling of jealousy, anger, distress and
bitterness is developed. Succession, Inheritance of property, unequal estate
distribution creates major disputes among siblings.

 

Prior to Hindu Succession Act, 2005 females were not
treated as coparcener; therefore she cannot become karta as well. Courts in India
have given diverse views regarding female acting as Karta.

In the landmark judgment Mrs. Sujata Sharma v. Shri Manu Gupta11
after 2005 amendment act, inequality was removed by allowing female to be karta
of family. The Indian society still favors male than females, and male members
of the family are given more importance and power, though there has been
changes in family structure but the fact cannot be denied that India still
remains a male dominant society. Sibling rivalry may also arise due to dispute
among siblings on who will become the head of family after the death of father.

 

Lack of love, cooperation and understanding among
brothers and sisters develops resentments even among their martial
relationships like continuous taunting by wife over having fewer shares in the
property, thereby causing cruelty. Sometimes because of child favoritism mental
agony is developed between the partners.

 

Cruelty towards
parents –

 

Parents will always think of well – being of their
children and would want to see their children grow, prosper and they will do
anything unconditionally for their welfare. Usually no parent asks for favors
from their children but when in an old age they expect care, help and attention
from their children, in our Hindu society it is a son’s pious obligation to
maintain and take care of his parents at an old age. Usually upon getting
married there is a change between parent and sons relationship and there is
neglect towards the old age parents by son or torture by daughter in law by
continuous harassment towards them. Various courts have recognized that sons
have responsibility towards their old aged parents, and if wife persistently asks husband to separate from his
parents will also constitute as act of cruelty12

 

Rajini v. Sandeep13
the wife imposed false allegations of dowry on husband and his parents whereas
the marriage was concluded in a very simple manner without asking for any
dowry. Earlier the wife lived with husband and his family but later she
continuously forced the husband to live separately and purchase a house for her
despite knowing that he is in a weak financial position. The court held that forcing
the husband to live separately from his parents will amount to cruelty and is
sufficient ground for divorce.

 

Vijay Kumar Gupta
v. Mool Chand Gupta14
the sons abused and tortured their father for not giving any share to them in
the property and transferring the house in favor of their mother in his will.

 

    Role of marriage counselors and mediators –

 

The
human psychology is Wide Ocean where there are goldfish, poppies, sharks and
whales if the whales are larger dreams and ambitions, the goldfish and poppies
are happiness in abundance. Whereas the sharks are methods to rule the mind
wherein till greed comes in front of them they would not respond. The mediator
has to rule the mind of both the parties and play with the psychology of people
in such a manner as to make them understand the ultimate object is preservation
of family.

What
the human mind fails to understand is the very factor of understanding itself
which is highlighted in mediation, counseling and negotiation, where the human
mind is given an option to realize what it actually wants. The human mind
becomes more subtle and more responsive.

The
role of Alternative Dispute Resolution can be traced back to historic times.
The practice has been continuing even before the British introduced the concept
of formal court system. The disputes of various families were decided amicably
by the elders and respected people of the village collectively called as the
panchayats. Slowly and gradually along with the establishment of courts
mediation especially with respect to family matters has been given a greater
importance.

The
art of mediation requires the mediator to understand the source of the problem,
the source of the psychology of problem, the source of the demand made by both
the sides. Last but not the least the ability to find a solution by overcoming
psychological barriers.

In
a mediation traditionally both the parties are brought together and made to
speak out their problems which of course on the Indian front would be the
literal creation of Kurukshetra war but this war is with dialogue and not with
weapons, it’s a war of minds where the mediator’s mind is that of Lord Krishna
and once both these sides have chosen to lay down their weapons to abuse and
shouting, the mediator gives both an opportunity to recall what exactly caused
the problem wherein both the sides are even able to recall the pleasant
memories because after all the Pandavas and Kauravas was also brothers who
played and ate together, so the mediator personally listens to both the sides
and understands the barrier pulling both the sides apart, he understands the
cause, the effect and he also understands the weaknesses and when he shares the
same with both the sides in a manner where an amicable solution may be drawn.
Both the sides tend to come down to a reasonable solution on their own, thus
ensuring the kurukshetra war doesn’t have to end in bloodshed as it once
originally did. 

But
then the mediation may not be the right solution to every problem because
sometimes in order to help a stubborn min, you also need a one on one approach
where comes in the very aspect of digging down to the roots of the
psychological problems of persons mind, thus enabling him to understand the
problem is within himself and not other world, and here comes the wisdom of
Birbal from Mughal empire who could go down to the source of the problem and
understand an individual easily and effectively thus coming out with a powerful
solution through counseling. Usually counseling is an aspect that has been seen
amongst husband, wife, siblings, children of old aged parents and even a second
wife/ the children of second wife.

A
counseling task is nothing but creating a sense of sensibility within a
person’s soul so that the person is able to make sensible decisions and not end
everything that took years to nurture. A counselor will always listen to both
the sides and not try to make the people come out with the solution but
actually help people to understand why do you ever need a solution at one place
which can only be achieved by breaking through the stubborn wall created
between the minds of individuals. A counseling procedure can take hours, days,
and can even sometimes fails, but it is the closest method o find an
everlasting solution. The very fundamental method behind finding solution
through counselor requires years of practice in the art of psychology, psychoanalysis,
psycho matrix.

In
this process, the counselor needs to firstly,

Calm
the person down, create a methodology where the person can trust the counselor
and start to share everything or even anything and this is only possible with
time and proper dialogue between the counselor and the person and once the
counselor has managed to understand the crux of the problem the counselor will
draw out an amicable solution and convince the person as to why a beautiful
solution should be drawn. Over the past the counselors have been successful in
many cases where there is a need for people to realize why court is not the
ideal solution

1.                                           
Marital counseling – it is performed by
counselors through diagnosis, therapy, and treatment of personality and
relationship problems. Marriage counselors come from the field of psychiatry,
social work, psychology, and other related fields. Counseling aims at helping
people to help develop insight and understanding into the nature of problems
and the causes and factors which produced them.

 

2.                                           
Marital mediation – Mediation is dispute
resolution mechanism to resolve the disputes among spouses. Marital mediation
can be opted when couples have “failed” marriage counseling. The mediator’s goal is to
help parties resolve their conflicts by agreeing to behavior
changes in specific problem areas.  Improved relationships may result
from the process of communication in mediation,
as well as from the process of trust
building which occurs when the parties make and keep commitments
to one another.15

Marital disputes are very different in
nature from any other kind of legal dispute as it involves families, emotions,
sentiments, motivation, personal liabilities, social responsibilities of both
the parties. In such a case directly coming to a conclusion without any
counseling or mediation will destroy both the partners. The counselors and
mediators play a very important role as they have to deal with the heavy
emotions and misunderstanding between the partners. Therefore to save the
institution of marriage there is heavy responsibilities on courts to find out a
way out instead of breaking the marriage. It is mandatory by the law for making
a serious attempt for reconciliation between parties. Section 23(2) of the Hindu Marriage Act, makes it obligatory and
mandates the court before making or arriving upon any conclusion or decision
every endeavor has to be made to bring reconciliation between the parties and
for the purpose of aiding such reconciliation the court may even adjourn the
proceedings16.
Under Section 89 of the Civil Procedure Code the court is given power and
jurisdiction to refer the dispute or litigation to an arbitrator without even
existence of an arbitration clause and under Code of civil procedure order
XXXIIA rule 3 imposes duty upon courts to make efforts for settlement in suits
relating to matters concerning a family therefore making it binding for court
to give wise chance to arriving at a conciliated or negotiated settlement.

 

 

 

 

 

 

 

 

 

 

 

 

 

1

2
Baljinder kaur v. hardeep singh

3

4

5
Naveen kohli v. neelu kohli

6

7

8

9

10 https://lawexplores.com/where-theres-a-will-law-and-emotion-in-sibling-inheritance-disputes/#fn_90

11

12
Narendra v. K. Meena 2008 SC

13
13.2.2015 (Punjab HC)

14

15
Goals

16
Section 23(3) of Hindu Marriage Act, 1955