Divorce on grounds of cruelty has two forms one is the physical cruelty and other form is the mental cruelty, the physical cruelty is easier to prove as direct evidence is easily available, medical records, witnesses etc. But what about mental cruelty? how one can measure or see emotions like disappointment,fear, frustrations etc. which is caused by other spouse.How a marriage becomes mentally suffocating and its difficult to see the other spouse. Physically to the outside world the spouse seems to be proper but harsh reality in today’s normal world.
Indian courts also don’t have straight jacket formula to come up with the solution that to assess what is mental cruelty and what is not, mental cruelty highly depends upon cases to case and circumstances of each martial relationship.
Dastane v. S. Dastane reported in (1975) 2 SCC 326 at page 337, para 30 observed as under :-
“The enquiry therefore has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent.”
In the case of Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr. reported in (1981) 4 SCC 250, this Court stated that the concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty.
In the case of Shobha Rani v. Madhukar Reddi reported in (1988) 1 SCC 105, this Court had an occasion to examine the concept of cruelty. The word ‘cruelty’ has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i)(a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.
The supreme court in samar Ghosh V. Jaya Ghosh has held that some of the guidelines to find out whether case is of mental cruelty or not. Before going to court your lawyer must go through these guidelines to assess whether the case is of mental cruelty or not.