What law says - ‘My wife is keener on a career than home. I want a divorce’

Q) I am 43, married for 11 years and have an 8-year-old son. For the last 6 months I am not on talking terms with my wife. I wish to take divorce from my wife as I cannot stand this anymore. The reason for tension is that my wife is more interested in her career and does not do anything at home and her parents have treated me like a slave for 8 years. Now I want to get away from all this and give her whatever the court decides in terms of alimony. My son stays with us but he is taken care of by my mother and he too does not like her mother as she does nothing for him. But the problem is my wife will not sign the divorce application. Will my reason for separation stand in court? I am a Hindu, does this make any difference in getting divorce? —Terry C

A) In India, matters pertaining to marriage, divorce and succession are governed by personal laws of the religion to which the person belongs. Since you are a Hindu by faith, and presumably your marriage performed according to Hindu rites, you marriage will be governed by the Hindu Marriage Act, 1955.

Under Hindu Marriage Act, 1955 divorce can be obtained by either party. Section 13 of the Hindu Marriage Act deals with the grounds on which parties can seek a decree of divorce from a court having jurisdiction to entertain such petition. One amongst these grounds is if the spouse has treated the petitioner with cruelty.

The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty as a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. Mental cruelty can be defined as 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.

The Supreme Court has in the recent judgment of Samar Ghosh V/s Jaya Ghosh, while reiterating that there can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters and that each case has to be decided on its own facts, nevertheless enumerated some instances of human behaviour which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated below are only illustrative and not exhaustive.

(i) On consideration of the matrimonial life of the parties, acute mental pain, agony and suffering or things that would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. In such like situations, it may lead to mental cruelty.