What Counts as Mental Cruelty in Divorce?

Samar Ghosh and Jaya Ghosh were both senior IAS officers. They married on 13 December 1984 at Calcutta under the Special Marriage Act, 1954. Jaya was a divorcee with a daughter from her first marriage to Debashish Gupta, also an IAS officer. The Patna District Court had given her the child's custody. When Gupta filed a belated appeal against that divorce decree, Jaya persuaded Samar to marry at once so the appeal would become infructuous.

According to Samar, the marriage turned cold almost immediately. Jaya told him not to interfere with her career, not to be inquisitive about her child, and to keep himself aloof from her. She declared, on her own, that she would not give birth to a child for two years. Later she said she would not have any child at all, and that this was her firm decision.

In February 1985 Samar fell seriously ill. Jaya's parents took her daughter to Bareilly, where her brother worked, and Jaya went too. Nobody was left to look after Samar. On her return she stayed four days in Calcutta and did not meet him or ask about his health. Samar also said she refused to cohabit with him and stopped sharing a bed.

By April 1989 Jaya was effectively living at her parents' house. She would come to the Minto Park flat, cook only for herself and leave for office. Samar ate outside or cooked again for himself.

The breaking point came in August 1990. Prabir Malik, Samar's servant-cum-cook, visited the flat on 24 August and stayed the night. On 27 August Jaya and her father arrived. Prabir testified that she objected to his presence and said the flat was hers. He also said she remarked that even people living on streets and street beggars have some prestige, but these people had none. Samar left that day and stayed with a friend until a government flat was allotted to him on 13 September 1990.

In 1993 Samar had bypass surgery. Jaya did not enquire about his health even by telephone, and in cross-examination falsely said she did not know about it.

The Additional District Judge at Alipur, Calcutta, granted the divorce on 19 December 1996. The Calcutta High Court reversed that on 20 May 2003. It leaned on Jaya's high status, which it said gave her the right to decide when to have a child. It also held that separate bedrooms did not prove she refused to cohabit, that Samar's living with her amounted to condonation, and that her refusal to cook was no cruelty. It gave little weight to Prabir Malik because of his low station in life.

The question was where mental cruelty ends and ordinary marital friction begins. Cruelty is not defined in the Hindu Marriage Act. Earlier Supreme Court rulings, including N.G. Dastane, Shobha Rani, V. Bhagat and Parveen Mehta, said the whole matrimonial relationship must be weighed and the effect of the conduct on the other spouse examined.

The High Court instead picked incidents apart and weighed them against the wife's rank. The Supreme Court rejected that. It said such a vital decision as having a child cannot be taken unilaterally after marriage. Once Jaya agreed to become Samar's wife, she had to respect the marital bond and discharge the obligations of marital life. Living together afterwards did not amount to condonation of cruelty, and a witness's credibility does not depend on financial standing or social status.

The Court also stressed that the parties had lived apart since 27 August 1990, with no interaction. That set the real question: could a marriage that existed only on paper be kept alive, and could Samar reasonably be asked to live with Jaya any longer?

The Bench refused to give mental cruelty a comprehensive definition. It said human behaviour is too varied. What is cruelty in one case may not be cruelty in another, and the concept changes with time. It then listed instances that are "only illustrative and not exhaustive".

• It closed the isolated-incident loophole. Married life must be reviewed as a whole, and cruelty is inferred from the cumulative effect of conduct.
• It closed the status loophole. A spouse's rank, education or high post does not excuse neglecting marital obligations, and a truthful witness cannot be discarded for being poor or lowly.

The 14 illustrations, in the Court's order:

1. On consideration of the complete matrimonial life, acute mental pain, agony and suffering that make it impossible for the parties to live together can fall within mental cruelty.
2. On a comprehensive appraisal of the entire matrimonial life, the wronged party cannot reasonably be asked to put up with the conduct and continue to live with the other.
3. Mere coldness or lack of affection is not cruelty. But frequent rudeness of language, petulance of manner, indifference and neglect may reach a degree that makes married life absolutely intolerable.
4. Mental cruelty is a state of mind. Deep anguish, disappointment and frustration caused by the other spouse's conduct over a long time may lead to it.
5. A sustained course of abusive and humiliating treatment calculated to torture, discommode or render the spouse's life miserable.
6. Sustained unjustifiable conduct that actually affects the other spouse's physical and mental health. The treatment and the resultant danger or apprehension must be very grave, substantial and weighty.
7. 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.
8. The conduct must be much more than jealousy, selfishness or possessiveness, which cause unhappiness and emotional upset but may not justify divorce.
9. Mere trivial irritations, quarrels and the normal wear and tear of married life are not adequate.
10. 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, to the point where the wronged party finds it extremely difficult to live with the other any longer.
11. A husband who undergoes sterilisation, or a wife who undergoes vasectomy or abortion, without medical reason and without the other's consent or knowledge, may commit mental cruelty.
12. A unilateral decision to refuse intercourse for a considerable period, without physical incapacity or valid reason, may amount to mental cruelty.
13. A unilateral decision by either husband or wife after marriage not to have a child from the marriage may amount to cruelty.
14. Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction supported by a legal tie, and refusing to sever it may itself lead to mental cruelty.

The Court set aside the High Court's judgment and restored the trial court's decree. Parties were left to bear their own costs.

• Build the whole timeline first. The Court looks at the entire married life, so gather dated records. Useful items include the marriage proof, written statements, medical papers for illness or surgery, and proof of the date the parties began living apart. In this case that was the allotment of a separate government flat on 13 September 1990, after Samar left the shared flat on 27 August 1990.
• Line up witnesses who actually saw the incidents. Samar's case turned on Prabir Malik, who saw the 27 August 1990 episode, and on friends and colleagues who knew the couple. The Court said a natural, truthful witness must be believed whatever his social status.
• Follow the route this case took. Samar filed his divorce suit before the Additional District Judge at Alipur, Calcutta. The wife appealed to the High Court, and the husband then came to the Supreme Court. The judgment states no filing deadline, so check the limitation rules for your own case with a lawyer.
• Avoid the biggest mistake. Do not rely on one incident, on mere coldness, or on arguments about the other spouse's rank. The Court wants persistent, cumulative conduct or long separation showing the marriage cannot be saved.