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Report No. 15

55. Cruelty.-

Under section 27(d) of the Special Marriage Act, cruelty is a ground for divorce. That is also the law in England as embodied in section 1(1)(c) of the Matrimonial Causes Act, 1950. Under the Hindu Marriage Act, 1955, cruelty is a ground for judicial separation under section 10(1)(b), but it is not a ground for divorce under section 13(1). We are of opinion that we should adopt the law as embodied in section 27(d) of the Special Marriage Act.

56. The suggestion has been made that we should define cruelty. What is cruelty for the purpose of divorce has been considered in numerous decisions in England. In Russell v. Russell, Affirmed on appeal, 1897 AC 395 it was defined as "conduct of such a character as to have caused danger to life, limb, or health, bodily or mental, or as to give rise to a reasonable apprehension of such danger". It has been observed in Latey on Divorcee1 that "there has been so marked a development in the mutual relations of husband and wife and in the right of a wife since the Ecclesiastical Courts administered the matrimonial law, and Judges are so bound to exercise their judicial discretion with due regard to the customs and manners of their own time, that a blind adherence to the decisions of over a century, or even a generation ago, is impossible."

It would therefore be obviously inexpedient to lay down hard and fast rules as to what would amount to cruelty. That appears to be the reason why the Hindu Marriage Act, 1955, also does not define cruelty, but provides in section 10(1)(b) that cruelty which can be a ground for judicial separation must be such as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party. Considering this question, the Royal Commission on Marriage and Divorce, observed2 that it was preferable not to have a detailed definition of that word but to allow the concept of cruelty to remain open to such adjustment as it was desirable to make through the medium of judicial decisions. We also propose to leave it at that.

1. 14th Edn., p. 82, para. 158.

2. Royal Commission's Report, 1955 Cmd. 9678, p. 42, para. 133.

Report on the Law of Christian Marriage and Divorce Back

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