Report No. 59

2.11. Section 13(1)(viii)-the proposal to add cruelty as a ground of divorce.-

We now proceed to consider the proposal to add, in the grounds of divorce under section 3(1), cruelty on the part of the opposite party. The fact that the respondent has "treated the petitioner with cruelty since the solemnisation of the marriage", it is proposed, should be a ground for dissolution of marriage. It may be stated that at present cruelty is only a ground for judicial separation1, and that too where it causes a reasonable apprehension of harm or injury. We welcome the proposal. If destruction of mutual confidence is the basic justification for dissolution of marriage-which we think is the basic position,-it cannot be denied that cruel treatment would constitute a strong ground for dissolution.

There can be no more unimpeachable evidence of the destruction of mutual love and feelings than cruel treatment of one party by the other. Cruelty is the very antithesis of love and affection. The duration and frequency of the conduct to be proved (to establish cruelty) need not be explicitly spelt out2 in the section, because the very words "treated with cruelty", in general, imply harsh conduct of a certain intensity and persistence. It was suggested to us that some further indication is advisable not as merely qualifying the type of cruelty, but as indicating that the ultimate ground of divorce is the impossibility of operating the marriage. The misconduct described as cruelty should, it was suggested, be one which amounts to cutting the sacred link that the parties had, when entering upon the marriage, sought to create between themselves.

1. See section 10(1)(b), para. 2.2, supra.

2. For English cases upto 1948, see Rosen Cruelty in Matrimonial Causes, (1949), 12 Modern Law Review 324.

2.12. A draft on the following lines was suggested during our discussion:

"that the respondent has, since the solemnisation of the marriage, treated the petitioner with such cruelty that the petitioner cannot reasonably be expected to live with the respondent."

We do not, however, think it necessary to add such limiting words, because we consider that the court would, even in the absence of such words, broadly adopt the same approach.

2.13. It may incidentally be mentioned here that in many countries, matrimonial relief is provided to the aggrieved spouse on the ground of cruelty. This redress is usually justified on the ground of the principle of protection.

2.14 to 2.16. Having considered all aspects of the matter, we have come to the conclusion that it is sufficient to provide for cruelty as a ground of divorce, and it should be left to the courts to determine on the facts of each case whether the conduct amounts to cruelty.