Report No. 59
2.2. Section 10.-
Under section 10(1) of the Hindu Marriage Act, a party to a marriage may present a petition to the District Court praying for judicial separation on the ground that the party has been guilty of the specified types of misconduct or has been suffering from the specified types of disease. Under clause (b), the fact that the opposite party has "treated the petitioner with such cruelty 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" is one such ground. The proposal now is that in place of this clause, the following should be substituted:
"(b) has after the solemnisation of the marriage treated the petitioner with cruelty."
The difference between the present section and the proposal is obvious. In the present definition, the element of apprehension as to harm or injury is comparable to the element of "injury or likelihood of injury to health" which, in England, was required1, since 1897. It has been abolished in England,2 and the corresponding ground in England now is, that "the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent". If this is proved, the marriage can be taken to have "broken down irretrievably", within the meaning of the principal provision3 as to the ground for divorce.
The behaviour of the respondent of the nature referred to above, seems to cover cases which, under the old law, would have amounted to constructive desertion, and also rape, sodomy and bestiality and, apparently, conviction of serious criminal offences. Of course, proof of behaviour of the above nature (or for that matter, of any other type of misconduct specified in this context in the Act), merely creates a rebuttable presumption, it being still open to the respondent to prove that the marriage has not irretrievably broken down4. The statutory qualifications attached to "cruelty" in section 10(1)(b) of the Hindu Marriage Act are derived from the concept of "danger to life, limb or health", required at one time by the Ecclesiastical courts in England, for passing decrees of divorce, and need not be emphasised at the present day. In view of what is stated above, we accept the proposal.
1. Russell v. Russell, 1897 AC 395 CHL.
2. Section 2(1)(b), Divorce Reform Act, 1969 (Ch. 55).
3. Section 1(1), Matrimonial Causes Act, 1973.
4. Lord Dilhorne, H.L. Debates, Vol. 304, Col. 1094.