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The general notion of cruelty
is very subjective- depending on time, place, persons and other
factors also. The legal concept of cruelty, which is not defined
by statute, is generally described as act or conduct of such a
nature as to have caused to life, limb or health- physical or
mental or as to make a reasonable apprehension of such danger.
Cruelty, no doubt, constitutes
a pompous ground for dissolution of marriage, as the term cruelty
and love and affection are repugnant to each other. There is no
strait jacket formula to define cruelty. Even a gesture, an angry
look, a sugar coated joke, an ironic look may be more cruel than
beating. Every act or conduct of one spouse which makes the other
spouse unhappy or miserable can not amount to cruelty. The mere
fact is that the erring spouse is moody, whimsical, mean, stingy,
selfish, boorish, irritable, inconsiderable, irascible etc. will
not be sufficient to amount to cruelty.
Cruelty, in marital
relationship, is a course of conduct of one spouse which adversely
affecting the other. Cruelty may be mental or physical,
intentional or unintentional. If it is physical, it is an issue of
fact and degree. If it is mental, the enquiry must begin as to the
nature of the cruel treatment and then as to the treatment of the
mind of the spouse. Whether it caused reasonable apprehension that
it would be harmful or injurious to live with the other, is
ultimately a matter of inference to be drawn by taking into
account the nature of the conduct and its effect on the
complaining spouse.
Under various personal laws,
cruelty is a ground for matrimonial relief. Apart from that,
Indian Parliament with a view to stall and prevent increasing
violence and cruel treatment of the wife by her husband and in
laws has inserted a new Section 498A to the Indian Penal Code.
Probably there is no material
difference in Muslim law on the issue of legal cruelty, between
man and wife from other prevailing matrimonial laws in India. The
test of cruelty is based on universal and humanitarian standards
by the husband which would cause such bodily or mental pain as to
endanger the wife’s safety of health. (Shamsunnissa Begum’s case,
II. M.I. 551).
Instances of cruelty given in
the provision of the Dissolution of Muslim Marriage Act 1939,
include habitually assaulting the wife, making her life miserable
by physical ill-treatment or by a conduct short of that,
associating with woman of evil repute or leading an infamous life
or preventing her from exercising her rights therein, obstructing
her in the observance of her religious profession or practice and
in case of bigamy treating her inequitably contrary to the Koranic
injunction.
In Islamic law, the concept of
cruelty (zirar) is not limited. The cruelty provision is to be
interpreted in the light of the Prophet’s exhortations that women
are as tender as glasses (qawarir) and he is the best man who is
kind to his wife. It is worth mentioned here that under Muslim law
cruel nature is a disqualification for eligibility to marry.
Getting married is haram(absolutely prohibited) for a man who is sure due to his
temperament that he will be guilty of cruelty and excesses towards
the would be wife. If he is not sure but has a reasonable
apprehension of meting out of cruelty to her, getting married is
makruh-e-tahrini (to be essentially avoided). (Compendium of Islamic Laws-2001, Part-1; All India Muslim
Personal Law Board’s Urdu book, ‘Majmu a-e-Qawanin-e- Islami
).
Section 2(viii)(a) of the
concerned Act uses the words by cruel conduct even if such
conduct does not amount to physical ill-treatment. This language
is wide enough to include all cases of cruelty, not merely this,
it would cover all types of misconduct or misbehaviour, serious
and not very serious on the part of the husband calculated to
break spirit of the wife by physical or moral force which was
systemically exerted on her to such a degree and to such a length
of time resulting in undermining her health, it will amount to
cruelty.
Regarding cruelty of conduct
the general test should apply, since the conduct that is cruel for
one woman can not be civilized enough for another just because of
the religion of the parties. The point lies in the statutory words
‘makes her life miserable’ and the social status and standard of
self-respect of the wife should be decisive to ascertain if the
man’s conduct amounts to cruelty. A simple allegation of the wife,
unsupported by independent testimony, is not sufficient in law to
establish any charges mentioned in the law.
In case of inequitable
treatment between the co-wives which amounts to cruelty, the
courts earlier providing maintenance to one wife only and
ill-treatment forcing co-wife to leave the husband as instances of
unequal treatment. In Umat-Ul-Hafiz v. Talib Hussain (AIR1945
Lah.56), husband went abroad leaving behind his two wives in
India. He provided maintenance to one wife and neglected the
other. The court granted divorce to the neglected wife.
The Allahabad High Court in
Itawari v. Smt. Asghari (AIR1960 All.684) observed that a Muslim
has the legal right to take a second wife even during the
subsistence of the first marriage, but if he does so, and then
seeks the assistance of the Civil court to compel the wife live
with him against her wishes on pain of severe penalties including
attachment of properties, she is entitled to ask whether the
court, as a court of equity, ought to compel her to submit to
co-habitation with such a husband. In that case the circumstances
in which his second marriage took place are relevant and material
in deciding whether his conduct in taking a second wife was in
itself an act of cruelty to the first.
The onus in these days would
be on the husband who takes a second wife to explain his action
and prove that his taking a second wife involved no insult or
cruelty to the first. For example, he may refute the presumption
of cruelty by proving that his second marriage solemnized at the
suggestion of the first wife or in order to gain some financial
benefit( may be through contract) the first wife may indulge or
insist her husband or reveal some other relevant circumstances
will prove cruelty. But in the absence of a strong and proper
explanation the court will presume, under modern prevailing
systems, that the action of the husband in taking a second wife
involved cruelty to the first and that it would be inequitable for
the court to compel her against her wishes to live with such a
husband.
It will amount to cruelty if
the husband disposes of his wife’s property or prevents her from
exercising her legal rights over it. In one occasion(
Zubaidaa v.
Sardar Shah. AIR1943Lah. 310), the view expressed by Abdul Rahman
J., that, ‘it is not always easy to determine for what purpose,
husband sells or assigns his wife’s property of any value’.
Property may be used for the treatment of wife, for the benefit of
the family members, for the education of children, for the
maintenance of any other liabilities. If the property disposed of
not for the selfish ends of the husband, not with the object of
meeting a pressing needs but more in the sense of waste and this
done to deprive the wife of her property and without the consent
of wife then it shall constitute the offence of cruelty.
Today, there is a large volume
of case laws on cruelty in India and abroad. Since human nature
and conduct are infinitely diverse. No hard and fast rules can be
laid down as to what acts or conducts will amount to cruelty in
any given case. However, there is a sea change in the attitudes of
the courts. There is no difficulty in holding when physical
violence amounts to cruelty. However deciding some clear cases,
questions do arise in the sphere of mental cruelty or not. The
reason is that mental cruelty may be of any kind or of infinite
variety, new concept of mental cruelty may reveal. It may be
subtle or brutal. It may be by words, gestures or even by mere
silence.
In deciding whether or not a
particular state of affairs amount to legal cruelty, the court has
to consider the social status, the environment, the education, the
mental and physical conditions and the susceptibilities of the
innocent spouse and also the custom and manners of the parties.
Whether acts or conduct complained of, constitutes cruelty has to
be construed in reference to the whole conjugal relationship.
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Cruelty
as a Matrimonial offence under Muslim Law
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The
author can be reached at:
pratim@legalserviceindia.com/
