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.
Divorce under Muslim Law:
Firm union of the husband and wife is a necessary condition for a happy family life. Islam therefore, insists upon the subsistence of a marriage and prescribes that breach of marriage contract should be avoided. Initially no marriage is contracted to be dissolved but in unfortunate circumstances the matrimonial contract is broken.
Nikah in pre Islamic Arabia, meant different forms of sex relationship between a man and a woman established on certain terms, in pre Islamic days,women were treated as chattels, and were not given any right of inheritance and were absolutely dependent. it was prophet mohammad who brought about a complete change in the position of women.
Muslim women's right for dissolution of marriage:
Divorce among the ancient Arabs was easy and of frequent occurrence. In fact, this tendency has even persisted to some extent, in Islamic law. It was regarded by prophet to be the most hateful before the Almighty God of all permitted things; for it prevented conjugal happiness and interfered with the proper bringing up of children.
Guardianship Under Muslim Law:
The source of law of guardianship and custody are certain verses in the Koran and a few ahadis. The Koran, the alladis and other authorities on Muslim law emphatically speak of the guardianship of the property of the minor, the guardianship of the person is a mere inference.
Custody Under Muslim Law:
The first and foremost right to have the custody of children belongs to the mother and she cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has the right of custody so long as she is not disqualified.
Maintenance Under Muslim Laws:
Under the Women (Protection Of- Rights On Divorce) Act, 1986 spells out objective of the Act as the protection of the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands.
Sources of Islamic Law:
Various sources of Islamic law are used by Islamic jurisprudence to elucidate the Sharia, the body of Islamic law. The primary sources, accepted universally by all Muslims, are the Qur'an and Sunnah.
Cruelty as a Matrimonial offence under Muslim Law:
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.
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