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In The Changed Social And Economic Scenario Does Wife's Demand For A Separate Residence Amount To An Act Of Mental Cruelty?

In the changed Social & Economic Scenario does Wife's demand for a separate residence amount to an act of mental cruelty?

It is common knowledge that women are no longer illiterate and are not just confined to their homes. With women empowerment taking strides in the last decade, women today are no longer subservient to men. They have equal opportunities in all walks of life- education, profession, jobs, sports & politics. As a result thereof, they command equal 'Respect' in the society.

Our Constitution has guaranteed them ' Equality' and there can be no discrimination on the basis of Gender. In changed social, political & economic scenario, the interpretations of law concerning women have also been updated. It is imperative that legal thinking has also to rise further to the next level above the narrow technical interpretations & Precedential bondage.

Indian society was known for its unique Joint family system. Large families lived together in havelis, big houses, both in villages & cities, wherein the male members earned livelihood & the women were responsible for rearing the children & cattle and maintaining the house. The wife had no authority or right to demand a separate living with her husband & young children as subsistence without the joint family was inconceivable. But can the modern wife, in metros, cities, towns or villages be shackled down on the altar of the joint family to live together with the 'kutumb'? Is dreaming of 'Individual' living outside the nucleus family a sin/crime or mental cruelty?

Before deliberating on the subject, it would be trite to understand and comprehend the concept of 'mental cruelty'.

The term "mental cruelty" has been defined in the Black's Law Dictionary [8th Edition, 2004] as under:
Mental Cruelty: As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse.

The concept of cruelty has been dealt in Halsbury's Laws of England [Vol.13, 4th Edition Para 1269] thus:

The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value.

The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits.

In 24 American Jurisprudence 2d, the term "mental cruelty" has been defined as under:
"Mental Cruelty as a course of unprovoked conduct toward one's spouse which causes embarrassment, humiliation, and anguish so as to render the spouse's life miserable and unendurable.

The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse."

I am reminded of the famous case of the Apex Court in the case of Narendra Vs. K. Meena reported in 2016 (9) SCC 455 wherein the Apex Court, in the peculiar facts & circumstances of the case, held that persistent effort of the wife to constrain her husband to be separated from the family constituted an act of 'cruelty'.

The brief facts of the case are that the Respondent/wife wanted the Appellant/husband to leave his parents and other family members and to get separated from them so that the two could live independently. It is relevant that the matter relates 3 decades back. The Apex Court observed thus:

11.The Respondent wife wanted the Appellant to get separated from his family. The evidence shows that the family was virtually maintained from the income of the Appellant husband. It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family.

A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meager income. In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage.

She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her. In the instant case, upon appreciation of the evidence, the trial Court came to the conclusion that merely for monetary considerations, the Respondent wife wanted to get her husband separated from his family.

The averment of the Respondent was to the effect that the income of the Appellant was also spent for maintaining his family. The said grievance of the Respondent is absolutely unjustified. A son maintaining his parents is absolutely normal in Indian culture and ethos. There is no other reason for which the Respondent wanted the Appellant to be separated from the family - the sole reason was to enjoy the income of the Appellant.

Unfortunately, the High Court considered this to be a justifiable reason. In the opinion of the High Court, the wife had a legitimate expectation to see that the income of her husband is used for her and not for the family members of the Respondent husband.

We do not see any reason to justify the said view of the High Court. As stated hereinabove, in a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the Respondent wife.

In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the Respondent wife to constrain the Appellant to be separated from the family would be torturous for the husband and in our opinion, the trial Court was right when it came to the conclusion that this constitutes an act of 'cruelty'."

The said judgment was followed in scores of judgments of various High Courts. The High Court's consistently held that persistent demand of the wife that she would not live with her in-laws, following the dictum of the Apex Court in Narendra Vs. K. Meena, tantamount to cruelty.

It would be trite to refer to a recent judgment of the Jharkhand High Court in Criminal Revision No.172 of 2022 titled Rudra Narayan Ray Versus Piyali Ray Chatterjee & others decided recently on 22/01/2024. Following the above dictum of the Apex Court, the High Court furthered the proposition thus:

20. Herein, it would be pertinent to quote the relevant text of "Introduction of Family Life Education" written by Prof. Teresa Chacko, Cochin, page No.71 to 85 read as under:
Role Expectations in Marital Life: Shakespeare wrote that the world is a stage upon which men and women are acting out the drama of life. The same thing can be said of marriages. There are many cultural and social expectations about appropriate behaviour for males and females.

The goals, purposes and functions in marriage can be achieved only when each family member plays his or her particular role. The industrial revolution, emancipation of women, urbanization, employment of women, preoccupation of men with career etc. are some factors which have left their imprint upon family roles.

Leadership role:
The man is also entrusted with the role of leader and supervisor of all family endeavours. For the child, his/her first heroes will be his/her own parents, particularly the father who holds the position of authority in the family. Role as a husband: As a husband he has the role of sex partner, companion, confidant, decision maker and accountant. He must train himself to be a better observer so that he can be of great help to his wife. He must notice his wife and praise her performance and ability. He should also give emotional support to her.

Traditional roles: The woman is biologically, psychologically and emotionally prepared for motherhood. She is trained to carry out the roles of birth, nurture, protection, gratification and giving comfort to children and men. In the life of woman, these functions are given priority over all other engagements. According to the traditional role expectations, she is oriented towards rearing capable children, helping her husband to achieve the goals of the family and being useful to the community in which she lives. But are all women satisfied with this role concept? Talented and ambitious women, in addition to these functions, want to develop their special aptitudes.

Role as wife: As a wife, she is expected to be an affectionate companion, a good sex partner, confidant and social secretary of her husband. She has to take charge of the social life of the couple. She should develop interest in her husband's work. She should be able to
understand his world of activities. Moreover, she should be able to give intellectual companionship to her husband.

Reasons for Role Changes
Today family roles are changing largely because they have become less appropriate for the social and economic realities of the modern world. Most of the families are small in size and more women are employed. We can see changes in the styles of femininity as well as masculinity. The man is not maintaining the image of the brave, strong, tough, aggressive male of the past.

The gentle, passive, submissive female is a character of yesterday. Opportunities are open for both sexes in education, work and family life. So greater flexibility is required in the role expectations of husbands and wives.

Woman's expectations of man's role
A woman still expects many of these traits in a man. Many women still want the male to be strong and at times they want to depend upon males. They still admire and feel safe with a strong male. The man has to exhibit some courage and strength to meet the role expectations of his wife.

What do husbands expect from the wife?
The wife should become the companions of the husband. She is expected to give love and affection to him. He expects an equal sharing of responsibilities. He expects cooperation, support and recognition for his efforts.

Reasons for Role Conflicts:
No two persons are exactly alike. There are differences in attitudes, behaviour and beliefs. Husbands and wives gather different role concepts from their families. For success in marriage, each one has to produce in his/ her personality some resemblance of the partner's image of a man/woman.

They have to change their values, attitudes and behaviour to fit in with the new role concepts. Role conflicts are brought about by the strain put upon the wife in meeting the role expectations of her husband and his family and in adapting to the demands of his work. The husband also faces problems when his wife is having an established role in her life.

How can we resolve role conflicts?
In marriage, spouses are involved in the lives of each other. Hence disagreement in some areas is inevitable. How couple manage conflicts is more important.

Conflict Management
There are many ways in which conflicts can be managed by the couple. In the first method, compatibility can be achieved when one partner is dominant and he/she attempts to get the other person comply with his/her desires and the partner agrees and accepts the complementary role. But when the disagreement is very strong and both partners are not willing to give in, tension is intensified. They may emotionally withdraw from each other's relationships without finding out an actual solution for the problem.

Personality factors in relation to role expectation
���Success in marriage can be attained when the couple respects the characteristic qualities which nature has given to each of them and when they adhere to their respective roles.
Relations with in-laws
Marriage joins not only the man and woman together, but their families also. Hence, in-laws are the new relatives acquired through marriage. You may wonder whether in-laws are bringing problems to every marriage.

The relationship with in-laws may bring about problems in some marriages. The circumstance in which each person lives is different. If the son-in-law or daughter-in-law fits in with the expectations of the respective family he/she will be accepted easily. Otherwise, problems may arise."

21. In view of the above in the case in hand, the issue between the husband and wife is that the wife is not agree to serve the old aged mother-in-law and maternal grandmother-in-law, who are respectively 75 years and 95 years old. She creates pressure upon her husband to live separate from his mother and maternal grandmother. It is the very reason; this ground is not found sufficient that's why the legislature while enacted under Section 125(4) of the Code of Criminal Procedure has provided one of the grounds for denial the maintenance, if wife refuses to reside with the husband without any reasonable cause.

22. In Constitution of India under Article 51-A of Part IV-A, wherein the fundamental duties of the citizen of India are enumerated in Clause (f), it is provided 'to value and preserve the reach heritage of our composite culture'. It is the culture in India to serve the old aged mother-in-law or grandmother-in-law as the case may by the wife in order to preserve this culture. It was obligatory on the part of wife to serve her husband's mother and maternal grandmother and not to insist for unreasonable demand to live separate from his old aged mother-in-law and the maternal grand mother-in-law. Accordingly, the point of determination No.1 is decided in favour of the petitioner-husband and against the opposite party No.1-wife.

23. Herein, it would be pertinent to quote the lines of Yajurveda, which read as under:
"O woman you do not deserve to be defeated by challenges. You can defeat the mightiest challenge. Defeat the enemies and their armies you have valour of thousand." (Yajurveda 13/26)
  1. Herein, it would also be pertinent to quote the lines of Rigveda:
    "O brilliant woman, remove ignorance with your bright intellect and provides bliss to all." (Rigveda 4/14/3)
  2. Herein, it would also be pertinent to quote the lines of Manu:
    "Where the women of the family are miserable, the family is soon destroyed, but it always thrives where the women are contended."(Manusmriti 3:57)
  3. Herein, it would be pertinent to quote the lines of Brihat Samhita:
    In no world has Brahma created a gem superior to woman (stri), whose speech, sight, touch, thought, provoke pleasurable sensations. Such a gem in the shape of a woman is the fruit of a person's good, deeds, and from such a gem a person obtains both sons and pleasure. A woman, therefore, resembles the goddess of wealth in a family, and must be treated with respect, and all her wants must be satisfied. (Brihat Samhita 73:4)
With due respect to the Apex Court & the Jharkhand High Court, times have changed and so have changed the role of women. They are not only homemakers but Nation Builders. Their role cannot be undermined and limited to just their homes. Law has to come out of conservative & orthodox thinking and treat women with equality & respect.

It would be trite to refer to a recent case of Calcutta High Court in Jharna Mandal vs Prashant Kumar Mandal decided on 31 March, 2023 in F.A. No. 25 of 2010. The Court broadened it's outlook & recognized the status of women & held thus:

"Where husband lives separately the wife can very well demand that she will live with the husband at his place of residence. If she does not get proper respect, status and treatment from her parents-in-law or other relations of the husband, she can stay at a place of her choice away from such relations but in absence of any justifiable reason wife's demand for a separate residence may amount to obstinacy and an act of mental cruelty. Wife's insistence on separate residence per se cannot constitute a mental cruelty unless it is found to be totally unnecessary, unreasonable, inhuman and unfair."

The Calcutta High Court took note of Kakoli Das v/s Dr. Asish Kumar Das, AIR 2003 Cal 287 wherein gender equality has been proclaimed. It was observed thus:

46. Gender equality is equality for both the spouse. No spouse enjoys predominance and can impose his / her decision or desire on the other. Where desires and demands of two spouses move in opposite directions and they fail to reconcile each of them should be prepared to accept the inevitable consequence of break-down of marital ties.

When such disputes concerning respective rights, liberty, and obligation come to the Court of law for adjudication those are to be decided on the touchstone of reasonableness of conjugal living in the context of the society they live in. A reasonable demand or refusal to meet an unreasonable and obstinate demand does not constitute an act of mental cruelty.

With due respect the judgment & observations of the Apex Court in Narendra Vs. K. Meena reported in 2016 (9) SCC 455 (supra) do not find support from the Historic Constitution Bench judgment of the Apex Court in the case of Joseph Shine vs Union of India 2019 (3) SCC 39, wherein need & implementation of Gender Equality was emphasized and observed that 'a woman cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity. And, it is time to say that a husband is not the master. Equality is the governing parameter.' The Court univocally observed thus:

"The beauty of the Indian Constitution is that it includes 'I' 'you' and 'we'. Such a magnificent, compassionate and monumental document embodies emphatic inclusiveness which has been further nurtured by judicial sensitivity when it has developed the concept of golden triangle of fundamental rights. If we have to apply the parameters of a fundamental right, it is an expression of judicial sensibility which further enhances the beauty of the Constitution as conceived of.

In such a situation, the essentiality of the rights of women gets the real requisite space in the living room of individual dignity rather than the space in an annexe to the main building. That is the manifestation of concerned sensitivity. Individual dignity has a sanctified realm in a civilized society. The civility of a civilization earns warmth and respect when it respects more the individuality of a woman.

The said concept gets a further accent when a woman is treated with the real spirit of equality with a man. Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution.

Any provision that might have, few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux of time and growing constitutional precepts and progressive perception. A woman cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity. And, it is time to say that a husband is not the master. Equality is the governing parameter.

All historical perceptions should evaporate and their obituaries be written. It is advisable to remember what John Stuart Mill had observed:
The legal subordination of one sex to another - is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other.
  1. We are commencing with the aforesaid prefatory note as we are adverting to the constitutional validity of Section 497 of the Indian Penal Code (IPC) and Section 198 of the Code of Criminal Procedure (CrPC).
  2. At this juncture, it is necessary to state that though there is necessity of certainty of law, yet with the societal changes and more so, when the rights are expanded by the Court in respect of certain aspects having regard to the reflective perception of the organic and living Constitution, it is not apposite to have an inflexible stand on the foundation that the concept of certainty of law should be allowed to prevail and govern. The progression in law and the perceptual shift compels the present to have a penetrating look to the past."
It is time for the Courts to abide the spirit of the Constitution and the dictum of the Constitution Bench in Joseph Shine (supra) and treat 'women' honourably and set stage for Gender Equality. The interpretation & definition of 'Mental Cruelty' should accordingly be modified/amended and Section 125(4) of the Code of Criminal Procedure should also be suitably interpreted in accordance with the changing social scenario in modern society and more importantly abide the evolution of law declaring Rights & Individuality of women.

Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]

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