DIVORCE LAW AMENDMENT AS PER LAW COMMISSION’S RECOMMENDATION IN
2009 – NOT YET DONE
Another case of: - JUSTICE DENAIED when
JUSTICE DELAYED
Groom: Aged about 40yrs, Bride: 41 yrs, Son: Aged about
12yrs
PAST
On or about 1984, I, at the age of 15 years proposed to a 16-year girl – and the story began. I forgot that I lost my father at the age of 11 years, had a sister aged 6 years and my widow mother. I had lots of responsibilities to carry out as the only son of my beloved father. In a romantic mood, I forgot the difference in financial status of the two families. The story could have been entirely different if the girl would have refused me then and there, but she accepted me. But her family was “matured” and they opposed it in every possible way. I had my first big exam (10+) just at door. In spite of broken heart I tried my best and got 70% in the exam.
Thereafter I could realise the real state of affairs, as the girl became totally silent. But I wanted to meet the girl at least once and finally found her in July 1988, in her college, 15 km away from her home. In between, the girl never informed me about her whereabouts. Again on that day the girl agreed to “CARRY ON” the romance for the time being.
In 1994, myself got married after lots of inside drama from her family. Her father could never accept me “from heart” as an
eligible husband of his daughter and he did a “FAVOUR” to us; by
managing to get a job for her, in a school 65 km away from her in- law’s house, just a month before the said marriage. Meantime I managed to make a house with the proceeds received from LIC, obtained after my father’s death. At that time, I was looking after the “small” business left by my father. But her father could never rely on my financial condition and his daughter continued with the service by ferrying daily up and down 130 km. She used to stay very often at her father’s house (close to workplace). She conceived in 1995, but had a miscarriage, and she had two more miscarriages after that in two consecutive years. I lost the joy of being a FATHER and the doctors told specifically that all these miscarriages happened due to her daily strenuous journey. In between, I have decided to take up a job. And my wife finally decided to leave her job, her father also agreed (after some drama again) to the decision. And just after that she became the “proud mother” of our only son. But she could never forgive me for that decision, although she made her own decision always.
I started feeling humiliated for the indirect responsibility for the cause of leaving her job. The misunderstanding began and it increased day after day. I concentrated on my job, and obtained recognition from my employer. I was earning enough to carry on my responsibilities. I built up another floor in the house, since my mother had a long desire for that. I performed my last pending duty by getting my sister married in 2006. I started realising slowly, that I am nothing but a moneymaking machine for my wife. Needless
to say, in between, the marriage lost all its charm in all way. My wife became a “lady” by then and was reasonably satisfied with
her monetary status, and I became a late 30’s gentleman and kept
myself satisfied with my job with an understanding that for the sake of my son, we should stay together.
But from 2007, she started taunting me even in front of my son. I became mentally broke. My health was broken, started suffering from IBS, BP etc. (diseases from tension and mental unrest) and
started thinking about separation and divorce. I had to take sedative regularly. At the same time I was worried about my son’s future. We were sleeping in different rooms from 2008. My wife stopped using Sindoor from 2006. I really wanted to forget all her past begaviours as bad dreams, but I couldn’t. I love my job; it has given me my own identity and before the situation affects my job performance, I wanted to end it. I was in a dilemma till April 2009 (on the death anniversary of my father); when she humiliated me about my parents and myself with some nasty words (“you have some problem in your blood, that’s why I am worried about my son’s future staying with you”). I have finally decided for DIVORCE. Previously, she said many times that she would also prefer the mutual application for Divorce. But this time she disagreed and after discussing with her father, they demanded huge ransom money as “compensation”. She also told me that as divorce is inevitable, one of us should leave the house. I wanted to provide my son at least the same house after separation, which I felt necessary for my son’s upbringing. I shifted to a rented apartment near my place of work in July 2009. She was taking money (whatever needed) from me as usual and delaying the filing
process for any separation, keeping the same humiliation process on. I agreed (also paid till date) to pay all necessary expenses for
maintenance of my son and wife, including the maintenance for the
house where they are still staying with my mother. After all this in
25 years, her father again failed to rely on me. Earlier, I had no money, so they hesitated to get myself married to her. But now, they do not know how much money to claim from me, to spoil me even after Divorce, and that is why they are hesitating to go for a mutual divorce. So I had no other alternative to file the divorce petition in September 2009. I know lots of odds will come from my mother and relatives, as divorce is still considered as a social taboo. Each marriage is between two individual – not between “Ideal Wife” and “Ideal Husband”. I am responsible for my job (doing it last 13 years) as well as my family. I belong to a social class and agree to pay any reasonable maintenance (the only sub
clause was recommended as check measure for divorce for
Irretrievable Break Down) as decided by the Honourable Court.
Contest divorce itself is a very tough decision. Even in my professional life, people are not taking it easily. Still I want to take my own black spots, my failure in the marriage - to the public, at least to the people who matters; cant play hide and seek game anymore. I stopped myself several times; thinking about my son, but he should also better see one parent than parents without love or respect for each other. Perhaps by staying apart both of us can maintain a healthy relation with him.
PRESENT
[ Lots of incidents happened in between: -
In October, I felt sad for my son (but nothing for my wife) and came to my old address. But the “drama” continued. I got seriously depressed after noticing my wife’s behavior. Actually she got
much more “CRUEL”, and silently (sometime with abusive language in a very low voice) she started humiliating me. Finally,
I went to a psychiatrist. I was suffering from a tremendous depression and trauma for my wife’s behavior. After being checked up by 2 more doctors, I am taking anti-depressant drugs
since then. Recently (January, 2009) I got a “fit certificate” from Doctor, but still having medicines. In between, she forced to bring all household goods from my rented apartment and stopped to me
sell the same, although some items (like fridge) were duplicated. I really got spellbound noticing her attitude. She forced me to shift to 1st floor leaving my mother on ground floor. On 1st floor we were sleeping in different rooms .Now I am again residing at my rented apartment. ]
Now it’s already 5 months gone after my filing. The first date was in Dec 2009. On that day I just got another date. And on the next date also, I shall surely get just “another date.”
Is not this the right (if not delayed already) time to address the problem associated with Indian Divorce Act itself? Please note, I am not the 1st to say this, the law commissions already felt this in
1971 and 2009 (reports enclosed). Both “seriously” recommended introducing THE IRRETRIEVABLE BREAK DOWN OF MARRIAGE as another ground for divorce. We have now a “Fault divorce” and mutual divorce. When my partner and me can’t agree on a less affecting thing like “mutual divorce” (which means to break the tie of marriage), how can we STAY TOGETHER in marriage thereafter? All of us know that, staying together (in any form) requires much more agreement between any two people than to stay apart. That means I have to request (or beg or buy) my wife to be free from marriage, just like a sentenced captive from the
Jail. Judiciaries indirectly being used as a tool to bargain terms for divorce, in cases like this. Yes, when there is legal battle between
couple, who are staying separate over a year, the only motto can be
to get a “good bargain” or to harass one spouse by mere non- cooperation. My wife now more “ cruel” in behaviour. She is fighting legally with me – that means she don’t have any
‘emotional” dependence on me. When we talk about our “old tradition of marriage” we often forget that, no “traditional” wife
will come to court to keep or leave her marriage.
I would like to mention another thing. My petition primarily based on “CRUELTY”, as the most suitable “available ground” for divorce. But one has to understand that fairer sex normally don’t act “cruel” by physical nature. Even in some cases “SILENCE” or “ABSENCE OF CORDIAL NATURE” between husband and wife can be cruelty of severe nature, which happened in my case. And when a person like me, who act as a Manager in a reputed company, files the divorce for wife’s cruelty, it can effect my
professional reputation to a great extent. Actually it’s very much humiliating for me to file the petition and fight for that. It’s not explainable to anyone, but one who is in similar condition, can very well understand this. Broken marriage is not a crime and by the recommended amendment, divorce law can address that break with far less complexity. As we all know, nobody or nothing can compel a couple or any two people to live together. Present Divorce Law can delay (and make more bitter) the process of divorce, but can’t really change the direction in this scenario.
Can the Judiciary ask me to point out very private part of my life like marriage? Is not this hampering my basic fundamental right as a citizen? When there is no such law for a “father & son” or “mother & son” relation to be in that tie for ever (although maintenance clause is there), why would be such gross disparity in case of marriage? Are later the more “NOBLE” or “MUST ON” relations than the earlier? Is institution of marriage a serious “offense”, which if I have
done once, can’t be freed till my death? Is wedlock means deadlock?
Now as an effect I have two options –
EITHER to stay in my marriage forgetting about my own negative feelings compromising with my health and peace of mind
OR
To badmouth my son’s mother in the court to prove her fault to get rid of her.
In both cases either my wife or I would be sufferer, not the Honurable Judiciary or the legislative body! Won’t the chances of any healthy relation would decrease or diminish just because of amount of tension created between us during the process, as more dates means more blames or more defense (which is also a part of
attack mechanism)? Even the child would be indirectly sufferer for the bitterness between the parents as helpless witness of the whole event. Breaking up is a hard decision for anyone, but while doing, why we (in the process itself for its duration & nature) need to be nasty instead of peaceful? If a marriage can be done in a one- month notice period, why the divorce would be delayed for YEARS?
I am referring to some very pertinent cases where Honourable Supreme Court of India understood the gravity of the circumstances and granted the decree of divorce by dissolving the marriage, sometimes even after the lower court’s verdict in an opposite direction. In most of the cases, petition filed against wife’s cruelty. Judiciary understood that delaying the process would only increase bitterness between the couple. Whenever we delay something, it affects. In this scenario its affecting unfortunate people like me.
(1) N. G . Dastane Vs S. N. Dastane
DATE OF JUDGMENT : 19/03/1975
BENCH: CHANDRACHUD, Y.V. GOSWAMI, P.K. UNTWALIA, N.L.
CITATION: 1975 AIR 1534 1975 SCR (3) 967, 1975
SCC(2) 326CITATOR INFO : RF 1988 SC 121 (7,10)
(2) SIRAJMOHMEDKHAN JANMOHAMADKHAN HAFIZUNNISA YASINKHAN & ANR
DATE OF JUDGMENT14/09/1981
BENCH:FAZALALI, SYED MURTAZA BENCH:FAZALALI, SYED MURTAZA SEN, A.P. (J)
CITATION:
1981 AIR 1972 1982 SCR (1) 695
1981 SCC (4) 250 1981 SCALE (3)1400
(3) Shobha Rani Vs Madhukar Reddi
DATE OF JUDGMENT12/11/1987
BENCH:SHETTY, K.J. (J), RAY, B.C. (J) CITATION: 1988 AIR 121 1988 SCR (1)1010
1988 SCC (1) 105 JT 1987 (4) 433
1987 SCALE (2)1008
(4) V. Bhagat Vs D. Bhagat
DATE OF JUDGMENT 19/11/1993
BENCH: JEEVAN REDDY, B.P. (J), KULDIP SINGH (J) CITATION: 1994 AIR 710, 1994 SCC (1) 337
JT 1993 (6) 428 1993 SCALE (4)488
(5) Romesh Chander Vs Savitri – DATE OF JUDGMENT 13/01/1995
BENCH: SAHAI, R.M. (J), MAJMUDAR S.B. (J) CITATION: 1995 AIR 851 1995 SCC (2) 7
JT 1995 (1) 362 1995 SCALE (1)177
(6) SMT. KANCHAN DEVI Vs. PROMOD KUMAR MITTAL & ANR.
DATE OF JUDGMENT:03/04/1996
BENCH:ANAND, A.S. (J)
BENCH:ANAND, A.S. (J)FAIZAN UDDIN (J) CITATION:JT 1996 (5) 655 1996 SCALE (3)293
(7) Ashok Hurra Vs Rupa Bipin Zaveri
DATE OF JUDGMENT: 10/03/1997
CIVIL APPEAL NO 1835 OF 1997
(8) G.V.N. KAMESWAR RAO Vs G. JABILLI DATE OF JUDGMENT:10/01/2002
CASE NO.:Appeal (civil) 140 of 2002
BENCH: D.P. Mohapatra & K.G. Balakrishnan
(9) Praveen Mehta Vs Inderjit Mehta
DATE OF JUDGMENT 11/07/2002
CASE NO.: Appeal (civil) 3930 of 2002 (10) A. Jayachandra Vs Aneel Kaur
CASE NO.:Appeal (civil) 7763-7764 of 2004
BENCH: RUMA PAL, ARIJIT PASAYAT & C.K.THAKKER
(11) Durga Prasanna Tripathy Vs Arundhati Tripathy
DATE OF JUDGMENT : 23/08/2005
CASE NO.: Appeal (civil) 5184 of 2005
(12) Vineeta Saxena Vs Pankaj Pandit
DATE OF JUDGMENT: 21/03/2006
CASE NO.: Appeal (civil) 1687 of 2006
BENCH: Ruma Pal & Dr. AR. Lakshmanan
(13) K R MAHESH Vs MANJULA DATE OF JUDGMENT: 11/07/2006
CASE NO.:Transfer Petition (civil) 947 of 2005
BENCH:ARIJIT PASAYAT & S.H. KAPADIA
(14) Kajol Ghosh Vs Sanghamitra Ghosh
DATE OF JUDGMENT: 20/11/2006
CASE NO.: Transfer Petition (civil) 228 of 2004
BENCH: G.P. MATHUR & DALVEER BHANDARI
(15) Rishikesh Sharma Vs Saroj Sharma
DATE OF JUDGMENT 21/11/2006
CASE NO.:Appeal (civil) 5129 of 2006
(16) Sujata Uday Patil Vs Uday Madhukar Patil
DATE OF JUDGMENT: 13/12/2006
CASE NO.: Appeal (civil) 5779 of 2006
BENCH: G.P. Mathur & A.K. Mathur
(17) Mayadevi Vs Jagdhish Prasad
CASE NO.:Appeal (civil) 877 of 2007
DATE OF JUDGMENT: 21/02/2007
BENCH: Dr. ARIJIT PASAYAT & DALVEER BHANDARI
(18) Samar Ghosh Vs Jaya Ghosh
CASE NO.: Appeal (civil) 151 of 2004BENCH: B.N. Agrawal, P.P. Naolekar & Dalveer Bhandari
(19) Satish Sitole Vs Smt Ganga
DATE OF JUDGMENT : 10/07/2008
CIVIL APPEAL No. 7567 of 2004
(20) Suman Kapur Vs Sudhir Kapur
DATE OF JUDGMENT 07/11/2008
CIVIL APPEAL NO.6582 OF 2008
And Last but not the least, THE LANDMARK JUDGEMENT
(21) Naveen Kohli Vs Neelu Kohli
Dt DATE OF JUDGMENT 21/03/2006
CASE NO.:Appeal (civil) 812 of 2004
Some Newspaper articles about our present
Divorce Law: -
“Examining the irretrievable breakdown of marriage as a ground for divorce
Ankit Kejriwal, Prayank Nayak
Irretrievable breakdown of marriage can be defined as such failure in the matrimonial relationship or such circumstances adverse to that relationship that no reasonable probability remains of the spouses remaining together as husband and wife for mutual comfort and support. It is the situation that occurs in a marriage when one spouse refuses to live with the other and will not work towards reconciliation. When there is not an iota of hope that parties can be reconciled to continue their matrimonial life, the marriage can be considered as Irretrievable Breakdown of marriage.
This concept was first introduced in New Zealand. The
Divorce and Matrimonial Causes Amendment Act, 1920
included for the first time the provision for separation agreement for three or more years was a ground for making petition to the court for divorce and the court was discretion whether to grant divorce or not. In England, the gate for this theory was opened up in the case of Masarati v. Masarati, where both the parties to the marriage had committed adultery. The court of appeal, on wife’s petition for divorce, observed breakdown of marriage. The law commission of England in its report said, The objectives of good divorce law are two: one to buttress rather than to undermine the stability of marriage and two, when regrettably a marriage has
broken down, to enable the empty shell to be destroyed with maximum fairness, and minimum bitterness, humiliation and distress. On the recommendation of the Law commission, Irretrievable Breakdown of Marriage was made the sole ground for divorce under section 1 of the Divorce Law reforms Act, 1973. The Matrimonial Causes Act, 1959 of the Commonwealth of Australia provided for divorce on the grounds of breakdown of marriage. In India, breakdown of marriage is still not ground divorce in spite of the recommendation of the Law Commission and various Supreme Court judgments to include breakdown of marriage as a ground for divorce. This paper examines the need to introduce irretrievable breakdown of marriage as a ground of divorce.
Theories of divorce
The provisions relating to divorce are contained in Sec 13 of Hindu Marriage Act, 1955. The Act recognizes two theories of Divorce: the fault theory and divorce by mutual consent. Under the fault theory, marriage can be dissolved only when either party to the marriage had committed a matrimonial offence. Under this theory it is necessary to have a guilty
and an innocent party and only innocent party can seek the
remedy of divorce. However the most striking feature and drawback is that if both parties have been at fault, there is no remedy available.
Another theory of divorce is that of mutual consent. The underlying rationale is that since two persons can marry by their free will, they should also be allowed to move out of their relationship of their own free will. However critics of this theory say that this approach will promote immorality as it
will lead to hasty divorces and parties would dissolve their marriage even if there were slight incompatibility of
temperament. Some of the grounds available under Hindu Marriage Act can be said to be under the theory of frustration by reason of specified circumstances. These include civil death, renouncement of the world etc. In this article we shall
see that how these theories, owing to change in social circumstances and change in attitude towards the institution of marriage had failed to provide full justice in matrimonial
cases.
Judicial opinions
The Supreme Court has adopted a literal view and granted divorce under irretrievable breakdown of marriage. In Ashok Hurra v. Rupa Bipin Zaveri, the husband and wife filed a suit for divorce by mutual consent. But, subsequently wife withdrew her consent. So the petition was dismissed by trial court. The Supreme Court held that We are of the view that cumulative effect of various aspects involved in the case indisputably point out that marriage is dead both emotionally and practically, and there is no chance at all of the same being revived and continuation of such relationship is only
for name-sake. The Honble Court used Article 142 and granted divorce. The Delhi High Court in its full judge bench
decision in Ram Kali v. Gopal Das, took note of modern
trend not to insist on maintenance of an union which was broken and said, ‘it would be practical and realist approach, indeed it would be unreasonable and inhumane, to compel the marriage to keep up the facade of marriage even though the rift between them is complete and there are no prospects of their living together as husband and wife’. In the case of Savitri Pandey v. Prem Chandra Pandey, the Supreme Court reiterated the need for the inclusion of irretrievable breakdown of marriage as a ground for divorce. The
Supreme Court in Manjula v. K.R. Mahesh held, the marriage has irretrievably broken down and there would be
no point in making an effort to bring about conciliation between the parties. In Neetu Kohli v. Naveen Kohli, husband alleged that the wife was quarrelsome and was found in compromising situation with one Biswas Rout. The
wife counter alleged that husband had a concubine. This established that the marriage had broken down irreparably and hence granted divorce on grounds of an irretrievable
breakdown. It also observed that it was high time that this be included as ground for divorce in the Hindu Marriage Act,
1955.
Seventy-first Law Commission Report
The 71st Law Commission of India submitted to the Government on 7th April 1978 dealt with the concept of irretrievable breakdown of marriage. This matter was taken by the Law Commission as a result of the reference made by the Government of India in the Ministry of Law, Justice and Company affairs. The Report points out the fact that the fault and the guilt theories of divorce are not sufficient and cause injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such
a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the
marriage cannot be worked. The marriage has all the outward manifestations of marriage but the real substance is gone, it’s just like an empty shell. The Report unequivocally asserts that in such circumstances it will be in the interest of justice to dissolve the marriage. It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce; the parties alone can decide whether their mutual relationship provides the fulfillment, which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances. The majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. The law cannot turn a blind eye
to such situations, nor can it decline to give adequate response to the necessities arising there from. By refusing to
sever that tie the law in such cases do not serve the sanctity
of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
Other jurisdictions
In most developed nations, the irretrievable breakdown of marriage is recognised as a ground for divorce.
New Zealand
New Zealand was the first country to recognize it, through the Divorce and Matrimonial Causes Amendment Act, 1920
where a separation agreement for three years is a ground for making a divorce petition.
AUSTRALIA
The Matrimonial Causes Act, 1959 of the commonwealth of Australia provided for divorce on the grounds of breakdown of marriage. The Family Law Act (Australia), 1975 considers irretrievable breakdown as sole ground for divorce. If a marriage breaks down, it can legally be ended by the court granting a Divorce.There is only one ground for divorce in Australia - the fact that the marriage has irretrievably broken down. The legal test of irretrievable breakdown is that you have lived apart for at least twelve months and there is no prospect of reconciliation. As far as the court is concerned, this is all you have to establish. The judge won't be
interested in who left whom, or whether one of you is having an affair, or whose 'fault' it was that the relationship broke
down.
Brazil
Presumably due to the influence of the Roman Catholic Church, divorce only became legal in Brazil in 1977. Since January 2007, Brazilian couples can request a divorce at a notary's office when there is a consensus, the couple has been separated for more than a year and have no underage or special-needs children. The divorcees need only to present their national IDs, marriage certificate and pay a small fee to initiate the process, which is completed in two or three weeks.
Canada
Canada did not have a federal divorce law until 1968. Before that time, the process for getting a divorce varied from province to province. In Newfoundland and Quebec, it was necessary to get a private Act of Parliament in order to end a marriage. Most other provinces incorporated the English Matrimonial Causes Act of 1857 which allowed a husband to get a divorce on the grounds of his wife's adultery and a wife to get one only if she established that her husband
committed any of a list of particular sexual behaviours but not simply adultery. Some provinces had legislation allowing either spouse to get a divorce on the basis of adultery.
The federal Divorce Act of 1968 standardized the law of divorce across Canada and introduced the no-fault concept of permanent marriage breakdown as a ground for divorce
as well as fault based grounds including adultery, cruelty and desertion. Under the Divorce Act, 1967-68 it (breakdown of marriage) is clearly recognised as a ground for divorce, apart from the normal fault grounds.
In Canada, while civil and political rights are in the jurisdiction of the provinces, the Constitution of Canada specifically made marriage and divorce the realm of the federal government. Essentially this means that Canada's divorce law is uniform throughout Canada, even in Quebec, which differs from the other provinces in its use of the civil law as codified in the Civil Code of Quebec as opposed to the common law that is in force in the other provinces and generally interpreted in similar ways throughout the Anglo- Canadian provinces.
The Canada Divorce Act recognizes divorce only on the ground of breakdown of the marriage. Breakdown can only
be established if one of three grounds hold: adultery, cruelty, and being separated for one year. Most divorces proceed on the basis of the spouses being separated for one year, even
if there has been cruelty or adultery. This is because proving cruelty or adultery is expensive and time consuming.[5] The
one-year period of separation starts from the time at least one spouse intends to live separate and apart from the other and acts on it. A couple does not need a court order to be separated, since there is no such thing as a "legal separation" in Canada. A couple can even be considered to be "separated" even if they are living in the same dwelling. Either spouse can apply for a divorce in the province in
which either the husband or wife has lived for at least one year.
On September 13, 2004, the Ontario Court of Appeal declared a portion of the Divorce Act also unconstitutional for
excluding same-sex marriages, which at the time of the decision were recognized in three provinces and one territory. It ordered same-sex marriages read into that act, permitting the plaintiffs, a lesbian couple, to divorce.
France
The French Civil code (modified on January 1, 2005), permits divorce for 4 different reasons; mutual consent (which comprises over 60% of all divorces); acceptance; separation of 2 years; and due to the 'fault' of one partner (accounting for most of the other 40%).
Sweden
To divorce in Sweden the couple can file for divorce together or one party can file alone. If they have children under 16 living at home or one party does not wish to get divorced there is a required contemplation period of 6 to 12 months. During this period they stay married and the request must be confirmed after the waiting period for the divorce to go through.
United Kingdom
England and Wales
In England, on the recommendation of the Law Commission, it was made the sole ground for divorce under section 1 of the Divorce Law reforms Act, 1969.
A divorce in England and Wales is only possible for marriages of more than one year and when the marriage has irretrievably broken down. Whilst it is possible to defend a divorce, the vast majority proceed on an undefended basis.
A decree of divorce is initially granted 'nisi', i.e. (unless cause is later shown), before it is made 'absolute'
From beginning to end, if everything goes smoothly and
Court permitting, it takes around 6 months.
There is only one 'ground' for divorce under English law. That is that the marriage has irretrievably broken down. There are however five 'facts' that may constitute this ground. They are:
 Adultery
often now considered the 'nice' divorce.
respondents admitting to adultery will not be penalised financially or otherwise.
 Unreasonable behaviour (most common ground for divorce today )
the petition must contain a series of allegations proving that
the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him/her.
the allegations may be of a serious nature (eg. abuse or excessive drinking) but may also be mild such as having no common interests or pursuing a separate social life ; the courts won't insist on severe allegations as they adopt a realistic attitude: if one party feels so strongly that a behaviour is "unreasonable" as to issue a divorce petition, it is clear that the marriage has irretrievably broken down and it would be futile to try to prevent the divorce.
 Two years separation (if both parties consent)
both parties must consent
the parties must have lived separate lives for at least two years prior to the presentation of the petition
this can occur if the parties live in the same household, but the petitioner would need to make clear in the petition such matters as they ate separately, etc.
 Two years desertion
Five years separation (if only one party consents)
Scotland
About one third of marriages in Scotland end in divorce, on average after about thirteen years. Actions for divorce in Scotland may be brought in either the Sheriff Court or the Court of Session. In practice, it is only actions in which unusually large sums of money are in dispute, or with an international element, that are raised in the Court of Session. If, as is usual, there are no contentious issues, it is not necessary to employ a lawyer. Divorce (Scotland) Act 1976.
It is likely that the two year separation period required for a no-fault divorce with consent will be reduced to one year.
United States
Marital Status in the U.S.
Divorce in the United States is a matter of state rather than federal law. In recent years, however, more federal legislation has been enacted affecting the rights and
responsibilities of divorcing spouses. The laws of the state(s)
of residence at the time of divorce govern; all states recognize divorces granted by any other state. All states impose a minimum time of residence. Typically, a county court’s family division judges petitions for dissolution of marriages.
Prior to the latter decades of the 20th century, a spouse seeking divorce had to show cause and even then might not be able to obtain a divorce. The no-fault divorce "revolution" began in 1969 in California, and was completed in 1985
(New York is the last holdout ). However, most states require some waiting period, typically a 1 to 2 year separation. Fault
grounds, when available, are sometimes still sought. This
may be done where it reduces the waiting period otherwise required, or possibly in hopes of affecting decisions related to a divorce, such as child custody, child support, or alimony.”
Problems & suggestions
However the an attempt to introduce irretrievable breakdown of marriage as a ground for divorce has met with some resistance by women organization on the grounds that husbands would desert their wives and then ask for divorce under breakdown of marriage. Also it has been stated by few that the concept of irretrievable breakdown of marriage is somewhat vague. In answer to first criticism it has to be stated in situation where wife has been deserted it indicates that husband wants to get rid of wife and any continuation of such relationship would not make sense to both the parties to the marriage. However a safety clause can be inserted which would empower the court to refuse divorce if it adversely affects the interests of the children. A provision for maintenance for child and wife should be made. As far as the second objection is concerned, it should be necessary for grant of decree of divorce under this theory that parties had lived separately for reasonably long time say for three years. Living separately can be considered as objective criteria for breakdown of marriage.
The concept of marriage is moving from a sacrament to a contract. The spouse should be granted a right to move out of the wedlock if they cannot live together due to extreme situations. Justice Krishna Iyer in the case of Aboobacker v.
Mam stated while the stream of life, lived in marital mutuality, may wash away smaller pebbles, what is to happen if intransigent incompatibility of minds break up the flow of stream. Since the social conditions prevailing in the country are peculiar, sufficient changes are needed to be made in
the law made so that law is able to ameliorate the conditions of the people who, in absence of required law are craving for
relief and hence would be able to make process of
dissolution less excruciating. A question may be asked that when irretrievable breakdown of marriage has been recognized as a ground for divorce by judiciary why we need an amendment in legislation. This is so because amendment would lay down conditions and safe guards, which should be taken into consideration before the grant of any decree.
It is high time that the Government recognizes the need
of the time and save many couples from the disgrace and humiliation by introducing the irretrievable breakdown of marriage as ground for divorce under Section 13 of the Hindu Marriage Act, 1955.”
“Divorce law in our country belongs to an era that has long elapsed. But the laws have neither kept pace nor do they take into account the altered socio-economic realities of contemporary India. This is highlighted, once more, by the recent controversy surrounding grounds for divorce following Smriti Shinde's petition to the apex court urging it to consider granting unilateral divorce when a marriage has irretrievably broken down. The Supreme Court itself is ambivalent about where it stands on the matter.
Under the Hindu Marriage Act or the Special Marriage Act, there are no provisions that recognise "irretrievable breakdown" or "irreconcilable differences" as grounds for granting divorce when it is not a mutually consensual decision. However, in 2006, the apex court granted divorce in the Naveen Kohli vs Neelu Kohli case, precisely because of irretrievable breakdown of marriage. But, early this year, another SC bench refused to entertain this argument in the Vishnu Dutt Sharma vs Manju Sharma case. It decided to stick to the letter of the law.
This is as good a time as any for the laws governing divorce to be updated. In doing so, the issue must not be looked at
through a moral prism alone. As Indians interface with the
world and are exposed to new ideas and opportunities, there is bound to be a social churn, which impacts on personal affairs like marriage and family relations. Add to this the fact that more women today are economically more independent and assertive of their rights and choices. Divorce must be seen as a social reality, unfortunate though it might be, and not as a social evil.
There are of course legitimate concerns that waiving the mutual consent clause to grant divorce in cases of
irreparable marital breakdown would put women in a
vulnerable position. But that cannot be used as an excuse to deny those who would genuinely benefit from easing the process of obtaining a divorce. As things stand, one has to go through a lengthy, convoluted and extremely stressful procedure to get a divorce. It's time that changed.”
“Feelings of two human beings are involved in a couple’s married life. This could not be patched up by enforcement of law by courts. It is up to the individuals to mend themselves. A horse can be taken to water but it is the horse that should
drink it. However, the law should not deny divorce if the marriage has really broken down. By forcing unity with a hammer in the hand, the law does not serve the sanctity attached to the institution of marriage by religions. If the relationship of husband and wife wrecks beyond repair, what is wrong in recognizing that fact and allow them to live separately. How can one compel a wife or a husband to continue to live with spouse if they have fallen apart? If so compelled they would have to lead miserable life.”
Forget everything else, just imagine a scenario in a bedroom of a couple where a Judge is sitting and deciding about the “cruelty” performed or not among the couple. It must be sounding ridiculous and to avoid such embarrassment, Law Commission suggested the amendment in the divorce law itself through recent Report (Report no 217, November 2008): -
III.RECOMMENDATION
3.1 It is, therefore, suggested that immediate
action be taken to introduce an
amendment in the Hindu Marriage Act,
1955 and the Special Marriage Act, 1954
for inclusion of ‘irretrievable breakdown of
marriage’ as another ground for grant of
divorce.
3.2 The amendment may also provide that
the court before granting a decree for
divorce on the ground that the marriage
has irretrievably broken down should also
examine whether adequate financial
arrangements have been made for the
parties and children
I like to highlight some facts in countries, where NO- FAULT (effectively faster & peaceful) divorce exists: -
 A decline in the rates of domestic violence
(which is obviously of a very high concern in India)
 These laws empower a man or woman in an “abusive marriage” and make it easier to leave and live separate
 Means less conflict during divorce, which means less emotional harm to children whose parents, are divorcing (very much valid in my case)
 Shortens the length of time it takes to obtain a divorce, which, in turn, shortens the amount of time spent in a stressful situation causing physical and mental damage to involved party (as in my case, I am having anti depression drugs as prescribed)
 Financial settlements are based on need, ability to pay and contribution to the family finances, rather than on fault (I am ready to accept any reasonable amount decided by judiciary)
 Helps reduce the heavy caseloads of family courts
(obviously valid for India)
Our legislation is hesitating to amend the law. Nobody wants to disturb the “STATUS CO”. Its human nature to resist any kind of change. A Surgery is done only when that is needed, to avoid some greater pain or loss. If we remember, we in India had customs like “SOTI DAHO PROTHA” (burning the widow with dead husband), which now we can’t even imagine. As we are getting exposed to
the world, we have to ratinolise our thought process and laws, by improvising any outdated system or rule. Staying apart for a
considerable period itself points towards the death of the marriage,
“Divorce” is just the legal nomenclature of that unfortunate incident. No divorce or even cause of any divorce will initiate because of the said amendment, but surely it will decrease the suffering of couple whose divorce already initiated. This amendment is only an addition to the grounds of divorce; no way it can hamper the relationship between a married couple. Mr Moily, honourable law minister of India stated recently :-
‘Moily said that the government may consider an amendment in
the law to make disposal of divorce and custody cases time-bound, as has been done for gram nyayalayas. He said that family courts will be given a target of winding up such cases -- where mutual consent is absent -- within a year of them being filed. He believes litigating couples should be freed quickly from a broken marriage in order to start life afresh.
"There is no need for divorce cases to drag on for years when the marriage has actually broken down. Similarly,children's custody
cases must be decided in a time-bound manner so that there is no uncertainty over their future," Moily said.’
I APPEAL AND PRAY TO ALL :-
RAISE VOICES IN FAVOUR OF THE DIVORCE LAW AMENDMENT
At the end we all must remember-
LAW IS MADE BY THE PEOPLE
LAW IS MADE FOR THE PEOPLE
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CASE NO.:
Appeal (civil) 812 of 2004
PETITIONER: Naveen Kohli
RESPONDENT: Neelu Kohli
DATE OF JUDGMENT: 21/03/2006
BENCH:
B.N. AGRAWAL,A.K. MATHUR & DALVEER BHANDARI
JUDGMENT:
J U D G M E N T
Dalveer Bhandari, J
This appeal is directed against the judgment of the
Allahabad High Court dated 07.07.2003 passed by the
Division Bench in First Appeal No.323 of 2003.
The appellant and the respondent are husband and wife. The appellant has filed a petition under the Hindu Marriage Act, 1955 for divorce. The Family Court after comprehensively dealing with the matter ordered cancellation of marriage between the parties under Section 13 of the Hindu Marriage Act which was
solemnized on 20.11.1975 and directed the appellant to
pay Rs.5 lacs as her livelihood allowance. The appellant
deposited the amount as directed.
The respondent aggrieved by the said judgment preferred First Appeal before the Division Bench of the Allahabad High Court. After hearing the parties the appeal was allowed and the decree passed by the Family Court, Kanpur City seeking divorce and annulment of the marriage was dismissed.
The appellant aggrieved by the said judgment of the High Court had preferred special leave petition under Article 136 of the Constitution of India. This Court granted special leave to appeal to the appellant.
Brief facts which are necessary to dispose of this appeal are recapitulated.
The appellant, Naveen Kohli got married to Neelu Kohli on 20.11.1975. Three sons were born out of the wedlock of the parties. The appellant constructed three factories with the intention of providing a separate factory for his three sons. He also constructed bungalow no.7/36 A for their residence. The parties got all their three sons admitted and educated in a public school in Nanital. According to the appellant, the respondent is
bad tempered and a woman of rude behaviour. After
marriage, she started quarrelling and misbehaving with the appellant and his parents and ultimately, the appellant was compelled to leave the parental residence and started to reside in a rented premises from May
1994. According to the version of the appellant, the respondent in collusion with her parents got sufficient
[censored]://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 23
business and property transferred in her name.
The appellant alleged that in the month of May
1994, when he along with the respondent and their
children visited Bombay to attend the golden jubilee marriage anniversary of his father-in-law, he noticed that the respondent was indulging in an indecent manner and found her in a compromising position with one Biswas
Rout. Immediately thereafter, the appellant started living separately from the respondent since May 1994. The appellant suffered intense physical and mental torture.
According to the appellant, the respondent had withdrawn Rs.9,50,000/- from the Bank Account of the appellant and deposited the same in her account.
The appellant alleged that the respondent got a false first information report registered against him under
Sections 420/467/468 and 471 IPC which was registered as Case No.156 of 1995. According to him, the respondent again got a case under Sections 323/324
I.P.C. registered in the police station Panki, Kanpur City and efforts were made to get the appellant arrested.
The appellant filed a Civil Suit No. 1158/1996 against the respondent. It was also reported that the appellant was manhandled at the behest of the respondent and an FIR No.156 of 1996 was filed by the eldest son at the behest of the respondent against the
appellant in police station, Panki complaining that the appellant had physically beaten her son, Nitin Kohli.
The respondent in her statement before the Trial
Court had mentioned that she had filed an FIR against
the appellant under Section 420/468 IPC at the Police
Station, Kotwali and the respondent had gone to the
extent of filing a caveat in the High Court in respect of the said criminal case so that the appellant may not
obtain an order from the High Court against her filing the
said FIR.
In the same statement, the respondent had admitted that she had filed an FIR No.100/96 at the Police Station, Kohna under Section 379/323 IPC against the appellant.
The respondent had also filed a complaint against the appellant and his mother under Sections
498A/323/504/506 IPC at Police Station, Kohna.
The respondent in her statement had admitted that she had opposed the bail of the appellant in the criminal case filed at the Police Station, Kotwali on the basis of legal advice. In that very statement she further admitted that after the police had filed final report in both the criminal cases relating to Police Station, Kotwali and Police Station, Kohna, she had filed protest petition in those cases.
This clearly demonstrates the respondent’s deep and intense feeling of revenge. The respondent in her statement had also admitted that she had filed a complaint in the Women Cell, Delhi in September 1997. According to the appellant, the respondent had filed a complaint no.125 of 1998 against the appellant’s lawyer
[censored]://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 23
and friend alleging criminal intimidation which was found to be false.
According to the appellant, the respondent filed a forged complaint under sections 397/398 of the
Companies Act before the Company Law Board, New
Delhi and in the affidavit of the respondent she stated
that the appellant was immoral, alcoholic, and was having affairs with numerous girls since marriage. She also called him a criminal, infidel, forger and her manager to denigrate his position from the proprietor to an employee of her company.
The appellant also mentioned that the respondent filed a false complaint in Case No.1365 0f 1988 using all kinds of abuses against the appellant.
On 8.7.1999, the respondent filed a complaint in the Parliament Street Police Station, New Delhi and made
all efforts to ensure the appellant’s arrest with the object
of sending him to jail. The appellant was called to the police station repeatedly and was interrogated by the police and only after he gave a written reply and the matter on scrutiny was found to be false, the appellant with great difficulty was able to save himself from imprisonment.
On 31.3.1999 the respondent had sent notice for breaking the Nucleus of the HUF, expressly stating that the Family Nucleus had been broken with immediate
effect and asking for partition of all the properties and assets of the HUF and stating that her share should be given to her within 15 days. According to the appellant, this act of the respondent clearly broke all relations between the appellant and the respondent on 31.3.1999.
The respondent had filed a complaint against the appellant under Section 24 of the Hindu Marriage Act directing payment of maintenance during the pendency
of the case. This was rejected by the Trial Court and she later filed an appeal in the High Court.
The appellant had deposited Rs.5 lacs on Court’s directions but that amount was not withdrawn by the respondent. On 22.1.2001 the respondent gave an
affidavit before the High Court and got non-bailable warrants issued against the appellant. Consequently, the appellant was harassed by the police and ultimately he got the arrest order stayed by the High Court. The respondent admitted in her statement that she got the advertisement published in the English National
Newspaper ’Pioneer’. The advertisement reads as under :
PUBLIC NOTICE
Be it known to all that Mr. Naveen
Kohli S/o Mr. Prem Kumar Kohli was
working with my Proprietorship [censored] as Manager. He has abandoned his job since May 1996 and has not resumed duties.
He is no more in the employment of the [censored]. Any Body dealing with him shall be doing so at his own risk, his
[censored]://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 23
authority to represent the [censored] has been revoked and none should deliver him orders, cash cheques or drafts payable to the [censored].
NEELU KOHLI
Sole Proprietor
M/s NITIN RUBBERS
152-B, Udyog Nagar, Kanpur
The respondent in her statement before the Court did not deny the contents of the affidavit but merely mentioned that she did not remember whether she called the appellant a criminal, infidel and a forger in the affidavit filed before the Company Law Board.
The respondent did not deny her using choicest abuses against the appellant but merely stated that she did not remember.
The respondent also filed a contempt petition in the
Company Law Board against its order of the Company
Law Board dated 25.9.2000 in order to try and get the appellant thrown out of the little apartment and urged that the appellant be sent to jail.
Before the Family Court, the respondent stated about solemnization of the marriage with the appellant
on 20.11.1975. In her written statement she had denied the fact that she was either a rude or a quarrelsome lady. The respondent also denied that she had mentally, physically and financially harassed and tortured the appellant. She also stated that she never refused cohabitation with the appellant. She also denied
indulging in any immoral conduct. She averred in the written statement that the appellant has been immorally living with a lady named ’Shivanagi’.
The appellant and the respondent filed a number of documents in support of their respective cases. On the basis of the pleadings and the documents, the Additional Principal Judge of Family Court framed the following
issues :-
"1. Whether the respondent treated the
plaintiff with cruelty by registering various criminal cases, getting the news published and initiating civil proceedings?
2. Whether the defendant treated the plaintiff with cruelty by her objectionable behaviour as stated in the plaint?
3. Whether respondent has made false allegation against the plaintiff? If yes, its impact?
Whether in the presence of plaintiff, the defendant displayed her behaviour with
Dr. Viswas Rout which comes in the category of immorality as has been stated in para 11 of the plaint? If yes, its impact?
4. Whether the petition is not maintainable
[censored]://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 23
on the basis of preliminary objections 1 to 3 of the written statement?
5. Whether plaintiff has kept Smt. Shivanagi with him as his concubine? If yes, its
impact?
6. Whether suit of the plaintiff is barred by the provisions of Section 11, C.P.C.?
7. Whether plaintiff is entitled to get the decree of dissolution of marriage against defendant?
8. Whether plaintiff is entitled to get any other relief?"
Issues number 1 & 2 relate to the term ’Cruelty’ and Issue no. 3 is regarding impact of false allegations levelled by the respondent against the appellant. All these three issues were decided in favour of the appellant and against
the respondent. The learned Trial Court came to a definite conclusion that the respondent had filed a very large number of cases against the appellant and got him
harassed and tortured by the police. It also declared him an employee of the factory of which the respondent is a proprietor by getting an advertisement issued in the newspaper. According to findings of the Trial Court, the appellant was mentally, physically and financially
harassed and tortured by the respondent.
The Trial Court framed specific issue whether the appellant had kept Smt. Shivangi with him as his concubine. This allegation has been denied by the appellant. The respondent had failed to produce any witness in respect of the aforesaid allegation and was consequently not able to prove the same. The Trial
Court stated that both parties have levelled allegations of character assassination against each other but failed to prove them.
The Trial Court stated that many a times efforts have been made for an amicable settlement, but on the basis of allegations which have been levelled by both the parties against each other, there is no cordiality left between the parties and there is no possibility of their
living together. According to the Trial court, there was no possibility to reconnect the chain of marital life between the parties. Hence, the Trial Court found that there is no alternative but to dissolve the marriage between the parties. The Trial Court also stated that the respondent had not filed any application for allowing permanent maintenance and Stridhan but, in the interest of justice, the Trial Court directed the appellant to deposit Rs.5,00,000/- toward permanent maintenance of the respondent. The Trial Court also ordered that a decree of dissolution of marriage shall be effective after depositing the payment of Rs.5,00,000/- by the appellant.
Admittedly, the appellant had immediately deposited the said amount.
The respondent, aggrieved by the judgment of the
Principal Judge, Family Court, Kanpur City, preferred the
[censored]://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 23
first appeal before the High Court, which was disposed of by a Division Bench of the Allahabad High Court.
According to the High Court, the Trial Court had not properly appreciated and evaluated the evidence on
record. According to the High Court, the appellant had
been living with one Shivangi. As per the High Court, the fact that on Trial Court’s directions the appellant deposited the sum of Rs.5,00,000/- within two days after the judgment which demonstrated that the appellant was financially well off. The Division Bench of the High Court held that actions of the appellant amounted to
misconduct, un-condonable for the purpose of Section
13(1)(a) of the Hindu Marriage Act. The appeal was
allowed and the Trial Court judgment has been set aside.
The suit filed by the appellant seeking a decree of divorce
was also dismissed.
The appellant preferred a Special Leave Petition before this Court. We have carefully perused the pleadings and documents on record and heard the
learned counsel appearing for the parties at length.
Both the parties have levelled allegations against each other for not maintaining the sanctity of marriage
and involvement with another person. According to the respondent, the appellant is separately living with another woman, ’Shivanagi’. According to the appellant, the respondent was seen indulging in an indecent
manner and was found in compromising position with
one Biswas Rout. According to the findings of the Trial
Court both the parties failed to prove the allegations against each other. The High Court has of course
reached the conclusion that the appellant was living with
one ’Shivanagi’ for a considerable number of years. The
fact of the matter is that both the parties have been living separately for more than 10 years. Number of cases
including criminal complaints have been filed by the respondent against the appellant and every effort has been made to harass and torture him and even to put the appellant behind the bars by the respondent. The appellant has also filed cases against the respondent.
We would like to examine the facts of the case in the light of the settled position of law which has been crystallized by a series of judgments.
In the light of facts and circumstances of this case we would also like to examine the concept of Irretrievable Breakdown of Marriage particularly with reference to
recently decided cases.
Impact of Physical and Mental Cruelty in Matrimonial
Matters.
The petition for divorce was filed primarily on the ground of cruelty. It may be pertinent to note that, prior to the 1976 amendment in the Hindu Marriage Act, 1955 cruelty was not a ground for claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial separation under Section 10 of the Act. By 1976
Amendment, the Cruelty was made ground for divorce.
The words which have been incorporated are "as to cause
[censored]://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 23
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". Therefore, it is not necessary for a party claiming divorce to prove that the cruelty treatment is of such a nature as to cause an
apprehension \026 reasonable apprehension that it will be
harmful or injurious for him or her to live with the other party.
The Court had an occasion to examine the 1976 amendment in the case of N.G. Dastane v. S. Dastane [(1975) 2 SCC 326: AIR 1975 SC 1534], The Court noted that "....whether the conduct charges as cruelty is of
such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent".
We deem it appropriate to examine the concept of
’Cruelty’ both in English and Indian Law, in order to
evaluate whether the appellant’s petition based on the ground of cruelty deserves to be allowed or not.
D. Tolstoy in his celebrate book "The Law and Practice of Divorce and Matrimonial Causes" (Sixth Edition, p. 61) defined cruelty in these words:
"Cruelty which is a ground for dissolution of marriage may be
defined as willful and unjustifiable conduct of such a character as to cause danger to life, limb or health,
bodily or mental, or as to give rise to a reasonable apprehension of such a danger."
The concept of cruelty in matrimonial matters was aptly discussed in the English case in Bertram v. Bertram [(1944) 59, 60] per Scott, L.J. observed:
"Very slight fresh evidence is needed to show a resumption of the cruelty,
for cruelty of character is bound to
show itself in conduct and behaviour. Day in and day out, night in and night out."
In Cooper vs. Cooper [(1950) WN 200 (HL)], it was observed as under:
"It is true that the more serious the original offence, the less grave need
be the subsequent acts to constitute
a revival."
Lord Denning, L.J. in Kaslefsky v. Kaslefsky [(1950)
2 All ER 398, 403] observed as under:
"If the door of cruelty were opened
too wide, we should soon find ourselves granting divorce for incompatibility of temperament. This is an easy path to tread,
especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperiled."
[censored]://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 23
"In England, a view was at one time taken that the petitioner in a matrimonial petition must establish his
case beyond a reasonable doubt but in Blyth v. Blyth
[(1966) 1 All ER 524, 536], the House of Lords held by a majority that so far as the grounds of divorce or the bars to divorce like connivance or condonation are concerned, "the case like any civil case, may be proved by a preponderance of probability".
The High Court of Australia in Wright v. Wright [(1948) 77 CLR 191, 210], has also taken the view that "the civil and not the criminal standard of persuasion applies to matrimonial causes, including issues of adultery". The High Court was therefore in error in holding that the petitioner must establish the charge of cruelty "beyond reasonable doubt". The High Court adds that "This must be in accordance with the law of evidence", but we are not clear as to the implications of this observation."
Lord Pearce observed: "It is impossible to give a
comprehensive definition of cruelty,
but when reprehensible conduct or departure from the normal standards of conjugal kindness causes injury to health or an
apprehension of it, it is, I think,
cruelty if a reasonable person, after taking due account of the
temperament and all the other
particular circumstances would consider that the conduct complained of is such that this spouse should not be called on to endure it.
* * * I agree with Lord Merri
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