Introduction
Cruelty, the etymological the latin root of cruelty is crudelis, rude, unfeeling or hard-hearted or bloody and synonyms to this word is brutality, savagery, savageness, inhuman, barbarism , barbarousness if looking at the dictionary then it will give similar meaning i.e wildness, uncivilized a high level of cruelty which itself is so devastating to hear. So what would happen if somebody has all this feeling it would lead to mass killing, genocide, rape and catastrophic.
Some psychologists say that if something went wrong in the empathy circuit of human’s brain , the cruelty starts and some people are learning that behaviour through their families and their surroundings. And this whole process of wrong empathy circuits is called empathy erosion.
We can say that cruelty has various types and various form by looking at the history how the world has suffered various cruelty like :
Most tragic inhuman like Pol pot’s regime (1975-1979) 1.5 – 2 million deaths.
Irish potato famine (1845- 1849) 1 million deaths.
Rwandan genocide ( 1994) 1 million death.
Nanking massacre ( 1937- 1938) which is said to be one of the worst form of cruelty where the killing and rape crossed all boundaries of cruelty it was highest form of cruelty.
This are the high level and broad meaning of cruelty which is related to mass killing, raping ,genocide, inhuman, uncivilized and wildness etc.
It can occur anywhere whether it is fight between countries, whether fight between people, whether fight between families, whether fight between husband and wife . If it is happening in families then it is like cruelty against wife, cruelty against women, cruelty against girl, cruelty against child will occur.
Both cruelty have the same meaning but only difference is that in high level cruelty there is mass killing , raping is done in mass level. But in this family level cruelty the cruelty is not that mass level it is within a particular family or society. So we will be talking about this cruelty i.e cruelty against females in India. It also has a provision in our Indian penal code i.e section 498A
Where the cruelty is also used as a ground for divorce.
SECTION 498A CRUELTY
Definition
According to sec 498A of the Indian penal code which defines husband or relatives of husband of woman subjecting her to cruelty.
Essential elements of this section 498A are:
There must be a married woman
She must be subject to cruelty
Such cruelty is done by husband of woman or by the relative of her husband
Section 498A also given the explanation on cruelty:
That any wilful act that leads to woman suicide or cause grave injury or danger to life, limb or health
Whether mental or physical
Any harassment which is related to meet unlawful demand for any property or valuable security
If found guilty imprisonment for a term may extend to 3 years & shall also be liable to fine.
Section 498A was introduced in 1983 to safeguard the rights and empowerment of women.
This was inserted by criminal law (second amendment act 1983) , section 113 -A of evidence act 1872 presumption as to abetment of suicide by married woman was also inserted by this criminal law (second amendment act 1983) act and section 198A of criminal procedure code also inserted where a court can take cognizance of offence upon police report or upon a complaint by party or woman’s parent, brother ,sister ,etc and offence is non bailable.
before this amendment act there was already the dowry prohibition act 1961 was there and already having punishment imprisonment for a term not be less than five years and with fine not less than fifteen thousand
later on the lawmaker also inserted sec 304 B dowry death and 113 B presumption as to dowry death
Presumption defined
this section 113- A and section 113- B in both section presumption is there because according to the principle of criminal jurisprudence there is law in which burden of proof is always on the prosecution to establish beyond a reasonable doubt but the lawmaker move this principle from normal principle and made the law more severe so that accused cannot move away from this and shifted the burden of proof on husband side means presumption evidence in favour of prosecution and presumption can be rebutted by the husband.
Apart from this there is already so many laws for the protection of woman, girl, child
Like:
The immoral traffic (prevention) act 1956
The dowry prohibition act 1961
The commission of sati (prevention)act 1987
Protection of women from domestic violence act 2005
The sexual harassment of women at workplace (prevention, prohibition and redressal) act 2013
The criminal law (amendment) act 2013
The indecent representation of woman (prohibition) act 1986
Apart from all this law Indian penal code , criminal procedure code and Indian evidence act is also in favour of protection of women.
Data related to violence
After having so many laws to protect and prevent harassment and exploitation . why women are still not secure. What is the reason ?
There is some data which says that according to the national family health survey (NFHS) at least in every five married women in India have suffered domestic abuse since the age of 15. The most commonly reported kinds of violence against women were harsh language (80%), beating (63%), forcing women back to their family home (52%) and threatening to force them out.
According to UNFPA 40% of women in India face domestic violence & abuse from their male partner.
Apart from this India is a country were we worship female goddesses and yet to fail to protect woman from these crimes.
Supreme court view on cruelty
According to law laid down by the supreme court through various judgement that there are three types of cruelty i.e
First one is physical cruelty- physical cruelty is a cruelty in which causing pain or hurting physically to the spouse.
Second one is mental cruelty- mental cruelty is a cruelty in which giving pain and hurting to a spouse by living with others.
Third one is legal cruelty- the concept of legal cruelty changes according to the change and advancement of social concepts, this feature has been obtained by the legislature that second marriage is sufficient ground for separation and maintenance.
Case law
In Shobha rani v. Madhukar reddi(1988)
This wife alleged his husband that his family is demanding dowry. In this supreme court stress on the word “cruelty” that it has no fixed definition.
As per the apex court “cruelty” is the conduct in relation to in respect of matrimonial in respect of matrimonial obligation.
It is the conduct which adversely affects the spouse both mentally and physically.
Samar Ghosh v. Jaya Ghosh (2007)
Mental cruelty is a state of mind or feeling done by behaviour of one spouse to another. Unlike physical cruelty, mental cruelty is difficult to prove through direct evidence. But a matter of inference is drawn from the facts and circumstances of the case.
Facts and circumstances like- feeling of anguish, disappointment, frustration.
The apex court concluded that “no uniform standard can ever lead to determine mental cruelty.” The court further concluded that there is no straight jacket formula of fixed parameters for determining mental cruelty in matrimonial matters.
Mere trivial irritational, quarrel, normal wear and tear of the married life happening in day to day life are not adequate for grant of divorce.”
Landmark judgement
In the landmark judgement of Mayadevi v. Jagdish Prasad ( Feb 2007) , Supreme court held that any kind of mental cruelty faced by either of the spouses, not just the woman but men as well can apply for a divorce on grounds of cruelty. In this case the respondent(husband) filed an application of divorce after a repeated course of cruelty inflicted by his wife for not providing food to him and his children and blamed the husband and his family instead. Hence a man is also entitled to divorce if he is inflicted with any kind of cruelty.
The Supreme court issued a list of examples depicting mental cruelty in the case of Samar Ghosh v. Jaya Ghosh (2007).
This article is written by Rajdeep Hembram of Law College Dhanbad.