Introduction Marriage in India is considered as a sacrament and pious.
The bride and groom take vows to live together for the rest of their lives, butsometimes the marriage suffers a major setback due to various psychological andemotional imbalances. No marriage is free from disputes but the problem ariseswhen there is a greater degree of disagreement between spouses which disturbstheir relationship to a greater extent resulting into ego clashes betweenhusband and wife. When the ego or sense of respect of a person is hurt, everyperson reacts in a different form which comes out in form of cruelty. An actmay be cruel or not, depending upon its severity and nature. There are a numberof marriages united by astrology, divided by judgment where the court hasgranted divorce by blending the concept of cruelty with irretrievable breakdownof marriage1. The human psychology plays an important role indetermining the human conduct and behavior which has an inseparable nexus with’cruelty’.Any human element within the ambit of what may be calledas a family or an ideal relationship shall be deemed to be called as the sourcepoint of cruelty.
Understanding the psychology of the other half of anyrelationship undergoing mental or physical cruelty can help reaching the rootcause of cruel behavior or conduct. Stress should be laid down to preserve theinstitution of marriage2which could be achieved only by knowing the problem and finding an alternativepeaceful solution to it through mediating and counseling rather than opting fordivorce. Todefine cruelty precisely is not possible. It is nothing other than a person ina dominating position exploiting a person in a weaker position through physicalforce or mental assault. And this is all due to fundamental issue ofpossessiveness, dominance, lack of understanding, issue of blind power last butnot the least undue influence.Noproblem is a problem without a solution and even the fundamental problemsbehind cruelty can be dealt through a “DIALOGUE”, i.e mediation, counseling andin hard cases negotiation.TheHindu Marriage Act, 1955 lays down cruelty as a ground for divorce undersection 13(1)(1-a), there is no clear definition laid down defining cruelty forthe first time the term cruelty was defined in case russel v.
russel3 In Suman Singh v.Sanjay Singh4Where husband seeks divorce from wife on the ground of cruelty done in somepast incidents the court in this case held that some isolated incidents thattook place long in past cannot become a subsisting cause of action to seekdivorce after 10 years. Incidents should be recurring in nature and should havenot been compromised by the other spouse in past. Causes of Cruelty– Any kind of family dispute arises out of a cause and hasan effect in form of cruelty. It need not be a single cause but because of multiplereasons which can be segregated broadly as –Spouse rivalry –Cruelty cannot be measured like dimensions of body. What is cruelty in one casemay not be the cruelty in other circumstance and largely depends upon the typeof life the parties are accustomed to or their economic and social conditionsand their culture and human values to which they attach importance.
5 Whenthe ideologies don’t match there are chances of rivalry arising among the twodestroying the relationship slowly from the root. Spouse rivalry can be due toemotional distress, financial problems, sexual desires, dowry demands, non –cooperation, lack of understanding, or even some nuance reasons. Such reasonscreates disturbance in their life and causes various psychological imbalanceand results in causing cruelty upon the other spouse either mentally orphysically.
A small incidence of neglect or indifference may notlead to rivalry and become a reason for cruelty, but when such incidences donerepeatedly affecting the other spouse physically and mentally will amount tocruelty. The Supreme Court of India while exercising inheritpowers under Article 142 has laid down precedents in various matters relatingto spouse rivalry where the marriage is broken irretrievably and there is nochance of reconciliation between the parties.(i) In RomeshChandra v. savitri6,in this case the husband was not dutiful and did not fulfill hisresponsibilities towards the child. He contributed nothing towards theupbringing of the child and therefore the marriage was dead and continuance ofit would amount to cruelty. The rivalry between spouses was for more than 25years and finally decree of divorce was passed.
(ii) PraveenMehta v. Inderjit Mehta7,high degree of cruelty was inflicted upon husband by the wife. The partieslived separately for 10 years and finally awarded divorce as their marriage wasdead.SupremeCourt recently in Narendra v. K.Meena8held that continuous effort of women asking the husband to separate fromhis parents will amount to cruelty.
The wife was highly suspicious in natureand imposed various allegations on husband for extra marital affair andrepeatedly asked to separate from his family, such behavior was torturous thehusband and resulted in mental cruelty. The cases of cruelty arise not only because of theactions of other spouse but the actions of any of the spouse children by aprevious marriage. In Hall v.
Hall9,cruelty caused by husband in an indirect manner by going against the marriageagreement and keeping the children from previous marriage at home, thesechildren behaved in a ruthless manner, and on one occasion beat her, but inthis case divorce was not granted since the child was a minor and the husbandrepeatedly asked the child not to do so and took necessary steps to save themarriage. Such rivalry among spouses lead to irretrievable breakdown ofmarriage where it becomes impossible for one spouse to live with other and thecourt has to grant decree of divorce as the purpose of marriage is not served. Sibling rivalry- A marriage becomes stronger when a child is born, boththe husband and wife has equal responsibility to look after their children.Sometimes parental attention is given only to one child because of its gender,capabilities and the other child feels neglected. The fact that parentsknowingly or unknowingly have a favorite child has been proved in an Englishsurvey whereas; the parents are not ready to accept the same. Such childdiscrepancies in a parent’s treatment can create negativity in siblingrelationship10and from an early age itself the feeling of jealousy, anger, distress andbitterness is developed. Succession, Inheritance of property, unequal estatedistribution creates major disputes among siblings. Prior to Hindu Succession Act, 2005 females were nottreated as coparcener; therefore she cannot become karta as well.
Courts in Indiahave given diverse views regarding female acting as Karta. In the landmark judgment Mrs. Sujata Sharma v. Shri Manu Gupta11after 2005 amendment act, inequality was removed by allowing female to be kartaof family. The Indian society still favors male than females, and male membersof the family are given more importance and power, though there has beenchanges in family structure but the fact cannot be denied that India stillremains a male dominant society. Sibling rivalry may also arise due to disputeamong siblings on who will become the head of family after the death of father.
Lack of love, cooperation and understanding amongbrothers and sisters develops resentments even among their martialrelationships like continuous taunting by wife over having fewer shares in theproperty, thereby causing cruelty. Sometimes because of child favoritism mentalagony is developed between the partners. Cruelty towardsparents – Parents will always think of well – being of theirchildren and would want to see their children grow, prosper and they will doanything unconditionally for their welfare. Usually no parent asks for favorsfrom their children but when in an old age they expect care, help and attentionfrom their children, in our Hindu society it is a son’s pious obligation tomaintain and take care of his parents at an old age. Usually upon gettingmarried there is a change between parent and sons relationship and there isneglect towards the old age parents by son or torture by daughter in law bycontinuous harassment towards them. Various courts have recognized that sonshave responsibility towards their old aged parents, and if wife persistently asks husband to separate from hisparents will also constitute as act of cruelty12 Rajini v.
Sandeep13the wife imposed false allegations of dowry on husband and his parents whereasthe marriage was concluded in a very simple manner without asking for anydowry. Earlier the wife lived with husband and his family but later shecontinuously forced the husband to live separately and purchase a house for herdespite knowing that he is in a weak financial position. The court held that forcingthe husband to live separately from his parents will amount to cruelty and issufficient ground for divorce.
Vijay Kumar Guptav. Mool Chand Gupta14the sons abused and tortured their father for not giving any share to them inthe property and transferring the house in favor of their mother in his will. Role of marriage counselors and mediators – Thehuman psychology is Wide Ocean where there are goldfish, poppies, sharks andwhales if the whales are larger dreams and ambitions, the goldfish and poppiesare happiness in abundance. Whereas the sharks are methods to rule the mindwherein till greed comes in front of them they would not respond. The mediatorhas to rule the mind of both the parties and play with the psychology of peoplein such a manner as to make them understand the ultimate object is preservationof family.
Whatthe human mind fails to understand is the very factor of understanding itselfwhich is highlighted in mediation, counseling and negotiation, where the humanmind is given an option to realize what it actually wants. The human mindbecomes more subtle and more responsive.Therole of Alternative Dispute Resolution can be traced back to historic times.The practice has been continuing even before the British introduced the conceptof formal court system. The disputes of various families were decided amicablyby the elders and respected people of the village collectively called as thepanchayats.
Slowly and gradually along with the establishment of courtsmediation especially with respect to family matters has been given a greaterimportance. Theart of mediation requires the mediator to understand the source of the problem,the source of the psychology of problem, the source of the demand made by boththe sides. Last but not the least the ability to find a solution by overcomingpsychological barriers.Ina mediation traditionally both the parties are brought together and made tospeak out their problems which of course on the Indian front would be theliteral creation of Kurukshetra war but this war is with dialogue and not withweapons, it’s a war of minds where the mediator’s mind is that of Lord Krishnaand once both these sides have chosen to lay down their weapons to abuse andshouting, the mediator gives both an opportunity to recall what exactly causedthe problem wherein both the sides are even able to recall the pleasantmemories because after all the Pandavas and Kauravas was also brothers whoplayed and ate together, so the mediator personally listens to both the sidesand understands the barrier pulling both the sides apart, he understands thecause, the effect and he also understands the weaknesses and when he shares thesame with both the sides in a manner where an amicable solution may be drawn.Both the sides tend to come down to a reasonable solution on their own, thusensuring the kurukshetra war doesn’t have to end in bloodshed as it onceoriginally did. Butthen the mediation may not be the right solution to every problem becausesometimes in order to help a stubborn min, you also need a one on one approachwhere comes in the very aspect of digging down to the roots of thepsychological problems of persons mind, thus enabling him to understand theproblem is within himself and not other world, and here comes the wisdom ofBirbal from Mughal empire who could go down to the source of the problem andunderstand an individual easily and effectively thus coming out with a powerfulsolution through counseling. Usually counseling is an aspect that has been seenamongst husband, wife, siblings, children of old aged parents and even a secondwife/ the children of second wife. Acounseling task is nothing but creating a sense of sensibility within aperson’s soul so that the person is able to make sensible decisions and not endeverything that took years to nurture.
A counselor will always listen to boththe sides and not try to make the people come out with the solution butactually help people to understand why do you ever need a solution at one placewhich can only be achieved by breaking through the stubborn wall createdbetween the minds of individuals. A counseling procedure can take hours, days,and can even sometimes fails, but it is the closest method o find aneverlasting solution. The very fundamental method behind finding solutionthrough counselor requires years of practice in the art of psychology, psychoanalysis,psycho matrix. Inthis process, the counselor needs to firstly,Calmthe person down, create a methodology where the person can trust the counselorand start to share everything or even anything and this is only possible withtime and proper dialogue between the counselor and the person and once thecounselor has managed to understand the crux of the problem the counselor willdraw out an amicable solution and convince the person as to why a beautifulsolution should be drawn. Over the past the counselors have been successful inmany cases where there is a need for people to realize why court is not theideal solution1. Marital counseling – it is performed bycounselors through diagnosis, therapy, and treatment of personality andrelationship problems.
Marriage counselors come from the field of psychiatry,social work, psychology, and other related fields. Counseling aims at helpingpeople to help develop insight and understanding into the nature of problemsand the causes and factors which produced them. 2.
Marital mediation – Mediation is disputeresolution mechanism to resolve the disputes among spouses. Marital mediationcan be opted when couples have “failed” marriage counseling. The mediator’s goal is tohelp parties resolve their conflicts by agreeing to behaviorchanges in specific problem areas. Improved relationships may resultfrom the process of communication in mediation,as well as from the process of trustbuilding which occurs when the parties make and keep commitmentsto one another.15Marital disputes are very different innature from any other kind of legal dispute as it involves families, emotions,sentiments, motivation, personal liabilities, social responsibilities of boththe parties.
In such a case directly coming to a conclusion without anycounseling or mediation will destroy both the partners. The counselors andmediators play a very important role as they have to deal with the heavyemotions and misunderstanding between the partners. Therefore to save theinstitution of marriage there is heavy responsibilities on courts to find out away out instead of breaking the marriage. It is mandatory by the law for makinga serious attempt for reconciliation between parties. Section 23(2) of the Hindu Marriage Act, makes it obligatory andmandates the court before making or arriving upon any conclusion or decisionevery endeavor has to be made to bring reconciliation between the parties andfor the purpose of aiding such reconciliation the court may even adjourn theproceedings16.
Under Section 89 of the Civil Procedure Code the court is given power andjurisdiction to refer the dispute or litigation to an arbitrator without evenexistence of an arbitration clause and under Code of civil procedure orderXXXIIA rule 3 imposes duty upon courts to make efforts for settlement in suitsrelating to matters concerning a family therefore making it binding for courtto give wise chance to arriving at a conciliated or negotiated settlement. 1 2Baljinder kaur v. hardeep singh3 4 5Naveen kohli v. neelu kohli6 7 8 9 10 https://lawexplores.com/where-theres-a-will-law-and-emotion-in-sibling-inheritance-disputes/#fn_9011 12Narendra v. K.
Meena 2008 SC1313.2.2015 (Punjab HC)14 15Goals 16Section 23(3) of Hindu Marriage Act, 1955