Should a court criminalize “Mental Cruelty” in a marriage?

I’m acutely aware of how broken our marriage system is in India. Instead of a marriage being between two people who freely choose to stay with each other, it usually becomes a life that is socially forced upon them – the threat being excommunication from the extended family.

Do Indian Laws encourage women to be adults?

Do Indian Laws encourage women to be adults?

For me, the real question is what the legal scene should be like. Should laws encourage the status quo by introducing concepts such as “mental cruelty” or should the laws try and improve the current situation by enacting progressive legislation meant to give freedom to both men and women and allowing them to break free of the shackles of an archaic mindset?

DG had posted a link to a news story where the Bombay HC had ruled that a husband keeping a mistress constitutes mental cruelty to the wife and he can be punished under section 498A of the IPC. At first glance, this seems quite reasonable. In the cited case, the woman was clearly driven to distraction and killed herself because of her husband’s affair.

But the real issue is deeper. Should the law be allowed to decide what constitutes acceptable behavior in interpersonal relationships? No two marriages are the same. Who knows why any two individuals decide to live together and under what terms that relationship is formed? Keeping a mistress cannot be ipso facto proof of mental cruelty. The couple can be estranged and married in name only. They can have a sexually “open relationship” where each can still sleep around with whomsoever they want. Or perhaps one party has made it clear that if the other strays, they don’t want to know about it. The mere fact of adultery isn’t sufficient evidence of mental cruelty.

But then of course, the woman in question committed suicide. So that’s evidence right? Perhaps not. A few days ago we got the tragic news of a girl committing suicide because her boyfriend broke up with her on Facebook. Now he’s facing charges of abetting suicide. But is the court to now decide that breaking up is illegal? Or perhaps we should make a law saying that breaking up on Facebook is illegal!

The law or the courts have no business being the moral arbitrators of what transpires in personal relationships. It has to step in only when there’s physical violence because then one of the parties can’t protect themselves. But mere emotional harassment shouldn’t be in the purview of the law because most of it just comes down to a person being a jerk. And we can’t criminalize that!

Having an affair might indeed be traumatic for the man’s wife. Which is why we have divorce laws. Which takes me back to what I said in the beginning. Marriage in India isn’t viewed as a mere choice to live together. But a law should be applicable to everyone and not just those for whom the meaning of marriage is “understood.” There can be many reasons for a man or a woman to commit adultery. Those reasons are none of a court’s business. If one of the parties wants a divorce, it should be granted irrespective of who’s “fault” it is.

Advanced societies always have “no fault” approaches when it comes to divorce. Courts there recognize that they can’t play moral arbitrators. They step in forcibly only when one person physically abuses another. But deciding what is “proper” and what isn’t assumes that all marriages are the same – and they’re not.

The odd laws like 498A in India only reinforce the feudal view of marriage – that a woman is forced into it and doesn’t have the choice of divorcing her husband. More importantly, it propagates the view that grown women are not adults and that they don’t have the ability to take their life in their own hands.

Unless the law stops babying people, how will they wake up and exercise their own dignity? In many ways, laws lead and society follows. The decriminalizing of homosexuality by the courts isn’t popular in the country. But over time the laws will “filter down” and seep into people’s mind. With laws like 498A reinforcing the dependence of a woman on her husband, how is she ever going to wake up and take her life into her own hands?

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  1. I agree. Succinctly put.


  2. I agree with you, enforcing this is basically trying to legislate morality. And we all know that almost never works. Besides, what exactly is “mental cruelty?” O_O I think the solution here also would be to de-stigmatize divorce.


    • In reply to RenKiss

      Absolutely! But you see, if the government were to take active steps to highlight the possibility of divorce, all sorts of pundits and self styled moralists will cry their throats out that it’s “against marriage!”

      All of us would do well to take in a dose of reality and realize that not all marriages are made in heaven.


  3. //That’s not true. Adultery is not an offence in any part of the US. Neither is it a crime in Europe.//

    Bhagwad, it is indeed on the statute books, and hence technically prosecutable, in a number of states in the US. Take a look at these links.

    It is true that adultery is not an offence in Europe, but then I didn’t mention Europe at all !


    • In reply to Scribblehappy

      True – but there are two things to note.

      One, the laws in the US vary from state to state. Most of the states in the US don’t treat adultery as a crime.

      Second, the US Supreme Court in 1965 said that intimate sexual conduct between consenting adults is beyond the purview of the law. Thus such laws are open to constitutional challenge – just like article 377 was in India.

      In any case, the majority of states in the US don’t treat adultery as a crime. There are still some backward states around, but we shouldn’t be looking up to them or discussing them in any case. In Wisconsin for example, homosexuals still can’t get married.

      Let’s only talk about progressive states and not backward ones…


  4. If sexual harassment is a crime then mental cruelty must also be. Sexual harassment need not always be physical. It can be lewd comments passed at work which can be classified as “mental”.

    But I think our courts are mixing up morality and harassment. A guy having an affair may not be doing so solely to harass his wife. But then, maybe he is having an affair just to torture his wife mentally. We will never know. While the court cannot blame someone for being the cause of another’s suicide for reasons like breaking up on Facebook, there are some extremely mental tortures that should be punishable.

    And for the story about the lady with the disabled child – fathers don’t stop being fathers once they are divorced. The father still owes responsibility towards the child in terms of child care and financial expenses. And if women are worried about financial situation and dowry recovery after divorce, that’s was pre nuptial agreements are for. They are legal documents that specify division of assets in case of a divorce and can be the security blanket they are looking for.

    Staying in a marriage where one person has checked out mentally makes no sense to me when there are perfectly legal options available to safeguard your interests.


    • In reply to Clueless

      Workplace harassment is indeed punishable – though I’m not sure if it’s the company or specific employees. Incidentally in the US, mental harassment is a crime only when practiced against children and old people (above 65 years.) Adults are assumed to be able to take care of their minds…


  5. shantanu says:

    How to take divorce from a wife who lives separatefeom her husband for past 8 years. husband wants to merry with other girl and the fist wife dont want to give divorce. Please give me suggestion and is any law for this??


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