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. @Bhagwad,

    // Should the law be allowed to decide what constitutes acceptable behavior in interpersonal relationships? No two marriages are the same.//

    From what I know, Bhagwad, adultery(sex between two partners,one of whom is legally married) is a prosecutable offence in most parts of the world, including several states of the US. As about sexually open marriages, I think I can safely assume that such marriages constitute less than one percent of all marriages in India–I,for one, have yet to come across even one such married couple in my lifetime (spent entirely in urban,non-metropolitan India).

    //Having an affair might indeed be traumatic for the man’s wife. Which is why we have divorce laws. //

    Bhagwad, as IHM has already pointed out, divorce is not even an option for the average Indian woman, and that is not exactly because the laws have been babying her. She has been brought up thinking that being married is the only way to be, and that she can only get married once. Divorce is a dirty word and women are expected to put up with just about everything to preserve their marriage.

    Its not that they love to stay put in a dysfunctional marriage.Its just that that have very few real alternatives (keep in mind that so many of these women are economically dependent on their spouses and even if they are not, not everyone can marshal the strength to swim against the tide.)

    This scenario makes women very vulnerable to all forms of mental cruelty and I think it is only fair on the part of the lawmakers/judiciary to try to provide some form of protection against it

    //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.//

    Just because one girl decided to kill herself over an apparently trivial issue does not mean that the entire female population is liable to commit suicide at the drop of a hat. You agree that a man’s having an affair might be traumatic for his wife, you know that many Indian women are conditioned to consider being divorced a fate worse than death, and then you know that this woman committed suicide. Suicides cannot but be taken seriously.

    //Advanced societies always have “no fault” approaches when it comes to divorce. //

    I absolutely, wholeheartedly, agree that India is anything but advanced. I am sure I will not live to see the day when it even comes close to being considered advanced. Till such a time comes, keeping in view our unique socio-cultural problems, no-fault divorces will only spell more trouble.


    • In reply to Scribblehappy

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

      Also, the law is supposed to apply to everyone. If my wife has an extramarital affair, I don’t want her to go to jail. We’ll probably divorce, but I understand that she did it for personal reasons. I wouldn’t want the law to get involved.

      I agree that a woman might not have social alternatives to marriage. But is the solution then forcing the couple to live together? Society needs to change the way it views divorce. That will take time. But making laws which deny the reality of divorce as a solution will make it immeasurably longer.


      • In reply to bhagwad

        You’re correct about adultery not being an offence i the US, however there has been talk of a few states trying to pass laws where if there’s any cheating involved the person who was “emotionally” harmed can file a lawsuit against the cheating spouse and/or the person who their partner cheated with. Just wanted to point that out, and yes I know it’s incredibly stupid.


      • In reply to RenKiss

        Making adultery a crime is so ridiculous on so many levels I don’t know where to begin!


      • In reply to bhagwad


        This is an extension to my previous comments so I am posting it here, though it refers to your comment on IHM’s blog post.

        1. On the broader question of whether a divorce can be “forced” on someone, you commented on IHM’s blog that a no-fault divorce still needs both parties to agree that the marriage is irretrievably broken, and that a judge needs to agree. This makes no-fault divorce tougher than mutual consent right. This wasnt my understanding of no-fault at all. I will read up on it a bit.

        2. On whether a divorce can be denied, I am reminded of an old case, of Sonali Dasgupta who left her husband Harisadan Dasgupta for Roberto Rossellini who was alsostill married at that time to ( but possibly separated from) Ingrid Bergman. I’d like to know your take on this.

        I think Mr.Dasgupta initially filed a case to restore his conjugal status so its fair to assume it wasnt a divorce he looked for. It was only desired by one party (of the couple) Sonali, and changed dramatically the life trajectory of the one year old son she had with mr. Dasgupta. She took him with her to Italy and he grew up as Gil Rossellini. She left behind her elder son who grew up to be Raja Dasgupta.

        Intriguingly the linked article hints that all did *not* go quite well with her second marriage with mr.Rossellini.

        I can only imagine the intense turmoil of this chapter of life on Mr.Harisadan, who apparently did not remarry,and the effects on the 2 children, the most blameless parties here. Nothing whatsoever indicated he was an abusive husband or that Sonali was unhappy.

        Having said that, if Sonali wanted out, she wanted out. She fell in love, with possibly even the wrong man (or not-quite-right man). This is my understanding of no-fault divorce. As a man who can and does deeply sympathize with Mr.Dasgupta, I still support Mrs.Dasgupta.

        Your thoughts Bhagwad? If you were the judge to rule on this as a contested divorce.



      • In reply to Jai_C

        This case is complicated because she went abroad and the issue of how another country’s court would treat marriage and adoption in India.

        But in US law, “irretrievable broken” has a very broad meaning. If one spouse has mentally checked out of the marriage, no longer cares for the other and has even gone to the extent of going away with someone else the marriage is “irretrievable broken” regardless of whether the other person still in love with him/her.

        Courts are not there to play matchmaker. For me there would be no contest. The marriage is over given the circumstances of the case.


  2. I agree. Succinctly put.


  3. 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.


  4. //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…


  5. 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…


  6. 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??


  7. kaustuv saikia says:

    Well, i think divorce can be simplified. Say, when two people get married; nobody asks why they want to get married, like, is it for sex or love or any other reason,whatsoever. And also, when two people get married, it is assumed that it is consensual. If not, then the person, who thinks, is forced into marriage, should seek legal help. But when it’s not the case and they eventually get married, one has to assume that it was necessary for both the partners to give consent to be together and thus, getting married . So, the first condition for getting married is mutual consent. Now, say after a year, one spouse wants to move out of the marriage. Now, s/he needs to cite reasons and reasons to convince authorities, needs to keep orbiting the court, needs to make dents in pocket , needs to take leaves from job/work and thus incur extra losses and of course, not to forget the mental agony caused. Now question arises – why it has to be so gruelling ?? Why divorces can’t be simplified altogether ?? Why does one need to cite reason for parting ways and why isn’t reason citing made optional ?? If one spouse wants divorce and other doesn’t , then also divorce should be granted because if it is not granted, the one who wants it, would be mentally devastated. But here, one can argue that divorce will bring mental turmoil to the nonconsenting partner. Yes, that’s very true. In such a case, it’s apparent that one spouse would be aggravated anyway but not granting divorce would mean keeping one spouse tied to something painful for the bliss of the other and that’s not acceptable. One adult is supposed to be able to take care of own mental well-being than being dependent on someone else. Now, the second part – alimony and maintenance/custody of children. There should be a clear policy and fixed criteria should be set for this. Say, if a couple is having a minor child, then from the day of divorce, the custody of the child should be given to the mom for one year. The next year, it should be with the dad and so on and once the child is an adult, it should be left with him/her to decide who s/he want to stay with. Some exceptions to this can be set for complicated cases viz. one spouse moving out of the country or so. Regarding money matters, there should be a fixed provision. Say, if the woman is earning, then what percentage of husband’s income she’d get and if not, then also a percentage should be fixed. And for children, it should be made legally binding for parents to give a percentage of their earnings and requirement of money beyond the set norms, if any, should be made optional i.e. upon humanitarian ground, if a parent wants to contribute more, the s/he can. Exceptions to this ruling may exist, say, a child is terribly ill, then court should decide how much money one parent would have to give. And, steps for these procedures should be hung in court premises so that coming just once or twice to a court would grant them divorce and thereby, courts can speed up justice delivery to really persecuted ones, say a rape survivor and this way, all those countless pending divorce cases hampering a court’s functioning, could have been solved easily.
    P.S. For complicated cases, including domestic violence, the victimesed spouse will have to decide beforehand, what s/he wants – punishment for the mischief or divorce. If divorce, then same criteria will be followed and if punishment, then that’s a different case which court will look into. Here, concern was only simplifying divorce, which unnecessarily causes loss of so many valuables including time, money and of course, peace of mind . So , those who agree with it, should write to PMO to simplify divorce for putting an end to mental atrocities on affected people.


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