The general notion of cruelty is very subjective- depending on time, place, persons and other

factors also. The legal concept of cruelty, which is not defined by statute, is generally described as
act or conduct of such a nature as to have caused to life, limb or health- physical or mental or as to
make a reasonable apprehension of such danger.

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Cruelty

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, no doubt, constitutes a pompous ground for dissolution of marriage, as the term
cruelty and love and affection are repugnant to each other. There is no strait jacket
formula to define cruelty. Even a gesture, an angry look, a sugar coated joke, an
ironic look may be more cruel than beating. Every act or conduct of one spouse
which makes the other spouse unhappy or miserable can not amount to cruelty.
The mere fact is that the erring spouse is moody, whimsical, mean, stingy, selfish,
boorish, irritable, inconsiderable, irascible etc. will not be sufficient to amount to
cruelty.

Cruelty, in marital relationship, is a course of conduct of one spouse which

adversely affecting the other. Cruelty may be mental or physical, intentional or
unintentional. If it is physical, it is an issue of fact and degree. If it is mental, the
enquiry must begin as to the nature of the cruel treatment and then as to the
treatment of the mind of the spouse. Whether it caused reasonable apprehension
that it would be harmful or injurious to live with the other, is ultimately a matter of
inference to be drawn by taking into account the nature of the conduct and its
effect on the complaining spouse.

Under various personal laws, cruelty is a ground for matrimonial relief. Apart
from that, Indian Parliament with a view to stall and prevent increasing violence
and cruel treatment of the wife by her husband and in laws has inserted a new
Section 498A to the Indian Penal Code.

Probably there is no material difference in Muslim law on the issue of legal

cruelty, between man and wife from other prevailing matrimonial laws in India.
The test of cruelty is based on universal and humanitarian standards by the
husband which would cause such bodily or mental pain as to endanger the wifes
safety of health. (Shamsunnissa Begums case, II. M.I. 551).

Instances of cruelty given in the provision of the Dissolution of Muslim Marriage

Act 1939, include habitually assaulting the wife, making her life miserable by
physical ill-treatment or by a conduct short of that, associating with woman of evil
repute or leading an infamous life or preventing her from exercising her rights
therein, obstructing her in the observance of her religious profession or practice
and in case of bigamy treating her inequitably contrary to the Koranic injunction.
In Islamic law, the concept of cruelty (zirar) is not limited. The cruelty provision is
to be interpreted in the light of the Prophets exhortations that women are as
tender as glasses (qawarir) and he is the best man who is kind to his wife. It is
worth mentioned here that under Muslim law cruel nature is a disqualification for
eligibility to marry.

Getting married is haram(absolutely prohibited) for a man who is sure due to

his temperament that he will be guilty of cruelty and excesses towards the would
be wife. If he is not sure but has a reasonable apprehension of meting out of
cruelty to her, getting married is makruh-e-tahrini (to be essentially avoided).
(Compendium of Islamic Laws-2001, Part-1; All India Muslim Personal Law Boards
Urdu book, Majmu a-e-Qawanin-e- Islami ).

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 Section 2(viii)(a) of the concerned Act uses the words by cruel conduct even if
such conduct does not amount to physical ill-treatment. This language is wide
enough to include all cases of cruelty, not merely this, it would cover all types of
misconduct or misbehaviour, serious and not very serious on the part of the
husband calculated to break spirit of the wife by physical or moral force which was
systemically exerted on her to such a degree and to such a length of time resulting
in undermining her health, it will amount to cruelty.

Regarding cruelty of conduct the general test should apply, since the conduct
that is cruel for one woman can not be civilized enough for another just because of
the religion of the parties. The point lies in the statutory words makes her life
miserable and the social status and standard of self-respect of the wife should be
decisive to ascertain if the mans conduct amounts to cruelty. A simple allegation of
the wife, unsupported by independent testimony, is not sufficient in law to
establish any charges mentioned in the law.

In case of inequitable treatment between the co-wives which amounts to cruelty,

the courts earlier providing maintenance to one wife only and ill-treatment forcing
co-wife to leave the husband as instances of unequal treatment. In Umat-Ul-Hafiz v.
Talib Hussain (AIR1945 Lah.56), husband went abroad leaving behind his two wives
in India. He provided maintenance to one wife and neglected the other. The court
granted divorce to the neglected wife.

The Allahabad High Court in Itawari v. Smt. Asghari (AIR1960 All.684) observed
that a Muslim has the legal right to take a second wife even during the subsistence
of the first marriage, but if he does so, and then seeks the assistance of the Civil
court to compel the wife live with him against her wishes on pain of severe
penalties including attachment of properties, she is entitled to ask whether the
court, as a court of equity, ought to compel her to submit to co-habitation with such
a husband. In that case the circumstances in which his second marriage took place
are relevant and material in deciding whether his conduct in taking a second wife
was in itself an act of cruelty to the first.

The onus in these days would be on the husband who takes a second wife to
explain his action and prove that his taking a second wife involved no insult or
cruelty to the first. For example, he may refute the presumption of cruelty by
proving that his second marriage solemnized at the suggestion of the first wife or
in order to gain some financial benefit( may be through contract) the first wife may
indulge or insist her husband or reveal some other relevant circumstances will
prove cruelty. But in the absence of a strong and proper explanation the court will
presume, under modern prevailing systems, that the action of the husband in
taking a second wife involved cruelty to the first and that it would be inequitable
for the court to compel her against her wishes to live with such a husband.

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 It will amount to cruelty if the husband disposes of his wifes property or
prevents her from exercising her legal rights over it. In one occasion( Zubaidaa v.
Sardar Shah. AIR1943Lah. 310), the view expressed by Abdul Rahman J., that, it is
not always easy to determine for what purpose, husband sells or assigns his wifes
property of any value. Property may be used for the treatment of wife, for the
benefit of the family members, for the education of children, for the maintenance
of any other liabilities. If the property disposed of not for the selfish ends of the
husband, not with the object of meeting a pressing needs but more in the sense of
waste and this done to deprive the wife of her property and without the consent of
wife then it shall constitute the offence of cruelty.

Today, there is a large volume of case laws on cruelty in India and abroad. Since
human nature and conduct are infinitely diverse. No hard and fast rules can be laid
down as to what acts or conducts will amount to cruelty in any given case. However,
there is a sea change in the attitudes of the courts. There is no difficulty in holding
when physical violence amounts to cruelty. However deciding some clear cases,
questions do arise in the sphere of mental cruelty or not. The reason is that mental
cruelty may be of any kind or of infinite variety, new concept of mental cruelty may
reveal. It may be subtle or brutal. It may be by words, gestures or even by mere
silence.

In deciding whether or not a particular state of affairs amount to legal cruelty,

the court has to consider the social status, the environment, the education, the
mental and physical conditions and the susceptibilities of the innocent spouse and
also the custom and manners of the parties. Whether acts or conduct complained
of, constitutes cruelty has to be construed in reference to the whole conjugal
relationship.

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