Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India by Narendra Subramanian Page A
Authors: Narendra Subramanian
Ads: Link
divorces on this basis well before the 1970s. For instance, as early as 1950, the Allahabad High Court upheld the divorce decree that the lower courts had granted a Muslim woman on the ground of cruelty because her husband had made false adultery charges against her, leading the police to issue warrants for her arrest in
Abbas Ali v. Mt. Rabia Bibi
(1951). Courts later applied similar standards to assess cruelty in responding to pleas for judicial separation among Hindus.
In 1955, the same court pointed out that legal cruelty need not involve physical violence, while granting a woman a separate residence after her husband assaulted her, evicted her from their home, and married another woman, in
Sm. Pancho v. Ram Prasad
(1956). It declared:
When a husband habitually insults his wife and behaves towards her with neglect and un-kindness so as to impair her health, he must be held to be guilty of cruelty. Where evidence of physical violence is not per se sufficient to warrant a finding of cruelty the Court is bound to take into consideration the general conduct of the husband towards the wife and if this is of a character tending to degrade the wife, and subjecting her to a course of intense indignity injurious to her health, the Court is at liberty to pronounce the cruelty proved. 31
In
Shri Gurcharan Singh v. Shrimati Waryam Kaur
(1960), the Punjab High Court held that claims of cruelty should be assessed based on emergent norms and the effect of the impugned actions on the individual concerned, and that such an approach could lead to findings of cruelty even if there had beenonly isolated acts of violence. It granted a Sikh woman judicial separation, rather than accommodate her husband’s plea to restore his conjugal rights, because he had ejected her from their home, failed to provide her and their child support even after a maintenance decree, and made unproven adultery allegations. 32
The Patna High Court expanded further on the meaning of mental cruelty in 1963, declaring that factors such as “environment, status in society, education, cultural development, local custom, social convention, physical and mental condition of the parties, etc.” should be considered in assessing which acts amount to mental cruelty; in this case, however, it accepted the lower court’s view that “occasional thrashings” need not constitute cruelty. 33 Reasoning similarly, Justice Mirza Hameedullah Beg, who later became Chief Justice of India, elaborated the concept of cruelty found in the HMA in 1964 as one “based on mutual regard and consideration by each spouse for the other. It excludes . . . selfish brutality or disregard for the health, needs, desires, and feelings of the other by either spouse.” 34 A few courts decreed judicial separation based on similar constructions of cruelty in the 1960s and early 1970s, prior to the legislative amendment of 1976. 35 But the majority of judges even in the higher courts did not share such an understanding then, and most decrees of judicial separation on grounds of cruelty were based on evidence of significant physical violence.
The Supreme Court handed down the most consequential of these early cruelty-based judicial separation decrees,
Dr. Narayan Ganesh Dastane v. Mrs. Sucheta Narayan Dastane
(1975). Justice Y. V. Chandrachud, who later became Chief Justice of India and gained wider attention for authoring
Mohammad Ahmed Khan v. Shah Bano Begum
(
Shah Bano
) (1985), indicated that in matrimonial cases, evidence should be assessed based on “on a preponderance of probabilities” rather than proof beyond reasonable doubt, which is appropriate only for criminal and quasi-criminal cases. This preponderance standard, borrowed from English and Australian law, was applied thereafter to the majority of matrimonial cases of all kinds. 36 Rather than cruelty having to be of “such a character as to cause danger to life, limb or health, bodily or mental,” a standard used in English law
Abbas Ali v. Mt. Rabia Bibi
(1951). Courts later applied similar standards to assess cruelty in responding to pleas for judicial separation among Hindus.
In 1955, the same court pointed out that legal cruelty need not involve physical violence, while granting a woman a separate residence after her husband assaulted her, evicted her from their home, and married another woman, in
Sm. Pancho v. Ram Prasad
(1956). It declared:
When a husband habitually insults his wife and behaves towards her with neglect and un-kindness so as to impair her health, he must be held to be guilty of cruelty. Where evidence of physical violence is not per se sufficient to warrant a finding of cruelty the Court is bound to take into consideration the general conduct of the husband towards the wife and if this is of a character tending to degrade the wife, and subjecting her to a course of intense indignity injurious to her health, the Court is at liberty to pronounce the cruelty proved. 31
In
Shri Gurcharan Singh v. Shrimati Waryam Kaur
(1960), the Punjab High Court held that claims of cruelty should be assessed based on emergent norms and the effect of the impugned actions on the individual concerned, and that such an approach could lead to findings of cruelty even if there had beenonly isolated acts of violence. It granted a Sikh woman judicial separation, rather than accommodate her husband’s plea to restore his conjugal rights, because he had ejected her from their home, failed to provide her and their child support even after a maintenance decree, and made unproven adultery allegations. 32
The Patna High Court expanded further on the meaning of mental cruelty in 1963, declaring that factors such as “environment, status in society, education, cultural development, local custom, social convention, physical and mental condition of the parties, etc.” should be considered in assessing which acts amount to mental cruelty; in this case, however, it accepted the lower court’s view that “occasional thrashings” need not constitute cruelty. 33 Reasoning similarly, Justice Mirza Hameedullah Beg, who later became Chief Justice of India, elaborated the concept of cruelty found in the HMA in 1964 as one “based on mutual regard and consideration by each spouse for the other. It excludes . . . selfish brutality or disregard for the health, needs, desires, and feelings of the other by either spouse.” 34 A few courts decreed judicial separation based on similar constructions of cruelty in the 1960s and early 1970s, prior to the legislative amendment of 1976. 35 But the majority of judges even in the higher courts did not share such an understanding then, and most decrees of judicial separation on grounds of cruelty were based on evidence of significant physical violence.
The Supreme Court handed down the most consequential of these early cruelty-based judicial separation decrees,
Dr. Narayan Ganesh Dastane v. Mrs. Sucheta Narayan Dastane
(1975). Justice Y. V. Chandrachud, who later became Chief Justice of India and gained wider attention for authoring
Mohammad Ahmed Khan v. Shah Bano Begum
(
Shah Bano
) (1985), indicated that in matrimonial cases, evidence should be assessed based on “on a preponderance of probabilities” rather than proof beyond reasonable doubt, which is appropriate only for criminal and quasi-criminal cases. This preponderance standard, borrowed from English and Australian law, was applied thereafter to the majority of matrimonial cases of all kinds. 36 Rather than cruelty having to be of “such a character as to cause danger to life, limb or health, bodily or mental,” a standard used in English law
Similar Books
![Gale, Avery - Rissa's Recovery [The Shadowdance Club 3] (Siren Publishing Ménage and More)](https://fs.collectorofbookboyfriends.com/555979/thumbs/152x264/gale-avery-rissas-recovery-the-shadowdance-club-3-siren-publishing-menage-and-more.jpg)