Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India by Narendra Subramanian Page B

until a little earlier, the court relied on Section 10(1)(b) of the HMA to decide that it would be adequate if the specified behavior would “cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious to him or her to live with her spouse,” and that the actions that might cause such apprehension would depend on the impact on the litigant. Moreover, it pointed out that the petitioner may be taken to have condoned certain of his spouse’s matrimonial offenses; that the spouses continuing to live together was an inadequate proof of condonation, but that their maintaining intimate relations and having children was; and that future matrimonial offenses could revive an offense that had earlier been condoned.
Dastane
exercised far greater influence over subsequent adjudication than the earlier judicial separation decrees based on mental cruelty had, because it was the first such Supreme Court decree, it was more fully argued, it was reinforced within a year by legislative reforms in divorce law, and more judges had become sensitive by the mid-1970s to the complex determinants of serious marital problems and were inclined to provide spouses facing such difficulties an exit. Cited in at least 298 reported cases, it influenced the standards by which many courts construed spousal cruelty thereafter, although its reference to a reasonable apprehension of harm ceased to be relevant after this criterion was omitted from the HMA in 1976. 37
    There was greater continuity than Menski suggested in the higher courts’ approach to divorce petitions on the ground of cruelty since the legislative reforms of 1976. In the first half of the 1980s a few courts, starting with
Madan Lal Sharma v. Smt. Santosh Sharma
(1980), interpreted the Marriage Laws (Amendment) Act of 1976 to have undone
Dastane
’s liberalization of judicial separation based on cruelty. Taking the act to apply equally to cruelty-based divorce provisions, they tried to reinstate what had been the predominant judicial trend until the 1970s, equating spousal cruelty with behavior that poses a threat to the partner’s life, limb or health. They did this even though the Statement of Objects and Reasons of the act identified the liberalization of divorce as its main aim. 38 However, the majority of courts did not follow this approach even in the late 1970s and early 1980s, preferring to follow the interpretation of cruelty offered in
Dastane
while taking into account the deletion of the reference to a reasonable apprehension of harm in 1976.
Ashwini Kumar Sehgal v. Smt. Swatantar Sehgal
(1979) was an elaborately arguedjudgment along these lines, which declared that “cruelty in such cases has to be of the type which should satisfy the conscience of the court to believe that the relations between the parties had deteriorated to such an extent due to the conduct of one of the spouses that it has become impossible for them to live together without mental agony, torture or distress.” 39 In the 1980s, certain courts countered the equation of cruelty with physical violence and actions inimical to the spouse’s health in
Madan Lal Sharma
.
Keshaorao Krishnaji Londhe v. Nisha Londhe
(1984) deduced from the Law Commission’s
Fifty-Ninth Report
as well as the Marriage Laws (Amendment) Act’s Statement of Objects and Reasons that the intention behind this legislation was to enable divorce when a couple no longer shared emotional bonds and to give courts considerable flexibility to understand spousal cruelty in light of the circumstances and sentiments of particular couples. It reinforced the understanding that conduct that makes cohabitation a source of “mental agony, torture or distress” constitutes cruelty, and shaped the subsequent judicial approach. 40
    The Supreme Court lent such interpretations its authority in
Shobha Rani v. Madhukar Reddi
(1988),
V. Bhagat v. Mrs. D. Bhagat
(1994), and
G.V.N. Kameshwara Rao v. G. Jabilli
(2002).