Dastane v. Dastane (1975)

Cruelty became a ground of divorce only in 1976, when clause (ia) was inserted in section 13(1) — "has, after the solemnization of the marriage, treated the petitioner with cruelty". Before that it founded judicial separation alone. What has never changed is the question every cruelty petition raises: how sure must the court be?

Matrimonial proceedings look criminal in their consequences and civil in their form. Allegations of adultery, cruelty and desertion are grave, they attach lasting stigma, and the statutory language of section 23 — the court must be "satisfied" that a ground exists — invites the argument that something more than the ordinary civil standard is required. Dastane answers that argument.

"In Dastane V. Dastane (1975) the Supreme Court laid down the standard of proof and held the court is satisfied when there is a preponderance of probabilities test."

So the standard is the civil standard. The petitioner must make out the ground on a balance of probabilities; he need not exclude every reasonable doubt. A matrimonial cause is a civil proceeding and is governed by the rule of proof that governs civil proceedings.

"Cruelty is of two kinds (i) Physical and (ii) Mental".

Physical cruelty is "Violence to life, limb or danger to health" (Birch v. Birch), and in Russell v. Russell the House of Lords held that "legal cruelty is any conduct which would make marital life physically impossible."

Mental cruelty is not confined to any list. "Intention of one spouse to inflict cruelty is necessary, though not essential; ill-treatment, attributing unchastity., etc. In fact cruelty may be of infinite variety."

That sentence is self-contradictory as it stands, and the reading that makes sense of it — and of the illustrations that follow — is that intention to injure is relevant but not indispensable. Conduct may amount to cruelty by its effect on the petitioner even where the respondent did not set out to wound. The examples given are conduct-based: ill-treatment, an imputation of unchastity, forcing a spouse to prostitution (Coleman v. Coleman), the ill-treatment of a pregnant wife (King v. King). "Physical injury or mental injury is judged by the court."

Compare adultery, where the requirements of proof are stated at their strictest: "Adultery is a secret act and hence proof is difficult. Circumstantial evidence may be established to lead to a fair inference. High standard of proof is required. It must go bevond suspicion. Mere opportunity available to the spouse is not enough." Even there the burden is discharged by inference; what is excluded is suspicion, not doubt.

The two propositions are consistent, and a good answer reconciles them. The standard is uniform — preponderance of probabilities. What varies is the cogency of evidence a court will require before it is persuaded on that standard, and an allegation as grave as adultery or cruelty needs evidence of real weight. Say that, and you have stated the law without letting the two lines of authority contradict each other.

Proving cruelty is not enough. Section 23(1) permits relief only if the court is satisfied that a ground exists "and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief"; that, where the ground is cruelty, "the petitioner has not in any manner condoned the cruelty"; that the petition is "not presented or prosecuted in collusion with the respondent"; and that "there has not been any unnecessary or improper delay in instituting the proceeding". Sub-section (2) requires the court, before granting any relief, to "make every endeavor to bring about a reconciliation between the parties."

So a cruelty petition must clear three hurdles: the conduct, the standard of proof, and section 23. Condonation is the hurdle that most often defeats a proved case, because a spouse who resumes cohabitation with full knowledge of the conduct forgives it.

Cruelty is a ground of divorce under section 13(1)(ia) and, since 1976, of judicial separation under section 10, which now takes "any of the grounds specified in sub-section (1) of section 13". It is also a ground on which a Hindu wife may live separately and still claim maintenance under section 18(2)(b) of the Hindu Adoptions and Maintenance Act — "if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband". That formulation is the reasonable-apprehension test, which the maintenance provision states expressly and which the divorce provision leaves to the case law.

A matrimonial court decides on the balance of probabilities, not beyond reasonable doubt — and the gravity of the allegation goes to how much evidence will tip that balance, not to where the balance lies.