Recently, while allowing a petition filed by an estranged wife seeking divorce, the division bench comprising Justice Sanjiv Khanna and Justice M M Sundresh of Supreme Court held that the word ‘cruelty’ under Section 13(1)(ia) of the Hindu Marriage Act gives wide discretion to Courts ‘to apply it liberally and contextually’.

 “It has to be applied from person to person while taking note of the attending circumstances.”, the Apex Court said.

“…an element of subjectivity has to be applied albeit, what constitutes cruelty is objective. Therefore, what is cruelty for a woman in a given case may not be cruelty for a man, and a relatively more elastic and broad approach is required when we examine a case in which a wife seeks divorce", said court.

The Court, in reference to the 1976 Amendment Act of the Hindu Marriage Act (HMA), which incorporated clauses (ia) and (ib) into Sections 13 and 13A of the Act, thereby expanding the range of acceptable reasons for divorce, noted that the Statement of Objects and Reasons accompanying the Amendment Act explicitly conveyed the legislative objective of making divorce more accessible.

“Historically, the law of divorce was predominantly built on a conservative canvas based on the fault theory. Preservation of marital sanctity from a societal perspective was considered a prevailing factor. With the adoption of a libertarian attitude, the grounds for separation or dissolution of marriage have been construed with latitudinarianism.”

“However, the degree of probability is not one beyond reasonable doubt, but of preponderance.” The Court clarified.

"...the court must also keep in mind that the home which is meant to be a happy and loveable place to live, becomes a source of misery and agony where the partners fight. When there are children they become direct victims of the said fights, though they may practically have no role in the breakdown of marriage. They suffer irreparable harm especially when the couple at loggerheads, remain unmindful and unconcerned about the psychological and mental impact it has on her/him.”

In the case under consideration, the Supreme Court recognized that the parties involved had been living separately for a period of fifteen years. The Court acknowledged that the marriage had become untenable and had effectively ceased to exist in all practical aspects, with the only remaining formality being the issuance of a formal divorce decree.

While setting aside the order of the Trial Court and High Court, the Supreme Court said;

“The Trial Court and the High Court adopted a hyper-technical and pedantic approach in declining the decree of divorce. It is not as if the respondent-Husband is willing to live with the appellant–Wife. The allegations made by him against her are as serious as the allegations made by her against him. Both the parties have moved away and settled in their respective lives. There is no need to continue the agony of a mere status without them living together.”