Denial of right to study as a ground for divorce

"TREATING WITH CRUELTY" ONE'S SPOUSE IS NOW AN ESTABLISHED GROUND FOR DIVORCE UNDER MOST DIVORCE LAWS. BUT, NONE DEFINE CRUELTY. VARIOUS JUDGMENTS AFFIRM THAT CRUELTY CAN BE MENTAL AND PHYSICAL

- Tahir Mahmood

have on my desk a recent judgment of the Madhya Pradesh High Court (HC)'s Indore Bench, indeed heartwarming, which deserves to be followed by all other high courts and affirmed by the nation's apex court. If the husband or in-laws of a married woman force her to give up her pursuit for education, it will amount to mental cruelty, the court held, arming her with a mighty ground for seeking dissolution of her marriage by a decree of divorce.

To comprehend the importance and implications of this rather novel ruling we must briefly look at the history and the present status of the law of divorce in the country.

It is believed that the concept of divorce had no place in the ancient Indian law which rested on the rule of "once a marriage always a marriage" — even death of either party did not dissolve a marriage. The wife was the husband's ardhangini (half body) that could not be cut off and thrown away.

In the event of estrangement, the parties could only live separately without a formal dissolution of marriage. The relief of divorce was initially allowed by custom and usage, which according to the legal theory had precedence over religious law, and finally received statutory recognition after independence.

For the majority community, the remedy of divorce on limited grounds was recognised, before the commencement of the Constitution of India, by the Bombay Hindu Divorce Act of 1947 and the Madras Hindu (Bigamy Prevention and Divorce) Act of 1949. Their provisions on divorce were incorporated into the central Hindu Marriage Act of 1955.