Cruelty Without Definition : Legislative Silence and Judicial Activism in Indian Matrimonial Law

The Indian legislation has conspicuously failed to define the term, cruelty, as a ground, to matrimonial relief. The Hindu marriage act, 1955, the special marriage act, 1954, the Indian divorce act, 1869, and the section 498 A of the Indian penal code each uses the expression in its own register but none of them provide any statutory definition to constrain the discretion of judges. This legislative silence is not a mere omission by Parliament, but it is a policy choice intentionally made by the judiciary at the expense of Parliament as the critical norm-setter. This paper will discuss this phenomenon in all its complexity: how the notions of flexibility and arbitrariness in the concept of cruelty led to its development in India over the years, the historical evolution of the concept of cruelty as a matrimonial concept in India, and the paradox that the flexibility and arbitrariness of the concept of cruelty, whilst serving as adaptive justice, also create a space in which the concept of cruelty can be flexed and abused. The paper ends with a critical evaluation as to whether the current legislative silence can be constitutionally justified and what reforms, not a strict statutory definition, might better balance protection with predictability.