Cruelty as a term has no single or exact definition. It is liable to various interpretations; depending on the facts of each case.

But generally, where there is evidence of a behavioural conduct sufficiently grave, beyond the usual ups and downs of daily life, which would make it unreasonable to expect the complaining spouse to live with the other, cruelty must be held to have been established.

Parsi law for most part is understood to be the most progressive personal law in India, and while it is largely true, it is curious to note that cruelty as grounds for divorce was added as late as 1988.

Pursuant to this 1988 amendment clause dd was added to section 32 of the Parsi Marriage and Divorce Act, 1936 which reads:

²⁷ [(dd) that the defendant has since the solemnization of the marriage treated the plaintiff with cruelty or has behaved in such a way as to render it in the judgment of the Court improper to compel the plaintiff to live with the defendant: Provided that in every suit for divorce on this ground it shall be in the discretion of the Court whether it should grant a decree for divorce or for judicial separation only;]

Pursuant to the amendment, the Court has been made the competent authority for granting the decree of divorce in cases of cruelty.

This is interesting to note since one peculiar feature of Parsi personal law is the presence of the jury system.  The jury is constituted of 5 “delegates” and the majority opinion pronounced by the jury is often final and binding.

The jury system has lent to itself considerable controversy over time. At the very outset, the composition of the jury is almost exclusively men. It is thus unsurprising that their pronouncements are patriarchal and inhibit women from meaningfully exercising their personal agency.

 It has also been observed that the jury is usually disinclined to grant divorces which works to the detriment of the party being meted out with cruelty, which are more often than not, women.

This is best exemplified by the celebrated jurist Mr. Fali Nariman in his autobiography “Before the Memory Fades” wherein he narrates the plight of a poor parsi lady approaching the matrimonial court seeking a decree of divorce on grounds of cruelty.

 The jury is disinclined to grant her any relief. Only when on the next hearing the lady is beaten visibly black and blue and has stitches on her nose is a favourable outcome granted.   

One might wonder as to why the lady had not approached the High Court seeking an interim relief when the matrimonial court did not entertain her plea and saved herself from the impending ordeal at the hands of her husband.

 This is largely on account of the fact that the prospects of the high court admitting her case; let alone granting a favourable relief were rather dim.

As a plain reading of section 46 of the Parsi Marriage and Divorce Act suggests; the jury is the sole judge of facts, and their findings are final and binding on the Court. Thus, in the example of the aggrieved lady, the High Court would have been reluctant in differing from the opinion of the jury and granting relief to the woman.

But in the early case of Kaikhushroo Tantra v. Meherbai Tantra, (1945) (47) Bom.L.R. 819, it was successfully argued that whether the facts of a case amount to a matrimonial wrong or not is a question of law and, therefore, a wrong finding on that question can appealed.

However, it is sad to note that the High Courts have shied away from employing such a broad interpretation frustrating the possibility of an expeditious trial which is of utmost importance in such cases since the very safety of the plaintiff is in jeopardy.