Provocative “CRUELTY” And “diminishing responsibility” In the emerging India we have seen several amendments in the Marriage laws, including the recent amendments approved by GOM, which are going to be tested on the floor of Parliament in Mansoon Session. However, so far neither the judiciary nor the legislature looked into the aspect of provocative cruelty or cruelty as a result of provocation. This term is alien to Indian matrimonial laws. Cruelty has been defined as complete act and no court is willing to go behind such acts of cruelty either in civil law or criminal law. However, under the matrimonial law in USA it is well settled that “The cruelty must have been deliberate and calculated and must not have been provoked by the filing spouse”. Meaning thereby, for establishing “cruelty” for divorcee, one need to prove “cruel acts” as deliberate and calculated attempts on the part of other spouse and further that he did not provoke the same. Ultimate onus in proving these postulates rest on the petitioner even though if he succeeded in proving cruel acts. Further, in criminal law they have doctrine of “Diminished responsibility” which seems to be at par with contributory negligence as in tort in India. Whereas, we have only one defence “Sudden provocation” in criminal law..how about such situations where crime is committed due to prolong and repeated provocations??? In very famous case R v Ahluwalia, the UK Court explained the doctrine of Diminished responsibility. In India do we require same laws in order to impart free and fair justice needs to be answer ?
Posted on: Sun, 21 Jul 2013 07:34:43 +0000
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