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Posted: Fri, Jun 18 2010. 8:26 PM IST
A new, proposed amendment could make divorce a speedier, hassle-free option. is india ready for the change?
Cordelia Jenkins & Bhavna Raghuvanshi
In 2006, the Supreme Court found itself presented with a quandary: a messy divorce case that had worked its way up from the family court of Kanpur through the Allahabad high court. It was a typical appeal case, fraught with acrimony and confusion, detailing the turbulent relationship of Naveen and Neelu Kohli, married in 1975. But the landmark judgement it was to receive would prompt an overhaul of the Hindu Marriage Act and ease the path to divorce for millions of Indian couples.
The Kohlis had filed for divorce in 1994 and legal documents show details of a bitter and protracted battle involving police orders, claims of theft, cruelty, adultery and physical violence—all relatively common in Indian divorce courts. In Kanpur, the couple had been granted a divorce, but a successful appeal to the Allahabad high court had overturned that judgement. It was for the Supreme Court to settle the matter.
The judges’ exasperation as they attempted to decipher the details of the 20-year battle is clear from their case notes. Should they or should they not grant the estranged couple a divorce? Could they prove cruelty? Who was more to blame? As the issues were debated, it became apparent that the existing legal framework couldn’t encompass the complex realities the Kohlis faced. The law, as it stood, was too rigid for a society that was changing fast.
It wasn’t the only example of the system frustrating otherwise clear circumstances. In December, Smriti Shinde, daughter of Union minister Sushil Kumar Shinde, asked the Supreme Court for a divorce on grounds of “irretrievable breakdown of marriage”. Seeking to end her unhappy marriage and frustrated by her husband’s persistent refusal to a divorce by mutual consent, Shinde’s counsel argued that by not granting her a divorce the court was violating her constitutional right to live life with dignity.
In finally granting the Kohlis a divorce, the Supreme Court added a plea to the Union of India “to seriously consider” introducing a new ground for divorce into the Marriage Act: that of “irretrievable breakdown of marriage”. Indian courts have traditionally been wary of this ground, accepted in US and British law, fearing that it diminishes the sanctity of marriage vows, though there have been exceptions. In a 1971 case, Yousuf vs Sowramma, the judge made a poetic plea for more leniency. “There is no rose which has no thorns,” he said, “but if what you hold is all thorn and no rose, better throw it away. The ground for divorce is not conjugal guilt, but breakdown of marriage.” Still, throughout the 1980s and 1990s, judges continued to describe marriage as “made in heaven” and claimed that irretrievable breakdown was not a good enough reason for divorce. Over the last decade, their tone has changed.
“Once the marriage has broken beyond repair,” the judges concluded in the Kohli case, “it would be unrealistic for the law not to take notice... The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie, the law does not serve the sanctity of marriage... it shows scant regard for the feelings and emotions of both parties.” Gradually, the way was being cleared for a new path to divorce; one which would be speedier, more even-handed and less humiliating for the unhappy couple.
Last week, a draft Bill from the Union government proposed amendments that would allow couples to cite “irretrievable breakdown of marriage” as a reason for divorce. India’s marriage law looks set to evolve, and there seems little political objection to the proposal. The Bill passed through the cabinet without debate, and the news has been greeted without much fanfare and fuss. In fact, the reaction to the amendment is a clue to its pertinence and evidence of a willingness on the part of the courts and the government to keep up with a changing society. Shinde could be among the beneficiaries of the new amendments.
It is no longer contentious to say that divorce is on the rise in India. Though the numbers remain modest (11 marriages per 1,000 end in divorce, compared with 400 in 1,000 in the US and 200 in 1,000 in China), the increase is sharp (in 1991, the figure was 7.41). Marriage counsellors, lawyers and psychologists overwhelmingly attest to the increase.
“Divorce is no longer a stigma, so people opt more readily for it,” says Suhail Dutt, a New Delhi-based divorce lawyer, who has been practising for 25 years. “Women are much less dependent on the husband for matrimony and alimony, so more mutual divorces are being sought.” With a new generation of working, economically independent couples, a divorce can take place without ruining the livelihood of either party. For the most part, these conditions exist only in the cities, however. It is much rarer for women living in rural areas to be financially independent.
With this in mind, the draft Bill makes provision for women without income. A woman can appeal to the courts, citing financial hardship, and the divorce will not be granted unless she is properly recompensed. The same applies to divorces in which children or dependent family members are involved; the court must be satisfied that they are being provided for. Even unmarried adult daughters are being taken into account.
Until now, couples wishing to split have had to choose between two unsatisfactory options. Either they can cite “matrimonial fault” (in which an allegation such as adultery, cruelty or insanity must be proved against one partner) or they can choose the “mutual consent” route (which can be delayed for years in court if either partner refuses to participate, wasting court time and leaving the loser stranded in legal limbo). “It’s time-consuming and it causes a further rift in any situation,” says Dutt of the current situation. But the narrowness of the choice offered to couples at the moment can also make a divorce needlessly acrimonious and humiliating for those involved.
Delhi high court lawyer Arun Khatri cites one case in which a girl from a traditional family decided to tie the knot without her parents’ consent. Two years into the marriage, she fell in love with a colleague and started dating him. She wanted a divorce but her husband would not consent. So she was compelled to file false charges of cruelty against him. Later she confided to her lawyer, “I had no ill feelings for my husband, but to seek (an) easy divorce, I had no option but to frame wrong charges against him.” Her story is not unique.
Shaifali Sandhya is a clinical psychologist and the author of Love Will Follow: Why the Indian Marriage is Burning, which, as the title suggests, takes a dim view of the state of Indian marriage today. Between 1996 and 2009, Sandhya interviewed 400 Indian couples about their marriages and made some surprising discoveries. First, the vast majority of divorces are instigated by women, Sandhya says. The contemporary stereotype of an Indian divorcee is one of a young, financially successful city dweller, who places little emphasis on religion and tradition and more on self-gratification. But Sandhya claims that portrayal can be misleading. “Divorce is not restricted to the youth; nor is it simply an urban phenomenon,” she writes, “it is also afflicting marriages beyond 10 years. Divorce, it is claimed, is the new accessory to marriage in India.”
The new law promises to address women’s rights issues within the divorce process. The combination of changing attitudes to female divorcees and increased financial independence is a potent one, and along with the changes to inheritance law in 2005, giving equal rights to all siblings, including sisters, heralds another stage in the progress of the women’s rights movement. Aruna Broota, a marriage counsellor and psychologist, sees shifting attitudes in family life and says the rise in women seeking divorce could be due to this. “Women do not passively tolerate undue treatment to the extent they did earlier,” she says. “The attitudes have changed over the decades. Not only economically independent working women, but also those from wealthy and affluent families do not take nonsense.” But Broota is cautious about overemphasizing the “progressive” society theory. “Sociocultural attitudes are still backward and conservative even in the most educated and affluent bracket,” she says.
Ajay Singh, research scholar at International Institute for the Population Sciences, Mumbai, agrees with Broota’s reasoning. “The major cause of divorce in urban India, particularly in metro cities, is the growing self-dependence of women,” he says. In 2002, Singh conducted a study of divorce in Mumbai for the institute and found that more women were taking the initiative to file for divorce. “Women are no longer submissive and cannot tolerate discriminatory behaviour,” Singh says, “and the fact that men are trapped in their stereotyped gender attitude means more and more discords in the home.”
In the case of divorce by mutual consent, the courts give the couple six months in which they may rethink their decision before moving on to finalize the divorce. This is the danger time, when one of the partners can hold the other hostage by “changing his (or her) mind” and blocking the divorce. It is most often men that use this tactic, says Broota. “Men are more practically oriented; they do not garner guilt about failed relationships or their role in them and are likely to withdraw from mutual consent proceedings to harass the wife. Men are possessive and unwilling to let the partner go. Many have gone to the extent of stating that they do not wish to incur the high expenses involved in remarriage, having once borne the cost.” Now, this kind of emotional blackmail will be impossible. One partner can get a divorce alone if they can prove a broken marriage and show a three-year separation period.
Not everyone predicts that the new law will make divorce an easy answer to marital strife. In researching her book, Sandhya found that most unhappy couples were choosing to stay married, especially if they were in their 40s or older. “With an apparently easier divorce option, we may see a spike in divorce,” she says, “but it may be due to the clearing of a backlog of cases. Most Indians are reluctant to divorce, choosing their own personal options of dealing with unhappy marriages, instead, by leading as*xual lives and creating separate spheres of existence in one home.”
The personal stories in Sandhya’s book detail a depressing litany of intimidation, threats and emotional blackmail used against women. “And yet, despite the terrible bargain that divorce offers them,” says Sandhya, “80-85% of wives will initiate divorce.” Sandhya sees Indian women as inherently submissive. “In my 10 years of treating couples in therapy, I have seen Western women battle for the fulfilment of their wishes too, but the conforming to the family that has to accompany an Indian woman’s struggle, and their resilience, are particularly unique to our culture,” she writes.
Of course, not all Indian wives are victims—Broota gives plenty of examples where the woman has been equally at fault. In one instance, a woman who had applied for divorce under mutual consent, withdrew at the final hour citing suspicions that her husband was being unfaithful. A mutual friend had suggested he might be hiding an affair from her and she baulked at the idea of letting him off the hook. “If I sign this, he will get freedom by midnight,” Broota remembers her saying.
The proposed changes to the marriage Act will not mean the end of the road to reform. There are many aspects that the law ignores and plenty of details that have yet to be decided, including fairer division of assets and access to family property for the wife, not to mention the custody of children. Sandhya points out that without a truly equitable system, “the marriage malaise will continue and the recent divorce changes, in the face of grave and urgent societal need, will be only a cosmetic fix.”
Additionally, the changes are confined only to the Hindu Marriage Act and the Special Marriage Act, covering Hindus, Buddhists, Sikhs and Jains, meaning other religions (most notably Christians and Muslims, who have the strictest divorce laws) will remain left out of the system. But the sheer pragmatism of the proposed amendments marks a crucial step forward by the government at a time when the need for a realistic solution to dealing with divorce is becoming urgent. As the judges concluded in the Kohli divorce case, “Nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist.”
Manish Ranjan contributed to this story.