Grounds for Divorce

Hold the outrage, please.

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You may have read recently about a case in which the Supreme Court granted a man’s request for divorce from his wife, in a case that has been in court for almost two decades. (Think about that for a second… two decades of a person’s life–in addition to the money and effort–wasted trying to just move on with life.)

There’s more than one article calling the judge a regressive moron who saw fit to lecture the world on how the ideal daughter-in-law should behave, although from how little of the judgement they quote, I’m not sure anybody’s actually read the entire judgement.

I did. It was 17 pages of baby-kangaroo-Tribbiani English.

The central question the judge had to answer was this: did the woman, by accusing the husband repeatedly of infidelity, by harassing him about living separately (i.e. not with his parents), and by threatening to (and actually attempting) suicide, act cruelly towards the husband? In particular, did this “cruelty” cross the legal threshold of grounds for divorce? The Court finds that it did. And there the matter should have ended.

But no. We can’t just let a judgement of the Supreme Court go without some outrage. (Me included: my knee-jerk reaction was to react with outrage too.) This, I think, is a case of the outrage machine gone nuts. I’ll talk about The Wire‘s article (by Ratna Kapur) on the matter in particular, although many more exist.

Bear in mind the following: “cruelty” is one of the (ten listed) grounds for divorce defined in law. As divorce becomes more accepted in society, we will necessarily see some shoehorning of cases into one of these categories. There isn’t a category of “unresolvable differences”, for instance. And in order to grant divorce for “cruelty”, the judge has to show why some behaviour is “cruel”: i.e. why a husband may have been aggrieved that a wife badgered him about leaving his parents. In such cases, the done thing is to appeal to “the average citizen”. This isn’t the Court saying this is how it should be; only that this is how it usually is, and that the husband is justified in feeling aggrieved.

Put differently: if the man wants to take care of his parents who have no source of support apart from him, and the wife wants him not to, and this disagreement is unresolvable, would you grant the husband’s request for divorce? If you say yes, and you’re the judge, you’ve to justify your “yes” by saying why; i.e. by filing this divorce under one of the allowed grounds.

With me so far?

In her article, Ratna Kapur says:

the Indian Supreme Court has just handed down a decision that reinforces male privileges and subordinates the role of women in the family.

The decision that a Hindu son has the right to divorce a Hindu woman who does not subscribe to the position that a Hindu son should support his parents, is not only alarming, it reeks of nothing less than a narrow, repressive mentality that reinscribes Indian/Hindu women as second class citizens.

Did the decision say a Hindu man can unilaterally divorce his wife for disagreeing with him about whether he should support his parents? No. It pointed to paranoid accusations of infidelity, and threats of suicide, in addition to harassment about leaving his family (see above). Making it seem as if the decision only talked about the one thing you want to rant about is misrepresentation.

More:

The judge’s views fit within a mindset that continues to regard Hindu (and non-Hindu) women as not only less than human, an appendage to men, but also allocates their rights according to the performance of their familial roles as good wives, mothers, daughters and sisters. Furthermore, it renders Hinduism as a restrictive, discriminatory and regressive tradition, where Hindu women’s roles are only ever understood as serving the husband/Hindu son, and ensuring that her behaviour does not upset his “tranquility and peace of mind.”

I think messing up my peace of mind should be grounds for divorce. But since the law doesn’t allow it, we’ll call it “cruelty”. The judgement doesn’t say “a woman’s job is to ensure her husband’s peace of mind and not vice-versa”. That’s Ratna Kapur putting words in the judge’s mouth.

Some more:

The bench has exposed its gender and deeply myopic religious biases, exemplifying the need for the training and education of judges not only in how to treat women as equal citizens of India – rather than as someone’s wife, daughter or sister – but also in India’s heterogeneous cultural histories.

Where did daughter or sister come in? This citizen of India badgered this other citizen of India until he couldn’t take it any longer. He wants divorce. Do you give it to him or not?
The point about heterogeneous cultural histories is also moot, for the reasons of appeals to “the average citizen” I noted above.

Even more:

Justice Dave’s unsolicited views in this case continue to favour a hegemonic understanding of Hinduism as well as the assumption that the dominant family form that exists within India is and should remain heteronormative, Hindu, joint, and based on male privilege. By validating this family form, he negates the diverse and heterogeneous ways in which people live their lives in India and also undermines the pluralistic features not only of Hinduism, but of all faiths, where Indian society cannot and should not be equated exclusively with “Hindu society.”

OK, first, the judge’s views on the case were quite literally solicited. But never mind that. The judge’s statements about whether a wife asking that her husband not give money to his parents was “cruel” only applies to this case. The judge’s opinion on how society should be are irrelevant.

This case is a drag anchor on women’s rights and represents a shameful display of the gender and religious biases of the judges. The decision suggests that the court was more interested in sending a political message that a specific family form must be rescued from potential disintegration as well as addressing the anxieties over what this would mean for men. In the process, it has eradicated the hard fought for space for the recognition of multiplicity and different family forms as well as the struggle for the recognition of gender equality within these diverse forms. The importance of family does not rest in Justice Dave’s singular conception, but in the different perceptions and experience of family by different caste, class, religious and sexual sub-groups. It becomes a bastion of strength when such groups are under siege from a majoritarian politics that is intent on eradicating difference and diversity. The court’s reductive and narrow holding just made the work of gender equality and the recognition of difference all the harder.

If you remove references to the court and the judge, you could copy-paste this paragraph into literally any article about society. It’s as if there’s a pre-written script and we’re all playing mad-libs.


Aside: I’m still stuck on why it could possibly take 20 years, and a Supreme Court judgement, for a man to get a divorce. Mindboggling.

4 thoughts on “Grounds for Divorce”

  1. While such things should absolutely be dealt with on a case-by-case basis, there *are* grounds for outrage. I did read the entire judgment and I am not sure how some of the “appeal to culture” stuff which is quite misogynistic happened to be in there in the first place. Of course, the woman’s threats and suicidal attempts were horrific, but her needs to live separately TWENTY goddamn years ago should also be grounds for divorce and ignoring her pleas for the same should also be cruelty. From the judgment:

    //The Respondent wife wanted the Appellant to get separated from his family. The evidence shows that the family was virtually maintained from the income of the Appellant husband. It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife,especially when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meagre income. In India,generally people do not subscribe to the western thought,where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her.

    In the instant case, upon appreciation of the evidence, the trial Court came to the conclusion that merely for monetary considerations, the Respondent wife wanted to get her husband separated from his family. The averment of the Respondent was to the effect that the income of the Appellant was also spent for maintaining his family. The said grievance of the Respondent is absolutely unjustified. A son maintaining his parents is absolutely normal in Indian culture and ethos. There is no other reason for which the Respondent wanted the Appellant to be separated from the family – the sole reason was to enjoy the income of the Appellant.//

    Sorry, but isn’t that just a little bit rubbish?

  2. Swati, something is “grounds for divorce” only if somebody goes to court with a complaint. The woman didn’t. In fact, she appealed the grant of divorce by the first court.

    But if your point is that if the woman had gone to court saying she wanted to live separately, but her husband didn’t, and her in-laws were being “cruel”, the court should have granted divorce, I agree with you.

    I of course agree with you that the culture itself–of the woman having to care for the man’s parents and not her own (to say nothing of vice versa)–is misogynistic. My point is that it isn’t the Supreme Court’s job to change society. Or, in a milder restatement, I wouldn’t fault a judge for not aiming to change society in every ruling.

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