Grounds for Divorce

Hold the outrage, please.


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.


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.

Should we let the Supreme Court decide?

Should government officers have red beacons on their cars? Let’s ask the Supreme Court. Should people be allowed to have tinted car windows? Let’s ask the Supreme Court. Should children eat their vegetables? Let’s ask the Supreme Court.

I don’t watch too much cricket these days, but this bit of cricket-related news was unavoidable. The Hindu ran it on its front page more than once. The Supreme Court, the highest court in the land, is deciding who should manage a sports tournament. The Court has also suggested that maybe two teams whose owners were found to be involved in betting and/or spot fixing not be allowed to play in the tournament.

I must ask why. Is the question of who runs the stupid tournament of national importance, do we think? Even if you think it is, surely the branch of the government deciding whether the son-in-law of the person running the tournament can also own a team playing in the tournament is not the judiciary but the executive — the Income Tax and Revenue departments, say, or an anti-trust regulatory body.

There are two reasons I think decisions like this should left out of the purview of the judiciary. First, surely the Court has better things to do with its time. We know this because the case backlog in the Court runs into months if not years, and even if some fraction of these cases is frivolous or, as above, shouldn’t really be on the Court’s plate, that still leaves a lot of work to be done.

The Supreme Court is the defender of the constitution against excesses of the legislature and the executive. It is up to the Court to strike down laws that are unconstitutional. And yet, in the case of section 377, not only did the Court not do this, they even undid what the Delhi High Court had done, in effect saying it isn’t the Court’s job to rewrite laws, but only to interpret and apply the laws given to it.

I disagree that section 377 should remain on the books because the legislature is too farting busy to rescind it. The Court failed to strike down a law that violates the fundamental right to freedom of a large number of people. But just as worrying is the fact that this apparent strict separation of powers that the Court wants to practice somehow doesn’t apply to whether the court can pick names out of a hat for who should manage a cricket tournament. Should we be worried that the Court is apparently okay with judicial activism and stepping on the executive’s toes for a cricket tournament, but isn’t willing to do the same thing for gay rights?

The second reason is this. What does it say about the system of governance in this country if everything has to be decided by the Supreme Court? Should government officers have red beacons on their cars? Let’s ask the Supreme Court. Should people be allowed to have tinted car windows? Let’s ask the Supreme Court. Should children eat their vegetables? Let’s ask the Supreme Court.

We seem to have a system of governance that continually moves every decision up one rung until the Supreme Court has to pass judgement on matters that a) its judges may have no expertise in, and b) should have been dealt with at the level of a municipal office. This is abdication of responsibility masquerading as deference to the Supreme Court.

Douglas Adams observes, in the masterful Last Chance to See, that this is characteristic of a nation that hasn’t extricated itself from the mindset of being a colony. Officials in such countries, he says, “rarely have the power to do things, only to prevent them being done until bribed.” He couldn’t have been more right.

Manmohan Singh talks to the press

You may already have read about this, especially if you read the newspaper everyday (or just on Tuesday, the 7th of September – you know, I’m just saying…)

Manmohan Singh was interviewed by several editors.  He talks about why it is that the Government cannot randomly give away the foodgrains, even if government-owned godowns have surplus stock.

His reasoning that farmers will stop producing food if the government starts giving away free food may be a little too Ayn Rand-ish for my liking. Also, it may seem a bit obtuse to say that when you have 37 percent of your population below the poverty line, and there’s no way you can feed all of them for free, you can’t feed a some part of them (because that would be unfair to the rest, I guess). But when he takes on the Supreme Court and says that the higher judiciary in this country should not go around talking about policy formulation, I think he’s spot-on.

I’ve written about this before. You should also read Arundhati Roy’s dismantling of the judiciary’s keenness to stick their noses in other people’s business:

The higher judiciary, the Supreme Court in particular, doesn’t just uphold the law, it micromanages our lives. Its judgements range through matters great and small. It decides what’s good for the environment and what isn’t, whether dams should be built, rivers linked, mountains moved, forests felled. It decides what our cities should look like and who has the right to live in them. It decides whether slums should be cleared, streets widened, shops sealed, whether strikes should be allowed, industries should be shut down, relocated or privatised. It decides what goes into school textbooks, what sort of fuel should be used in public transport and schedules of fines for traffic offences. It decides what colour the lights on judges’ cars should be (red) and whether they should blink or not (they should). It has become the premier arbiter of public policy in this country that likes to market itself as the World’s Largest Democracy.

I think it’s fantastic that the Prime Minister has just asked the Supreme Court to mind its own business.

I also think what he had to say about people in his government disagreeing with each other, or two ministries in his government fighting it out (the Environment ministry and the Civil aviation minister are at loggerheads over the Navi Mumbai Airport. The Environment ministry also stopped Vedanta from plundering Orissa’s forests. Kamal Nath and Montek Singh have gone toe to toe) was brilliant. He points out that Nehru or Indira Gandhi’s cabinets had a lot more internal disagreement, and that disagreement should be the norm in a democracy, not something to be looked upon as a bad thing.

He also says, of his being interviewed by several top editors, that the pigeon has been set amongst the cats. Indeed!