I’m acutely aware of how broken our marriage system is in India. Instead of a marriage being between two people who freely choose to stay with each other, it usually becomes a life that is socially forced upon them – the threat being excommunication from the extended family.
For me, the real question is what the legal scene should be like. Should laws encourage the status quo by introducing concepts such as “mental cruelty” or should the laws try and improve the current situation by enacting progressive legislation meant to give freedom to both men and women and allowing them to break free of the shackles of an archaic mindset?
DG had posted a link to a news story where the Bombay HC had ruled that a husband keeping a mistress constitutes mental cruelty to the wife and he can be punished under section 498A of the IPC. At first glance, this seems quite reasonable. In the cited case, the woman was clearly driven to distraction and killed herself because of her husband’s affair.
But the real issue is deeper. Should the law be allowed to decide what constitutes acceptable behavior in interpersonal relationships? No two marriages are the same. Who knows why any two individuals decide to live together and under what terms that relationship is formed? Keeping a mistress cannot be ipso facto proof of mental cruelty. The couple can be estranged and married in name only. They can have a sexually “open relationship” where each can still sleep around with whomsoever they want. Or perhaps one party has made it clear that if the other strays, they don’t want to know about it. The mere fact of adultery isn’t sufficient evidence of mental cruelty.
But then of course, the woman in question committed suicide. So that’s evidence right? Perhaps not. A few days ago we got the tragic news of a girl committing suicide because her boyfriend broke up with her on Facebook. Now he’s facing charges of abetting suicide. But is the court to now decide that breaking up is illegal? Or perhaps we should make a law saying that breaking up on Facebook is illegal!
The law or the courts have no business being the moral arbitrators of what transpires in personal relationships. It has to step in only when there’s physical violence because then one of the parties can’t protect themselves. But mere emotional harassment shouldn’t be in the purview of the law because most of it just comes down to a person being a jerk. And we can’t criminalize that!
Having an affair might indeed be traumatic for the man’s wife. Which is why we have divorce laws. Which takes me back to what I said in the beginning. Marriage in India isn’t viewed as a mere choice to live together. But a law should be applicable to everyone and not just those for whom the meaning of marriage is “understood.” There can be many reasons for a man or a woman to commit adultery. Those reasons are none of a court’s business. If one of the parties wants a divorce, it should be granted irrespective of who’s “fault” it is.
Advanced societies always have “no fault” approaches when it comes to divorce. Courts there recognize that they can’t play moral arbitrators. They step in forcibly only when one person physically abuses another. But deciding what is “proper” and what isn’t assumes that all marriages are the same – and they’re not.
The odd laws like 498A in India only reinforce the feudal view of marriage – that a woman is forced into it and doesn’t have the choice of divorcing her husband. More importantly, it propagates the view that grown women are not adults and that they don’t have the ability to take their life in their own hands.
Unless the law stops babying people, how will they wake up and exercise their own dignity? In many ways, laws lead and society follows. The decriminalizing of homosexuality by the courts isn’t popular in the country. But over time the laws will “filter down” and seep into people’s mind. With laws like 498A reinforcing the dependence of a woman on her husband, how is she ever going to wake up and take her life into her own hands?