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?
I didn’t know that India doesn’t have a ‘no fault’ divorce law…What if I want to divorce my husband because I don’t get along with him any more? Do I have to manufacture incidents of cruelty and destroy his life just to get a divorce?
In reply to Sraboney
A few courts these days are beginning to accept that two people just can’t get along. Even then they delay the process, force them to undergo counseling sometimes etc…
I am responding to this, let me write a post in response.
Hi,
I just read some of your posts and I find myself agreeing with so many of your views. It so heartening to see your posts that speak so rationally on crucial aspects of our society. Will be reading more of your blog and am blogrolling you in the meantime :)
In reply to Nivedita
Thanks Nivedita :)
I will write that post tomorrow, for now just take a look at exactly what expectations, and attitudes a woman is raised with. Her biggest opportunity is that now with a shortage of girls, she can find husbands more easily (can she really?)
If she is educated, it is because today’s modern men don’t want wives who can’t handle their children’s home work and their bank jobs.
If they are ‘allowed’ to earn it is because the husband (and his family) realizes that she should be able to support the family if required (or a second income is needed, and wives must support the husbands in all their endeavors).
Getting married is seen as her only goal, and divorce is seen as a woman’s life ruined. It’s possible (and sadly very common) for parents to persuade a reluctant son to marry a woman seen as good daughter in law, no matter how incompatible. How and which laws will empower this woman if she can neither leave her husband nor stop his extra marital relationship or any other emotional abuse? Do you realise she is likely to see divorce as a punishment – because it would mean that she has most probably nowhere to go, no means to support herself ? (etc.) When she was married – specially in an arranged marriage scenario, it was understood that her duties consisted of obedience and servitude. Self reliance is actually seen as a social evil that results in divorce. And more than 80% Indian population is still like that.
Do take a look at this post, these are the views of highly educated family elders. This is how a huge population in India thinks, even today. Do young men today, who hate laws that support women think differently? Do read Haresh’s comment.
http://indianhomemaker.wordpress.com/2011/09/30/early-and-arranged-marriages-within-the-community-prevent-social-ills/
In reply to indianhomemaker
I see what you’re trying to say. And I agree with you about the way marriage and divorce are viewed. So what do we do about it.
I’m sure we all agree that the correct long term solution is the empowerment of women. This means we have to enact laws which first and foremost give women the capability to extricate themselves easily from failed marriages and remove hurdles which prevent her from earning her living independently. Whether or not they make use of these facilities is beyond the scope of government. We can take a horse to the water…
Unfortunately, enacting such laws runs directly opposite to laws such as 498A which serve to reinforce the idea that the woman is a victim! We know there’s a problem. Do we want our laws to accept that problem at face value and further cement it into existence? Or do we want laws which will in the long term lead to the solution?
We can either one or the other. We can’t have both.
I feel we made the same mistake with the whole caste/reservations thing. In our short sightedness we made caste into a permanent fixture of our society because of reservations.
Many Indian families marry their sons, with massive dowries and when they have had a child (always a girl child) decide they want a new wife with more dowry for their son. This is common. Unbelievable but common. In the past such people got the son married again – that was convenient. Now they need the wife’s signature for divorce before a second wife can be brought in. I personally know of a 28 year old woman who said, their daughter had a lot serious medical problems and developmental delays, and she said she knew she was not going to able to care for her without the father’s support. The father did care for the child, but his mother felt the daughter in law was not respectful enough.
Now if it was easy for the man to divorce her, his family would have ensured that does happen. His wife refused. She said he couldn’t get a ‘new wife every two years’ and she said there was no way she was going to marry again, with the child taking all her time and energy. For the same reason she couldn’t work either. The harassment was immense, but she said if he married and had other children, he would not be able to (or be willing/allowed to) help her financially and otherwise, with caring for the child. Now the man is 40 and the child is eight or nine.
In this case, and many other not exactly the same but with very similar dynamics (dependent mothers with children), women do not need divorces, they need the assurance that they can take action against an irresponsible and abusive man.
In this case, the man was fine when his family was away, and the woman only wanted that much. Not divorce from the man, but from his family. The family didn’t care for the child, the father did, but not enough to go against the family. (Indian sons do this all the time, its common, they are good husbands, until their families make them feel like Joru ka Gulaams – they are conditioned to be Sravan Kumars just like their wives are conditioned to be sati-savitris).
Indian law makers do seem to acknowledge the above mentioned facts. Divorces and abuse is not always by the man but often by his entire family – specially when the parents in law live with the couple.
In many cases a child is named by, raised by, and sometimes even taken away to the grand parents’ house to ensure a hold over the parents.
What kind of laws could help women in such cases?
Laws that ensure that they can not be married and divorced at in laws and husband’s whim (it’s very difficult for Indian families to accept this), that they have child custody and means to raise the children, and, many times, they should be able to ‘save their marriages’ of that is what they feel they need to do.
Does giving equal citizens rights to ensure they are not exploited into babying their spouses and their families, mean they are being babied?
In reply to indianhomemaker
I think perhaps laws need to be strengthened to ensure that a mother has the same rights over a child that the father has – I’m not a lawyer so I don’t know the nuances of the current legal situation in India.
I agree with you that there’s no easy solution. But what does one do when a woman has the tools to fight back but refuses to use them? She has the ability to insist for example that the child remain with her. If she puts her foot down, she can prevent it from happening. But what does the law do when she refuses to use that power?
I can imagine so many women just giving in because they want to avert conflict. Because they don’t want to be seen as a “bitch.” But what does the law do about such things?
I’m pretty much at a loss here. How do you stop someone from willingly going like a lamb to the slaughter?…
I fully agree about giving all citizens equal rights. But what do we do when those citizens don’t use their rights!
In reply to bhagwad
Bhagwad,
I disagree with IHM’s solution that the woman in the above example can force the man to stay married to her by refusing divorce. The solution is to have judicious allocation of custody and maintenance.
If one goes by that logic, the man should be able to prevent his wife from divorcing too if she wants out. I am sure nobody on this thread will agree to that, whatever be his reasons for needing or wanting to stay married to her.
This simple gender-flip puts many such examples in perspective for me. In other words I agree with IHM if she says
“Making divorce easy *as it currently stands* is not going to help women”
even though I disagree with what appears to be her conclusion
” let us therefore keep divorce more difficult” (my interpretation, not an exact quote, hope I am wrong)
By the way should laws be judged only by whether they help a specific gender? That seems to be the nub of the discussion here between you and IHM.
thanks
Jai
In reply to Jai_C
I’m reminded of the reservation system once again here. We in India seem to enjoy this kind of law making – giving a section of individuals more rights than others to compensate for socially induced poor treatment.
A very short sighted policy if you ask me.
In reply to bhagwad
This analogy helps. Caste discrimination is alive and well, esp if you step away from the big cities. Reservation seeks to address this – though in a way that I dont fully agree with. The difference between this and divorce being discussed in this thread to me seems to be:
when a continuance of marriage is forced upon a person of gender X their rights seem to be directly and transparently affected.
The analogy is perfect in terms of reservation for women in parliament. Not so much divorce.
BTW I am not too sure about *not* allowing mental cruelty as a category. I think the quantum of divorce awards given to the applicant can be contingent on cruelty and would even think that severe mental torture is a punishable offence the perpetrator can go to jail for. I agree with you that its difficult to establish or prove this.
thanks
Jai
Bhagwad they still have to have equal rights. I am strongly in favour of media campaigns, just like ‘Hum Do Hamare Do’ against domestic violence and street sexual harassment. My maids, and I have blogged about this, were overwhelmed and tearful when they saw ‘Bell Bajao’ videos, they had no idea that domestic violence is seriously condemned. They have not seen this in their life, subtly, directly, accusingly they are told DV is a matter of destiny and it’s their power to control it.
Awareness creating is like a magic mantra (it really is) along with equal and empowering laws. Making divorce easy is not going to help women – making DV difficult and scorned, condemning victim blaming will help too. And then, of course self reliance and the awareness that there is more to life than Getting Married and Staying Married can help, more than even education, in fact this helps like nothing else does.
In reply to indianhomemaker
Yes, yes and yes! Awareness and educated/respected people speaking out personally to the people in their lives (like you with your maids) is what will change things. Perhaps not for then, but they’ll teach their children differently.
Social change is always slow. And laws should be changed only to the extent of giving everyone equal rights. Teaching people to use those rights should be left to themselves.
But they should know they have equal rights. A huge majority does not know this.
In reply to indianhomemaker
Good point. Perhaps the government should launch a mass campaign on the lines of their family planning programs. Campaigns, cartoons etc to show that women have as many rights as men do and the same powers…
@Jai –
//If one goes by that logic, the man should be able to prevent his wife from divorcing too if she wants out. I am sure nobody on this thread will agree to that, whatever be his reasons for needing or wanting to stay married to her.//
In India women are prevented from divorcing by not the man alone but by the entire society. Not because they are financially supporting their spouse and children; not even because the spouse cares to be married to them, in fact the husband could be in an extra marital relationship while married to them; he could be physically and verbally abusive and not even supporting her financially, and still she is expected to stay married. I know of women in such marriages, they also take care of their (unfaithful) husband’s parents. They remain dependent on the husband and tolerate everything so that he does not divorce them. When a rare woman does ask for divorce, there is pressure to stay married. I have blogged about many such cases, and such situations lead in many cases to the woman’s death (burns, suicide etc). But for traditional minded Indians, death for women is seen (this is changing very slowly) as better than divorce.
All the worries about Indian society breaking down started after women started seeking divorces, although a very small number dares to do that, even when it is clearly the sensible thing to do. And they face social stigma.
There is a much larger number of men marrying under pressure from family or for dowry, knowing full well that their wives cannot divorce with the same ease they can. (Financial dependence and disapproval of their own families, and then second marriages are more difficult for women and women are made to feel being married is the only way to be for women.)
//This simple gender-flip puts many such examples in perspective for me.//
Gender flip then should begin right from the beginning. Women being welcomed when born, as heirs, bearers of family name, paid dowry to marry a spouse who ensures they are free to focus on their careers and financial independence; raises their family and provides elder care for their parents – and still remains dependent, emotionally, socially, financially and in some ways even legally (this has changed and is changing). And their spouse should leave his family, career opportunities and name, and relocate to their homes.
// In other words I agree with IHM if she says
“Making divorce easy *as it currently stands* is not going to help women”//
Women in India are raised to get married. Their education, how they dress, what jobs they pick, what kind of food they eat, what kind of friends they make – is decided by how it affects their chances of finding a husband.
How does one change how divorce impacts women? Financial independence is difficult to achieve so long as child care, house work, supporting spouse’s career, and elder care etc are seen as solely women’s jobs. Social stigma, family’s disapproval, risk of losing children’s custody (fathers are natural guardians) make it still tougher.
Also do think about why women choose to live in unhappy, violent, abusive marriages instead of seeking divorce. Aren’t women under bigger pressure to ‘save their marriages’ – in fact it is seen as women’s job?
Until all this (and more) changes,
how is making divorcing easier going to help women? It will be like going back to the times where men could marry and ‘leave’ their wives for reasons like their not giving birth to male children (still stands) or the man finding another woman etc. And then too women preferred staying with a second wife to divorce. Why? How can we gender-flip here?
In reply to indianhomemaker
If you have written that post that says
IHM: “if one party wants to divorce it should be granted no matter whose fault it is”.
but also in the above comment have said
IHM: “Until X & Y & Z (and more) changes making divorce easy is not going to help women”. This is equivalent to saying ” if the party that wants a divorce is male it should not be made easy since its not going to help women”.
its a little confusing. Bhagwad made a perfect analogy with reservation laws. That helps a bit. anyways thanks.
thanks
Jai
I am at a complete loss for solution. Theres so much subjectivity involved when it comes to defining “Mental Cruelty”. Whats cruel to me may be tolerable for another. How do you ever come to a concensus about it, to make a law against it?
When I look at the dysfunction in relationships…I find myself coming to the conclusion that many others around the world are coming to – As a woman, it is really not “beneficial” to get married or have children. Its better to fend for ourselves instead of falling into the age old trap of traditions and definitions of how a woman should be according to someone else. Heres a News snippet along the same lines from South Korea. http://www.reuters.com/article/2011/10/02/korea-demographics-idUSL3E7KS0SW20111002?virtualBrandChannel=13760
Read the Paragraph entitled “Difficult Traditions”.
@ IHM – I have to slightly disagree with this as this is only a part of the numerous reasons – “All the worries about Indian society breaking down started after women started seeking divorces, although a very small number dares to do that, even when it is clearly the sensible thing to do. And they face social stigma.” I thought the worries are different depending on which Indian society you are talking about. In some Girls(they forget that so is the boy) marrying outside their communities is the path to society breaking down. In others Girls having an education and wanting a career is breaking down the society. In still others, Girls opting to not have children is breaking down society. The only common factor in all those reasons is that the GIRL is seen as the perpetrator. The boys are such innocent, straight line walkers, who keep the society in order. *sigh* I just wish they would see it for what it is. Ideas change over time, and that changes what is acceptable and unacceptable within a society. The best way would be to see what makes sense, what helps every person that makes the society, what is relevant under the circumstances and walk with it.
In reply to Mysoul
Completely agree.