Under Section 13(1)(i-a) of the Hindu Marriage Act, a spouse may approach the Court for dissolution of marriage in a petition seeking Divorce on the grounds of cruelty. This article analyses the Courts’ interpretation of what amounts to cruelty and how the same is reflective of a gender bias that has further strengthened the notion of family and marriage being the most socially oppressive institutions for Hindu women.
The historical understanding of marriage in most religions is that of a sacred, sacrosanct union, an indissoluble bond. Ancient Hindu Texts conceptualised marriage, as a heterosexual union between a man and a woman, which once solemnised in accordance with the customs and rituals, was understood to be irrevocable and would form the basic unit of family institutions and the foundation of civil society.
Ancient Hindu Law recognised eight distinct forms of marriage, these being, Brahma, Arsha, Davia, Prajapatya, Gandharva, Asura, Rakshasa and Paisacha. The former four of these were the approved forms of marriage and the latter the unapproved. The ceremonies and conditions for a valid marriage were well defined and strictly laid down. With the codification of laws and the enactment of various acts like the Special Marriages Act, 1954 The Widow Re-Marriage Act, 1856 and the Hindu Marriage Act,1955 in particular, the concept of marriage evolved to its present understanding. Though marriage continues to be restricted to its heterosexual nature, the transition of society, the onset of modernity and the emphasis on individual rights and liberties, have re-conceptualised the civil union as more of a contractual relationship which may be terminated if the dissolution of the same can be justified under laws governing civil society.
Section 13(1)(i-a) of the Hindu Marriage Act, 1955 provides for cruelty as a ground for seeking dissolution of a marriage by a decree of divorce. What constitutes cruelty, however, is subject to interpretation of the Courts depending on the facts and circumstances of each to be case. Cruelty has been understood to mean conduct which makes the irrevocable breakdown of matrimonial relations apparent owing to the mental or physical agony as the case may be. Giving the term a rather dynamic interpretation, the Supreme Court in Samar Ghosh vs. Jaya Ghosh observed that cruelty as a ground for marriage, could not be restricted to a straitjacket formula and the understanding of the term was bound to change with the passage of time. The court was of the opinion that the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, and the impact of modern culture through print and electronic media on value systems, etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. The court further went on to enumerate certain instances illustrative of what would amount to mental cruelty.
Though the courts have given the term a contextual interpretation and have broadened its scope, what continues to influence the judicial opinion on whether or not an act amounts to cruelty, is the oppressive and patriarchal understanding of family and marriage historically embedded in society. The observations made by the Bombay High Court in 2012, when deciding on the question whether a wife’s refusal to move to her husband’s new place of work would be a valid ground for divorce as the same amounted to cruelty, are illustrative of this gender bias within the judiciary. The court, in the given case, was of the opinion that a married woman must embody the spirit of goddess Sita and willingly accompany her husband wherever he goes. The observations of the court were reminiscent of position women were relegated to in Manusmriti; that women, being incapable of individual existence, once married must always be under the control of their husbands, the only role and duty of a women being to obey and please her husband.
The court, in the given case, was of the opinion that a married woman must embody the spirit of goddess Sita and willingly accompany her husband wherever he goes.
A similar view on a woman’s role in the family, an institution based primarily on male privilege, seems to have found favour with the Apex Court in a recent decision, only this time; the same has been put forth in a different language and context. In a case involving a couple who had been living separately for over two decades and the facts and circumstances were such that breakdown of matrimonial relations was apparent and a decree of divorce was the inevitable conclusion to the proceedings, the Court, granting the decree on the ground of cruelty, held that a husband was entitled to divorce if his wife is she forced him to live separately from his parents.
To quote Justice Dave: “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.”
The questionable aspect of the verdict has been the reasoning of the Apex Court wherein in its understanding of what is culturally desirable within the realm of Hindu personal law has only furthered the concept of the Hindu Joint Family, with an authoritative male figure as the sole breadwinner, as the only form of family structure in consonance with Hindu values and in doing so, not only relegated other family structures as exceptions to the homogeneous understanding of family, but further aided the reinforcement of gender and cultural stereotypes within the institutions of family and marriage.
Under Section 9 of the Hindu Marriage Act, 1955 either the husband or the wife may apply to the court, for restitution of conjugal rights (the right to stay together) and the court may decree restitution of conjugal rights accordingly. This section explores the concept of sex within marriage and the lack of equality and autonomy of women therein.
Though the doctrine of equality embodied in the Constitution emphasises that the right to non-discrimination based on sex is a non-negotiable aspect of the equality guaranteed by the Constitution, women experience discrimination and unequal treatment in terms particularly within the realm of personal laws.
The attempt is to ensure that, under the garb of culture and tradition, the role of women is restricted to pre-determined spheres within the family and keep in place the patriarchy that thrives on control over, and access to women as well as the rules governing their behaviour and the self-willed subordination of a woman.
The concept of marriage as an irrevocable union may have evolved with time but the sanctity attached to this union still continues to be a justification for the misogyny which finds it place within certain practices that find legitimacy under the Hindu Law on marriage. Under Section 9 of the Hindu Marriage Act, 1955, either the wife or the husband can move a court for ‘restitution of conjugal rights’ (the right to stay together). Though the provision grants remedy to either spouse and those in favour of such a remedy under law emphasise that the provision is a gender-equal concept, the remedy becomes a bone of contention. A provision for the preservation of marriage – a institution that from its very solemnisation treats women as lesser beings – cannot be viewed in isolation but within the context of the unequal social relations it aims to govern.
In T. Sareetha v. T. Venkatasubbaiah, the court observed that the term “conjugal rights” constituted two ideas, that of the right which a husband and wife have to each other’s society, and the second of marital intercourse and sexual cohabitation. The court further went on to hold that the consequences of the decree of such nature were that the choice to abstain from or indulge in marital sex was transferred from the individual to the State. The Andhra Pradesh High Court was of the opinion that Section 9 was a “savage and barbarous remedy violating the right to privacy and human dignity guaranteed by Article 21 of the Constitution, hence void”.
The said decision was critiqued for its flawed reasoning predicated on an emphasis on sexual relations between husband and wife and was subsequently overruled by the Supreme Court. The fallacy however, lay not in the understanding of the Andhra Pradesh High Court, but in the subsequent decisions which failed to acknowledge the problem so rightly pointed out by the former.
The concept of restitution cannot be limited to a mere remedy sought for reconciliation but needs to be viewed within the broader context of sexual relations and autonomy within marriage. Where on one hand cohabitation can easily be forced upon a woman under the provision for restitution, giving absolute control over the body of a woman to another, there is no protection from offences of sexual violence within marriage, thus putting women in a rather vulnerable position in this union of ‘equals’.
The autonomy of a woman over her own body is lost in the hypocritical discourse on the sanctity of marriage.
When it comes to sexual violence against women within the realm of the family, the general approach is that of denial. Silence surrounds the issue, for the cost of raising voices is too high in a system that would willingly bargain the rights of individuals in order to preserve the patriarchal institutions for which they have such high regard. The argument against decriminalisation of marital rape, for instance is based on the notion that an offence of the nature is not only in disregard of the sanctity of the union, but as argued by some, also opposed to the Hindu culture and would be destructive of the institution of marriage. The autonomy of a woman over her own body is lost in the hypocritical discourse on the sanctity of marriage.
Consent cannot be implied or appropriated, nor can a woman’s right to her own body be violated in the name of culture. There seems to be an innate need to preserving a family system that not only shows complete disregard for an individual, a woman in this case, ensures that the control over her body is exercised by her husband, the State and every other person but her, and reinforces the feudal concept of marriage, a need that again reflects the patriarchal roots so deeply embedded in our society.
The idea that a woman, once married, ceases to have any autonomy over her body, any interests or desires of her own, and that male sexual entitlement is the cardinal principle governing marital relations, in which the sole role of the woman is to be a subservient being performing her wifely duties, is what enables a man to drag his wife to court on the ground of cruelty because she refused to have sex with him when pregnant. The court may have ruled in favour of the wife, but the questions surrounding the control over a woman’s sexuality within marriage are not answered lest the same offend the cultural values we must carry forward, even if they conveniently relegate the second sex to the status of a lesser being.
The question of Triple Talaq under Muslim Law took centre stage in the discourse on gender inequality also served as a catalyst for the debate on the implementation of the Uniform Civil Code, a move that has been contemplated by the Central Government since it’s coming into power. While the argument of those against the implementation of the Code rests upon the discourse of secularism, those in favour of a unified code of personal laws view the move as one that will guarantee and uphold the rights of all individuals and further the cause of gender justice. It is in this context that the position of Hindu women under personal laws, within the realm of marriage, needs to be reviewed.
Eminent jurist Leila Seth in her essay ‘A Uniform Civil Code Towards Gender Justice’ emphasises the need for unification of personal law saying that “We have a duty to the women of India to do away with all discrimination between men and women and make a personal law that will benefit all Indian women without distinction, be they Christian, Hindu, Muslim, Parsi, Sikh, or Buddhist. Take what is best in all laws and frame a Uniform Civil Code.”
What the outcome of this amalgamation of the ‘best’ of personal laws, all of which have for centuries treated women as second-class citizens, will be, is the question that remains unanswered. Will the code, both in body and spirit be a mere reproduction of laws that embody the patriarchal understanding of family and civil society that has come to define social relations? Will there be a mere replication of the distinctive forms of male authority that are implicit in the dominant understanding of marriage and custom and traditions continue to be the argument to reinforce the discriminatory normative gender relationships?