The good wife: A lesson from India’s courts - Hindustan Times
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The good wife: A lesson from India’s courts

Apr 01, 2024 10:16 AM IST

A family court’s observation this past week that applying sindoor, or vermillion, is the ‘religious duty’ of a married woman…

She left him because, she said, he and his family were torturing her for dowry. Five years later, the husband has gone to court asking for ‘restitution of conjugal rights’. In court the judge noted the woman wasn’t wearing sindoor, which is the ‘religious duty of a married woman’. Go back to your husband, he ordered.

(Source: Wikimedia, Bodhisattva Dasgupta)
(Source: Wikimedia, Bodhisattva Dasgupta)

This isn’t the plot of a lurid potboiler. These are proceedings in a family court in Indore this past week where principal judge N.P. Singh noted: “She has forsaken her husband. She is not wearing the sindoor.”

What of the woman’s complaint about dowry harassment? Going through the papers submitted to him in court, the judge could find no police complaint or record. The order to go back to her husband’s house, therefore, stood.

So what happens next? If the woman fails to go back and oblige her husband with the restitution of his conjugal rights, he can, after a period of one year, file for divorce.

A marriage that hasn’t existed for five years can finally be over.

Ek chutki bhar sindoor

Ek Chutki Sindoor
Ek Chutki Sindoor

The sindoor comment by the judge has triggered a fair amount of attention (and, fortunately, outrage). But this is not the first time that sindoor has made an appearance in family court.

In 2020, the Gauhati high court granted a divorce to a man, taking into account that his estranged wife, who had left him following prolonged physical abuse, had refused to wear the sindoor and sakha (conch shell bangles). The absence of these symbols conveyed to the judge her “refusal to accept the marriage”.

Different communities are governed by their personal religious laws in matters concerning adoption, inheritance, marriage and divorce. Hindu marriage in fact is considered sacrosanct and, while it conferred some rights such as maintenance, there was no divorce until the Hindu Marriage Act of 1955 which permitted divorce only under certain circumstances like adultery, incurable insanity and leprosy.

In 1976, divorce by mutual consent was introduced. It allows a couple to go to court and say, “Our marriage has irretrievably broken down.” But if both parties do not agree, then one must prove a ‘fault’ in the other. Amongst these faults is cruelty.

It is the defining of what is cruel that reveals the courts’ gender biases. “The exercise of judicial discretion will obviously be coloured by the socialisation of each judge,” writes family law expert Malavika Rajkotia in her book, Intimacy Undone: Marriage, Divorce and Family Law in India.

And so, a wife who prioritises her career over marriage? Cruel. (Suman Kapur v Sudhir Kapur, 2008, Supreme Court)

A wife who insists that she and husband must have their own establishment, separate from his parents? Cruel. (Narendra v Meena, 2016, Supreme Court)

Refuses to make tea for his friends? Also cruel. (Kalpana Srivastava v Surendranath Srivastava, 1985, Allahabad high court).

To clarify, in all of the divorces granted above, the evidence of cruelty took a more complete view of the marriage, but in all the above instances, failure to make tea etc was presented as evidence and cited in the order granting divorce.

[Along with feminist legal scholar Surbhi Karwa, I wrote on how courts define cruelty for the website, Article-14 here.]

An unequal law

India’s Constitution guarantees equality to all citizens. Yet, in the ingrained patriarchy of all personal laws, women are less than equal.

Ideas of marriage, love and divorce are not static. They change and reflect changing attitudes in society and can frequently challenge patriarchy. Family courts then become “the arena for the struggle of custom versus law,” says Rajkotia

The challenges don’t come without a backlash. For instance, anxiety over the rise in live-in relationships has led to judicial concern that can be seen in the Allahabad high court’s ruling in October 2023 that such arrangements are ‘time-pass’. And Uttarakhand’s uniform civil code bill mandates compulsory registration of live-in relationships; failure to comply can result in a jail term.

As recently as 1983, the Delhi high court observed that allowing Constitutional principles of equality was like allowing a bull inside a china shop. Even today, the argument against criminalising marital rape hinges on the specious objection that you cannot have the state inside your bedroom.

Even though either spouse can ask for it and it is in that sense gender neutral, the restitution of conjugal rights is an primitive, abhorrent concept that should have no place in a civilised society.

In any event, a court order for restitution of conjugal rights cannot be enforced. At most, failure to comply within a period of a year, entitles the spouse who demands it to file for divorce.

So why do we continue to have a law that is (1) unenforceable, (2) uses archaic language, (3) goes against every notion of privacy, (4) violates the dignity and autonomy of women, and (5) is seriously out of touch with the times?

When we have junked other colonial-era laws such as one that criminalised gay sex, why does this one remain in the statute books? And at a time when marital rape is under judicial consideration are we really going to talk about courts ordering sexual intercourse, which is what conjugal rights are about.

There is a petition challenging restitution of conjugal rights pending in the Supreme Court since 2019. In its reply, the central government has stated that restitution exists to “preserve the institution of marriage, allowing the spouses access to a relatively soft legal remedy by which they can iron out differences arising out of the normal wear and tear of the matrimonial life with judicial intervention.”

This is an astounding claim. And, frankly, it’s high time this law was sent to where it belongs: In the dustbin.

[Read also, Surbhi Karwa on why forced restitution of conjugal rights defies ideas of liberty equality.]

Disclaimer: The views expressed are the author's own.

The following article is an excerpt from this week's edition of HT Mind the Gap.

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