Read Online Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India by Narendra Subramanian - Free Book Online
Authors: Narendra Subramanian
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In
Bhagat
, the most widely cited of these judgments (in 227 reported cases), it declared that spousal cruelty could be inferred when “the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party” even if the matrimonial offenses did not affect the petitioner’s health, and that the deletion of the qualification that cruel conduct should cause “reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party” was meant to enable courts to adjudicate in light of diverse and changing social mores. 41 The higher courts have used such an understanding of cruelty since then in the majority of petitions for divorce and judicial separation. 42
The adoption of such a liberal understanding of cruelty as a ground for divorce had different effects on how readily courts decreed divorces when coupled with an inclination to effect spousal reconciliation if possible. There were variations even in the cases in which the Supreme Court signaled its approach to cruelty. It provided the woman a divorce based on evidence of violence related to dowry demands in
Shobha Rani
. However, it found that awoman’s complaint to the police that her husband and mother-in-law had attacked her was an act of cruelty toward her husband, and granted him a divorce in
G.V.N. Kameswara Rao
, rejecting the woman’s argument that her husband was thus taking advantage of his “own wrong” (a problem which Section 23(1)(a) of the HMA alerts judges to consider). In
Bhagat
, it granted the man’s divorce petition because it believed that the woman had been cruel to her husband when she argued, in the very court in which he practiced as a lawyer, that he, his parents and grandparents were insane.
The high courts varied even more in their approaches to cruelty-based divorce petitions. Many declared findings of cruelty when men, and sometimes their parents harassed their wives over dowry payments (a problem that had become pervasive with the ongoing spread of the practice of dowry down the caste and class spectrum), granting the wives either divorce or judicial separation. 43 Others denied men’s divorce petitions based on desertion or cruelty in view of evidence that the pressure these men had exerted on their wives for dowry had caused the estrangement. 44 But some declared that women who lodged police complaints about spousal abuse to extract dowry or responded to harassment for dowry with threats to commit suicide had been cruel toward their husbands and granted the latter’s divorce petitions. 45 They also varied in their attitudes toward women demanding that the couple live apart from their in-laws; until the 1980s, the majority considered it cruelty toward their husbands that entitled the latter to divorce, but since then many judges have regarded it as legitimate since they no longer wished to limit family nuclearization. 46
C. Adultery
From the mid-1950s until 1976, litigants could petition under both the HMA and the SMA for judicial separation based on their spouse’s adultery and for divorce based on the spouse’s “living in adultery,” which courts had interpreted since 1907 to mean having a continuing extramarital relationship. 47 Courts already allowed Muslim women and Christian men to seek divorce on the ground of adultery and recognized many forms of extrajudicial unilateral repudiation by Muslim men, but granted Christian women divorces only if they could demonstrate both adultery and another matrimonial fault. Moreover, Section 125(4) of the Criminal Procedure Code (which was Section488(4) until 1973) disentitled a woman living in adultery to maintenance from her husband, even if she had valid reasons to live apart from her husband and had no property or income.
Agnes claimed that the Indian courts did not require men to provide their wives and ex-wives maintenance if these women had committed a
Bhagat
, the most widely cited of these judgments (in 227 reported cases), it declared that spousal cruelty could be inferred when “the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party” even if the matrimonial offenses did not affect the petitioner’s health, and that the deletion of the qualification that cruel conduct should cause “reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party” was meant to enable courts to adjudicate in light of diverse and changing social mores. 41 The higher courts have used such an understanding of cruelty since then in the majority of petitions for divorce and judicial separation. 42
The adoption of such a liberal understanding of cruelty as a ground for divorce had different effects on how readily courts decreed divorces when coupled with an inclination to effect spousal reconciliation if possible. There were variations even in the cases in which the Supreme Court signaled its approach to cruelty. It provided the woman a divorce based on evidence of violence related to dowry demands in
Shobha Rani
. However, it found that awoman’s complaint to the police that her husband and mother-in-law had attacked her was an act of cruelty toward her husband, and granted him a divorce in
G.V.N. Kameswara Rao
, rejecting the woman’s argument that her husband was thus taking advantage of his “own wrong” (a problem which Section 23(1)(a) of the HMA alerts judges to consider). In
Bhagat
, it granted the man’s divorce petition because it believed that the woman had been cruel to her husband when she argued, in the very court in which he practiced as a lawyer, that he, his parents and grandparents were insane.
The high courts varied even more in their approaches to cruelty-based divorce petitions. Many declared findings of cruelty when men, and sometimes their parents harassed their wives over dowry payments (a problem that had become pervasive with the ongoing spread of the practice of dowry down the caste and class spectrum), granting the wives either divorce or judicial separation. 43 Others denied men’s divorce petitions based on desertion or cruelty in view of evidence that the pressure these men had exerted on their wives for dowry had caused the estrangement. 44 But some declared that women who lodged police complaints about spousal abuse to extract dowry or responded to harassment for dowry with threats to commit suicide had been cruel toward their husbands and granted the latter’s divorce petitions. 45 They also varied in their attitudes toward women demanding that the couple live apart from their in-laws; until the 1980s, the majority considered it cruelty toward their husbands that entitled the latter to divorce, but since then many judges have regarded it as legitimate since they no longer wished to limit family nuclearization. 46
C. Adultery
From the mid-1950s until 1976, litigants could petition under both the HMA and the SMA for judicial separation based on their spouse’s adultery and for divorce based on the spouse’s “living in adultery,” which courts had interpreted since 1907 to mean having a continuing extramarital relationship. 47 Courts already allowed Muslim women and Christian men to seek divorce on the ground of adultery and recognized many forms of extrajudicial unilateral repudiation by Muslim men, but granted Christian women divorces only if they could demonstrate both adultery and another matrimonial fault. Moreover, Section 125(4) of the Criminal Procedure Code (which was Section488(4) until 1973) disentitled a woman living in adultery to maintenance from her husband, even if she had valid reasons to live apart from her husband and had no property or income.
Agnes claimed that the Indian courts did not require men to provide their wives and ex-wives maintenance if these women had committed a
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