Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (26 page)

Women’s organizations did sometimes equate legal uniformity too readily with women’s entitlement, and misunderstood the lack of legislative change in Muslim law after independence to mean both that Muslim law recognized fewer rights for women than other personal laws and that Muslims especially resisted personal law reform. Some of the CSWI’s proposals regarding personal law reflected this—for example, its emphasis on curbing polygamy and unilateral male repudiation among Muslims and on introducing a UCC.
Even these positions resulted not from the elitism of women’s organizations but from their inadequate engagement with certain social implications of matrimonial law, minority opinion, and minority mobilization. It was only when many women’s organizations changed these stances from the 1980s that they gained greater influence over policy, as Mazumdar, a CSWI member, indicated.
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A. Divorce Based on Irretrievable Marital Breakdown

Various judges felt that the liberalization of divorce would be preferable to maintaining marriages beset by serious and irresoluble problems, although they were aware of the potential high cost for women. In a few cases, courts granted divorces to couples facing long-lasting and particularly intractable marital problems although none of the statutory divorce grounds applied, while clarifying that these cases could not serve as precedents.
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In other cases, they deemed the irretrievable breakdown of marriage a reason to grant divorce while also taking certain spousal faults to exist, or considered the state of the marriage relevant in assessing alleged faults;
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in still others, they felt they lacked the statutory powers to decree divorce even though they considered the marriages irretrievably impaired.
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The Supreme Court granted divorce on these grounds in some cases, using its special powers under Article 142(1) of the Constitution to render “complete justice,” and in a couple of cases urged legislation making irretrievable breakdown a ground for divorce.
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Based on these judicial suggestions, the Law Commission once again proposed such legislation in 2009.
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Concerns about the implications for women’s economic situation did not prevent the reconsideration of divorce liberalization, because women’s organizations did not unconditionally oppose liberalization; rather, they made their acceptance contingent on the simultaneous reinforcement of women’s and children’s interests. As a result, a bill to effect this change in both the HMA and the SMA was presented to parliament in 2010.
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The main safeguard the government’s bill provided women was to enable them to oppose their husband’s divorce petition based on irretrievable marital breakdown if divorce would cause them “grave financial hardship,” without giving men a similar right. Various women’s organizations felt that this did not protect the rights of women and children adequately, for the same reasons they cited when a similar bill was briefly considered in 1981, and suggested
amendments. Since more political elites had become inclined to increase women’s economic rights over the intervening decades, a Parliamentary Standing Committee accepted some of these suggestions. It made the first official proposal to give women a share in their matrimonial property (though without specifying the share), instructed courts to decide about this share in considering divorce petitions, and recommended especially that women be given a share in property to whose acquisition they contributed. The proposed changes could effect a major change in matrimonial relations.
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The BJP and the Communist Party of India-Marxist (CPI-M) also demanded changes in the current bill to protect the interests of women and children, based on the opinions of the women’s organizations.
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In response to the committee’s suggestions, the cabinet required that women be given a share in matrimonial property on divorce, but left the precise share to the court’s discretion. While various women’s organizations were dissatisfied that women’s share was left to the courts to determine and that maintenance rights had not been reinforced, the limits to the economic entitlements extended divorcées weakened conservative resistance.
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Based on the debate in the Rajya Sabha, the Law Ministry amended the bill further to give divorcées a share in their husband’s residential property, even if it was inherited, inheritable, or bought before the couple’s marriage, although the Ministry of Women and Child Development voiced reservations about this.
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The parliamentary debates suggest that divorcées are likely to be entitled to an unspecified share in matrimonial property soon. But the Ministry of Women and Child Development’s reservations and the reluctance of conservative legislators to enhance the entitlements of divorcées considerably led the Law Ministry to abandon the proposal to grant divorcées a share in the husband’s inherited or inheritable property, while leaving room for courts to take the value of such property into account in determining alimony. This is the form in which, in August 2013, the Rajya Sabha passed the bill, which remained to be considered by the Lok Sabha when the book went to press.
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B. Cruelty

Cruelty is the ground on which most petitions for divorce and judicial separation are presented. Agnes claimed that until the legislation of 1976, “cruelty was defined within the narrow confines of conduct which would be harmful
or injurious to the petitioner. Hence it was necessary to base the allegation of cruelty upon acts of physical violence.”
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Both she and Kusum noted that the courts have construed “cruelty” more expansively since then, but Menski added the qualification that the courts declared findings of spousal cruelty more selectively from the 1990s.
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My exploration of case law indicates that some courts did not consider physical violence necessary to find spousal cruelty even in the 1950s and 1960s, and the predominant though not consistent trend in the higher courts has been to rely on broader understandings of cruelty since the 1970s.

While cruelty
simpliciter
became a divorce ground only in 1976 in Hindu law, the courts granted judicial separation in many cases even earlier based on findings of “mental cruelty” even in the absence of proof of physicial violence. Moreover, cruelty
simpliciter
had been a ground for divorce in Muslim law since 1939, and a few courts had granted Muslim women divorces on this basis well before the 1970s. For instance, as early as 1950, the Allahabad High Court upheld the divorce decree that the lower courts had granted a Muslim woman on the ground of cruelty because her husband had made false adultery charges against her, leading the police to issue warrants for her arrest in
Abbas Ali v. Mt. Rabia Bibi
(1951). Courts later applied similar standards to assess cruelty in responding to pleas for judicial separation among Hindus.

In 1955, the same court pointed out that legal cruelty need not involve physical violence, while granting a woman a separate residence after her husband assaulted her, evicted her from their home, and married another woman, in
Sm. Pancho v. Ram Prasad
(1956). It declared:

When a husband habitually insults his wife and behaves towards her with neglect and un-kindness so as to impair her health, he must be held to be guilty of cruelty. Where evidence of physical violence is not per se sufficient to warrant a finding of cruelty the Court is bound to take into consideration the general conduct of the husband towards the wife and if this is of a character tending to degrade the wife, and subjecting her to a course of intense indignity injurious to her health, the Court is at liberty to pronounce the cruelty proved.
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In
Shri Gurcharan Singh v. Shrimati Waryam Kaur
(1960), the Punjab High Court held that claims of cruelty should be assessed based on emergent norms and the effect of the impugned actions on the individual concerned, and that such an approach could lead to findings of cruelty even if there had been
only isolated acts of violence. It granted a Sikh woman judicial separation, rather than accommodate her husband’s plea to restore his conjugal rights, because he had ejected her from their home, failed to provide her and their child support even after a maintenance decree, and made unproven adultery allegations.
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The Patna High Court expanded further on the meaning of mental cruelty in 1963, declaring that factors such as “environment, status in society, education, cultural development, local custom, social convention, physical and mental condition of the parties, etc.” should be considered in assessing which acts amount to mental cruelty; in this case, however, it accepted the lower court’s view that “occasional thrashings” need not constitute cruelty.
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Reasoning similarly, Justice Mirza Hameedullah Beg, who later became Chief Justice of India, elaborated the concept of cruelty found in the HMA in 1964 as one “based on mutual regard and consideration by each spouse for the other. It excludes . . . selfish brutality or disregard for the health, needs, desires, and feelings of the other by either spouse.”
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A few courts decreed judicial separation based on similar constructions of cruelty in the 1960s and early 1970s, prior to the legislative amendment of 1976.
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But the majority of judges even in the higher courts did not share such an understanding then, and most decrees of judicial separation on grounds of cruelty were based on evidence of significant physical violence.

The Supreme Court handed down the most consequential of these early cruelty-based judicial separation decrees,
Dr. Narayan Ganesh Dastane v. Mrs. Sucheta Narayan Dastane
(1975). Justice Y. V. Chandrachud, who later became Chief Justice of India and gained wider attention for authoring
Mohammad Ahmed Khan v. Shah Bano Begum
(
Shah Bano
) (1985), indicated that in matrimonial cases, evidence should be assessed based on “on a preponderance of probabilities” rather than proof beyond reasonable doubt, which is appropriate only for criminal and quasi-criminal cases. This preponderance standard, borrowed from English and Australian law, was applied thereafter to the majority of matrimonial cases of all kinds.
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Rather than cruelty having to be of “such a character as to cause danger to life, limb or health, bodily or mental,” a standard used in English law until a little earlier, the court relied on Section 10(1)(b) of the HMA to decide that it would be adequate if the speci
fied behavior would “cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious to him or her to live with her spouse,” and that the actions that might cause such apprehension would depend on the impact on the litigant. Moreover, it pointed out that the petitioner may be taken to have condoned certain of his spouse’s matrimonial offenses; that the spouses continuing to live together was an inadequate proof of condonation, but that their maintaining intimate relations and having children was; and that future matrimonial offenses could revive an offense that had earlier been condoned.
Dastane
exercised far greater influence over subsequent adjudication than the earlier judicial separation decrees based on mental cruelty had, because it was the first such Supreme Court decree, it was more fully argued, it was reinforced within a year by legislative reforms in divorce law, and more judges had become sensitive by the mid-1970s to the complex determinants of serious marital problems and were inclined to provide spouses facing such difficulties an exit. Cited in at least 298 reported cases, it influenced the standards by which many courts construed spousal cruelty thereafter, although its reference to a reasonable apprehension of harm ceased to be relevant after this criterion was omitted from the HMA in 1976.
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There was greater continuity than Menski suggested in the higher courts’ approach to divorce petitions on the ground of cruelty since the legislative reforms of 1976. In the first half of the 1980s a few courts, starting with
Madan Lal Sharma v. Smt. Santosh Sharma
(1980), interpreted the Marriage Laws (Amendment) Act of 1976 to have undone
Dastane
’s liberalization of judicial separation based on cruelty. Taking the act to apply equally to cruelty-based divorce provisions, they tried to reinstate what had been the predominant judicial trend until the 1970s, equating spousal cruelty with behavior that poses a threat to the partner’s life, limb or health. They did this even though the Statement of Objects and Reasons of the act identified the liberalization of divorce as its main aim.
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However, the majority of courts did not follow this approach even in the late 1970s and early 1980s, preferring to follow the interpretation of cruelty offered in
Dastane
while taking into account the deletion of the reference to a reasonable apprehension of harm in 1976.
Ashwini Kumar Sehgal v. Smt. Swatantar Sehgal
(1979) was an elaborately argued
judgment along these lines, which declared that “cruelty in such cases has to be of the type which should satisfy the conscience of the court to believe that the relations between the parties had deteriorated to such an extent due to the conduct of one of the spouses that it has become impossible for them to live together without mental agony, torture or distress.”
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In the 1980s, certain courts countered the equation of cruelty with physical violence and actions inimical to the spouse’s health in
Madan Lal Sharma
.
Keshaorao Krishnaji Londhe v. Nisha Londhe
(1984) deduced from the Law Commission’s
Fifty-Ninth Report
as well as the Marriage Laws (Amendment) Act’s Statement of Objects and Reasons that the intention behind this legislation was to enable divorce when a couple no longer shared emotional bonds and to give courts considerable flexibility to understand spousal cruelty in light of the circumstances and sentiments of particular couples. It reinforced the understanding that conduct that makes cohabitation a source of “mental agony, torture or distress” constitutes cruelty, and shaped the subsequent judicial approach.
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