Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (52 page)

habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or associates with women of evil repute or leads an infamous life, or attempts to force her to lead an immoral life, or disposes of her property or prevents her exercising her legal rights over it, or obstructs her in the observance of her religious profession or practice, or if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran.

9
. Menski 2001, 47–57, 63–138; Menski 2003, 427–83.

10
. Menski 2003, 443.

11
. Menski 2001, 86, 115–33; 2003, 429–30, 463–64.

12
. India. Ministry of Law. Law Commission of India 1974, 2–9, 11–12, 25–26, 67, 71–72. Gajendragadkar produced a critical edition of the
Dattaka Mimamsa
(a classical treatise on the Hindu law of adoption) and was the general editor of a series on the
Upanishads
.

13
. LSD 1975, 305–39; PD 1976, 112–52. The legislature rejected only one of the Law Commission’s recommendations—to enable the consideration of divorce during the first year of a marriage—to give spousal reconciliation a better chance.

14
. Committee on the Status of Women in India. 1975.

15
. The Delhi High Court initially suggested that it would be appropriate to grant couples divorces when “the rift between them is complete,” in
Ram Kali v. Gopal Das
(1971) and
Mrs. Swaraj Garg v. K.M. Garg
(1978). Justice H. R. Khanna, who authored
Ram Kali
, also chaired the Law Commission that recommended such legislation. Sivaramayya 1993;
India. Ministry of Law. Law Commission of India 1978; Marriage Laws (Amendment) Bill 1981. Saheli 1981 outlines women’s organizations’ objections to this bill.

16
. This understanding (Menski 2003, 464–65) was also incompatible with Menski’s recognition elsewhere that the resistance of women’s organizations was the crucial reason why this proposal was shelved. Compare Menski 2003, 466–67 with Menski 2001, 72.

17
. Mazumdar 1999.

18
.
Chanderkala Trivedi v. S.P. Trivedi
(1993);
V. Bhagat v. Mrs. D. Bhagat
(1994);
Romesh Chander v. Savitri
(1995);
Smt. Kanchan Devi v. Promod Kumar Mittal
(1996);
Krishna v. Som Nath
(1996);
Ashok v. Rupa
(1996);
Ashok Hurra v. Rupa Bipin Zaveri
(1997);
Sabitanjali Pattanaik v. Priyabrata Pattanaik
(2001);
Sanghamitra Singh v. Kailash Singh
(2001);
Sudheer Singhal v. Ms. Neetha Singhal
(2001);
Shankar v. Puspita
(2005);
Naveen Kohli v. Neelu Kohli
(2006);
Rita Das Biswas v. Trilokesh Das Biswas
(2007);
Samar Ghosh v. Jaya Ghosh
(2007); and
Sanghamitra Ghosh v. Kajal Kumar Ghosh
(2007). Courts drew support from the Law Commission’s
Seventy-First Report
in
Ashok Hurra, Samar Ghosh
, and
Sanghamitra Ghosh
, although legislators had not accepted this report’s recommendations. The court misunderstood the marriage law reform of 1976 to have made irretrievable breakdown a divorce ground in
Keshaorao Krishnaji Londhe v. Nisha Londhe
(1984).

19
.
Jorden Diengdeh v. S. S. Chopra
(1985);
Vinita Saxena v. Pankaj Pandit
(2006). Irretrievable marital breakdown was considered relevant to assess claims of cruelty in
V. Bhagat v. Mrs. D. Bhagat
(1994) and of desertion in
Neelam v. Vinod Kumar
(1986). Interview, Justice B. P. Jeevan Reddy (author of
Bhagat
).

20
.
Lt. Col. Mohinder Pal Singh v. Kulwant Kaur
(1975);
Chinmoy Chakraborty v. Bharati Chakraborty
(1990);
Ashok Kumar Bhatnagar v. Shabnam Bhatnagar
(1989);
Smt. Smita Dilip Rane v. Dilip Dattaram Rane
(1990);
Nitu v. Krishan Lal
(1990);
B. v. A
. (1992);
A. v. H
. (1992);
Tapan Kumar Chakraborty v. Jyotsna Chakraborty
(1997);
Swapan Kumar Ganguly v. Smt. Smiritikana Ganguly
(2002);
Savitri Pandey v. Prem Chandra Pandey
(2002);
Geeta Mullick v. Brojo Gopal Mullick
(2003);
Rajendra Kumar Jajodia v. Puja Jajodia
(2009);
Brajesh Kumar v. Anjali
(2009);
Vishnu Dutt Sharma v. Manju Sharma
(2009).

21
.
Jorden Diengdeh v. S. S. Chopra
(1985);
Naveen Kohli v. Neelu Kohli
(2006). The Delhi High Court had recommended such legislation much earlier, in
Ram Kali v. Gopal Das
(1971) and
Mrs. Swaraj Garg v. K. M. Garg
(1978).

22
. India. Ministry of Law. Law Commission of India 2009. The chair of this Law Commission, Justice A. S. Lakshmanan, had authored a Supreme Court judgment that granted divorce based on irretrievable marital breakdown—
Vinita Saxena v. Pankaj Pandit
(2006).

23
. Marriage Laws (Amendment) Bill 2010.

24
. India. Parliament of India. Rajya Sabha. Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice 2011; Lawyers Collective Women’s Rights Initiative 2010a. The following organizations deposed before the committee: the NCW, the Ministry of Women and Child Development, Majlis, Center for Women’s Rights Discourse and Legal Initiative, Gender and Human Rights Society, Lawyers’ Collective—Women’s Rights Initiative, Mothers and Sisters Initiatives, the All India Democratic Women’s Association (affiliated with the Communist Party of India-Marxist), Save Family Foundation, and Children’s Rights Initiative for Shared
Parenting. The Married Women (Protection of Rights) Bill 1994 also proposed giving women shares in matrimonial property, but it was a private member’s initiative.

25
. Dhawan 2011.

26
. India. Press Information Bureau 2010; Sobhana 2012; TNN 2012; Press Trust of India (PTI) 2012a; Special Correspondent 2012; Dhawan 2013.

27
. PTI 2013, 2012b; Indo-Asian News Service 2013.

28
. Agarwal 2013.

29
. Agnes 2011b, 35.

30
. Agnes 2011b, 34–41; Kusum 2000, 237–39; Menski 2001, 74–106.

31
.
Sm. Pancho v. Ram Prasad
(1956) at 41.

32
.
Shri Gurcharan Singh v. Shrimati Waryam Kaur
(1960) at 133.

33
.
Putul Devi v. Gopi Mandal
(1963); This court held, at 97, that “having regard to the conditions obtaining in India and the importance attached to the purity of matrimonial relations, I cannot conceive of a case of greater mental distress and real apprehension of harm and injury for a wife than her husband’s suspicion of faithlessness [sic] and unchastity on her part.” It did not, however, find that the brothers involved in the case had been cruel to the sisters they had married by falsely accusing their father of having turned them into prostitutes.

34
.
Kusum Lata v. Kamta Prasad
(1965) at 285–86. He declared that the man’s unfounded allegations of adultery, his insistence on sexual intercourse when his wife was in delicate health, and his failure to arrange medical treatment when she was seriously ill amounted to cruelty and warranted judicial separation.

35
.
Kuppuswami v. Alagammal
(1961);
Iqbal Kaur v. Pritam Singh S. Nanak Singh
(1963);
Smt. Umri Bai v. Chittar
(1966) (based on per sis tent false charges of adultery);
Rup Lal v. Kartaro Devi
(1970);
Dr. Narayan Ganesh Dastane v. Mrs. Sucheta Narayan Dastane
(1975) (discussed in the next paragraph);
Lalita Devi v. Radha Mohan
(1976) (based on the man’s adultery and promise to marry his lover).

36
.
Dastane
drew this standard from
Wright v. Wright
(1948) at 210 and
Blyth v. Blyth
(1966) at 536. The Madhya Pradesh High Court had applied the same standard, using the same precedents, in a Christian divorce case based on alleged adultery two years earlier,
Prem Masih v. Mst. Kumudani Bai
(1974), but
Dastane
and later cases did not rely on this precedent. The Supreme Court had earlier applied standards of proof beyond reasonable doubt to matrimonial cases too—
Bipin Chander Jaisinghbhai Shah v. Prabhavati
(1956);
John White v. Mrs. Kathleen Olive White
(1958);
Lachman Utamchand Kiriplani v. Meena Alias Mota
(1964);
Smt. Chandra Mohini Srivastava v. Shri Avinash Prasad Srivasatava
(1967);
Rohini Kumari v. Narendra Singh
(1972). Some courts continued to apply this standard after
Dastane
, in
Dr. Samir Kr. Das v. Aparna Das alias Tripti Das
(2000);
Ms. Santosh Kumari v. Shri Shiv Prakash Sharma
(2001);
Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi
(2002); and
Dr. Vimla Balani v. Jai Krishan Balani
(2008).

37
. In two brief telephone conversations in July 2007, Justice Chandrachud said that he considered
Dastane
, not
Shah Bano
, his most enduring contribution to personal law.

38
.
Raj Kumar Manocha v. Smt. Anskuka Manocha
(1983);
Kamlesh v. Paras Ram
(1985).

39
. Agnes 2011b, 35 inaccurately attributed this understanding to the Marriage Laws (Amendment) Act 1976. This act did not characterize cruelty; rather, it eliminated the earlier statutory characterization. This understanding was a construction of the courts,
beginning with
Ashwini Kumar Sehgal v. Smt. Swatantar Sehgal
(1979), well before
Meera v. Vijay Shankar Talchidia
(1994), which Agnes deemed crucial in this regard.

40
.
Londhe
’s approach was followed in
Smt. Kamini Gupta v. Mukesh Kumar Gupta
(1985);
Ishwarlal Sarabhai Parikh v. Prabhawati Ishwarlal Parikh
(1988);
Gangadharan v. T.K. Thankam
(1988);
Dr. S.P. Trivedi v. Smt. Chandrakala Trivedi
(1990);
Smt. Nirmala Manohar Jagesha v. Manohar Shivram Jagesha
(1991);
Shri B. v. Smt. A
(1992);
Meera
(1994);
Shri Siba Prosad Basu v. Sm. Gouri Basu
(1994);
Vishnu B. Mayekar v. Smt. Laxmi V. Mayekar
(2000); and
Mrs. Manisha Sandeep Gade v. Sandeep Vinayak Gade
(2005). An earlier judgment that argued that cruelty should be assessed with regard to the parties’ circumstances is
Bijoli v. Sukomal
(1979).

41
. Also see
A. Viswanathan v. G. Lakshmi alias Seetha
(2006);
D. Nagappan v. T. Virgin Rani
(2009);
Amrithaa v. V. Krishna Kumar
(2010).

42
. The appropriateness of such a construction of cruelty is argued in
Romesh Chander v. Savitri
(1995);
Rajan Vasant Revankar v. Mrs. Shobha Rajan Revankar
(1995);
Rupa Ashok Hurra v. Ashok G. Hurra
(1996);
Tapan Kumar Chakraborty v. Jyotsna Chakraborty
(1997);
Praveen Kumari Jaitly v. Surinder Kumar Jaitly
(2001);
Gananath Pattanaik v. State of Orissa
(2002);
Naveen Kohli v. Neelu Kohli
(2006);
Samar Ghosh v. Jaya Ghosh
(2007);
Rita Das Biswas v. Trilokesh Das Biswas
(2007);
Bharat Bhushan Sharma v. Pratibha
(2007);
Ramesh Kumar Sharma v. Smt. Akash Sharma
(2008);
Varalaxmi Charka @ Renuka v. Satyanarayana Charka
(2008);
Undavalli Narayana Rao v. State of Andhra Pradesh
(2010);
Hitesh Bhatnagar v. Deepa Bhatnagar
(2011). A minority of courts continued to use more stringent definitions—
Gurbachan Kaur v. Karnail Singh Resham Singh
(1999);
Naval Kishore Somani v. Poonam Somani
(1998).

43
.
Rajani v. Subramoniam
(1990);
Tulasamma v. N. Seenan
(2002);
Smt. Anubha v. Vikas Aggarwal
(2002);
Smt. Sushma Kohli @ Satya Devi v. Shri Shyam Sunder Kohli
(2003);
Man Mohan Vaid v. Meena Kumari
(2003).

44
.
Sukumar Mukherjee v. Tripti Mukherjee
(1992);
Dr. Samir Kr. Das v. Aparna Das @ Tripti Das
(2000);
Smt. Kusum v. Shri R.K. Saxena
(2004);
Seema v. Nilesh Chouhan
(2006);
Mrs. P. Manimekalai v. R. Kothandaraman
(2010).

45
.
Smt. Kalpana Srivasta v. Surendra Nath Srivastava
(1985);
A.P. Ranga Rao v. Vijayalakshmi
(1990);
Smt. Surbhi Agrawal v. Sanjay Agrawal
(2000);
Smt. Bhagwanti v. Laxmandas Panjwani
(2000);
Mandeep Kaur v. Sukh Dev Singh
(2006);
P. Mohan Rao v. P. Vijayalakshmi
(2007);
Usha Rani v. Sham Lal
(2008).

46
. Examples of the later trend include
Rakesh Goyal v. Deepika Goyal
(2007);
Ratna Banerjee v. Chandra Madhab Banerjee
(2007);
Arun Chettri v. Madhu Chettri
(2007), cited in Agnes 2011b, 37–38. The old approach persisted in
Ramesh Jangid v. Sunita
(2007).

47
. Courts followed the interpretation in
Patala Atchamma v. Patala Mahalakshmi
(1907), which was laid out more fully in
Mahalingam Pillai v. Amsavalli
(1956).

48
. Agnes 2011b, 124–28.

49
.
Parami Ramayya v. Mahadevi Shankarappa
(1909) at 279.

50
. Agnes 2011b, 127 maintained that courts made this distinction only from the 1990s.

51
.
Kista Pillai v. Amirthammal
(1938);
Ma Mya Khin v. N. N. Godenho
(1936);
Dr. Hormusji M. Kalapesi v. Dinbai H. Kalapesi
(1955);
M. P. Subramaniyam v. T. T. Ponnakshiammal
(1958);
Audumbar Gangaram Gavandi v. Sonubai Audumbar Gavandi
(1960);
Amar Kanta Sen v. Sovana Sen
(1960);
Kasturi v. Ramasamy
(1979);
Gulab Jag
dusa Kakwane v. Smt. Kamal Gulab Kakwane
(1984) at 662;
Udaivir Singh v. Smt. Vinod Kumari
(1985);
Shravan Nathu Kannor v. Anjanabai Shravan Kannor
(1985);
Rachita Rout v. Basanta Kumar Rout
(1986);
Chhagan Lal Devman v. State of Maharashtra and Ors
. (1990);
Ravindra Singh v. Kapsi Bai
(1991);
Baishnab Charan Jena v. Ritarani Jena
(1993);
Chandrakant Gangaram Gawade v. Sulochana Chandakant Gawade
(1996);
Narnath Thazhakuniyil Sandha v. Kottayat Thazhakuniyil Narayanan
(1999);
Chanda Preetam Wadate v. Preetam Ganpatrao Wadate
(2002).