Increasing Divorce Rates: Is Law Itself a Culprit? | Anita Ratnam

Published on 28-06-2008 In General

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Increasing Divorce Rates: Is Law Itself a Culprit?

"The Hindu Marriage Act has broken more homes than uniting," a vacation bench of Justices Arijit Pasayat and G S Singhvi observed last Tuesday. Such a comment from a vacation bench at the Supreme Court seems to suggest that the Hindu Marriage Act itself has paved the way for increasing divorces. Is this possible? Have our laws really made it "too" easy to get a divorce? Can laws which make divorce difficult, really ensure that marriages sustain?

The HMA 1955 and the Indian Divorce Act 1869 (for Christians) earlier offered very limited grounds for divorce. These were essentially based on a presumption that divorce was permitted when one partner was mentally ill, had leprosy, was incapable of sexually consummating the marriage, deserted the spouse, or had extra marital sexual relations. In other words, one party had to have a clear "fault" mainly in terms of inability to play the reproductive role. Marriage was conceptualised as basically a space arranged by family members for procreation and thus divorce was allowed only where this purpose of marriage could not be fulfilled.

Over time, issues related to the basic well being and safety of the marital partners were also recognised by law as grounds for divorce. Mental cruelty for instance was added as a reasonable ground for divorce in personal laws. Yet, for a long time Christian women had to prove cruelty along with other grounds like adultery or desertion etc. making divorce almost impossible. In Muslim Personal Law, even today the woman can seek a khulla divorce only with the consent of her husband, while he does not require her consent for talaq.

In 1976, "irretrievable breakdown" of marriages was recognised as a harsh reality and divorce by mutual consent became part of the Hindu Marriage Act (Amendment). In 2001, the Indian Divorce Act for Christians was amended to allow women equal divorce rights as men. Now, two people who were not cruel not sexually disabled or not having leprosy, could actually say, we want out- because we find ourselves unhappy in the relationship. This reflects   a watershed in the way marriage has been perceived and experienced. It acknowledges marriage as more than an economic arrangement or a space for procreation and raising of children. Marriage was finally seen in terms of the quality of relationship between husband and wife. And when the spouses jointly recognised and accepted that they could no longer live with each other, divorce was permitted.

So law has been gradually changing, in response to demands from the women's movement and in response to changes in the way marriage is perceived and experienced by society. But when instead of recognising   the positives in this, a Supreme Court bench laments that Law itself has been responsible for breaking families, something seems amiss. In fact, the number of cases filed for maintenance by women indicates that though separated, they have opted for maintenance without legal divorce as stigma attached to divorce as well as difficulties in getting one were too much to deal with. As these reduce, what would have ended up as "separation" earlier is now entering divorce statistics. Therefore the rising divorce figures need not be seen as sudden fissures in society.

Yet, a significant portion of the Judge's concern regarding divorce is about the welfare of children. This indeed is a serious issue for society at large as custody battles and fights over maintenance not only traumatise children, but also convolutes the parent-child relationship especially where parents use children as pawns in their conflict.   Divorced parents go to the extent of accusing each other of child abuse or of immoral behaviour to ensure that custody is not lost.

Children are tutored about what to say in court, precious photographs and letters from under the child's pillow now become "evidence". Kids are constantly badgered by each parent about the others "faults" and are made to take sides when all they want is to probably have both together or at least each parent separately in an atmosphere of peace.

Yes, this indeed is a minefield as parents and children are pulled into a vortex of anger and bitterness where their yearning for each other is reduced to fights over visitation rights, vacation sharing arrangements and arguments about the importance of motherly love vs. fatherly care.

At the root of all this strife and pain is probably a change in our social fabric itself and a change in the way today's young couples relate to marriage. While marriage is still seen as an ideal state and most young people want to get married, there seems to be little understanding of what it entails to sustain the love and commitment that a happy marriage needs. While emotional intimacy and romantic love are seen as prime needs in marriage, balancing this with personal autonomy and financial independence of the two individuals   still seems a missing piece in the jigsaw. It appears that though expectations from the institution of marriage have increased manifold, the concomitant investment required seems to be little understood.

Here too, the differences   in men and women's expectations from marriage and their marital roles are significant. Counsellors and lawyers have reported that extra marital affairs by both and women's disillusionment and disappointment with marriage as a prime cause for marital breakdown. The fact is that though women's work outside the home and her earnings have been accepted and even welcomed, there has been inadequate reciprocal acceptance by men of domestic chores and responsibilities. This has led to a double burden for women who realise that running from a kitchen sink to an office meeting and back to kitchen and homework in the evenings is quite a killer. When the humongous efforts put into manage both are taken for granted by the husband, she explodes- while he wonders what the fuss is about.

So can we blame the law for increases in Divorce rates? Can we blame women's financial independence? Law   has been changing and women's education, independence and empowerment have proved to be an asset for society. So why are we placing the blame on what are essentially positive processes? Maybe we do need to look at helping men and women to re-negotiate their roles in the marriage. Maybe we do need to arrive a more humane conception of marriage where   dignity and equality of both partners form the cornerstone for intimacy.

Or maybe we need to ask ourselves if divorce per-se is a bad thing? Could it be a sign of human beings refusing to live in oppressive or dead relationships and deciding to move on? Live-in relationships and single parenting have also emerged as options, as ways of having some semblance of family without the tyranny. Yet, going by the shaadi website statistics, even those who are divorced twice are seeking out marriage again- not only in metros but in small towns as well.

If divorce is going to continue to be a reality, we need to get our act together with respect to children and find ways of giving them the nurturing they need in spite of divorces.

While the SC urges us to forget our egos and   shy away from divorce, it seems that leaving our egos out of custody battles maybe a more realistic and needed beginning.

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