Bring no-fault divorce before marital rape

Congress MP Shashi Tharoor introduced a Private Members Bill in Parliament to criminalise marital rape and is building a ground for it. While that’s an ideal thought, the moot question is has the time come? The current socio-legislative position of marriage is not conducive for such an ideal thing.

Before we debate marital rape, we must liberalise divorce and bring gender parity in matrimonial laws. Else the misuse of marital rape will add voluminously to the prevalent misuse of existing matrimonial provisions.

First, we need to have no-fault divorce provision so that divorce can be granted in a short time at the invocation of one party without delay in proving fault of the other partner. Right now, we don’t have this provision and divorce is granted only on the grounds mentioned in Section 13 of the Hindu Marriage Act unless it is by mutual consent which is rare because wives have nearly unilateral legal advantages to delay and prolong the contested divorce to get their bargain.

Then there’s “teach him/her lesson” mentality. Marriage is the most unequal institution in modern India which needs immediate and radical reforms. While the popular narration is that divorce in India is rising, the burst is that divorce cases are rising but divorce decrees are just one cent in India, lowest in the world. Developed countries have high divorce rates, in USA it’s 46 per cent.

In 1955, we imitated the divorce concept from the West but it’s a right most defeated in the courts. In 1955, the socio-economic position of women needed protection. Position of women in society has changed a lot after 70 years and the laws haven’t paced with the change. State is tightening its control over marriage rather than liberalising it.

Toxic marriages help none. Neither the holding partner nor the children who grow with the psychology of “stuck up” and “status quo”. Low divorce rate is not an indicator of happy families. It’s an indication of sadistic State which is indifferent to the chaos marriage has been made by the extreme State control. Assam passed bill to ban polygamy, which in the case of Hindus was banned in 1955 itself. While the move is welcome, shouldn’t the government have first liberalised divorce so that Muslims would have least resistance to this? It’s living in fools’ paradise that marriages are made in heaven. Relationships do turn out wrong and everyone has a right to happiness. Forcing people to live in unhappy marriages is sadistic. It’s State-sponsored misery.

Months ago, Punjab & Haryana High Court jailed a man who had remarried during the pendency of appeal, after getting decree of divorce. A final closure of a case in India can go for a life time, making divorce virtually impossible. Aggrieved party’s whole youth is gone in obtaining divorce. Moreover, besides the legal hurdles, divorce is dependent on the mercy of the judges.

Lawyers know the fate of the case once the matter is listed — judges are known to be liberal and averse without certainty of law. It’s sad that in the 21st century one’s personal life is controlled so badly by the State and judges. The highest courts have become so keen to indulge in matrimonial matters that the Supreme Court looks more like a matrimonial and bail court, as some judges pointed out. This is starkly REGRESSIVE in the times where we are attaining Constitutional maturity in cases like the decriminalisation of same-sex relations (S-377 IPC), striking off adultery (S-497 IPC). Individual liberty is miserably curbed in matrimonial disputes.

When we have constitutionally evolved gender parity in everything else, it is unconstitutional when courts order that unemployed wife can claim maintenance from husband even if she is highly qualified, as the Kerala High Court observed on 6th December in a matter. Unemployment is the biggest issue in India.

Does the same yardstick apply to the wife to give maintenance to a highly qualified unemployed husband? These double standards have made the institution of marriage unattractive and oppressive. Recently, SP MP Jaya Bachchan said in an interview that marriage is an outdated institution.

Marriage is a very personal domain and in any advance and constitutional society, the State would have the least interference.

The writer is a Supreme Court Lawyer; Views presented are personal.