In defining ‘cruelty’ in divorce cases—wives who don’t wear a mangalsutra or prioritise careers or want to live separately from their in-laws or do not make tea—Indian courts often fall back on stereotypes of the role of wives in marriage.
NAMITA BHANDARE & SURBHI KARWA
New Delhi: Momita was visiting her grandmother at 7 pm on 13 January 2018 when Alamin Miah dropped by and asked her to step outside. Then, he threw acid on her face. The attack left her with third-degree burns on her forehead and eyelids and second-degree deep burns on her face and right shoulder. The damage and disfigurement are permanent.
Alamin Miah is Momita’s husband.
They had married in March 2017 but within days Alamin began beating Momita for failing to bring a dowry of Rs 10,000. Five months later, he dropped her off at her father’s house. When he changed his mind some weeks later and asked her to return, she refused.
A sessions judge gave Alamin the maximum sentence under the law against acid violence: imprisonment for life and a Rs 100,000 fine payable to Momita. For violating section 498A of the Indian Penal Code, 1860, he was sentenced to another three years in jail with an additional Rs 5,000 fine.
Alamin appealed against the decision. On 20 July 2020, a two-judge bench of the Tripura High Court reduced the sentence, citing Momita’s refusal to return to her matrimonial home, the same home where she was being beaten by her husband, as a mitigating factor.
The judges found Momita’s testimony about the acid attack “cogent and consistent”. Yet, they observed, “His reluctant wife was not willing to reunite with him which might have caused a sense of frustration…we cannot overlook this mitigating circumstance.”
Alamin’s sentence was reduced from life to 10 years, the minimum under the law. The fine payable to his wife was also brought down from Rs one lakh to Rs 25,000.
A Gendered View Of Marriage
A woman’s rightful place in marriage is the preoccupation of a vast majority of matrimonial disputes.
Different communities are governed by their own personal laws in matters relating to marriage, divorce, maintenance, adoption and inheritance.
The Hindu Marriage Act makes divorce legally possible. But, as the law stands, if parties do not mutually consent to a divorce, then the spouse seeking one has to show a ‘fault’ —adultery, desertion and even conversion to another faith.
One such fault is cruelty, and it is the one ground that has burdened women with gendered expectations of marriage.
How does a court of law define cruelty? In 2007, the Supreme Court in Samar Ghosh v Jaya Ghosh observed: “What is cruelty in one case may not amount to cruelty in other case [sic]. The concept of cruelty differs from person to person.” This concept of mental cruelty “cannot remain static…There can never be a strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters.”
There has never been a clear-cut definition. Is a wife’s determination to follow a career path cruelty? Is her insistence on living separately from the husband’s parents? What about her refusal to wear the traditional symbols of marriage, including sindoor and mangalsutra, or make tea for her husband and his friends? According to some judges, all of the above are instances of cruelty and, so, grounds for divorce.
“Hindu marriage law is supposed to be gender neutral but when the courts define cruelty there is clear gender stereotyping and insensitivity,” said Sarasu Thomas, professor, family law, gender and human rights at the National Law School, Bangalore.
“As long as the husband provides for the family, he is good. But if a wife doesn’t cook or wear a mangalsutra then it’s a different matter. There are judges who think, ‘so what if he slaps you, he is providing for you’, or ‘so what if he’s asking for dowry, your family should support him’,” said Thomas.
The judges’ gendered view, as we have seen in our earlier examination of rape judgments, is influenced by the larger workings of society.
“There is deep-rooted misogyny and stereotyping of what is a ‘dutiful Hindu wife’,” said Akila R.S., a Chennai-based advocate. “When an educated, financially independent woman moves the court, she is viewed according to the court’s imagination of how she might have behaved in the marriage.”
Malavika Rajkotia, family law practitioner and author of Intimacy Undone: Law of Marriage, Divorce and Family in India agreed. “The socialization of judges is intrinsically patriarchal, and rulings very often stem from that instinct,” she said.
“The question as to which acts construe cruelty is a matter of interpretations of cultural norms. The stereotypical roles assigned to women with a society and judicial notions regarding women’s position are important factors for determining cruelty,” wrote women’s rights lawyer and founder of the NGO, Majlis, Flavia Agnes in Divorce and Matrimonial Litigation.
The Constitution guarantees equality for women. Yet, an insistence on this constitutional guarantee within matrimonial homes is “most inappropriate”, ruled the Delhi High Court in 1984 (Harvinder Kaur v Harmender Singh Chaudhary). “It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for.” The “cold principles of constitutional law” can have no place in the “privacy of home and the married life”.
“The letter of the law can only do so much,” said Rajkotia. “Some judges are very progressive and sound on gender, but among some judges there’s a feeling that you can’t go too far; that patriarchy can only be dismantled very slowly.”
Given the subjectivity and society’s expectations of marriage, some recent court judgments defining cruelty as a ground for divorce seem to fit the following general rules that define a good wife:
A Good Wife Does Not Separate Her Husband From His Parents
“It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family.”
In Narendra v Meena, the husband had filed for divorce claiming ‘cruelty’ by his wife. Proof of such cruelty included an allegation of an extra marital affair made by the wife, an attempted suicide attempt by her and a demand by her to live separately from his parents. In 2001, a trial court granted a divorce on the ground of cruelty.
The wife filed an appeal in the Karnataka High Court and in 2006, the divorce granted by the trial court was set aside.
Now the husband appealed to the Supreme Court. In upholding the divorce, the Supreme Court noted that a son “has a moral and legal obligation to take care and maintain the parents”. Moreover, the court ruled, “In normal circumstances, a wife is expected to be with the family of the husband after the marriage.” She would never “insist that her husband should get separated from the family and live only with her.”
In upholding the divorce, the Supreme Court observed: “No son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the Respondent wife to constrain the Appellant to be separated from the family would be torturous for the husband and in our opinion, the trial court was right when it came to the conclusion that this constitutes an act of ‘cruelty’.
As recently as April 2020, the Kerala High Court granted divorce to a husband (Ranjit v Asha Nair), because, amongst other reasons, the wife’s “continuous efforts” to separate from the family was “tortuous”. In fact, the court said, the husband became a “drunkard” as the “natural outcome of the pressure exerted on him by the respondent to have a separate residence to the exclusion of petitioner’s mother”.
Adopting the role of an elderly uncle, the court observed, “It is common for elders to scold and sometimes abuse youngsters. Making a daughter-in-law to do the household/domestic work is also not something unusual.”
A Good Wife Places Marriage Over Career
“She had made it explicitly clear to the respondent-husband that she was not willing to be a mother at the cost of her career.”
In 2018, an International Labour Organisation report found unpaid care work constituted the “main barrier to women’s participation in labour markets”.
The expectation of what is “women’s work”—cooking, cleaning, caring for children and the family—is defined by patriarchal societies and often reinforced by Indian courts.
Suman and Sudhir Kapur were childhood friends and had an inter-caste marriage. Despite parental opposition, they got married in 1984. Suman Kapur had a brilliant academic record and at the time of her marriage was working at the department of biochemistry at the All India Institute of Medical Sciences (AIIMS) pursuing a PhD.
By 2004, the marriage had soured and the husband, Sudhir Kapur was able to obtain a divorce decree by an additional district judge in Delhi. This was upheld by the Delhi High Court in 2007.
The grounds for divorce? Cruelty.
Suman says she got pregnant within a month of marriage but, due to exposure to harmful radiation as part of her laboratory work, decided in consultation with her husband to have an abortion. When she got pregnant a second time, she again had an abortion due to a kidney infection. The third time she got pregnant in 1989, she had a natural abortion, according to the papers filed by her in court.
In 1988, Suman and Sudhir moved to the US. She had by then quit her job at AIIMS to live with her husband who was working in Mumbai. A year later she was awarded a prestigious fellowship and moved to Kansas City where her husband could not join her.
In his divorce application, Sudhir claimed he never knew about his wife’s abortions.The Supreme Court observed he was “very much aggrieved since he was denied the joy of feeling fatherhood and the parents of the respondent were also deprived of grand-parenthood of a new arrival [sic]”. This attitude by his wife towards her in-laws was “humiliating”, observed the court.
Suman’s insistence on following her career went against the grain of what the Supreme Court deemed as appropriate behavior. She admitted she was interested in her career as she was well-educated and wanted to contribute to society. But, she said, this did not mean that she was neglecting her marital obligations.
The court noted, “She was not willing to be a mother at the cost of her career.” It agreed with the High Court’s confirmation of cruelty on the basis of Suman’s letters and diary entries in which she described her husband’s parents as ‘ghosts’. In a letter written to Sudhir, she wrote: “I really wish you would understand my urge in pursuing my freedom away from the hawk eyes of your mother, sister and all other relatives.”
The fact that Suman had stated her wish to pursue a career, her unwillingness to have a biological child and even whether they should live together was deemed cruelty at every stage of the case, from the trial court to the Supreme Court.
“She did not want to forego her chances...she did not believe in love any more. She expressly stated that she did not believe in Indian social value system and she was very happy in the foreign country.” The divorce was confirmed by the Supreme Court.
The Symbols Of Marriage
“A lady who has entered into marriage according to Hindu rituals and customs ...her refusal to wear ‘sakha and sindoor’ will project her to be unmarried and/or signify her refusal to accept the marriage.”
On 19 June 2020, the Gauhati High Court while hearing an appeal filed by Bhaskar Das, a contractual labourer, against a family court judgment denying him divorce from his wife, took into consideration the fact that his wife, Renu Das had refused to wear sindoor and sakha (bangles made of conch shells), the traditional symbols of marriage.
Renu Das said she had been subject to cruelty by her husband’s family to meet its demands for dowry. Denied food and medical treatment, she had to depend on her brother for bare necessities, she said. In 2012, she was thrown out of the matrimonial home and, back at her brother’s house, she filed a police complaint against her husband and his family under section 498A of the Indian Penal Code.
But for the court, “her refusal to wear ‘sakha and sindoor” was evidence of the wife’s unwillingness “to continue her conjugal life” and it granted the husband a divorce.
The significance of the symbols of marriage have cropped up in the past—even though courts have not always seen a refusal to wear them as evidence of cruelty.
In 1999 (S Hanumantha v S Ramani) the Supreme Court observed, “A Hindu wife removes her mangalsutra only after the death of her husband.” However, it did not agree that the act of S. Ramani, the wife, of taking off her mangalsutra and flinging it at her husband, as alleged by him, was an act of cruelty. Hanumantha’s appeal for a divorce on grounds of cruelty was dismissed.
A Good Wife Does Not Neglect Her Kitchen Duties
Making tea—or failure to do so—certainly has a unique place in divorce proceedings.
One husband, Narinder Singh told the Delhi High Court in 2007 that his wife’s refusal to serve tea to his friends and family members was proof of cruelty. Justice S. Murlidhar, hearing the case, rejected the argument as “frivolous” and denied him a divorce.
But in 1985, another husband’s argument that his wife’s refusal to serve tea to him and his friends amounted to cruelty held favour with the Allahabad High Court that observed: “Where a wife refuses to prepare tea for the friends of the husband she not only hurts his ego but causes him humiliation before his friends who may not be tiring of lavishing praises on their wives.”
Fewer cases exemplify a woman’s perceived role in marriage more than Samar Ghosh v Jaya Ghosh, referred to briefly above.
Both IAS officers, the couple had married in 1984. It was, for Jaya, a second marriage and she had a daughter from the first one.
To establish cruelty by his wife, Samar said that within months of the marriage he fell ill with a high fever and despite this, Jaya and her daughter went off to Bareilly to meet her brother “even when there was no one to look after him during his illness”.
In May 1985, when Jaya was transferred to Kolkata where Samar was posted, she used to visit his government-allotted flat only occasionally. It was a domestic helper who used to “cook food and carry out household work” for Samar. Then Samar was transferred out of Kolkata, while Jaya stayed behind.
In 1988, Samar sought a transfer back to Kolkata on health grounds. Once again, the couple began to live together. But within months, Jaya began to spend more time with her daughter at her parent’s home and would come to the matrimonial home “to cook food only for herself and leave for the office. The appellant [Samar] began to take his meals outside as he had no other alternative.”
The Supreme Court upheld the divorce sought by Samar Ghosh on grounds of cruelty granted by the trial court.
Not every judgment falls back on tired, patriarchal assertions. In Ravinder Yadav v Padmini, a husband sought to divorce his wife since she had flatly refused to do household work. Moreover, he said she “always imbibed with independent and modern thoughts posing herself to be a broad-minded lady.” The Punjab and Haryana High Court said the allegations were “unfounded” and part of the “ordinary wear and tear of the married life of the parties”.
While there may be exceptions, divorce on grounds of cruelty has become a site for patriarchal assertions; where a woman has to prove herself to be a “dutiful” wife and defend her “independent nature”, whether it’s her desire to pursue a career or not have children or even fail to make tea, lest she is found to be guilty of cruel behaviour, giving her husband legal grounds for divorce.
(Namita Bhandare is on Article14’s editorial board and frequently writes on gender issues. Surbhi Karwa is an alumnus of National Law University, Lucknow, and National Law University, Delhi)
Previously on Article14: Courts’ Misogynistic Rules For Rape Survivors