Amidst hypermasculine potboilers, movies like Thappad (Slap), which recently released on Amazon Prime Video, provoke thought.
In the Hindi film directed by Anubhav Sinha, a husband slaps his wife at a party, which makes her seriously reconsider the marriage. While she files for divorce, her husband decides to contest it.
As the story is not far from reality, it makes us wonder if it is time we review our matrimonial laws in consonance with the society.
As matrimonial discords often lead to endless legal battles, it is crucial to understand what the law and the guardians of the law -- the courts -- have to offer in such situations. Contested divorce in India can be sought in the court only upon satisfaction of certain legally accepted ‘grounds’ enumerated under law. Those grounds are exhaustive.
Presuming that an isolated event like a slap in a party can be considered to grant divorce, the nearest ground it would satisfy would be ‘cruelty’. However, the term ‘cruelty’ has not been defined under the Hindu Marriage Act, 1955 or Special Marriage Act, 1954. Therefore, conclusions are arrived based on the interpretation placed by the judiciary in matrimonial cases.
The question here is whether just a slap by the husband at a party constitutes ‘cruelty’ under the law? The principle enunciated by the courts is that ‘married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty’. However, the courts have made it clear that if such ill-conduct is persistent for a fairly lengthy period, it will be ‘cruelty’.
In certain cases, the courts, without mincing words, have held that no decree for divorce on one isolated incident can be passed. The approach of the court was that a single act of cruelty will not be sufficient reason for divorce and there must be a course of cruel conduct over a period of time. The word ‘cruelty’ as grounds for divorce has been used in a very literal, ordinary sense and is not specific. It is for this reason that pleadings are exaggerated to great lengths in desperation to make out a case for divorce.
It is also essential to point out that generally, this principle has been employed in favour of women as against cruelty alleged by husbands based on an isolated incident.
Needless to say, the courts do not condone a single act of violence which is grievous and inexcusable in nature, and such an act would pass the test of cruelty. Thus, as far as the principle adopted by the courts is concerned, a single instance such as what Amrita (Taapsee Pannu) in Thapppad endured, may not necessarily lead to cruelty to dissolve a marriage.
The intent behind such an approach adopted by the courts is not to trivialise isolated events or render them frivolous but solely to guard and to strengthen the marriage as it is considered a ‘sacramental relationship’. One may even say that it is a sincere effort of both the Legislature as well as the Judiciary to protect the ‘Sacrosanct Marriage’. “The vow to be together for better or worse cannot be so lightly broken,” the court has observed in the past.
But should the court continue to uphold a marriage where one partner feels there’s no dignity in it? When Amrita takes the firm stance of going ahead with a divorce over the slap and the subsequent indifference with which she’s treated, she is confronted with questions like ‘Just a slap?’, ‘Would it not sound unreasonable?’, ‘Give him another chance?’.
Many like her suffer from indignities rising from isolated incidents that have a long-lasting impact. Many more suffer from violence and stigma. Leave alone an incident like a ‘slap in a party’, should the law compel a wife to live in a marriage where she is not loved or which doesn’t make her happy? Are incompatibility and lack of love not a good enough reason to exit a marriage, even if the feelings are not mutual? Should an unhappy union continue in the name of the solemn preservation of a ‘Sacrosanct Marriage’?
Detractors may argue, pointing out a greater chance of ‘abuse of the law’ and an ‘easy escape from matrimonial accountability’. It is true that laws are often misused. However, it is the duty of the Legislature to enact laws without giving room for abuse. Furthermore, the courts are also clothed with the constitutional power and judicial responsibility to interpret the law in its right sense and to check abuse of law.
In such circumstances as Amrita faces in Thappad, a No-Fault Divorce would be useful. A No-Fault Divorce enables a spouse to obtain divorce on ‘irreconcilable differences’, ‘incompatibility’ or ‘irremediable collapse’. In other contested divorce proceedings, the spouse seeking a divorce is burdened to establish ‘fault’ (Cruelty, Desertion, Adultery and so on) on the part of the other partner, therefore making it a Fault Divorce.
Under Indian law, divorce can be sought mainly in three categories. The first category is based on the traditional theory of matrimonial fault, the second based on the theory of frustration (for example, when one spouse suffers insanity, leprosy or venereal disease, the other spouse can obtain divorce) and the third is by mutual consent.
Apart from the third category, the other categories of litigations are endless and burdensome. Prolonged legal battles consume a great deal of time, emotion and money. It is needless to mention the clogging of litigations in the courts.
In the year 1978, the Law Commission of India in its 71st Report on The Hindu Marriage Act, 1955 has recommended insertion of a new section 13C for divorce on the ground of ‘irretrievable breakdown of marriage’. Subsequently, the courts have echoed a need for an amendment in divorce laws enabling No-Fault Divorce.
On 30th March, 2009, the Law Commission in its 217th Report recommended the introduction of “Irretrievable Breakdown of Marriage” as a ground for divorce. The Marriage Law (Amendment) Bill, 2010 was brought in by the UPA government and introduced Section 13C – ‘Divorce on ground of irretrievable breakdown of marriage’. The Bill enabled both the husband and wife to seek divorce on irretrievable breakdown of marriage but granted protection to the wife to oppose the petition on the ground of hardship.
However, the Bill failed to be cleared by the lower house of the Parliament and lapsed with the dissolution of the 15thLok Sabha in 2014.
Presently, Indian law does recognise No-Fault Divorce but only by the Supreme Court with a distinct nomenclature called ‘irretrievable breakdown of marriage’. In cases where the Apex Court is convinced beyond any doubt that there is actually no chance of the marriage surviving and it is broken beyond repair, it may grant a ‘divorce due to an irretrievable breakdown’.
The Supreme Court alone exercises such a power under Article 142 of the Constitution but very sparingly after years of legal battles, and only upon extraordinary circumstances. Therefore the real fruits of No-Fault Divorce are hardly realised by spouses.
The introduction of No-Fault Divorce may have failed in India but it is not the end. The law must transform itself to social sensitivities and awareness. Films like Thappad reiterate what just a slap can do to a partner in a marriage and it is time for the law to acknowledge this. It is the public need and voice that will compel the legislature to enact the law, and it is the courts that will protect the dignity of law enacted.
Salai Varun is an advocate practising at the High Court of Judicature at Madras. He's an alumnus of Leiden University, Netherlands.