If the divorces are on the rise in the country, are the laws governing marriages to be blamed? Or is there a deeper malice in society which needs to be addressed? Deccan Herald finds out.

The Hindu Marriage Act has broken more homes than uniting," a vacation bench of justices Arijit Pasayat and G S Singhvi observed last week. Such a comment from a bench at the Supreme Court seems to suggest that the Hindu Marriage Act (HMA) itself has paved the way for increasing divorces. Is this possible? Have our laws really made it "too" easy to get a divorce? Can the 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 essenatilly 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. A conceptuali-sation of marriage as basically a space arranged by family members for procrea-tion thus allowed divorce 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. But 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, breakdown of the marriage relationship was recognised as a 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 give women equal rights to divorce as men. 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, as more than an economic arrangement or a space for procreation and raising of children. Marriage was now 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. 

Changing laws

So the law has gradually been changing, in response to demands from the women's movements and in response to changes in the way marriage is perceived and experien-ced by society.  But when instead of recognising the positives in this, a Supreme Court bench laments that the 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 the 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 the society.

Yet, a significant portion of the judges' 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 convolute 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 the custody of child to themselves. Children are tutored about what to say in court, are constantly badgered by each parent about the other's '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.

Entering minefield

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 a marriage, balancing this with personal autonomy and financial independence of the two indivi-duals still seems a missing piece in the jigsaw. It appears that  though expecta-tions from the institution of marriage have incr-eased manifold,  the concomitant invest-ment required seems to be little understood.

Here too, the differences in men and women's expectations from marriage and their marital roles is significant. Counsellors and lawyers have reported that extra marital affairs by both and women's disillusionment and disappointment with marriage as prime causes 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 a office meeting and back to a kitchen and children's 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? The 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 second 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 Supreme Court 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.

http://www.deccanherald.com/Content/Jun292008/panorama2008062875920.asp

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