Stigma of separation
The Supreme Court’s recent ruling on divorce is an important step towards balancing the social attributes of marriage with individual concerns. A five-judge Constitution bench, headed by Justice SK Kaul, ruled that the court can use discretionary powers conferred under Article 142(1) of the Indian Constitution to dissolve a marriage on the ground that it has broken down irretrievably, in order to ensure “complete justice.” In doing so, the court can bypass the mandatory 6-18 months’ buffer period. At the same time, coincidently, a Tamil actress took the Internet by storm by posting photos of her highly unusual divorce photoshoot. One of the photos was captioned, “a divorced woman’s message to those who feel voiceless. It’s okay to leave a bad marriage because you deserve to be happy and never settle for less, take control of your lives and make the changes necessary to create a better future for yourself and your children.” The actress’ message, though seemingly odd, reflects a change in social norm. The institution of marriage, particularly in India, is predominantly defined by social constraints. While marriage is considered among the most sacred of social customs, the practice of divorce is plagued by a pronounced taboo. Society, as is known, has a general tendency to maintain the status quo. Resultantly, the process of divorce has been dotted with a range of inertial factors. At the heart of the Supreme Court’s judgement and Shalini’s photoshoot is an effort to create a dent in this inertia. Let alone the process, the idea of contemplating a divorce is itself fraught with stigma. On the ground, many individuals suffer as they keep themselves dragging in a bad relationship. While the divorce photoshoot destigmatises the process of separation through the due procedure, the apex court’s ruling simplifies the procedure itself, based, of course, on its discretion. It is very important to note here that the Supreme Court has put a strong caveat that any appeal for speedy divorce will not be a “matter of right” but a discretion exercised with “great care.” The court will consider a range of factors including the duration of the marriage, the time the couple has stayed apart, attempts at reconciliation etc. The essence of the apex court’s ruling lies in the fact that it extended the ground for divorce to “irretrievable breakdown of marriage” — hitherto uncovered under the Hindu Marriage Act of 1955. Irretrievable breakdown of marriage refers to a marriage that is “totally unworkable, emotionally dead and beyond salvation.” The court has explicitly laid out a range of factors on which the dissolution of marriage will depend. These factors include the period of time that the parties had cohabited after marriage; when the parties had last cohabited; nature of allegations made by the parties against each other and their family members; orders passed in the legal proceedings from time to time, among other things. Apart from that, the court will also evaluate the economic and social status of the parties and examine whether they have any children, their age, educational qualification and if the other spouse and children are dependent. These caveats hold immense importance. Marriage inequality is widely prevalent in India. Not every married individual in the country, particularly the women, may be in the position to openly defy the social norms. Their capability to stand firm after separation is marred by their financial dependence on their spouses. The concept of speedy divorce can be detrimental to their interest. The apex court has rightly emphasised on the need to exercise constraints, without which the new ruling can be misused against the helpless women in rural and semi-urban settings. While the acknowledgement of limitations by the Supreme Court is heartening, the redressal of the same on the basis of merely its own discretion appears too weak as a safeguard. Indeed, the court has enumerated points of considerations that need to be factored in before dissolving a marriage, but much will depend on how the judicial convention takes shape on this front.