Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India by Narendra Subramanian
Authors: Narendra Subramanian
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presented to parliament in 2010. 23
The main safeguard the government’s bill provided women was to enable them to oppose their husband’s divorce petition based on irretrievable marital breakdown if divorce would cause them “grave financial hardship,” without giving men a similar right. Various women’s organizations felt that this did not protect the rights of women and children adequately, for the same reasons they cited when a similar bill was briefly considered in 1981, and suggestedamendments. Since more political elites had become inclined to increase women’s economic rights over the intervening decades, a Parliamentary Standing Committee accepted some of these suggestions. It made the first official proposal to give women a share in their matrimonial property (though without specifying the share), instructed courts to decide about this share in considering divorce petitions, and recommended especially that women be given a share in property to whose acquisition they contributed. The proposed changes could effect a major change in matrimonial relations. 24 The BJP and the Communist Party of India-Marxist (CPI-M) also demanded changes in the current bill to protect the interests of women and children, based on the opinions of the women’s organizations. 25 In response to the committee’s suggestions, the cabinet required that women be given a share in matrimonial property on divorce, but left the precise share to the court’s discretion. While various women’s organizations were dissatisfied that women’s share was left to the courts to determine and that maintenance rights had not been reinforced, the limits to the economic entitlements extended divorcées weakened conservative resistance. 26 Based on the debate in the Rajya Sabha, the Law Ministry amended the bill further to give divorcées a share in their husband’s residential property, even if it was inherited, inheritable, or bought before the couple’s marriage, although the Ministry of Women and Child Development voiced reservations about this. 27 The parliamentary debates suggest that divorcées are likely to be entitled to an unspecified share in matrimonial property soon. But the Ministry of Women and Child Development’s reservations and the reluctance of conservative legislators to enhance the entitlements of divorcées considerably led the Law Ministry to abandon the proposal to grant divorcées a share in the husband’s inherited or inheritable property, while leaving room for courts to take the value of such property into account in determining alimony. This is the form in which, in August 2013, the Rajya Sabha passed the bill, which remained to be considered by the Lok Sabha when the book went to press. 28
B. Cruelty
Cruelty is the ground on which most petitions for divorce and judicial separation are presented. Agnes claimed that until the legislation of 1976, “cruelty was defined within the narrow confines of conduct which would be harmfulor injurious to the petitioner. Hence it was necessary to base the allegation of cruelty upon acts of physical violence.” 29 Both she and Kusum noted that the courts have construed “cruelty” more expansively since then, but Menski added the qualification that the courts declared findings of spousal cruelty more selectively from the 1990s. 30 My exploration of case law indicates that some courts did not consider physical violence necessary to find spousal cruelty even in the 1950s and 1960s, and the predominant though not consistent trend in the higher courts has been to rely on broader understandings of cruelty since the 1970s.
While cruelty
simpliciter
became a divorce ground only in 1976 in Hindu law, the courts granted judicial separation in many cases even earlier based on findings of “mental cruelty” even in the absence of proof of physicial violence. Moreover, cruelty
simpliciter
had been a ground for divorce in Muslim law since 1939, and a few courts had granted Muslim women
The main safeguard the government’s bill provided women was to enable them to oppose their husband’s divorce petition based on irretrievable marital breakdown if divorce would cause them “grave financial hardship,” without giving men a similar right. Various women’s organizations felt that this did not protect the rights of women and children adequately, for the same reasons they cited when a similar bill was briefly considered in 1981, and suggestedamendments. Since more political elites had become inclined to increase women’s economic rights over the intervening decades, a Parliamentary Standing Committee accepted some of these suggestions. It made the first official proposal to give women a share in their matrimonial property (though without specifying the share), instructed courts to decide about this share in considering divorce petitions, and recommended especially that women be given a share in property to whose acquisition they contributed. The proposed changes could effect a major change in matrimonial relations. 24 The BJP and the Communist Party of India-Marxist (CPI-M) also demanded changes in the current bill to protect the interests of women and children, based on the opinions of the women’s organizations. 25 In response to the committee’s suggestions, the cabinet required that women be given a share in matrimonial property on divorce, but left the precise share to the court’s discretion. While various women’s organizations were dissatisfied that women’s share was left to the courts to determine and that maintenance rights had not been reinforced, the limits to the economic entitlements extended divorcées weakened conservative resistance. 26 Based on the debate in the Rajya Sabha, the Law Ministry amended the bill further to give divorcées a share in their husband’s residential property, even if it was inherited, inheritable, or bought before the couple’s marriage, although the Ministry of Women and Child Development voiced reservations about this. 27 The parliamentary debates suggest that divorcées are likely to be entitled to an unspecified share in matrimonial property soon. But the Ministry of Women and Child Development’s reservations and the reluctance of conservative legislators to enhance the entitlements of divorcées considerably led the Law Ministry to abandon the proposal to grant divorcées a share in the husband’s inherited or inheritable property, while leaving room for courts to take the value of such property into account in determining alimony. This is the form in which, in August 2013, the Rajya Sabha passed the bill, which remained to be considered by the Lok Sabha when the book went to press. 28
B. Cruelty
Cruelty is the ground on which most petitions for divorce and judicial separation are presented. Agnes claimed that until the legislation of 1976, “cruelty was defined within the narrow confines of conduct which would be harmfulor injurious to the petitioner. Hence it was necessary to base the allegation of cruelty upon acts of physical violence.” 29 Both she and Kusum noted that the courts have construed “cruelty” more expansively since then, but Menski added the qualification that the courts declared findings of spousal cruelty more selectively from the 1990s. 30 My exploration of case law indicates that some courts did not consider physical violence necessary to find spousal cruelty even in the 1950s and 1960s, and the predominant though not consistent trend in the higher courts has been to rely on broader understandings of cruelty since the 1970s.
While cruelty
simpliciter
became a divorce ground only in 1976 in Hindu law, the courts granted judicial separation in many cases even earlier based on findings of “mental cruelty” even in the absence of proof of physicial violence. Moreover, cruelty
simpliciter
had been a ground for divorce in Muslim law since 1939, and a few courts had granted Muslim women
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