Divorce In India: A Hilarious System
You can divorce on any ground you like as long as you are a husband
In the 4 years, I have been in law school, nothing has fascinated me more than Family Law. Divorce and inheritance to be specific. It is scandalous and yet so emotional. Close to our hearts. Affects the day-to-day of our society. It was also so interesting as a subject. When you hear how absurd and hilarious and weird the courts can be in regards to family issues.
Did you know, women removing “thali” or “Mangalsutra” is considered Mental Cruelty? In a judgment delivered in Madras High Court1-
Let the wife make the husband glad to come home, and let him make her sorry to see him leave
It is known fact that no Hindu married woman would remove the "thali" at any point of time during the lifetime of her husband. "Thali" around the neck of a wife is a sacred thing which symbolises the continuance of married life and it is removed only after the death of husband. Therefore, the removal of "thali" by the petitioner / wife can be said to be an act which reflected mental cruelty of highest order as it could have caused agony and hurted the sentiments of the respondent.
I have so much to say about this. The most important point is, “removal of thali by the wife can be reflected as an act of mental cruelty of the HIGHEST ORDER. In the same case the wife has presented a case of cruelty faced by her husband where she has noted-
The respondent / husband had taken her jewels from the bank locker without her consent.
The respondent did not provide her any telephone, gas connection, colour T.V. and also did not permit her to listen to radio.
The respondent did not take care of her health.
The respondent did not care for her son's education and school admission and also did not care for her sons' health.
But the problem is obviously, jewellery. Oh sorry, jewellery is the highest order of mental cruelty.
The number of times, I have laughed in family law classes simply because of the hilarious reasons why Divorce has been granted to husbands is sad. While some cases were genuine and the husband had valid grounds, I am sorry that I can’t sympathise with husbands saying “My wife does not want to stay with my parents.”
There are cases when the woman has been said to have committed cruelty simply because she has refused to stay with her husband’s parents or asked him to stay with her parents. On August 11, 2023, the Delhi High Court passed a judgement saying-
“It was stated that for a Hindu son in India, it is not a common practice or desirable culture to be separated from his family after marriage. A son has a moral and legal obligation to take care of his parents when they become old and have negligible or no income. Thus, the insistence of the family of the respondent (wife) for the appellant (husband) to abandon his parents and become a ‘Ghar Jamai’ and live in their house amounts to cruelty,”
Tradition. A woman leaving her house to be a housewife in her husband’s house is okay because of tradition. I love how this is the only justification for this action.
The courts say making the husband leave his parents or refusing to aid his parents is cruelty even though the same does not apply to wives. Even if they are prevented from staying with their parents, it will not lead to cruelty. In a Maharashtra High Court judgement2-
Even if we assume wife was mentally unstable and hence leaving the matrimonial home, then also it would be difficult for husband to live in her company.
The Allahabad High Court3 also said that wife going often to her maternal house and in addition she does not do housework can be grounds for cruelty. Because we marry for housework.
I am not saying that these judgement are the result of discrimination or men asserting powers simply because some of these judgements are given be benches that have female judges. It is the fundamental that is at fault.
On September 17th, an extremely interesting judgement was passed.
The Delhi High Court ruled that a man living with another woman after separation from wife but divorce still pending will not be cruelty.
Why I find this interesting is because in a judgement by Punjab and Haryana High Court-
A couple in a “live-in” relationship without seeking divorce from their spouse may be liable to be proceeded against for the offence of bigamy under the provisions of the Indian Penal Code.
This case was about a woman who had separated from her husband and after sometime she started living with another.
In both the cases, the peculiarities were the same. A certain amount of time had passed since the separation but divorce was not finalised. However the treatment was different. Fascinating.
I can somewhat predict the responses I will get for this article and most of them will be like the situations were different but even if they were, how confidently can you say that marriages in India have equal footing or the treatment of marriage partners are even demonstratively equal?
Vallabhi vs R.Rajasabhai on 9 November, 2016
Sudhir Kamlakar Kharbade vs Sau. Sangita W/O Sudhir Kharbade on 20 April, 2018
Mohit Preet Kapoor v. Sumit Kapoor
Thoroughly enjoyed reading this one :)