Divorce in the time of patriarchy

Book review of 'Intimacy Undone: Marriage, Divorce and Family Law in India'

INTIMACY UNDONE

Marriage, Divorce and Family Law in India

Malavika Rajkotia

Speaking Tiger

432 pages; Rs 799

Among the 30 million cases pending in the courts, family law is perhaps the fastest growing branch in civil litigation. Matrimonial causes have multiplied manifold over the years necessitating the establishment of family courts built at a distance away from the sordid ambience of ordinary ones. Many of these buildings provide a place to play for children over whose custody their parents might be fighting in the nearby court room. Young mothers feeding infants from milk bottles are not an uncommon sight. 

With the spread of education and social progress, the trend will gain traction. Signs are already there: Kerala, which has the highest literacy in the country and 3 per cent of its population, leads in divorce cases with 60,000 pending last year. It is more than the aggregate in 19 other states. Uttar Pradesh, with seven times the Kerala population, has only 5,500 cases. 

The author of this book, a Delhi lawyer with vast experience in this field, attributes this “exponential” increase to changing expectations from marriage rather than the failure of the institution itself. Her book deals with marriage and divorce from various aspects — anthropology, history, religious edicts, patriarchal traditions and struggle for equitable legislation. Apart from the financial drain, delay and uncertainty in litigation, she narrates the social cost in terms of the emotional trauma and the plight of children caught in the vortex. It is a forbidding field and Malavika Rajkotia wades through it valiantly and comes out with a masterly work. 

At first glance, the book with a curious title appears to be donnish, with footnotes all over the pages and more than hundred pages of epilogue, appendices and references. But the look is deceptive; it is not just for social activists, law-makers and the legal profession. It is spiced with illustrative stories and anecdotes that lighten the dark subject, clouded by bitter strife followed by exhausting divorce proceedings, many of them climbing up to the Supreme Court. Some of the stories and interactions with her clients carry seeds of novels and films. There are ample references to films and literature that depict social resistance, like Mr & Mrs 55 released while B R Ambedkar and Jawaharlal Nehru were pushing forward modern Hindu laws in 1955. Legal literature in this country is very thin; most retired judges and jurists write stuffy prose in books meant for lawyers and law students.  There is no A P Herbert or Henry Cecil, despite the immense source material that would be the envy of those English writers. 

The author bypasses personal laws of non-Hindu communities and the customary laws found in the south or north-east. As a lawyer practising in the capital, she confines herself to the middle to upper class Hindu communities in north India, because that is how “I could make such a sprawling subject manageable”. 

Marriage can flounder for several reasons ranging from sexual attraction, property and money issues, parenting, religion and in-laws. Then there is the Anna Karenina principle derived from Tolstoy, which says that each unhappy family is unhappy in its own way. According to Ms Rajkotia, the basic cause of divorce is the growing challenge to patriarchal power. Society has to settle into new roles in marriage and new ideas of family. One must expect a violent backlash from those who hold power, whether they be law-makers, academics or judges. One must suspect the legal fraternity too, because, she says, “the present legal system is a form of primitive patriarchy at its worst, and benevolent patriarchal patronage at its best.”

These are strong words, but she attempts to prove her point narrating history of several cases in the high courts and the Supreme Court, citing dramatic exchanges between counsel and the judges and dissecting judicial pronouncements. Judges are also not free from bias as they live in a male-centric society and what is hard-wired into their souls by society and holy scriptures reflects in their questions and verdicts. Though women protest against their under-representation in the legal profession, even they are not quite free from the vice like when a Supreme Court judge recently disclosed her assets and listed as liabilities her two unmarried daughters.

Apart from the tenacious grip of patriarchy, Ms Rajkotia perceives a new threat originating from powerful lobbies which invent Hindu traditions. “The recent efforts of certain political parties to reclaim for the nation what they think was a glorious past (read pre-Islamic) are dangerous,” she writes, “because they are also a call to return to a patriarchy sanctified by the scriptures that was oppressive to women and the lower castes.” She warns that though patriarchy might be on the back foot, the backlash from fringe elements is more intense now. 

The book cruises through debates about stridhan versus dowry (with an aside on why daughters-in-law are burnt rather than killed by other means), conundrums in adultery law, obsession with jewellery (the author who was decked out for wedding was teasingly asked by her father: Why not carry the rest in your hands?), cruelty, rape, shared household and all the rest. For those who want practical advice on going to court, there is a FAQ section. It would have reached more people if this work was less costly or a paperback edition rolls out soon.