By Ellen Barry

India’s family law was written to discourage divorce, and in that sense it has succeeded brilliantly: The last census, in 2011, showed that the number of Indians who described themselves as separated was nearly three times the number who were divorced.

The country’s legal code offers a notably narrow selection of divorce-worthy faults, among them cruelty, incurable leprosy and renunciation of the world by entering religious orders. Many applicants plead “mental cruelty,” but defining mental cruelty is a murky affair, often coming down to a judge’s discretion.

“No uniform standard can ever be laid down for guidance,” declared a Supreme Court panel in 2007, adding, unhelpfully, that “what is cruelty in one case may not amount to cruelty in another case.”

Here are some examples of the idiosyncratic ways judges used their discretion to support claims of cruelty (and approve divorce):

  • Forcing a husband to move out of his parents’ home.

“In a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that,” the court found. “In our opinion, normally, no husband would tolerate this, and no son would like to be separated from his old parents.”

  • Deriding a husband as a “fat elephant.”

“The calling of names and hurling of abuses such as ‘hathi,’ ‘mota hathi’ and ‘mota elephant’ by the appellant in respect of her husband — even if he was overweight — is bound to strike at his self-respect and self-esteem,” the court found. “Obviously, the respondent was sensitive to such taunts, and it is not the appellant’s case that the taunts were made jokingly, or out of love and affection, and without malice.”

  • Excessive interest in politics.

“This case depicts the sordid episode of the life of a woman who spoiled her homely environment and family relationships running after the politics and politicians, forgetting her solemn duties and responsibilities of a matrimonial life,” the court found. “She was cautioned and reminded of her pious obligations but she was mesmerized so much by the political thoughts and quite adamant that she failed to understand the consequence of her negligent attitude.”

  • Withholding of sex without a good excuse.

“Even assuming for a moment that the appellant wanted to have a child only after two years, does not mean that the appellant and the respondent cannot and should not have sexual intercourse,” the court found. “Admittedly, both of them are well educated and there are so many contraceptives available and they could have used such contraceptives and avoided pregnancy.”

 

source: Newyork Times