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Thappad- A Single SLAP:

Whether encapsulated under domestic violence or IRRETRIEVABLE BREAKDOWN of marriage, the latter is yet not a legally sanctioned ground for divorce: Judicial and Societal Perception


Written by: Shaika Siddique, Student, Aligarh Muslim University

Each time a woman stands up for herself, without knowing it possibly, without claiming it, she stands up for all women.” — Maya Angelou.

As per the UNESCO Institute of Statistics, India is the largest producer of feature films globally. However it is interesting to note that India has the biggest crowd going to cinema. This evidently manifest the love that Indians have for films. Cinema has always been considered as the mirror of the society, portraying the real challenges that the society faces.


Patriarchal construction of the society over the years has become a custom or usage, moreover even having the support of law. Besides cinema, law is yet another index which provides for the content and composition of a society, the more is the male involvement in the law framing agency the more is the tendency of the law to be patriarchal. We have moulded the other segments of the society to adhere and bow to masculinity, as the supreme power. This culture has predominantly found place in the world of cinema, where manliness is to be harsh, insensitive and earning a living for the family referring to the heroes of the film depicting the same while women has to be sweet, humble, shy and submissive to his husband in order to surpass the parameters set to be a woman by the society.


“Thappad”, directed by Anubhav Sinha is a silent slap on the anachronistic institutions of patriarchy and even to them who take pride in it. The movie begins with depicting the family life of Amrita and Vikram who are married to each other and how Amrita is willingly dedicated to her family. How she lives a mundane routine with utter happiness and satisfaction but all this comes to an end with “a slap”, that Vikram awards to her in a party in front of everyone, in a fit of rage. The movie also simultaneously presents the life of Sunita who is Amrita's home helper and a victim of domestic violence facing the wrath of her husband for not able to give a child to him. The movie even put forward the life of an accomplished female lawyer who is a victim of marital rape. The movie has also touched upon the topic of adultery, which is no longer an offence in India.


Above all what the story line has beautifully put forth is various societal concept which has no legal or moral backup but is simply dragged generation after generation because it has got the patriarchal sanction. One thing that has to be emphasized is that, it is the society which shapes the law, however the other way round is albeit possible but time taking with modicum outcome.


DOMESTIC VIOLENCE – DOES IT ENCAPSULATE “JUST A SINGLE SLAP”?

The Protection of Women from Domestic Violence, Act, 2005, section 3 of the said Act provides for a holistic and wide definition of domestic violence. It covers the various aspects of domestic violence such as physical, mental, sexsual, economical etc.


With an Act as progressive as the above, we as a nation are marching ahead strengthening our female population but one thing that the Act the, law making and the law reviewing body have failed to tell the beneficiaries of the Act is that what shall be that limit of violence that could be qualified as domestic violence? Can it be that “just a single slap?”

A slap causes an immense amount of emotional violence but sadly fails to surpass the societal as well as judicial parameters of domestic violence. Because the society sees it as the right of the husband and the judicial trend shows that single isolated events in a matrimonial setup cannot be labelled as domestic violence.


It is sad to know that both society and judiciary feels that one slap is just not appropriate to attract the provision of domestic violence. Helplessly it has to be left to them to decide what shall it then be the number of slaps or the extent of violence which will actually be treated as domestic violence for them.


GROUNDS OF DIVORCE UNDER THE HINDU MARRIAGE ACT,1955

Section 13(1)&(2) of the HMA,1955 provides the various grounds for divorce available to both and exclusively available to the wife respectively.


However the “single slap” incident could by and large be included under the head of cruelty defined under section 13(1)(ia). Cruelty has not been defined in the Act, however the judicial interpretation provides for the definition of cruelty by means of case laws.


DEFINING CRUELTY BY MEANS OF CASE LAW

Shobha Rani v.Madhukar Reddi, (1988) 1 SCC 105, the Supreme Court had clearly held that ‘the word ‘cruelty’ has not been defined”. The Court had subsequently observed that “it has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other.”


Samar Ghosh v Jaya Ghosh, court considered the concept of cruelty and referring to the Oxford dictionary defines “cruelty” as “the quality of being cruel; disposition of conflicting sufferings, delight in or indifference to another’s pain ; mercilessness; hard-heartedness.

CRUELTY CAN BE OF TWO KINDS

· Physical Cruelty

· Mental Cruelty

In A. Jayachandra v. Aneel Kaur the Court observed that the expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence.


JUDICIAL TREND ON “SINGLE ISOLATED” EVENTS OF VIOLENCE

In Ramchander v. Ananta the Supreme Court has held that instances of cruelty are not to be taken in isolation but cumulative effect of facts and circumstances emerging from evidence on record and the drawing a fair inference whether plaintiff has been subjected to mental cruelty due to conduct of other spouse has to be culled out.


The settled proposition of law is that the normal behaviour and conduct of a spouse is not sufficient to constitute cruelty. It must be something more than that. The behavior and conduct of the spouse is guided by their social status, educational qualifications, physical and mental condition and the cultural and social background. The behavior of a spouse might cause anguish, disappointment, frustration or agitation to the wronged spouse, but that by itself, is not sufficient.


There has been a judicial bent in portraying that a single act of cruelty though capable of surpassing the test of cruelty cannot be the reason for divorce unless similar acts reoccur in future. It is really ironical to see the institution of judiciary to be vitriolic in their opinion.

Naveen Kohli v. Neelu Kohli , the Supreme Court had observed that the cruelty should be “grave and weighty” and that too of such a nature that “the petitioner spouse cannot be reasonably expected to live with the other spouse”. The Court had further observed that “…It must be something more serious than “ordinary wear and tear of married life” .

V. Bhagat v. Mrs. D. Bhagat, where it was clearly held that “Mental cruelty in Section 13(1)(a) can broadly be defined as that conduct which inflicts upon the other party, such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together.”


Albeit the judiciary has provided for all the various indications for an act to be cruel in the matrimonial set up such as that it should be grave and weighty, more than the ordinary wear and tear of married life, but what the judicial interpretation has not accepted is the single instances of cruelty could not be a sufficient ground for divorce.


With the social life of people becoming more complex and a higher degree of self respect and dignity in addition to the egalitarian approach and the wife contributing equally in the house financially, women are no more ready to accept any unwelcoming behaviour from their counterpart. Various anachronistic approach and social norms such as, “women has to compromise” , women is the one who has to protect her home”, “women has to bear a lot” have become obsolete today.


With the society being dynamic why has the judicial trend so regressive and holding onto the age old practices and social believes that a single slap or one isolated event which is sufficient to shatter the confidence of a person is not a sufficient cause for divorce.


WHY A “SINGLE SLAP” OR “ONE ISOLATED EVENT” DOES NOT SUFFICES TO QUALIFY AS CRUELTY – A GROUND FOR DIVORCE

· SACROSANT NATURE OF MARRIAGE – Indian society holds marriage as a much pious relation with the belief that it is tie which even death cannot severe. Indian society still holds divorce as a taboo. And it is always the society which shapes the law nevertheless our judges entertains such discriminatory opinions


· ABUSE OF LAW - With single acts being considered as grounds for divorce it may for some serve as a purpose for the easy exit from the matrimonial alliance. But to do away with this is the job of the legislature to frame such laws which are both progressive as well as provides no room for abuse, in addition to this even the constitution provides the court to keep a proper check on the implementation of law.


· PATRIARCHAL STRUCTURE OF SOCIETY - The patriarchal conditioning which is received by both boys and girls makes the male feel it that it is their right to dominate and control their partners and the girls are made to believe that there is nothing wrong in being slapped or humiliated by their husband/partner. And judges are people too who have been from the same society.


THE MOVIE HAS ALSO SHED LIGHT ON “IRRECONCILABLE DIFFERENCES” AS A GROUND FOR DIVORCE

It is yet another moot topic which is seen with disgust. A society reluctant to accept “a slap” as the sole reason of divorce, will it pave the way for “irreconcilable differences” to be the valid ground for the same.


“IRRECONCILABLE DIFFERENCES” OR “IRRETRIEVABLE BREAKDOWN OF MARRIAGE”

In Hinduism marriage is considered as sacrosanct and an eternal tie which continues even to the next world. However this belief is being threatened by the society changing in its approach. Where the iconoclastic section of the society musters the strength to put their happiness above the unbreakable bond of an burdensome marriage. “IRRETRIEVABLE” , as per the Cambridge Dictionary means, impossible to correct or return to a previously existing situation or condition. Word irretrievable is an adjective and indicative to the fact 'not able to be retrieved, means the things were lost in past, now cannot be revived. A marriage which has dried up of the basic emotion and is just a marriage for the purpose of showing the society and has no feelings or attachments with one another, a marriage that is simply dead and has been damaged beyond repair. It is impossible for the parties to live as man and wife and continuing such a marriage will be a constant source of mental cruelty and agony. Any marriage reaching this stage without attracting the FAULT THEORY OF DIVORCE [Section 13(1)&(2)] , FRUSTRATION THEORY OF DIVORCE ( for example one spouse is suffering from leprosy, venereal diseases insanity etc. the other spouse can take divorce) or DIVORCE BY MUTUAL CONSENT, then such situations qualifies for “NO FAULT THEORY OF DIVORCE” which enables the spouses to obtain divorce on grounds such as irreconcilable difference, incompatibility or irremediable collapse.


NO FAULT THEORY NOT A GROUND FOR DIVORCE UNDER HINDU MARRIAGE ACT,1955 AND THE 71st LAW COMMISSION REPORT,1978

Under Hindu Marriage Act,1955, “No Fault Theory” is not a ground for divorce. However the 71st Law Commission Report recommended for the insertion of section 13(C) under the Hindu Marriage Act,1955 which provided for the Irretrievable Breakdown of Marriage as a ground for divorce. The Law Commission suggested that the right to claim divorce only in case of matrimonial disability is a kind of cruelty to the parties where neither of the two are at fault. No fault theory will address such matrimonial situation where the essence and emotion mandatory for a marriage to sustain has evaporated and what has been left is a mere façade and the union is just a burden which the parties have to endure because their case does not fall within the existing law of divorce. A marriage which is dead, divorce should be the route to exit such marriage.


THE 217th LAW COMMISSION REPORT,2009

The law Commission Report again suggested for the introduction of irretrievable breakdown of marriage as ground for divorce . The UPA Government brought the Marriage Law (Amendment) Bill, 2010 introducing section 13(C) – Irretrievable breakdown of marriage as a ground for divorce.


The Bill provided for various rationale provisions such as enabling both parties to file for divorce on ground of irretrievable breakdown of marriage, wife may oppose the petition on ground of financial hardships, doing away with six months cooling period in case of divorce by mutual consent, both parties living separately for three years preceding the petition is a conclusive proof of irretrievable breakdown of marriage and other provisions.

The Bill was passed by the Upper House but not by the Lower House of Parliament and it lapsed with the dissolution of the 15th Lok Sabha in 2014.


Till date we don’t have irretrievable breakdown of marriage as ground for divorce.


SUPREME COURT HAS TIME AND AGAIN EMPHASIZED FOR THE INCORPORATION “IRRETRIEVABLE BREAKDOWN OF MARRIAGE” AS A GROUND FOR DIVORCE


· PRECEDENTS WHERE SUPREME COURT ADVOCATED FOR INCLUDING IRRETRIEVABLE BREAKDOWN OF MARRIAGE AS A GROUND FOR DIVORCE

Puja Suri v. Bijoy Suri, suggested the Law Commission of the State to take appropriate steps to consider for incorporating the ground of “irretrievable breakdown of marriage’ as grounds of divorce in Section 13 of the Hindu Marriage Act.

Rishikesh Sharma Vs. Saroj Sharma reiterated the principle of irretrievable breakdown of marriage.


Samar Ghosh Vs. Jaya Ghosh , three Judges' Bench of the Apex Court though passed the decree on the ground of mental cruelty but the concept of irretrievable breakdown of marriage has been discussed in detail referring the 71st Report of Law Commission of India.


Satish Sitole Vs. Ganga taking irretrievable breakdown of marriage as a concept to divorce and to pass the decree of dissolution of marriage.


K. Srinivas Rao Vs. D.A.Deepa wherein it was observed that though irretrievable breakdown of marriage is not a ground for divorce Hindu Marriage Act however, marriage which is dead for all purposes cannot be revived by court's verdict, if parties are now willing since marriage involves human sentiments and emotions and if they have dried up, there is hardly any chance of their springing back to life on account of artificial reunion created by court decree.


· CASES WHERE SUPREME COURT IN EXERCISE OF THE EXCLUSIVE POWER UNDER ARTICLE 142 HAS AWARDED DIVORCE ON GROUND OF IRRETRIEVABLE BREAKDOWN OF MARRIAGE

However the court uses its power under the said article rarely only after being convinced about the fact that decreed reunion of the parties to stay in a dead marriage is going to be a constant source of trouble and torture for both or either of them .


Salome v. Prince D. Immanuel, the court held that though according to Hindu Law, irretrievable breakdown of marriage is not considered as a valid ground for divorce but this court, following the precedents, has held irretrievable breakdown of marriage a valid ground for divorce.


Navratan Baid v. Neetu Baid, . It held that there was an irretrievable breakdown of marriage between both the parties in the case before them and granted the decree of divorce on the same ground while cruelty of one against the other was not sufficiently proved.


CONCLUSION

Movies like “THAPPAD”, leaves the audience with a question to ponder upon, that our matrimonial laws are still disappointing our married women. How a burdensome marriage which is a constant reminder of humiliation and inequality has to be endured. New Zealand is the first country to incorporate the ground of irreconcilable difference as a valid ground for divorce. UK also has this as a valid ground for divorce . At this juncture it is important for the legislature to reconsider the question of inserting Section 13 (C) as suggested by the 71st and 217th Law Commission Report. Dynamism is a sign of progress and alertness. Laws has to be dynamic with changing needs of society. Holding onto illogical and vague old customs and tradition acts as an impediment to progress. When questions are posed by the society in different forms be it cinema , literature or in any other form, what is mandatory is that it needs to answered.

Opinions expressed in the blogs are the sole responsibility of the author(s) and do not necessarily reflect the views of The L Word Blog.

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