HVK Archives: Till cruelty do us part
Till cruelty do us part - The Indian Express
Sumedha Raikar-Mhatre
()
20 May 1997
Title : Till cruelty do us part
Author : Sumedha Raikar-Mhatre
Publication : The Indian Express
Date : May 20, 1997
Cruelty, physical and mental, is now ground enough for a Christian woman to obtain
a divorce. Last fortnight, the Bombay High Court (BHC) recognised cruelty and
desertion as independent grounds for the dissolution of a Christian marriage.
The court struck down Section 10 of the Indian Divorce Act which stated that a
Christian wife had to necessarily prove adultery along with cruelty or desertion
while seeking divorce. The court ruled that the section discriminated against
women and therefore violated the constitutional right to equality and right to
fife.
This Bombay High Court judgment comes close on the heels of the February 1995
Kerala High Court (KHC) judgment in the Mary Sonia Zachariah vs Union of India
case. The KHC had ruled that "Section 10 compels the wife, who has been deserted
or cruelly treated, to continue her fife with a man she hates .... Such a life is
sub-human .... There is denial to dissolve the marriage when the relationship has
broken down irretrievably......
The court also dismissed the argument that striking down Section 10 meant
disrespect to Christian principles. "So long as the infringed provisions are part
of an Act, it must pass the test of constitutionality even if the provision is
based on religious principles...... the KHC ruling had stated. Around 10 Christian
organisations were present in the court to support the petition.
A similar united effort was evident in Mumbai when the BHC struck down the
offending provisions. Three Christian women, who had never seen or met each other,
unknowingly became part of a historic judgment.
Jessie D'Silva, Ursulla Menezes and Pragati Varghese had filed for divorce at
different points of time. But their petitions were clubbed together since they
raised common issues. Last week, their lawyers Flavia Agnes, I.P Bagaria and Lata
Desai respectively, vehemently argued for almost the same prayers divorce due to
mental and physical cruelty by their respective husbands. The individual battles
comprised gory physical assaults, abuse during pregnancy and prolonged mental
harassment. All the three women, now in their thirties, have demanded custody of
their children and alimony from their husbands.
While the three divorce pleas are still to be decided on individual merits, the
larger theory of granting divorce has been determined. The judgment is a step
forward in giving justice to Christian women seeking divorce, especially in the
context of the much-awaited rationalisation of personal laws in India.
The coincidence of the three divorce cases coming up at the same time was
fortuitous. The petitioners' advocates jointly maintained that Section 10 is
objectionable as it denies the right to five a fife with dignity to the woman
seeking divorce. Advocate Desai cited every statute of Article 21 of the Indian
Constitution which undermines the right to life. Bagalia stressed that every law
must change according to the social climate. Legal amendments, partial and major,
are permitted in any law in order to maintain a balance with popular sentiment, he
said.
Advocate Agnes, who argued for nearly two whole days, cited the entire history of
Section 10 governing Christian marriages. She said the section is based on
England's statute titled Matrimonial Causes Act, 1857, which granted the right of
divorce to Christian women for the first time. England effected several changes
in this statute in the years that followed, including 'irretrievable breakdown of
marriage' as a ground. But Agnes argued that the laws governing Indian Christian
marriages remained unchanged, while the Parsi, Hindu and Muslim marriage laws have
undergone several changes and have even recognised divorce by mutual consent.
Agnes also cited several Law Commission reports which have affirmed the need for
such an amendment. Moreover, the Christian community has jointly presented a Bill
endorsing the changes in the Christian marriage and divorce law.
Desai feels that courts have acted as agents of "social reform". "The amendment
is in keeping with the Christian community's demand to simplify the divorce
procedure. But the State governments have been characteristic apathetic. We are
glad that courts took the initiative in striking down the offending provisions,"
he says.
Advocate Bagaria said this was indeed a landmark judgment. "Earlier, couples
applied for judicial separation and nullification of marriage under Section 19.
'Farcical grounds' like allegation of impotency, lunacy or second marriage were
put forth to sever the ties." Over 50 claims for judicial separation are pending
in the BHC itself. Most of these claims are likely to be amended, and couples
might seek divorce straightaway. Members of the Christian community have also
welcomed the judgement. In fact, a reform Bill, jointly drafted, including by the
Catholic bishops, has already been submitted to the Government. But this Christian
Marriage and Matrimonial Causes Bill, 1994, is still to be considered. All India
Catholic Union President Norbet D'Souza says: "It is in line with our efforts to
remove the lacunae in the law. We welcome the decision."
The BHC, however has gone a step further than the KHC ruling. It has also struck
down Sections 17 and 20 of the Indian Divorce Act which state that if an order of
divorce or annulment is passed by a district court, then it needs to be confirmed
by a three-member Bench of the High Court. No such confirmation will now be
required.
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