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Bound by consent

India’s divorce laws could do with more nuance...

Written by The Indian Express |
December 18, 2009 10:37:59 pm

India’s personal laws may famously lack “uniformity”,but on one thing,they all agree. “No fault divorce” is not permitted (except under Shariah). Both spouses have to consent to divorce unless grounds such as infidelity or cruelty can be proved — evidence that can be traumatic and difficult to establish. For a divorce under the Hindu Marriage Act,for instance,unless spouses can prove any of these grounds,three long-winded steps have to be taken. First,the couple have to live separately for a year. Second,both have to file for a consensual divorce. And third,the court will grant another 6-18 months for a possible reconciliation. It was these provisions that Smriti Shinde,daughter of Union Power Minister Sushil Kumar Shinde,questioned before the Supreme Court on Wednesday.

Shinde said the requirement of consent goes against gender justice and is unconstitutional. If the court were to agree with her,they would,in effect be permitting “no fault divorce” in India. The issue is a sensitive one and Shinde’s grievance may not be generalisable. Some gender activists hold that permitting “no fault divorce” would encourage men to abandon their wives at the slightest ruse.

This divergence apart,there are other problem areas on which reformists can converge. The first is the length of time required for a consensual divorce. Under the Hindu Marriage Act,it can take up to three years; under other laws,even longer — a pointless proposition for a couple who don’t wish to live with each other. The court must also distinguish cases such as Smriti Shinde’s,who is obviously not being coerced,from instances where unilateral divorce is cruelty dressed up as freedom. For so sensitive a social issue,the law must respond in kind.

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