Recently, I have been asked, surprisingly, to address a variety of forums on the subject of divorce. I'm not sure if people are tired of hearing me speak on marriage or whether the issue of divorce has assumed more top-of-the-mind importance than before. Going by the number of articles in the popular press lamenting the issue of divorce and its increase over the last few years, one might imagine that the Indian marriage is terminally ill, but my experience would find it hard to countenance this perception. So, although I have written about divorce earlier in this column, I would like to take a fresh look at it, this time from the point of view of the divorcee.
When I went through the 2011 Census data, I found that in the age group of 20 to 44 years, there were three times as many widows and widowers as there were those who were divorced or separated. But this figure wouldn't alarm us. We may commiserate with the distress of widows and widowers and may even do whatever we can to help them find new lives for themselves, because we feel that they are not to blame for their widowed state. But when it comes to divorcees, we become all ambivalent. Of course, we'll always sympathise with the ‘wronged party', even though at the back of our minds we have the feeling that maybe they didn't try hard enough to make their marriage work. But more likely than not, we'll believe that either or both partners were at fault.
Since we are by and large a traditional culture, most of us think of marriage as a sacrament, solemnised in the presence of God. As a result, a decision to divorce has to be substantially justified, not just by the individual but the entire family as well. In other words, one of the partners has to be ‘at fault' or a ‘sinner'. Which is why, in the past, even in the case of highly toxic marriages, neither partner was keen on initiating a separation or divorce for fear of being seen as the ‘faulty' one. Even today, if a couple is granted a divorce by ‘mutual consent' (since this is the least acrimonious method of obtaining a divorce), when it comes to justifying the divorce decision to their social networks, each partner squarely points the finger at the other's behaviour as being responsible for the breakdown of marriage. And both partners usually define themselves as ‘innocent divorcees', particularly when they start looking for another spouse. Most people assume that when matrimonial advertisements begin with ‘ innocent divorcee seeks alliance', they refer to divorces where the marriage has not been consummated. While this may sometimes be the case, the fundamental message being passed on to potential respondents is ‘the divorce was not my fault'.
If, instead of being considered a sacrament, marriage is seen as a committed intimate relationship that two consenting adults consciously choose to engage in, then the possibility of a ‘no fault' divorce exists, for, under certain circumstances, said consenting adults may also consciously choose to go their separate ways. Recognising this, the Law Commission of India had in its 71st report, as early as 1978, recommended that ‘irretrievable breakdown of marriage' that was based on the principle of ‘no fault divorce', be included as a ground for divorce under the marriage acts. However, this has not yet happened despite being endorsed by the 217th report of the Law Commission in 2009.
An important anxiety that has been doing the rounds is that such a provision may actually increase divorce petitions as it has done in the state of New York, which saw a 12 per cent increase in divorce filings in the seven months since the introduction of ‘irretrievable breakdown of marriage' clause last year (New York is the last state in the US to introduce this clause). However, experience from other parts of the world show that this initial increase is not sustained. Another concern that has been expressed is that such a provision may place underprivileged women in our country in positions of further disadvantage, since men may use it to intimidate them into submission.
The way I see it is that a divorce need not be the ‘fault' of either partner. Nor would I see it as a ‘failure' by either or both partners to make their marriages work. Divorce decisions are never taken lightly. Even those that appear to be based on the whim of an impetuous young man or woman are rarely without bases. But when they are taken, it obviously means that one or both partners have lost the will or the energy to fight for the relationship and if despite having sought and obtained professional help, they haven't been able to establish companionable togetherness, then maybe they should be allowed to take a call on what they want to do. And perhaps if the concept of equal division of community property is linked to that of ‘irretrievable breakdown of marriage' to ensure that a woman who is a homemaker is not financially at the mercy of patriarchal control, then, no divorcee needs to feel compelled to establish ‘innocence' to seek termination of a marriage that is not doing what it was intended to.
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