INTIMACY UNDONE: Marriage, Divorce and Family Law in India.

INTIMACY UNDONE: Marriage, Divorce and Family Law in India by Malavika
Rajkotia. Speaking Tiger Books, Delhi, 2017 – Book Review

MATRIMONIAL litigation has an emotive component where the law is used
as a tool to reach emotional closure, sometimes through fair,
rights-based means and, on many occasions, through the ‘misuse’ of the
process of law. Malavika Rajkotia’s Intimacy Undone: Marriage, Divorce
and Family Law in India captures this hidden emotive side of
matrimonial litigation in India. Matrimonial conflict, she explains,
is much deeper and far more complex than what gets presented in the
lawyers’ brief or the judicial orders. With the object of
foregrounding the hidden aspects of divorce proceedings, she weaves
into the legal narrative her experiences as a woman lawyer in the
gendered courtrooms, anecdotes from personal and professional life and
stories of her clients’ grief, despair and resentment as they struggle
through painful divorce proceedings. The non-linearity of style and
liberal borrowing from the constitutive contexts of law – history,
culture, politics, literature, mythology, popular culture – give the
book a form refreshingly distinct from the standard legal writing
which is catalogued only with hard law, i.e. statutes and cases.

Rajkotia traces the messy history of personal laws in India – how the
shape and content of family law was determined in and through the
colonial encounter as the British interpreted the scriptures and
customs ‘to form a unique amalgam of Indian and English common law.’
Independent India inherited this legacy, and ‘reforms’ in marriage and
divorce related laws were widely imported from the UK, the most
significant of them being the deeply problematic ‘fault theory’ as the
basis for divorce and judicial separation. However, an answer to the
present flaws in the system is not a return to ‘a glorious past’, for
that would be tantamount to a regressive call for a return to the
scripturally sanctioned oppressive notions against women and lower
castes.

The book, as it deals with different aspects of matrimonial
litigation, revolves around three concerns: the promise of gender
equality, respect for religious pluralism and an ability of empathic
engagement with the litigants’ rather complex psychic states as they
labour to discover peace through law. She understands that
emancipatory reform of family law is possible only if gender based
inequalities at the heart of institutions of family and marriage are
acknowledged and addressed, when the rhetoric of reform is severed
from the agenda of majoritarian politics that erodes the promise of
cultural pluralism, and when legal practitioners step out of the
‘realm of the rational’ in order to understand the human failings in
intimate relationships.

It has long been established by feminist scholarship that family law
is a gendered realm where the discourse is contingent on the
subjective moralistic values of the lawyers and judges. Rajkotia
candidly accepts that ‘the present legal system is a form of primitive
patriarchy at its worst, and benevolent patriarchal patronage at its
best.’ Therefore, the objective of family law, according to her, ‘is
to dilute the impact of such unfair attitudes, which can and do
translate into illegal acts. ‘Feminism’, she is clear, ‘is an active
movement to arrive at gender equality.’ It is as much for men, as it
is for women: for men, too, carry the burden of masculinity. Advancing
a strong critique of marriage as she writes about love and sex within
matrimony, she discusses various decisions where sexual intimacy was
made the primary focus of the divorce proceedings, exacerbating
women’s vulnerability in marriage: since absence of sex amounts to
cruelty, sex becomes a marital duty and consequently, women may not be
able to plead marital rape as cruelty!

Rajkotia provides insights into how the fault theory of divorce,
designed with the view to preserve the institution of marriage, has
turned matrimony into a ‘holy deadlock’. Easy divorce, it is her
argument, will help the institution of marriage. It is to be noted
that divorce petitions are resisted not merely for financial and
social reasons; anger, resentment and bitterness are often at the root
of resistance to divorce. Offering an important insight into human
emotions, she rightly contends that cruelty emerges from a helpless
desire to control. During the divorce process both sides turn into
‘righteous avenger[s] for their own perception of the suffering they
have borne’: victims turn into aggressors, and former aggressors
suffer the other’s victimhood as an act of aggression.

Discussing the progressive 2005 amendments to the Hindu Succession
Act, Rajkotia argues through various illustrations how the sense of
entitlement of a man to the family property has not diluted despite
this law. Maintenance and alimony also remain fiercely contested
claims in the divorce proceedings. According to Rajkotia, maintenance
and alimony should be decided on the basis of needs, wants and
compensation. Presently, the lifestyle rule only provides for needs.
She makes an argument not only in favour of counting the unpaid work
of women to assess their claims of maintenance from the husband’s
wealth (for ‘the tenure of a marriage is the investment for which it
is reasonable to expect a return’), but also for compensation for the
anguish caused in marriage to either of the spouses. The idea of such
quantification of pain, loss and trauma, however, makes one wonder if
the future of family law can only be imagined through the translation
of emotions into economic justice. It is difficult to reconcile
Rajkotia’s critique of consumerism with her position on lifestyle
based maintenance wants which ‘can include shopping worth lakhs,
luxury travel, membership of exclusive wine and food societies,
personal trainers and expensive diet food.’ Her feminist position
contests those who would view such financial claims as immoral, but
her feminism has no critique of ‘class’ or consumerism of the
neoliberal variety that forms the core of familial relationships,
including matrimony.

There is a lot to be said about children in divorce courts. The
chapter on children is particularly striking as it creates a much more
complex image of a child than the dominant view, according to which a
child is an innocent being whose welfare is to be decided by
all-knowing adults: parents, counsellors, lawyers, judges. While
dealing with children, it is important to take note of their complex
subjectivity, their different sense of time, their vulnerability as
much as the deception and manipulation they learn from the surrounding
environment. Unfortunately, the custody courts are yet another arena
for parents to fight to claim their exclusive control of the child.
Rajkotia quite rightly contends that the word ‘custody’ (which implies
exclusive ownership of the child by one parent) should be substituted
by ‘co-parenting’. It is not only the adversarial legal process that
deals with children in an instrumental fashion, but parents themselves
reduce their children to ‘divisible assets’ or worse, tools to take
revenge. However, to realize the principle of the ‘best interest of
the child’, the courts need to evolve innovative processes and
adjudicative techniques such that the voice of the child is not
smothered in the cacophonic legalese and warring parents. This can
happen only if the court is singularly guided by the welfare of the
child, rather than equal rights of the parents.

She builds an argument for right to privacy (of adult members of the
family) within the family and also during the divorce proceedings. A
2015 decision of the Delhi High Court decision lays down important
guidelines to ensure privacy and confidentiality in matrimonial
matters so that the dignity of the persons involved is protected. On
the misuse of gender specific laws, her position is categorical and
clear: the benefits of women-enabling legislations outweigh the ‘pain’
of misuse and, therefore, these laws should be retained. The abuse of
law by women, viz. the retributive justice that they seek by pushing
for penal provisions against the family-in-law needs to be situated
within the pent up anger and disappointment, as much as the social
rebuke of failing to ‘adjust’ in marriage. The desire for payback is
often rooted in grief and suffering – the way to deal with it is not
to remove the women-enabling laws, but to work towards repairing the
social rubric which produces such damaged psyches.

Further, there is also misuse of the laws by men in the family
proceedings who manipulate the legal system to force their wives into
submission. She points out that intelligent and honest investigation
can filter false complaints by both men and women. Making an important
clarification about ‘false’ accusations, she states that rejection of
some evidence by court does not necessarily mean that it was a false
case. It may be that the evidence did not meet the high standard of
proof that is needed in a criminal trial. But the same evidence may
pass the lower standard of proof in civil cases.

On the issue of the Uniform Civil Code, she takes the view that
reforms, including reforms towards gender equality should emanate from
the community, including the women of that community. Moreover, UCC
does not make it incumbent only on the minorities to introduce
reforms; the Hindu majority also needs to answer whether it is ready
for a UCC where marital rape would no longer be protected under the
guise of a sacrament, where kanyadaan which is at the root of dowry
will be given up, where Hindu women will not be cast into
stereotypical roles of devoted sacrificing wives and mothers and the
caste system and Brahmanical patriarchy will be rejected.
Understanding the politics of UCC, she remarks that a push towards UCC
may prove counter-productive as it may impel the minorities to adopt
outmoded identities and customary practices as a defence mechanism.

However, in her analysis one finds an uncritical acceptance of the
court evolved ‘essential practices’ doctrine which she believes
maintains a fair balance between religion and illegal practices. The
Supreme Court, according to her, can drive reform in the domain of
family law; it can ‘cajole and convince all religions’ and ‘try to
convince upper caste Hindus that the caste system is not a part of
Hindu religion.’ With the memory of the aftermath of Shah Bano still
alive, such faith in the Supreme Court appears unrealistic and almost
naïve. In fact, it undercuts her own critique of the top-down
structure of reform where people are not participants but objects of
social change.

Rajkotia illustrates that the expectations from law to do justice in
family law are fraught with many unanswered issues since there are
dangers in expecting the law to adjudicate on moral and emotional
aspects of marital relationships. What would be ‘justice’ in a
situation when a fatigued and exhausted person seeks divorce from a
mentally ill spouse? Would ethics of care in such a situation
transform into a legal obligation to stay in the marriage? The book
pushes the reader to think about these questions without offering easy
or quick solutions. This makes it a welcome addition to the scarce
critical literature on family law in India. However, Rajkotia’s
politics largely remains confined within the liberal frame. Her
uncritical endorsement of the Verma Committee report, half-baked
critique of consumerism and the blind spot of ‘class’ in her version
of feminism run the danger of slipping into a privileged, neoliberal
subject position, thereby circumscribing the project of reimagining
the domain of family law.

Latika Vashist

Indian Law Institute, Delhi

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