The Telegraph
Since 1st March, 1999
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Marriage laws are a tricky business, especially in a country where personal laws of various religious communities exist side by side with the civil law. Two recent judgments by the Supreme Court show how, in spite of apparently just laws and the constitutional principle abjuring discrimination on the basis of gender, womenís interests can only be protected by extra sensitiveness on the part of the court. The sensitiveness is mainly based on technical meticulousness. The correct interpretation of the law must be matched by a thorough knowledge of social usage. Early this month, the Supreme Court put a stay on an order of alimony which the lower courts had asked the wife to pay. The divorce law in India is an example of gender equality. It allows the husband to ask for alimony in the event of divorce if he is unable to fend for himself. But this forward-looking law is meant for an ideal world. Since the status of women in India is still rather unenviable, the law can be misapplied, especially if the wife is the one to ask for divorce. The Supreme Court ruling in this case suggests that such a situation may be pertaining here. Later in the month, the court rejected a written statement of talaq as proof of divorce by personal law. The court has pointed out that even according to the personal law, talaq must be justified and there has to be a record of attempts at reconciliation preceding the talaq. In this case too, the story behind the case seems a shoddy one. A wifeís appeal for maintenance was being denied with a written statement of talaq intended to prove that she had already been divorced. Once again, it is the courtís meticulous unthreading of a technical point that is the only protection against social exploitation.

There are some morals, not very palatable, that can be drawn from these two stories. It is rather alarming that the cases should have gone up to the Supreme Court at all. These are divorce and maintenance cases ó lower courts, such as family courts and at most high courts, should be able to dispose of them satisfactorily. Arming the family courts is useless if the cases end up lengthening the queue in the Supreme Court. Nor is it healthy for the Supreme Court to be popularly perceived as the sole protector of the underprivileged. Especially since social change is slow, competence among the local courts regarding marital laws is particularly important to help raise awareness.

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