Couples on the verge of a legal separation almost always wish there could be a way of getting arou- nd messy divorce laws. Unfortunately, there isn’t any unless you can arrive at an agreement to end the marriage and convince the court that it is well and truly over.

But over the last few months, quite a few warring couples have found to their astonishment that the court now takes more than just a purely legal interest in troubled marriages. In fact, they have taken to playing the role of moral guardian and peacemaker and are advising couples not to break up. There have been numerous instances of the high court sending couples off on a holiday to sort out their differences away from the interference of their families. In most cases, though, it has failed to bring them together.

This is being termed as an experimental judgment to check the spiralling divorce rate. But the question being asked in various quarters is whether the courts are within their rights to impose a decision that may not go down well with the parties concerned. The trend was started by Noore Alam Choudhury, former judge and Chief Justice of Calcutta High Court. Over the years, several other judges have followed suit.

“This judgment has been given in cases where the wife had filed a case of matrimonial cruelty under Section 498A of the IPC. Usually, in such cases the husband and his family are arrested, which leaves little scope for reconciliation. Ironically, most of these disputes occur due to minor differences that can easily be sorted out across the table. So, this is a step in the right direction,” says lawyer Ashimesh Goswami.

Take the case of Abhijit Sen, a chartered accountant and his wife Sharmishtha. The latter filed a case of cruelty and her husband sought anticipatory bail. But Abhijit and Sharmishtha had nothing against each other. Their meddlesome mothers were apparently responsible for the breach that was leading to divorce. A division bench comprising Justice Amit Talukdar and Justice S.K. Mitra ruled that they should iron out their differences away from their respective families, preferably at Puri. They readily accepted the order and boarded a train for the sea resort. By the time they had returned, they were in no mood to fight it out in court. “Abhijit even went to the extent of walking out on his family and decided to rent a flat and live separately with his wife. Thanks to the unusual judgment, the marriage was saved,” claims Goswami.

But experimental judgments don’t always lead to such happy endings. In fact, some lawyers admit that they not only curb the freedom of choice but could even be dangerous for the wife. Mithun Das and his wife Dipanjana were packed off to a city hotel by the high court a couple of months ago. They managed to put aside their differences for a while and went home with a renewed pledge to live happily ever after. But the young couple with two children is having problems once again. Mithun, who is financially dependent on his father, has told the court that he can’t afford to live separately. And his father wants them to split.

Lawyer Jayanta Narayan Chatterjee, who has been involved in several such cases, points out that though these judgments may seem like an imposition initially, they help blot out family interference ? the major cause of divorce among couples. “Newly-weds rarely want divorce. They succumb to family pressure. These judgments are serving the message that you shouldn’t end your marriage on flimsy grounds,” Chatterjee says.

Senior lawyer Gitanath Ganguly agrees. He says that it would be a misnomer to call them “judgments” for these are merely attempts at effecting a reconciliation before the actual trial starts. “Under the law the court can make all possible attempts to do that. Even family experts can be appointed for the purpose under order 32(A) of the Civil Procedure Court. Moreover, this is just tentative living and the couple is at liberty to come back and seek a divorce,” Ganguly explains.

The numbers, however, are far from encouraging. So far, tentative living has been able to prevent divorce in only a handful of cases. Also, lawyers often find it difficult to persuade reluctant couples to follow the order. However, that should not serve as a disincentive, believes Goswami. The onus of failure doesn’t lie with the judgment alone as there are other factors responsible. “If you are financially stable, it becomes easier to resist family interference, as in the case of Abhijit. More importantly, husbands should change their attitude towards their wives and stop treating them like their property,” he adds.

Barrister Arijit Banerjee, who is all for this experiment, refuses to accept that the court is playing the role of moral police. “In any case, no court will grant you a divorce unless it is satisfied that the marriage has irretrievably broken down. This is just making one last attempt, which may or may not work. Even if it does in one instance, it is worth giving it a try,” he says.