05 March,2017 09:24 AM IST | | Jane Borges
Leading divorce lawyer's new book sheds light on the loopholes in Indian law that's led to gross misuse of love, sex and dhoka
Illustration/Ravi Jadhav
A few years ago, a judge in an open court threw a barb at divorce lawyer Malavika Rajkotia. The judge remarked that it was lawyers who were largely responsible for prolonging divorce cases. Rajkotia recalls how she reacted by writing an open letter to the Chief Justice of the Delhi High Court. Although, she never sent that letter, it evolved into something bigger.
Her first book, Intimacy Undone (Speaking Tiger), emerged out of the need to speak in defence of family lawyers. "The suggestion that lawyers are mainly responsible for obstructing settlements exposes a lack of understanding of the dynamics of matrimonial conflict. A lawyer can never completely control a case and judges can never completely grasp the matter. It is the litigants who decide how far and how long they want to battle," says the Delhi-based lawyer in the just-launched title.
The result is a text, which is both a reflective and argumentative account of love, marriage and divorce. Along the way, Rajkotia brings alive the drama of divorce courts, while bravely challenging some long-held notions - a sexless marriage doesn't amount to cruelty; adultery in India should be de-criminalised and live-in relationships might deny you what's rightfully yours. Edited excerpts from an interview with the author:
You say Indian law has reduced marriage to a sexual act. Isn't a sexless marriage enough reason for a partner to walk out of the union?
Well, there have been some judgments that have reduced marriage to a sexual act. However, the law continues to treat it as a socio-economic union. But, by holding that absence of sexual intercourse is a marital fault of cruelty, the courts are trivialising the matter: the courts do not seem to have considered that refusal of sexual intercourse may be due to a deeper problem that is exacerbated by the person demanding sex. While I cannot provide a general response to the question on sexless marriages, I do believe that after a while, marriage settles into a friendship in which sex need not play a primary role.
Why do you support de-criminalising adultery?
Adultery is a criminal offence and is punishable by law under our Penal Code. To be forced to stay in a marriage for fear of criminal consequences smells of a totalitarian society, and not of the modern liberal tenets that inform our Constitution. The freedom to search for and pursue your happiness includes the right to undo mistakes in choice of partner. The second reason is legal.
The present law is gender-biased and subco-nsciously reinforces patriarchal principles. It is abhorrent that a married man has the right to have proprietary control over his wife while there is no deterrent to his engaging in a romantic relationship with an unmarried woman.
The possibility of misuse of Section 498A [Husband or relative of husband of a woman subjecting her to cruelty] of the IPC by a woman against her husband is often spoken about. In reality, how common is it? What if a wife is abusive in a relationship?
There are protections in general law for men in abusive relationships, but given that domestic violence is gendered in nature, a law focused on protection of women is required.
Divorce proceedings in India can be tedious. Is living together an easier way out of this juggernaut?
Usually, it is the financial aspect that complicates marriage, so also live-in relationships. Socially, we don't seem to be ready for live-in relationships, but the point is that modern marriage laws have emerged as an institution to create and protect certain rights, which are now being extended to live-in relationships as well.
If you remove morality as a factor, then it is really about social, economic and emotional investment in a relationship - unravelling of which, whether in a marriage or otherwise, is a complex and painful process.
