Impropriety in legal journalism finds its latest victim in a recent judgement of the Supreme Court granting divorce to a man who has been fighting for it for over 20 years, where in a cruel twist, he was granted divorce by the Trial court, only to be reversed on appeal by the High court. In an egregious over-reach the news media reports on the judgement making up facts and drawing conclusions where there are none, as it suits them, betraying a lack of understanding of the laws, statutes and court procedure.
Some of the more glaring examples of poor articles on the subject I found are under:
To preface my analysis, I would urge you to first read the judgement here, and form your own opinion: http://judis.nic.in/supremecourt/imgs1.aspx?filename=44123
Facts of the Case:
In presenting the facts of the case, I must hasten to add these facts are borne out of the evidence presented by both parties, both of whom had their day in court not just before the Trial court, but the High Court and eventually the Supreme Court as well. Both parties clearly had more than their fair chance to present evidence to support their respective cases, and the following facts are based on what has been proved in court. In that sense they are not under controversy or open for debate.
- Marital discord started between the parties soon after they got married.
- The wife frequently made allegations that the husband had an illicit affair with their maid Kamla. However, their family never had any such maid. Moreover, the wife had presented absolutely no evidence which even remotely hinted at any such conduct on part of her husband.
- The wife would quarrel with the husband because she did not want them to live with his parents as they were a drain on his finances, and she did not believe that any of his money should be used to support his parents. The parents were completely dependent on their son financially.
- On the fateful day in 1995, the wife locked herself in the bathroom and supposedly tried to commit suicide by putting kerosene on herself, and was only saved as the family with their neighbours was able to break down the door.
- On that day itself, the wife left her husband's house (in legal language deserted him).
I reiterate that these are facts that have been held to be proved by the court on the basis of the evidence led by both parties. After considering the evidence, the Supreme Court (like the Trial Court) came to the conclusion that the husband had been able to prove his case of cruelty, and the wife had not been able to prove her case (i.e. that she did not commit cruelty against her husband).
Also important to note is that relates to an incident that happened in 1995 and was now finally being decided by the Supreme Court in 2016. After 20+ years of fighting in court, there can be no arguing that there was no marriage left between the two. In fact it would be injustice to not grant a divorce in such a case. I certainly can't understand anyone who says that a spouse should not have the right to get out of such an abusive and violent relationship, and in that light let me explain broadly the legal system of divorce here.
"No-Fault Divorce" in India (Hint: It does not exist and you can thank the parliament)
The real problem that finds no mention in much of the legal reporting is the fact that in India we do not have a "No-Fault Divorce", which is to say that it is not sufficient for one spouse to simply want out of a marriage for any reason. Consequently unless both parties agree to a divorce, or one person is able to find wrong-doing on part of the other person, a person cannot get a divorce and must continue to live the rest of their life in an unhappy relationship.
In the event of a failed marriage, a person can get divorced in one of only two ways. Either:
- Mutual Consent: Both parties agree mutually to get a divorce (easy process, takes 6 months, but depends on both parties to maturely handle the dissolution of their marriage); or
- Contested Divorce: One of the spouses has to file a contested divorce (extremely arduous process, takes years and takes only one spouse to be unreasonable). Such a a divorce is available only on certain limited fault based grounds such a spouse committing cruelty, adultery, desertion, impotence, conversion to another religion, being of unsound mind, suffering from mental illness, psycopathic disorder, leprosy, venereal disease etc. Out of these, most are fairly technical and straight-forward e.g. you either have the proof your spouse committed adultery (divorce) or you don't (no divorce), but the ground of "cruelty" is an outlier in that respect.
Cruelty is the most subjective (and for that reason the most widely used) ground which can cover a gamut of aspects that could come under physical and/or mental cruelty. What I am getting at it is that even if you are in the worst of marriages (remember this applies to both men and women), it is simply not enough for you to say that you no longer want to be in that relationship. Your spouse can effectively hold you hostage in the marriage and force you into litigation for years (or as in this case, decades) effectively not only depleting your emotional, physical and financial well-being but also blocking any chance of you finding happiness with someone else while you are still relatively young. Can this be justice?
The Supreme Court itself has noted in several judgements spanning the last few decades that the Parliament ought to bring no-fault grounds for divorce (also known as grounds of "irretrievable breakdown" or "irreconcilable differences"), but for reasons best known to them, the political establishment, regardless of which party is in power, has never been able to bring this into law. It is unimaginable on what grounds anyone feels that a person can and should be forced to live their life out in an unhappy relationship, which is the essential corollary of someone saying that divorce should not be made "easy."
So is there any merit to the controversy?
Fuelled by incompetent and/or deliberately misleading reporting of this case, Social Media Warriors have taken a manufactured controversy and condemned the Supreme Court as being a bastion of patriarchal oppression, seemingly without even reading the judgement themselves.
In my assessment the worst thing you can charge the Supreme Court with doing is using in a few places some admittedly regrettable and outdated language that make some people cringe. Phrases like "pious obligation" and "western thought" could be worded better, but they certainly aren't the cardinal sins they have been made out to be.
Here is why the articles mentioned above got it really wrong:
- "India’s supreme court has granted a divorce to a man [...] effectively ruling that a married woman must live with her husband’s family."
"the Supreme Court of India [...] said that a Hindu husband could divorce his wife on grounds of cruelty if she tried to separate him from his 'pious obligation' to live with his elderly parents and look after them."
"The SC recently ruled that if wife of a Hindu man forces him to separate from his aged parents and enjoys his income, then it is a valid ground for him to divorce his wife."
False. The Supreme Court merely noted that historically/ traditionally in Hindu society the wife has lived with her husband's family, which is only a statement of fact about how things are and not a value judgement of how things should be. As a factual statement, it is correct, regardless of one's personal opinion on whether that is desirable or not. The court says that ordinarily if the wife does not want to live in such a way, she would have a "justifiable strong reason." In the present case, it would proved on the basis of evidence that the wife's motivations were purely monetary greed at the cost of the husband's parents' survival - which is certainly an incidence of mental cruelty (and would be applicable in my personal opinion even if the roles were reversed and it was a case of a husband refusing to let his wife support her dependent parents in their old age).
- "“The court is emphasising that it’s the son’s duty to look after his parents,” said Chusang. “So basically it’s saying that [a daughter] is not really part of the family. She’s going to leave, she’s never going to look after her parents in old age, and therefore she has no value.”"
"While it is noble to take care of one’s parents, why does the same cultured society forget that the girl’s parents are also left behind at the time of the marriage. That is fair in the eyes of our society."
False. While such an extrapolation conveniently suits the slant that has been attempted, nowhere does the court even hint at such a conclusion. The Supreme Court merely observes that in the current case, the husband did have a right and responsibility to support his parents who were completely financially dependent on him, and the wife's insistence that he should leave his parents to fend for themselves in their old age was inhumane and cruel when the only reason she wanted her husband to abandon them was her own monetary greed. Neither was the status of the wife's parents before the court, nor did they comment on it. It was not a case that the wife's parents needed similar support and the husband was not willing to. The Supreme Court was only looking at the specific facts of a case, and to adjudicate whether the husband was entitled to a decree of divorce because he could not bear to live with someone who (amongst other reasons) would ask him to abandon his parents in their old age. What the Supreme Court was not doing was giving a conclusive exposition on the respective rights and responsibilities of sons vs. daughters towards their parents, and to extrapolate so is completely disingenuous. One of the articles admits this as well, and notes that several courts have even held daughters to have a liability for taking care of their elderly parents.
- "the supreme court ruling, [...] also dismissed the wife’s attempt to kill herself as a plot to “torture” her husband and his relatives"
"While the Supreme Court acknowledged that a wife trying to commit suicide, or succeeding in killing herself, would be a great source of 'distress' for the husband, it did not mention the events or causes that led to the wife in this particular case to take such an extreme measure."
False/ Misleading. On the basis of the evidence before it, the Supreme Court held: "We feel that there was no fault on the part of the Appellant nor was there any reason for the Respondent wife to make an attempt to commit suicide. No husband would ever be comfortable with or tolerate such an act by his wife and if the wife succeeds in committing suicide, then one can imagine how a poor husband would get entangled into the clutches of law, which would virtually ruin his sanity, peace of mind, career and probably his entire life." To the extent that the Supreme Court does not detail and discuss the factual nuances of the cause of the suicide attempt, that is partly true, but what the articles fail to mention is that it is not their role to do so, and Supreme Court judgements do not document every factual aspect of each case. The wife's reason to commit suicide (if any) would most likely have been documented in the Trial court's record, and from the excerpt above was clearly considered by the Supreme Court. Rather, from a reading of the Supreme Court's judgement it does not come out that the wife presented any evidence to substantiate any other reason for her wanting to commit suicide other than her desire to live separately from the husband's parents or her allegations (proved to be false) that her husband was involved in an extra-marital affair. This only supports the husband's case.
Here are the key extracts from the judgement on the basis of which the divorce was confirmed, that these articles seem to ignore:
- The wife's attempt to commit suicide was purely manipulative and not for any fault on part of the husband."U;"pon perusal of the evidence of the witnesses, the findings arrived at by the trial Court to the effect that the Respondent wife had locked herself in the bathroom and had poured kerosene on herself so as to commit suicide, are not in dispute. Fortunately for the Appellant, because of the noise and disturbance, even the neighbours of the Appellant rushed to help and the door of the bathroom was broken open and the Respondent was saved. Had she been successful in her attempt to commit suicide, then one can foresee the consequences and the plight of the Appellant because in that event the Appellant would have been put to immense difficulties because of the legal provisions. We feel that there was no fault on the part of the Appellant nor was there any reason for the Respondent wife to make an attempt to commit suicide. No husband would ever be comfortable with or tolerate such an act by his wife and if the wife succeeds in committing suicide, then one can imagine how a poor husband would get entangled into the clutches of law, which would virtually ruin his sanity, peace of mind, career and probably his entire life. The mere idea with regard to facing legal consequences would put a husband under tremendous stress. The thought itself is distressing. Such a mental cruelty could not have been taken lightly by the High Court."
- There was no proof of extra-marital affairs, and such allegations were reckless."We have carefully gone through the evidence but we could not find any reliable evidence to show that the Appellant had an extra-marital affair with someone. Except for the baseless and reckless allegations, there is not even the slightest evidence that would suggest that there was something like an affair of the Appellant with the maid named by the Respondent. We consider levelling of absolutely false allegations and that too, with regard to an extra-marital life to be quite serious and that can surely be a cause for mental cruelty."
- "Applying the said ratio to the facts of this case, we are inclined to hold that the unsubstantiated allegations levelled by the Respondent wife and the threats and attempt to commit suicide by her amounted to mental cruelty and therefore, the marriage deserves to be dissolved by a decree of divorce on the ground stated in Section 13(1)(ia) of the Act."
So what should we learn from this?
This is the easy part. Journalism today, and legal journalism particularly, faces some deep challenges related to both competence of reporting and ethics. To those of us in the legal profession who find ourselves in courts when high profile and public interest cases are being heard, and who read those judgements, a lot of times it's shockingly plain to see just how wrong the reporting is - either emanating from a surprising lack of understanding of the legal system, or from just plain incompetent reporting, and sometimes even because of deliberate bias.
Most Supreme Court and High Court judgements are available on their websites. When you see something controversial, Read the judgement. Form your own opinion. If you feel a court has made a mistake (and they do have their fair share of those), feel free to respectfully criticise. Just don't be a Social media warrior who can't be bothered to read the original source before denouncing a whole institution in righteous indignation on the basis of a blurb on the internet.
The other takeaway really is that it is a cruel system that forces a person who does not want to be in a marriage to remain stuck in the marriage unless he can show wrong-doing on part of the spouse. It's high time that the parliament heeds the advice of the Supreme Court and brings about a No-Fault ground for divorce, so such cases aren't stuck in the quagmire of the judicial process for decades.