Tuesday, June 29, 2010

Whose fault is it?

Whose fault is it?

Is marriage a sacrament, or is it just a legal contract? It remains an institution that offers the possibility of happiness, if configured right…

A recent discussion with my good friend on what I felt about the idea of divorce set me thinking about the ambivalence with which we generally tend to approach the subject. While we have learned to accept divorce, we'd much rather not think about it, unless we are forced to. I believe that our ambivalence is largely owing to the fact that we've not quite made up our minds on what precisely marriage means to us.

Traditionally, marriage has been considered a sacrament and this is the way most older Indians approach the institution of marriage. Obviously, in this situation, divorce becomes a moral dilemma, for, who would be comfortable engaging in sacrilege? Which explains why thousands of couples in the country, despite strongly feeling the need to separate from their partners for often very legitimate reasons, have hung in there and seen their lives through in an atmosphere of barely-manageable marital toxicity. Younger Indians though, don't necessarily see marriage as a sacred institution. Which perhaps explains why they are willing to consider the possibility of divorce when their marriages are not configured for emotional fulfilment.

However, it is still not easy even for young Indians to get blasé about divorce, for the sacrament theory of marriage is still strongly imbued in the hidden depth of their psyches, and perhaps their DNA even. So, despite the fact that the nation's lawmakers have recognised the validity of divorce in certain situations, Indian couples approach Family Courts with some considerable trepidation.

Considerable difficulty

Indian divorce legislation has rightly not made it easy for people to rush to divorce courts. The easiest form of divorce is that obtained by mutual consent, if both partners are mutually agreeable to a parting of ways. However, this is often not the case, for, one of the partners refuses to consent to a divorce for whatever reason. In such a situation, if the other partner still wants a divorce, the only option available is to unilaterally approach the court for divorce on certain specified grounds such as cruelty, desertion, mental disorder, adultery and so on. Obviously, the accused partner has a right to ‘contest' the allegations, and the burden of proof is on the accuser to prove to the court that the grounds on which divorce is sought really exist. Very often, it is extremely difficult to prove these beyond reasonable doubt, as a result of which many divorces go through lengthy and expensive legal processes which benefit none of the players. And it is not uncommon for the partner whose mind is made up on the issue of divorce to resort to unfounded allegations to strategically enhance the probability of divorce. However, this is now set to change.

Changes ahead

Very recently, the Indian cabinet has recommended amendments to divorce provisions under the Hindu Marriage Act and Special Marriages Act, whereby ‘irretrievable breakdown of marriage' will be considered an acceptable ground for divorce. In other words, even if one partner is unwilling, if the partner who approaches the court can prove that the marriage has irretrievably broken down, or if the accused partner is resorting to delaying tactics and avoiding court appearances, then the courts will be empowered to dissolve the marriage (of course, there will be lots of checks and balances and things may not be as simple as they sound). This is the equivalent of the much-debated “no-fault divorce” in the United States. Although the no-fault divorce first made its appearance in the state of California about 40 years ago, the other states took their own time adopting it (the state of New York is only now in the final stages of doing so). In fact, for many years New York state prided itself in having among the lowest divorce rates in the US and many New Yorkers now fear that there will be a flurry of divorce applications owing to the no-fault divorce, which is exactly the fear in the minds of many people in our country with this proposed amendment. However, such concerns are baseless, for, research has documented that although there is usually an initial increase in divorce applications when such legislation is enacted, things level off after a while, for, the rates of the ‘contested divorces' progressively decrease.

Needs work

Which brings me back to the point that I initially started exploring. If the laws of the land endorse the fact that some marriages can break down irretrievably, then marriage can no longer be viewed as a sacrament. Then how are we to think of it? A contract? I wouldn't really take such an extreme perspective. I would much rather consider marriage as a special relationship that provides all human beings the possibility of peace, health and happiness, but only if it is appropriately configured. For this to happen, one needs to usher three Cs into marriage: Commitment, Connectedness and Companionship. I would much rather we work towards such “no-fault marriages” and consider “no-fault divorces” only if, despite exhausting ourselves trying, we're still not able to get the marriage right. And since there are enough couples out there getting it right, I remain optimistic that the divorce rates in our country, which have been arguably pegged at about 11 divorces for every 1,000 marriages, are unlikely to veer too sharply northwards.

The writer is the author of the just-launched Fifty-50 Marriage: Return to Intimacy and can be contacted at vijay.nagaswami@gmail.com

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