“Unilateral refusal to have child will amount to mental cruelty”
April 2nd, 2007
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Admin note: A guest post by Chandni Malik.
According to a New Supreme Court Judgement, a unilateral decision by either the husband or wife not to have a child will amount to mental cruelty and constitute a ground for divorce.
A Bench comprising Justices B.N. Agrawal, P.P. Naolekar and Dalveer Bhandari said, a “unilateral decision of refusal to have intercourse for a considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.” Writing the judgment, Justice Bhandari said if a man underwent sterilisation without medical reasons and without the consent or knowledge of his wife and similarly if a woman underwent tubectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act might lead to mental cruelty.
I consider the above Supreme Court Judgement a blow to reproductive and sexual rights in India. While it sounds “apparently” gender equal, referring to both men and women in making the reproductive decisions, it does not consider existing unequal gender power relations.
It takes away from all of us, the right to “individually” decide on whether we want to have sex, whether to carry the pregnancy to term or to get it terminated, even whether to use contraception or not! It mandates spousal consent for sterilization and abortion as opposed to existing norms.
Right now it talks of sterilization, tomorrow can extend to other contraceptives as well and it doesn’t even take in to account the fact, that only women can have abortions and that there is a complex context of lopsided power distribution in decision-making that will manifest itself in situations like these.
It is also a contradiction of the “Protection of Women from Domestic Violence Act”, which recognises forced and coerced sex among intimate/married partners as a type of domestic violence.
The understanding of Supreme Court judges on gender, reproductive rights and population issues is clearly quite low. And in any case, this particular judgement is very much in tandem with Supreme Court’s typical general right wing stance on most issues.
Divorce on mutual incompatibility I can understand, but to call it cruelty is not just stupid but bordering on the ridiculous! The guidelines comment on very sensitive sexual and reproductive rights – thus taking the debate on individual rights vs. collective rights on one level and denial of rights on the other.
Sure, in a marriage, if one partner wants children and the other doesn’t, it’s a good enough reason for them to separate in my opinion, however let us leave it at that! Incompatibility. Why bring in the notion of cruelty? Just like a man has a right to have a child, so does a woman, not to have one or vice versa!
Similarly, if it is cruel to deny sex to one’s partner, isn’t it equally cruel to force/ expect your partner to do it if they don’t want to?
If you see it from the perspective of an average Indian married woman, one of the countless ones out there – she often does not even know that she is entitled a say in when or whether to have a baby or not! So in practice, no rights left for her, it will be construed as mental cruelty!
She faces a tough choice – right to choice or face the music of mental cruelty. And this is right now just a conceptual argument; we know that there are additional burdens now women will carry, particularly in unequal power relationships where no negotiation is possible for most, on issues related to sex, sexuality or reproduction. Also, there are just so many grey areas and loopholes, for instance, “valid reasons” not to have sex etc…that are so subjective!
It is outrageous for a lot of reasons, but most of all, it’s terrible because it takes away the most basic right of a human being, the right over one’s body and what one wants to do with it.
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6 Responses to ““Unilateral refusal to have child will amount to mental cruelty””
April 2nd, 2007 at 5:56 am #
[...] posted here. [...]
Confused April 2nd, 2007 at 11:06 am #
Chandu,
No, you are wrong. It doesn’t mandate spousal consensus, it merely say that lack of spousal consensus is a justifiable ground for divorce. One doesn’t flow from the other.
Do you think the law allows divorce on basis of mutual incompatibility?
Shripriya April 2nd, 2007 at 11:28 am #
Hmm… I am not sure I am in agreement with the conclusions. If either partner goes behind their spouse’s back and gets sterilized, that’s grounds for divorce. Should it be? Heck yeah! I mean what does it say about the marriage in the first place? Same for abortion - it is both spouses’ kid…
I don’t see this as going back on women’s rights. If a couple gets pregnant and one party wants to abort, it is not possible. Now, I would say in that equation, IF the woman wants to abort, she has an advantage since she can actually go get it done. In that situation is the husband entitled to divorce the wife? Sure. He’s probably going to divorce her anyway if he feels strongly and if he doesn’t, then he won’t.
The key question is the implications of “mental cruelty” - does classifying a divorce as mental cruelty give the divorce some special status? For example, if it is mental cruelty does it mean there is no need to pay alimony? I don’t know…
To me it seems like “mental cruelty” is a technicality. It is the catch all phrase used to allow one person to get out of a marriage. Does anyone know if that is accurate?
chandni April 2nd, 2007 at 11:07 pm #
@Confused: No, the law doesn’t yet recognise mutual compatibility and that is the point I was trying to make. One person wanting a child and one doesn’t, is a good enough reason for divorce…why should connotations of “cruelty” be attached at all?
Also, you know that in the Indian context, this phrase will only increase stigma in cases where the case is filed under mental cruelty.
I completely understand the case of the IAS officer and I think he is justified in getting a divorce, I just don’t think that the court needs to give us a moral lecture on any universal way of behaving in a marriage.
@Shripriya: Valid points tbere.
See, I am not saying that in a marriage people should’nt discuss before planning/terminating a pregnancy and both definitely should make a joint decision.
However, I think that equation is personal, and I don’t think the Court should interfere with negetive connotations of “cruelty”. My biggest issue is with the terminology which makes one partner look like some monster using abortion/sterlization as a weapon to torture their partner!
Also, are things as simple as they look? Don’t you think that the scope of misuse is pretty high here? Since the context is so subjective, people can build cases to abandon partners without taking any responsibility! I think the alimony etc all remain the same as any other divorce, but I will recheck and confirm.
Gaurav April 3rd, 2007 at 6:41 am #
I concur with both Rohit and Shripriya, except for the phrase “mental cruelty”. This phrase reeks of “living law” and there is a real chance that it can be used for the purpose not intended in the present ruling
Jai_choorakkot April 29th, 2007 at 11:39 am #
There may be some fine tuning required but overall I think I support the judgement.
As earlier commenters have pointed out, I dont think there is an incompatibility clause, so its getting aliased to cruelty.
Also you asked, if its cruel to deny sex (a), isnt it cruel to force sex on the partner (b) ?
well (b) is not just cruel, but has been defined as rape by the same judiciary that has such “a low understanding of rights”. It should also be ground for divorce (am not sure abt this). I see (a) as a balancer to this.
Overall I support the idea that the default expectation in a marriage is to be able to have sex and kids, and if either partner wants something otherwise, they should negotiate that before marriage, preferably in a pre-nup. The burden is on the non-default category, either gender. i hope to see clear pre-nups and pre-marital counselling as a common practice in the future.
regards,
Jai