Comments on: “Unilateral refusal to have child will amount to mental cruelty” http://policywise.net/2007/04/02/unilateral-refusal-to-have-child-will-amount-to-mental-cruelty/ Policy Matters Wed, 19 Nov 2008 16:13:33 +0000 http://wordpress.org/?v=2.6.1 By: Jai_choorakkot http://policywise.net/2007/04/02/unilateral-refusal-to-have-child-will-amount-to-mental-cruelty/#comment-443 Jai_choorakkot Sun, 29 Apr 2007 16:39:47 +0000 http://www.policywise.net/2007/04/02/unilateral-refusal-to-have-child-will-amount-to-mental-cruelty/#comment-443 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 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

]]> By: Gaurav http://policywise.net/2007/04/02/unilateral-refusal-to-have-child-will-amount-to-mental-cruelty/#comment-271 Gaurav Tue, 03 Apr 2007 11:41:43 +0000 http://www.policywise.net/2007/04/02/unilateral-refusal-to-have-child-will-amount-to-mental-cruelty/#comment-271 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 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

]]> By: chandni http://policywise.net/2007/04/02/unilateral-refusal-to-have-child-will-amount-to-mental-cruelty/#comment-269 chandni Tue, 03 Apr 2007 04:07:28 +0000 http://www.policywise.net/2007/04/02/unilateral-refusal-to-have-child-will-amount-to-mental-cruelty/#comment-269 @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. @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.

]]> By: Shripriya http://policywise.net/2007/04/02/unilateral-refusal-to-have-child-will-amount-to-mental-cruelty/#comment-261 Shripriya Mon, 02 Apr 2007 16:28:29 +0000 http://www.policywise.net/2007/04/02/unilateral-refusal-to-have-child-will-amount-to-mental-cruelty/#comment-261 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? 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?

]]> By: Confused http://policywise.net/2007/04/02/unilateral-refusal-to-have-child-will-amount-to-mental-cruelty/#comment-260 Confused Mon, 02 Apr 2007 16:06:50 +0000 http://www.policywise.net/2007/04/02/unilateral-refusal-to-have-child-will-amount-to-mental-cruelty/#comment-260 Chandu, <blockquote>It mandates spousal consent for sterilization and abortion as opposed to existing norms.</blockquote> 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? Chandu,

It mandates spousal consent for sterilization and abortion as opposed to existing norms.

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?

]]> By: Unilateral refusal to have child will amount to mental cruelty" « BoHeMiAn RhApSoDy http://policywise.net/2007/04/02/unilateral-refusal-to-have-child-will-amount-to-mental-cruelty/#comment-259 Unilateral refusal to have child will amount to mental cruelty" « BoHeMiAn RhApSoDy Mon, 02 Apr 2007 10:56:46 +0000 http://www.policywise.net/2007/04/02/unilateral-refusal-to-have-child-will-amount-to-mental-cruelty/#comment-259 [...] posted here. [...] [...] posted here. [...]

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