“Triple talaq; the outlawed custom in India”

 

Every religion in India has its own understanding and custom which they follow and after a time which prevailed as personal laws.

One of them is the idea of “triple talaq” which is trailed by the Islamic culture in India The Muslim personal laws of India permit talaq-e-bidat i.e. verbal type of divorce in which the man says in one sitting “I divorce you” three times to his wife (triple talaq) disbanding the marriage without even giving a reason behind same.

Such “un-Quranic” practice under the Islamic law in India is not only odious to the dignity to women but also violates fundamental rights guaranteed under article 14, 15, 21 and 25 of the constitution of India. (Shayra bano v. union of India &Anr.)

Uniform civil code should be brought up by obliterating different personal laws of different religions in India. Where a state under article 44 of the constitution of India can apply uniform civil code when the question is about the gender inequality coupled with dignity of women as a symbol of un-constitutionalism. Article 25 mentions a right to practice a religion freely but the practice should not be a misuse like triple talaq a men centric custom and the Muslim women have to approach the court for the same decree and give a valid reason behind adopting divorce.

As a secular country “one country one law” which has prevailed in all Islamic countries must also preponderate above personal laws in India to uplift the gender inequality which happening over the country and moreover, the apex court in Danial Latifi & Another v. Union of India, (2001) case observed that the case must be on horizons of basic human rights, culture, dignity, decency of life, and should dictate of necessity in the pursuit of social justice thus, currently requires uniform civil code.

 

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“Triple talaq a bona fide Qur’anic practice”

          

Every religion has its own followings whether it is Hindu, Muslim or any other religion existing in this country

Triple talaq one of the customary practices in the Islamic culture in India has nowadays become the most paramount and conspicuous issue.

The apex court of India has taken into its consideration about the unconstitutional approach towards triple talaq (Shayra bano v. union of India &Anr.) as per the petitioned filed by the state and releasing a questionnaire on the viability of a uniform civil code. All India Muslim personal law board (a self-appointed custodian and defender of Islam) in this regard pointed out few points stating the practice to be beneficial for both the spouses in the wedlock and is not a “un-Quranic” form of divorce.

The application of uniform civil code is conflict with the right given in the article 25 of the constitution of India which states the right to practice a religion freely and adopting uniform civil code over the person laws will itself make the article 25 vague. Moreover, as a minority community it would be difficult for Muslims to clutch over the code which will be made in the respect of majority community i.e. “the Hindutva

Muslim personal laws have given equal protection of rights whether it is man or woman. While triple talaq as a form of Quranic divorce is never done in one sitting by saying talaq talaq talaq but as per Quran “Those who intend to divorce their wives shall wait four months; if they change their minds and reconcile, then God is forgiver, merciful. If they go through with the divorce, then God is hearer, knower. (2:226-227) and the divorced women must wait for three menstrual courses.” Triple talaq provides security to wife, does not scandalises their character, and doesn’t deters remarriage prospects for both.

 

 

 

 

 

“Matrimonial cruelty the lurking phase of the married men”

“Cruelty -when we hear this word the first thing which comes to our mind is an image of a woman who is being tortured by her husband, beaten up by her in laws. Unfortunately, this is not the only scenario which currently prevails. There has been a drastic change in the whole presumption wherein courts now face a new challenge. It is indeed a misfortune that the law which was enacted to protect the interest of a group of people is now being used by the same group of people in a fallacious manner. Nowadays women often use the law which is made for their welfare as the tool to satisfy their personal hatred towards their husband. Huge backlog of cases u/s 498A shows us the reality of the situation. As cruelty is the ground of divorce under personal laws so a wife has the option of using it as a weapon against their husband. So, this paper is in a need towards finding out what amounts to cruelty and whether mental cruelty towards husband a reality or myth…”
Introduction

Marriage a socially or ceremonial function between two life partners for the most part i.e. man and a woman which ties them into rights and commitments towards each other. The importance of marriage fluctuates as indicated by various societies and their discoveries, as per the Hindu culture it is a legal contract between the two companions as well as a sacrament while as indicated by the Muslim law it is a contract greater than holy observance as in it is considered as an agreement with the end goal of legitimization of intercourse, procreation of children and a direction of social life.
At the point when the legislature of India has furnished with an agreement of marriage, it likewise gives the best approach to dispose of those rights and commitments as separation declarations. There are certain parameters through which the divorce decrees among different personal laws are provided.

One of normal and conspicuous charge which is raised by one of the mate to the marriage is the matrimonial cruelty done by other.

In nutshell, “Cruelty is a conduct of a such character as to have caused danger to life or health, bodily or mental, gives rise to reasonable apprehension of such danger.”

Historically,

Mental cruelty was not considered as a component of cruelty prior to 1976 as a ground for taking divorce under Hindu marriage act,1955 but after the act was amended it was included as a part on which divorce decree can be passed.

The issue of matrimonial cruelty has always favoured woman as women were always taken as less powerful than man due to circumstances where cases of dowry demand by the husband were resulting into cruelty

Different components of mental cruelty have been judicially discussed for women. But now the scenario has reversed, women have become empowered and aware of their rights. Education, changing values and gender role empower women in realizing that they are not inferior to men and stand at an equal footing this knowledge is at times misused by the women as the laws relating to cruelty are “women-centric.”

Men as a victim of cruelty was less spotlighted as there were no adequate reports filed by men against women for domestic violence or cruelty. It is so because “man” is a gender biased word which denotes masculine behaviour, powerful and control of emotion. It was considered as a shame to married men if he discloses that his wife rules upon him which portrayed him as inferior to women and with less masculine power to run his family or house as per his will.

Men have diligently suffered mental cruelty since time immemorial. Creating mental pressure for the head of the family such as threats to commit suicide, ill treatment with parents, false allegations of illicit relationships etc. causing apprehension in the mind of husband and invariably can amount to mental cruelty.

Mental cruelty; matter of great concern

It’s very unfortunate that the Indian law on cruelty which is given under Section 13(1)(I-a) was enacted with the objective of protecting the interest of a particular group of people is now being misused. But however, with the passage of time Indian judicial mind have started discovering this loophole and have produced certain pronouncements that aim at curtailing this menace. Hindu marriage act,1955 Section 13(1)(I-a) deals with the cruelty as a ground for divorce. “The said provision does not define cruelty, cruelty may be mental or physical, intentional or unintentional if it is physical, the court will have no problem to determine it. It is a question of fact and degree if it is mental, the problem presents difficulty”

What is cruelty in one case may not amount to cruelty in other case and it must be determined in each case keeping in view the fact and circumstances of that case

“what constitutes mental cruelty for Section 13(1)(I-a) will not depend on the numerical count of such incident or only on the continuous course of such conduct but one must go by the intensity, gravity and stigmatic aspect of it when meted out even once and the deleterious effect of it on the mental attitude necessary for maintaining a matrimonial home”
Legal and ethical issues binding with cruelty in context of man as a ground for divorce

Though it is the duty of court to decide the case based on facts and circumstances but what amounts to cruelty is an important aspect, as misuse of laws by the wife against husband in society is growing day by day and most apparently, some Indian educated women are using these laws as weapons to unleash personal issues on their husband and innocent relatives and there are certain grounds on which cruelty against husband can be proved;

Humiliating the husband

Misuse of dowry laws, domestic violence act, section 498A of Indian penal code by wife against husband and in-laws of husband of lodging false complaint against them.

Desertion by wife

Humiliating the husband in presence of family members or friends and lowering his reputation by use of derogatory remarks

Undertaking termination of pregnancy without the consent of husband

Making of false allegations against the husband

Making of unsubstantiated allegations against the husband for having illicit relations with another woman

False allegations of adultery

Allegations against husband of having girlfriend, not proved

Wife leading an immoral life and having illicit relations with a person other than her husband

Denial for physical relationship without sufficient reasons

Refusal of contribution in the household work
Male as a sufferer of mental cruelty

What amounts to cruelty to husband is explained by the landmark judgements which not only tells that the concept of cruelty is two sided but also points out degree that It doesn’t rests only to domestic violence but can be examined on other aspects as well.

The Supreme Court of India in its recent judgement in October 2016 of “Narendra v. K. Meena” held that persistent effort of the wife to constrain her husband to be separated from the family constitutes an act of ‘cruelty’ to grant divorce. The Court observed: “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 regarding facing legal consequences would put a husband under tremendous stress. The thought itself is distressing.” Forcing separation from parents regarding allegations of cruelty in wife forcing husband to get separated from his parents, the Bench observed: “In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason; she would never insist that her husband should get separated from the family and live only with her

In “V.Bhagat v. D.Bhagat” a two judge Bench referred to the amendment that had taken place in section 10 and Section 13(1)(I-a)  and held that the earlier requirement that such cruelty has caused a reasonable apprehension in the mind of a spouse that it would be harmful or injurious for him / her to live with the other one is no longer the requirement. Thereafter, this court proceeded to deal with what constitutes mental cruelty as contemplated in Section 13(1)(i-a) and observed that mental cruelty in the said provision can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. It was further observed, while arriving at such conclusion, that regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances. It was held that “What is cruelty in one case may not amount to cruelty in another case and it must be determined in each case keeping in view the facts and circumstances of that case.”

While in “A. Jayachandera v. Aneel Kaure” it has been ruled that the question of mental cruelty should be considered in the light of the norms of marital ties of the society to which the parties belong, their social values, status and environment in which they live. If from the conduct of the spouse, it is established and /or an inference can legitimately be drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse about his or her mental welfare, then the same would amount to cruelty.

In “Samar Ghosh v. Jaya Ghosh” It was held “the concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious belief, human values and their value system”. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Cruelty in a matrimonial relationship may take the form of violence, some time it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty. Therefore, cruelty in matrimonial behaviour defies any definition and its category can never be closed. Whether husband is cruel to his wife or the wife is cruel to her husband should be ascertained and judged by considering the entire facts and circumstances of the given case and not by any predetermined rigid formula.

Cruelty in matrimonial cases can be of infinite variety-it may be subtle or even brutal and may be by gestures and words.

While in case of “Kalpana v. Surendranath”it has been observed that where a wife who refuses to prepare tea for the husband’s friends was declared by the court as cruelty to husband.

Though the amendments introduced in the penal code are with the laudable object of eradicating the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relatives, i.e. fast emerging. A strict law need to be passed by the parliament for saving the institution of marriage and to punish those women who are trying to misguide the court by filing false reports just to make the life of men miserable and ‘justice should not only be done but manifestly and undoubtedly be seen to be done.

Conclusion

Since the meaning of cruelty is very ambiguous so there is no straightjacket formula to decide the definition of cruelty. It may depend on and vary from case to case. What may be cruelty in one case may not be in another. Mental cruelty would include causing of mental pain, suffering or the agony of such a kind and magnitude which can result in the severing of the marital bond or due to which it cannot be expected by one party to live with the other. Since all such acts have a severe impact on the physical and mental well-being of the husband, therefore they have been kept under the ambit of cruelty. A cursory glance at the Supreme Court judgements illustrates that the judges consider injurious approaches, accusations, complaints or taunts and not only the harmful acts as cruelty.

Moreover, society and law both have overburdened the shoulder of the husband to fulfil the marital obligations and to some extent our law is also tilted towards women side but due to change in scenario like economic independence in women education etc. so some gender neutral legal provisions are also required to safeguard  the rights of the husband  moreover women ngo’s should not serve as a catalyst to promote false complaint rather than they should fight for false complaints rather they should fight against it. Women should be made aware of the harmful nature of their acts. More organisations for men should be there to deal with mental torture and the balance of scale for measuring cruelty should not be women centric but should be of equal proportion.