Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (27 page)

The Supreme Court lent such interpretations its authority in
Shobha Rani v. Madhukar Reddi
(1988),
V. Bhagat v. Mrs. D. Bhagat
(1994), and
G.V.N. Kameshwara Rao v. G. Jabilli
(2002). In
Bhagat
, the most widely cited of these judgments (in 227 reported cases), it declared that spousal cruelty could be inferred when “the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party” even if the matrimonial offenses did not affect the petitioner’s health, and that the deletion of the qualification that cruel conduct should cause “reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party” was meant to enable courts to adjudicate in light of diverse and changing social mores.
⁴¹
The higher courts have used such an understanding of cruelty since then in the majority of petitions for divorce and judicial separation.
⁴²

The adoption of such a liberal understanding of cruelty as a ground for divorce had different effects on how readily courts decreed divorces when coupled with an inclination to effect spousal reconciliation if possible. There were variations even in the cases in which the Supreme Court signaled its approach to cruelty. It provided the woman a divorce based on evidence of violence related to dowry demands in
Shobha Rani
. However, it found that a
woman’s complaint to the police that her husband and mother-in-law had attacked her was an act of cruelty toward her husband, and granted him a divorce in
G.V.N. Kameswara Rao
, rejecting the woman’s argument that her husband was thus taking advantage of his “own wrong” (a problem which Section 23(1)(a) of the HMA alerts judges to consider). In
Bhagat
, it granted the man’s divorce petition because it believed that the woman had been cruel to her husband when she argued, in the very court in which he practiced as a lawyer, that he, his parents and grandparents were insane.

The high courts varied even more in their approaches to cruelty-based divorce petitions. Many declared findings of cruelty when men, and sometimes their parents harassed their wives over dowry payments (a problem that had become pervasive with the ongoing spread of the practice of dowry down the caste and class spectrum), granting the wives either divorce or judicial separation.
⁴³
Others denied men’s divorce petitions based on desertion or cruelty in view of evidence that the pressure these men had exerted on their wives for dowry had caused the estrangement.
⁴⁴
But some declared that women who lodged police complaints about spousal abuse to extract dowry or responded to harassment for dowry with threats to commit suicide had been cruel toward their husbands and granted the latter’s divorce petitions.
⁴⁵
They also varied in their attitudes toward women demanding that the couple live apart from their in-laws; until the 1980s, the majority considered it cruelty toward their husbands that entitled the latter to divorce, but since then many judges have regarded it as legitimate since they no longer wished to limit family nuclearization.
⁴⁶

C. Adultery

From the mid-1950s until 1976, litigants could petition under both the HMA and the SMA for judicial separation based on their spouse’s adultery and for divorce based on the spouse’s “living in adultery,” which courts had interpreted since 1907 to mean having a continuing extramarital relationship.
⁴⁷
Courts already allowed Muslim women and Christian men to seek divorce on the ground of adultery and recognized many forms of extrajudicial unilateral repudiation by Muslim men, but granted Christian women divorces only if they could demonstrate both adultery and another matrimonial fault. Moreover, Section 125(4) of the Criminal Procedure Code (which was Section
488(4) until 1973) disentitled a woman living in adultery to maintenance from her husband, even if she had valid reasons to live apart from her husband and had no property or income.

Agnes claimed that the Indian courts did not require men to provide their wives and ex-wives maintenance if these women had committed a matrimonial fault such as adultery, but shifted from the 1980s onward to a more compassionate approach that made the eligibility of women living apart from their husbands and ex-husbands for maintenance dependent only on their economic circumstances.
⁴⁸
Once they made this shift, she said, the courts required spousal maintenance for women guilty of “occasional lapses of virtue,” but not to those living in adultery. Contrary to these claims, the majority of courts held since the early twentieth century that women who committed adultery, but did not live in adultery, were entitled to their husband’s support; these courts took living in adultery to be a more serious violation of a woman’s matrimonial obligations, and assumed that women who did so were likely to have their lover’s material support. In
Honamma v. Timannabhat
(1877) and
Parami Ramayya v. Mahadevi Shankarappa
(1909), the Bombay High Court decreed that adulterous women should receive bare maintenance from their husbands while living in the latter’s houses—but not maintenance in a separate residence, a right that it gave women whom their husbands superseded to marry someone else, not due to any matrimonial fault on their part. In the latter case, it interpreted classical Hindu law to hold that “a Hindu wife cannot be absolutely abandoned. If she is living an unchaste life, he [her husband] is bound to keep her in the house under restraint and provide her with food and raiment just sufficient to support life.”
⁴⁹
The same court interpreted the relevant provisions of criminal law similarly in
Fulchand Maganlal v. Unknown
(1928): “A single act of adultery does not necessarily amount to ‘living in adultery’ within the meaning of Clause (4) of Section 488 and will not justify a Magistrate in refusing maintenance.”
⁵⁰
The majority of courts followed this interpretation thereafter.
⁵¹
Courts drew support for such decrees from
shastras
such as the
Yajnavalkya Smrti
, which recommended that the adulteress be “deprived of authority, unadorned, living on food barely sufficient to sustain herself, rebuked, sleeping on the floor, thus [her husband] shall make the unfaithful wife dwell in his house,” commentaries that expanded on such an understanding, and certain British legal
precedents.
⁵²
It was only in a few cases in the first decades of the twentieth century that courts indicated special circumstances in which women who commit adultery, but are not living in adultery, could be denied maintenance from their husbands.
⁵³

In considering petitions for judicial separation, divorce, and maintenance under the HMA and the SMA involving allegations of adultery, the courts did not require direct evidence “by way of photographs or of eye-witnesses who have seen actual adultery or . . . of detectives peeping through key-holes and deposing about adulterous intercourse,” as such evidence “is generally discredited when it is produced.”
⁵⁴
Rather, since the early twentieth century, they inferred adultery from circumstantial evidence, such as the birth of children despite lack of contact between the spouses and hotel rooms shared or letters exchanged by the alleged lovers.
⁵⁵
While adhering to these standards, courts became more reluctant from the 1970s onward to arrive at the conclusion that adultery had occurred based merely on evidence of closer interaction across gender lines, in response to the lowering of social barriers to interaction between men and women among various groups.

In some cases in the 1950s and the early 1960s, courts declared adultery if there was evidence that the parties had an “adulterous disposition” and the opportunity to engage in sexual intercourse. For instance, in
Mahalingam Pillai v. Amsavalli
(1956), the Madras High Court declared: “when . . . adulterous disposition is shown to exist between the parties at the time of the alleged act, then mere opportunity, together with comparatively slight circumstances showing guilt, may be sufficient to justify the inference that criminal intercourse has actually taken place.”
⁵⁶
Similarly, courts concluded that a woman had committed adultery based on evidence that she had shared a hotel room with her alleged lover in
Bhagwan Singh Sher Singh Arora v. Amar Kaur
(1962), and that a man and the woman from whom he was renting a room were living in adultery because they “had reasonable opportunity of having sexual intercourse” in
Devyani Kantilal Shroff v. Kantilal Gamanlal Shroff
(1963).

By the 1990s, courts declared that they do not “as a general rule infer adultery from evidence of opportunity alone,” but look for more persuasive evidence of adultery, such as of someone other than the husband having impregnated the woman.
⁵⁷
Thus, while the Supreme Court annulled a marriage in
1964 because the woman delivered a baby less than nine months after her marriage and did not seem to have had premarital sexual contact with her husband, in the 1990s High Courts set aside three lower-court divorce decrees that had been based on evidence that the women respondents had given birth to children over a year after they had last had sexual contact with their husbands because they did not find definite evidence of extra-marital impregnation either.
⁵⁸
In the last of these cases,
Smt. Leela Pande v. Shri Sachendra Kumar Pande
(1994), the court highlighted the possibility that the pregnancy was the result of rape rather than of voluntary sexual intercourse and criticized the trial court for having failed to attempt reconciliation. The courts tended not to support adultery claims when the evidence did not clearly suggest anything more than a friendship between a man and a woman, but did not urge the reconciliation of estranged couples if their marriages seemed to have irretrievably broken down. This was clear in
Smt. Swayamprabha v. A.S. Chandrasekhar
(1982), in which the court did not find a woman riding on a scooter with a man, traveling with him to another city, and getting “improper” letters from him signs that they were lovers, and said that evidence of the two spending a night together in a hotel room would not have shown that they were lovers either. Rather than attempt spousal reconciliation, it granted the woman a divorce based on the husband’s cruelty in making unfounded adultery allegations.
⁵⁹
Courts were also reluctant to find adultery based only on the testimony of interested parties (for example, husbands of the women accused of adultery, domestic servants who were on poor terms with these women, or estranged wives of the alleged lovers).
⁶⁰

However, courts accepted adultery claims that rested on persuasive evidence, especially if the marriages whose dissolution was being sought seemed dysfunctional. For instance, in
Tai v. Harishchandra
(1984), the court upheld the lower court’s divorce decree in the man’s favor based on his wife’s adultery, although the man had also started another relationship; the man’s relationship had started later and the marital problems appeared incapable of resolution. In a similar vein, in
Gita Masand v. Narain Dass
(1985), the trial court had granted the man a divorce because it took the woman to have made a false adultery charge; but the Delhi High Court set this decree aside because it took the woman’s charge of adultery to have been proven by her husband having married his lover in the meantime. The high court felt the
man had rushed into another marriage to deter the full consideration of any appeal his first wife might file, and it did not wish to permit him to thus take advantage of his own “extreme wrong.”

Courts assessed charges of women living in adultery particularly carefully because they were aware that men often used them to end their maintenance obligations toward their wives; the courts’ approach did not change significantly in recent decades. The Bombay High Court declared that a woman had committed adultery, but was not living in adultery in
Rajani Prabhakar Lokur v. Prabhakar Raghavendra Lokur
(1958), even though the woman had a relationship with her lover even before she entered her marriage unwillingly, and continued that relationship for over a year after she got married, because it found no evidence that she was still involved with her lover when the divorce petition was filed. It therefore granted the man judicial separation rather than divorce, and did not absolve him of his maintenance obligations. Various other high courts responded similarly in cases of the 1950s and 1960s, in which they found that the woman committed adultery, but was not living in adultery.
⁶¹
Since the 1950s, courts have declared that women were living in adultery only when there was clear evidence of them sharing a house with their lovers, as in
Devyani Kantilal Shroff
(1963) and
Sanjukta Padhan v. Laxminarayan Padhan
(1991),
⁶²
or had long-lasting relationships with them, as in
M. Kanniappan v. Akilandammal
(1954) and
S.S. Manickam v. Arputha Bhavani Rajam
(1980). The evidence was comparably strong in cases in which courts found women to be living in adultery over the past two decades.
⁶³
Thus, there has been no significant change in the standards by which most courts assess claims of living in adultery.

However, some courts began to separate the eligibility of divorcées for alimony from whether they were considered to have failed in their matrimonial responsibilities, starting in the 1980s. The Calcutta High Court upheld a maintenance order in favor of a woman against whom a divorce decree had been passed earlier on the ground of desertion in
Sukumar Dhibar v. Smt. Anjali Dasi
(1983), while noting that the husband had made the woman unwelcome in their matrimonial home and might be in another relationship. However, it said that divorcées would not be eligible for maintenance from their husbands if they did not remain chaste, and perhaps also if they were unwilling to live with their ex-husbands without sufficient cause. In
Smt.
Vanamala v. Shri H.M. Ranganatha Bhatta
(1995), the Supreme Court awarded maintenance for a divorcée, but held that the rule that men should not be required to provide maintenance for wives who were either living in adultery or refusing to live with their husbands for no valid reason, or if the couple were living apart by mutual consent, does not apply to divorcées, as adultery is conceivable only when one is in a matrimonial relationship and divorced couples cannot be expected to live together. It followed
Vanamala
while awarding maintenance for a divorcée held to have deserted her husband in
Rohtash Singh v. Smt. Ramendri & Ors
(2000).
⁶⁴
Some high courts relied on these Supreme Court precedents over the past decade to uphold maintenance orders in favor of divorcées who were living with other men either during their marriages or after the dissolution of their marriages, or who were found to have other matrimonial faults.
⁶⁵
These courts moved toward making divorcées’ eligibility for maintenance independent of their earlier matrimonial behavior and current conjugal behavior. However, this process is incomplete because some high courts, apparently unaware of the Supreme Court opinions in this regard, continued to deny maintenance to divorcées whom they took to be living in adultery.
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