While one has the greatest respect for the Indian judiciary, and faith in its ability to interpret the law in letter and spirit and dispense justice, there are times when one cannot help but feel that some of our honourable judges probably deal with a distinct cultural identity crisis.
Why else would they go above and beyond their call of duty and assume the role of sermonisers who feel compelled to expound on their personal social and moral beliefs and urge people to abide by them?
Witness certain recent observations made by the Kerala High Court. Rejecting the plea for divorce filed by a 34-year-old man, a division bench, comprising Justices A Muhammed Mustaque and Sophy Thomas, launched into a lengthy homily about the importance and sanctity of marriage. The judges went on to bemoan that today’s young people had no respect for this hallowed institution, that live-in relationships were on the rise, and that the youth seemed to think that marriage is to be avoided to enjoy a life free from any responsibilities.
Ruling Marred by Blast of Disapproval for Divorce
“They would expand the word 'WIFE' as 'Worry Invited For Ever' substituting the old concept of 'Wise Investment For Ever'. The consumer culture of 'use and throw' seems to have influenced our matrimonial relationships also. Live-in-relationships are on the rise, just to say goodbye when they fall apart,” the judges said.
One admires the honourable justices’ command over interesting acronyms—‘WIFE’ as ‘Worry Invited For Ever’ must have delighted many a henpecked husband in the courtroom. And no doubt there were sound legal reasons for rejecting the appellant’s plea for divorce from his wife with whom he has three daughters.
But should the ruling have been muddled with this blast of disapproval for the very idea of separation and divorce and, yes, for that mother of all moral corruption in society—the live-in relationship? And should a break-up, which is often sought after terrible pain and trauma on the part of one or both parties, have been trivialised as the manifestation of a “use-and-throw” consumerist culture?
Divorce is not illegal, and neither are live-in relationships. You may disapprove of the growing number of such cases in Indian society. And you have every right to air your beliefs in your living room and lament the fact that more and more men and women these days would rather end unsatisfactory marriages than persist in them, as our parents or grandparents may have done.
Court Room is Not Living Room
However, a court room is not one’s living room. And the judge’s high chair is hardly the place from which to trumpet one’s personal, extra-legal—and, it has to be said, regressive—views on the blessed bonds of matrimony and the way the rising incidence of divorce and live-in relationships is supposedly destroying Indian society.
The thing is, whether we want to “use and throw” a relationship or not, whether we want to live together for a while and then go our separate ways, whether we want to stay married until “death do us part” or break up at some point—these are all matters of personal choice. When the law gives us the freedom and the right to make these choices, shouldn’t those whose job it is to uphold the law refrain from trashing them and declaring them to be socially and morally repugnant?
Unfortunately, there is a disquieting trend of judges allowing their personal biases to creep into their rulings.
Judges' Personal Biases Interfering with Justice
Last month, Kozhikode district and sessions judge S Krishna Kumar granted anticipatory bail to a 74-year-old writer, who is facing two separate charges of sexual harassment. In the first instance, the judge said that since the appellant was a Dalit woman, and the accused a caste activist, it was inconceivable that he would have molested her.
While the judge displayed touching faith in the accused’s moral character in the first case, his grounds for granting bail in the second was even more egregious. Justice Krishna Kumar said that prima facie, the offence of sexual harassment would not stand against tech accused because the woman was wearing “sexually provocative” clothes.
This is a classic example of victim blaming and shaming — patriarchy’s hoary old strategy to hit back at women who dare to complain against a sexual aggressor. And really, there is no polite way of saying this—a statement like this springs from deep-rooted misogyny, and the dearly held belief that any sexual violence suffered by a woman must have been brought on by her own conduct.
There was, of course, a huge uproar against the judge’s statement, so much so that the Kerala government stepped in, claiming that the ruling was unjust. Subsequently, the High Court cancelled the accused’s anticipatory bail. The judge, too, has been transferred to another court.
Lower Courts and Liberalism
The Indian judiciary has handed down many progressive judgements in the recent past—the decriminalisation of gay sex, the abolition of the triple talaq, the decriminalisation of adultery, the right to privacy, to name just a few. Thought marital rape is yet to be criminalised—the Delhi High Court gave a split verdict on it in May this year—one hopes that the Supreme Court will give justice to thousands of woman who are subjected to it.
However, if we are to continue to have enlightened interpretations of the law as society changes and evolves, judges, especially in the lower courts, must be schooled in liberalism, and in rising above whatever biases and belief systems they may have imbibed from the cultural traditions to which they belong.
Else, we shall probably see more and more of these startling statements and moralistic rants over modern social practices such as divorce or live-in relationships.
(Shuma Raha is a journalist and author. She tweets @ShumaRaha. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)