Thursday, Jan 17, 2019 | Last Update : 01:59 AM IST
Family law has grown beyond the boundaries of marriage, divorce , maintenance and child custody and support.
Although law is generally portrayed as a dull discipline, Intimacy Undone: Marriage, Divorce and Family Law in India brings it alive as actually a spellbinding, vivid and varied subject which affects every part of human life. The book is a “narration” in legal discourse of real-life stories that transpire with different actors in trials, in courtrooms, in lawyers chambers and in police stations. As Malavika Rajkotia has said in her book “Matrimonial disputes are much deeper and broader than what can be seen in court”. The author has captured the depth of the dynamics of matrimonial conflict. The book reveals that this lawyer is also a good and a wonderful storyteller. Her battles in court and behind the scenes are enthralling. She provides an understanding of the challenges faced by lawyers and clients, especially women in courtrooms in implementing and enforcing the law and provides the context in which family law operates. The book is empirically informed and historically nuanced. It offers insightful, illuminating parallels with comparative Indian and international laws and suggestive observations interspersed with multidisciplinary and inter-disciplinary perspectives from law, history, psychology, literature, mythology and rights, case studies and case laws. All those who would like to see the law implemented and enforced will find this book useful. Lawyers, law enforcers, lawmakers, researchers, social workers, activists judicial officers will find this book useful.
The book begins with a chapter on Marriage and Divorce Construct. Unconventionally, the first part of the chapter begins with the overview of divorce law. How the divorce law evolved in UK where many couples who wanted divorce would “cooperate” in creating a case for adultery. The author has traced legal history in a very interesting manner with Bollywood movie scenes of Mr. and Mrs. 55, the debates around the Hindu Code Bill and the present- day situation where many people want a divorce and it is not easy to obtain one. The second chapter is an illuminating discourse on chastity, patriarchy, culture and gender. The gender discrimination roots are traced through folklore and mythology. The roles of Manu, Kautilya, Sita, and Draupadi have been examined. The current challenges and realities of women judges as well as women in legal profession are very vividly described. In fact, being in the system herself, the author has been able to give deep insights from within the system- how many times judgements are influenced by personal views and morals and how in some cases as in Mathura it has led to law reform. The patriarchal, traditional views of the legal fraternity on gender are amazing to know. The third chapter is on Love, Sex and Marriage. The debates and opinions of various courts in the country around whether sex is central to marriage have been analysed. The gender biases, moral and legal arguments in adultery law, restitution of conjugal rights, and criminalisation of marital rape in India along with case laws have been well argued. The fault grounds of divorce like adultery and bigamy are conveyed in the fourth chapter through interesting live stories and experiences and judgements. The sensitive issues of conversion, triple talaq, cruelty and polygamy are vividly debated. One very important aspect that the author has included in this chapter is the mental health issues in divorce proceedings which as she has rightly pointed out are currently being dealt with inaptly. This is an area of concern in family law which the author has highlighted and needs to be urgently addressed by law makers. The challenges relating to women’s right to streedhan, jewellery, dowry, property acquired during marriage. The concerns relating to property while dealing with application of Protection of Women from Domestic Violence Act, Hindu succession Amendment Act 2005, 498 A IPC and the Benami Transactions Prohibition Act 1998 are exposed in the fifth chapter. This chapter on property has several practical recommendations for the lawmakers and law reformers which need to be considered. How male-centric views emerge in issues on maintenance and alimony are revealed in the sixth chapter why should women be forced to make papads and pickles and bake cakes when they have a right to maintenance is the moot question raised by the author. She has advocated for equal sharing as a factor and not the life style rule.
Divorces for money, the politics of matrimonial home, pre nuptial agreements are eye openers. Children in divorce proceedings, parental abduction, parenting issues, child-rearing, child tutoring. rights of children for their views to be heard and right to participation of children has raised strong emotions and need to be understood, while deciding what is in the best interest and welfare of the child matters by the various courts. To quote the author: “there are no protocols on separate case management for children and custody battles are fierce because custody court is yet another arena for parents to fight, rather than deal with their children”.
The author laments that there is no training in law schools on ethics of dealing with children in divorce and there is a need for protocols for assessment of child sexual abuse. The chapter is with a child rights perspective and the author concludes that “judgements in the courts are not about child”.
A unique chapter on privacy is all about personal liberty and freedom and right to privacy within family. The author has also dealt with the “misuse of gender specific laws” both by both men and women. The chapter on Uniform Civil Code and Article 44 of the Constitution, its legal nuances and the interesting discussions from courtrooms to drawing rooms are balanced and sensitively dealt. The epilogue to the book and FAQs lend further value to the book.
Family law has grown beyond the boundaries of marriage, divorce , maintenance and child custody and support. New areas of law have emerged like the legal rights of persons who have not been “legally married” or pre-nuptial agreements are dealt with in a bold manner.
I have been a family law teacher for several years but never came across such a fascinating family law book. This book will delight students, teachers, judges, lawyers, researchers and law makers and reformers alike. The author inspires, exposes, delights and educates. The book is an eye-opener, a must read and re-read. What a great journey and experience with law and justice.
The writer is a professor of law and founder-dean in School of Law, Rights and Constitutional Governance, Tata Institute of Social Sciences