30 Nov 2017 06:11am IST
It was Rukhmabai’s 153rd birth anniversary on November 22, 2017. What may we draw from the Judgement of the Bombay High Court rendered as far back as on September 21, 1885? It may be quite another matter that this Judgement was reversed later and it was finally Queen Victoria who overruled the Court and dissolved the marriage.
Dadaji Bhikaji had filed a suit for restitution of conjugal rights against Rukhmabai. The Bombay High Court held in its Judgement of 1885 that such a suit was not maintainable. The Court opined that when a married couple, after cohabitation separate and live apart, either of them can bring a suit against the other for the restitution of conjugal rights according to the practice in England, and according to the later practice of the Courts in India. It however minced no words in distinctly noting that Dadaji and Rukhmabai went through the religious ceremony of marriage eleven years prior to the institution of the suit, when Rukhmabai was a child of eleven years of age. It further noted that the parties have never cohabited and further that the case was brought to the court then after eleven years when Rukhmabai was a woman of 22 years of age, seeking that the Court may compel Rukhmabai to go to his house that he may complete his contract with her by consummating the marriage. The Court also noted that Rukmabai being of full age when the case was before the Court, objected to going to live with Dadaji, objected to allowing him to consummate the marriage, objected to ratifying and completing the contract entered into on her behalf by her guardians while she was yet of tender age.
The Court considered it a misnomer to call the suit a suit for restitution of conjugal rights, when Rukhmabai had not even entered into the contract in the first place, stating that it would be a barbarous, a cruel, a revolting thing to do to compel a young lady under those circumstances to go to a man whom she dislikes, in order that he may cohabit with her against her will. The Court was categoric in opining that neither the law nor the practice of the Courts either justified the making of such an order, or even justified the plaintiff, that is, Dadaji, in maintaining the suit for restitution of conjugal rights.
The message was clear. The Bombay High Court paid due attention to the objections of the woman who was an adult at the time the case was being heard. Rukhmabai’s voice was given due weightage in the context of the case. If this could have happened as far back as 1885 - almost a century and a quarter ago - that an adult woman’s voice was given due weightage, why is it that this same kind of due weightage is often not given to women’s voices generally, when it comes to matrimonial issues today? Whether it comes to choice of partner, listening to the lived experience of a woman in the marriage, or even her voice on whether to consider mediation or settlement discussions?
In the olden days, the expression used by elders to women, was “you have to adjust”, “you must listen to your elders”. By elders was meant the woman’s parents or the village elders. In today’s context, there is a more sophisticated word. It is called ‘settlement’ even if a settlement is forcefully pushed and the same is very unsettling to women. It also sometimes now masquerades under the word mediation. The woman in these circumstances experiences secondary victimisation if she is forced to subject herself to mediation against her wishes in matrimonial matters. It is also a very difficult position for a woman to decline to proceed for mediation when the Court suggests it, because the woman fears that if she does not honour the suggestion of the Court, it will have a bearing on the case. Therefore when mediation is suggested, it needs to be also made clear to the parties that it is an option available to them, which they may consider and that the choice is finally that of the parties to the case.
This is not to suggest that mediation or reconciliation is an absolute no-no. However, parties are not expected to be pushed into reconciliation or mediation. It has to be the prerogative of the parties to the case to decide whether they wish to consider this move. The only thing that the law provides as mandatory is mandatory counseling under the Protection of Women from Domestic Violence Act, 2005, and even the Rules framed under the Act stipulate that the factors warranting counseling shall include the factor that the Respondent shall furnish an undertaking that he would refrain from causing such domestic violence as complained by the complainant and in appropriate cases an undertaking that he will not try to meet, or communicate in any manner through letter or telephone, electronic mail, or through any medium except in the counseling proceeding before the counselor or as permissible by law or order of a court of competent jurisdiction. It is only if the aggrieved person so desires that the Counsellor shall make efforts of arriving at a settlement in the matter.
However this spirit seems to be observed more in the breach. It is high time, that this situation is reversed. It is important that we in fact honour the principle of substantive equality, where sections of society that have been traditionally recognised as marginalised, and that includes women, are given due space and voice in respect of what they have to say about their marriages and their choice of partners. The case of Hadiya alias Akhila Asokan, has once again brought this issue to the fore.