Annoyed with open court remarks by judges to lawyers about increasing litigation in Indian courts, especially in matrimonial cases, lawyer Malavika Rajkotia first wrote an open letter to the Chief Justice of Delhi High Court a few years back but she never sent it across and now she has described it all in a book.
“The litigants decide how far and how long they want to battle. We try to ensure that their decision is based on sound advice about the strengths and weaknesses of their cases. Divorce litigation is exhausting as the endeavour is to achieve that does not exist in many intact marriages,” Her first book, Intimacy Undone, proves the need to speak in defence of family lawyers. Divorce rate in India is increasing by the day though it remains the lowest in the world.
The book highlights how even the judiciary did not consider women as equal initially and cites how the legal fraternity was in great discomfort when Delhi High Court got its first woman judge, Justice Leila Seth in 1991.
“Many lawyers could not bring themselves to address her as ‘milady’. Judges too did not understand it entirely.
A barrister friend of mine addressed the judge as milady. ‘She is not your lady’, glowered the Punjabi brother judge sitting with her on the bench. ‘She is as much my lady as milord is my lord,’ my friend responded with admirable élan.”
Echoing support for decriminalising the law of adultery, she explains how with changing time, laws should also be tweaked. “Adultery is punishable under IPC but to be forced to stay in a marriage for fear of criminal consequences cages the person. It is abhorrent that a married man has the right to have proprietary control over his wife while there is no deterrent to his engaging in a romantic relationship with an unmarried woman.”
On the future of family and marriage, she says, “It is all complicated and complex and disorderly and fascinating, but one thing is quite clear: more and more divorces are due to the discomfort of men around a woman with a voice.” Drawing comparison from movies made in 1980s till 2016, Rajkotia describes how Indian cinema too has evolved and has been changing women’s image.
“The rebellion of the postmodern woman is not sexual-centric any longer. Now she is moving to the next step of financial control of her earnings and the courage to claim a return from investment in marriage and be a parent, beyond simply caring for the physical needs of the children.”
Also, Indian judges are reluctant to cite Western case law in family matters because they think our problems are unique to our culture and this cannot be resolved with Western models of resolution. Though the number of live-in relationships is now large enough for judicial notice, the spectrum of judicial reactions is too wide, leaving no clear trace of the legal position.
Rajkotia explains as to how the family law has moved from revering marriage as sacred to acknowledging a more contractual arrangement, because sacredness cannot obliterate the individual’s right to exit the wedlock for a just cause. The book is a must read for people who want to understand the working of the courts in India. It says marriage and divorce are both important in life and divorcee is no longer a taboo in our society.