Never before has family law come under such a heightened discourse in India and immense global scrutiny. Judgments delivered by the higher judiciary and law/policy changes have recently informed, shaped and re-drawn the contours of family law on a wide range of issues including physical and mental cruelty within marriage, adultery, child custody, adoption, surrogacy, financial arrangements within marriage and upon divorce, succession, inheritance and property rights. Most such issues have been couched within the normative model of a hetero-patriarchal family. In such a context, authoring a book on family law and capturing the essence of its current complexities and nuances is a Herculean task that has been accomplished by Malavika Rajkotia, in her seminal work Intimacy Undone.
A typical textbook on family law contains a detailed discussion on statutory provisions, along with their historical background, interspersed with judicial interpretations of the same. It is usually a narrative of law as it exists and applied. However, Intimacy Undone is highly refreshing in its unconventional approach in discussing some of the most contested issues in family law. It combines sound academic research with a law practitioner’s experiences, ensconced in a gender perspective. While meandering through the labyrinths of family law in India and critically analysing their far-reaching consequences, the book brings alive to the reader compelling facts about court room dynamics, complex negotiations with clients outside the court room, the many pressures faced by women and men trapped in unhappy marriages, the intensely adversarial social and legal battles along with their emotional ramifications, the litigants’ anxieties and priorities, judges’ dilemmas and perspectives, and lawyers’ concerns and strategies. This insightful perspective that a law practitioner alone can bring to the fore, makes the book invaluable.
Where did one last come across a book on family law that is interspersed with vivid descriptions of the lived realities of ordinary men and women including the author’s own mamaji (maternal uncle) and his tryst with a failed marriage? Since when have we read, in a text on family law, John Milton’s letter to the British Parliament in 1643 passionately advocating the right of every man to divorce his wife (stemming from his anger and loneliness on being deserted by his wife), Bertrand Russell’s suggestion of freeing marriage from morals by free licensing of extra-marital relations (by men), and the conservative President Rajendra Prasad’s anxiety in preserving custom rather than improving women’s rights through the Hindu Code Bill, coupled with the author’s frank and vivacious critique to each of their responses (pp. 9-12)? How many of us knew that Caroline Norton was instrumental for the three significant legislative reforms in English family law in the 1800s? And that the trigger was her personal loss of various matrimonial rights including child custody and property rights, exacerbated by a loss of reputation when her husband created a controversy over her friendship with the erstwhile Prime Minister of England, Lord Melbourne? (pp. 3-4). Can one really be blamed then, for finding this book not only informative and insightful, but also a compelling and fascinating read?
The common thread that binds the ten chapters of the book is a critique of the deep-rooted patriarchy present in the institution of marriage, which manifests itself in many aspects of the law.‘Marriage and Divorce Construct’ discusses the social and legal construct of marriage and divorce, tracing the evolution of contemporary family law in India from British law. In ‘Decoding Gender in Family and Law’ and ‘Love, Sex, Marriage’, the author deals with the history of marriage, along with situating gender within family and the law; drawing linkages between love, sex and marriage—which the author calls ‘the Tricky Trinity’. In these chapters, she brings to the table her critique of the retention of restitution of conjugal rights in the statute books, non-recognition of marital rape as an offence, and the criminalization of adultery (which has since been declared unconstitutional in Joseph Shine vs. Union of India in 2018) to illustrate the absence of married women’s agency and autonomy over their bodies. ‘The Fault Grounds for Divorce’ focuses on issues like ‘mental disorder’ as grounds for divorce; the subject has been dealt with extreme sensitivity and compassion. Citing the case of her client whose mental disorder did not lead to unbearable behaviour that could adversely affect her marital life, yet her husband chose to exit from the marriage. The author wonders aloud, if there is a legal obligation to care and remain within the marital relationship (pp. 122-123). Her candid admission of the need for a therapeutic intervention for self due to the nature of her work (p. 121) will certainly resonate with most matrimonial law practitioners!
In separate chapters devoted to ‘Property’, ‘Maintenance and Alimony’, the author dispels the myth that the 2005 Amendment to the Hindu Succession Act, hailed as a watershed moment in women’s property rights, empowered women, or eliminated gender bias within families. The author argues that with equal rights in parental property, though many women may feel less resigned to live in an abusive manner, many others will be reluctant to alienate or strain relationships in their natal family by enforcing their right (pp. 152). In chapter six, she critiques the ‘male-centred scepticism’ shared by many judges who view women claiming alimony as parasitic, completely ignoring the opportunity costs incurred in foregoing paid work outside the home in favour of unpaid care work within—the investment that needs to be compensated for (pp. 176). As a reader, I did not know whether to laugh, cry or tear my hair in frustration when I read the brilliantly written courtroom anecdote where a lady judge asks the wife to bake cakes instead of claiming her legal right to maintenance from a very rich husband who was travelling with his mistress (pp. 175-176)! On issues of legality concerning ‘Children’, she critically examines bitter custody battles, where neither the parents nor the court truly further children’s interests. She advocates perceiving children as citizens and persons with equal rights as adults, and respecting their opinions, rather than spouses denigrating the other or bringing their mutual differences to bear upon the child (p. 249).
The last part of the book warrants a special mention. In ‘Privacy’, the author marks a pleasant and necessary departure from a standard family law book. In this relatively short but impactful chapter, she rightly argues that though privacy between spouses is not spelt out as a legal right, the brutal invasion of it could constitute as matrimonial offence of cruelty (p. 253). The chapter highlights the problematic practices of obtaining evidence in matrimonial proceedings by breaching privacy, hiring surveillance services by a suspicious spouse, and the presentation of most private and personal details of the relationship before the court with no consideration for the privacy of the opposite party. Given the historic judgment by a nine-Judge Bench of the Supreme Court in Puttuswamy vs. Union of India (2017) where it declared right to privacy as an integral part of fundamental rights, this chapter is timely, as it explores, perhaps for the first time, the existence and exercise of the right to privacy between spouses within an intimate marital relationship.
‘Misuse of Gender-Specific Law’ addresses a controversial allegation on the subject. Many of us would recall the Supreme Court’s 2017 judgment in Rajesh Sharma vs. The State of Uttar Pradesh, where it issued directions to purportedly prevent the misuse of S. 498A of the Indian Penal Code, only to be modified by a latter judgment by another Bench of the Supreme Court—Social Action Forum for Manav Adhikar vs. Union of India (2018). The author exposes the Supreme Court’s double standards when, on one hand, it makes ‘a patronizing, unbelievable statement that a woman can never lie’ while also expressing in several judgments that the ‘only victims of vindictive litigation are husbands and their families’, which she questions (p. 280).She clarifies that feminist perspectives do not endorse misuse of beneficial legislation by women or their families, and that cases have to be contextualized in light of the ‘human instinct to exploit’. The author argues vehemently against any justification for repeal of legislation that benefits women, just as no other law can be repealed merely because it is misused (p. xiii).
In the final chapter of this book, the author discusses the ‘Uniform Civil Code’ (UCC). She fervently argues in favour of reform for gender equality from within, rather than an imposition from above. She opines that the main obstacle to a UCC is not caused by the passions of the ordinary citizen, but through the political capital that is obtained by eroding the culture of inclusiveness, stoking communal violence, facilitating minority-bashing and bringing a sharp polarization of identities—all of which deflect from the true purpose of achieving gender equality (p. 314, p. xi).
Through an in-depth discussion in each chapter, written in a conversational tone that makes an immediate connect with the reader, the author systematically deconstructs and demolishes the perception of family law as ‘soft law’ governed by common sense rather than positive law that is normative in nature. She exposes the multiple contestations of matrimonial rights—‘conflict between men and women, society and law, conservative and liberal, change and the resistance to it.’ She illustrates, through a compelling narrative, the tug of war between custom and the law, as well as ‘the growing challenge to patriarchal power and the violent backlash of a seething patriarchy that draws support from powerful men’, which further exacerbate the complex nature of family law and contribute to its rich and intricate tapestry of many colours and hues.
One may wonder if the advent of modernity and the practice of ‘live-in’ relationships would lead to paling the institution of marriage (and therefore of family law) into insignificance. To the contrary, the author, in her epilogue, argues that marriage continues to remain a relevant institution for many, even as divorce is crucial as it is a chance to undo a mistake in choice of a life partner. As a logical corollary, family law will continue to remain an important field of law that governs rights and responsibilities within intimate relationships. Books such as Intimacy Undone, enriched with the experience of more than three decades of matrimonial litigation, will then pave the way for our informed, robust and constructive engagement with family law in India.
The book speaks spectacularly to lawyers, judges, students, researchers and academics engaging with family law. If it is used to transact family law and feminist jurisprudence courses (as I plan to, in the near future), given the generous dose of court room and law chamber anecdotes and the author’s satirical sense of humour, I promise there will never be a dull moment in class, and the students will gain an insight into the dynamics of law and its functioning!
Saumya Uma is a law academic. She currently teaches feminist jurisprudence and gender justice at School of Law, Governance and Citizenship, Ambedkar University, Delhi. She has formerly taught family law and has worked as a matrimonial law practitioner in the courts of Mumbai.