February 11, 2024

Role of education in creating awareness about Hindu Divorce Laws

This article has been written by Mr. Abhishek Singh, a first year student of Banaras Hindu University, Varanasi.

Abstract-

India has one of richest legal culture where huge amount of laws for regulating every aspect of one’s life is there. However, the general awareness of them is minimal because of which there implementation is not that effective as they were supposed to be. This article aims to analyse the role of education in the evolution of Divorce rights and comments on the assumed direct relation between increased literacy and increased divorce rates. It also provides a more practical cause-effect relationship of these two factors while considering new issues arising in Indian society and concludes by suggesting a solution with a primary focus on education.

Keywords- Divorce, Education, Education-Divorce relation

Introduction-

A Law, no matter how good it is drafted, its effectiveness can only decided by looking at what extent it was able to achieve its objectives. So, a badly drafted Law with ulterior motives, as was common during British period, can provide scope for societal changes by virtue of their sheer effective implementation while the opposite can take place where laws framed with good motives have to be repealed and rolled back, just because citizens were not aware about how and what the Laws wanted to achieve. Therefore, every concept or Law has to be checked on these cornerstones of effectiveness, motive and its procedure for implementation. 

The history of ‘Divorce’ is of struggle and complications and the concept developed by sheer willpower of its champions who acknowledged how the concept of indissoluble marriage was detrimental to women. It is no lie that “Divorce” was imagined by taking into consideration about what women had to undergo in unhappy and unlively marriages and the same was the reason when it was championed by the social reformers and at the same time was opposed by the conservative elements of the society. However, the major substantial divorce rights were given only after Independence through Hindu Marriage Act, 1955 which gave several grounds such as adultery, conversion etc. But seeing the weaker position of women in society, at that time and also crimes against women specifically rape, sodomy, these grounds were also included within the Act with a special condition that they were available only to Women. With increased education and per capita literacy rate, societal position of women got better and slowly they were started to be acknowledged as equal to men, which led to the mutual consent theory of divorce, which were incorporated in the Act through an amendment of 1976. However, by a large measure, the benefit of it lies to educated and creamy layer of society and from the onset a vague correlation appears between level of education and divorce rights prevailing in a society and how effective Hindu Divorce Law have been in accommodating these changes and maintain its effectiveness in the light of these factors which creates the background of this article.

Education and Divorce: Genesis

After the charter of 1813, provision for western education was made in India, however, after lots of confusion, debate, it was concluded that the education imparted would be western in substance. However, only the Men were allowed for this so as not to oppose the conservative elements. The right to education for women was gained by women through a serious of struggles and agitation which was spearheaded by some of the liberal-intellectuals of that time, notably, Ishwar Chandra Vidyasagar, Savitribai Phule among others. However, the motive of the education has always been that of understanding and calculating the impact women education would have on National income and job opportunities. To make it clear, the motive of the education imparted have been economical rather than of welfare. However, with the development of post-colonial political philosophy with a subsequent rise in Feminist school of thought, new literature on women education developed which studied the possible relationship between education imparted and the consequential changes in their private life and ties of kinship and marriage and thereby, an attempt was made to understand the welfare aspects too. A focal point of these studies have been to check the reasoning behind a belief held by a section of society in restricting the education of women on the grounds that it would be detrimental to the institution of marriage and understand how valid the reasons were. The studies were conducted in the background of some pre-observed conclusions which were-

  • Indian society is Patriarchal in nature.
  • Socially held beliefs for qualities that women should have such as chastity, self-sacrifice among others have acted as a restriction over self-determination by women.

The studies concluded that after women were given education, they became aware about their rights and also came to accept and exercise self-determination because of which they became more ready to end marriages in which they were unhappy. These studies established a direct correlation between education and divorce rates. However, it is a simplified explanation of a much more complex situation as it supposes that Women became dissatisfied with their married lives after education was imparted to women while ignoring that earlier too, women were unhappy in marriages but due to family pressure and societal stigma, they lacked the courage to end it. A notable pre-independence case is of Dadaji Bhikaji vs Rukhmabai  where rukhmabai wanted to end their marriage even before her education but after getting her education, she understood her rights and how her consent was not genuine and due to her courage, she at the end, got divorce. From this, it can be said that the belief of conservative elements that education to women would harm marriage as an institution is ungrounded and is overall detrimental.

 

Divorce: A more nuanced reality

Divorce is something which not only signifies an end of a relationship but it is a right which deals with something more, something with a great depth. Initially, marriage as a union was considered indestructible with the reasoning that the union is sanctioned in Heaven by God themselves. However, noble, the idea gave birth to patriarchy where marriage was reduced as a fertile ground for seeds of discrimination against women were sown and they germinated with dire consequences for women as they were reduced to one more gateway through which discrimination against women were committed. However, no instances for divorces exist. So Was it because of the reason that women were not educated, they didn’t took recourse to divorce? That would be an extrapolation as the basic premise of divorce exists on three theories. 

  • One of which is giving of divorce on grounds which is accepted by the society that they are morally and ethically wrong. This theory which is Fault theory presupposes that there is some lapse in duty on the part of the spouse. While it recognizes the duties of the spouses and gave other spouse a right to end the marriage on the lapse of that duty, it presupposes that both the spouses are at equal power dynamic which was far from truth as being socially, educationally and economically strong, males used to dominate the wives. This was the basic reason why dowry and dowry death became such a troubling issue in India as the power dynamics were in favour of men. However, after independence, women were encouraged to gain education and were also supported for high education. This can appear from the statistic that literacy in women in India during 1950s was 8.86 percent, which after government initiatives, it grew to almost 29.76 percent in 1981 which is roughly three times growth. This growth in education led women to be socially and economically secured as slowly they became employable. While social constraints still existed, economically women were getting better placed which helped them to better position themselves. During 1970s India got her first women prime minister Mrs. Indira Gandhi, her political genius and iron will during Indo-Pakistan War of 1971 gave her the name of “Iron Lady” from her staunch rivals demolished the concept of women as a weaker gender which needs protection and changed socially held image of the Women. Thereafter, by the end of 1975, women have indeed strengthened themselves socially, economically, through quality education. Seeing the change, that society was undergoing, theory of divorce by mutual consent was incorporated in Hindu Marriage Act, 1955 by an amendment of 1976.
  • Theory of mutual consent was included by an amendment. This provides a way to end the marriage through mutual consent that both the spouses no longer wants to be in matrimonial ties. The timing of inclusion of this provision as section 13B reflects the societal changes that were happening in the society as the wishes of women were also taken into account and more avenues for the expression of that aspirations were slowly opening up. Thereby, it was a necessary condition to reflect that into personal Laws. With growing stature of women, this was included so the marriage can mutually end and being slowly becoming economically secured, women started to end their unhappy marriages, because of which people may conclude that increased education of women have caused these divorces but in reality, through better education, they became capable of self-expression and self-articulation. This reduced marriage as a contract from its previous status as a sacred union.
  • However, a need was felt for provision for irretrievable breakdown of marriage as there can be conditions where divorce can be granted on the wish of one of the spouses and irretrievable breakdown of marriage has taken place and martial bond is beyond repair which was eventually included through a judicial judgment and precedent. 

Seeing this, its without doubt, that through widespread education divorce rights have evolved and changed through cases and other agitations, reforms in Divorce rights and personal laws have been spearheaded by women. But without awareness, every change, no matter how benevolent they are can get restricted and would benefit only some elite sections. Therefore, to actually spread out the beneficial aspects of these laws, a need for awareness is felt.

Education for Awareness-

In India, its a common fact that there is huge data asymmetry exist coupled with improper digital literacy which only leads to situation where if both the spouses are aware about their divorce rights, then it is possible that they are unaware about their maintenance rights or rights relating to custody which not only makes the relation bitter but also lengthens the litigation period. Therefore, awareness about procedure, about possible results and course of actions will help the spouses in making a responsible decision. While conservative elements continues to contend that it will continue to treat marriage as a contractual relation and the provisions could be misused. However, knowing about rights and penalties and in light of the judicial decisions can help every individual in knowing what the stakes are and decide whether a genuine ground for divorce exists or not. Understanding that knowledge about the rights and laws are important for truly developing and strengthening the core of society, National Commission For Women is conducting legal awareness programme for women where women about several legal safeguards available to them and how to take recourse to them at the time of their infringement. While the step taken is commendable and have truly brought substantial changes, it has also brought some issues.

 

Issues-

  • While these legal awareness programmes have increased awareness, legal acumen of women living below poverty line, who are most prone to exploitation have remained static for years.
  • Lack of interactive methods for cultivating legally aware next generation is by large, ignored.
  • A growing trend of misuse of these laws have been observed because of which fake cases are filed with the sole purpose of pressurizing the husband into accepting the terms of wife instead of use process of the court for actually utilizing it. These trends are however, problematic as because of them genuine case are subjected to further scrutiny.
  • In a digitally connected world, a single misuse can spread like Fire and could lead to strengthening of conservative elements which in the long run, can harm all the progress that has been made. 

  

Suggestions-

While legal awareness programmes are commendable steps, there overall benefits may get monopolized sections of society and the growing fake cases against the men are also signals an alarming situation. Hence, a need for new approach which is gender neutral can be felt. These problems can be solved or atleast reduced by inculcating a legally aware generation which can be done by introducing the legal principles dealing with divorce rights, safeguards available to the other spouse, custody related provisions in educational curriculum at the school and college level. The subjects shouldn’t be postponed to be taught only to legal professionals as being a personal law, there impact lies in every individual’s lives. A basic introduction to the laws and rights can also encourage students to develop their legal acumen and as the literacy rate in both of the genders increase, mass education is a viable option for fulfilling the objective in comparison to gender specific legal awareness programmes. However, it is not viable to replace either of them with another, a more nuanced reality would include both of them complimenting each other.

Conclusion

A legal right comes into existence when either there is demand from a section of society or society by itself considers it as a customary right and soon, it is given a legal status either by judicial decisions or by legislatures by passing a statute. Divorce rights are similar in origin where they were demanded and created by educated section of society on the basic premise of human right of self-determination. Summing it up, the role of education in evolution of concept of ‘divorce’ is indeed neglected, as divorce rights are included in private sphere but nevertheless, it has been the leading force behind it and continues to be it. However, there are some issues which in recent times, are giving an alarming signal but they too, can be solved by tailored legal education to create legally aware generation who are aware about their rights and duties and potential safeguards against misuse of those rights as a good Law also, while dispensing justice, provides safeguards against its misuse.

References-

 

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