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divorce in india

The Case for Divorce in India

Divorce in India has been historically rare; until recently, only 13 in 1,000 marriages in India ended in divorce – little more than 1%. But a few years ago, the divorce rate in India started rising, dramatically, especially in Kerala and urban areas like Mumbai (where the number of court-granted divorces doubled between 2010 and 2014). Socially conservative observers bemoan the dismantling of the traditional Indian family structure, and blame the rise of Western values. And while both may or may not be true, the case for (or against) divorce has little to do with either. Access to divorce is a hallmark of a civilized, egalitarian society, and these rising divorce rates are actually a sign of greater gender equality and social progress.

Why is divorce in India on the rise?

Experts point to waning social stigma as one of the primary drivers of the recent rise in divorce rates in India. Alongside the waning stigma, women’s roles outside the home are expanding. Women are increasingly educated and employed outside the home – which means they are not only more financially independent, but are also interacting more broadly with the world. And with these rapidly changing roles comes, Malvika Rajkotia puts it, the problem of “mismatched expectations.”

Rajkotia, divorce lawyer and author of Intimacy Undone: Marriage, Divorce, and Family Law in India, describes these mismatched expectations as the single biggest driver of the many, recent divorce cases she has handled. They occur when one spouse expects the other to fit traditional gender stereotypes, and finds, once in the marriage, that the spouse isn’t interested in fulfilling those roles. Most often, this friction develops when the wife doesn’t conform to traditional gender stereotypes. But, Rajkotia points out, it can occur the other way around, when a wife might expect a husband to take on the role of breadwinner, while he rejects that role.

Access to divorce is a good thing

The world over, the availability of gender-neutral divorce for men and women is correlated to other markers of women’s empowerment, such as access to contraceptives and women’s health care, access to financial assets or ownership rights, equal access to, and enrollment, in education for girls and boys. In other words, like it or not, access to divorce, and equitable divorce outcomes, are a fairly good indicator of social progress.

Divorce rates stem from a complex combination of culture factors, including religion, economics, cultural norms around love and family, and legal framework, so examining countries’ rates alone is an apples-to-oranges comparison. Rather, an exploration of countries’ institutional gender neutrality in the context of divorce is informative of its perspectives on gender roles and women’s equality. And unsurprisingly, as much progress as India has made in the realm of equalizing divorce, there’s a long way to go.

Divorce laws in India can be better

While it is possible to get a divorce simply because things ‘didn’t work out’ — called no-fault divorce — this kind of divorce in India is only available by mutual consent – which means that unless both parties agree, the divorce has to be framed as one spouse’s ‘fault’ for reasons such as abandonment, fraud, or abuse. This is a serious social constraint, particularly for women. If women who are unhappy in their marriages are unable to get their spouses on board with a mutually agreeable dissolution, they have the increased burden of proving fault to achieve the dissolution of their marriage. (And the spouse has every reason to resist being legally labeled as the party at fault.)

There are other barriers to women’s choices when it comes to divorce in India. Here, but also across the world, the vast majority of family assets are held in men’s names. (In fact, approximately 1% of the world’s real estate is held by women.) Women are institutionally dissuaded from divorce by the impact of such a dissolution on their standard of living because, unlike many Western countries, India does not have a community property approach to the division of assets after divorce.

This means is any property accrued during the marriage is not divided 50-50, but rather the courts are tasked with deciding what level of maintenance (i.e., alimony) will keep the lesser-earning spouse (usually the woman) at the lifestyle to which she is accustomed. This is a very subjective assessment, and many times, ends with a downgrade in standard of living for the less wealthy spouse.

“Financial settlements are almost never in accordance with what the woman would like,” Rajkotia says. “She invariably needs to settle for less than even her legal entitlement.”

Both the harsh reality of unfavorable financial settlements and the lack of unilateral no-fault divorce are significant barriers to allowing partners full freedom of choice when it comes to their marital status. But as women continue to become financially independent, and insist on holding more marital assets jointly or in their own names, these barriers will have decreasing impact.

The case for divorce in India

Rising divorce rates are not a marker of a weakening social fabric, encroaching Western values, or the demise of tradition. Rather, they are a marker of social progress, and a sign of freedom of choice, for men and women alike. Societies that permit equal access to the dissolution of marriage experience economic and social benefits — not least of which is the happiness of more vulnerable parties when they are not chained to a contract that does not favour them.

In a truly free and open society, both parties to a marriage have the right to reverse a decision that has not worked out as expected.

“If you’ve made a mistake, this is your chance to undo it,” Rajkotia says.

And who doesn’t believe in second chances, especially when it comes to love?

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