By Maya Palit
On one occasion, a judge told divorce lawyer and advocate Malavika Rajkotia that lawyers are the ones often responsible for delaying divorce litigation and settlements. That annoyed her enough to begin writing an open letter to Delhi High Court’s Chief Justice, which defended family lawyers and explained that getting people to agree on finance and parenting matters is far trickier than it might appear in court.
The letter eventually grew into a book: the recently published Intimacy Undone: Marraige, Divorce, and Family Law in India explores the history of divorce law and sexism within the courts, while also busting myths around issues like the misuse of gender-specific laws, maintenance, alimony, and privacy.
Here are some interesting bits from her book.
At one point, Rajkotia tells us how the poet Milton ranted against the clergy and got divorce to be allowed in cases of infidelity and abandonment, but a little after him, a woman fought the courts for other legislative reforms:
The next call for reform was by a woman, to create rights where there were none. Caroline Norton left her husband, George Chappel Norton, in 1836 and subsisted on her earnings as a writer. Mr Norton claimed for himself the money earned by his wife, as under English law, she had no right to any independent property. Mrs Norton had her revenge by running up huge bills to be paid by her husband. Mr Norton then mounted a case against the then Prime Minister, Lord Melbourne, for ‘criminal conversation’ or ‘crim con’ with his wife. The trial nearly brought down the government but eventually the jury threw Mr Norton’s case out […] Having lost everything, Caroline Norton fought desperately and obtained three legislative reforms: the Matrimonial Causes Act 1857, the Married Women’s Property Act 1870 and the Custody of Infants Act 1839.4 The first of these allowed for divorce on the ground of adultery for a husband, while for a wife, it required adultery combined with other offenses such as incest, cruelty, bigamy or desertion. In 1857, adultery as a criminal offense (crim. con.) in England was also removed from the statute books.
Rajkotia recounts how judges just couldn’t get used to using the phrase ‘milady’ to address the first woman judge:
The following story makes apparent the discomfort of the legal fraternity in dealing with women as equals. The Delhi High Court got its first woman judge, Justice Leila Seth in 1991. Because of its traditional context of sexual ownership, 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 robust 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. On the other hand, at the time of writing this, there is a judge in the Supreme Court who does not like to be called ‘milady’ because it is she who chooses to limit its meaning to the sexual context.
One of the most annoying reactions to a woman wanting to divorce her husband, recalled in the book:
Hearing an appeal by the husband against the family court’s dismissal of his divorce plea, a division bench judge of the Bombay High Court asked the wife why she could not live with her husband, ‘You should go to him. When Sita could join Ram in vanvas, then why can’t you go?’