Today I am completing five years of my judgeship in High Court. Every week, on Saturday evening, the first important work is to go through the next week Case-Board. Every time, there are different cases. Sometime, of civil nature, related to property, relating excise, domestic violence, sexual harassment of women at workplace and divorce. Therefore, now, any type of case does not disturb me. I mean, I do not get emotionally involved. Absolutely professional approach, like what is described in sacred Bhagwat Geeta, a dispassionate person. No sadness, no happiness.
Mrs. Justice Dr Kamini Swaminathan was the amongst three judges of this Hon. High Court, with brilliant academic background. She has won the gold medal and special commemorative award for her thesis for her doctoral work at Wisconsin University, USA in Juridical Science
A sound of doorbell brought her back from her immersion in thoughts. “Oh, today is Friday, the last day of working of this week. Tomorrow and day after, court is closed. So, as usual, I brought all the files of next week for browsing carefully but leisurely. Let me have a weekly board of cases. Posted. Oh My God! Three hundred files! Let me see which are the matters posted in the next week. Service matters, transfer, promotion, excise, import, property, family matters. It is alright. Good variety of work to deal with.”
Oh, coming, wait. “Hmmm…. Malavika, what? You are coming after couple of days? Really?? Are you coming Malavika? Hey, why you did not inform bit in advance? No, no, no problem. Since you have decided, do come. We shall see how to adjust all. I am waiting.”
I am feeling really very nice. Malavika is coming after almost a year after her marriage. I am happy how she is enjoying her married life with Philips. I was worried in the beginning, when she first shared with me her wish to marry with him. I can understand that she and Philips studied together in the same university at the same time. They got married as per Christina rituals in San Francisco, America. We had gone, but did not insist to solemnize as per Hindu rituals.
Malavika was doing her Masters in Artificial Intelligence and Philips was prosecuting his Masters in Astrophysics. Philips’ father is a business tycoon in electronics. Philips is the only son. “Oh My God how long I was diverted myself. Let me do my work now.”
I got up early in the morning around five o clock. Done my routine exercises. Browsed newspapers. I took my bath and breakfast. Now, let us go through cases quickly, to refresh myself. Oh, first case if of divorce!! What is the matter after all?? Julia versus Prabhakar, a divorce petition. Julia is a Ph.D. in Genetic Engineering from Purdue University, Indiana, USA. Malvika got married a year before. This is also love marriage. Both studied in Purdue University together. However, Prabhakar was doing his Ph.D. in Musicology. He was mad with music. Julia wants that Prabhakar should devote his full time to assist her in her profession. She left America, leaving behind his parents, even though she is the only daughter.
Prabhakar wishes to continue his Post-Doctoral research in musicology. Since, Prabhakar is not ready to keep aside his studies and assist Julia, in India, Julia wants divorce. They got married as per Hindu Law in India. Oh, means this case needs to be examined as per Hindu Marriage Act, irrespective of the fact that at the time of marriage Julia was an American citizen.
“Hari, get me that cordless phone please. It must be Malavika’s call only.
“Malavika, tell me. What! What are you talking? Are you mad or what? Hey, marriage is not childhood game dear. It is not even a year after your married and you are talking about divorce. What happened? Tell me in detail.”
“Oh God, what is happening to me. I am feeling giddy and fainting. Whole world is whirling around me. Let me get calm down. Let me do deep breathing for some time.”
She reached in her cabin around 10 o’ clock, as usual.
“Case No. 870 of 2019 – Dr Mrs. Julia versus Prabhakar”.
“Yes, Mr Deshmukh.”
“Your Honour! Let me state the case in brief. Julia fell in love with Dr Prabhakar and they decided to get married and shift to India, permanently. It was mutual decision and is well supported by their parents too. Mr Prabhakar is the only son of his parents. He did not want to leave his parents back here in India and work in US. Julia agreed to come and stay here, even though she is also only daughter. However, Mr. Prabhakar had agreed to give up his vocation of Indian Classical Music and join hands with Ms. Julia in her vocation; but of late, he told Julia that he cannot discontinue his own vocation and hence, my client Julia wants a divorce.”
“But, Mr Deshmukh, as per Hindu Marriage Act, how divorced can be granted in a year?”
“Your Honour, but asking her to stay with Mr. Prabhakar against her wish is violative of Article 21 of Constitution of India, Right to Life…. means right to live with dignity….” Adv. Deshmukh.
“Malavika is also going through same emotional turmoil.”
“It is 2 p. m., brief recess time. Thank God. I needed it most, today. I can sit and relax a bit. Who is right? Prabhakar or Philips? Malavika is right or Julia? Who is right? How to decide? There is American law and here, it is Indian law. Let me rest a bit for some time.”
“Yes, Mr Patil, what do you say?
“Your Honour, how Julia can ask for a divorce from Prabhakar? Only because he is not willing to assist Julia in her profession? No. It is absolutely wrong. Such divorce cannot be granted as per the Hindu Marriage Act. Granting a divorce in this case will be contrary to the express provisions of law Your Honour.” Adv. Patil.
“Yes, I agree how marriage can be dissolved like this suddenly. It is not a contractual marriage like in other faiths. It is accepted and treated as a permanent affinity bond.” “Your Honour, but not granting a divorce, when there is question of non-compatibility, will amount to deprive the right to life, which is most sacred fundamental right guaranteed by our constitution.” Adv. Deshmukh.
“Oh My God, but Malavika is also suffering like this there. No, No, No. I have to think about Julia also. I cannot and should not do injustice to her.”
“Yes, Mr Deshmukh.”
“Your Honour, Julia must get justice.
“Your Honour, I object. This court cannot grant divorce to Julia. Absolutely divorce cannot be granted.” Adv. Patil.
“But, then, Malavika will have to live there in US against her wish and continue suffering. It is wrong. It is unjust absolutely.”
“Mr Patil, you are right.”
“Your Honour, it will be unfair and unjust with Julia.” Adv Deshmukh was arguing now in a raised voice.
“Mr Patil, this court agrees with respondent, Mr Prabhakar’s plea. It is unacceptable to grant a divorce so fast due to emotional turmoil. There are ways to save marriage in Hindu Marriage Act. Judicial separation can be considered, if at all it is must, but certainly not divorce straight way.”
“Oh God, and if America, the court there thinks the same way and refuse the relief to Malavika???? How terrifying it will be! No. No. Malavika must get divorce there. What should I do? God why is this test for me? Why you are testing me like this? My inner voice says divorce has to be granted, but law says it cannot be. I have read that law cannot be and should not be stagnant and static. It has to be interpreted with changing society. In the famous book, ‘The Law in the Changing Society’, W. Friedman, the author has quoted Roscoe Pound and many jurists, who developed the approach, to see law predominantly as instrument of social engineering, in which conflicting pulls of political philosophy, economic interests, ethical values, consistently struggle for recognition against a background of history, tradition, and legal technique. Legal logic and techniques came to be seen as elements, but by no means the sole, or even the predominant factor, in the unending race between law and new social problems. The legal rules fail to determine decisions. Judges must exercise a creative choice between alternatives, we shall say that the social policies.
Our constitution has given me such rights and authority. I have a right to properly, innovatively and constructively interpret the law. I got the answer now. Malavika must get justice. Then, why not Julia should get similar treatment in law. She should. I need to interpret the law differently, creatively. It is my pious duty to do that. I have to hear Voice of Humanity. Universal Declaration of Human Rights is endorsed by Indian republic. Yes, that is the ray of hope, now.
“This court examined all the facts on record and heard both learned counsels, Adv. Deshmukh for Ms. Julia, as well as Adv. Patil for Mr. Prabhakar, at a length. This is a very exceptional case of a Christian woman marrying a Hindu man under Hindu Marriage Act, as per Hindu rites; and a Hindu woman marrying a Christian man in USA, as per the Christian rites. Hindu Marriage Act does not permit such divorce, but this court cannot turn the deaf ear towards a call for humanity…and therefore…….”
“Your Honour, what are you saying? Which matter you are talking about???” Adv Deshmukh and Adv. Patil exclaimed in shock and surprise.
“Your Honour………” Adv Deshmukh and Adv Patil were dumbfounded. Both were unable to decipher what judge was saying, as the fact of the case at hand are not that what court is saying. Even the court assistant was fumbled, as the file he has of the case, has no mention of Hindu woman marrying a Christina man. The facts referred by judge were not the facts of case, Julia versus Prabhakar.
“Mr Deshmukh, is your client, Ms Julia present here in this Court Today?”
“Yes, Your Honour” Adv Deshmukh.
“Ms Julia, do you really want a divorce from Mr Prabhakar? Are you sure? Is it your well thought decision?”
“Your Honour, it is my well thought decision and hence, I request. I want to live my life fully, without compromising my dignity. Your Honour, can understand my suffering, agony and precarious condition.” Julia said with utmost humbleness, respect and clarity.
“Your Honour” Adv Patil was now agitated, “This court cannot grant this divorce. Hindu marriage cannot be dissolved like this. This court should consider this very seriously.”
“I grant divorce to Malavika.”
The court room was shocked and there was a pin-drop silence. Nobody, could understand what court has pronounced. Adv Deshmukh and Adv Patil were just looking at each other. The court assistant was looking at the file Julia Versus Prabhakar and was flabbergasted too. Everybody was in bewilderment. “Oh My God! What the hell I said….”
“Your Honour, my client’s name is Julia. Not Malavika. Who is Malavika by the way?” Adv Deshmukh.
© Mukund Bhalerao