Sunday, April 14, 2024
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Clap for this Slap

The path-breaking film, Thappad, has shown the way for women to unshackle the chains of patriarchy. But how close is it to Indian reality. By Srishti Ojha

“Husband is not the master of woman.”
—Former CJI Dipak Misra

The film Thappad has given hope to women in a country where patriarchy is deeply embedded. Even violence against women doesn’t evoke much resp­onse as it is easily accepted in India. The movie attacks these and other stereotypes in Indian society.

Bollywood movies have earlier too shown women being hit, but their response, unlike in Thappad, was very different. While the female protagonist in Thappad, played by Tapsee Pannu, refuses to take the slap from her husband lying down, in Awaara, when Raj Kapoor slapped Nargis thrice, she responded by confessing her love for him. In Kabir Singh, the woman is slapped while trying to calm her man down. These characters don’t question their male counterparts or seek legal remedies. In that sense, Thappad is revolutionary and sends out the message that even a single instance of abuse or harassment should not be tolerated.

While the protagonist pursues divorce, how close is this to ground reality? What legal processes do women have to go through to get a divorce? And what is the future of such cases in India? It’s true that trying to get a divorce in retaliation for a single slap can be difficult. This is due to the long legal process involved and the possibility of false accusations against the woman.

The first legal action taken, as shown in the movie, is a notice sent by the husband for restitution of conjugal rights to the protagonist. Restitution of conjugal rights is a remedy available to a person when their spouse has withdrawn from them without a reasonable excuse. In this situation, the court, once satisfied, can ask the parties to live together. This remedy is available to Hindus under Section 9 of the Hindu Marriage Act, 1955; to Muslims under general law; to Christians under Sections 32 and 33 of the Indian Divorce Act, 1869; to Parsis under Section 36 of the Parsi Marriage and Divorce Act, 1936 and to those married under the provisions of the Special Marriage Act under Section 22 of the Special Marriage Act, 1954.

The next action taken by the protagonist is a petition for divorce by mutual consent. When a party files for divo­rce, they have to make out the grounds for divorce. In the movie, the ground is cruelty as set out in Section 13(1)(i-a) of the Hindu Marriage Act, 1955.

One of the grounds under which divorce can be sought under the Hindu Marriage Act is cruelty. Considering the broad scope of this term, can a slap fall under this definition? Cruelty has not been defined in the Hindu Marriage Act. However, under the Indian Penal Code, cruelty is recognised under Section 498A as harassment of the wife to meet any unlawful demand for money. Indian courts have laid down a precedence which conforms to recent trends and developments in matrimonial law. This has brought hope to hundreds of women who can take a stand when their dignity is under assault.

In Kanna v Krishna Swamy, the Madras High Court upheld that in modern times, a woman should be entitled to insist on being treated with dignity and self-respect by her husband and to have a peaceful and happy life. The Karnataka High Court in Srikanth vs Anuradha had also upheld that any conduct of the spouse which causes disgrace to the other and subjects them to annoyance or indignity would amount to legal cruelty. The Kerala High Court in Rajani vs Subramaniam had said that judging by the standards of modern civilisation, wives are not expected to endure harassment, mental or physical, in domestic life. Their ambitions and aspirations should be taken into account and sentiments respected.

The apex court had also examined the concept of cruelty in Shobha Rani vs Madhukar Reddi (1988) and explained that the word is used in the context of human conduct in relation to matrimonial duties. It is a course of conduct which can adversely affect the other. If the cruelty is physical, it’s a question of fact and degree, and if it’s mental, then its impact on the mind of the spouse has to be examined. So slapping one’s spouse falls not only under physical cruelty but mental one too because its impact on different people can vary.

The Court had also said that judges should not import their own notions of life into a case as they may not be in consonance with the people involved. There is a possibility of a generation gap between the parties and the judges. The cruelty alleged may depend largely on type of life the parties are accustom­ed to, their social and economic conditions, and their cultural and human values.

Thappad lays bare this proposition as it portrays different attitudes and reactions to the same situation. The protagonist did not think it was correct for her husband to slap her even once, while her family and in-laws thought it was just a slap and a family matter. While the film shows the protagonist refusing to stay with her husband after being slapped just once, her maid who is beaten by her husband daily, continues to stay with him and can even joke about it until a day arrives when she doesn’t take it anymore.

Lord Alfred Denning, an English judge, had stated that when it comes to cruelty, each case may be different because the conduct of people cannot be similar and there is no limit to conduct. “New type of cruelty may crop up in any case depending upon human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the beautiful realm of cruelty,” he said.

The last remedy resorted to by the protagonist against the husband is the charge of domestic violence.

The Protection of Women from Domestic Violence Act, 2005, is the first law that specifically protects a woman’s right to be protected against violence.

The Act defines “physical abuse” as any conduct which can cause bodily pain, harm or danger to life, limb, health or development of the aggrieved person and includes assault.

It’s true that what constitutes domestic violence or cruelty will vary from case to case and will depend on the interpretation taken by courts. It’s also true that divorce in India is still considered taboo.

While legal remedies can take a long time to be executed and are not easy, the fact remains that they are available and may be accessed.

And Thappad has shown that women should raise their voices when their self-respect is attacked.

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