Comment

If newspapers have quoted the honourable justices of the Supreme Court right, there’s a strong case for asking the latter to choose their observations carefully. News reports on Wednesday quoted Justices Arijit Pasayat and GS Singhvi, among the best and brightest on the bench, as saying that the Hindu Marriage Act has “broken more homes than it has united”.

This is the kind of facile generalisation one would expect a journalist to make. Coming from two judges of the Supreme Court, it makes no sense. I am sure they are completely off the mark if they ever intended the remarks to be taken literally. There is no study or survey done showing that more than half the marriages in India are failing because of the Act.

Apparently the judges believe that divorce litigants are using the provisions of the Act to damage each other without thinking about its impact on children. I am no expert on the Hindu Marriage Act or its alleged shortcomings, but it seems silly to me to say that a law causes more problems just because some people misuse its provisions.

By this yardstick, we shouldn’t have laws to protect human rights, since criminals take advantage of it. We should also abandon anti-dowry legislation, since a few women must be taking advantage of it to level unwarranted charges against estranged husbands. Ditto for laws which allow Dalits to complain against caste abuse. Under current legislation, a Dalit complaining against caste abuse can have the accused arrested even if there is no immediate corroborative evidence. While one understands the bench’s concern for children affected by bitterly-fought divorce proceedings, this is not what is coming through from its observations. The media, unfortunately, makes no real differentiation between throwaway comments made by judges when hearing a case and their verdicts. It gives equal prominence to observations and final judgments, making it tough for readers to figure out which is which. Casual comments from the bench need not be given any greater importance than conversations between two commuters chatting on a suburban train, but that is what happens when we headline ordinary judicial observations to say: “Judge says Hindu Marriage Act destroying marriage.” Or words to that effect. That’s surely not what the bench meant.

No doubt, it is the journalist’s job to differentiate between the two kinds of judicial comment, but in a fragmented media, where controversy helps boost TRPs and generates higher readership, it’s not going to be easy to ensure that everybody understands this. It is better for judges to be restrained in their comments.

Judges need to weigh their words carefully because quotes from the courtroom are often given greater weightage in the media than the pearls of wisdom emanating from politicians or other public personalities. I am sure Justices Pasayat and Singhvi will not make similarly loose comments about Acts involving the other communities in India. So what’s the point in doing it with a so-called Hindu Marriage Act, which is actually a law that covers all communities minus Muslims and Christians. The Act is a misnomer; it’s a truncated uniform civil code that merely excludes 15 per cent of the Indian
population from its ambit.

Perhaps, the time has come to revamp, rename and replace the Act with a wider Marriages Act that makes no reference to the couple’s religious or cultural affiliations. The religious ceremonies one performs during marriage should be a matter of personal preference and need not have any bearing on the laws governing marriage or its dissolution. That’s what the honourable judges should have been focusing on instead of making irrelevant observations on the Hindu Marriage Act.

The big question is whether judges should be making tendentious observations when they are hearing a case. It’s like asking someone: “Have you stopped beating your wife?” That’s not a question. It’s a judgment couched as a question.

Email: r_jagannathan@dnaindia.net