Can Adam Plead Abortion as a Ground for Divorce Against Eve?: A Jurisprudential Analysis

Abstract

Marriage is a basic institution of every society. The construction of the concept of marriage in the Hindu society was purely religious in ancient times but through the process of legislation we codified and made absolutely binding the rules governing marriage. This codification of rules becomes extremely problematic when it perpetuates patriarchal draconian norms without giving due consideration to the human rights, legal rights, constitutional claims and philosophical considerations of the parties. The right to abortion, one of the several reproductive rights of a woman, when treated by the judiciary as constituting mental cruelty to husband and awarding a decree of divorce based thereon raises serious academic issues such as questions relating to the sexual rights of women within a marriage, gender equality of the law relating to divorce, existence and extent of absoluteness of the right to fatherhood etc. This research paper is an attempt to analyze the above issues from a jurisprudential perspective. The focus of the paper shall be on evaluating how the views of the mainstream society have influenced the judicial interpretation/construction of the concept of cruelty as a ground for divorce in favor of husband by disregarding the larger considerations of the rights of the wife and how far such attitude of the judiciary delivers justice and adheres to the constitutional ideals.