A recent judgment of the Delhi High Court was remarkable for its compassion. A couple desirous of divorce for the past seven years had approached the courts in their individual capacities, each accusing the other of mental cruelty. They had not applied for divorce by mutual consent, in which case they would have had to apply in a joint petition. The high court, however, granted them a ‘no fault’ divorce because if one of the spouses was found to be guilty, he or she would appeal further, thus prolonging their mutual agony. If neither was found guilty and the case for divorce dismissed, it would become law-induced mental cruelty. The Delhi High Court reportedly said that its decision accorded with the spirit of the Family Courts Act, which required settlement: in this case a quietus to the matrimonial acrimony. Additionally, the judge also suggested that a pre-nuptial agreement be made mandatory after counselling those wishing to get married so that they understood the many ways a marriage could go haywire. This would help avoid law-induced mental cruelty. A complaint should be made to a relevant authority at every breach of the agreement; these complaints would not be heard later.

The system of pre-nuptial agreements in societies where it does exist is basically a financial understanding which records the ownership of assets so that there is no dispute about these if the marriage breaks up. Although mental cruelty may be associated with finances — torture for dowry, for instance — it is not always or necessarily so. To negate law-induced mental cruelty, the couple would have to decide how to part should the marriage end. Could a pre-nuptial agreement do that or prevent mental cruelty in its wider ramifications? A marriage is an evolving relationship, set within a network of other relationships in the family, particularly in societies such as India’s. Pre-nuptial agreements need to relate to material issues, such as assets, shared goods or financial support, to be effective; the immaterial in a marriage would tend to elude promises of rational parting made before the couple begins their journey. Besides, pre-marriage counselling emphasising the ways a marriage can go haywire may be more of a warning than an encouragement for a companionate relationship. A pre-nuptial agreement for logical behaviour at painful moments may be especially unnerving.