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His and Hers

At the centre of the controversy over the government's proposal to amend marriage laws are issues related to situations when there is an irretrievable breakdown of a marriage and to division of property at the time of divorce. The ambiguity and lack of transparency in the proposed amendment are hardly conducive to rendering a divorce easy in the event of a breakdown of a marriage and may have exactly the opposite effect. There are other allied questions regarding the woman's right to the husband's property as well as the rights of women belonging to the minorities. The government must address all these aspects before enacting the amendment.

COMMENTARY
His and Hers Flavia Agnes up creating confusion, chaos and even greater acrimony in divorce proceedings. Rather than rendering divorces easy, it might result in achieving the e xact opposite effect. The bill has led to

At the centre of the controversy over the government’s proposal to amend marriage laws are issues related to situations when there is an irretrievable breakdown of a marriage and to division of property at the time of divorce. The ambiguity and lack of transparency in the proposed amendment are hardly conducive to rendering a divorce easy in the event of a breakdown of a marriage and may have exactly the opposite effect. There are other allied questions regarding the woman’s right to the husband’s property as well as the rights of women belonging to the minorities. The government must address all these aspects before enacting the amendment.

Flavia Agnes (fl aviaagnes@gmail.com) is a women’s rights lawyer and is with the Mumbai-based Majlis which provides legal help to women.

T
he central government’s decision to introduce amendments to marriage laws seems to have stirred up a hornets’ nest with every campaigning group expressing discontent or disagreement with it. At the centre of the controversy are two issues: irretrievable breakdown of a marriage and division of property at the time of divorce. At the periphery are other issues like reducing the waiting period for mutual consent divorce with the discretion of the judges and rights of adopted children to be on par with biological children in custody battles. The last one is non-controversial and has never been a contentious issue in matrimonial litigation. In fact, rights of adopted children are considered on par with rights of biological children on every issue, including property inheritance. Reducing the waiting period in d ivorces by mutual consent with the discretion of the presiding judge of the trial court (but not routinely) after ascertaining that the consent of the parties is an informed consent will also not give rise to much controversy. Introducing the breakdown theory into our marriage laws has been done on a case to case basis by the higher courts. Through this amendment the trial courts would be given similar powers. Though slightly controversial, it fades into inconsequence when compared to the government’s proposal to divide the husband’s property at the time of divorce.

Lack of Clarity

The amendment’s ambiguity and lack of transparency is disturbing. Since the bill has not been placed in the public domain, opinions expressed on it, both by experts as well as lay people, appear to be mere hypothesis or knee-jerk reactions. A bill which hopes to bring in changes of such magnitude as altering property relationships would need far greater clarity. Otherwise, it would end

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several erroneous presumptions. At one level it is assumed that women’s groups are seeking the amendment that will make divorces easy and help women to walk out of marriages and “move on”. While doing so they can also walk out with half of the man’s hard-earned property. Put this way, the proposition a ppears to be blatantly unjust to men.

Here we must trace the history of this amendment. In August 2010, the government brought a bill to Parliament to introduce the provision of an irretrievable breakdown of marriage which was touted as a “pro-women measure” which would do away with the need for “washing dirty linen in public” and set women free. But due to opposition to it by several women’s organisations it was referred to the Joint Select Committee of Parliament.

The “men’s rights groups” who deposed before the select committee urged the government to carry out the amendment and also put forward a proposal that as soon as the divorce proceedings are initiated, all criminal proceedings pending under Section 498A of the Indian Penal Code should be quashed. Some even suggested by citing examples of other countries in this regard, that the period of separation should be reduced from three years to three months. In this case as soon as a complaint of cruelty or dowry harassment is filed by the wife, the husband would be at liberty to fi le a petition for divorce on the ground that the marriage has broken down irretrievably and wriggle out of both civil and criminal consequences in one stroke. He could thus set himself free of any e ncumbrances and criminal liabilities, leaving his wife and children high and dry as a punishment for her outrageous decision to file a criminal complaint against him and his family!

The concern of women’s groups was that if divorces are made easy, with no avenue of resisting it and protecting women’s right to shelter (given to them

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under the Protection of Women from Domestic Violence Act, 2005) or negotiating for maintenance or alimony it would cause great harm to them. Such a step would be detrimental to the interests of non-working homemaker wives in long-term marriages or to women who share the double burden of being wage earners and homemakers. Hence some of us who appeared before the select committee urged the government to introduce the concept of division of matrimonial property in the event that the government was determined to intro duce irretrievable breakdown of marriage. Every country which has introduced the theory of marriage breakdown has also simultaneously provided for the division of matrimonial property. It appears that the men’s rights groups in India while being keen about the partial provision of making divorces easy were not prepared for the con sequence of the other half which would make the husband part with property as is being done in western countries. Basically a case of having the cake and eating it too!

In its report submitted to the government in March 2011, the select committee rejected the arguments advanced by the men’s rights groups and urged the government to consider the introduction of the principle of “division of matrimonial property” alongside the provision of easy divorce. This was a victory of sorts as it was the fi rst offi cial recommendation which acknowledged marriage as an economic partnership.

Cosmetic Changes

Having accepted the principle in theory, the government had to put it into effect, which it failed to do. Instead, it went ahead and prepared a new bill with cosmetic changes as it was keen to introduce the breakdown theory of marriage into the matrimonial laws. The courts gain an advantage when divorces are made easy. Bogged down with contentious litigation in urban areas, such a move would simplify the process and reduce the workload of the judges as it would eliminate the trial process which a fault ground divorce entails. It would also limit appeals to higher courts. However, the brunt of this move would be

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faced by women in long-term marriages, the non-working homemakers.

In a tradition bound society where marriages continue to be family arrangements and are perceived to be not just sacred but also provide security and a status symbol to women, such a move would spell disaster and doom to a large number of women and render them highly insecure, both emotionally and economically. This is not to deny that women who are economically independent and in short-term, childless marriages would benefit from such a move. But the legislative intent would have to keep in mind the best interests of a diverse class of people and particularly that of women from disadvantaged sections and protect their interests. A clause r egarding property division is meant to restrain the husband from opting for d ivorce callously and fl ippantly.

Such a move also has the potential to alter the property law in India which at present functions from the old English common law principle of separate property regime. While superfi cially the n otion that each person is entitled to his/her property appears to be a just and equitable, as we probe deeper into the ascribed gender roles within marriage, it becomes problematic. Our society views men as primary breadwinners of the family. In order to facilitate this process, a woman is expected to sacrifi ce her career and dedicate herself totally to the task of caring for him. In this process, she is also expected to take on the task of homemaking, childbearing, child rearing and caring for the sick. Even if she is required or permitted to work, it is mostly to augment the family income. Her earnings are treated as the family’s supplementary income. The contribution of the homemaker spouse has no economic value. In Arun Kumar Agarwal vs National Insurance Company (AIR 2010 SC 3426) the Supreme Court criticised the 2001 Census enumeration which categorised 367 million homemakers as “non-workers” along with beggars, prisoners and prostitutes.

When we examine court rulings, the prescribed gender roles become starkly clear. For instance, a recent Delhi High Court ruling has held that the woman’s

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refusal to have sex with her husband upon his demand amounts to cruelty. This, in an age when several other countries have introduced the provision of “marital rape”. Earlier in 2007, the S upreme Court in Samar Ghosh vs Jaya Ghosh [(2007) 4 SCC 511] held that the woman’s refusal to cohabit with her husband and refuse sex amounts to cruelty. In this case, the fact that the woman was concentrating on her profession and ignoring her family was held to constitute cruelty. There are other instances where the courts have ruled that refusal of the woman to live in a joint family household and her demand to set up a separate home with her husband amounts to cruelty. A woman’s refusal to have children or her wanting to abort a child she had unwittingly conceived without the husband’s permission is held to be cruelty to the husband. So the traditional gender roles are reinforced by court rulings. There is no parity between what constitutes legal cruelty for the husband and for the wife. The husbands often plead that filing a case of abuse and harassment under Section 498A constitutes legal cruelty to him. It is within such skewed power relationships that the husband accumulates property during the subsistence of the marriage through the active contri bution of the homemaker wife, and exercises exclusive ownership rights over it. Hence when a marriage breaks down, most women are rendered destitute. A woman’s right is confined to a monthly maintenance dole. If the woman happens to have an independent source of income, she is d enied even this meagre amount.

It appears that the present bill intends to change this legal order. But this cannot be done flippantly by adding a phrase in a section of the existing law, that the matrimonial court has the power to divide property at the time of granting divorce. Currently the courts do not have the statutory power to divide property though this concept has been introduced into our matrimonial law by invoking principles of English law in some specific cases. For instance, in 2005, in B P Achala Anand vs S Appi Reddy (2005 3 SCC 313) the Supreme Court urged the legislature to bring in a law to

COMMENTARY

protect women’s interest in matrimonial property. This judgment referred to the legal principles regarding the matrimonial home and property under English law and approvingly quoted Denning:

A wife is no longer her husband’s chattel. She is beginning to be regarded by the laws as a partner in all affairs which are their common concerns. Thus the husband can no longer turn the wife out of the matrimonial home. She has as much right as he, to stay there even though the house does stand in his name.

Thereafter, what was required was for the government to draft a separate bill on division of matrimonial property and not surreptitiously bring in a legislation to introduce irretrievable breakdown of marriage and the concept of matrimonial property as just an add-on.

Attitudes regarding property ownership do not change overnight. Even after introducing the Hindu Succession Act in 1956 giving Hindu women property rights in their parental property and the subsequent amendment in 2005 rendering women coparceners in the family property, the notion that men have a right by birth in their parental property and women are imposters lingers on. A recent ruling of the Bombay High Court has held

When a daughter gets married and leaves the house of the father to r eside with her husband, she ceases to be a member of the family of the father and becomes member of the family of the husband where she has got certain rights under the law. After marriage when she goes to the house of the parents, legally she is only a guest in the house and does not have legal right to continue there. She can stay there as long as the parents permit her.

We cannot invoke principles of property division evolved in western countries as these may not suit the conditions prevalent in India, for various reasons. Firstly, in most cases the matrimonial home is not a nuclear household. It comprises a family home which is owned by the parents-in-law or other relatives or it may be the ancestral home of the family. Secondly, the prevalence of a large amount of unaccounted money in our economy makes determination of wealth a difficult task at the time of divorce. Several HC rulings have held that income tax returns do not refl ect the true economic status of the person since it is an accepted fact that there is a constant attempt to undervalue income to evade tax. Added to this is the notion of dowry (and dowry related violence) which during litigation is termed as “stridhan property” to which the woman has an exclusive claim.

Critical Questions

Also there are more critical questions such as at what stage is the property deemed to be joint property – at the time of marriage or at the time of divorce? If the husband transfers his property to his relatives or squanders away his money what will be left for distribution? Under the Goan law property becomes joint at the time of marriage and women are deemed to be equal sharers in the husband’s property.

If the woman is an equal earning partner, who has been the primary breadwinner of the family and the homemaker while the husband has been irresponsible, will the notion of “joint” property in gender neutral terms, cause further injustice to her? Will the courts expect such women to give half their property to the husband to support his irresponsible lifestyle and addictions, depleting the meagre resources meant for the children’s education? What about women whose husbands do not have any property and yet the woman and children have a fundamental right to subsist and survive under the constitutional provision of right to life and liberty? Also do we continue to make laws only for Hindus leaving behind all the minority women?

These are difficult questions which the government must address. We need to examine the provision from multiple angles and then chart out a clear course of action which is not anti-men or antiminority, but based on social reality and principles of justice and equity. The bill titled Matrimonial Property (Rights of Women upon Marriage) Bill, 2012 which is lying with the Maharashtra government could be a starting point for the discussion.

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