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New legislative thought and initiatives could mark a dramatic shift in defining a woman’s role in a marriage
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First Published: Fri, Oct 05 2012. 06 17 PM IST
The proposed legislation will split matrimonial property. Photo: Peter Dazeley/Getty Images
The proposed legislation will split matrimonial property. Photo: Peter Dazeley/Getty Images
This senior-level finance executive is one among the 5,887 petitioners in Mumbai’s family court as of 30 September. She is working with a multinational finance conglomerate and does not wish to be identified. In August, after 12 years of marriage, she and her husband filed for divorce by mutual consent.
“Once we had decided to split, the question was what to split,” she says. The custody of the four-year-old child would remain hers, he would have visitation rights, and a multi-crore property and some investments were split down the middle without much tussle, she says.
She explains why: “Especially if a woman has a child to take care of, she has to make adjustments and compromises. Whether it is maintaining the harmony at home, keeping the kitchen running like clockwork, school assignments, taking care of the in-laws—there are many things a woman contributes that are never quantified. Does she have the ability to earn as much as her husband? Yes, of course. But she can’t and won’t work a 14-hour day and impress the boss. She must inevitably take a career back seat, which equals a financial back seat, to her husband’s career.”
A better half: A Tunisian couple. Photo: Fethi Belaid/AFP
The 36-year-old has worked 14 years to her husband’s 20 and the difference between their incomes is massive, she says. “Mine is one-fourth his income,” she says.
In response to critics who contest a woman’s need for co-ownership of marital assets in the event of a divorce or separation, she says: “When you get married there is no ‘yours’ and ‘mine’. You function as ‘us’. It’s ours—our parents, our home, our child’s education that we work towards. We looked after each other’s parents, medical bills, brothers, sisters, cousins, extended families came and went. Everything done was done for us. Therefore the split must also be done as ‘us’. If anything, a woman who multitasks does more, so it should be more, not less, than 50%.”
Women like her, whose contributions to a marriage and whose loss of careers have never been quantified, are now the subject of new legislative thought. Maharashtra’s minister for women and child development, Varsha Gaikwad, called a meeting of non-governmental organizations (NGOs), advocates and scholars on 24 September to discuss the draft of the proposed Maharashtra Matrimonial Property Bill 2012 which will, if it comes into effect, grant a woman the right to 50% of matrimonial assets and also seek to make a woman co-owner of matrimonial properties effectively at the time of the marriage itself. The meeting ended with the decision to have district-level consultancies on the Bill, involving local-level religious thinkers, academicians, colleges, lawyers, and NGOs.
A second Bill, the Marriage Laws (Amendment) Bill 2010, is currently pending in both houses of Parliament. It proposes to make “irretrievable breakdown of marriage” a ground for divorce but gives only the wife the right to oppose it. Media reports suggest that, based on the parliamentary standing committee’s recommendations, the government is considering moving amendments to the Bill. The proposed legislation marks an overarching shift in defining a woman’s abstract role within a marriage.
Senior advocate Mrunalini Deshmukh says: “There is no doubt divorce petitions are witnessing a huge jump. Maintenance, which was once in hundreds, is now being issued in thousands and crores. The courts are taking into account financial status, liabilities, dependence, family assets and individual assets, but are also giving importance to the financial lifestyle that a couple has led and the woman’s contribution to a marriage, whether quantifiable or not.”
But it’s not just about money, it’s about value. Flavia Agnes, women’s rights activist, advocate and founder of women’s rights organization Majlis, agrees. She attributes the rise in maintenance awarded to the practical pressures of inflation. “Where once a woman needed Rs.1 lakh to buy a house, today even Rs.80 lakh will only get you a one-bedroom flat in a city like Mumbai. Obviously, the money demanded will go up.”
Sunita Katra, a 45-year-old social worker with a 21-year-old son, and a victim of domestic abuse herself, is attending a hearing on the sixth floor of the family court, Bandra. She has been trying to get a divorce for five years. “Anywhere in the US and Europe, there is equality in status between a man and a woman in a live-in relationship, let alone a marriage. Fifty per cent is the norm. Younger women are able to get jobs. Housewives like me do not have the confidence in their 40s to start life again. Women who settle for a mutual consent divorce are those tired of asking for their rights. We need such (new) laws.”
Flavia Agnes, founder of Majlis. Photo: Abhijit Bhatlekar/Mint.
The single largest change, according to Shilpa Pandit, deputy registrar at the family court, is the confidence with which women are able to ask for their rights; 5,887 petitions (yet to be catalogued into matters of divorce, maintenance, custody, corrections and miscellaneous) had been filed till September-end. The figure was 5,115 for the entire year of 2011. “The nature of the demands have changed. The demand for maintenance is more forthright, and the demand for property is direct today,” Pandit says (in Marathi), adding: “The tone of voice with which one asks has changed; it is a right now.”
Just how seriously the shift on a woman’s status is being considered is evident in its repeated dissection. In November, the Maharashtra State Commission for Women and the women and child development department, Maharashtra, asked experts for suggestions on making a woman’s status on divorce or separation, and within a marriage, more stable and equitable.
Majlis was given charge of drawing up the state Bill draft. Advocate Pooja Kute presented it on behalf of the organization. “In December, we submitted the first draft of the proposed Bill and when it came up in January again for discussion, certain clauses and definitions had been overhauled. The department had conducted their own internal review in the meanwhile,” Kute says. At the January meeting, representatives of the State Minorities Commission were also present, as were scholars and academicians. Objections to the proposed Bill, including its potential clash with Muslim personal law, were debated. “A number of us have argued that there are countries whose state religion is Islam that do follow an equitable distribution of assets,” says Kute.
Leading among such nations are Turkey, Tunisia, Algeria, Iran, Indonesia, Bangladesh and Egypt. Tunisia, the most lauded by observers, recognizes men and women as equal in all aspects under the law, enabling a 50% split of assets.
At the review meeting held in the last week of September, says Kute, it was agreed that the law should ideally be made applicable to all communities. “We find that Muslim women do approach the courts for compensation and, therefore, the law should be able to provide for them too.”
The change is already visible. Advocate Deshmukh says pre-nuptial agreements and memorandums of understanding, while not yet legally binding in India, are on the rise.
India still has among the lowest divorce rates in the world. There are no national statistics on divorce and India did not provide data to the United Nations Demographic Yearbook 2011, which compares divorce rates worldwide, but the divorce rate is thought to be in the range of 1%. Russia has the highest, 5%, rate of divorce.
If made law, the legislation is expected to push the divorce rate up substantially. Why is that not necessarily a bad thing? Deshmukh believes a higher divorce rate will only indicate that more women are increasingly able to seek relief from suffering, and that it is a misconception that suffering within marriage was any less when the divorce rate was statistically lower.
Others, like senior advocate Kranti Sathe, are concerned about what she calls the increasing “contractualization” of marriage.
In this manner, the proposed Bills are opening up legal and public discourse on the subject. For instance, students within the Indian Law Society Law College, Pune, will be studying the proposed legislation.
Delhi-based financial planner Surya Bhatia says there are changes in the financial sphere too: “There has been a jump in the number of people who discreetly ask for separate tracking of portfolios. We recommend that couples keep portfolios separate, don’t merge accounts, pay cheques only from their own accounts, and make wills.” Divorce wealth management, a huge field in the West, is an inevitable area of growth, Bhatia says. “It is not a market that gets depressed,” he adds.
Men have greeted the proposed legislation with consternation. D.S. Rao, head of the Kolkata chapter of the Hridaya Nest of Family Harmony, a men’s rights organization, along with 400 leaders of men’s rights organizations from across India, protested the proposed Bill at Jantar Mantar in New Delhi on 18 August.
Rao, a self-described victim of a 498A case (husband or relative of husband of a woman subjecting her to cruelty) in December 2010, is separated from his wife and hopes she will return some day. He says: “We want to protect men going into a marriage, and laws like these will cut down the institution of marriage itself. Why will people marry? Divorces will go through the roof if it boils down to finances.”
Virag Dhulia, an activist and head of gender studies at Bangalore-based Confidare Research, an online men’s rights centre, calls the proposed Central Bill anti-male. “Till now, fault in a marriage had to be proven. Now, it is making courts function like a property transfer bureau,” he says.
Agnes dismisses these concerns. It is a long-fought reversal of gender injustice, she says. “Maybe men should be more careful about who they marry, women have had to be for so long!” she says. “Any law can be abused, but for decades, have men thought about gold-digging when they were amassing dowry? To claim that women can now abuse this law is convenient.”
Even before the law catches up with fluid gender roles, it has begun to nudge a redefinition of marriage itself.
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First Published: Fri, Oct 05 2012. 06 17 PM IST