By Flavia Agnes
Mar 27 2012
The proposed amendments to marriage laws lack the detail to guarantee women their full due
The cabinet’s decision to clear a bill providing for amendment to marriage laws has evoked mixed reactions within women’s organisations. While the introduction of the notion of matrimonial property within Indian family laws is a welcome move, the manner in which it is being done seems hasty and without due consideration of its implementability. There is a feeling among these groups that a move such as this, which has wide repercussions for women’s economic rights, warrants a wider debate.
The questions foremost in the minds of activists are — how will the provisions for quick divorces affect rural women for whom marriage symbolises social status and divorce spells doom and destitution? Also, what will be the guidelines for distributing property, when the concept is new and hitherto unknown to Indian family law jurisprudence? Will the inherent gender biases that predominate court proceedings overshadow fair distribution? More importantly, if a husband, prior to filing the divorce petition transfers his property to his relatives or squanders away his wealth, what will be left for fair distribution at the time of divorce? Such trends are being adopted to defeat women’s claims to meagre maintenance. Will the new amendment provide further boost to such tendencies?
It must be admitted that the present bill is an improvement on the earlier one of 2010, which was introduced in Parliament with the sole intention of introducing the principle of “irretrievable breakdown of marriage” into the Indian family laws. Due to opposition from various women’s groups, as well as the National Commission for Women, it was referred to the joint select committee. The select committee, in its 45th report, urged the government to consider the introduction of the principle of “division of matrimonial property”. This was a victory of sorts for the groups that have been campaigning for this right, as it was the first time such a recommendation was ever made official. Earlier, the recommendations of the law commission, as well as some Supreme Court rulings, while advocating for the introduction of the principle of “breakdown of marriage” had ignored the fact that marriage is not just an emotional relationship, but also an economic partnership in which the wife contributes both in economic and non-economic terms. Though matrimonial property gets accumulated through the active contribution of the homemaker wife, the husband exercises exclusive control over it. Hence, when a marriage breaks down, most women are rendered destitute.
Unfortunately, from March 2011 to March 2012, the recommendations of the select committee lay dormant and no public debate was initiated by relevant ministries, such as the Ministry of Women and Child Development and the law ministry, or even the National Commission for Women. But in the meantime, the Maharashtra State Women’s Commission, under directions from the state women and child development ministry, drafted a bill titled Matrimonial Property (Rights of Women Upon Marriage) Bill, 2012. The bill introduced the notion of jointness of property upon marriage and made the property divisible at the time of divorce, following the principles of Goan civil law. It provided for a 50 per cent distribution of property at the time of divorce, with discretion to the court to vary from the 50 per cent principle upon certain contingencies such as disabilities, lack of earning capacity and individual property of the spouses, which is out of the purview of the common pool of “matrimonial property”. The division is based on the principle of equity, not just a blind notion of equality, which would empower the trial court to examine the economic situation of both spouses before dividing the property.
The bill was secular in character, and was made applicable to all marriages irrespective of religious affiliations. Though some questions have been raised about whether the bill would impinge upon personal laws and violate Sharia principles of economic settlements at the time of divorce, at least the bill was moving towards a wider public debate and towards building a consensus among various stakeholders.
It is in this context that the Centre’s move to amend the Hindu and Special Marriage laws lacks clarity, transparency and is also extremely narrow in its scope, as it leaves out all women from minority communities and restricts their right to claim property division at the time of divorce. The Centre has not given any scope for either women’s groups or other stakeholders to participate in a public debate on an issue of grave importance to safeguarding women’s economic rights and preventing destitution. Once again, this appears to be a hurried attempt to introduce a bill on irretrievable breakdown of marriage, with some cosmetic changes to the earlier draft. This is extremely disturbing.
The other two provisions listed for amendment dwarf in comparison, as they are not intended to bring in any path-breaking innovations to matrimonial law. For instance, the discretion of the courts to reduce the mandatory waiting period of six months has already been introduced by judge-made laws and trial courts, on a case to case basis, have been using their discretion regarding it. The provision of placing adopted children’s rights in custody battles on par with biological children is also insignificant, as this has never been a contested question warranting judicial or legislative attention. Adopted children are treated on par with biological children, not just on issues of custody but also on issues of property inheritance. The only issue that requires in-depth debate is property division, as clear stipulations have to be laid down regarding what constitutes matrimonial property, what category of property is to be kept out of the common pool, and rules of disposal during the subsistence of marriage and at the time of its dissolution. Without such stipulations, the proposed amendments may lead to even greater level of destitution among divorced women.
The writer is a lawyer and director of Majlis in Mumbai
Source: The Indian Express, New Delhi