Proposed Amendments to Marriage Laws do not Guarantee Full Women Rights
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
URL: https://newageislam.com/islam-women-feminism/proposed-amendments-marriage-laws-guarantee/d/6933