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Till Irretrievable Breakdown of Marriage
Do Us Part
|by Kamayani Bali Mahabal|
Irretrievable Breakdown of Marriage if introduced now would be detrimental for women’s rights, we need give importance to the economic security of the divorced women, said Zohra Chatterjee, Member Secretary NCW, at a recent consultation organised by the National Commission for Women (NCW) and Majlis in Mumbai. Proposed amendments to the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, will say "irretrievable breakdown of marriage" is ground enough for divorce. The six-month reconciliatory period has been waived.
Chatterjee pointed out that matrimonial property has been included in legislations of other countries, but we must tread carefully and ensure that peculiarities prevalent in India, such as dowry, ‘stridhan’ and exorbitant marriage expenses are included within the purview.
Many western countries, which introduced this remedy in their matrimonial statutes during the Seventies woke up to the reality that the remedy causes immense hardships to women, particularly the non-working ‘housewives’ who have contributed through non-financial contributions like housework and childcare. These women were left without any economic security or even a roof over their head after divorce, for no fault of their own. So soon thereafter they were compelled to enact legislations regarding division of matrimonial property upon divorce.
In the country, the issue of introducing this remedy in the early Eighties failed precisely for the reason that it will cause great hardship to women. Many women’s organisations opposed this move. Thereafter, the Supreme Court introduced this remedy in selective cases of protracted litigation, but issuing a rider that its verdict should not be treated as a legal precedent to be arbitrarily followed by trial courts. On many occasions when trial courts resorted to this remedy, it was struck down by High Courts on the grounds that the trial courts do not have this power as it is not a statutory provision. More recently, in some instances, even the Supreme Court has declined to grant this remedy. When the trial court did grant a divorce to an errant husband who was not able to prove any matrimonial fault against his wife, and where he himself was guilty of desertion, bigamy or cruelty, the High Courts set aside the decree of divorce on the grounds that the husband cannot be allowed to ‘take advantage of one’s own wrong’ [Section 23 (1)(a) of HMA].
The consultation with about 100 participants from across the country included lawyers who have negotiated economic rights for women and academicians and activists, who have worked on division of matrimonial property rights. Judge Shalini Phansalkar Joshi, Joint Director of the Maharashtra Judicial Academy, stressed upon how maintenance should be based on entitlement and a right rather than on need.
Noted lawyer Flavia Agnes said, “The main reason we oppose IBM is that women contribute to the marriage; and that helps the husband to accumulate property. In other countries, such property is termed 'matrimonial property'. If a husband can opt out of marriage at his whim and fancy, a woman who has spent her entire life hoping the marriage would provide her with financial stability in old age, would be left in the lurch. Since she would have no earning options in old age, her needs for a shelter and financial stability has to be taken care of if the husband wants to opt out of marriage. This would entail the introduction of a provision of division of property in the matrimonial law.”
Clarifying her stand she said, “We do not want to revoke it but stall it and ask what will happen to a woman when the husband files for divorce on this ground. For most women, marriage is not just a sexual partnership but also an economic partnership. Their right to shelter and sustenance flows from it. Women quit their jobs to have children and look after the home and family. What will happen to them at the time of divorce? Should women refuse to give up their jobs because men can just walk out of the marriage? That is our concern. We get several such cases, but we are able to defend the women and help them get some monetary settlement. In most cases where men file for divorce, they are in some adulterous relationship. When the woman refuses to go for divorce by mutual consent, he makes baseless allegations of cruelty, adultery or desertion against her. And finally goes for a settlement. With the new introduction, a man would not bother to prove any of his allegations as he would be certain of getting a divorce in three to six months.”
Kirti Singh, former Law Commission member described the amendment as "disastrous" if it came without adequate safeguards. Most women get a pittance from the courts and most do not want to get out of a marriage only because there is nothing to sustain them outside it. "We cannot allow any new laws without a law on matrimonial property under Article 15 of the Constitution,” she said. Singh who is also Supreme Court lawyer and convenor of the All India Democratic Women Association (AIDWA) legal cell pointed that in a recent judgment (Arun Kumar Aggarwal vs. National Insurance Company Manu/SC/0507/2010), the Supreme Court of India had observed that the Government should “assess the value of the unpaid homemaker both in accident claims and in matters of division of matrimonial properties”. The Court has also stated that Parliament should make amendments to matrimonial laws to give effect to the mandate of Article 15(1) in the Constitution. Unless women are treated as equals in a marriage and given the same financial and other security that men have on its breakdown, it would be discriminatory to further liberalise the grounds of divorce.
Advocate Asim Sarode, a Human Rights lawyer from Pune, said, “First, we must think about bringing a culture in the judicial system of looking to women’s property rights as ‘Economic Security’, without this perspective if the concept of ‘Irretrievable Breakdown of Marriage (IBM)’ introduced at this juncture in a hasty manner it could be injurious to the rights of women. This ground will rob them of their negotiating powers during matrimonial litigation.” And added that the ground of IBM as a statutory provision will help husbands who are similarly situated without providing any safety net to their respective wives.
Doma Bhutia, a lawyer from Sikkim said, “Women are discriminated in courts also, judges are judgemental about they way they dress, so if a woman is standing confidently and properly dressed, the remarks are you don’t need maintenance you can manage, women issues are soft issues for them,” she said with disgust. There is an illusion that North East women are empowered, they are not, young girls are widowed, rampant bigamy and we have the bride price there, instead of dowry which is equally damaging. Participants from Uttar Pradesh, Chhattisgarh, Uttarakhand also agreed on the gender insensitivity of judges especially in divorce cases, irrespective whether judge is male or female.
Advocate Albertina Almeida of Bailancho Saad from Goa said, “Under Portuguese Law, marriage is a contract and the civil registration of marriage is mandatory. There are four different marital options under the law of community property, absolute separation of property, separation of assets existing prior to marriage and communion of property after marriage, and dotal regime. Under Community Property Law, each spouse automatically acquires joint ownership of all assets already in their possession as well as those due to them by inheritance. In other words, the total number of assets (and liabilities) that a couple brings into a marriage comes under the purview of Community Property. And these assets may not be disposed of or encumbered in any way by one spouse without the express consent of the other. In this way, women are protected under the law by husbands who might otherwise do as they please with the assets.
“This is all very hunky-dory on paper but what is happening in reality is that in law and in fact the husband controls and deals with the assets though he can be stopped from alienating the marital home. The couple can also opt not to be governed by the Community Property Law regime through a contract. The wife does not get her share of the property unless a divorce goes through, and which we know in our country can even take 10 years,” she pointed out. As a result most women settle for less than their share.
The law of maintenance also places the unjustifiable burden of proving the husband’s income upon the woman seeking maintenance. This is often impossible as the woman does not have the necessary documents, which are usually in the exclusive possession of the husband. Also, when the husband is self-employed or is a casual worker, there are no papers to show his earnings and income cannot be proved except through oral and sometimes documentary evidence of lifestyle. Husbands also resort to a number of devices to conceal their incomes.
Some of the key points that were raised during the consultations were: Unless safeguards are in place IBM would be unfavorable for women. With IBM women would lose their power to negotiate their right to property. On divorce women suffered various losses - her social status, her sense of identity, her economic security, her home, and so on. Additionally, they have to complete responsibility of raising the children. Most married women do not reach their full potential whereas a married man is more successful, more marketable. Women must be compensated for what they have lost and for their contribution. To be empowered a woman should get an equal share in all assets and properties. A working woman should be compensated for dual contribution as a homemaker and her economic contribution must be taken into consideration. Future earning capacity of the husband must be taken into consideration.
The ground of IBM cannot be made a blanket rule otherwise this will deprive women of their crucial economic rights was the general consensus came out from the National Consultation.
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