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This too is loaded against women
This Bill is a step in the right direction it but falls short of ensuring equity and justice to the wife and children in a marriage. It has left the quantum of the share in marital property that the wife should receive post-divorce to be decided by the court on a case-by-case basis.
While very few will disagree with the concept of irretrievable breakdown of marriage per se, women's organisations and groups have pointed out that it is a wife's right to receive at least an equal share in the property acquired by the parties as she has to be considered an equal partner in the marital relationship. Women often oppose divorce petitions filed by their husbands because they have no viable economic alternative outside marriage and because of the social stigma that is attached to a divorcee. It is well known that most divorce petitions are filed and initiated by men. Women, if they can afford a case, mostly file for maintenance and residence and return of stree dhan and dowry.
Women's organisations and groups like AIDWA had therefore put forth a demand to the Standing Committee examining the Bill that a comprehensive legislation on the women's right to marital property too be enacted. They had suggested that this legislation should apply to women of all communities/religions as an equal share in marital property is a recognition of the economic content of household work and of the wife's contribution to the family and no personal law can deny this. The legislation would also unequivocally provide that women should receive at least a half share of the marital property.
It has also been suggested that this division should be allowed whenever a wife petitions for it after separation. Other clauses about what should constitute marital property would also form part of the standalone law. For instance, inheritance of the husband and wife and gifts to them could be left out of marital property. Other issues like whether the law should apply to persons living together etc also need to be thought about. For some reason, instead of having a proper discussion or debate on the issue, the government is hastily pushing through the amendments with some concessions.
Leaving the quantum of the share that should be given to the wife to be decided by the court would invariably result in women getting much less than half the assets. Several studies including a study on separated women by the Economic Research Foundation, Delhi have shown that whereas men most often leave a marriage without any adverse economic consequences, women and children suffer a severe decline in their living standards after being abandoned or deserted.
Our courts are manned by persons who represent various shades of opinion and lawyers and activists working with women have found that sections of the judiciary have a narrow, patriarchal outlook on women's issues. It is important thus that the discretion of the courts in this matter be minimised.
Then there is the question of the efficacy of the procedural laws for recovering maintenance allowances. Though it has been reiterated time and again that maintenance allowances should allow wives and children to maintain the same standard of living as they had in the marital home, most courts do not stick to this principle.
Normally the courts' evaluation of what constitutes adequate maintenance falls far short of what women and children require even to survive in a dignified manner. Studies indicate that if women approach the courts for maintenance they are awarded sums that may normally range anywhere between 50 and 35 per cent of the man's income, even if there are children to be supported.
The following steps could help ensure that divorced women do not end up with an unfair deal: the government has to enact a law to enforce and recover maintenance amounts (in several countries there are separate enforcement agencies to recover this money). Perhaps, a fund can be created from which maintenance can be immediately given to the wife and children. Also, provision must be made to ensure that women with children have a house/place of residence. There must be special laws for disclosure of income of the husbands and shifting of onus of proof in these cases will have to be considered.
It would be pertinent to mention that in countries like Canada where irretrievable breakdown of marriage has been introduced as a ground of divorce, laws relating to an equitable division of all marital assets also exist. The contribution of a woman in building up of the household and in primarily taking care of the children is recognised and is considered to be economically valuable work. In fact, in a recent judgment (Arun Kumar Aggarwal vs National Insurance Company Manu/SC/ 0507/2010), the Supreme Court of India has 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 relating to equal rights for all citizens.
Some studies show that many men seek divorce because they are in another relationship or want to remarry or are no longer interested in their present partner or want dowry etc. The current laws, however, do not allow a divorce without the establishment of the fault of the other party. Since most men cannot prove this, they normally try to settle with the wife on monetary terms and get a divorce on the ground of mutual consent which provision is already on our statute books. The wives thus have a bargaining power under the current laws which they try to use to get a somewhat equitable financial settlement that will enable them and their children (who are normally with them) to survive. Bringing in the new law will deprive women of this bargaining power.
The writer is a Supreme Court lawyer and convenor of the legal cell of the All-India Democratic Women's Association
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