“You have to stand on your own feet. You have to take a step,” Donna Fernandes is saying into the phone. A member of Vimochana, a Bangalore-based forum for women's rights, Fernandes is advising a distraught caller going through a separation. As in so many cases, the division of assets is the bone of contention.
In the next room is 60-plus R. Sarojamma. She’s been doing the rounds of the family courts for over 30 years, but hasn't seen anything of the maintenance due to her. Her abusive husband left her and their four children after 15 years of marriage. In 1989, the court ordered her ex-husband, then a stores manager at HAL, to pay her Rs. 300 a month; a few years ago, this was increased to Rs. 2,000. She is yet to get a rupee. She's ill, in debt from fighting her case, and sleeps in any temple she can find. “He drives around in a car, but I'm on the street.”
It is ostensibly to avoid such situations that the Marriage Laws (Amendment) Bill 2010 is being proposed. But the Bill has been hanging fire for three years now. It has been passed around the Cabinet, a Standing Committee and an empowered group of ministers. It is all good intent but overshadowed by rhetoric and a lack of clarity. Protesters slam it for being biased against men, while women's groups insist it doesn't go far enough.
One key amendment, which seeks to make ‘irretrievable breakdown of marriage’ valid grounds for divorce, allows either party to file, but opposition can come from the woman alone. And divorce will be granted only if the separation doesn't cause her ‘grave financial hardship’. It sounds reasonable on paper but, as Fernandes points out, it will ultimately be up to judges, with their own biases, to decide what constitutes ‘hardship’. It might be a good idea to define ‘financial hardship’.
What about Sarojamma?
Women’s groups also criticise the proposal for being silent on maintenance. A study by Economic Research Foundation finds that “separation/divorce clearly spells financial disaster for women and children but leaves the separated/divorced male with more income to spend on himself”. Of the women surveyed, 41.5 per cent had no income after separation/divorce and 27.4 per cent earned less than Rs. 2,000 a month. The Bill, then, in its present avatar still won’t offer relief to Sarojamma and her ilk.
One of the most significant clauses is that the divorced women must get a 50 per cent share of all immovable property obtained during marriage. This is a good provision, but the catch is that property is most often purchased by the husband, sometimes even secretly. Asks Fernandes, “How can the woman prove how much property the man has?” A paper by Hema Swaminathan, Suchitra J.Y. and Rahul Lahoti from IIM, Bangalore, indicates that 2-17 per cent of adult women across Karnataka own property, while the corresponding figure for men is 10-47 per cent. Once the marriage begins to fail, it is easy for the man to transfer property to a relative’s name and keep it out of the divorce.
As Fernandes suggests, it might work better if all property after marriage is owned jointly by both spouses as a matter of right. This should happen right from when the marital union is formed, and not only in the context of divorce.
Let’s define assets
Swaminathan, assistant professor at Centre for Public Policy, points out also the fallacy in talking of immovable property alone, saying that this ignores women’s contributions to the economic and non-economic welfare of the household. “Her contributions are priceless, not valueless. In fact, working women contribute to family finances and housekeeping. The division of assets needs to take this into account.”
Finally, the amendment that raises the most hackles: allowing the wife a share even in inherited property. Protestors fear misuse of the law and long drawn-out court cases. They also point out that since women already have a right to their parental property, it is unfair to give them a share of their husband’s inherited property as well. Swaminathan says the provision may work in countries with an existing ‘egalitarian’ society, but implementing it in India could be challenging. “A lot of thought needs to go into deciding what assets each brings to the marriage – whether inherited, purchased or gifts.”
Property entitlement is key to women’s empowerment, and it is right that the government is widening the ambit of discussion. However, it can and must go further. Fernandes is in no hurry to see the Bill enacted. “It will throw up a lot of opposition, evoke resentment, and polarise men and women. We need to have more debate.”
