“The wife owes service and labor to her husband as much and as absolutely as the slave does to his master. This grates harshly upon the ears of Christendom; but it is made palpably and practically true all through our statute books, despite the poetic fancy which views woman as elevated in the social estate; but a little lower than the angels,” said Antoinette Brown Blackwell, the first woman protestant minister of the United States.
We go a step ahead and glorify our women as goddesses but deny them equal rights, and under the latest Uttar Pradesh and Madhya Pradesh Ordinances, even the right to choose their spouses. Veteran actor Kamal Haasan and his Makkal Needhi Maiam party who recently promised salaries for housewives as a part of the party’s election manifesto, has revived the debate on the recognition of domestic work as work. What is the history of recognition of work by wives as work in the West? What have the legislative initiatives and judicial responses been in this regard?
The burden on women
As in the 2011 Census, while 159.85 million women stated household work as their main occupation, a mere 5.79 men referred to it as their main occupation. Justice N.V. Ramana in his crisp and authoritative concurring judgment of January 5, 2021 in Kirti and Another v. Oriental Insurance Company has referred to the Time Use in India-2019 Report of the National Statistical Office, Government of India (published in September 2020) which says that on an average, while Indian women spend 299 minutes a day on unpaid domestic services for household members, men spend just 97 minutes. Women also spend 134 minutes in a day on unpaid caregiving services for household members. A French government’s Commission on the Measurement of Economic Performance and Social Progress in 2009 that studied the situation in Germany, Italy, the United Kingdom, France, Finland and the U.S. drew similar conclusions. A report entitled ‘Women’s Economic Contribution through their Unpaid Work: A Case Study of India’ (2009) had estimated the economic value of services by women to be to the tune of a whopping $612.8 billion annually.
Justice Ramana not only listed the various activities women undertake but also referred to British economist Arthur Cecil Pigou who had lamented that the household work by wives is not taken into consideration in calculating national income.
Other judicial observations
In Arun Kumar Agrawal v. National Insurance Company (2010), the Supreme Court not only acknowledged the contribution of the housewives as invaluable but also observed that it cannot be computed in terms of money. Her gratuitous services rendered with true love and affection cannot be equated with services rendered by others. Similar observations were recently made in Rajendra Singh (2020). But then these cases dealt with a limited question of compensation under the Motor Vehicles Act to calculate the compensation for the death of homemakers, and not the recognition of a wife’s right in her husband’s income during the subsistence of marriage. Justice A.K. Ganguly in Arun Kumar Agrawal (2010) referred to Census 2001 that is carried out under an Act of Parliament and had categorised those who perform household duties — i.e. about 36 crore women in India — as non-workers and clubbed them together with beggars, prostitutes and prisoners (who are not engaged in economically unproductive work).
A hierarchical structure
For centuries, the English common law of marital status was starkly hierarchical. Forget the recognition of a homemaker’s work as work; she had no right even in respect of her work outside home. In fact till 1851, no country had recognised a wife’s right in earnings of any sort. If a housewife worked for pay in or out of the home, it was her husband’s prerogative to collect her wages. Strangely, seventh century Islamic law clearly mandates husbands to pay wives if they decide to suckle their children and entitle them to spend certain portions of husband’s money without his consent.
By the middle of the 19th century, some American States started reforming the common law of marital status by enacting the “Married Women’s Property Acts”. Some of these statutes exempted the wives’ real property from their husband’s debts. By 1850, the era of “earning statutes” started which granted wives property rights in earnings from their “separate” or “personal” labour. But the Census measures of the economy that appeared in the aftermath of the American Civil War characterised household work as “unproductive”, and, consistent with this gendered valuation of family labour, excluded women engaged in income-producing work in the household from the count of those “gainfully employed”. It seems that the Indian Census referred above followed this regressive precedent.
Home and market for centuries were considered as two distinct spheres. The market was a male sphere of selfish competitiveness, but the home was celebrated as a female sphere, a site of spiritual uplift that offered relief from the vicissitudes of market struggle. American feminist economist Nancy Folbre rightly remarked, “the moral elevation of the home was accompanied by the economic devaluation of the work performed there”. The tendency of a “separate spheres” reasoning was thus to reinforce the legal ordering of family life and justify a husband’s control of family assets.
Subsequently, women demanded a right to own themselves, their earnings, their genius. Accordingly, in 1851, at the Worcester Convention, it was resolved: “that since the economy of the household is generally as much the source of family wealth as the labor and enterprise of man, therefore the wife should, during life, have the same control over the joint earnings as per husband, and the right to dispose at her death of the same proportion of it as he”. They finally achieved success when the equal rights of wives in the matrimonial property were recognised. The Third National Women’s Liberation conference, in England in 1972, for the first time, explicitly demanded payment of wages for the household work.
In India, the debate on joint property rights of married women is not new though we still do not have joint matrimonial property law. Veena Verma did introduce a private member Bill in 1994 entitled The Married Women (Protection of Rights) Bill, 1994. Her Bill provided that a married woman shall be entitled to have an equal share in the property of her husband from the date of her marriage and shall also be entitled to dispose of her share in the property by way of sale, gift, mortgage, will or in any other manner whatsoever. But in 2010, even registration of the National Housewives Association as a trade union was denied as domestic work was treated as neither trade nor industry.
A step and suggestion
The United Progressive Alliance government, in 2012, had proposed to make it mandatory for husbands to pay a monthly ‘salary’ to their wives. One cartoon had depicted a husband saying to his wife, “here is your salary for the month. However, ₹3355 has been deducted as you were at your parent’s home for a week.” Mr. Haasan should understand that the term ‘salary’ as monthly payment is indeed problematic as it indicates an employer-employee relationship, i.e., a relationship of subordination with the employer having disciplinary control over the employee. Wives do not deserve a master-servant relationship.
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The United Nations’ Committee on the Elimination of Discrimination Against Women, in 1991, had recommended measurement and quantification of unremunerated domestic activities of women and their recognition in GDP so that the de facto economic contribution of women is highlighted. Matrimonial property laws do give women their share but only when the marital tie comes to an end. The time has come to insist that the work women perform for the family should be valued equally with men’s work during the continuance of marriage. If women become a little assertive, prenuptial marriage agreements can easily solve this problem with the insertion of the clause on wives’ right in husband’s earnings and properties being included in such agreements.
Faizan Mustafa is the Vice-Chancellor of NALSAR University of Law, Hyderabad. The views expressed are personal