Journalism of Courage
Marriage bill treads a tricky path between a liberal approach to divorce and protecting womens rights
A fair balance between individual freedom and responsibility is the crux of any just law on marriage and divorce. The Marriage Laws (Amendment) Bill just passed by the Rajya Sabha updates the marital contract,giving greater agency to both spouses while protecting women,for whom divorce is a more punishing event,and who have so far had little legal recourse.
Under the new bill,either partner can petition for a divorce citing irretrievable breakdown,without having to supply proof of adultery,leprosy,conversion,unsoundness of mind,desertion or other dire circumstances. This change puts Indian law on par with other jurisdictions,starting with New Zealand in 1920,allowing unhappy partners to be released from their bonds and respecting their reasons. After the specified waiting period,a judge can use her discretion to grant divorce even if one of the partners does not move a second application within three years. While a woman can oppose a divorce plea on the grounds of financial hardship,a man cannot. The more substantive change in the bill is the recognition that women are entitled to a share in marital property a principle acknowledged around the world. Women often invest disproportionately in the household,compared to remunerated work. They stand to lose more,emotionally and financially,when the marriage breaks down,and assets are usually registered in the mans name. India did not have a law on marital property division,leaving the woman financially disadvantaged and burdened with child support. She had even less leverage if she had initiated the divorce. Now,the judge can again use her discretion to ensure a fair share of property or guarantee spousal support. This part of the bill has been seen to be contentious,with many questioning why a woman is entitled to her husbands inherited or inheritable property. Given that its implementation leaves so much to the subjective assessment of a judge,it is crucial that such decisions are just on both men and women.
During the parliamentary discussion of the bill,many MPs questioned the seeming asymmetry of the bill,and asked why the principle of compensation was not gender-neutral. The reason is that social institutions are usually tilted against women,and it is rare for men to have sacrificed their earnings for the sake of the marriage. And so,a gender neutral law in a context of inequality could create situations where a womans plea is reflexively countered,leading to massive litigation rather than progress. When Lok Sabha takes up the bill,this logic must be more thoroughly articulated,and all views considered.
