September 2, 2013 12:04:50 am
On compensation,the new Marriage Laws (Amendment) Bill must be fine tuned
On August 26,the Rajya Sabha passed the Marriages Law (Amendment) Bill to facilitate divorce among Hindus. It will now go to the Lok Sabha. The bill promises easier divorce,but on compensation for the wife,it fails to take account of important complexities.
The bill allows divorce on grounds of irretrievable breakdown,provided the spouses have lived separately for at least three years and their differences are irreconcilable. Divorce can be granted not only on a joint petition by both spouses but also on a single party petition. The bill thus allows people trapped in unhappy marriages to part without years of litigation. There have been cases that have dragged on for over 15 years because one party refuses to cooperate.
For many years,easy divorce was opposed by both conservatives and liberals. The former argued that it would erode a key social institution,and the latter argued that it would harm women,since men would walk out of marriages and wives would have nowhere to go. The latter argument is given weight in the bill it includes compensation in the form of a share in some types of the mans property. The court can also deny divorce to the man if the woman proves she will face dire financial hardship. While easier divorce is better for both parties,compared with an unhappy or violent marriage,on compensation,the bill has several anomalies.
It allows the court,on the wifes petition,to order the husband to make compensation which shall include a share in his share of the immovable property (other than inherited or inheritable immovable property) and such amount by way of share in movable property,if any,towards the settlement of her claim,as the court may deem just and equitable,and while determining such compensation the court shall take into account the value of inherited or inheritable property of the husband. (Section 28D)
This means that in immovable property (say land or house),the wife has no claims in the part that is inherited or inheritable,but she can get a share of that which is self-acquired or received as a gift. Moreover,the court,while fixing compensation,will take into account the value of all of the mans property,including that which is inherited or inheritable.
Globally,laws relating to property division on divorce are diverse and context specific. This bill ignores many complexities of the Indian context and fails to protect various categories of women. First,in protecting the interests of the divorced wife,the bill can undercut those of the mans female relatives. For instance,in his self-acquired land,the mother and daughter,as Class I heirs,have claims intestate (that is,if he leaves no will). A compensatory share for the divorced wife will diminish the shares of these female heirs. Moreover their property rights are established by Hindu inheritance law and not subject to
a judges discretion. The bill takes no cognisance of this.
The dilemma that a law which gives a divorced wife a share in a mans immovable property can disadvantage his female heirs has no easy solution. An important principle in giving a divorced wife
a share of a mans property lies in recognising that she contributes substantial labour (usually unpaid) to family upkeep. Hence,she helps build the homes assets even when not contributing financially. But a mother and adult daughter living in the household may also provide unpaid labour for family upkeep,so their claims to the mans assets on these grounds are similar. One possible way forward is to make only property acquired after marriage subject to consideration on divorce,as many countries do.
Second,it is unclear what the bill means by a mans inheritable property. Is it property he can inherit or property his heirs can inherit from him? Under Hindu inheritance law,all property is subject to the right to will,including a mans notional share in joint family property. And it cannot be predicted whom a will may favour. If by inheritable property,the bill means the husbands share in joint family property it needs to state this.
Third,the bill ignores the duration of marriage. Some regions consider marriages of three years (New Zealand) or five years (Ontario) as short-duration and restrict property shares in such cases.
Fourth,the bill is silent on the womans economic situation unless she faces financial hardship. This is inadequate. On the one hand,where women are well off,the financial means of both spouses should be considered in determining compensation. On the other hand,the bill must also recognise that many households own little property. This is where real economic hardship lies. My work on domestic violence shows that its incidence is much higher in households with no property,or where the woman herself owns none. She thus has no exit option from a violent marriage. Here,the state needs to provide not only effective legal aid to cover divorce proceedings,but also compensation (including subsidised housing) for women with few means,if the husband is financially unable to compensate.
The writer is professor of development economics and environment,University of Manchester,and author of
A Field of Ones Own: Gender and Land Rights in South Asia
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