Opinion Whats yours should remain yours
Divorce may be easier,if irretrievable breakdown of marriage becomes a reason. But divide property fairly.
The joint select committee of Parliament,in its 45th report submitted to the Rajya Sabha earlier this month,has urged the government to consider the introduction of the principle of division of matrimonial property into our matrimonial statutes. This is a sort of victory for womens organisations who have long been campaigning for this right. This is the first time such a recommendation finds a place in official discourse,and marks a new beginning.
The recommendation was made while examining the feasibility of introducing the provision of irretrievable breakdown of marriage (IBM) into our marriage laws. It is indeed surprising to note that while the Law Commission in its various reports had recommended that IBM should be introduced as a ground for divorce,it had failed to recommend that such a provision should be accompanied by a provision for division of matrimonial property. The basis for the recommendation was that several Western countries have incorporated such a provision into their matrimonial statute. But the short-sighted recommendation had failed to examine the provision in Western countries in its totality. Every country that has introduced this provision has also simultaneously incorporated the principle of division of matrimonial property. It was obvious that without such a provision,the introduction of IBM would cause grave hardships to both home-maker wives as well as to women shouldering the double burden of wage employment and home-making.
Alarmed at the governments intention to introduce a bill on IBM,womens organisations urged the law minister to consider including the provision of division of property at the time of divorce into this bill. So after its introduction on August 2,2010,the bill was referred to the joint select committee of Parliament,whose recommendations now come as welcome respite.
Under the legal regime of separation of property,the property acquired by the husband is deemed to be exclusively his. And so,divorce renders most women destitute,devoid of shelter,economic security and property rights. While superficially,the notion that each person is entitled to their own property appears to be a just and equitable one,as we probe deeper into the ascribed gender roles within marriage,it becomes problematic. Our society views men as the primary breadwinners of the family. In order to facilitate this process,a woman is expected to sacrifice her career and dedicate herself totally to the task of caring for him. In this process,she is also expected to take on the task of home-making,child-bearing,child-rearing and caring for the sick. Even if she is required or permitted to work,in most situations,it would only be to augment the family income. Her earnings are treated as the familys supplementary income. The contribution of the home-maker spouse has no economic value. In a recent ruling,Arun Kumar Agarwal vs National Insurance Company (AIR 2010 SC 3426),the Supreme Court criticised the 2001 census enumeration which categorised 367 million home-makers as non-workers along with beggars,prisoners and prostitutes.
Though the matrimonial property gets accumulated through the active contribution of the home-maker wife,the husband exercises exclusive ownership rights over it. So when a marriage breaks down,most women are rendered destitute. A womans right is confined to a monthly maintenance dole. If the woman has an independent source of income,she is denied even this meagre amount. During divorce proceedings,substantial sums can be secured to the wife only through negotiations during court proceedings in the event that the husband a hasty divorce. The introduction of this ground will take away the bargaining power that women have during divorce proceedings filed by their husbands and will render their situation even worse. It is in this context that the 1995 ruling in Ramesh Chander vs Savitri,(1995 (2) SCC 7) is an important marker. The Supreme Court directed the husband to transfer the house owned by him to the wife at the time of awarding a decree of divorce on the ground that the marriage has broken down irretrievably.
It is hoped that the government will now give serious consideration to the recommendations made by the joint select committee and draft a law that will ensure property division at the time of divorce. This is a challenging task as principles evolved in Western countries may not apply to conditions prevalent in India,for two reasons. First,the matrimonial home is not a nuclear household. In most cases it comprises of a family home that is owned by the parents-in-law. Secondly,the prevalence of a large amount of unaccounted money in our economy makes determination of wealth a difficult task at the time of divorce.
The writer is a matrimonial lawyer and director of Majlis,a Mumbai-based NGO which provides legal advocacy and litigation help to women
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