by Saptarshi Mandal
What began as a debate on whether getting a divorce should be made easy, has in a welcome move, transformed into one on how to assess the wife’s contribution to the marriage. In 2010, the government introduced a Bill to amend the law of divorce for the Hindus and those married under the Special Marriage Act (civil marriage). The Bill sought to introduce a new provision, whereby either of the parties would be able to ask for divorce by claiming that there had been an ‘irretrievable breakdown of marriage’. Thus, in marriages where only one party feels the need to end the marriage, he/ she can ask for a divorce without having to prove that the other has committed a matrimonial offence like adultery, domestic violence or desertion.
The Bill was welcomed and celebrated by many, as a progressive measure that would give persons who find themselves locked in bad marriages, an easy option to end the marriage. But women’s rights activists and lawyers pointed out that in the absence of adequate recognition of and protection to a wife’s economic rights in a marriage, the cost of making divorce easy would be disproportionately borne by the wife. This concern was also supported by the Parliamentary Standing Committee to which the Bill was referred. The Committee urged the government to incorporate the provision of division of matrimonial property at the time of divorce. While a redrafted Bill is presently under consideration, voices can be heard from several quarters that the issue of matrimonial property rights is anti-men. The fear seems to be that the proposed law would make it possible for wily, unscrupulous wives to force their husbands to part with ‘their’ hard earned money. What is more, such responses are not limited to overtly sexist groups such as the Save Indian Family Foundation, but have wide resonance among the general public too. Hence there is a need for some clarification and understanding as to what is meant by matrimonial property and why wives must have an equitable share in it.
As per the model of property rights currently followed in India, the property acquired by the spouses during the marriage continues to be their separate property. There is no common corpus to which both the spouses can lay claim. While upon marriage, spouse share a common house and in most cases a common surname, marriages are still not regarded as a common economic entity to which both spouses contribute through different means. It is worth remembering that housework and childcare are seen exclusively as the wife’s duty, and so a lot of women quit working after marriage. For such women, there is very little chance to augment the property that they had at the time of entering the marriage. Thus at the time of divorce, the wife typically has less property at her disposal than the husband. Women who are economically independent, or who have the support of parents, brothers etc. are not affected much by this. But women, who have been married for a long time, who have been home makers, who do not have the necessary skills to enter the labour market or who do not have the support of their natal families, are left economically worse off after the divorce.
Even if a homemaker wife does not contribute to the marriage in economic terms, she makes substantial non-economic contribution by taking care of the household, the children, the elderly and through numerous other ways which are both time and labour intensive. In fact, it is this non-economic contribution of the wife that enables the husband to advance professionally, save the costs of domestic labour and care work, and thus augment the wealth that he had at the time of entering the marriage. The so-called working women are in reality part-time homemakers, as they continue to do housework in addition to their paid work outside the home. Thus it is only fare that at the time of dissolution of the marriage, the wife should get at least half of the property that was acquired during the marriage through her contribution – whether economic or non-economic.
The amended Bill introduced in the Rajya Sabha earlier this year, states that courts ‘may’ direct the husband to give equal share to the wife and children in all the movable and immovable property acquired by the couple during the marriage. In stead of clearly specifying the wife’s share in the property, the amended Bill leaves it to the discretion of the judge. Given the narrow and patriarchal biases of members of the judiciary and in light of the experience of how maintenance under Section 125 of the CrPC is granted by the courts at present, one has every reason to be skeptical about how this provision may be used. The concept of matrimonial property is not without precedent in India. Such a provision is already there in Goan civil law, where both inherited and self acquired property of both the spouses become joint at the time of marriage. (The Goan model however, is far from perfect, as despite pooling of the properties of both the spouses, the management of that common property lies with the husband. Thus the wives in most cases do not know what constitutes the common pool, from which they can claim their half share at the time of divorce. Also, a wife could be made to waive her rights to matrimonial property at the time of marriage through a pre-nuptial agreement.)
Similarly the Maharashtra government has also initiated discussions and consultations with various groups on a matrimonial property law. In stead of tinkering with the Bill and introducing half-baked measures, the central government should incorporate the concept of joint matrimonial property and the wife’s mandatory minimum half share in it.
Admittedly, there are a whole lot of contentious questions that need to be addressed. Such as, whether it should be limited to those married under the Hindu Marriage Act and the Special Marriage Act alone or should it be applicable to the religious minorities as well? Or whether for the purpose of division of property, marriage should include ‘relationships in the nature of marriage’ as well? Or what happens when a woman brings more property to the common pool than the husband, plus makes non-economic contribution to the marriage? Would a rule requiring perfectly equal division of the matrimonial property be fair to such a woman? But these questions can be dealt with, once we agree, in principle, that equitable distribution of and control over matrimonial property is a fair deal. It is about time we started acknowledging that marriage is not only an emotional relationship but an economic partnership as well, and which has economic consequences for the parties.
(Saptarshi Mandal is a legal researcher based in New Delhi. He researches and writes in the areas of feminist legal theory, legal method, disability studies and legal regulation of sexuality. He would like to thank Advocate Albertina Almeida for pointing out the imperfections in the Goan civil law)