The end game
Key changes to the law relating to divorce, approved by the cabinet last week, are broadly progressive towards women. But the amendments have serious gaps that need to be plugged, lawyers, counsellors and women tell Aarefa Johari. The passage from Bill to Law | Sharing of matrimonial property | Counterpointindia Updated: Apr 01, 2012 02:03 IST
She worked as a senior officer in the Delhi civil services, and used her salary to run the household. He, also an administrative officer, saved all his earnings and bought property in his name. In the 15 years of their marriage, this was their arrangement. But when this couple got divorced two years ago, says their lawyer Meenakshi Lekhi, the judge denied her alimony because she was working and could support herself. Despite contributing economically to her marriage, she was left with no rights to her husband’s property. Such women, Lekhi feels, would benefit if the law gave them a share in the husband’s property.
Sharing matrimonial property is, in fact, one of the divorce-related clauses proposed in the Marriage Laws (Amendment) Bill, 2010, which seeks to amend parts of the Hindu Marriage Act and the Special Marriage Act. The bill was cleared by cabinet on March 23 and, if passed by Parliament, could change divorce litigation. ‘Irretrievable breakdown of marriage’ could become a new ground for divorce, women could get matrimonial property rights and the six-month cooling period before a divorce would no longer be mandatory in cases of mutual consent.
The response to these proposed amendments has been as celebratory as condemning. In India, where the nuances of divorce depend on the social context, lawyers, counsellors and couples are fiercely divided about each clause.
To seek divorce by mutual consent, couples can file a case only after a year of separation, followed by a six-month cooling off time. The proposed waiver of this cooling period in the bill has evoked mixed reactions. “Some marriages are doomed from the beginning, so why should the couple wait for six months?” says Aishwarya Bhati, a lawyer from Delhi. Others believe speeding up divorces could hurt some couples. “I have seen couples reconciling during the cooling period,” says Mumbai-based lawyer Anshumol Kumar.
When the bill was first presented to the Rajya Sabha in 2010, it chiefly sought to introduce ‘irretrievable breakdown of marriage’ as a new ground for divorce. In this ‘no-fault’ clause, either spouse can seek a divorce after three years of separation without having to prove the failure of the marriage in court. For many, this has been a long-standing demand. “Sometimes there is just no compatibility. It makes no sense to continue a relationship that’s dead,” says Abbas Mookhtiar, a Mumbai lawyer.The proposition, however, faced opposition from women’s rights groups, who believed the move would allow Indian men to end marriages easily, leaving non-working women with just a meagre maintenance or alimony. To empower women in such situations, a Parliamentary standing committee recommended equal rights to matrimonial property as a counter-clause, recognising housewives as performing an important, though unpaid, role in the home economy. "A woman’s contribution to building a home has been recognised for the first time in India," says Mridula Kadam, a Mumbai-based lawyer, who says sharing property will be a balancing factor if the man misuses the ‘irretrievable breakdown’ clause.
But many women’s rights activists believe that the proposed amendments are still not strong enough to guarantee the rights of women. ‘Irretrievable breakdown of marriage’, they feel, is a Western concept being imported without understanding the socially disadvantaged contexts of Indian women. “Here, the ratio of women and men filing for divorce is roughly 1:50,” says Vandana Shah, a Mumbai-based counsellor who runs Ex-Files, a monthly newsletter for divorcees. “The wide ambit of ‘irretrievable breakdown’ will largely favour men, who find it easier to resettle after a divorce. Women will have to face more social stigma.”The sharing of matrimonial property is also an ill-defined clause, say activists, because it leaves the court to decide quantum of the share. "In most cases, wives have no property to their name and the husband’s property is in his family members’ names," says Persis Sidhwa, a lawyer from Majlis, a Mumbai women’s rights group. "The law should clearly define guidelines for property distribution. It must not be left to judges’ discretion."
Another concern is that the proposed amendments, applicable only to Hindus and those who marry under the secular Special Marriage Act, leave out minority communities. “If laws are made regarding women’s empowerment and property rights, women of all religions should be considered,” says Lekhi.
Delhi-based lawyer Geeta Luthra believes that the objective of the proposed amendments is to speed up divorce procedures and reduce the backlog of pending cases in courts. “Making divorces easier is not a solution,” says Luthra. “Litigation goes on for years because the country does not have sufficient courts, and that is what needs to be addressed.”
According to Shah, irretrievable breakdown of marriage and property distribution may be justified in principle, but Indian society is not yet ready to deal with their consequences. “We need to first work towards changing social mindsets regarding divorce, by bringing it to the forefront of public discussions,” says Shah. “Legislations are also important, but we have a long way to go.”