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.mumbai Updated: Apr 01, 2012 02:00 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 what that share will be. “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.”
The passage From BILL TO LAW
In August 2010, former law minister Veerappa Moily introduced the Marriage Laws (Amendment) Bill in the Rajya Sabha. In March 2011, the Parliamentary Standing Committee on Law and Justice and Personnel, headed by lawyer Jayanthi Natarajan, cleared the bill after making changes applicable to the Hindu and the Special Marriage Acts. On March 23, 2012, the cabinet cleared the draft bill, with changes. Parliament is now expected to examine the bill.
Irretrievable breakdown of marriage
Rajya Sabha bill
Sought to make this a new ground for divorce.
Supported this clause but recommended that the bill define “irretrievable breakdown of marriage.”
Government’s draft bill
Supported this clause in the bill; clarified that a wife could oppose her husband’s plea for divorce on this ground if she felt the divorce would render her financially vulnerable. The husband could not oppose a wife’s plea.
“I would have liked to end the litigation faster”
When Revathi (not her real name), 40, a textile designer from Bangalore, married into a middle-class family in Chennai 22 years ago, she didn’t realise she would have to become the sole breadwinner for her husband and son.
Her husband worked as a co-director of an IT firm, and after the company shut down a few years into their marriage, he refused to take up another job. Meanwhile, Revathi’s own textile business began growing, and all financial responsibilities fell on her. “Because I was earning, he grew complacent. I had to deal with his tantrums and temper. Because of the strain of running the house and educating my son single-handedly, I could never enjoy my income.”
Four years ago, when she threatened to walk out, his brother got him a mid-level corporate job. “But he never took it seriously, and 19 months ago, I finally left him.” She has filed for divorce on the grounds of economic harassment. Her husband wants to give their marriage another chance, but Revathi would have wanted a quick end to the litigation on the ground of irretrievable breakdown of marriage — had it been part of the law. “I have suffered enough.” Revathi has seen many women struggling to prove mental harassment, and believes an ‘irretrievable breakdown’ clause would be a boon to them. “Marriage is about two people who want to be together. If even one partner wants to opt out, why should the marriage continue?”
Sharing of matrimonial property
Rajya Sabha bill
Had no clause pertaining
Said women should have a share in matrimonial property if the couple divorce.
Government’s draft bill
Said that the woman should get a share of all matrimonial property but the relevant court should decide how much in each instance.
“Consider the whole family’s property”
Vandana, the daughter of an air force officer and a housewife, had always believed she was an independent woman. By the time she was 21, she had lost both her parents and had completed her BA in psychology. Instead of moving in with relatives, she chose to live alone in a suburban flat her parents left her, working as a marketing professional in advertising. At 26, her relatives found her a match in a wealthy business family in the city, and Vandana tied the knot after nine months of courtship.
The problems began in the first year of marriage itself. “His family seemed to want a completely different kind of daughter-in-law, and claimed I did not meet their standards,” says Vandana, who had quit her job when her in-laws asked her to, but continued to face verbal and some physical abuse.
The family also wanted her to transfer her flat to their name, but fortunately for Vandana, she had not yet done so when her in-laws “violently” threw her out in 2001. “I had just Rs 750 in my bank account at that time,” says Vandana, who refused to sign
the divorce papers her in-laws sent her. She took up a job with a non-profit organisation and approached a lawyer at the Family Court to begin litigation that would last for nearly nine years.
As interim maintenance, the judge asked her husband to pay 18% of his earnings.
“The family owned property, stocks and other assets worth several crores of rupees, but none of that was in his name. On paper, they claimed his income was just Rs 40,000 a month,” says Vandana, who finally agreed to a divorce in 2009, when the parties finally settled on the alimony amount. “He
agreed to part with a larger
sum only because he wanted to remarry.”
Vandana believes a law on the sharing of matrimonial property would make no difference unless the law clearly defines property and includes in it the assets owned by the man’s family.
“In our society we are said to be marrying into a family, so at the time of divorce, why talk only of the couple’s property?”
The six-month cooling period
Rajya Sabha bill
Sought to do away with the six- to 18-month waiting period before a couple can move a joint motion supporting a petition for divorce by mutual consent.
Opposed doing away with this.
Government’s draft bill
Said that the relevant court
must decide in each case whether there must be a cooling period, and if so, how long it should be.
‘I want to sign the papers and move on with life’
Sudha (not her real name) was 24 and working as a computer operator in a private company in Mumbai when she agreed to an arranged marriage with a man who ran a small printing press. “His family lived in a rented one-bedroom flat, and on the second day of marriage itself, his parents asked my husband and me to live separately,” says Sudha, 40. “We could not afford to, and they constantly harassed me.”
As the harassment increased, the couple moved, with their twin girls, to a chawl room. His business never did well, so Sudha would give him her salary of Rs 5,000 for the rent. When the twins were ready for school, he sold all of Sudha’s jewellery and bought a one-room flat in his name.
“He blew up most of my salary on alcohol every night, and would hit and torture me.” In 2010, he didn’t come home for two months, living with his parents instead. “I could not afford to feed the kids all alone. I left them with him and returned to my father’s house,” said Sudha. She sent him a divorce notice after a year and a half of living separately.
When summoned by the court, he agreed to divorce Sudha but refused to give her any money. Weary of pursuing a long litigation for “very little money”, Sudha finally went in for a divorce on the grounds of mutual consent, but now has to wait through the six-month cooling period before the divorce is complete. Sudha believes this is unnecessary
in her case.
“There is no question of reconciliation. In fact, in the past three months he has tried to ask me for money because we are not yet divorced,” she says. “Why should I live through this ordeal? I want to sign the papers and move on with life.”