Money and marriage

  

Will changes in laws make a difference... Illustration: Keshav

Why the recent Marriage Laws (Amendment) Bill may not make much difference to a majority of rural women.

Should women cheer now that the Union Cabinet has approved the Marriage Laws (Amendment) Bill 2010? If it becomes law, women will have the right to an equal share of property acquired after marriage and divorce will become easier. The additional ground of “irretrievable breakdown of marriage” has been added and there is a shorter waiting period when both parties want to end a marriage.

Most television talk shows have focused only on the urban, educated, middle class women. There is an assumption that divorce and partition of marital property affects only them. There are also crazy scenarios being created about a “divorce epidemic”.

Exercising rights

In fact, we have to ask whether such a change in law will make any difference to the majority of women, especially those living in villages. Most women do not know that under law they are granted many rights. Even if they do know — such as the right of daughters to inherit a share of their parents' property — they are forced or persuaded to sign away their right. A recent study by the Rural Development Institute (RDI) of women's land rights in Andhra Pradesh and Bihar noted that more than half the Hindu women surveyed had signed away their right to land they would have inherited.

Inheriting property or land is crucial for many women seeking some form of economic security. Yet, this is precisely where their lack of knowledge or ability to exercise the right forces them to continue living in abusive and violent marriages. To walk out of such a marriage means walking into destitution. But if they fight for their right and succeed in getting their share, they are ostracised by their own community. Nothing has changed the entrenched belief that a woman, once she leaves her natal home, has no right to anything there and that the dowry she carries with her is adequate compensation.

The other side of ignorance about rights is the absence of supportive structures to help women claim their right. According to the RDI study, 61 per cent of women said they had never gone to a revenue office and of these 99 per cent said this was because men handled such matters. Of course, it did not help that the majority of the lower level revenue officials were also men. A simple step like appointing more women to such posts might begin to make a difference.

Several studies have shown that women who have the ability to stand on their own feet are less likely to tolerate an abusive marriage. Of course, there are always exceptions to this rule as is evident from the searing essay written by the young poet and writer Meena Kandasamy, “I Singe The Body Electric” (http://www.outlookindia.com/ article.aspx?280179) where she speaks about the abuse she suffered within the first four months of getting married. Economic independence did not protect Meena from domestic violence but it gave her the courage to walk out.

Double-edged

What about women living in villages, in highly patriarchal societies, where the majority of women accept that beatings and abuse are part of what marriage is all about. In such societies, inheriting property can become a double-edged sword.

A fascinating study on the link between economic independence and domestic violence is by feminist scholar Prem Chowdhry for UNWomen (http://www.unwomensouthasia.org/ economic_security.html). She could not have picked a more appropriate state for such a study. Haryana has one of the lowest female sex ratios in the country. It has become known for the horrendous incidence of so-called “honour” killings where young men and women are murdered merely for marrying a person of their own choice. According to the National Family Health Survey-3, 27 per cent of married women in Haryana have seen physical, emotional and sexual violence and 46 per cent of women and 33 per cent of men felt that a husband beating a wife was justified in certain circumstances. In such a State, where girls are not allowed to be born, can women escape such violence if they assert their right to a share of property?

As in the States surveyed by RDI, in Haryana too women tend to sign away their right to parental property. But now this has begun to change. With the spread of urbanisation, property prices are hitting the roof. Girls are now demanding their share, often egged on by their in-laws. Of course, there is no guarantee that they will have control over the money if they manage to get it. But the study cites many instances where the situation of women, and even of their daughters, has changed dramatically once they have money or property in their own name.

Studies like the one by Prem Chowdhry and many others firmly establish the link between women's economic independence — either by way of property or an assured income — and a reduction in domestic violence. Even as laws are changed in the name of empowering women, we have to take the first steps — of informing women of their rights and creating the supportive structures that will guarantee that they can exercise these rights.

(To read the original, click on the link above)

Why make divorce easy?

The Hindu, Sunday Magazine, July 25, 2010

THE OTHER HALF

Kalpana Sharma

What are the laws that need the urgent attention of the government? One that deals with the increasing, and horrific, instances of so-called “honour” killings, where young women and men are being murdered for no other reason than choosing who they will marry, a right that is guaranteed to them as citizens of this democratic country? Or one that will make divorce easier for those who want to opt out of marriage?

These are not mutually exclusive choices. But because they have a direct impact on the lives of millions of women and men, they cannot be rushed through without adequate thought and debate. On the former, there is still some discussion and no conclusion yet. On the latter, strangely enough, the government seems to have made up its mind and is contemplating introducing a new provision in The Hindu Marriage Act that will permit divorce under “irretrievable breakdown of marriage”.

Divorce is still relatively uncommon in India compared to many other countries. The incidence of divorce is barely 1.9 per cent of registered marriages. This figure of course would not include a much higher percentage of desertions that routinely occur, where men leave their wives and children and live a bigamous life without any fear that the law will ever catch up with them. Such women are left in limbo, still legally married, unable to go into another relationship, and left without financial support. In a country where poverty and illiteracy are common, the figures if ever collated of such women would be staggering.

Under the Hindu Marriage Act and the Special Marriage Act there are specific grounds on which divorce can be sought. These include adultery, cruelty, desertion, conversion to another religion, unsoundness of mind, virulent and incurable form of leprosy, venereal disease in a communicable form, renouncement of the world and not heard as being alive for a period of seven years or more. Section 13-B of the Hindu Marriage Act and Section 28 of the Special Marriage Act also provide for divorce by mutual consent. Under this, both parties have to file a petition in court and are given six months after its admission and up to 18 months to change their minds. If neither party withdraws, the divorce is granted.

The government, and the Law Commission in its 217th report (March 2009), holds that the introduction of a provision of no-fault divorce, that is where neither party has to prove that the other committed an offence such as adultery, or cruelty or desertion to file for a divorce, will assist many couples who get caught in legal wrangles when their marriages have already broken down. Sometimes, even when they use the provision of mutual consent, one or the other party pulls out part way through the proceedings, leaving the other with no choice but to resort to a lengthy legal process to get a divorce. The government believes it is introducing this provision to bring such situations to an end.

But lawyers and women’s groups, who have known first hand the problems deserted women, or those who are victims of cruelty within their marriages, or have to live with adulterous husbands, say that such a provision will place a bigger burden on women. At present, a mutual consent divorce is the easiest and only possible way if both parties want to break up. Otherwise, one or the other has to prove a “fault”. Women often do not take the first step, particularly those women who are not financially independent, as they cannot pay for the litigation and also fear that even if there is a divorce, the final settlement will not suffice for them to survive on their own. For instance, apart from maintenance, sometimes the court awards a lump sum if a woman is able to prove her husband falls under any of the categories listed for grounds for divorce. But if the woman has to leave her matrimonial home, she would not have the resources to get another house unless that was part of the final settlement. And the current law does not mandate a formula for a financial settlement that would take care of the woman’s shelter needs.

In countries around the world, including the United States, where the grounds of “irretrievable breakdown of marriage” are part of the statute, there has been considerable debate over its introduction and it has been followed by clear and specific mandates on division of property. In some states in the US, everything is divided equally between the couple after a divorce on these grounds. In India, there is no such provision in the existing law or in the contemplated new addition.

What this will mean in real life is that an adulterous husband can file under this addition to the divorce law and even if he agrees to pay alimony, he is not bound by law to ensure that the woman has adequate resources to survive on her own. Also, in a society where being married grants women “respectability”, a divorce means losing that status. There is no legal compensation for this and no sign that our society is likely to change its attitude toward divorced or unmarried women in a hurry. Hence, women will always hesitate before filing for divorce.

The bottom line is that provisions for divorce are not gender neutral in a society like ours where there is no level playing field for men and women. Therefore, before any such provision is introduced, there needs to be a much closer scrutiny of its impact on poor women without independent economic resources who constitute the majority in this country. You cannot bring in a law that would ease the way for a small minority without considering the impact on this majority.

This is not to say that women or men should be permanently tied into loveless or cruel marriages. Divorce is a way out of such situations and marriage is not sacrosanct as some hold. But the provisions for divorce must be just. Of course, women who have a hard time proving that their husbands are cruel, or bigamous, could also use this provision to end their marriages. But such women are usually those with financial independence and the ability to negotiate a decent settlement. The majority of women would not dare use the provision for fear that they would be left with nothing. On the other hand, for their husbands, this would be a very handy piece of law to opt out of the marriage, and then go in for another.

Let me end by quoting from a reader who responded to the news that the government was going to introduce this provision. Writes Dr. Mitu Khurana from Delhi on the Economic Times website (June 14, 2010): “My husband threw me out because I could not give him sons. I have two daughters. After trying for four years to make my marriage work, for sake of my daughters, now I have initiated legal action against my husband. So has my marriage broken down irretrievably? Now my insistence not to take any more abuse, has it become a ground for my husband to take divorce and remarry to have sons, which he so badly desires? And what is the fault of my daughters in all this? Just that they were born daughters. That means now no mother should take the stand I took, and simply go ahead with female feticide.”
This is just one voice. There are many more. They need to be heard and heeded. Why is the government is such a hurry?

What's in a name?

The Hindu, Sunday Magazine, March 7, 2010

THE OTHER HALF

Last month, divorced women in India must have been startled to read a news item in a leading English language daily newspaper. It stated that the Bombay High Court had ruled that divorced women could not use their former husbands' surnames. The “ruling”, apparently, was in response to an appeal filed by a woman against a judgment in the Family Court in a case filed by her former husband. The judge had restrained the woman from using her former husband's name stating, “By using the ex-husband's name, or surname, there is always a possibility of people being misled that she is still the wife, when in fact she is not.”

The item caught my eye and I decided to check with a well-known lawyer whether there was any provision in law under which a court could give such a ruling. Did it in fact apply to all divorced women, as the story seemed to suggest, or was it just a judgment in a particular case? I was told that in fact the court had not given a “ruling” and that a single judge had merely upheld the judgment of the lower court in this particular matter. This did not mean that it applied to all divorced women. In fact, she pointed out, there could be no such ruling as people were entitled to take a name of their choice and could at anytime change their names simply by filing an affidavit.

Questioning a convention

The story, despite its inaccuracy, has triggered off a debate on whether women should change their names when they get married, and whether they should revert to their maiden names when they get divorced.

Last year, before the general election, actor Sanjay Dutt kicked off a similar controversy when he suggested that married women should adopt their husbands' surnames. He was clearly peeved that his sister, Congress MP Priya Dutt, continued to use her maiden name — which also established that her father was Sunil Dutt — instead of her married name. He was clearly not so worried about her violating a tradition as the political advantage she gained from maintaining her maiden name.

In India, not only are women automatically expected to adopt their husband's surname when they get married, but in some communities, as in Maharashtra, they are also expected to change their first names. As a result, once married, their identity changes completely. It is almost as if getting married also means wiping off your previous identity and completely subsuming yourself in one chosen by your husband and his family.

Politics of identity

Although the overwhelming majority of Indian women automatically follow the custom of adopting their husband's surname, increasingly some of them are asking why this should be so. What does the institution of marriage have to do with your name? Are you any less married if you adhere to the name you were given by your parents? Are you any less your husband's wife if your surname is that of your father? Is not love and understanding more important than unquestioned tradition? Should the choice not be left to the woman rather than being an imposition, one that she might not want?

Professional women, for instance, who marry after they have already established themselves, much prefer to stick to their maiden names. On the other hand, there are many women who marry young and get established in their professions after marriage. As a result, their professional identity is based on their married name, that is, if they have chosen to take their husband's surname. If such women get divorced, what sense does it make for them to revert to their maiden names? In other words, the issue is not so much whether women take their husband's surnames or not after marriage but that they should have the freedom to decide.

And why is it that the burden of name change is put on the shoulders of women alone? After women get married, if they choose or are compelled to adopt their husband's surname, they have to change all their names on their passports, bank accounts, driving licence, etc. It is not surprising then that only around two per cent of divorced women revert to their maiden names after divorce. This is not because they want to misuse their former position as being married to a particular person, or to appear to be married to him, but because it is just too much trouble. And in any case, they also want to remain connected to their children who have the same surname.

Perhaps in the long term, it would be simpler for women to hold on to their maiden names whether they marry or not, and whether they get divorced or remain married. This is not such a radical suggestion as it might sound. Even in very conservative societies, such as Iran for instance, women do not change their names when they get married.

Markers of belonging

In the past, the issue of surnames has often been subject of debate in many social movements. In the 1970s for instance, many young people who were part of the movement led by Jayaprakash Narayan, chose to drop their surnames because they felt that these identified them as belonging to a particular caste. As one of their principal struggles was against the institution of caste, they felt they should start the trend of dropping surnames altogether. When they got married, their names remained unchanged. Neither the man nor the woman had to worry about a surname. In South India in any case the issue of surnames often does not arise as people use initials.

Surnames are just an instrument for ascertaining family lineage in a patriarchal society. In modern societies, where marriages are registered and courts rule on divorces, why should the last name of a woman matter on issues of succession? Fortunately, some of the bureaucratic hurdles before married women maintaining their maiden names are now being removed and it is a little easier to get a passport, for instance, with your maiden name even if you are married. Schools in Maharashtra now accept the mother's name as the guardian of a child, something they did not do earlier where only the father's name could be entered.

Such changes in rules are important. But the controversy over surnames essentially illustrates the mindset that lays down that a woman's own identity must be submerged in that of her husband's once she marries. Women, married or unmarried, divorced or widowed, are equal human beings, with the same rights as men. Surely this should be reflected in the institution of marriage.

(To read the original, click on the link above)