Alone in a crowd

Print edition : September 06, 2013

At a camp in Kozhikode in September 2012 to hear men "harassed by women" and to discuss amendments in "women-centric" laws such as the Protection of Women from Domestic Violence Act. It is an irony that sections of society today, using the rare exception to make their case, continue to claim that women often misuse laws. Photo: S. Ramesh Kurup

Kirti Singh’s book shines the spotlight on the lot of women who are divorced or separated.

IN recent times, there has been a steady demand for a relook at laws governing the rights of women, especially in the context of the alleged misuse of some of them. Despite repeated rebuttals and assertions by women’s organisations and those familiar with the violence women experience, the demand for the dilution of laws relating to women continues to be reiterated.

Does the mere presence of a law translate into the delivery of justice? Are laws by themselves adequate to redress questions of inequality and discrimination? Or is there a need to look closely at the justice delivery system itself in order to understand that while laws do not discriminate against women the way they are interpreted often end up with results that may go against the principles of natural justice? Do the system and the state need to be more responsive in terms of providing entitlements such as social security so that divorced women or women who are separated and their children can live decently? Kirti Singh’s book Separated and Divorced Women in India: Economic Rights and Entitlements, divided into eight chapters, looks at these questions and more.

As an office-bearer of the All India Democratic Women’s Association, Kirti Singh, a senior lawyer in the Supreme Court and a former member of the Law Commission of India, has spent a lifetime dealing hands on with multifarious cases involving the violation of women’s rights. It would, therefore, be appropriate to agree with her when she says that “despite the many… laws relating to maintenance, it would not be incorrect to say that in actuality, this right/remedy does not provide women, from any community, adequate financial support to be able to live in a manner similar to the manner in which they had lived during the subsistence of marriage”. This, she says, is mainly because of the manner in which courts have in general enforced this right and also because of the procedural obstacles that women face in accessing it. The length of time that courts take to make awards of maintenance and the costs are other obstacles that women face, according to her.

The book is based on a review of existing literature and studies and on a survey conducted among 405-odd women, all living in major cities in the country, and all of whom are separated or divorced or have been deserted by their husbands. To detail their myriad experiences, the survey looked at the economic status of the women, how they lived, where they lived, and how they dealt with the police and the courts. The objective of the survey was clearly not to just document but use the data to come up with important and hitherto ignored policy measures that needed to be taken to deal with the issues.

The aim of the survey, according to Kirti Singh, was to “lay bare the lives of these women and suggest reforms in law and policy to address these critical issues facing separated/divorced women in India”. A significant finding of the study was that the options for women, whether Hindu or Muslim, were extremely limited on separation or divorce. Therefore, contrary to perception, it is not the case that things are better off in any particular community, religion, caste or tribe. The survey confined itself to women living in urban areas. While this may be construed as a methodological limitation, what it illustrates is that when even city-bred women or rural migrants settled in cities have a harrowing time accessing justice for themselves, the plight of the woman in rural India can only be imagined.

The book attempts to meticulously document the experiences of women who are separated or were deserted and look at the manner in which they live with their children and at their rights and entitlements in their marital homes. There are some interesting but not surprising findings.

Right to maintenance

Under Indian laws, Kirti Singh states in a matter-of-fact way, a wife’s economic entitlements on separation or divorce are extremely limited. The only legal right that a woman has is the right to maintenance from her spouse. Under most laws, personal and civil, a wife is entitled to ask for maintenance as an ancillary relief in a petition for divorce, judicial separation or restitution of conjugal rights. There are general laws too under which women from all communities can claim maintenance.

But despite the plethora of laws, including the Protection of Women from Domestic Violence Act enacted in 2005, which gives women an explicit right to residence in their marital homes and allows them to ask for injunctions to stop their spouses from evicting them, there is practically no law or remedy that provides women a decent source or means of financial support so that they can live in a manner similar to how they lived during the subsistence of marriage.

Wake-up call

It is therefore an irony that sections of society today, using the rare exception to make their case, continue to claim that women often misuse laws. It is equally tragic that sections within the government and the judiciary, too, have often made pronouncements that have sent the wrong signal and have been regressive on the whole. The book is essentially a wake-up call to all those who mistakenly believe that the situation of the majority of women in the country has improved along with the improved rates of economic growth. It is a wake-up call to the complacent satraps in government who believe that announcing ill-paid schemes, especially during an election year, ostensibly for women’s empowerment under various livelihood programmes without any guarantees of social security and a decent living wage is a solution to the problems.

No Indian law or government policy, Kirti Singh says, views the work done by women in their marital homes as productive with economic value. The non-recognition of household and “care” work, which are transformed by law into “self-sacrifice”, further devalues her status, guaranteeing her no rights in the marital home.

The fact is that barring the few who actually inherit property or a substantial amount of money and those few who, with the benefits of education, have managed to secure employment that gives them financial security, Indian women continue to be dependent on the dole handed to them either by their parents or by their husbands.

Indian family laws, barring those in effect in Goa (which is still governed by the old Portuguese family laws enshrined in the Civil Code of 1897), Kirti Singh explains, are governed by the “Separation of Property Regime”, where the husband is the owner of his property and the wife is the owner of her property as they were prior to the marriage. The party in whose name property is bought during the subsistence of the marriage becomes the natural owner of the asset, and in most cases it is willy-nilly the husband.

Even in the case of Goa, which has the “Community of Property” regime and where both spouses are equally entitled to marital assets, it is the husband who controls and deals with the assets. The wife does not get her moiety (half of something) share of the property unless a divorce is final, so in effect women settle for far less than their share in most cases. Kirti Singh points out that there are countries where unpaid work is actually given legal recognition. She cites the case of Ontario, Canada, where the law governing division of marital property (Section 4(7) of the Family Law Act) states that “the purpose of this section is to recognise that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship, there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalisation of the net family properties”.

Despite 66 years of independence, lawmakers in India are still unsure whether housework and care work contribute socially and economically and whether those who are engaged in such activities as unpaid labour deserve to be recompensed. In fact at some stage, the Ministry of Women and Child Development made a half-baked suggestion that women should be compensated monetarily for the work they did. The idea, which was not fleshed out in the form of a legal entitlement, naturally came to nought.

In general, as has been observed by those who are familiar with the situation of women in the country and which has been reflected in the book as well, in the majority of cases women are forced to accept the circumstances handed to them, which may include humiliating and demeaning conditions of existence. Once a woman separates from her husband, there is a “sharp plunge in her status and standard of living”, says Kirti Singh. When women do manage to gain access to courts, the length of time and the costs involved act as impediments that negate the very raison d’etre of seeking legal recourse.

Not enough courts

To add to all this, Kirti Singh says, there are not enough courts dealing with family law cases. The time taken to travel to a court often results in women losing out on daily wages. And there is no system in place to recompense them for what is actually an outcome of the sheer insensitivity, inadequacy and incompetence of the state machinery to deal with the challenges women face. Many do not leave violent marriages for fear of being unable to survive on their own. All these issues are well known to the government.

In a country where many people are dependent on government largesse in the form of welfare programmes, the role of the state cannot be underscored enough. This is also notwithstanding the government’s zeal to rope in the private sector in almost every area. It is another matter whether the private sector can deliver in the area of justice.

Under the present system, the survey found that women went through tiers of litigation that could last anywhere between three to 20 years. In a large number of cases, Kirti Singh writes, even where maintenance was awarded by courts, women often did not receive it and abandoned their cases midway in sheer frustration.

Many did not know how much their husbands earned. And several men obfuscated their sources of income to evade payment of maintenance. And many a time, there were judicial pronouncements that linked the amount or the guarantee of maintenance to the conduct of the wife.

The survey and the study based on it recommend that divorce procedures need to be made more sensitive, with the institution of special enforcement agencies to recover maintenance from erring husbands and partners and, most important, courts and the justice system need to be more accessible. Maintenance awards by courts need to ensure that a wife or a partner had a right to immovable assets such as house and land and movable assets, too, such as household items and savings that the parties may have accumulated during the period they stayed together, irrespective of in whose name the item or property was bought.

Any proposal or law dealing with division of marital property will have to involve a discussion on the nature of the assets that should form a part of community of property, says Kirti Singh.

The problem is that even as the existing social security provisions and welfare schemes for women are extremely minimalistic and delinked from the price index, destitute and divorced women and women who are separated seldom come under the purview of any serious government programme. Government review reports themselves admit that pension amounts are pathetic, but without pressure from people or political groups, the government seldom thinks of making significant increases in pension amounts. The fact that the government continues to resist the demand by all central trade unions that the statutory minimum wage should be made Rs.10,000 is a grim pointer to how little it is willing to do for those who need it the most.

No recognition

According to Census 2001, there are 34.3 million widows and 2.34 million divorced or separated women in the country. And while there is some recognition of widows, some of whom now constitute a political constituency of sorts in some States, there is no recognition of other categories of single women. Government schemes continue to be half-baked and half-hearted, directed as they are towards providing stopgap measures instead of anything cogent, well-thought-out and systematic. Kirti Singh’s survey-based book shines the spotlight on this neglected constituency of women.