Left in the lurch

Published : Apr 09, 2010 00:00 IST

Under the "separation of property" regime, wives have no right to assets not acquired in their names.-PARTH SANYAL

Under the "separation of property" regime, wives have no right to assets not acquired in their names.-PARTH SANYAL

It is a widely acknowledged fact that Indian women are not regarded as equal partners of their husbands. Neither law nor policy views their work within the home as productive or as work of any economic value. Their contribution towards the building up and maintenance of the household and their role in doing chores such as cooking and cleaning and in looking after children and caring for the elderly are all made invisible by the law. In rural and some urban areas, housework often includes collecting firewood and fetching water. In addition, in rural areas, plastering of walls, food processing, feeding and looking after animals add to the womans load.

Studies such as the Time Use studies carried out by the Central Statistical Organisation in 1998-1999 provide evidence of the enormous time spent by women in carrying out household activities. They reiterate the common experience that it is generally women who do the cooking and cleaning and taking care of children. Even women working outside the home bear the primary responsibility of looking after the house and caring for the children. Child care often requires a huge input of time, energy and supervision. Working women thus shoulder the double burden of both types of work. It has been pointed out that though the nature of the contribution differs between classes, with poor and working-class women putting in more direct physical labour, women of the middle and upper classes, who may have recourse to domestic help, nevertheless perform a range of activities to maintain the family or household in terms of supervision and responsibility (Maithreyi Krishanaraj note in a regional seminar on Separated women in Mumbai, August 2009).

Though women perform all these chores/activities in the house, none of the moveable assets and property that are acquired by the couple belongs to the wife unless it has been bought in her name. Even working women, because of their vulnerable or subordinate position in the house, often let their husbands and in-laws dictate how their salary should be spent typically, they spend their salaries on day-to-day household expenses while the husbands acquire assets in their name. All the different personal/family laws that govern us uniformly deny women any rights to property/assets that are not acquired in their name. Indian family laws thus follow what is known as the separation of property regime, barring the State of Goa, which is still governed by the old Portuguese family laws enshrined in the Civil Code of 1867.

Thus, if an Indian woman is separated or deserted even years after marriage, she is left almost asset-less while her husband walks away with all the property. It is not surprising, therefore, that most separated or deserted women, usually along with their children, are forced to live with members of their natal family, such as parents and brothers, and are financially dependent on them. Often, they are not welcome even there and live as outcasts in the family.

An in-depth survey of around 400 separated, deserted or divorced women done by the Economic Research Foundation, Delhi, in 2007-08 shows that only a minuscule number of them are able to live alone. In Goa, where Community of Property regime is in place, both spouses are equally entitled to marital assets. The problem is that in law and in fact the husband controls and deals with the assets though he can be stopped from alienating the marital home. The couple can also opt not to be governed by the Community of Property regime through a contract. An additional problem is that the wife does not get her moiety share of the property unless a divorce goes through, and this sometimes takes years. As a result most women settle for less than their share.

Several countries have given legal recognition to the unpaid work done by women in the household and practise a Community of Property regime when a marriage breaks down. This ensures that women at least have somewhat equal rights in the property acquired by the couple if the marriage breaks down, whether or not the asset or property has been bought in the womans name. The law governing division of marital property in Ontario, Canada, explicitly states its legislative purpose in Section 4(7) of the Family Law Act. It states, 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....

The Domestic Violence Act, which was enacted in 2005, does give right of residence to a woman facing violence within the home. It recognises a womans right to reside in the shared household with her husband/partner while a dispute is on. It also provides that if an abused woman seeks alternative accommodation, her husband/partner must pay for such accommodation and her maintenance.

Several petitions are being filed under this Act by wives for injunctions against being thrown out of the marital home or seeking alternative accommodation. Even prior to this Act, suits for injunctions by wives against being dispossessed and applications seeking a separate residence under the Hindu Adoption and Maintenance Act, and under the various provisions relating to maintenance in different personal laws, were being filed, though only a limited number was successful.

Even under the Domestic Violence Act, the Supreme Court, in the well-known case Batra vs Batra, denied a woman the right to reside in her marital home as the home was in her mother-in-laws name. The right under the Domestic Violence Act, moreover, is a right of occupation only and not of ownership of the marital home. A woman can only access this right in situations of violence, whereas she should be able to demand her rights in recognition of the contribution to the home and as an equal partner.

In India, the only financial relief that a separated or deserted woman can get from her husband is a relief of maintenance. Maintenance has, however, proved to be a very uncertain entitlement not only because women find it difficult to access the courts for a variety of reasons but also because of the length of time it takes to obtain an order from the court. The amount of maintenance awarded to them is also often extremely low and akin to a token sum. This is despite the fact that the Supreme Court and a few High Courts have laid down certain principles to govern the award of maintenance. The Delhi High Court has, for instance, held that maintenance should be awarded to a wife so that she can live according to the lifestyle she has been used to and according to the status of her husband.

However, these principles are not followed in letter or in spirit as the trial and other courts routinely award dismal maintenance allowances that do not even meet the survival needs of the woman and her children. What is disheartening is that none of the judgments refers to, or seeks to redress, the economic disadvantages that women typically suffer in a marriage, such as the loss of earning capacity and the loss of career opportunities. It is therefore not surprising that even women who face domestic violence do not want a divorce as they realise that they have no means of survival once they are alone.

The law of maintenance also places the unjustifiable burden of proving the husbands income upon the woman seeking maintenance. This is often impossible as the woman does not have the necessary documents, which are usually in the exclusive possession of the husband. Also, when the husband is self-employed or is a casual worker, there are no papers to show his earnings and income cannot be proved except through oral and sometimes documentary evidence of lifestyle. Husbands also resort to a number of devices to conceal their incomes.

Even when maintenance is awarded, women find it difficult to get it regularly or at all. Many of the laws governing maintenance also deny maintenance to women who have supposedly been at fault. An example of this is Section 125 of the Criminal Procedure Code, which deals with maintenance for women of all communities except divorced Muslim women. A proviso to this section states that the magistrate can refuse maintenance to a woman who turns down her husbands offer to maintain her on condition that she lives with him. Sub-section 4 of Section 125 also states that no wife shall be entitled to receive maintenance from her husband if she is living in adultery or if, without sufficient reason, she refuses to live with him. An order of maintenance can also be cancelled on these grounds. It has been reported that recently a Supreme Court bench headed by Justice V.S. Sirpurkar ruled that the law of the land did not allow maintenance in cases where the wife deserted her husband, children and the matrimonial home. Though in law a woman is entitled to the dowry and stridhan given to her, in actual fact this entitlement does not amount to much.

Dowry often consists of consumer goods that are of little value if and when they are retrieved. Money spent on weddings and gifts of cash and clothing and other items to the in-laws are not retrievable and are often difficult to prove, as is jewellery that constitutes the womans stridhan. Even if this were not so, the retrieval of dowry/stridhan does not provide the means of survival to a woman and any child/children with her.

The giving of dowry also almost inevitably results in the denial of inheritance rights to daughters. The Hindu Succession Act was amended to allow a daughter an equal right to inheritance in parental property, including ancestral property. However several cases coming before womens organisations and groups show that girls are often under pressure to relinquish their right in parental property in favour of their male relatives, especially brothers. The right to will is also often misused to disinherit daughters. The All India Democratic Womens Association (AIDWA) and other womens organisations and groups have demanded that the right to will should be curbed to ensure that daughters are not discriminated against.

The 2001 Census showed that the number of separated/divorced/widowed women constituted 7.38 per cent of the female population. This does not seem to capture adequately the growing number of separated and deserted women. More data must be collected about the economic status of these women and their children. Meanwhile, married women and those in live-in relationships need a law that recognises them as equal partners with their spouses. This law should provide that when a marriage or live-in relationship breaks down for any reason whatsoever, the wife is considered a joint and equal owner of the assets acquired during the marriage/relationship. A wife should, however, retain control over her assets during the time that the spouses live together. Such a law could further provide that the marital home or an equivalent shelter will be given to her in appropriate cases, particularly if the children live with her. Property that has been inherited by either party, or gifts given to them, could be exempted from this law.

The laws relating to the maintenance of the wife/partner also need strengthening to ensure that the disadvantages suffered by a wife/partner during marriage in terms of loss of earning capacity do not plunge her into poverty or a drastically reduced standard of living and that her work in the house and in looking after children and the elderly is given due weightage. Discriminatory sections in these laws denying maintenance to wives on the basis of their bad and supposedly immoral conduct should be deleted. Even these changes may not solve the issue for all Indian women. State policies will be needed to address the situation of poor and destitute, separated and deserted women who own no property and have inadequate or no means of subsistence.

Kirti Singh is a senior advocate of the Supreme Court and former member, Law Commission of India. She is also the legal convener of AIDWA.

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