Monday, 2 September 2013
A house divided
On compensation, the new Marriage Laws (Amendment) Bill must be fine tuned
On August 26, the Rajya Sabha passed the Marriages Law (Amendment) Bill to facilitate divorce among Hindus. It will now go to the Lok Sabha. The bill promises easier divorce, but on compensation for the wife, it fails to take account of important complexities.
The bill allows divorce on grounds of irretrievable breakdown, provided the spouses have lived separately for at least three years and their differences are irreconcilable. Divorce can be granted not only on a joint petition by both spouses but also on a single party petition. The bill thus allows people trapped in unhappy marriages to part without years of litigation. There have been cases that have dragged on for over 15 years because one party refuses to cooperate.
For many years, easy divorce was opposed by both conservatives and liberals. The former argued that it would erode a key social institution, and the latter argued that it would harm women, since men would walk out of marriages and wives would have nowhere to go. The latter argument is given weight in the bill — it includes compensation in the form of a share in some types of the man's property. The court can also deny divorce to the man if the woman proves she will face dire financial hardship. While easier divorce is better for both parties, compared with an unhappy or violent marriage, on compensation, the bill has several anomalies.
It allows the court, on the wife's petition, to order the husband to make compensation "which shall include a share in his share of the immovable property (other than inherited or inheritable immovable property) and such amount by way of share in movable property, if any, towards the settlement of her claim, as the court may deem just and equitable, and while determining such compensation the court shall take into account the value of inherited or inheritable property of the husband." (Section 28D)
This means that in immovable property (say land or house), the wife has no claims in the part that is inherited or "inheritable", but she can get a share of that which is self-acquired or received as a gift. Moreover, the court, while fixing compensation, will take into account the value of all of the man's property, including that which is inherited or inheritable.
Globally, laws relating to property division on divorce are diverse and context specific. This bill ignores many complexities of the Indian context and fails to protect various categories of women. First, in protecting the interests of the divorced wife, the bill can undercut those of the man's female relatives. For instance, in his self-acquired land, the mother and daughter, as Class I heirs, have claims intestate (that is, if he leaves no will). A compensatory share for the divorced wife will diminish the shares of these female heirs. Moreover their property rights are established by Hindu inheritance law and not subject to
a judge's discretion. The bill takes no cognisance of this.
The dilemma — that a law which gives a divorced wife a share in a man's immovable property can disadvantage his female heirs — has no easy solution. An important principle in giving a divorced wife
a share of a man's property lies in recognising that she contributes substantial labour (usually unpaid) to family upkeep. Hence, she helps build the home's assets even when not contributing financially. But a mother and adult daughter living in the household may also provide unpaid labour for family upkeep, so their claims to the man's assets on these grounds are similar. One possible way forward is to make only property acquired after marriage subject to consideration on divorce, as many countries do.
Second, it is unclear what the bill means by a man's "inheritable" property. Is it property he can inherit or property his heirs can inherit from him? Under Hindu inheritance law, all property is subject to the right to will, including a man's notional share in joint family property. And it cannot be predicted whom a will may favour. If by "inheritable" property, the bill means the husband's share in joint family property it needs to state this.
Third, the bill ignores the duration of marriage. Some regions consider marriages of three years (New Zealand) or five years (Ontario) as short-duration and restrict property shares in such cases.
Fourth, the bill is silent on the woman's economic situation unless she faces financial hardship. This is inadequate. On the one hand, where women are well off, the financial means of both spouses should be considered in determining compensation. On the other hand, the bill must also recognise that many households own little property. This is where real economic hardship lies. My work on domestic violence shows that its incidence is much higher in households with no property, or where the woman herself owns none. She thus has no exit option from a violent marriage. Here, the state needs to provide not only effective legal aid to cover divorce proceedings, but also compensation (including subsidised housing) for women with few means, if the husband is financially unable to compensate.
The writer is professor of development economics and environment, University of Manchester,and author of
http://www.indianexpress.com/news/a-house-divided/1163180/0
On August 26, the Rajya Sabha passed the Marriages Law (Amendment) Bill to facilitate divorce among Hindus. It will now go to the Lok Sabha. The bill promises easier divorce, but on compensation for the wife, it fails to take account of important complexities.
The bill allows divorce on grounds of irretrievable breakdown, provided the spouses have lived separately for at least three years and their differences are irreconcilable. Divorce can be granted not only on a joint petition by both spouses but also on a single party petition. The bill thus allows people trapped in unhappy marriages to part without years of litigation. There have been cases that have dragged on for over 15 years because one party refuses to cooperate.
For many years, easy divorce was opposed by both conservatives and liberals. The former argued that it would erode a key social institution, and the latter argued that it would harm women, since men would walk out of marriages and wives would have nowhere to go. The latter argument is given weight in the bill — it includes compensation in the form of a share in some types of the man's property. The court can also deny divorce to the man if the woman proves she will face dire financial hardship. While easier divorce is better for both parties, compared with an unhappy or violent marriage, on compensation, the bill has several anomalies.
It allows the court, on the wife's petition, to order the husband to make compensation "which shall include a share in his share of the immovable property (other than inherited or inheritable immovable property) and such amount by way of share in movable property, if any, towards the settlement of her claim, as the court may deem just and equitable, and while determining such compensation the court shall take into account the value of inherited or inheritable property of the husband." (Section 28D)
This means that in immovable property (say land or house), the wife has no claims in the part that is inherited or "inheritable", but she can get a share of that which is self-acquired or received as a gift. Moreover, the court, while fixing compensation, will take into account the value of all of the man's property, including that which is inherited or inheritable.
Globally, laws relating to property division on divorce are diverse and context specific. This bill ignores many complexities of the Indian context and fails to protect various categories of women. First, in protecting the interests of the divorced wife, the bill can undercut those of the man's female relatives. For instance, in his self-acquired land, the mother and daughter, as Class I heirs, have claims intestate (that is, if he leaves no will). A compensatory share for the divorced wife will diminish the shares of these female heirs. Moreover their property rights are established by Hindu inheritance law and not subject to
a judge's discretion. The bill takes no cognisance of this.
The dilemma — that a law which gives a divorced wife a share in a man's immovable property can disadvantage his female heirs — has no easy solution. An important principle in giving a divorced wife
a share of a man's property lies in recognising that she contributes substantial labour (usually unpaid) to family upkeep. Hence, she helps build the home's assets even when not contributing financially. But a mother and adult daughter living in the household may also provide unpaid labour for family upkeep, so their claims to the man's assets on these grounds are similar. One possible way forward is to make only property acquired after marriage subject to consideration on divorce, as many countries do.
Second, it is unclear what the bill means by a man's "inheritable" property. Is it property he can inherit or property his heirs can inherit from him? Under Hindu inheritance law, all property is subject to the right to will, including a man's notional share in joint family property. And it cannot be predicted whom a will may favour. If by "inheritable" property, the bill means the husband's share in joint family property it needs to state this.
Third, the bill ignores the duration of marriage. Some regions consider marriages of three years (New Zealand) or five years (Ontario) as short-duration and restrict property shares in such cases.
Fourth, the bill is silent on the woman's economic situation unless she faces financial hardship. This is inadequate. On the one hand, where women are well off, the financial means of both spouses should be considered in determining compensation. On the other hand, the bill must also recognise that many households own little property. This is where real economic hardship lies. My work on domestic violence shows that its incidence is much higher in households with no property, or where the woman herself owns none. She thus has no exit option from a violent marriage. Here, the state needs to provide not only effective legal aid to cover divorce proceedings, but also compensation (including subsidised housing) for women with few means, if the husband is financially unable to compensate.
The writer is professor of development economics and environment, University of Manchester,and author of
http://www.indianexpress.com/news/a-house-divided/1163180/0
For equal laws
THE need for progressive reform in laws in general and in laws relating
to women in particular has been on the agenda of women’s groups and
organisations for long. In the past three decades, major amendments have
been pushed through in existing laws and new laws for women, such as
the Protection of Women Against Domestic Violence Act, 2005, have also
emerged. At the same time, in the area of family and personal laws, it
is an acknowledged fact that none of them gives women the right to
marital property.
While women’s groups underpin their understanding of reform and change in the framework of more equality, others view reform from the narrow prism of imposing a uniform approach that apparently stems from sectarian and conservative motives. The central and overriding concern of women’s organisations such as the All India Democratic Women’s Association (AIDWA) was the question of equality, said Kirti Singh, senior advocate in the Supreme Court, and this included equality within their communities. In her experience, women’s groups, including AIDWA, have had to encounter resistance from multiple levels of patriarchy across communities.
The demand for a Uniform Civil Code (UCC) by certain political parties was rooted in the need for equality as seen from a certain standpoint. The approach to the UCC, said Kirti Singh, began getting defined in very difficult, unequal and political terms by parties like the Bharatiya Janata Party (BJP), which seemed to suggest that Hindu laws were the ideal laws and that all other laws in some sense should be like Hindu laws. Both the BJP and the Congress had opportunistic views, one in support of the UCC and the other in opposition to it, with an eye on votes.
“We distanced ourselves from these groups, the BJP’s position on the UCC as well as from sections within the Muslim communities who were against any reform from within and wrongly argued that it was against the tenets of their religion. We emphasised that we wanted equality within different communities and the ending of discrimination against women within the family too,” she said.
The experience of women’s groups during the Shah Bano agitation showed that women within the Muslim community were also keen for reform of the law, which patriarchal elements within the community opposed in the name of religion. In the 1990s, several Muslim reform groups began advocating reform within Muslim Personal Law, and Kirti Singh said women’s groups, including AIDWA, pushed for a two-pronged strategy to bring about common, equal laws in areas such as matrimonial property and registration of marriages. It became apparent that the sections opposing reform within religions also articulated from time to time a narrow and biased interpretation of religion as well.
http://www.frontline.in/cover-story/for-equal-laws/article5037793.ece
While women’s groups underpin their understanding of reform and change in the framework of more equality, others view reform from the narrow prism of imposing a uniform approach that apparently stems from sectarian and conservative motives. The central and overriding concern of women’s organisations such as the All India Democratic Women’s Association (AIDWA) was the question of equality, said Kirti Singh, senior advocate in the Supreme Court, and this included equality within their communities. In her experience, women’s groups, including AIDWA, have had to encounter resistance from multiple levels of patriarchy across communities.
The demand for a Uniform Civil Code (UCC) by certain political parties was rooted in the need for equality as seen from a certain standpoint. The approach to the UCC, said Kirti Singh, began getting defined in very difficult, unequal and political terms by parties like the Bharatiya Janata Party (BJP), which seemed to suggest that Hindu laws were the ideal laws and that all other laws in some sense should be like Hindu laws. Both the BJP and the Congress had opportunistic views, one in support of the UCC and the other in opposition to it, with an eye on votes.
“We distanced ourselves from these groups, the BJP’s position on the UCC as well as from sections within the Muslim communities who were against any reform from within and wrongly argued that it was against the tenets of their religion. We emphasised that we wanted equality within different communities and the ending of discrimination against women within the family too,” she said.
The experience of women’s groups during the Shah Bano agitation showed that women within the Muslim community were also keen for reform of the law, which patriarchal elements within the community opposed in the name of religion. In the 1990s, several Muslim reform groups began advocating reform within Muslim Personal Law, and Kirti Singh said women’s groups, including AIDWA, pushed for a two-pronged strategy to bring about common, equal laws in areas such as matrimonial property and registration of marriages. It became apparent that the sections opposing reform within religions also articulated from time to time a narrow and biased interpretation of religion as well.
http://www.frontline.in/cover-story/for-equal-laws/article5037793.ece
No anticipatory bail to Prince Tuli, Parents relieved
Nagpur News: A sessions court on Saturday rejected the anticipatory
bail application of Prince Tuli but granted him protection from arrest
for two weeks for approaching the Bombay High Court.
Mookhey had accused Tulli, a resident of Nagpur, of cruelty, criminal breach of trust, and unnatural sex in a complaint filed with Amboli Police on July 3. Tuli’s parents and sister were also booked.
The court, however, granted anticipatory bail to Tuli’s parents and sister, after their lawyer managed to prove that they had cooperated with the investigation.
The court transferred the investigation to the Bandra Police, after Mookhey approached the police commissioner alleging the investigating officer from Amboli Police Station was favouring the accused, as his family home was in Nagpur.
Mookhey had told the court that some videos of the couple was in Tuli’s possession, and expressed apprehension that he might make those public.
Mookhey’s counsel also referred to a second FIR that Mookhey filed against Tuli on August 18, citing a newspaper interview in which he allegedly ‘defamed’ her.
http://www.nagpurtoday.in/no-anticipatory-bail-to-prince-tuli-parents-relieved/
Mookhey had accused Tulli, a resident of Nagpur, of cruelty, criminal breach of trust, and unnatural sex in a complaint filed with Amboli Police on July 3. Tuli’s parents and sister were also booked.
The court, however, granted anticipatory bail to Tuli’s parents and sister, after their lawyer managed to prove that they had cooperated with the investigation.
The court transferred the investigation to the Bandra Police, after Mookhey approached the police commissioner alleging the investigating officer from Amboli Police Station was favouring the accused, as his family home was in Nagpur.
Mookhey had told the court that some videos of the couple was in Tuli’s possession, and expressed apprehension that he might make those public.
Mookhey’s counsel also referred to a second FIR that Mookhey filed against Tuli on August 18, citing a newspaper interview in which he allegedly ‘defamed’ her.
http://www.nagpurtoday.in/no-anticipatory-bail-to-prince-tuli-parents-relieved/
'Amended Marriage Laws Bill 2010 will harm interest of husbands'
NAGPUR: Not happy with Marriage Laws (Amendment) Bill 2010 tabled in Parliament on August 26, men's rights activist Rajesh Vakharia
of 'Save Indian Family Foundation', Nagpur chapter, says that the law
is against the principles of natural justice. "Statements in support of
this law were grossly misleading and downright incorrect," says
Vakharia.
He feels that only lawyers will welcome such a law which gives power to law enforcement systems. "When the government planned to amend Criminal Procedure Code to reduce arrests under Section 498A to stop its misuse, lawyers protested against this move claiming they will not be able to make big money from bail fees from men and their families," says Vakharia.
Vakharia's view is that if the bill is passed by Parliament, then husbands will lose their hard-earned property if their marriage breaks. They will face false cases under Section 498A, Domestic Violence Act, Section 125 CrPC, etc. and get extorted further.
They may also lose custody of their children to their estranged wife and will become bankrupt if their wife decides to leave or if they are unhappy in the marriage.
"All I want is that the law minister should call for an open debate on the pros and cons of this law," he says. http://timesofindia.indiatimes.com/india/Amended-Marriage-Laws-Bill-2010-will-harm-interest-of-husbands/articleshow/22228527.cms
He feels that only lawyers will welcome such a law which gives power to law enforcement systems. "When the government planned to amend Criminal Procedure Code to reduce arrests under Section 498A to stop its misuse, lawyers protested against this move claiming they will not be able to make big money from bail fees from men and their families," says Vakharia.
Vakharia's view is that if the bill is passed by Parliament, then husbands will lose their hard-earned property if their marriage breaks. They will face false cases under Section 498A, Domestic Violence Act, Section 125 CrPC, etc. and get extorted further.
They may also lose custody of their children to their estranged wife and will become bankrupt if their wife decides to leave or if they are unhappy in the marriage.
"All I want is that the law minister should call for an open debate on the pros and cons of this law," he says. http://timesofindia.indiatimes.com/india/Amended-Marriage-Laws-Bill-2010-will-harm-interest-of-husbands/articleshow/22228527.cms
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