Joyous divorce: Time for pre-nuptial arrangements?
The UPA Government’s determination to give divorced women a share in
the inherited and inheritable property of their ex-husbands is a direct
and blatant assault on the Hindu family and the sanctity of marriage, as
it incentivises divorce by giving women a sense of false empowerment
that comes from unearned wealth appropriated by unjust means.
The move is tantamount to daylight robbery of old parents and
grandparents of a man whose wife may wish to leave him for any reason
(including desire to marry another man), as property earned and owned by
parents and grandparents can – instead of supporting them in their old
age and retirement – be literally extorted by the courts and given to
conniving young women after merely a month of marriage.
The move is faulty on many grounds and deserves robust response from
society and all political parties. To begin with, since it is aimed at
the Hindu community alone, it deserves to be challenged on grounds of
religious assault and discrimination, which violates the basic tenets of
the Indian Constitution. Secondly, it discriminates against the male
gender by assuming that all divorce stems from the fault of men, another
violation of Constitutional provisions. Thirdly, it opens a third party
– parents and grandparents – to expropriation of their wealth when they
are not a party to the divorce.
All these moves are bad in law and bad in intent. A disturbing aspect
of the Cabinet decision is that it legitimises the mindless prattle of
rootless women activists to destroy the institution of marriage, which
is sacred in Hindu tradition, and reduces it to a contract in which one
party benefits unduly if it departs. This, combined with a peculiar
judicial ‘fashion’ (since it does not rest on law) to treat live-in
relationships at par with marriage, has completely compromised the basic
stability and integrity sanctity of the Hindu family.
Inheriting the ancestral property by divorced women
If an extra-legal tie like a live-in relationship, is itself the result
of women’s empowerment and quest for freedom from social norms, is
treated at par with marriage because a judge feels it is right, on what
basis does the judiciary refuse to recognise a socially entrenched
institution like the Khap Panchayat? Why should the rulings of Khap
Panchayats – either against inter-caste or intra-gotra marriages or
female foeticide or dowry – be deemed illegal and unworthy of judicial
respect?
If Khap Panchayats are not recognised in law, neither are live-in
relationships. Alternately, if live-in relations are akin to marriage,
Khap Panchayats are akin to courts of law! Here it bears mentioning that
the Supreme Court erred grievously when it ruled that illegitimate
children have a right to ancestral property. This is morally wrong and
needs to be undone; such children have a right to parental property
alone.
Moreover, since a man cannot demand that his father give him a share
of his (father’s) wealth or property while the father is still alive,
how can this allegedly inheritable property be given to a wife quitting
the marriage? It is quite insane. If a man intends to bequeath his
property to someone else, can the courts take that right away?
Marriage laws to be made more women-friendly
The foundational issue that needs resolving here is the issue of
women’s equality. Are female citizens of India equal to males, as
envisaged by the Constitution, or are they incurable dependants who can
never support themselves and whose upkeep, once transferred from the
father/brother on marriage, must never revert to the woman herself or to
her natal family. Hence the punitive provisions against (Hindu)
husbands, to the extent of bleeding his entire family.
Ironically, this move is the exact reverse of the Muslim Women’s
(Protection of Rights on Divorce) Act 1986 – by a Congress Government –
which pushed the responsibility for destitute divorced women back on
their natal families, even if they were in no position to assume such a
burden, and absolved rich husbands of the duty to pay alimony to their
abandoned wives.
Several issues are involved here, and deserve careful reasoning, as
the measure will most impact middle classes that struggle hard to earn
modest affluence, mostly in the form of a dwelling and some savings.
First, the Government’s move to make divorce easier by introducing the
ground of irretrievable breakdown as a reason to exit a marriage is
welcome, but is negated by setting a three year deadline for ending
marriages, when six months should be adequate. This offers both parties
the opportunity to make a quick break and avoid the bitterness that
accumulates through prolonged judicial proceedings.
Then, since the Government now believes that marriage is a contract,
contract-style rules should be applied to a marriage. Since it will now
be only between the two persons, who alone are responsible for its
success or failure, third parties cannot be cited as reasons for
breakdown of the marriage, and certainly their property/assets cannot be
extracted by a departing wife. It bears mentioning that by giving
judges the discretion to decide what compensation a divorcing wife is
due from the wealth of her in-laws, the Government has opened a door for
rampant judicial corruption. This should be closed without further ado.
Then, as in the case of contracts, length of tenure should be a
deciding factor in settling the issue of compensation, if any. Here,
first and foremost, a woman must be fully entitled to get back the
shridhan
she received at the time of marriage, and there can be no negotiation
on this score. Yet here – in a classic instance of the right hand not
knowing what the left is doing – the Government and the Judiciary have
been stressing upon holding both sides guilty in cases of dowry
harassment! This absurd logic has inhibited parents of girls from making
a list of gifts given to girls at the time of marriage, with the result
that they have no legal recourse when the marriage goes sour and they
are thrown out of their matrimonial homes when their parents cannot
fulfill unreasonable demands. Clearly, ‘progressive thinking’ works
against weak women and empowers the undeserving.
To return to the issue of compensation, it must be related to the
length of a marriage, which is a standard practice in the West (from
where our ‘progressives’ derive their inspiration) where pre-nuptial
contracts determine the compensation due to a women according to the
length a marriage survives. There is usually nothing for a marriage that
does not last five years. Moreover, any sharing of assets must be based
on property/wealth earned or created by the couple during the duration
of the marriage only, and cannot legitimately extend to cover
property/wealth created by either before marriage.
If pre-marital assets are to be brought into the division, then this
must be gender-neutral and a man married to a richer woman must get
equal access to her and her family’s wealth. Then, while the rights of
children, if any, are undeniable, there is no case for alimony for
working women. The courts are aware that there have been several cases
of affluent working women giving up their jobs when the marriage broke
down in order to claim robust alimony as the price of consenting to
divorce. This trend will be reinforced under the present proposed
changes in divorce law, which will encourage women to take punitive
action against their in-laws on the slightest pretext.
It is noteworthy that the rights of children to inherit ancestral
property is sacrosanct in Hindu law; what the new law proposes is the
deprive parents of a divorced man while they are still alive. It is
pertinent that in many countries, such as Britain, all inherited
property is excluded from divorce settlements. Regarding ‘inheritable’
property, it is pertinent that parents may need their assets for the
marriage of other children, to support themselves, or pay for costly
medical treatment of themselves or some member of the family.
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Extorting such property amounts to a virtual death sentence for aged
parents and grandparents as a women unwilling to bear the responsibility
of running a home and a marriage may find divorce an easy route to
financial betterment. There remains the issue of remarriage of either or
both parties. If a marriage breaks down after a few years and the man
remarries, he will have another wife and children to look after, and
this marriage may last the rest of his life. A wife of a few years can
clearly not walk away with the bulk of his income and estate.
If the woman takes a handsome settlement, wins child custody and
child support, and remarries, can the law ensure that the child of that
marriage alone benefits from the settlement, and that the new husband
and family does not take a share of it? The proposed legislation is an
oxymoron; the sooner Parliament nixes it, the better. There is, however,
an urgent case for legalising pre-nuptial agreements.
http://www.niticentral.com/2013/07/22/joyous-divorce-time-for-pre-nuptial-arrangements-107812.html
