Marriage Laws Amendment - Arguments in Media

Recently there has been a spate of discussions in the media on the upcoming Irretrievable Breakdown of Marriage Law (IrBM) (Marriage Laws Amendment). Some important highlights of the proposed bill are –

1. Divorce can now be filed as a ‘No-fault Divorce’ stating that marriage has broken down irretrievably.

2. Husbands do not have the right to oppose the divorce petition filed by their wives, whereas the wives can oppose the divorce petition filed by the husbands. Hence, the irretrievable break down of marriage can only be claimed by a wife and not the husband as husband’s petition can be challenged by the wife.

3. Compensation to be provided to the wife from the property of the Husband and in determining such compensation, the inherited or inheritable property of the husband to be taken into consideration.

Some arguments that have been promulgated for supporting this bill during media debates are -

1. Poverty is a gender issue and primarily in India women are poor: This is a baseless argument as the data shows just the opposite. Two most important features of poverty are malnutrition and substandard healthcare due to which the life expectancy reduces and deaths due to diseases increase respectively.

a. Average Life Expectancy of women in India is higher than males at 65 as opposed to males at 62. This implies that women live longer and healthier, hence have lower malnutrition[i].

b. Health care facilities are better for women than compared to males. WHO data shows that deaths due to diseases for males is 880 as compared to women as 780 (per 100,000). Hence, women have better access to healthcare as compared to the male counterparts[ii].

Therefore based on the above facts it is the men who live a substandard life as compared to women.

2. Women do not own any assets and post a divorce are on the streets to fend for themselves: The argument seems to state that women donot own any assets and hence should get an equitable share in an asset which the husband has created. This share is to ensure the safety of women.

Let us analyse this statement in-depth based on the assets majorly owned by Men and Women in India.

a. Jewellery: The jewellery in India can typically be classified as

i. Gold Jewellery: India is the largest consumer of gold for jewellery purposes and it is estimated consumed roughly 745.7 metric tonnes of gold in 2010 for jewellery manufacturing[iii]. (ie. Approximately 7,45,700kgs of gold). This amounts to approximately Rs. 2.23 lakh crores (ie. ~US$ 37.3 bn)[iv]

ii. Diamond Jewellery: As per a Bain & Co. report, India consumes approximately US$ 8.5 bn of Diamond Jewellery annually[v].

iii. Silver Jewellery: It is estimated that India consumes approximately 3,700 metric tonnes of silver annually for ornamental items such as jewellery, utensils and gift items[vi].  (ie. Approximately 37,00,000kgs of gold). This amount to approximately 16.6 thousand crores (ie. ~US$ 2.8 bn)[vii]

Therefore, gold, silver and diamond consumption in India for ornamental purposes totals to US$ 48.6 bn on an annual basis.

b. Houses: The real estate sector which consists of residential, commercial, retail, hospitality and SEZs was about US$ 50.7 bn for FY 2011[viii]. Of the total real estate sector, women do hold a decent share of housing stock. This data can be estimated from the housing loans given to women as a percentage of total housing loans. As per an RTI[ix] by Vaastav Foundation on Union Bank of India, on an average 19.6% of the women were given housing loans as a percentage of total loans disbursed. As houses are typically purchased by way of housing loans, it can be said that approximately 19.6% of the houses are held by women.

Therefore of the total real estate sector of US$ 50.7 bn about US$ 9.9 bn is consumed by women and US$ 40.8 bn by men.

The Summary of the yearly consumption of assets between men and women for India is given below:

As can be seen in the above table, on a yearly basis, women acquire approximately US$ 58.5 bn of assets as compared to approximately US$ 40.8 bn of assets by men. Therefore, the idea that women donot hold ‘any’ assets does not seem to be backed by data, instead the data shows that substantial assets are held by women of India.

3.  Stigma of Single women- they cannot rent a house in Cities: How does unable to rent a house have anything to do with property rights and divorce laws. If housing societies donot allow single women to buy / rent flats then an amendment in Co-operative Housing Society Act is required and not the passing of IrBM. These two points and issues are completely unrelated.

4. Household Work: During the debates the household work done by women is treated as equal contribution in building matrimonial property. The work of the husband is completely sidelined or treated as something which he ought to do as his duty. Without going into the value of work, let’s analyze the number of hours put in by both men and women. As per the NSO[x] survey, women spend about 2.1 hours cooking food and about 1.1 hours cleaning the house and utensils daily. In essence, women put in a total of 3.3 hours a day in building matrimonial assets. Compare this to the hours put in by a man which is around 11 hours a day (10 hours of work and 1 hour of travel time). Therefore men essentially put in 3.33 times more effort and work in building matrimonial assets. Even if we include managing children as a chore, which it is not otherwise during separation the women would be giving the child’s custody to the father, the total time spent by women in household work increases to 6.46 hours. Even taking into account this stretched number, men put in 1.75 times more effort in building matrimonial assets.

Do note that in the whole calculation above we have not included the value of work done by men or women. Do take a guess as to who generates more value per hour in their work. Further, many women also outsource their household work to maid servants, salary of whom is paid by the husband. In essence, the husband has to work harder so that the household work may be outsourced by his wife on his expense. Still the women’s group demand equal property division of not only matrimonial but also ancestral property of the husband.

5. Price of Love and Price of Care that women invest in a relationship should be paid: This point has come in various debates and in various forms. Treating marriage like an economic relationship is completely incorrect. Even if we assume that the feminists are treating marriage as an economic relationship, then the wife’s due was paid by her husband during the marriage by way of providing love and care to his wife. The husband also provided for necessities like food, clothing, shelter, vacations etc… Post-divorce, there is no love / care given by  the wife hence, no payment is required by the man. Any payment to wife post marriage is an ‘unjust enrichment’ to the wife.

6. It is important for the woman to have a home as 80% of women keep children: Some important questions, brought up in this point is that:

a.  No source has been quoted of this 80% number.

b. Why is it only important for the woman to have a home? Why is it not important for a man to have a home? Are men disposable or are they second citizens?

c. Why can’t the women work are create their own home? Are they not able bodied?

Baseless reasoning such as these promotes parasitism, which is not healthy for any living organism or society.

7. For the past 5000 years, women were treated as second class citizens and hence taking into account the development, their literacy rates etc… in the past 15 years is incorrect: We should all note that laws are passed keeping in mind the situation as on date not 5000 years back. As on date women are empowered, and their status 5000 years back (which we donot know is true) has no bearing to the present situation. Therefore this argument does not hold water.

8. Parents do not give any property to their daughter: If parents donot give a share of their property to their daughters then a law should be passed to enforce women’s share at their maternal homes. Why pass IrBM for that. If is akin to saying that if company ‘A’ does not pay salary to their employees then company ‘B’ is liable to pay it. This is an illogical and unfair argument in support of this bill.

9. Rights of Women: Another argument is on a rights approach wherein the school of thought supporting IrBM state women demand their right and they ought to get the same. A point of view here is that as per heirship and succession laws of India, women need to get an equal share of the property from their parents (ie. their right) . Inability to apply these laws is often cited as the reason to bring in IrBM. How can non applicability of one set of laws be a reason for passing an unjust act? Why can IrBM not be gender neutral wherein the property of both husband and wife is pooled together and then divided based on the effort put in by both. Will this method not be Just and Equitable. Currently as IrBM stands a section of society is being unjustly enriched in the name of rights and false gender equality.

10.  Women give birth to babies therefore they should get the property: Every female mammal on this earth gives birth to a baby, which is how nature has made them. Asking for property rights because women give birth to babies is preposterous. Such arguments should not even be entertained by the debate show hosts.

11.  In the past women were treated like chattels (property): In the past laws were not well developed as they are today. There were no human rights or any such thing. We had crude laws and property laws were the only laws that were more or less enforceable. Hence, women might have been treated like chattels to protect them in the society. Further, men were not even treated like chattel. In case of any contingency they were supposed to lay down their lives to protect their property ie. Men were SECOND to chattel. Feminists have not been able to provide any evidence to support any claim that in stable societies women were treated badly. Further, again we are discussing things of the past, today we have well established human rights and personal laws and no person is treated as chattel. Laws are to be made taking into account today’s situations and not the situation which existed 5000 years back.

12. India is a male dominated society: This argument is has many different version such as patriarchy, no representation and oppression. How do we define domination? One method of defining domination is by looking at the political representation of the group. A group with a higher political representation controls the law making and is the dominant group in a democracy. This is because the elected representatives need to do as directed by electorate. As per the Election Commission of India, the voters of India were  -

The dominant group from the above data is clearly the women of India, as they are nearly 60% of the voters, and not the men, therefore stating that India is a male dominated society is incorrect, as the data speaks otherwise.

The bill is unfair, unjust, and gender biased because of –

a. Only women have been given a right to oppose a divorce. Men cannot oppose divorce petition filed by women. This clause seems to clearly discriminate against men.

b. Only property (ancestral or owned) of men is to be divided. Property of women is not to be considered.

c. In case of a no-fault divorce, other cases such as domestic violence and 498A (dowry harassment) can continue. If it is no-fault divorce then how can other cases which have a fault continue?

d. Men are still liable to pay maintenance and alimony to women under other sections of various acts.

e. The bill seems to be against gender equality promised by the Indian Constitution under article 15.

f. Liabilities of men are not considered in case of division of property. Assume a house was bought on a bank loan, and in case of divorce, a portion of the house will be given to the woman but the man is still liable to pay the entire loan amount. This tantamount to taking away the future assets of the husband.

In other developed countries laws are gender neutral and have the word ‘Spouse’ in their language and not ‘Wife’ as the case in India. In developed nations each spouse shall be responsible for his or her own support. This has been kept to deter parasitism in their culture.

For example in Sweden maintenance is given when a spouse has difficulty in supporting himself or herself for a transitional period following the divorce. Such transitional maintenance provides the needy spouse with opportunities to seek gainful employment or retraining. Section 7 of Chapter 6 (Maintenance) of the Swedish Marriage Code (Aktenskapsbalken) is: “Following a divorce, each spouse shall be responsible for his or her own support. If a contribution towards the maintenance of either spouse is needed for a transitional period, that spouse shall be entitled to receive maintenance payments from the other spouse on the basis of what is reasonable in view of the latter’s ability and other circumstances.”.  Further, Sweden has a concept of personal property and marital property. Property jointly acquired by the spouses is treated as marital property. An exception is there, if only one spouse acquires property, then his/her personal property may be treated as marital property.

Further, post the division of marital property, the maintenance and alimony is reduced. (ie. the clauses are not mutually exclusive)[xiv].

For example in Germany: A spouse must provide for their own maintenance after divorce (Sections 1569, 1577 BGB). Maintenance may only be granted for an intermittent period till the other spouse retrains so as to be employable. Further, the networth of the spouses at the time of marriage and after the marriage is calculated. The difference is treated as marital property and property of both spouses is equally divided. An exception is there that if a spouse does not contribute in promoting the economic gain in marital property, he/she is not eligible for anything. Further, adultery and cruelty is given weightage.

In essence, both the developed nations treat the property of husband and wife separately and only joint contributed property as marital property. This comes from the tenet that all able bodied persons should be liable for their own upkeep[xv].