Making divorce easy? Or barking up the wrong tree?
– Uma Challa
Published by MyIndMakers
“lEchiMchi, nidra lEchiMdi mahiLaa lOkaM, daddarilliMdi puruSha prapaMchaM…” https://youtu.be/MmVujeuCKmI (the women’s world has woken up from slumber, and the man’s world shook with panic) was a song I used to love as a child. As a fiery young woman, I frowned upon what I thought was “misogyny” on the part of one of the greatest Telugu lyricists ever. Now I admire the clarity of thought of Sri Pingali Nagendra Rao gaaru who penned the song way back in 1962, at a time when the country was still tolerant to truth.
To elaborate on Pingali gaaru’s poetic rendition of facts, the first Lok Sabha in India in 1951 had 22 women MPs. Soon after, in 1955, with the advent of the Hindu Marriage Act (HMA) in 1955, Indian society was, for the first time, introduced to the concept of “divorce”. Contrary to its title, the HMA has nothing to do with marriage. It does not explain what marriage means nor does it enumerate the responsibilities of a wife and husband towards themselves, each other, their children, both sides of the family or the society. It enumerates circumstances in which a Hindu marriage can be legally broken. It was introduced to enable women who could not tolerate marriage to legally liberate themselves from wedlock, and to claim share in the marital property in the name of maintenance and alimony (HMA Section 24).
The most common grounds for divorce – cruelty, desertion, impotence, adultery etc. – are not only poorly defined, but are also difficult to prove. In addition, because litigation involves evidences and arguments from both parties, HMA did not prove as “empowering” to women as was envisioned by women’s rights activists (WRAs).
Enacting the Hindu Adoptions and Maintenance Act of 1956, which entitles a woman to be maintained by her husband during her entire lifetime (Section 18), and CrPC of 1973, which extends maintenance to wives indefinitely even after divorce (Section 125), did not do the magic either, since they still involved time taking two-sided legal procedures.
In the year 1983, the Parliament passed a criminal law, Indian Penal Code 498A, which made “cruelty towards a married woman” a cognizable and non-bailable offence. Here, the word “cruelty” was left undefined and allowed to be a function of a woman’s perception and her lawyer’s imagination. Divorce and maintenance cases, combined with this draconian criminal section, which allows immediate arrest and incarceration of the husband and in-laws, proved to be fantastic tool of blackmail, vengeance and extortion in the hands of disgruntled wives for many years. It was accompanied by vigorous campaigns by WRAs to “sensitize” the police and the judiciary to be sympathetic towards women. Even such drastic measures did not prove to be “empowering enough” according to WRAs, because not all husbands succumbed.
The conviction rates under IPC 498A remained very low and the law only gained notoriety for its misuse. The hope that all husbands could be reined in and forced to pay a “monetary compensation/settlement” under the fear of arrest and criminal prosecution started waning.
In 2005, a new and elaborate civil law, Protection of Women from Domestic Violence (DV) Act was introduced. The act not only categorized every possible male action as an act of domestic violence, it also made provisions for a wife and a live-in partner to use DV accusations to claim monetary reliefs including maintenance (Section 20) and residence rights (Section 19) in the same property where the alleged violence had occurred.
Every year, several thousands of Indian women leverage the power sanctioned to them under these laws to terrorize husbands and to extract alimony and maintenance from them. Still, the utopia envisioned by the WRAs remained elusive since entangling a man in multiple litigations ensured neither speedy divorce nor quick extraction of maintenance and alimony.
In 2013, the Rajya Sabha approved the Marriage Laws (Amendment) Bill which, once again, claimed to make “divorce friendly for women” by providing for the wife, a share in the husband’s immovable property, after “irretrievable breakdown of marriage”. The Bill empowered the courts to decide the “compensation amount” from the husband’s inherited and inheritable property. Recognizing the “grave and far-reaching legal, social and economic implications of the proposed amendments” as pointed out by senior citizens groups and NGOs working for men, the NDA Government’s Law Ministry decided to put the Bill on hold.
According to news reports, there is now a fresh proposal “to explore the possibility of making it easier for women to walk out of a marriage”. This brand new endeavor, backed by the Minister of Women and Child Development, Maneka Gandhi, proposes to give legal validity to prenuptial agreements.
The Economic Times (18 Sept 2015) quotes an official of the Ministry of WCD who stated that the introduction of prenuptial agreements will “save marriages” because, “once, the liabilities, assets and responsibilities are decided in advance, a husband will be more careful and cautious in seeking dissolution. He would have a clear idea of the amount of alimony he will have to pay to his wife”.
The article also quotes another senior official of the Ministry who supported prenuptial agreements as a way to counter the “judicial delays on account of backlog of cases”, and the “delaying tactics husbands resort to”.
It is noteworthy that for the last 60 years, champions of women’s empowerment have been preoccupied with women obtaining an easy divorce and collecting maintenance and alimony by hook or crook. Their proposal to legalize prenuptial agreements is neither novel in its approach nor noble in its goals.
Aside from the fact that this initiative too has nothing to do with really empowering women, here are just a few problems with prenuptial agreements:
- Hindu marriages are religious unions and not legal contracts, even when they are registered and legally recognized. A prenuptial agreement is a contract, with the terms and conditions of separation spelled out. It cannot be applied to Hindu marriages without stripping them of their religious sanctity and the underlying philosophy of the union of two souls.
- While prenuptial contracts do lay down the terms and conditions of separation, the contracts are not binding nor strictly enforceable, and there are no provisions anywhere in the world to penalize a partner who does not comply with the terms of separation. However, the proposal to include punishments for “offending” spouses in Indian prenuptial agreements is nothing but another attempt to criminalize the marital relationship, pamper women and penalize men.
- In spite of having a prenuptial agreement, a woman will still be able to claim that she signed the prenuptial agreement under duress. She will still be able to file complaints under IPC Section 498A, the DV Act and other related civil and criminal provisions.
- Rich men will use prenuptial agreements to get rid of women by paying money, and unscrupulous women will use prenuptial agreements as a way to make quick money. We, as a nation and a culture, might do better by just legalising prostitution rather than prostitutionalizing the Hindu marriage in the name of empowering women through delusional and deceitful means.
It is about time the Ministry of WCD stops barking up the wrong tree and looks into positive ways of empowering women by helping, stimulating, supporting and encouraging them to achieve true economic independence. It is time we realize that unless women learn to want economic independence and unless they work hard to achieve it, without depending on maintenance and alimony, all the talk about empowerment and equality is meaningless.
It is time the “women’s world” awakens to this reality and embraces ways that are uplifting to themselves and the entire society, rather than those that shake men with fear and shatter their lives.