Uniform Civil Code: Is it Required?

On October 7, 2016, the Law Commission of India released a questionnaire for public opinion on the implementation of Uniform Civil Code (UCC) in India for all religions. They have asked for certain questions from the public. My thoughts on the subject in a point-wise format together with justifications are given below:

 

  1. Are you aware that Article 44 of the Constitution of India provides that “the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India”?
    • Yes
    • No

In your View, does this matter require any further initiatives?

Yes, I am aware of Article 44 of the constitution of India. Article 44 is ‘The Directive Principle of State Policy’ which is guided by Article 37 which states that these are merely guiding policies for the State.

No, this matter does not require any further initiatives/investigation as:

  • As per the Article 25-28 of the Constitution of India, the citizens have a fundamental right to ‘Freedom of Religion’. The citizens freedom of religion are
    • Article 25: Freedom of Conscience and free profession of religion
    • Article 26: Freedom to manage religious affairs
    • Article 27: Freedom from payment of taxes for promoting of any particular religion
    • Article 28: Freedom to attend religious instructions
  • The Supreme Court of India in Ratilal Panachand Gandhi vs The State Of Bombay, 1954, had stated that, ‘every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such’. The UCC in essence will be restricting these religious practices and beliefs and contrary to the Fundamental Rights enshrined by our constitution. The very tenet of our constitution, the fundamental rights, are being violated

 

  1. The various religious denominations are governed by personal laws and customary practices in India on matters of family law, should the UCC include all or some of these subjects?
    • Marriage
    • Divorce
    • Adoption
    • Guardianship and Child Custody
    • Maintenance
    • Succession and
    • Inheritance
  • Yes, It should include all these
  • No, it should exclude ____
  • It should further include _____

 

As mentioned in answer 1 above, professing ones religion, with all its customs and practices is the fundamental right of the citizens of India. All the above points mentioned are an ‘Integral’ part of these customs and practices. All religions have detailed age old customs for all the above subjects. These customs have been built on principles of equity and keeping in mind interactions with the other customs. Many of them are intertwined with each other and cannot be modified without rewriting the whole code from scratch and thereby destroying the very fabric of that religion. This will be akin to creating a completely different religion which will be anything which we started with. Therefore, regulating / governing any of the above will directly interfere in these customs and in essence destroy the religion. 

The answer will be “No, it should exclude all the above subjects”

 

  1. Do you agree that the existing personal and customary practices need codification and would benefit the people?
    • Yes
    • No
    • Personal laws and customary practices should be replaced by a uniform code
    • Personal laws and customary practices should be codified to bring them in line with fundamental rights

As discussed in detail in answer 2 above, any codification and replacement with a uniform code will in essence destroy the very tenant of the religion. Therefore (c) above is ruled out. Further, implementing UCC will be against the Fundamental Rights of the citizens of India, thereby ruling out (d). All the personal laws of the religions of India are currently codified in different and various legislatures and are being implemented as such. Recodification of the same would simply add to the confusion and create issues of interpretation and construction. Therefore (a) above is also ruled out.

The answer will be (b) NO, the existing customary practices donot need codification

 

  1. Will uniform civil code or codification of personal laws and customary practices ensure gender equality?
    • Yes
    • No

The answer will be (b) NO, UCC will not ensure gender equality. Achievement of gender equality cannot be by way of destroying a religion. Gender Equality is a misguided aim of UCC. For achieving gender equality the State ought to focus on education and labour laws that treat every person as human and does not impose any sort of gender based privilege or penalty. These laws have already been put in place, the need of the hour is proper implementation. The Government ought to implement education programmes for children, improve quality of education and ensure quality teachers in government schools to achieve the objective of Gender Equality and thereby increase the labour force participation rate of women without penalising or discriminating against the male labour force.

 

  1. Should the uniform civil code be optional?
    • Yes
    • No

There should be no UCC in the first place. But as there is no other option given by Law commission, the answer is (a) Yes, UCC ought to be optional

 

  1. Should the following practices be banned and regulated?
    • Polygamy (Banned / Regulated)
    • Polyandry (Banned / Regulated)
    • Similar customary practices such as Maitri-karaar (friendship deed) et al. (Banned / Regulated)

Let us analyse the above, all are forms of marriage which is regulated in India and only persons who have attained majority can contract marriage. A person who is a major is well aware of his/ her well-being and ought to enter into a contract of marriage by weighing all pros and cons. Every person enters a contract of marriage on his/her own free will. Similarly if they are not happy with the marriage, the option of divorce is always open. All contracts ought to be free to enter and leave, that is the way to restore balance of power to the contracting parties. Keeping the above cannon in mind let’s answer the questions:

a) and b) Polygamy / Polyandry: None (Regulated as no other option is there): The present religious doctrines have captured the issue and dealt with it in detail. The spouse’s interest is also kept in mind. Moreover, the dissentient spouse has an option of divorce if he/she so chooses. Further, in case of Polygamy in Muslim Law, at the time of nikah or any time after that the spouses can enter into an agreement, wherein the husband promises not to marry a second wife. The women can impose this condition prior to marriage (Moharam Ali v. Ayesa Khatum, (1915) 19 Cal. W.N. 1226)

c) Maitri-karaar: None (Regulated as no other option is there): The contract of Maitri –Karaar evolved as the contracting parties did not want to enter into a contract of marriage. Every person has a right to live the way he / she wants (Article 21, Right to life). The state ought not to make rules and regulations in what one does in his/her personal affairs. Regulating / banning the same is completely contrary to the wishes of the contracting party and Article 21 of the Constitution of India.

 

  1. Should the practice of triple talaq be
    • Abolished in toto
    • Retained the custom
    • Retained with suitable amendments

As discussed in question 6 above, persons contracting marriage enter the same at their own free will weighing all the pros and cons. Triple talaq is not a one sided affair, as per Muslim law women can also give a triple talaq called talaq-e-tafwiz. So the whole concept that, triple talaq being gender biased is incorrect.

The answer will be (b) Retained the custom

 

  1. Do you think that steps should be taken to ensure that Hindu women are better able to exercise their right to property, which is often bequeathed to sons under customary practices?
  • Yes, Hindu women must be made aware of this right and measures should be taken to ensure that women, under pressure from family donot forego their property
  • No there are adequate protection in the existing law
  • Legal Provisions will not help in what is primarily a cultural practice, steps have to be taken so sensitize the society instead

For correctly understanding the question, lets understand the concept first. Right to property for any heir can be divided into 2 parts

  • Self Acquired Property: This is the property acquired by the hard work of the individual during his/her lifetime. He should have all rights to deal with it the way he / she seems fit. Making laws for the same will be infringing on the fundamental rights of this individual. So if this individual wants to give it to his/her son, daughter, third person or charity is purely his decision and ought to be honoured.
  • Ancestral Property: The case of ancestral property is different, The Hindu Succession Act, 1956, clearly lays down detail rules on division of ancestral property within the heirs. Women have been given equal rights under the said act. So no discrimination as per law made.

As we can see above, law has been made which gives ‘Equal’ right to women heirs (including daughters). Making generalized statements that women forego their rights is incorrect on the part of the Law Commission. Adequate laws and protection is available to women under the present legal framework to enforce their rights if pressure / coercion is applied on them.

Further, Ministry of Child and Women have formed National Commission for Women who have been mandated to promote knowledge of laws in the State of India. If the NCW has been ineffective in its mandate, it’s a call for overhaul in the management of NCW instead of passing a new law.

Hence, the answer will be (b) No there are adequate protection in the existing law

 

  1. Do you agree that the two-year period of wait for finalizing divorce violates Chirstian women’s right to equality?
    • Yes, it should be made uniform across all marriages
    • This period is sufficient and in-keeping with religious sentiments

The question seems incorrect. The two-year period of wait as per section 10 of the Divorce Act is equally applicable for both man and women. There is no such inequality suffered by women as per the Divorce Act.

Therefore the answer is b) No. This period is sufficient and in-keeping with religious sentiments

 

  1. Do you agree that there should be uniform age of consent for marriage across all personal laws and customary practices?
    • Yes
    • No, customary laws locate this age at the attainment of puberty
    • The prevailing system of recognizing ‘voidable’ marriages is sufficient

As per the Child Marriage Restraint Act, 1929, a child is a person who, if a male, has not completed twenty one year of age, and if a female, has not completed eighteen years of age. As per this act marriage between a child is prohibited. Hence, by way of this act, the minimum age of marriage has already been made 18 for women and 21 for men. I do not see use of another code for the same.

Hence, the answer is (c) The prevailing system of recognizing ‘voidable’ marriages is sufficient

 

  1. Do you agree that all religious denominations should have the common grounds for divorce?
    • Yes
    • No, cultural differences must be preserved
    • No, but there should be the same grounds for divorce available for men and women within personal law

As mentioned in answer 6 above, persons contracting marriage are competent persons who have attained majority and can take correct decisions for themselves. Moreover The Special Marriage Act, 1954, has common grounds for divorce for both men and women. The parties contracting marriage always have the option to opt for the Special Marriage Act. If they have chosen to get married under their personal law, it’s because they chose. And choice is the tenant of The Constitution of India and is a fundamental right under Article 21 and also article 25 (Freedom to profess religion). Taking away such a personal choice is against the very fabric of our constitution.

The answer is (b) No, cultural differences must be preserved

 

  1. Would uniform civil code aid in addressing the problem of denial of maintenance or insufficient maintenance to women upon divorce?
    • Yes
    • No

The whole premise of this question is incorrect as Section 125 of CrPC has provisions to provide maintenance ‘only’ to women, married or divorced. Law commission has if fact chosen overlook the problem of denial of maintenance to men upon divorce. Men even if handicapped, ill or incapable to earn cannot claim maintenance from a healthy / earning wife . Where is the denial of maintenance for women?

Hence the answer is (b) No.

 

  1. How can compulsory registration of marriages be implemented better?

Yes, implementation can be improved by way of registration of all marriage halls and compulsory training of the priests. This way the priests / hall owners would be the hands and legs of the government which would promote marriage registration and educate the parties of its benefits. The Government can also promote public knowledge by targeted advertisement campaigns.

 

  1. What measures should we take to protect couples who enter into inter-religion and inter-caste marriage?

The following points may go a long way in protecting the couples:

  • Reduce the notice period required for registering a marriage and providing the marriage registration document on the spot
  • During elopement , the police to register the case of abduction of the girl only after proof of age is provided. In case the girl is found a major, and has voluntarily left home, the case should be cancelled and no arrests ought to be made. Protection to be accorded to the couple immediately.

 

  1. Would uniform civil code infringe an individual’s right to freedom of religion?
    • Yes
    • No

Yes, UCC will infringe the right to freedom of religion as:

  • As per the Article 25-28 of the Constitution of India, the citizens have a fundamental right to ‘Freedom of Religion’. The citizens freedom of religion are
    • Article 25: Freedom of Conscience and free profession of religion
    • Article 26: Freedom to manage religious affairs
    • Article 27: Freedom from payment of taxes for promoting of any particular religion
    • Article 28: Freedom to attend religious instructions
  • The Supreme Court of India in Ratilal Panachand Gandhi vs The State Of Bombay, 1954, had stated that, ‘every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such’. The UCC in essence will be restricting these religious practices and beliefs and contrary to the Fundamental Rights enshrined by our constitution. The very tenet of our constitution, the fundamental rights, are being violated

Professing ones religion, with all its customs and practices is the fundamental right of the citizens of India. Marriage, Divorce, Adoption, Guardianship and Child Custody, Maintenance, Succession and Inheritance are an ‘Integral’ part of these customs and practices. All religions have detailed age old customs for all the above subjects. These customs have been built on principles of equity and keeping in mind interaction with other customs. Many of them are intertwined with each other and cannot be modified without rewriting the whole code from scratch and thereby destroying the very fabric of that religion. This will be akin to creating a completely different religion which will be anything which we started with. Therefore, regulating / governing any of the above will directly interfere in these customs and in essence destroy the religion.

 

  1. What measures should be taken to sensitize the society towards a common code of codification of personal law?

As discussed in detail above, UCC is not required and all the objectives mentioned above have already been codified under various acts. Hence, the answer to this question is ‘Not Applicable’

 

Let us all Stand Up for a Cause…


Note: Please feel free to comment and discuss. I will be happy to modify the article if anywhere my understanding of the law is incorrect.

Vaastav Foundation – The Crisis Angels of My Life (Part 2)

This is Part 2 to the Vaastav Foundation – The Crisis Angels of My Life.  This article is written for Who’s your Crisis Angel? An Indi-Change activity  with http://incrisisrelief.org/ in association with Indiblogger.in

You may call Vaastav Foundation Helpline numbers listed below 24×7 in case of distress:

Vaastav SIF One Helpline Number: +91- 8882 498 498

Vaastav SIF One Helpline Number: +91- 8882 498 498

Vaastav Foundation – The Crisis Angels of My Life

Vaastav Angel saving souls

Vaastav Angel saving souls

Vaastav Foundation, is an NGO based out of Mumbai working towards equal human rights for both the genders. The organization assists families in distress and crisis who suffer from toxic domestic relationships. They assist people who have suffered false dowry and domestic violence cases.

The organization is a part of a network of over 40 NGOs all over India which conducts weekly meetings in over 20 cities. In these meeting they try to create a positive space for men where they can be heard without being judged. Meetings for Vaastav Foundation regularly conducts meetings at Veer Saavarkar Udyan, Borivali-W from 11 am to 2 pm and at Chintamani Deshmukh Garden, Mulund-E between 5pm to 7 pm every Sunday to help men in distress. Any one can attend these meetings and can also call the All India Help Line Numbers.

After visiting the Vaastav meetings I leant about the suicide stats of men which is that every 8 minutes a married man commits suicide in India and about the rampant misuse of Sec 498A of IPC, where more than 90% of the cases are found to be frivolous.

Suicides by Married Men and Women

As can be seen above about 2 times more married men commit suicide as compared to married women which shows the social pressure that they are facing.

498A Incidents

A Survivor

A Survivor

498A is the provision under IPC which deals with husband and his family subjecting wife to cruelty for dowry. It is a cognizable, non-bailable and a non-compoundable offense. Vaastav Foundation gets cases where the entire family of the husband such as his mother, sisters, bhabhis, other female relatives, ailing parents are booked under this section and are arrested. Even people who came to help the victim were booked. There have been cases where a dog’s name has been put in the complaint and even a 2 month old baby got an anticipatory bail under this section. In the past the Supreme Court had raised concerns on the misuse of this section and had told the government to amend it.

Vaastav is being currently being funded primarily out of the personal sources of the affected persons.

The Vasstav’s selfless Angels and Counselors give their time and provide guidance to the victims and their families.

The Vaastav Angels

The Vaastav Angels

Vaastav SIF One Helpline Number: +91- 8882 498 498

Vaastav SIF One Helpline Number: +91- 8882 498 498

Vaastav Foundation really is a Crisis Angel for many families, do read how hundreds of families below have benefited from Vaastav and misuse of gender biased laws.

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This article is written for Who’s your Crisis Angel? An Indi-Change activity  with http://incrisisrelief.org/ in association with Indiblogger.in

Adultery – A Matrimonial Offense

Adultery may be defined as a voluntary sexual intercourse by a married person with a partner other than his/her spouse. Therefore, the definition of adultery brings out a few ingredients, which are:

  • It is a voluntary act of the parties. A forceful act cannot be termed as adultery
  • Adultery can be indulged into only by a married person. A sexual intercourse by an unmarried person cannot be termed as adultery
  • The sexual intercourse should be with a person other than the adulterer’s spouse

Therefore, all the above 3 ingredients are important for an act to be termed as adultery.

Now a question arises that why are we discussing adultery; this is because this is a ground for divorce in the Indian Marriage Laws. The act of adultery is not a ground for divorce for the moral turpitude involved in it but for voluntary surrender to another person of the reproductive organs of the guilty person. Hence, adultery is actually an offense against the spouse in a marital relationship and not an offense of moral turpitude.

A question which comes up during discussions with married people, whose spouses have indulged in adultery, is a question of howto prove it during a divorce proceedings. As a divorce proceeding is civil in nature, the proof need not be as strict as in a criminal case and therefore proof beyond reasonable doubt is not required.

Adultery can very rarely, if ever, be proved by the direct evidence of witnesses who saw the parties in flagrante delicto and witnessed the act. In most cases, the evidence must be circumstantial in character and must depend upon the situation spoken to in regard to which the act is alleged, and the probabilities relating to that situation (Subbarama Reddiar vs Saraswathi Ammal). Therefore, a direct evidence is not required to prove adultery, infact direct evidence, if produced in the court, could be negative. The reason is that adultery is a secret act and it is highly improbable that there could be a witness to such a secret act (Pattayee Ammal vs Manickam Gounder). Only proof of preponderance of probabilities is required to prove adultery. In common parlance this means that the proposition is most likely to be true in a given situation. If the probability is more than 50% that the given proposition being true, the test of preponderance of probability is met and the proposition is considered to be true.

Hence, from the above discussion, we understand that

  • Direct evidence is not required to prove adultery, infact direct evidence may be treated negatively by the courts
  • The proof need not be strict in nature as in case of criminal offenses. Proof of adultery is not to be proved ‘beyond reasonable doubt’
  • The test of preponderance of probability is applied to civil matters such as divorce proceedings

 

Howto prove adultery?

In the case of Samuel Bahadur Singh vs Smt. Roshni Singh the hon’able judge had held that ‘The Court usually infers adultery from the fact that the respondent wife shared a bed or bedroom for the night with a person of opposite sex other than the petitioner or from the fact that the respondent had been carrying on an association with a person of the opposite sex other than the petitioner and there is evidence of illicit affection or undue familiarity between them coupled with an opportunity for them to have committed adultery.’ Therefore we can understand from the above, to prove adultery, the petitioner has to prove that his/her spouse

  • Voluntarily shared a private moment with a person of the opposite sex such as a bedroom, an apartment etc…
  • Has an illicit affection or undue familiarity with the person of the opposite sex. This implies acts of the spouse which are generally forbidden by law, rules or customs of the society and which tend to generate suspicion in the mind of a person
  • The spouse and the person of opposite sex should have an opportunity to commit adultery. For example, if the accused spouse and the other person are in a room alone for a few moments, the 3rd condition is not satisfied as there is no opportunity for them to commit adultery.
  • All the above 3 conditions viz. voluntarily sharing of a private moment, illicit affection/undue familiarity and opportunity to commit adultery should exist at the same time when the said act of adultery is alleged to be performed. This is required so that the conditions of preponderance of probability is met.

As mentioned above direct evidence of adultery is not available, circumstantial evidence is required to be produced in courts. It is to be noted that the circumstances should be such that it should lead to a necessary conclusion that adultery was committed. This can be proved by preponderance of probability method enumerated above.

Adultery can also be proved by

  • evidence of non-access and birth of children
  • contracting venereal disease
  • confessions and admissions

Hence, if the wife delivers a baby or conceives a child, provided the husband does not have access to the wife during the time she was expected to conceive the foetus, is a proof of adultery by the wife.

Similarly, if either spouse contracts a venereal disease, it can be argued that such a disease is spread due to sexual intercourse, which the spouse may have had with another partner.

Further, any confession and admission by the adulterer is also considered as satisfactory proof of commission of adultery.

Interesting cases on adultery:

In the case of Sushma Kumari vs Ramesh Chand, the Delhi High Court had held that if (1) a young married woman is found at 6.00 p.m. in the company of a young man in a closed room bolted from inside, (2) they are not related to each other and are extremely fond of one another as is evident from the photos in question, (3) she was under the belief that she was not going to be detected as her husband worked late in a shop and would usually come at 8.30 p.m., lead to an irresistible inference that she was having illicit relations with that man particularly so when she does not render a cogent or plausible explanation for the presence of that man with her behind closed door. In any case, when no explanation is forthcoming or when the explanation, if any, is found to be totally unacceptable then on preponderance of probabilities it has to be held that she was having illicit sexual relations with that man. (Here the rule of preponderance of probabilities is applied which was discussed above).

In the case of Thimmappa Dasappa vs Thimmavva Kom Thimmappa, the Karnataka High Court held, if a husband proves beyond reasonable doubt that his wife has been seen absenting herself from his house for a long time and has been seen in the company of a total stranger to his family and that no reasonable explanation is given by her or that she has given a false explanation for her having been seen in the company of that stranger at different places or in a room will give rise to a reasonable inference that she has contacted illicit connection with that man and has been living in adultery.

Can adultery be condoned?

Yes, the courts have held that adultery can be condoned by the other spouse if he/she cohabits with the adulterer even after the knowledge of adultery. The idea behind this is that adultery is considered as a repulsive matrimonial offence and even after the knowledge of the other spouse committing adultery, if the non-adulterous spouse continues cohabitation, it is considered as a condonation of the act of adultery.

The Supreme Court of India in N. G. Dastane vs S. Dastane held that condonation means forgiveness of the matrimonial offense and restoration of spouses to the same position as he or she occupied before the matrimonial offense was committed. Hence, condonation implies both forgiveness and restoration, that is forgiveness by the non-offending spouse and restoration or mending of ways of the offending spouse. If the offending spouse does not mend his or her ways even after commitment of mending ways, it does not constitute condonation of matrimonial offense by the non-offending spouse.

Do feel free to comment on the article and let’s all Stand up for a Cause…

IrBM Arguments in the Media (SIF Magazine Article)

Recently on the 10th SIF Anniversary the inaugural edition of the magazine was released. The pdf link to the magazine is here. My IrBm Arguments in the media article series were published in the magazine in a consolidated way. The published article with detailed sources is given below:

Recently there has been a spate of discussions in the media on the upcoming Irretrievable Breakdown of Marriage Law (IrBM). 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. All the property of the husband that he currently owns and his ancestral property (inherited or inheritable) will be divided between the husband and the wife.

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 donot 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 equal 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.

Men

Women

  1. Own a House
  1. Own Jewellery (Also classified as Stree Dhan)
  2. Also own a House

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 7,45,700 kgs 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 37,00,000 kgs 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:

Particulars

Men

(US$ Bn)

Women

(US$ Bn)

Real Estate

40.8

9.9

Gold

37.3

Diamonds

8.5

Silver

2.8

Total

40.8

58.5

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 donot 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  –

Year Men (% votes) Women (% votes) Source
1999 40.01% 59.99%  [xi]
2004 41.93% 58.07%  [xii]
2009 45.8% 54.2%  [xiii]

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 –

  • 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.
  • Only property (ancestral or owned) of men is to be divided. Property of women is not to be considered.
  •  In case of a no-fault divorce, other cases such as domestic violence and 498A can continue. If it is no-fault divorce then how can other cases which have a fault continue?
  •  Men are still liable to pay maintenance and alimony to women under other sections of various acts.
  •  The bill seems to be against gender equality promised by the Indian Constitution under article 15.
  •  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, 50% 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].


[iv] At Gold Price of Rs. 30,000 /10 gms and an exchange rate of 1 US$=Rs.60

[vi] India’s Consuming Interest in Silver by Rajan Venkatesh, http://www.lbma.org.uk/assets/alch28_india.pdf

[vii] Silver prices of Rs. 45,000 /1 kg and an exchange rate of 1US$ = Rs. 60

[viii] IBEF- Real Estate, August 2013, page 6 and 36, http://www.ibef.org/download/real-estate-august-2013.pdf (adjusted for exchange rate of 1 US$ = Rs. 60)

[x] National Statistical Organization: Men and Women in India, 2012 – 14th Issue, Para 33

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Why Should Men Marry?

Boda - 7 (runaway groom)

This is a question which many young men have is that why should they marry?

The Rajya Sabha recently cleared The Marriage Laws (Amendment) Bill, 2010 (“IrBM”) and the salient features of the bill are given below.

  • A concept of irretrievable break-down of marriage has been introduced which provides another ground to the spouses for divorce
  • The bill is gender biased as husbands donot have a right to oppose the divorce filed by the wife
  • All the property of the husband that he currently owns and his ancestral property (inherited or inheritable) will be divided between the husband and the wife
  • Men are still liable to pay maintenance and alimony to his wife even after property division as per various other statutes
  • Other cases filed by the wife such as 498a, DV etc… will keep continuing even after divorce. IrBM the world over is treated as a ‘no-fault’ divorce where incompatibility between couples is the reason cited for separation, if this is the case then why are suits for domestic violence, 498a etc… allowed to continue

This law is giving yet another reason to men not to marry due to the gender biased provisions in the statute. In essence the reason not to marry may boil down to –

  • A husband can not oppose divorce filed by his wife, whereas the wife can oppose the divorce filed by the husband
  • A husband’s property which he might have earned before marriage, during marriage and also his ancestral property will be divided with his wife at the time of divorce. Wife’s property will not be divided with the husband
  • Husbands rarely get the custody of children. Further, visitation rights are also not adhered to by the wives post divorce
  • During marriage there is always the threat of domestic violence looming on the husband. As in the movie Minority Report where future crimes were punishable, so are the acts of domestic violence. As per Section 4 any domestic violence ‘likely to be committed’ is also covered
  • The sword of 498a cases are always looming over the husband’s head. Any time a fabricated dowry case may be slapped
  • Post divorce, even after sharing hard-earned property with the wife the husband is liable to maintain his wife
  • Married men are 2 times more likely to commit suicides in India
  • The work load of a married man increases post marriage as he is now liable to maintain his wife and has the responsibility of a primary breadwinner. As per the ‘CSO’s Women and Men in India, 2012, 14th issue’ women spend about 2.1 hours per day on cooking, 1.1 hour on cleaning and 3.16 hours of taking care of children per day, totaling to 6.36 hours of daily work. Whereas men work atleast 9 hours in office and 0.32 hours taking care of children totaling to about 9.32 hours of daily work.

Do the risks / work above justify the benefits of marriage?

498A

Home Page: Stand Up for a Cause…

The Scorpion and the Frog

Oil on canvas

In kindergarten I had heard this story about a scorpion and a frog, an Aesop fable. Aesop was a slave who lived in the 5th century BC who used to spread his wisdom by stories. This one particular story about a scorpion and frog goes something like:

A scorpion met a frog on a river bank and requested him to carry it across the river on his back. The frog refused stating that, how would he be sure that the scorpion would not sting him. The scorpion responded as they would be in the river, if he stung the frog, he would die too. The frog agreed and took the scorpion on his back and they started crossing the river.

In the middle of the river, the scorpion stung the frog. The frog got paralyzed due to the venom in the sting and started drowning. The frog just asked one question, “Why?”

To this the scorpion replied, “Because it is in my nature….” Read more of this post

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