Maintenance of Spouse

Recently the Mumbai family court rejected the claim of a wife for Maintenance from her husband under section 24 of the Hindu Marriage Act (HMA). As per section 24 of the Hindu Marriage Act:

Maintenance pendente lite and expenses of proceedings. —Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable. Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.

The aim of section 24 of the HMA is to provide the weaker spouse with such fund as may be reasonably necessary for her or his support and for the carriage of the litigation and such an order automatically comes to an end with the termination of the main proceeding in the Court which passes the order. The proceeding being rather summary in nature, the object of the order being ad hoc and the duration of the order being temporary, the approach of the Court to such an order should be ut res magis valeat qnam pereat, to sustain it wherever possible and not to interfere unless intervention is irresistible in law.

Therefore, the aim is to provide the spouse necessary source of income if the spouse does not have an independent income due to which he/she is unable to maintain themselves. This is a beneficial provision so that the proceedings are not jeopardized for want of funds by either spouse. Social Justice is the driving force for this provision.

Is this Provision Gender Neutral?

On the face of it, the provision seems to be gender neutral as either spouse can file for maintenance pending a litigation. As per the Hon’able Bombay High Court in Smt. Kanchan v. Kamalendra, it was help that ‘husband will have to satisfy the Court either due to physical or mental disability, he is handicapped to earn and support his livelihood.’ Therefore, the husband can only claim maintenance if he is able to satisfy his physical / mental disability and not otherwise. No such rider is there for wife for claiming maintenance.

Factors Considered while paying Maintenance:

As per the Hon’able Delhi High Court in Jayant Bhargava v. Priya Bhargava, the Court can take into consideration amongst others, the following factors while guessing income of the spouses:

  1. Life style of the spouse;
  2. The amount spent at the time of marriage and the manner in which marriage was performed;
  3. Destination of honeymoon;
  4. Ownership of motor vehicles;
  5. Household facilities;
  6. Facility of driver, cook and other help;
  7. Credit cards;
  8. Bank account details;
  9. Club Membership;
  10. Amount of Insurance Premium paid;
  11. Property or properties purchased;
  12. Rental income;
  13. Amount of rent paid;
  14. Amount spent on travel/ holiday;
  15. Locality of residence;
  16. Number of mobile phones;
  17. Qualification of spouse;
  18. School(s) where the child or children are studying when parties were residing together;
  19. Amount spent on fees and other expenses incurred;
  20. Amount spend on extra-curricular activities of children when parties were residing together;
  21. Capacity to repay loan

The object of Section 24 of the HMA is not to bring about financial equality between the spouses. Its object is not to slash some amount from the earnings of the husband and hand it over to the wife so that financial disparities between the two are removed. Its object is only to provide means to the spouse who has no independent source of income to contest the matrimonial proceedings.

It is a well-established maxim of Anglo Saxon jurisprudence that no person can be allowed to incapacitate himself. A person who voluntarily incapacitates himself from earning is not entitled to claim maintenance from the other spouse.

The Hon’able Madhya Pradesh High Court in Smt. Mamta Jaiswal vs Rajesh Jaiswal, stated that ‘Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself or herself inspite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente lite alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversory by implementing the provisions of law suitable to their purpose. A lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a ‘dole’ to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her…. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendente lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself… In fact, well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress’

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.

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.

We are seeing that over the years able bodied and educated women elect to stay out of the labour force. Their labour force participation rate has also fallen drastically in the past 10 years. Time has now come to do away with the one sided maintenance laws and move towards equality if the country wants to prosper.

Let us all Stand Up for a Cause…

Do women want to be treated specially or equally? – Do men know the difference?

As per Article 15(3) of the constitution of India a special enabling provision was made towards the upliftment of women – “Nothing in this article shall prevent the State from making any special provision for women and children”, thereby allowing positive for discrimination for women. The reason for insertion of clause 3 to article 15 was that, for centuries, women in India had been socially and economically handicapped. Thereby they were unable to participate in the socio-economic activities of the nation on a footing of equality with their menfolk. This article was to empower them by way of positive discrimination so as to bring about an equality between men and women, gradually reducing the gap between the two sexes.

Let us evaluate if this is true in modern India. The data points that can act as a barometer for concluding whether women are underprivileged could be:

  • Life Expectancy of women: Showing how well they are cared for and have access to medical facilities
  • Unnatural deaths of women
  • Women’s access to higher education
  • Women Child Labour
  • Homelessness of Women
  • Violent Crime against women
  • Women casualties in war
  • Political representation of women

Let us critically evaluate every parameter above with data comparing how well men and women of India have fared on the same:

Life Expectancy of Women: It is widely believed that women donot have access to medical facilities. If that is the case their life expectancy ought to have been lower as compared to the privileged men of India.

 

Particulars

Male

Female

Life Expectancy

62

65

As we can see above life expectancy of women is higher than men in India.

Unnatural deaths: Even in the case of unnatural deaths women have fared better than men. As per the WHO data, the number of non-natural deaths in the South East Asian Countries (India is a part of this group) is given below:

Year: 2008

(In ‘000)

Reasons for Death

Male

Female

All Causes

79,13,478.64

65,84,985.96

Communicable Diseases

25,25,517.23

2,507,378.56

Cancers

5,68,926.57

5,66,482.90

Cardiovascular diseases

20,10,290.25

16,05,605.64

Injuries

9,91,230.123

5,60,454.64

Intentional Injuries

2,93,042.05

1,27,055.14

 

Women’s access to higher education: India is currently having more number of graduates and post graduate women. The census data below speaks for itself:

Age

All India Female – Male Sex Ratio

Graduate and above Female – Male Sex Ratio

All India

Rural

Urban

Total

943

955

962

939

20-24

935

936

933

25-29

975

980

967

30-34

984

1001

951

35-59

951

966

924

60+

1033

1036

1027

As can be seen above the all India all age group graduate female to male sex ratio is way higher than the population sex ratio implying that more women as a percentage are sent to colleges than men. The difference is even wider in rural India where even more women as a percentage than men attend colleges as compared to urban India.

Child Labour: The working children are primarily boys who carry the burden of the patriarchal social construct in their roles as protectors/ providers of the family and at that young age have to shoulder the responsibilities of the family. Still India has special schemes for education and development of a girl child and not for a boy child

Urban Working ChildrenRural Working Children

Homelessness of Women: In the recent census data for 2011 about 1.05 mn men were found to be homeless with over 600 thousand in cities. Around 1.8x times more men were found to be homeless in the urban areas as compared to women. The situation was not very different in the rural areas where more men are homeless as compared to women. The all-India average is at 1.4x times more homeless men.

Homeless Indian Men

Homeless Indian Men

Violent Crime against women: Majority of the crimes are against the male population in India; we see that around 74% of all violent crimes are against the male gender. Men are 2.7 times more likely to be murdered and 4.4 times more likely to be seriously harmed than women in India.

Crime[i]

Men

Women

Murder (#)

25,665

9,457

%

73%

27%

Harm Not amounting to murder  (IPC 304/308) (#)

3,362

761

%

82%

18%

Women casualties in war: the male gender is primarily on the receiving end of all wars and lay down their lives for protecting the society. The casualties across all wars is given below–

Men

Women

Troop Casualties in WW1

3,74,64,404

Nil

Troop Casualties in WW2

2,70,70,026

Nil

Indo-Pakistani War of 1965

6,800

Nil

Indo-Pakistani War of 1971

12,843

Nil

Kargil War

980

Nil

Political representation of women: Women have higher political representation (shown by the number of voters) and it is seen that a dominant group is one which has more political representation as they control the law making in a democracy-

Year

Men (% votes)

Women (% votes)

1999

40.01%

59.99%

2004

41.93%

58.07%

2009

45.8%

54.2%

 

As we see above in all parameters women fare better than men still there is a demand for positive discrimination for them. Is this positive discrimination beneficial for the society. We have more women graduates, still the women are going out of the work force and prefer to stay at home. Men are required to maintain well educated women, which is evident in the laws such as Section 125 of CrPC. The violent crimes committed by women has substantially increased over the past decade; still they are treated with kid gloves in the eyes of law.

Given the above scenario, do we really require any type of special laws favouring women? Are women really underprivileged and donot have opportunities? It’s time to ponder. Let’s Stand Up for a Cause …

I’m blogging for the India Today Woman Summit 2015 #WomenPower activity at BlogAdda.

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(i) Table 3.3 and 3.4 of Crimes in India 2012, NCRB.

Higher Education Gender Biasness Myth – Part 2

This is the part 2 of the previous article titled Higher Education: Gender Biasness Myth. It is been said that women in India are not allowed to study, which is not correct as enumerated by the census data. The fact is quite contrary and completely opposite to the popular belief.

Women are promoted more in India for higher education (which is classified as graduation and above). The census data below speaks for itself:

Age

All India Female – Male Sex Ratio

Graduate and above Female – Male Sex Ratio

All India

Rural

Urban

Total

943

955

962

939

20-24

935

936

933

25-29

975

980

967

30-34

984

1001

951

35-59

951

966

924

60+

1033

1036

1027

As can be seen above the all India all age group graduate female to male sex ratio is way higher than the population sex ratio implying that more women as a percentage are sent to colleges than men. The difference is even wider in rural India where even more women as a percentage than men attend colleges as compared to urban India.

If we take the decadal changes in education in India, we can look at Post Graduates in the age group of 20-29.

Age Group 20-24

Males (#)

Females (#)

Post Graduates

25,66,169

28,31,783

In the field of medicine, we have now more women graduates / post graduates at 183,342 women as compared to 171,843 men in the 20-24 age group.

This gets us to a few pertinent questions:

Some thoughts to ponder upon. Stand Up for a Cause…

———–

Data Source: Census 2011

Control over Earnings

One of the measures for empowerment is taken to be control over one’s own earnings. A person having control over their own earning is considered to be empowered enough to make decisions. In the National Family Health Survey – 3 (2005-06) the similar question was asked to respondents. The summary of the findings is given below:

 

Control over own earnings

 

Husband

Wife

Urban Areas

21.5%

33.3%

Rural Areas

25.9%

21.0%

Control over own earning

 

As we can see above a substantial percentage of women have control over their own earnings in the urban areas showing high empowerment as opposed to men. The numbers for rural areas is nearly the same with a tilt towards men.

 

Joint Decision by husband and wife over earnings

 

Husband’s Earnings

Wife’s Earnings

Urban Areas

66.4%

55.2%

Rural Areas

59.5%

57.0%

 Joint Decision making

In both rural and urban areas, wife has more joint say in the way the husband’s earnings will be spent and not vice-versa.

 

Interesting observations have emerged from the above data:

  1. In the urban areas, it is the women who are more empowered than men based on the above metric as they have more control over their own earnings and more number of women participate in the joint decision of their husband’s earnings
  2. The empowerment levels in the rural areas is nearly the same with both the percentages not having a wide difference.

 The above data clearly busts the myth that women are not empowered enough. In fact it shows a completely different picture where men have a lower control over their own incomes.

——————-

Source: National Family Health Survey – 3 (2005-06), Page 453 and 457, Women’s reports.

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Why should Women Study?

Education is the pillar for economic growth and development. As a nation develops, the share of Industrial and Services sector increases in the GDP. Employment opportunities are generated and the country requires educated workforce. Economic growth is related to improvement in technology, which in turn is dependent on the availability of researchers in the country. Therefore, education can said to be one of the most important pillars for growth of a country. No wonder every year the Indian government spends crores of rupees on the education sector.

For the XI plan a total of Rs. 177,566.86 crores has been spent on educating the youth of India which is divided into –

  • Allocation for higher education: Rs. 39,646.82 crores (ie. Average yearly expenditure of Rs. 7,929.4 crores)
  • School Education and Literacy: Rs. 137,920.04 crores (ie. Average yearly expenditure of Rs. 27,584.0 crores)

Taking into account the total enrollment of students for school education and higher education , the average expense per year for every student paid by the taxpayers comes to Rs. 1142 for school education and Rs. 2776 for higher education. Therefore on an average to train 1 student (who has cleared higher education), the total taxpayer expenditure comes to Rs. 22,030 (12 years of schooling and 3 years of college).

Now a question arises why are we discussing the amount spent by our government for higher education. We will shortly come to that question. In the meanwhile let up analyse the Labour Force Participation Rate (LFPR) for women in India. The LFPR for women has been continuously declining since 2004 from 208 to 168 per thousand persons, which is a substantial decline. Every year roughly 1.3 crore women graduate in India, hence in the past 10 years about 13 crores women have graduated. As per the NSS estimate about 0.6 crore women in the age group of 25-34 are working in administrative, technical, professional and clerical roles .

Of the 13 crore trained women only 0.6 crore are in the Labour Force. A whooping 12.1 crore women are not working even though they are highly qualified. The taxpayers have spent roughly Rs. 265,816 crores in training these women, who are not contributing to the growth of the economy. These funds could have been better used at some other place which could have provided better economic growth and return on investment.

Now an interesting question arises as to why women donot want to work even though they are equally qualified. Often a reason promulgated is sexual harassment at workplace. We do have strict sexual harassment laws, still the workforce participation rate is falling. If sexual harassment was the reason, these strict laws ought to have increased the LFPR, which is not the case.

Now a question arises that what could be the reasons for this deep rooted social issue where well educated women are going out of the work force and even applying for maintenance from their husbands:

  1. Lack of agency on women’s part which means treating them as children. They are grown up and ought to be treated as same and should be made responsible for their own decisions
  2. Lack of responsibilities on women. All the responsibilities are on men socially as well as legally. Section 125 of CrPC specifically states that men are responsible for the upkeep of their wives and parents. No such responsibility is there on women howsoever qualified she might be.
  3. Lack of accountability on women. It has been seen that women are not made accountable for their actions. As is evident in the sharp rise in frivolous cases filed by them. Further, women centric laws are being implemented and sops are regularly doled out for them during each government budget

The effects of these social issues are grave such as:

  1. The loss to the GDP of India as discussed above
  2. Increase in the number of serious crimes committed by women
  3. Reduction of women from the workforce
  4. Rise in frivolous case of sexual assault
  5. Increase in the number of male suicides

In a maintenance case filed by an educated wife, the learned Judge of the Madhya Pradesh High Court had commented, “The law does not help indolents as well idles so also does not want an army of self made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, atleast, has to make sincere efforts in that direction.” The learned Judge further stated, “In fact, well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress.”

How do we rectify these social issues? What should be the future steps, let us all Stand Up for a Cause…

———————-

Sources:

  1. Yearwise Plan Expenditure (Ministry of Human Resource Development): http://mhrd.gov.in/sites/upload_files/mhrd/files/YearwiseXIPlanExpdt.pdf
  2. Statistics of School Education 2009-10 (Ministry of Human Resource Development): http://mhrd.gov.in/sites/upload_files/mhrd/files/SES-School_200910F.pdf
  3. All India Survey on Higher Education 2011-12 (Ministry of Human Resource Development): http://mhrd.gov.in/sites/upload_files/mhrd/files/AISHE2011-12P_1.pdf
  4. Key Indicators of Employment and Unemployment in India 2011-12 (NSS 68th Round) (Ministry of Statistics and Programme Implementation)
  5. Code 1-4 of NCO-2004 (Ministry of Labour): http://dget.nic.in/nco/CodeStructure.pdf . Calculation Steps: Multiplying the women in workforce (Age 25-34) given on pg 119 with women working in office given on pg 196.

Definitions:

School Education: Typically defined as classes I to XII.

Higher Education: Typically Universities, Colleges and Stand-Alone Institutions and includes integrated, certificate,  diploma, degree, post grad. and PH.D. courses.

Note: Do feel free to comment if you have any concerns or suggestions for the article. Your comments / concerns will be suitably included in the article.

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Women in Work Force – Part 3 (short update)

This is in continuation to the earlier posts which can be found here- Part 1 and Part 2.

One of the justifications advanced for women leaving the work force is that they join the part-time labour force. Let us analyze the past years data on Current Weekly Activity Status Approach (cws). According to the CWS approach, a person is considered as a worker if he/she has performed any economic activity for at least 1 hour on any day of the reference week. For details please refer this link.

As per the CWS Approach the number of women participants in the labour force have reduced by 20% from 2004 to 2012[i]

Female-LFPR- current weekly activity status

Male-LFPR-current weekly activity status

Do feel free to comment and hypothesize any other reason for this trend.


[i] NSSO employment surveys 60, 62, 64, 66 and 68. Current Weekly Activity Status (cws) approach data. (Participation rate per 1,000)

Home Page: Stand Up for a Cause…

Women in Work Force – Part 2

Shopper

I recently got a response to my article ‘Women in Work Force’, that women are leaving the work force because they need to take care of the children.

The justification seems logical but does not hold merit as –

  • Did women not have to take care of children in 2004? Were women not taking care of children earlier and therefore working and have recently realized over the past decade that they need to take care of children?
  • The proportion of children to the total population of India has reduced in the past decade, implying that lesser women-hours are to be spent on taking care of children now as compared to a decade earlier. Therefore logically their participation in the labour force should have increased as opposed to decreasing.

As per the census of India[i], the proportion of children in the age group 0-10 years has reduced from 26.5% in 2001 to 22.3% in 2011. This means, now more women should have free time as they donot have to take care of the children.

Another justification given for women going out of the work force is that they join the part-time labour force. If we analyse the labour force taking into account the subsidiary economic activity (ss) workers, even then number of women participants have reduced by 20%.[ii]

Female Labour Force Participation Rate (ps+ss)

Male Labour Force Participation Rate (ps+ss)

Hence, none of the justifications seem to be backed by facts.


[i] Census of India: 2011 and 2001

[ii] NSSO employment surveys 60, 62, 64, 66 and 68. Usual Principal Activity Status (ps) and Usual Subsidiary Economic Activity Status (ss) approach data. (Participation rate per 1,000)

Home Page: Stand Up for a Cause…

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