EDITORIALS

Not Made in Heaven

Changing marriage laws will not necessarily make marriages more equal.
nion Law Minister Kapil Sibal introduced the Marriages Law (Amendment) Bill 2013 in the Rajya Sabha on 26 August 2013 as a law to protect womens rights. He saw it as a historic piece of legislation and claimed that it gave out the message that Members of Parliament (MPs) are on the side of women in our patriarchal society. The bill passed the upper house and now awaits a vote in the Lok Sabha. But reassuring as the ministers sentiments are, clearly one more law, however necessary it might be, is not going to be adequate to protect womens rights in India at a time when they are under assault from all sides. Nor will women sit back relieved that MPs are on their side. The Marriages Amendment Bill has gone through various iterations and could go through more before it is introduced in the Lok Sabha. It has been discussed over several years with specic inputs sent to the government by both womens groups and groups ostensibly defending the rights of men. The law seeks to amend provisions in the Hindu Marriage Act 1955 and the Special Marriage Act 1954 relating to divorce. It introduces the concept of Irretrievable breakdown of marriage as a ground for divorce where the husband and wife have to live apart for at least three years before they can be granted a divorce on these grounds. This obviates the need for prolonged litigation on the existing list of reasons for divorce that include cruelty, desertion, conversion to another religion, unsoundness of mind, etc. Making divorce easier is a double-edged sword. While it will help both men and women who continue to be married even when all semblance of a marital relationship has broken down, some womens groups suggest that it could work against the interests of women who do not have independent sources of economic support. Partly to address these concerns, the bill allows the wife to ask for a share in the husbands movable as well as immovable property. Although she will not be entitled to a share in his inherited or inheritable property, the judge can assess the value of these properties when deciding on the amount of compensation or alimony that the husband should pay her. However, critics of the law have pointed out that giving the estranged wife a share of the husbands immovable property will deprive other women in the family, such as daughters, of their share. Also, the ownership of such property, for instance a house, is not always in a single name. Hence, determining the womans share in such property is complicated. In any case, this provision will only help women whose spouses have property. 8

The majority of women, those who live in families of little or no property, will clearly not benet by this provision. Apart from several anomalies in the law, what the continuing debate on the changes in such laws emphasises repeatedly is that laws alone do not, and indeed cannot, address the inherent inequality of womens status. Marriages, some say, are made in heaven but on earth it is an institution that is essentially unequal. Therefore, irrespective of special protective provisions, such as the woman having the right to refuse a divorce on these grounds if she fears she will be left without adequate nancial support, women will continue to be disadvantaged. In any case, as far as poor women are concerned, the only reality for them is desertion, not divorce, and there is no question of alimony or compensation. Even for women with some income and a profession, these new grounds will not necessarily guarantee them an equitable share of property and nancial resources. For although the law enables women who want to walk out of an abusive or violent marriage to get a divorce without having to go through protracted legal battles, there is no guarantee that the decisions about compensation or alimony will be quick or even fair. Lawyers handling such cases point out that not only is it virtually impossible to establish precisely how much the husband earns or the extent of his nances, but that even after nancial compensation is settled, getting delivery of this amount becomes another major battle often fought in court. In the nal analysis, such incremental changes in the law, to make them more sensitive to womens rights and requirements, might be inadequate but they are a step forward. Despite the shortcomings, and many of them will continue to be debated even after these laws come into force, the very fact that they exist on the statute is decidedly a plus. That these changes are the result of pressure from below, most often by womens groups who have campaigned for them, is also a positive point. Stronger laws empower those ghting for womens equality with legitimate grounds to demand womens entitlements. Yet, making laws work for women is never easy. Changing laws is only one small step. The far more challenging and difcult task is to ensure that they are implemented. Just as the impetus to change laws has come from civil society, inevitably the burden of ensuring their implementation also rests on the shoulders of groups outside government. Without this kind of impetus from below, even good laws are reduced to little more than a decoration on the statute, to be used by those who want to boast about their concern for women and their rights.
september 14, 2013 vol xlviII no 37
EPW Economic & Political Weekly