Maintenance for Women Rhetoric of Equality

Author(s): Flavia Agnes

Source: Economic and Political Weekly, Vol. 27, No. 41 (Oct. 10, 1992), pp. 2233-2235
Published by: Economic and Political Weekly
Stable URL: https://www.jstor.org/stable/4398994
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 PERSPECTIVES

Maintenance for Women and woud make judicial separation profitable

and also impede any future reconciliation.
It must also steer clear of the other extreme,
Rhetoric of Equality viz,-penuriousness.
It would be held that Rs 25 out of the
Rs 90 was just the amount as would support
Flavia Agnes
the wife not in any comfort but as would
enable to keep her body and soul together
because in all conscience Rs 25 could hardly
A popular myth prevailing in society is that liberalised divorce be described as a liberal maintenance in these
laws wiOl lead women to a life of 'freedom' which will corrode the days of high prices [M Ponnambalam vs
Saraswathi, AIR 1957, Mad, 6931.
moral fibre of society. Consequently divorce laws have been so But what is alarming is that these
structured as to make the marital state a more attractive statutory provisions of a meagre main-
proposition in terms of economic security. This assumption tenance dole are popularly known more
constrains all efforts to seek maintenance provisions which are for their violation than their enforcement.

just to women. No one takes these orders seriously-not

the courts, nor the husbands nor their
lawyers.
THE need to keep women economically that liberalised divorce laws will drive all The issue of maintenance with its impli-
dependent is closely linked to the conser- women to a life of freedom (read 'easy vir-cations of economic subordination raises
vative fear of women's sexuality and a tue') and thus corrode the moral fibre of several questions. Firstly, whether the
'corresponding hostile notion that an the society. maintenance provided by the courts is
independent woman may 'go astray. In order to prevent this corrosion of the adequate to maintain the women and their
Whether before, during or after marriage moral fibre of society, the legislature has children. Secondly, whether it is possible
this fear of women's sexuality continues so structured divorce laws that the econo- to enforce these rights within the existing
to govern social norms. Social conditions mic security which a marriage promises legal system where the onus is on the
are created and enforced to keep women is retained as the more attractive propor- woman to prove the husband's income.
perpetually in economic bondage so that tion. If a woman is wanton enough to opt Further, the burden of enforcing the order
the male control over their sexuality can for divorce then she should be brave is thrust on the woman. Practical experi-
be maantainecL It is within this framework enough to opt for proy seems to be the ences prove that the legal system is in-
of economic dependency that a need to underlying concept. For example, the rightadequate to meet the challenge of saving
pay maintenance to women arises. The to matrimonial home which is ensured by women and children from destitution. At
issue of maintenance is intricately linkeda marriage contract is terminated as soon the third level, propagators of equality
to the denial of property rights and job as a woman is divorced. A woman also wonder why men should be saddled with
opportunities to women. loses all rights to inherit her husband's the duty of maintaining the wives who are
The dual need for sexual control and property. It is no wonder that women opt supposedly equal partners in the marriage.
economic subordination makes marriage for divorce only when all forums of recon- According to them it is a clear case of
an ideal proposition for all women. Most ciling the marriage fail, in spite of a wanting to have the cake and eating it too.
women view marriage as the only option prevalent myth to the contrary. But since And lastly, the issue of whether main-
for sexual expression, emotional anchor the state was forced to recognise the pover- tenance will perpetuate economic sub-
and material needs like food and shelter. ty which is a consequence of desertion ordination of women. The prevailing con-
lb what extent a marriage can fulfil theseand divorce, a meagre dole is statutorilycept upon which maintenance is based,
aspirations is left to the wili and whim of provided literally in order to keep a clubs women with the aged, the minors
individual husbands. Tb perpetuate the woman's body and soul together. A duty and the handicapped persons all of whom
economic subordination of women within is cast on husbands to maintain their are incapable of maintaining themselves.
marriage women's role as a housewife is wives by paying them this subsistence This is degrading to say the least. And in
glorified which gives a false sense of dole. While enacting this provision, the reality this is not correct. The meagre dole
security to married women. But neither concern of the state has been more promised by the statute, even if received
the law nor the society recognises the role towards prevention of social evils such regularly,
as is far too inadequate to help
of women as home makers in concrete vagrancy and prostitution rather than anywomen to live a life of dignity. In any case,
monetary terms. So, irrespective of the real concern for the dignity of women. since most husbands do not pay, the
fact that a woman has looked after the The maintenance dole is kept at a women not only maintain themselves but
home and brought up the children with minimum so that divorce does not are become
also forced to maintain their children.
love and care for several years, when the a more attractive proposition, so that Womenthe carry on the task of maintain-
marriage breaks the law recognises only institution of marriage can be preserved ing their families by working at low paid
the husband's title to the house. All the and strengthened. Several judgments on jobs in the unorganised sector. Since
family income and assets become the ex- maintenance actually state this ideology women are not recognised as heads of
clusive property of the man. The non- without mincing words as the following households their earnings continue to be
recognition of women's contribution to judgment indicates: below the subsistence level. They have to
the marriage and home reduces women to choose between a below subsistence level
In regard to determining what is required by
a state of destitution when the marriage wage and the meagre maintenance dole,
the wife to miaintain herself, court has to steer
breaks down. clear of two extremities, viz, it must not give because the law will not let them have
A popular myth prevalent in society is maintenance which would keep her in luxury both. Whatever she chooses, under the

Economic and Political Weekly October 10, 1992 2233

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present economic, social and legal systems
she is rendered destitute because the alter-
natives are not adequate to meet the basic
requirements of a woman-headed house-
hold. Sociological studies have con-firmed
the hypothesis that women headed house-
holds are the poorest of the poor.
While divorce reduces women to pover-
ty, conversely it improves the economic
status of the husbands. The salaries which
men are paid in the organised sector are
based on the requirements of the entire
family. The minimum wage is worked out So she advocates a larger share for women
on the basis of three units-one unit each
for the man and his wife and a half unit
each for two minor children. The benefits
of developmental programmes, progres-
sive labour laws and reservation policies
are reaped by men alone, while women
from the same socio-econonic background
lag far behind. The woman continues to
be illiterate, poor and confmed to menial
jobs.
The man's earnings and dwelling house
has a certain sanctity under the law. Pro-
tecting the family against creditors is one
of the basic premises of civil law. Certain
percentage of salary, dwelling house and
provident fund are protected against out-
side creditors in order to protect the fami-
ly. Unfortunately the same criteria is ap-
plied even when the creditor in question
is the man's wife or his minor child. The
protective mantle meant to safeguard the
family is today used against the family
itself. A man can throw the wife and
children out and then claim protection
from attachment and defeat the woman's
and the children's claim for maintenance.
Any staUIe which intends to protect
sive insight into the problems facing India and highlight some of the
women's righ will have to take into con-
sideration these social, historical and possible ways of working towards solutions. In a sense, these papers
economic factors which contribute to collectively represent the quintessence of the current thinking of In-
women's destittion after divrce or deser- dia's intellectuals drawn from a very wide range of disciplines. The
tion. To achieve a balance between men
and women, some western countries have
introduced the concept of community of
property so that assets and property can
be divided equally between the spouses
upon divorce. A woman is also permitted
the use of matrimonial home as long as
the dependent children are in her custody.
But the recent feminist legal theory have
gone even beyond the concept of equal
sharing of property. Martha Albertson
Fineman in her book Illusion of Equality
[University of Chicago Press, 1991] argues
that the concept of community of proper-
ty is based on a false presumption of
equality between men and women. Since
men and women are not equal either in
society or within marriage, this presump-
tion also contributes towarids widening the
gap between men and women.
When women are disadvantaged in the
2234 Economic and Political Weekly October 10, 1992
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labour market and simultaneously are en- Hindu Marriage Act, 1955 was the first
trusted with the major role of domestic to grant men the right to claim main-
responsibility, result-equality should have tenance from their wives.
been the object of matrimonial reform,
As stressed throughoujt this book, the
she stresses. Within this framework she
concept of maintenance is linked to sexual
advocates an instrumental rather than
control and economic subordination of
symbolic understanding of equality as the
women. Therefore only a chaste woman
basis for reform which will lead towards
is entitled to maintenance. Remarriage or
restructuring social relationships. Rather
unchastity results in the denial of
than being treated as equal or same the
maintenance. Within a patriarchal system,
two groups need to be treated differently
the criteria of sexual purity can never be
so that they may end up at the same level.
applied to men. Even hypothetically if
maintenance to men is linked to their
which is 'need-based' rather-than 'equality-
sexual purity it would not have the same
based' in order to achieve equality.
social implications.
But in India the legal theory regarding
maintenance seem to have progressed in Where men are concerned the yardstick
a distorted manner. In the name of reform, for measuring the eligibility to main-
absurd notions of equality-are being in- tenance has to be totally different, as can
troduced within matrimonial laws. The be observed from the following case.
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Padmasini, an erstwhile film actress was ment held that it denies woman her choice secular code has been rendered beyond the
ordered to pay maintenance by the family whether, when and how her body is to be reach of Muslim women. Muslim women
court at Madras on March 16, 1990. used. But this judgment has subsequent- who are constrained by social factors like
Ironically the suit for divorce was filed ly by
been overruled by the Supreme Courtpurdah, illiteracy and polygamy are very
her after her husband brutally attacked [T Sareetha Vs T Venkatasubbaiah, AIR much in need of beneficial legislations like
her and permanently damaged her eyesight 1983, Andhra Pradesh 356]. maintenance, not in order to he equal to
and speech. The order was confirmed by In the famous 'Pati Paranieshwar' case men or not even to live in dignity but just
the Madras High Court. Padmasini who the Bombay High Court was called upon in order to survive in this world. And yet
also has a child to maintain was forbidden to decide whether depicting the woman in the state, under the garb of rigts of
to work after marriage by her husband. a position of 'ignoble servitude' is against minorities, has trampled upon this basic
The husband was convicted for assaulting public policy under the guidelines issued right.
her under S 323 of IPC. by the Cinematograph Act. While striking Another convenient whip used against
If the 'weak' and 'the powerless' ineed dow-n the ban imposed by the censor women is monogamy. The coticept which
to be maintained then the minin-mum board, three out of the four judges who was made applicable to Hindus by the
criteria for awarding maintenance to heard the case at various points held that Hindu Marriage Act in 1955 was sup-
hkushands would be their restrain from it is not against public policy. One of the posedly for protecting women's rights. But
using physical violence which is a mani- judges held that the film portrays the ex- as judgment after judgment revcals it has
festation of their superior status within emplary character of a Hindu wife and boomeranged and is used by husbands to
marriage. But sadly such complex layers found the humiliations and insults suf- defeat the women's claim to maintenance.
of power relationships do not get accom- fered by the wife as ennobling. The secondAt one level the Hindu marriage is not
modated within the canons of matri- judge held that since the film would be recognised and at the other the law does
monial statutes. So while an 18-year-old viewed by a primarily Hindu audience not prescribe any definite and uniform
boy has no right to claim maintenance there was nothing wrong in 'ignoble ser- ceremonies for soleinnising the marriage.
even from his own father, an adult male vitude' of the woman. The judgment was Today the Hindu men can conveniently
has the privilege of claiming maintenance delivered in 1988. marry and then state that the woman is
from his wife. But if a woman dares to defy such con- not entitled for maintenance.
Ironically, even while women are called servative norms of 'an ideal Hindu wife' At this point the inherent powers of the
upon to 'maintain' their husbands, judges and succeeds in making a career then the court are not used to punish the husband
continue to propagate the model of an law reverses its stand and in the name offor the criminal offence of bigamy. The
'ideal Hindu wife' whose husband is her equality orders her to pay maintenance toonly outcome is the second wife becomes
Lord and Master. For instance, in a case her husband. At that juncture the glossy devoid of her right to claim maintenance.
filed by the husband for restitution of notion of 'an ideal Hindu marriage' where What is most surprising is that the legal
conjugal rights, while granting the decree traditionally the man is not supposed to position seems to be more favourable in
in the husband's favour the court held: 'A live off his wife does not work. Here our cases where the uncodified Hindu law ap-
Hindu wife's first duty is to submit herself
judges suddenly turn modern and pro- plies because the courts have held since
obediently to her husband's authority and gressive and committed to the concept of bigamy is permitted the second wife is en-
to remain under his roof and protection' equality. It does appear that the two con- titled to maintenance.
[Tirath Kaur vs Kirpal Singh, AIR 1964, tradictory concepts-equality before law Thus whichever way we look at the
Punjab 28]. and image of traditional Hindu woman issue, it becomes clear that the concern of
The details of the case make an in- can be twisted around in any direction to the state is not towards creating conditions
teresting study. The woman had to take grant men the benefit. leading towards equality between men and
up a job to meet the financial needs of Such pseudo equality concepts are fast women. Hence, constructive suggestions
the family. 'The husband had no money to spread. By an amendment in 1988 the by the Law Commission and progressive
to pay even for her training. So she went Parsi men were granted the right to claim legal forums are deliberately left to
to her father's house, got herself trained maintenance from their wives. Ironically, stagnate. These suggestions include im-
and secured a job in a nearby city away S 50 of the same act, which stipulates that portant provisions like removal of the ceil-
from the matrimonial home. The husband a woman will be depfived of maintenance ing of Rs 500 (or alternatively raising it
used to visit her regularly and all was fine if she is unchaste has not been modified. to Rs 5,000), the right to matrimonial
till she could satisfy the needs of her hus- Further the clause under the Indian Suc- home and strict measures for the payment
band. But when she was unable to meet cession Act which entitles a Parsi woman of maintenance, etc. Factors like age,
the increasing demands of her husband to only half her brother's share of proper- health, illiteracy and lack of skills also
the husband filed a case for restitution of ty upon the death of the father in intestate need to be taken into account while
conjugal rights. succession was not simultaneously chang- deciding maintenance. Further the men's
In another similar case the court held ed. Only in 1990 was an amendment to duty to maintain their children need to be
that it is the duty of the wife to live with the Indian Succession Act i 1990 passed strictly enforced so that women are not
her husband wherever he may choose to to make the change. left with this additional burden which
reside and to fulfil her duties in her hus- The position of women from other contributes further towards their destitu-
,band's home [Ram Prakash vs Savitri minority community is no better. Under tion. Today the challenge before the state
Devi, AIR 1958, Punjab 87]. the Christian law a woman is entitled to is to make the rhetoric of equality into a
The Andhra Pradesh High Court in not more than one-fifth of the husband'sconcrete reality. Safeguarding women's
T Sareetha's case had held that the remedy earning. A ceiling which was set under the economic rights is the first step towards
of restitution of conjugal rights is violative
Indian Divorce Act in 1869 has not been this direction.
of the right of privacy and human dignity changed to date. While Muslim law does
rrhis is an excerpt from a forthcoming book
guaranteed by article 21 and is therefore not recognise a divorced woman's nght for Give Us This Day Oulr Daily Bread by Flavia
ulltra vires of the Constitution. The judg- maintenance, even a right granted by a
Agnes being published by Majlis, Bombay.]

Economic and Political \eclkly October 10, 1992 2235

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