Articles by our colleagues
Category: By Jamal Kidwai
An article on Marriage Laws (Amendment) Bill in the Tribun
A house divided for Mrs and Mr
Are women recognised as equal actors inside the institution of marriage? Success of the new Marriage Laws (Amendment) Bill, which ensures half a share for woman in her husband's residential property depends on how this question is answered by other institutions and the society in general.
The Union Cabinet has made some significant amendments to the Marriage Laws (Amendment) Bill. The most radical being that in case of divorce, the women will get half a share in her husband's residential property, regardless of whether the property was acquired before or during the marriage. The spirit behind this amendment is to empower and encourage women, by giving them financial security, to seek divorce when they are in an unhappy marriage or a marriage which is abusive and violent. This is truly a progressive amendment and should be welcomed not only by womens groups but all people who are progressive and liberal.
Having said that, our past experience shows that when it comes to empowerment and protection of minorities like women, dalits, tribals and Muslims, laws in themselves are not enough. This is because of several reasons.
Second, one of the essential conditions for any law to be effective in letter and spirit, is that there is enough information and awareness about the law and its provisions amongst the target group that the law seeks to address or benefit. Take the case of the Domestic Violence Act (DV Act). In the context of gender justice, like the present Marriage Amendment (Law) Bill, the DV Act is also considered a landmark law. I can, with all responsibility, state that very few lawyers or police personnel in Jehanabad know what the DV Act is all about. Nor is there any awareness among the women who are victims of violence. A standard practice with the lawyers to deal with acts of domestic violence is to lodge a case against the husband under 498A (commonly known as the Dowry Act). The reason is simple. Because if convicted under 498A the punishment will be much harsher. Therefore, the lawyers use 498A to blackmail the guilty husband either to “reform” or as it happens in most cases, the lawyers take bribe from the accused husbands to have an out of court settlement. Instead of ensuring justice and empowering the woman, these laws become an handy tool for the lawyers to earn extra income.
A combination of ignorance, societies that are bound by tradition and patriarchy and a highly corrupt police and civil administration can be a deadly cocktail to subvert laws like the Marriage Amendment (Law) Bill and at times work to the disadvantage of women.
A guilty husband can transfer the property to someone else name to ensure that the woman doesn't get the share. And in a poor country like India, its highly likely that the husband may not have any property at all. And given the common corrupt practices and bureaucratic delays in that Indian courts are infamous for, to protect his property, the guilty husband can easily succeed in delaying the divorce procedure. This in turn will extend the suffering of the woman who is seeking divorce.
And third, whether poor or rich, woman are by and large discouraged by the family and society to seek divorce. Go to any legal aid cell for women in India and they will tell you how majority of the women give up the fight mid way because they neither have the resources nor the social support structures to sustain the long-drawn out torturous process of legal battle. There is a provision for such a shelter under the DV Act, but it is there just on paper. Therefore, it is the duty of the state not only to provide such courages woman and their children access to safe shelter, but also avenues for education for children, livelihood for women and other support structures essential for leading a dignified life.
Without such a support structures, political mobilisation, reform and large-scale awareness campaigns the Marriage Amendment (Law) Bill will fall way short of fulfilling the desired objective.