The ugly truth about Indian divorce: Why the new cabinet law is important
The end of even the worst marriage usually spells disaster for the average Indian woman. The reason are our lopsided divorce laws, but will changing the law make any difference?
Editors note: This story was first published in March 2012 as part of a 'Good Reads' curation of a piece that appeared in the New York Times India Ink blog. However given the cabinet decision to pass a proposal giving divorced women a share of the man's ancestral property, we have decided to republish it as we feel the story highlights why such a law is important.
Media stories on divorce in recent years have gained a certain rote-like predictability. The divorce rates are up. The stigma against divorce is fading. And all this because the kids these days aren't alright: they want more, compromise less often, and are quick to take the easy way out. Not surprisingly, almost all the examples offered are upwardly mobile urban professionals. No one cares about what's happening in other, less trendy quarters.
Two recent articles offer an important corrective to this elitist skew. First is an India Ink piece by Pamposh Raina headlined, "For Indian Women, Divorce Is a Raw Deal." [You can read it here] For all the hand-wringing about more affluent big city sections of the population, the reality is that the divorce rate has not increased very much: "National statistics don’t exist on divorce in India, but some local records do show a rise. Still, some experts say the divorce rate in India continues to be artificially low, because of how biased the system is against women, who can be left financially destitute even if their husband is wealthy."
The end of even the worst marriage usually spells disaster for the average Indian woman. The reasons are straight-forward. One, there is no concept of joint marital property. The assets (vehicles, houses etc.) remain with the person who holds the title, most often the man. Two, when the woman has a case, she often can't afford the extended legal battle required to secure her rights.
And three, while Indian laws make provision for alimony and child support, these rarely offer relief in the real world:
In India, where tax authorities estimate just 3 percent of the population pays personal income tax, and “black money” or under-the-table cash is common, the man’s actual earnings are often hidden, Ms. Singh says. Additionally, the wife may not have access to documents that prove what her husband earns, Ms. Singh says. Even if she does, the maintenance amounts are tiny. Citing courtroom experience, Ms. Singh says judges generally fix a share of 2 percent to 10 percent of the husband’s annual earnings for maintenance amounts.
The result: most women prefer to stay and suffer.
Where Raina's article covers the required bases, Stephanie Nolen writing for the Canadian newspaper Globe & Mail offers a far richer version of the same story. [Read this excellent piece here] We see, for example, how these laws punish someone like Rajesha Hamar who fled an abusive husband, a man who routinely beat, throttled, and sexually asssaulted her in front of his relatives. She took her baby with her but left behind all her dowry, including a motorbike, and jewellery.
He does not pay a single rupee in support, leaving Rajesha to support her toddler with the money she earns as a maid. She lives with her mother and brother in a one-room tenement, sleeping on the floor under their bed with her child.
In comparison to the statistics for divorce, the financial numbers for divorced and separated women are far more alarming. According to a recent survey of women of all income groups, 46 percent of the women never received their awarded maintenance, "and of those who received them, 60 percent said the funds did not come on time." In terms of dowry, a paltry 30 percent recover any part of the assets given by their parents. The survey also "found that 75 percent of women return to their “natal family” – parents or brothers. Nearly half reported they had no income, and 28 percent earned less than $50 a month."
The kicker: If the woman files for a divorce, she "has virtually zero chance of obtaining a financial settlement of any kind."
The data also points to an overlooked problem with Indian divorce laws. We can -- and likely will -- fix the marital property laws at some point. The government has announced plans to introduce a limited corrective that will allow the courts to award the woman a share in the matrimonial property if she has contributed to the same.
But if we can't enforce existing alimony laws, any new amendment is likely to be as meaningless in practice. The reality is that unless we fix our broken judicial process and change a corrosive societal mindset, there is little legal redress for women trapped in abusive marriages.
Where more affluent women can and will continue to survive these lopsided laws, what is a woman like Rajesha to do? Her solution: “If I don’t go back, I’ve got nothing. I’ll never have anything.”
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