Failure of Marital property distribution laws (Learning from China ?)
The Chinese Supreme
Court very recently ruled that from now on, the person who buys the family
home, or the parents who advance them the money, will get to keep it after
divorce. In particular, more than a third of all marriages in Beijing, Shanghai
and Guangzhou now end in divorce, and the fastest-growing segment of society is
those aged 25 to 34. Almost half of all divorces see a court squabble over the
family assets. "I would choose a luxury house over a boyfriend
that always makes me happy without hesitation," said one 24-year-old
contestant on If You Are the One, one of China's most popular television dating
shows. "And my boyfriend has to have a monthly salary of 200,000 yuan
(£18,900)," she demanded. China and Indian have the same sort of
demographics and people of both China and India suffer from the same level of
hyper materialism. In such circumstances the introduction of property
distribution laws based on senseless feminist pressure leads to a severe
disruption in the society. Why are we making the same mistake that China made
on property division on the
unsubstantiated assumptions and presumptions of a few
women's organizations?
Property
laws will fail in a hypergamic Indian marriage market
Indian marriages are
essentially hypergamic in nature, meaning the brides have an inherent and very
strong desire to move up in the socioeconomic ladder through marriage. The
Indian society like other societies is like a pyramid with increasing level of higher
socioeconomic status as we move up the pyramid. This also means that as we move
up pyramid the supply of boys with higher socioeconomic status declines
sharply. This leads to higher number women from a lower level in the pyramid
competing for a relatively smaller number of men higher in the pyramid. This
inherent desire of families to place their daughters in a better socioeconomic
position after marriage (higher in the pyramid) leads to a supply demand
problem and leads to dowry. Dowry is a prize which the bride’s family pays to
elevate place their daughter in a better socioeconomic position in the pyramid.
Also men prefer to choose brides from a lower socioeconomic background with the
belief that they will be more happier after marriage and will form better
caregivers.If property laws are introduced it will lead utter chaos in the
society.
1. Women
from lower level will compete and choose only those men who own property. As a
consequence poorer men who do not own any property will find it extremely hard
to find a match at their own strata.
2. Like China, property will become the determining factors for women
in choosing a husband. Women will find a man owing property an extremely
attractive match while rejecting the ones who do not,
3. Marriage will look like an increasingly riskier proposition for
men
Copy pasting American laws in an Indian context is a sure shot
recipe for disaster
If we define household work as the "effort"
that will entitle the wife to 50% of the assets then in joint families the
husband’s mother, sister , and father also work for the welfare of the
household the same time period as the wife does and on this premise
they too will be entitled to equal shares of the property when it is being
distributed. So in a marriage of 2 years in a joint family household the assets
acquired by the spouses will be essentially divided into 5
equitable shares(husband, wife , mother-in-law, father-in-law and
sister-in-law) and wife will be entitled to only one share. The above example
shows the dangerous problems and issues that will occur when American laws are
blindly copied in India without any thought. It is also prudent to note that
marriage and family as an institution has completely failed in west on account
of these laws. The failure has been so total and complete that surveys in the
US have concluded that marriage is a terminal decline in west and single parent
families will be new norm. Why are we trying to blindly import such laws at the
insistence of a few radical women’s organizations? Do we want to destroy the
Indian family system that has served us so well for 10,000 years?
Nobody except some feminist
organizations feel that the law justified
Barring a handful of feminists groups speaking in favour of
the law, we would want to quote from media reports some of comments from a wide
cross section of the society. The comments reflect the shock expressed by the
nation on this proposed amendment to award 50% of only the husbands property
the wife.
a. “The wealthy or high net worth individuals can be a target.
We all know women are not the only victims in marriages these days. I have
handled gold-diggers myself”…This
is absurd!” - Mrinalini Deshmukh ( Eminent Lawyer)
b. “A law cannot be lopsided, favouring one side over the other — the
legislation has to be fair and square to all sides. Otherwise it would be ultra
vires of the Constitution!”- Mrinalini Deshmukh ( Eminent Lawyer)
c. "The proposed law is already instilling a fear pyschosis in men,” Siddharth
Shah, a divorce lawyer in Mumbai.
d. “This is a bad legislation,” Atindra Kumar Mukherjee, a
senior divorce lawyer in Calcutta, stressing that there’s ample scope for abuse
it were to come into force.
e.”Hindu Marriage Law Amendment Bill is anti-men, will destroy Indian
families” – ehitavada paper Nagpur
f. “Every year, over 62,000 married men commit suicide due to verbal,
emotional, economic, and physical abuse and legal harassment. The suicide rate
of married men is double that of married women. One married man is committing
suicide in every nine minutes.” – Indian Express Bangalore
The
question of 50% property – Western law coupled with Indian Feminist Fanaticism?
What
is perceived more attractive for a young hypermaterialistic female youth of modern
India, a 2 crore house, coupled with a car, Half of the bank deposits, Gold and
savings, all totalling over 3 crore house or her marriage? If husbands
and their families are perceived by the government to be greedy for dowry
(wealth), why is it perceived the young women and their families would be any
different? The west does not have over 6 Maintenance laws like India does
and neither does the west witness severe misuse of laws like 498a in India
which has been called as “Legal Terrorism” by the honourable supreme court of
India. However it is surprising to note that instead of curbing the misuse in
the other matrimonial laws the government has for reasons knows nest to it has
approved the formation of a new one, this one more draconian than the other. Indian
Gender laws in particular are so badly drafted that they out rightly excludes
even the possibility of a woman being the cause of any sort of marital discord.
Irrespective of the fact on who is petitioning for the divorce, it the husband
who is assumed to be one guilty of breaking the marriage.Just like a wife a husband also has every
right to break out of an abusive relationship. With no legal recourse for
domestic violence(DV) or marital harassment(498a) like available for wives the
only tool available for Indian husbands to stay separate from abusive wives and
to petition for a divorce to end the domestic harassment. However divorce is
made painfully expensive for Indian husbands trying to break free from abusive
wives and this law is another step in that direction.
Section 13(D) of MARRIAGE LAWS (AMENDMENT) BILL, 2010 is also
grossly unconstitutional
Some sections of the bill are in clear violation of article 15 of the Constitution
of India which prohibits discrimination against any citizen on
grounds of religion and sex. Article 15(3) of the Constitution, (which is a
subsection and BELOW Article 15), does allow the Government to make special
provision for women and children, but now at the expense of discriminating
against men or husbands.
a) Article
15(3) of the constitution merely provides for special provisions for women and
children, it does not permit the framing of special laws which will violate the
essence of the Main Article 15. Had that been the case, the
constitution of India will become self contradictory. Section
13D of the bill openly discriminates against husband by awarding the choice of
opposing a divorce on financial hardship solely to the wife and totally denying
the same to the husband even though it is amply clear that both genders can be
in equal need of financial assistance.There are many families in
India today where husbands have assumed responsibilities of the household and
wives are the primary bread earners. This bill will discriminate against these
husbands should their wives petition for divorce. Also in many households
should husbands become unemployed, ill, handicapped or infirm and should if
an earning wife chooses to abandon and divorce this husband under these
circumstances, the husband would have no legal recourse to seek adequate
compensation from the wife on the grounds of financial hardship.The current
concept of gender neutrality like that of Section 24 of the Hindu Marriage Act
which takes into consideration that both, the husband and the wife can face
financial hardship has been totally ignored in this Bill, specially in this
section.
b) Article 15(3) of the constitution although does allow the
government to make special provisions for women, but the same article cannot be
used to overlook the fact that in modern India women in many cases earn a lot
more than the husband and just like the husband they too have a solemn
responsibility to satisfy the condition of financial hardship of her husband
before getting a divorce.
Section 13D will be used as the 5th duplicate maintenance
law
The duplication of laws, total ignorance of Universal declaration
of human rights and principles of natural justice, non constitutional
language of offering protection solely to one gender coupled with very poor
implementation of Perjury laws has created a dirty labyrinth in the Indian
Gender laws where mostly female litigants and their families collude and then
lie to any extent without the fear of ever getting punished just to harass the
husband’s family and forcefully extort money. On the other hand the government
which complains regularly of the backbreaking load on the judiciary does not
care when it allows the duplication of gender laws. Some sections where gender
laws are duplicated are,
- Indian
Maintenance laws :- Maintenance can be demanded by a wife using an 4
separate laws namely HMA 24 , HMA 25 , CrPC 125 , DV Act Maintenance
provision. Most female litigants use at least 3 at any time to
maximize their gains from misusing maintenance laws and causing additional
harassment and causing extra judicial burden.
- Section
498A , DV :- Section 498a and DV Act 2005 was clearly not necessary when
sections IPC Section 322 – Hurt & IPC Section 322 Grievous
Hurt were much better laws which served the same purpose and were less
prone to misuse like 498a and DV which is misused in 98% of cases
according to Govt statistics. Most female litigants use both
of them together just to harass their spouses.
Not having learnt its lesson from such outrageous misuse the
Indian government continues to promote new gender laws which are again not
“evidence” based but “assumption based” and out rightly exclude the woman from
committing the same offence that it tries the man to prosecute for. Newer laws
are “monetary settlement” driven and do not emphasize on “punishment” but on
“settlement”! These dubious premises have given rise to an extortion and
blackmail industry and have led to phenomenal distrust amongst the people
of India on the Indian Gender laws. Section 13D of the
Irretrievable of Marriage Bill on the same lines as explained is but
essentially will be used as a tool to block a divorce until unreasonable
financial demands of a wife are met and will just and will be a 5th maintenance
law apart from the 4 already existing as has been elaborated earlier.
Section 13 D will lead to
the husband having to “Buy” a divorce
The current version of Section 13D is drafted as below .
13 D . Wife’s right to
oppose petition on grounds of “Financial Hardship”.
13D.
(1) Where the wife is the respondent to a petition for the dissolution of
marriage by a decree of divorce under section 13C, she may oppose the grant of
a decree on the ground that the dissolution of the marriage will result in
grave financial hardship to her and that it would in all the circumstances be
wrong to dissolve the marriage.
There
is no doubt that this amendment safeguards the concerns of women’s groups that
have vocally expressed their fear of financial destitution if they are
abandoned by their husbands on the irretrievable breakdown ground.
However there also will be widespread misuse of this legislation since
now the Husband will forced to ‘buy’ a divorce while wife can choose to
walk out whenever she feels , also a husband who is unwilling or incapable to
‘buy’ his way out of a divorce from the wife will be dragged into a lifelong
battle of judicial and spousal abuse for divorce since the wife may drag
the case on this premise for years together.
Section
13D of the act hence reduces the husband to a mere witness to the proceedings
and grants the absolute control of circumstances and the decision making in the
case in the hands of the wife. Husbands will be forced to buy their way out of
abusive wife’s and this will lead to wide spread extortion.
Also
in a scenario where the wife is the petitioner for divorce and is guilty of
adultery, crime against the husband and his family including but not limited to
Domestic Violence, Financial violence , Emotional violence or misuses the other
unconstitutional gender legislations like 498a etc , the wife can choose
to just walk away with the divorce without having to satisfy any conditions
whatsoever . In other words the husband will have absolutely no defence and
will be stuck with court cases running for years on end while the wife can
happily get the divorce and remarry as she likes.
Discrimination
against Indians Fathers in Child Custody cases will increase
Clearly,
the motivation to stay within a marriage changes dramatically reduces under a
no-fault divorce framework and same will affect child cutody. To mitigate the
worst effects of these distortions on children, 35 US states
have found it necessary to introduce a strong presumption of gender-neutral
shared custody and parenting laws, as well as gender-neutral alimony and
child-support laws. There is a now a large body of Case Law on Joint
Custody. In a Landmark judgement from United States , KENTUCKY: Chalupa v.
Chalupa, Kentucky Court of Appeals, No. 90-CA-001145-MR; (May 1, 1992)., Judge
Schroder, wrote for the majority:
“A
divorce from a spouse is not a divorce from their children, nor should custody
decisions be used as a punishment. Joint custody can benefit the children, the
divorced parents, and society in general by having both parents involved in the
children's upbringing.... The difficult and delicate nature of deciding what is
in the best interest of the child leads this Court to interpret the child's
best interest as requiring a trial court to consider joint custody first,
before the more traumatic sole custody. In finding a preference for joint
custody is in the best interest of the child, even in a bitter divorce, the
court is encouraging the parents to cooperate with each other and to stay on
their best behavior. Joint custody can be modified if a party is acting in bad
faith or is uncooperative. The trial court at any time can review joint custody
and if a party is being unreasonable, modify the custody to sole custody in
favor of the reasonable parent. Surely, with the stakes so high, there would be
more cooperation which leads to the child's best interest, the parents' best
interest, fewer court appearances and judicial economy. Starting out with sole
custody would deprive one parent of the vital input.”
A
similar landmark judgment was passed in GEORGIA: Court of Appeals of
Georgia, Case No. A93A0698, 7/2/93 IN the INTEREST of A.R.B., a child:
In
a unanimous opinion, presiding Judge Dorothy T. Beasley stated: “Although
the dispute is symbolized by a 'versus' which signifies two adverse parties at
opposite poles of a line, there is in fact a third party whose interests and
rights make of the line a triangle. That person, the child who is not an
official party to the lawsuit but whose wellbeing is in the eye of the
controversy, has a right to shared parenting when both are equally suited to
provide it. Inherent in the express public policy is a recognition of the
child's right to equal access and opportunity with both parents, the right to
be guided and nurtured by both parents, the right to have major decisions made
by the application of both parents' wisdom, judgment and experience. The child
does not forfeit these rights when the parents divorce.”
These
liberal democracies even go so far as to ensure that Grandparents have
visitation rights to ensure that a custodial parent cannot erase them out of
their grandchildren’s lives. They are also signatories to the Hague Convention
that ensures that a divorcing spouse cannot go “forum shopping” to a favourable
jurisdiction like India in particular to take shelter under the glacially slow
judiciary and severely anti husband laws.
None
of these checks and balances exists in the canon of Indian Family Law. Notably,
Indian Family Law does not even pretend to operate under gender-neutral
presumptions. The child-support responsibility falls disproportionately on the
father, as does alimony on the husband. Similarly, child custody of a minor is
rarely granted to the father. Finally, the father is almost always the primary
legal guardian of the Child. Even the terminology in the Hindu Marriage Act is
not gender-neutral: it refers to the rights and obligations of the “the
husband” and “the wife”, rather than “the spouse”.
If
one spouse can orchestrate a breakdown and unilaterally terminate a marriage
this ground, it necessarily follows that the Family Laws governing shared
parenting, child-support, alimony, and grandparent’s visitation rights must
also be simultaneously overhauled. These laws must ensure that a divorcing wife
cannot take advantage of a “no-fault” law to financially and emotionally
exploit other equally-legitimate stakeholders in a child’s life. They must also
ensure that one spouse cannot walk away the tangible and intangible assets
acquired during the marriage in a winner-take-all contest. The glacial,
idiosyncratic, wheels of the Indian Judiciary all but guarantee that fathers
are severely discriminated against once this laws turns into existence. As regards
the executive branch’s ability to enforce visitation and child-support, the
less said about it, the better.
False
498a and DV cases will continue to run even after divorce
•
This bill will reward the wife with the divorce while condemning lakhs of
innocent mothers and sisters the torture of a criminal trail in Indian courts
in 498a and DV cases since it does not mandate the closure of these matrimonial
cases at the time of divorce? The Bill essentially grants freedom and happiness
to wives through a divorce but is totally silent on how the false and frivolous
cases that are filed by wives be dealt with, even when the wife gets the
divorce and happily remarries? Right now during a mutual divorce all the
498a and DV cases are normally quashed so that the families on both sides can
part peacefully. The present draft of the bill aims to take away this resort
too as the wife would now simply go away with a unilateral divorce, with the
pending 498a and DV case running for years, which the wives normally do not
even care to attend. We would like to reiterate the government facts that over
90% of all 498a are false and over 80% of all DV cases are filed with malicious
intentions although the government continues to downplay the same.
•
The Law Commission’s 71st Report from where this recommendation was
copied was drafted way back in 1978, when biased laws like 498a and DV Act were
not in existence which were enforced only in 1983 and 2006. Hence Law
Commission had not considered quashing of such cases against husband and his
families as a precondition at that time, while granting divorce under
Irretrievable Breakdown of Marriage.
• Quashing all cases between the husband and wife while granting divorces
under Irretrievable Breakdown Marriage, would immediately reduce the crores of
pending cases in courts and will provide relief to crores of aged mothers and
sisters condemned to a lifetime of judicial apathy in Indian courts due the
Indian gender laws.
• Moreover there would be cases where the husband is all in will to save
his marriage, so that his child can have both parents, but under the present
format of the Bill, the husband will not have any legal remedy to save his own
marriage, even for the sake of his own child.
Demands
and Recommendations
We recommend that the following sections
be inserted into the MARRIAGE LAWS (AMENDMENT)
BILL, 2010 to ensure fairness to both genders and to reduce the overall load on
the Indian judiciary.
Recommendation 1 . Amend 13D to make the law gender neutral(both
husband and wife will have right to oppose divorce on financial hardship
clause)
13D to amended to ensure that both spouses may oppose the grant of a decree on the ground
that the dissolution of the marriage will result in grave financial hardship to
them and that it would in all the circumstances be wrong to dissolve the
marriage. The decision of satisfying the financial responsibilities will then
depend on the court and this would be decided based on the merits of the case.
13
D needs to be amended to
- Change “wife” to
“respondent” , change “her” to “them”
“13D.
(1) The respondent to a petition for the dissolution of
marriage by a decree of divorce under section 13C, may oppose the grant
of a decree on the ground that the dissolution of the marriage will result in
grave financial hardship to them and that it would in all the
circumstances be wrong to dissolve the marriage.”
Recommendation 2 . Equal share in Debt also
With credit comes debt and the wife cannot be entitled to only
credit whereas the husband will be left with the burden of debt. There has been
a defined mechanism to ensure that he debt incurred during the
matrimonial time-frame is also shared equally between the husband and
wife.
Recommendation
3. Objective definition of “Financial Hardship”
The
word “financial hardship” must not be allowed to be interpreted in a subjective
manner since subjective interpretation of this term and will ultimately turn
into a tool for extortion and will be used to block a divorce till the
unreasonable financial demands of the respondent are fulfilled. One respondent
person may claim Rs 10,000 /- to satisfy their face financial hardship
condition while another respondent with a mentality for extortion may demand Rs
1 Crore to fullfill the condition of financial hardship. Unless an objective
definition of “Financial Hardship” is provided the divorce process will again
be reduced to but a dirty fish market like it has become now where the
respondents will again essentially bargain the “price” of the divorce
citing the condition of financial hardship and block the divorce till this
condition is satisfied. The tenure of the marriage and the relative
capability of the respondent must also be clearly spelled out while determining
“Financial hardship”. Also there must be a predefined upper limit on the
time and amount that can be paid to satisfy this condition. Financial
hardship terms must be defined based on the living standard of the nation and
not on the unreasonable demands of the respondent. The ministry can learn the
objective and mathematical implementation of divorce from the Laws from
the United States where in the state the Texas for example
alimony cannot be sought if the marriage is not more than 10 years old. Even
when is granted, the alimony amount cannot exceed one 1/3 the income of the
payer or at the most $2500, whichever is lesser. Further alimony is tax
deductible on the payer and taxable on the receiver.
Recommendation
4.Condition of finishing all litigation before divorce is granted
Unlike
the west in India a divorce case is normally accompanied by many
cases namely, maintenance child custody, 498a, adultery, domestic violence, IPC
Sec 506 and many more. Most of the tomes multiple maintenance cases and 498a
and DV are filed together to harass the husbands and his family members and to
extort money through nefarious means.
In
the case of Swati Verma vs. Rajan Verma reported in (2004) 1 SCC 123 the
honourable Supreme Court of India was cognizant of the same concern
when it averred. “ Having perused the records placed before us we are
satisfied that the marriage between the parties has broken down irretrievably
and with a view to restore good relationship and to put a quietus to all
litigations between the parties and not to leave any room for future litigation,
so that they may live peacefully hereafter…”
In
the case of Naveen Kohli vs. Neelu Kohli (AIR 2006 SC 1675), the Hon'ble
Supreme Court recommended to the Union of India to seriously consider bringing
an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable
breakdown of marriage as a ground for divorce. The essence of the
above case was large number of criminal cases were pending against each
other. So in essence if either party initiates criminal cases against each
other then it should be considered an ground for divorce.
If the current law comes
into being in the present format, this will lead to the wife walking out with
the divorce while the husband will still be stuck in a legal tangle of cases
for many decades. I demand that an amendment will be inserted that decree of
divorce be granted only when all litigation including but not limited to child
custody between the husband and the wife has been resolved to the satisfaction
of either of the parties, with the post condition that no party will initiate
any other litigation against each other once the divorce decree has been
granted.
