India’s “Irretrievable Breakdown of Marriage Law”

Recently there has been a spate of discussions in the media on the upcoming Irretrievable Breakdown of Marriage Law (IrBM). Some important highlights of the proposed bill are:

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• Divorce can now be filed as a ‘No-fault Divorce’ stating that marriage has broken down irretrievably;

• Husbands do not have the right to oppose the divorce petition filed by their wives, whereas the wives can oppose the divorce petition filed by the husbands. Hence, the irretrievable break down of marriage can only be claimed by a wife and not the husband as husband’s petition can be challenged by the wife;

• All the property of the husband that he currently owns and his ancestral property (inherited or inheritable) will be divided between the husband and the wife.

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Some arguments that have been promulgated for supporting this bill during media debates are:

1) Poverty is a gender issue and it is primarily women who are poor in India: This is a baseless argument as the data shows just the opposite. Two most important features of poverty are malnutrition and substandard healthcare due to which the life expectancy reduces and deaths due to diseases increase respectively.

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• Average Life Expectancy of women in India is higher than males at 65, compared to males at 62. This implies that women live longer and healthier, hence have lower malnutrition[i];

• Health care facilities are better for women than compared to males. WHO data shows that deaths due to diseases and injuries for males is 883.2 as compared to women as 788.7 (per 100,000). Hence, women have better access to healthcare as compared to the male counterparts[ii].

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Therefore based on the above facts it is the men who live a substandard life as compared to women.

2) Stigma of Single women- they cannot rent a house in cities: How does inability to rent a house have anything to do with property rights and divorce laws. If housing societies do not allow single women to buy/rent flats then an amendment in Co-operative Housing Society Act is required and not the passing of IrBM. These two points and issues are completely unrelated.

3) Price of Love and Price of Care that women invest in a relationship should be paid: This point has come in various debates and in various forms. Treating marriage like an economic relationship is completely incorrect. Even if we assume that the feminists are treating marriage as an economic relationship, then the wife’s due was paid by her husband during the marriage by way of providing love and care to his wife. The husband also provided for necessities like food, clothing, shelter, vacations etc… Post-divorce, there is no love or care given by the wife hence, no payment is required by the man. Any payment to wife post marriage is an ‘unjust enrichment’ to the wife.

4) It is important for the woman to have a home as 80% of women keep children: Some important questions brought up in this point are:

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• No source has been quoted of this 80% number;

• Why is it only important for the woman to have a home? Why is it not important for a man to have a home? Are men disposable or are they second citizens?

• Why can’t the women work are create their own home? Are they not able bodied?

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Baseless reasoning such as this promotes parasitism, which is not healthy for any living organism or society.

5) For the past 5000 years women were treated as second class citizens and hence taking into account their increased development and literacy rates (etc) over the past 15 years is deemed invalid: We should all note that laws are passed keeping in mind the situation as of the present date – not 5000 years back. As of the current date women are empowered, and their status 5000 years back (which we do not know much about) has no bearing on the present situation. Therefore this argument does not hold water.

6) Parents do not give any property to their daughter: If parents don’t give a share of their property to their daughters then a law should be passed to enforce women’s share at their maternal homes. Why pass IrBM for that? If is akin to saying that if company ‘A’ does not pay salary to their employees then company ‘B’ is liable to pay it. This is an illogical and unfair argument in support of this bill.

7) Women give birth to babies therefore they should get the property: Every female mammal on this earth gives birth to a baby, which is how nature has made them. Asking for property rights because women give birth to babies is preposterous. Such arguments should not even be entertained by the debate show hosts.

8) In the past women were treated like chattels (property): In the past laws were not as well developed as they are today. There were no human rights or any such thing. We had crude laws and property laws were the only laws that were more or less enforceable. Hence, women might have been treated like chattels to protect them in the society. Further, men were not even treated like chattel. In case of any contingency they were supposed to lay down their lives to protect their property ie. Men were SECOND to chattel. Feminists have not been able to provide any evidence to support any claim that in stable societies women were treated badly. Further, again we are discussing things of the past, today we have well established human rights and personal laws and no person is treated as chattel. Laws are to be made taking into account today’s situations and not the situation which existed 5000 years back.

9) India is a male dominated society: This argument has many different versions such as patriarchy, no representation and oppression. How do we define domination? One method of defining domination is by looking at the political representation of the group. A group with a higher political representation controls the making of laws and is the dominant group in a democracy. This is because the elected representatives need to do as directed by electorate. As per the Election Commission of India, the voters of India were:

Year	Men (% votes)	Women (% votes)	Source
1999	40.01%	59.99%	[iii]
2004	41.93%	58.07%	[iv]
2009	45.8%	54.2%	[v]

The dominant group from the above data is clearly the women of India, as they are nearly 60% of the voters, and not the men. Therefore stating that India is a male dominated society is incorrect, as the data speaks otherwise.

The bill is unfair, unjust, and gender biased because:

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• Only women have been given a right to oppose a divorce. Men cannot oppose a divorce petition filed by women. This clause seems to clearly discriminate against men;
• Only property (ancestral or owned) of men is to be divided. Property of women is not to be considered;

• In case of a no-fault divorce, other cases such as domestic violence and 498A can continue. If it is no-fault divorce then how can other cases based on fault continue?

• Men are still liable to pay maintenance and alimony to women under other sections of various acts;

• The bill seems to be against gender equality promised by the Indian Constitution under article 15;

• Liabilities of men are not considered in the case of division of property. Assume a house was bought on a bank loan, and in case of divorce, 50% of the house will be given to the woman but the man is still liable to pay the entire loan amount. This tantamount to taking away the future assets of the husband. Further, it is yet to be seen how the banking sector would react to this as it is a risk to their security (ie. house) which is mortgaged against the loan.

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In other developed countries laws are gender neutral and have the word ‘spouse’ in their language and not ‘wife’ as the case in India. In developed nations each spouse shall be responsible for his or her own support. This has been kept to deter parasitism in their culture.

For example in Sweden maintenance is given when a spouse has difficulty in supporting himself or herself for a transitional period following the divorce. Such transitional maintenance provides the needy spouse with opportunities to seek gainful employment or retraining. Section 7 of Chapter 6 (Maintenance) of the Swedish Marriage Code (Aktenskapsbalken) is: “Following a divorce, each spouse shall be responsible for his or her own support. If a contribution towards the maintenance of either spouse is needed for a transitional period, that spouse shall be entitled to receive maintenance payments from the other spouse on the basis of what is reasonable in view of the latter’s ability and other circumstances.”  

Further, Sweden has a concept of personal property and marital property. Property jointly acquired by the spouses is treated as marital property. An exception is there, if only one spouse acquires property, then his/her personal property may be treated as marital property.

Further, post the division of marital property, the maintenance and alimony is reduced. (ie. the clauses are not mutually exclusive) [vi].

For example in Germany: A spouse must provide for their own maintenance after divorce (Sections 1569, 1577 BGB). Maintenance may only be granted for an intermittent period till the other spouse retrains so as to be employable. Further, the net worth of the spouses at the time of marriage and after the marriage is calculated. The difference is treated as marital property and property of both spouses is equally divided. An exception is there that if a spouse does not contribute in promoting the economic gain in marital property, he/she is not eligible for anything. Further, adultery and cruelty is given weightage.

In essence, both developed nations treat the property of husband and wife separately and only joint contributed property as marital property. This comes from the tenet that all able bodied persons should be liable for their own upkeep[vii].

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