This post is an attempt to understand the implications of the, ‘New bill gives woman share in ex-husband’s inherited residential property, in which they were living‘.
A wife will have a share in her husband’s inherited or inheritable marital [edited to add: residential] property on divorce, though the exact quantum of the compensation has been left to the discretion of the judge … if the ancestral property cannot be divided, then the woman should get sufficient compensation by calculating husband’s share in it. The amount of the compensation can be worked out by the court hearing the divorce case.
Here’s what I found.
1. Property in India is ‘inherited’ or ‘inheritable’ — but only by men. At first blush, the notion of having to divide inherited or inheritable property seems grossly unfair. A spouse ought to have a claim on wealth created or acquired during the course of a marriage. But why should anyone have to share property that belongs to the family, or was inherited from the same?
But, ‘According to experts in this NDTV discussion, the new amendment is limited to residential property — i.e. the property in which the family resides.
The home is very often inherited by the husband or in the case of a joint family, remains in the name of his parents. Divorce then becomes an excuse to push the woman out of the house.’
‘Since daughters don’t inherit property from their natal family, she is left without any property in her name.’
IHM: True. But eventually would it not work better if women were not denied equal inheritance? [Link] That would help deal with dowry issues too. [“Is it possible that some women secretly want a dowry…& Can Dowry be compared to Inheritance?]
‘The proposed law merely ensures that the husband has to compensate the wife with 50 percent of his share in any such home.’
Also, if women are expected to relocate to live in patriarchal joint families, should they have the legal right to the roofs over their heads? But what if the marriage lasted only a month or less? Shouldn’t there be clarity with respect to how long the marriage lasted?
2. Alimony is not a dirty word.
“Alimony is not charity. A share in marital property in any modern society is a legal compensation of the unpaid work of a woman as wife and mother.
This work allows the man to earn an income, accumulate wealth and property, and play the role of the breadwinner over the course of the marriage. In India, women are often not allowed to work after marriage.
When they do work, they usually earn less than men, and therefore become the logical choice for the stay-at-home parent. According to a recent study, in “more than 60 percent of the cases, women claimed that marriage affected their career opportunities, because they either could not work after marriage or were able to work in a limited capacity. In about 85 percent of the cases, separated women ‘bear the burden of looking after their children single-handed.’”
“And if women receive alimony more often than men, it is because we live in a lopsided world… [so maybe we should work towards] a more egalitarian future where women will be just as likely to write the settlement checks.”
3. “Divorce is a financial disaster for women.
Indian women are more dependent and helpless because our alimony laws are weak and ineffective.
….Currently, the rights of divorced and separated women are limited. This is primarily because of two causes — women have no place to go once they are separated/ divorced and the maintenance laws are extremely weak…
Literally left without a roof over their head or earnings to support their children, women are forced to live with parents or siblings where they are treated as an embarrassing burden.”
IHM: The disinheritance of women.
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.”
“… 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.”
In the vast majority of cases, it is men who petition for divorce – because women suffer terribly if their marriages end.
There is no automatic right to maintenance payments in the case of separation; women must hire lawyers and go to court to petition for this – a step that is already out-of-reach for millions of poor and illiterate women. Less than half of women ever ask for maintenance. They must make a separate petition for child support. In the clogged and dysfunctional legal system, it often takes years to obtain even an interim order.
When these are awarded, they tend to be negligible
“In the West, women also pay an economic price for divorce, but here it is much more dramatic, because we don’t have the basic rights and entitlements we should have,” said Singh, an advocate at India’s Supreme Court.
…research found that maintenance awards were for between one-twentieth and one-tenth of a man’s stated income. “The biggest problem for a woman is to prove what he actually has.” With the dysfunctional tax-collection process here, men typically report only a small fraction of what they actually earn – “whether they are daily wage-earners or businessmen, that’s the same.”
Then, regardless of the size of the award, the maintenance orders are almost never enforced, Ms. Singh added, so that in practice, women frequently receive nothing.
Division of property law needs to take into consideration what assets each party brings into the marriage including inheritance and must allow for the fact that women are less likely to receive inheritance than men. It must also consider the income that each party brings into the marriage taking into account the potential restrictions on women’s paid employment due to family or social expectations, lack of employment opportunities for women and inequalities in women and men’s wages. It must make allowance for the unpaid work undertaken by each party throughout the marriage and ensure this is valued as equal to economic employment and must also consider the number of children in the family and which party will take on the primary caring role after the marriage. Finally, the length of marriage and the capacity of each party to earn an income after the marriage must also be considered when dividing property.
The decision of the Union Cabinet to guarantee women’s right to 50% of residential property will ensure women’s financial security in the case of divorce, will empower women who experience domestic violence to file for divorce and enshrines in the law women’s equality within a marriage. These are all positive steps for Indian women.
Much has been written about divorce being on the rise in India, sometimes accompanied by hand-wringing about the egos and inflexibility of younger couples, who seem less willing than their parents to stay in marriages they are not happy with.
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.
“Divorce rates have not increased as much as they should have,” said Kirti Singh, who practices family and property law in India.
Five links to help you make up your mind. What do you think?
More related links.