For Indian Women, Divorce Is a Raw Deal


March 23, 2012

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.

March 23, 2012

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.

The government is likely to consider a proposal later this week to amend the existing marriage laws in India. The amendment seeks to introduce the irretrievable breakdown of marriage, as a basis for couples to seek divorce. It also proposes to waive or reduce the “cooling-off period,” or mandatory waiting period before divorce can be granted, which can be six to 18 months. The Marriage Laws (Amendment) Bill 2010 was first introduced in the upper house of Parliament, or Rajya Sabha, in August 2010.

Ms. Singh, who says she has fought “thousands” of divorce cases in her 31-year career, is part of a group that proposes even more significant changes to India’s marital laws, including the introduction of a new legislation which will give women the right to marital property. If this legislation is passed, “women will become equal owners of property,” she said. “Within the existing system there is no such option for women.”

Women in India stay in failing marriages for many reasons, Ms. Singh said. Most of these emanate from the social and financial pressures that divorced women are left to face. The courts can take several years to settle a case and often women cannot afford the several rounds of litigation involved. Even if a woman does go to the court, in most cases it is an “uneven fight” between a man and a woman, she said.

“Men have more access” to the legal system in India, Ms. Singh said.

Under the Indian legal system, a separation or divorce entitles a woman to “maintenance” from her spouse, in the form of financial support. The amount requires authorization from a court and is based on the income of the man. But it is the woman who has to produce evidence of her spouse’s earnings before the court.

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.

When a woman leaves a marriage, unless she is very well to do, “there is very little left to her,” to be able to sustain herself, Ms. Singh notes. The property goes to the person in whose name it is, and in most cases assets are in the name of a man, she points out.

While most recent media reports have focused on changing social values behind most divorces, a study authored by Ms. Singh to be published later this year finds more than 80 percent of the more than 400 separated or divorced women surveyed blame “cruelty or domestic violence in their marital homes,” for their split. Two-thirds of the women surveyed suffered from physical violence.

The most common reasons for domestic violence were “dowry demands, extra-marital affairs or a second marriage of the spouse and the suspicious nature of the spouse,” the report states. The violence took place even though 87.92 percent of the women lived in extended families.

The study, called “The Economic Rights & Entitlements of Separated and Divorced Women India,” was conducted by a team of researchers, women’s rights activists and lawyers, for the Economic Research Foundation of India between October 2008 and September 2009 and will be published later this year. It surveyed 405 Indian women who were either separated or divorced or deserted. The women were randomly selected from cities, towns and villages in north, east, south and west of India in an attempt to understand what happens to women when marriages fail.

Most women surveyed “did not want a divorce even if they have faced violence in their marital homes as they feel both financially and socially insecure outside the marriage,” the study finds.

A large number of women “live at the mercy of their husbands during the subsistence of marriage” and even after a separation or divorce they are financially dependent on their natal family, the report states.

The study points out: “Not giving a divorce is also the only tool that separated women have to negotiate terms of settlement with their spouse as their legal rights are insignificant.” This is corroborated by the statistic, which shows that only 73 out of 405, or 18 percent women surveyed were divorced while 81.7 percent were separated.

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.”

Courtesy: India Ink