Authors: Anupama Minz, Himanshu
Both are 1st-year students of B.A. LL.B. (Hons.) at National University of Study and Research in Law, Ranchi.
Are you a woman who has faced domestic violence or the thought of divorcing your husband? But you stopped yourself thinking about the social norms? If you reside in India, then most probably, your answer is yes! So now that the fact “Divorce isn’t easy for a woman to opt as a solution for her marital problems” is established, do you also not agree that the same isn’t true for your husband. Divorce in India is a social stigma, where it can be troublesome for the male counterpart, but it’s mortifying for the wife. Our Indian society has seen the refutation of rituals like Sati, but has to yet overcome the menaces like domestic violence, rape, dowry threats, etc. For the time being, this country needs a temporary but robust solution to these problems of the Manasas and Parwatis of our society.
While rape is well-acknowledged as a threat to women, in our minds, domestic-violence bags a side space of the hippocampus in our brain. When the clown reveals his face, it germinates that not rape but domestic violence is the top crime against women.1 Now a rational mind would wonder that if there is so much suffering in a woman’s life due to her husband or his kin, why don’t she part her ways with him?
Your answer is “Social Obstruction to Commoner’s Inner Existence of Tranquil Youth”, and that pens down to SOCIETY when shortened. Although you can criticize the abbreviation of society saying it is too exaggerated, no-one can deny the fact that society plays a vital role in the decision-making of people. And that becomes the thesis statement of this essay: Divorce is considered a stigma exclusive to women in an Indian society, however, our daughters are now rejecting the shackles of this stigma, but what they need is awareness about their property and custodial rights of children.
A good divorce is better than a bad marriage. And if you are a woman, you can’t agree more on this. Marriages are considered pious in India, and it should not be broken. Fortunately or unfortunately, it is not just a saying but a following in India which is evident from the charts. Our country witnesses about 13 divorces per 1000 marriages, and that should mean, the couples are happily living together.2 But here’s the catch, over 30% of crimes committed against women are acts of domestic violence. So it is unquestionably not the case that wives are living their lives in high spirits in their in-laws’ houses.1 Moreover, if that percentage is to be calculated down to numbers, then it comes out, in 2019 itself, out of 4.05 lakh cases of crimes against women that were registered, 1.26 lakh were that of domestic violence, and it goes without saying that many minor injuries on victims are even ignored or recorded as accidents.1 If someone wants to dive deep into this ocean of the facts and figures, he/she will find that 86% of the women who experienced violence never sought any help, and even more horrifying is the fact that 77% of the victims did not even mention the incident(s) to anyone.3 This presentation of numbers and graphs is never-ending, everyday one or the organization publishes such reports certifying this gospel truth. But, a serious question is that we should answer as a society is “Why that smiling lady full of aspirations and youthfulness when marrying her husband, couldn’t even speak when she was subjected to these disgusting practices, while her husband boasted about it in society?” Maybe we are still not ready to take the blame on ourselves, but as they say, a spade will be a spade even if we deny it.
Nobody can and should refute that domestic violence is a legit ground for separation if it is not settled within a reasonable period. Movies like “Thappad” are a boon to this society in creating awareness that it is not okay to slap your wife, even once. But even if she dares to overcome this stigma that society attaches to divorce, questions like “What after separation, how would I sustain myself, who would get my children’s custody, etc” torments the women while deciding for divorce.
“No other work can give you peace of mind as helping others” quotes Bhagwad Gita. So, the least we can do to help our suffering sisters is to make them aware of their rights after divorce. While the spouses are obliged to perform a whole lot of responsibilities during a marriage, they are not completely exempted from the responsibilities even after divorce. The Hindu Marriage Act, 1955,4 and the Special Marriages Act, 19545 together govern these rules relating to rights in a divorce. In accordance, with these acts in force, a man is obliged to provide allowance to his wife and children for their sustenance.4,5 This allowance covers food, shelter, clothes, and other basic requirements of the dependents.4,5 Maintenance, where a fixed amount is payable to the wife in a scheduled period, or alimony, where a lump-sum amount is given to the wife are also rights reserved to the women for financial support purposes when a woman is not in a condition to maintain herself.6 However, the alimony can be given to either of the spouses depending upon their financial conditions. For instance, if a marriage is solemnized under The Hindu Marriage act, 1955, then it is the discretionary power of the court to decide who would be entitled to the alimony, from both the spouses.6
Another anxiety that keeps worrying a woman is the custody of her children. A woman is no doubt the strongest entity on this planet, but her endearment towards the children makes her look debilitated. Nevertheless, the law provides veracious solutions to this, through the Guardianship and Ward Act, 1890,7 and Hindu Adoption and Maintenance Act, 1956.8 Child custody under these acts can be categorized into physical custody, joint custody, legal custody, and third-party custody. While these terms may look baffling, it is most probably the father who gets the custody because of maintenance reasons. However, the law also considers the issues of care and pamper that a child needs especially in the early ages of his/her life.7 The general rule regarding child custody, given these points, is that the mother will enjoy the custody till the child attains the age of 5 years and then the custody is transferred to the father.7 The child is also given an option to decide his/her legal guardian when he attains the age of 9 years.7 If we mull over the guardianship under Muslim personal laws, it is given entirely to the mother, excluding such cases where she is not physically or mentally sound or treats the child brutally.7 Adding to the custodial rights, let us now take the case of property rights. Although a Marriage Laws Amendment Bill, introduced in 2010 and passed on Aug 26, 2013, gave the wife the right to claim 50% of the husband’s residential or immovable property, irrespective of whether the property was possessed before or after the marriage, it lapsed after some time.9 Streedhan is yet another form of property in a marriage. Where dowry is obtained generally by coercion, streedhan is given to the bride as a gift before or at the time of marriage. The wife possesses the entire rights of this property and has the liberty to sell or use it the way she wants.10
Concluding, we can say that we may not qualify as an ideal society for women and even if we are willing to change, it may take a while to reflect these changes on the ground. Meanwhile, the women have to fight this stigma themselves that society attaches to divorce. The most we can do right now as a society to empower them is to create awareness among them about their rights in a divorce, acquainting them with the aftermaths, both positive and negative. But, like every rose has thorns, every right comes with some responsibilities. The beneficiaries of the rights should ensure that these are used for empowering oneself and not to trouble the innocent.
- DHAWAN, H., 2020. Not Rape, Domestic Violence Is Top Crime Against Women | India News – Times Of India. [online] The Times of India. Available at: <https://www.google.com/amp/s/m.timesofindia.com/india/not-rape-domestic-violence-is-top-crime-against-women/amp_articleshow/78494876.cms> [Accessed 20 November 2020].
- Bhardwaj, D., 2019. Does India’s Low Rank On Global Divorce Rate Indexes Mean Happy Marriages Or Social Pressure?. [online] ThePrint. Available at: <https://theprint.in/talk-point/does-indias-low-rank-on-global-divorce-rate-indexes-mean-happy-marriages-or-social-pressure/187180/> [Accessed 20 November 2020].
- RADHAKRISHNAN, V., SEN, S. and SINGARAVELU, N., 2020. Data | Domestic Violence Complaints At A 10-Year High During COVID-19 Lockdown. [online] The Hindu. Available at: <https://www.thehindu.com/data/data-domestic-violence-complaints-at-a-10-year-high-during-covid-19-lockdown/article31885001.ece> [Accessed 20 November 2020].
- The Hindu Marriage Act, 1955. [online] Available at: <https://indiankanoon.org/doc/590166/> [Accessed 30 November 2020].
- The Special Marriage Act, 1954. [online] Available at: <https://indiankanoon.org/doc/4234/> [Accessed 30 November 2020].
- Section 125 In The Code Of Criminal Procedure, 1973. [online] Available at: <https://indiankanoon.org/doc/1056396/> [Accessed 30 November 2020].
- The Guardians And Wards Act, 1890. [online] Available at: <https://indiankanoon.org/doc/1874830/> [Accessed 30 November 2020].
- The Hindu Adoptions And Maintenance Act, 1956. [online] Available at: <https://indiankanoon.org/doc/946025/> [Accessed 30 November 2020].
- Associates, B., 2020. The Marriage Laws (Amendment) Bill 2013 | B&B Associates LLP. [online] B&B Associates LLP. Available at: <https://bnblegal.com/bareact/the-marriage-laws-amendment-bill-2013/> [Accessed 30 November 2020].
- org. 2020. The Protection Of Women From Domestic Violence Act, 2005. [online] Available at: <https://indiankanoon.org/doc/542601/> [Accessed 30 November 2020].