Wednesday, August 2, 2017

Book Review- 'Intimacy Undone- Marriage, Divorce and Family Law in India'

Mohit Gupta

(Author: Malavika Rajkotia, Publisher: Speaking Tiger Publications)

The book 'Intimacy Undone – Marriage, Divorce And Family Law In India', by Malavika Rajkotia began as a response in the form of a letter to the Chief Justice of the Delhi high court who had accused divorce lawyers of prolonging divorce proceedings unnecessarily. The author’s response was aimed at exposing the lack of understanding of the dynamics of matrimonial conflict, which she believes are much deeper and broader than what is superficially visible. Eventually the letter turned into a book in which she has painted a wide canvas covering issues of family law going beyond usual ways of studying marriage and divorce and incorporating rape, patriarchy, property, maintenance, alimony, privacy and custody of children. All of these are based on the understanding that family law is not as simple as it is often postulated to be. It deconstructs the myth that family law is a soft law governed mostly by common sense as against other branches of law which are perceived to be hard law. This is done by elucidating in the book the tension that exists between men and women, society and law, conservatives and liberals, change and resistance and so on. The book also throws light on the wide margins of personal discretions, and the resulting jurisprudence which is sometimes confused and conflicting, and ends up setting unstable precedents; all of which has deep implications on those who fight legal battles within the ambit of family law. 


The author sets out the tone of the book with the remark that “A marriage works when it is structured around a settled intimacy. It may not be happy or even fulfilled but just settled. If this inner life in the structure dies, the courts call the standing social and financial structure left around the structure ‘an empty shell’’ (p21; emphasis added) 

It is this settled intimacy and the empty shell which the author tries to unravel for her readers using well known cases, legal anecdotes and all her court room experience as a leading expert in Indian family law and one of the most renowned divorce lawyers. One of the reasons why this intimacy remains intact in marriage is because women have no agency over their body due to the presence of deep rooted patriarchy in the institution of marriage. This is one of the most important points that she makes in the initial chapter and this perspective runs throughout the book. Further she points out that this phenomenon is related to the institution of private property as was stated by Friedrich Engels in 1884 when he wrote the book - The Origins of the Family, Private Property and the State in which he delineated the historical evolution of the relationship between patriarchy and property which turns women into the property of me within the institution of the family. Malavika Rajkotia argues that the parallel in the Indian case of such deep rooted patriarchy in the institution of marriage is evident in ancient texts like Manusmriti where Manu placed the position of women very low in the social hierarchy which in perpetuated the thought that men can own and control women’s bodies. The two great mythological books namely Mahabharata and Ramayana have only accentuated such patriarchal cultural influences by showing women to be subservient to men. Thus the author argues that the roots of patriarchy are evident both in mythology and history. 

The fact that women are denied agency over their body and the inherent patriarchal structure that creates this condition is manifest in terms of gender biased adultery law which according to the author “only punishes the wife’s love to ensure paternal certainty and chastity as a womanly virtue because men continue to have proportional ownership over women and her adultery automatically makes a woman prostitute”. Similarly the restitution of conjugal rights remains an archaic law which is retained in law books to ensure that men can use it often to pre-empt any action that the wife may file if she gets out of the house. The author also questions the role of the legal fraternity by pointing out that by retaining and upholding such provisions, courts have denied woman agency over her body and contributed to the conditions in which women are not respected as a separate, equal person and body. The author’s discussion on open marriage, criminalizing marital rape and most importantly her stand on decriminalizing adultery based on moral and legal arguments is not only informative but also commendable.  

The other subtle argument that stands out in the book is that while all the three wings of the state- the legislature, the executive and the judiciary have attempted their bit in ensuring that law and its implementation remains progressive and gender neutral, but at the same time they have willingly or unwillingly ensured that under the guise of traditions and based on yardsticks of what tends to be socially acceptable, women are left to the tyranny of men. The populist statement of political leaders  like Mamata Banerjee “ Rape Happens because women have no business to be out late” along with views of others like Maneka Gandhi on non applicability of the concept of marital rape in India linking it with poverty and illiteracy or the views of the patriarchs of the parent organisation of the current ruling party saying “Rapes happens in India and not Bharat” which are all cited in the book manifest that those responsible for enforcing the law are still incarcerated by patriarchal influences and their tendency is to appeal to the patriarchal mindset.

The book courageously puts forward an incisive insider view of the system and shows that how the legal fraternity at even the apex level are mired in such patriarchal influences. Such attitude on the part of the judiciary is depicted mostly in cases of alimony and maintenance. She points out that gender inequality is evident when the male judges often try to rule against women’s interests by granting them minimal maintenance in such cases using a false principle of need versus desire. The judges often believe (as evident from case laws in the book) that a woman should not be parasitic on her husband’s earning and should be awarded only the minimal needed as against what she desires. The author suggests as an alternative an equal sharing rule in such cases rather than subjective judgments on type of lifestyle. This can be extended to understand that while granting minimal alimony and maintenance to a woman what is not taken into account is the opportunity cost of paid work that a woman could have otherwise done as well as the unpaid and the care work she had done when the marriage was intact. What is more disturbing is the fact that on the contrary judges curtail women’s share by saying that working women should be earning rather than trying to live on alimony. The example cited by the author of a judge trying to convince a woman in a maintenance case to make cakes or do some other work for her living instead of seeking financial assistance from her husband reveals the attitude of the judiciary. The other emphatic instance that she points was the discomfort in the judiciary when the Delhi high court got its first woman judge in Justice Leila Seth and fellow judges took offence when lawyers addressed her as ‘milady’.

The book provokes one to think that the role of legislature in ensuring gender equality has to be questioned because at times they have either added confusion by enacting laws without proper debate or have been lax in their approach in amending laws to ensure gender justice. This is evident from the book when the author discusses Section 155(4) in the Indian Evidence Act which allowed the defence to bring the evidence to prove general immoral character in case of rape to question the credentials of witnesses. It was only in the year 2003 that it was repealed. Similarly it was only in 2013 that section 354 of the IPC (outraging a woman’s modesty) was amended to widen the definition of rape and sexual assault. Similarly it was only in 1976 that marriage laws were amended to include cruelty and desertion as a ground for divorce. These instances show how difficult it has been for those struggling against patriarchy in India to ensure amendment and implementation of laws for ensuring women’s rights in a male dominated society.     

This gender inequality that is in some sense perpetuated by the state is not something which is a contemporary phenomenon and is not a departure from the past. The seeds of these were sown much earlier and hence it also reflects continuity from the past which is evident from the debates in the parliament regarding the Hindu code bill, excerpts of which the author has cited. As the author points out, the conservatives including Rajendra Prasad, B.S. Mann, Thakur Das Bhargava etc systematically lobbied during the passage of the bill to ensure that women remains subservient to men and were denied any property. The following quote from B.S. Mann in 1952 cited in the book shows the deeply rooted patriarchal bias in the bill. “I request to treat honourable lady members and male members on equal footing no concessions to lady members? It is high time for them to make up their mind either to have concessions or to have the bill” (p57). While the author correctly points out the gender bias aspect of the bill, there is another important and related aspect to the Hindu code bill that needs to be noted. This was related to the class underpinnings of the members of the select committee. The select committee for the Bill comprised mainly of the socially orthodox capitalists of the time and had hardly any female representation. Subsequently they ensured the legal recognition of the Hindu Undivided Family as a distinct entity, awarded unique tax exemptions to this entity and deprived woman from all property by the provisions of the bill (Das Gupta 2013). Thus women were deprived from property rights not only in case of maintenance and alimony but in all legal provisions of the Hindu Code Bill. 

As far as the institution of property rights is concerned the author also points out other avenues which men resort to avoid property being transferred to women in case of alimony. This she points out is done through putting money in the shell companies by the husband or transferring it to the Karta of the family. The fight then becomes claiming it from the father in law by a daughter in law. The author states that “with the inception of male control, family identity became rooted in land and business ownership with patrilocal ownership” (p 144). Further she underscores the tax benefits of the HUF and says that since it receives tax benefits, therefore there must be an equivalent responsibility to take care of its members including daughter, daughter in law and wife. 

Finally, the author also outlines the provisions of the Benami Transactions Prohibition Act 1988 which allows a male member to hold the property in the name of his wife and/or daughter as an exception, but does not permit the wife or daughter to do so in the name of the husband or father. Thus patriarchy structures not only ownership but also control by male family members of property formally shown to be in the name of women. The recent Benami Act 2016 has taken away even the notional rights given to daughters by allowing only property in the name of wives outside the ambit of Benami transactions.

Thus, on one hand the book explicitly builds a case for recognition of the deprivation of woman from property, and on the other implicitly points to a deep rooted nexus between power, wealth, family ownership, corporate structures, property rights and tax benefits. This nexus and the interplay of these forces are fleshed out more clearly and emphatically along with implications for capital accumulation in the book “State and Capital in Independent India: Institutions and Accumulations” by Chirashree Das Gupta. It not only discusses the zones of intervention and non intervention by the state but most importantly unravels the use of the Hindu Undivided Family (HUF) as a peculiar corporate governance structure to maintain familial basis of ownership and control as well as a tool of tax avoidance. 

The fact that marriage is not only restricted to two individuals and entails various externalities is emphatically argued towards the latter half of the book. This is because the author raises two important issues which emerge when a marriage breaks down. These are the question of children and the issue of privacy. Custody of children becomes the most important issue. The detrimental effect on children entails being exposed to tutoring by judges, brain washing by both parents, parental abduction in some cases, contradictory provisions of international law, parent’s financial aspirations, attachment to a particular parent etc.  All of these come into play for deciding their fate. The author also highlights the question of child sexual abuse and remarks that cases involving allegations of child sex abuse make the custody matters horrific, but are not dealt with aptly. Further, the author also shows ignorance on the part of psychologist in following any legal protocols in dealing with such cases.

On the question of privacy during divorce proceedings, the author shows the implications of poor privacy laws in the country and how the frequent breach of privacy in the absence of such laws leads to evidence and counter evidence being collected at the cost of breach of privacy of individuals and their acquaintances  in case proceedings. The other important issues at which she throws light with respect to privacy are what qualifies as evidence, and how surveillance and forms of surveillance breaching privacy, snooping and counter snooping play out in the lives of separated couples in this gathering of evidence. This forms the basis of the author’s emphasis on the importance of introducing laws like the Private Detective Agency Regulation Bill (2007) the provisions of which penalise the breach of privacy. It was introduced in the Rajya Sabha but was not passed.    

The author pays meticulous attention to gender bias in theory and practice of law in every chapter. Towards the end of the book, in the chapter “On the Misuse of Gender Specific Laws” she addresses the other end of the spectrum. With all her authority o family, marriage and divorce laws, she assiduously deconstructs the myth about the misuse of gender specific laws by women especially with regard to Section 498 A of IPC. While she does not rule out the possibility of an attempt of it being misused on false pretext to trouble the male counterpart by citing example of  a person who was jailed for a few days and whose career ended because of  false charges framed by the wife under IPC  498A, she cautions that such cases are miniscule compared to the genuine cases and at the same time provides the way to deal with it is not to get away with such provisions rather to treat perjury as an offence and by evaluating each case on a list of various parameters before qualifying it as one under 498 A.

She hits the final chord in her book with a discussion on the future of the institution of marriage and her perspective on the much debated uniform civil code. On the future of marriage she points out that it is certain that with all its complexity and disorderliness, the reason for accentuating divorces is that men are usually uncomfortable with woman having voice. One can see the implications in terms of greater number of divorce cases in future with women gaining financial control over their earnings and walking out from a caged marriage. The author says that family law in India is moving from viewing marriage as sacred to acknowledging it as a contractual arrangement with sacredness not hindering the right to exit from the marriage for a fair reason. If the trend towards viewing marriage as a contract rather than a sacred relation along with change of attitude which views chastity of women as the only hallmark of her commitment continues, one can hope that in future this may end the stigma associated with divorce in Indian society as well as a movement towards strict laws for marital rapes as well as decriminalising adultery will materialise.

On initiating any proceedings for an uniform civil code, the author says that the first real problem is to understand the distinction between a uniform code and a common code. This distinction  is often ignored. A uniform code will be the one where there is uniformity of rights relating to marriage, divorce etc. around all the communities while the common shall mean the one that is common across all the communities. Along similar lines there are views expressed by other experts on family law like Flavia Agnes who have argued that uniformity of rights is more important than uniformity of code as the latter can be an instrument for an attack on minorities. However the second subtle point that Malavika Rajkotia makes is that even before rushing towards a uniform civil code, it is better to introspect and try to carry out reform within the personal laws. Also, all personal laws could try and adopt the positives aspects from other personal laws. For instance, under Muslim personal law, the bequest cannot exceed one third of a testator’s property. Similarly the pre-nuptial arrangements in Islam and the concept of mehr which is better than the dowry system in Hindu law can be co-opted.

One of the limitations of the book as acknowledged by the author herself in the introduction is that like most other books on family law it remains confined mostly to Hindu law and mostly upper and middle class families. A greater emphasis on other personal laws and the case laws from them would have been more enriching. However, there is no doubt that the book is enriching both empirically as well as theoretically. It provides the readers a ready guide to deal with complexity of breakdown of marriage. The epilogue, the FAQ’s and most importantly the appendix of laws for reference at the end of the book is very useful for the lay reader seeking insights on family law. The well-known lawyer as the worthy author of the book enmeshes her court room experience with multidisciplinary insights from various disciplines like law, psychology, rights, gender, economics etc which ensures that the book has something for everyone. Moreover the lucid and jargon free language ensures that not only lawyers/legal fraternity but researchers on social science, rights activists, lay readers and most importantly ‘just married’ couples who might engage into legal battles with respect to their marriage in future will find this book really useful.

The book has the feel of a nice platter on family law constituted by complex layers of social realities, history of family law and the institution of marriage constitutes the base layer, followed by layers of issues like institution of property rights, maintenance, rape, divorce, children and UCC. All of this is flavoured with discussion on case laws, narration of court room experience and garnished with legal anecdotes leaving the reader yearning for more.
The author suggests alternatives to most of the problems that she highlights in the book. But her recognition of the limits of law comes through in her remark in the book that the difference between lawyers and god is that the latter does not think he is the former.

References:

Das Gupta, C. (2013). The Tenacity of the Hindu Undivided Family: Gender, Religion and Tax Concessions. Economic and Political Weekly48(40), 73-75.

Das Gupta, C. (2016). State and Capital in Independent India: Institutions and Accumulations. Cambridge University Press.

(Mohit is a MPhil Candidate at Centre for the Study of Law and Governance, JNU, Delhi)
    

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