Emerging challenges on women and law in India – III: challenges for women in family law

"Family law is perceived as a realm of emotions and not as a bundle of rights. We need to treat it as a bundle of rights and entitlements and as law itself, learn to look at it as a space where rights are negotiated, and not merely aim at saving the institutions of marriage and family."

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ON February 23, the Centre for Women's Rights [CFWR] at Jindal Global Law School, O.P. Jindal Global (Institution of Eminence Deemed to be University), held an inaugural webinar, as a first in a series of webinars on the theme – 'Ear to the Ground' which aims at examining the lived experiences and struggles of women in their engagements with the law. The webinar, titled Emerging Challenges on Women & Law in India, was a panel discussion with Apoorva Kaiwar, Regional Secretary, South Asia office, IndustriALL Global Union; Adv. Sandhya Raju, Founder and Managing Director of the Centre for Constitutional Rights Research and Advocacy; and Adv. Veena Gowda, a women's rights lawyer, as panelists. The webinar was moderated by Prof. (Dr.) Saumya Uma, Director of CFWR and Professor at Jindal Global Law School.

This is the third part of a three-part series covering the webinar, and looks at Gowda's address, and the Q&A session with all three panellists. The first two parts can be seen here and here.

Saumya Uma (moderator):

We will now hear the last panellist – Adv. Veena Gowda. Veena, please tell what are your experiences, particularly in the family court and in the realm of family law and what are the challenges that women face in their pursuit of justice within family law. 

Veena Gowda:

Thank you very much Saumya and Surabhi for having me here. I see a lot of my friends present here. Good luck with your Centre. I wish you the best and I do hope we have many more interactions such as this.

From hearing Apoorva, who literally said that lack of law, lack of intention of including women within the law, to Sandhya taking us through the insensitivity of the system itself and how is it difficult for us as practitioners as law, I think the ground here seems to be slipping. I am not sure how much we can hold on to the ground; maybe we are only left with the sky!

One of the things that I wanted to start with, since there are students among the audience, is to say that one of the emerging challenges, especially in family law, is to actually get good family court litigators. Often, I am asked – "Veena how do you do family law for so long? It is so depressing." Many juniors have left me saying this is too emotionally traumatic. I don't understand why it is not equally traumatic when brothers fight brothers for property, when employers don't pay labour, when there is violence within the workplace, etc.

Somewhere family law itself is not seen as law. There is a lack of law, within family law itself. Because it is seen as a space where compromises have to be arrived at, where certain give and take can be mediated, negotiated and closed.

Family law is perceived as a realm of emotions and not as a bundle of rights. I think that's where the first hurdle for family law is. We need to treat it as a bundle of rights and entitlements and as law itself, and learn to look at it as a space where rights are negotiated, and not merely aim at saving the institutions of marriage and family, which the law itself, the Family Courts Act and the judges talk about.

When Sandhya talks about gender sensitization programmes that we conduct with the judges and the different actors in the legal system, and even when we look at law as a counter majoritarian tool, it is a majoritarian tool. Law itself reinforces patriarchal norms and expectations; not only in the substantive part of the law but also in how the law plays out in the courts. So often whenever we talk of how family law is structured, we only have a manner in which the institution of marriage can be dissolved and we have a right to maintenance. There is literally nothing else. Maintenance is also ultimately defined as a subsistence allowance. The Supreme Court and other courts tell us that into this concept of maintenance, we must add residence, medical expenses, education, etc. In 2020, the Supreme Court passed a judgement (Rajnesh vs. Neha) which lays down the guidelines and criteria in giving maintenance, from when maintenance should start, what are the documents are to be produced by both parties so that the court can look and decide the quantum of maintenance, and from when the women deserves it. However, the conversation is still about maintenance and we have not gone beyond this.

Also read: SC lays down criteria for determining quantum of maintenance in matrimonial cases

Family law is very contested, within courts as well as politically, and every discussion, be it on hijab or triple talaq, everyone talks about moving towards a uniform civil code. Many of us have concerns about the uniform civil code for political reasons, whether it is the right time etc., but even today, when you talk about the uniform civil code, what we will ultimately get, are these two aspects of the law. One, is how do we deal with the relationship itself; do we dissolve it; do we keep it? And two, how do we redefine maintenance?

So what we have today as Hindu law, Special Marriage Act, Christian and Parsi marriage and divorce law, are what we are governed by – they are separate personal laws, but they are almost the same, except Muslim law. They only repackage it and present it as the uniform civil code. Are we even ready to talk about property rights of women? If you see various judgements of various high courts, I think there is only one Karnataka High Court judgement, where actually the property does not stand in the name of the wife; however, because her father contributed to the property, while purchasing it, the court says that she too has a right to it. Apart from this, we are still looking at what the Transfer of Property Act says, and what is the contribution; we are unable to carve out a space for matrimonial property within family law.

Also read: Centre's denial of the rich debate on Uniform Civil Code exposes its hypocrisy, as revealed by its latest affidavit before Delhi HC

Very long back in Achala's case (B.P. Achala Anand vs. S. Appi Reddy, 2005), the Supreme Court talked about matrimonial home, but matrimonial home again is only a right of residence; we are not talking about title or ownership. For example, in urban India, a lot of property that is purchased is purchased on loan taken by the husband and wife, even if it's in the joint names of the couple. One of the first things that the husband does if he wants his wife out of the house, is that he stops paying the EMI [equated monthly installment]. Then we have the draconian law – the SARFAESI [Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest] Act, under which the banks seals the property under Section 30 and the women loses her right to residence and ownership. Many attempts have been made even in Debt Recovery Tribunals, and in higher courts, but the courts have been unable to break that whole shackle of SARFAESI Act.

Therefore, our approach to family law itself must change. We have to look at property rights of women as an area that needs to be redefined. Even in the recent judgement of Rajnesh vs. Neha, the court does say that the concept of maintenance is already a limited right and we are further limiting it by adding criteria such as the duration of marriage, has she given up her work and therefore suffered an economic loss etc. If we see under the [Protection of Women from] Domestic Violence Act, an effort has been made to use a term different from maintenance, which is "monetary relief." My reading of the term is that there may have been a loss of earning, and as an impact of violence, a loss of opportunity and access to paid work. The term was therefore, meant to go beyond what we understand as maintenance. However, the courts have reduced it back to their own (limited) understanding of maintenance.

The law says that what the wife requires is to be maintained and to keep her head above the water but the amount given is insufficient. It is only in 2005, that we managed to get an amendment to the Hindu Succession Act where daughters were allowed to inherit ancestral property. Daughters are blood relatives, whereas wives are only related by marriage, so expecting Hindu men or whichever community's men to give rights to wives – I don't think that'll happen at least in my lifetime! Therefore, even for people who say should we have uniform civil code, other than bringing in uniformity, it is not going to bring in newer rights for women. .

Even the Law Commission of India, which analyzed whether the uniform civil code should be formulated, the questionnaire that was circulated by it primarily focused on Muslim law as well as on the institution of marriage itself. Among feminists, we have [legal academic] Prabha Kotiswaran, [women's rights lawyers] Keerti Singh and Flavia Agnes working on it. Flavia drafted a Bill on women's matrimonial property rights in Maharashtra but that never really saw the light of day.

Also read: Progressive Judicial Orders Boost Hindu Women's Inheritance Rights

Assuming we want to do something, the nature of property itself, especially in the current economy where black money has still not been eradicated, is in cash economy. For example, now that the Supreme Court requires a declaration of assets and income for quantifying maintenance, when you marry somebody, they'll tell you how much property they have, but the property will be in the name of the father or grandfather, so when women want to enforce their matrimonial right, it becomes difficult.

In addition to that, we also have the whole issue of poverty. What do you do in situations where men have no source of income? Can we reimagine the process of recovery and maintenance? Can we look for a maintenance fund – a minimal survival amount provided by the State, because how else do we look at maintenance or subsistence for women in these situations? I think the manner in which family law is constructed, litigated, interpreted in the courts is extremely restricted and patriarchal. We need a family law revolution in order to rehaul it.

Feminist discussions critique heteronormativity and the recognition of certain relationships within the definition of marriage. On the contrary, if you read the Hindu Marriage Act, it treats the spouses equally. Now we have instances of husbands filing maintenance cases against wives in cities like Bombay and even smaller towns. We need to re-examine the whole law; how do we define and reinterpret the rights, and how do we look at the institution of marriage because the law only aims at saving the institution of marriage and giving it primacy. What about the individual in it?

I think we are decades away from questioning the whole concept of marriage. Marriage is a patriarchal institution. I see very young colleagues and students who tell me that marriage is a necessity and that it is required but they do not view relationships as a range of choices. The only way I've survived it, every time a marriage breaks, is that it doesn't break me; it only proves my point that the institution doesn't work and we need to redefine it.

Also read: Beyond marriage: the role of Indian courts in upholding in-egalitarian access to protection for women

Moderator's comments:

Thank you Veena for those ideas and thoughts you have placed before us and particularly how the interpretation of family law needs to change, and how we need to keep individuals at the centre of family law rather than saving the institution of marriage, which is what family law very often tries to do. Now let us open the panel discussion for questions and comments from the participants.

A question from a participant – how has the pandemic affected the rights of women in these three areas of law (labour law, criminal law and family law)?

Veena Gowda: In the areas of domestic violence, there has been some discussion. The pandemic has paralyzed the system. While the Supreme Court has its fancy equipment, and lawyers are sitting with three screens, appearing at the same time in different cities, the family courts did not respond to the plight of women at all, especially the cases that are of individual women. Even to move a woman from her home (where she was facing violence) to another place became difficult. The police were unable to help and the family courts were not responding. In short, the system failed during the pandemic.

Sandhya Raju: I agree with Veena. When cases got innumerably delayed, maintenance was not paid and the excuse was the pandemic. Women who were dependent on maintenance were destitute. Women waiting for criminal trials, remained undertrials for almost two years, without any trials starting. As Veena was saying, it did not help women at all.

Apoorva Kaiwar: Many didn't have this video conferencing facilities and therefore weren't able to function. Women's employment got affected and women lost jobs more than men did during the pandemic. It is well documented. Also, because women were working in some of the global supply chains which were heavily impacted during this time, like the ready-made garment and electronic sectors. Employment numbers came down drastically.

Also read: The COVID-19 impact on women in India: increased material and physical violence

Moderator: There is a question addressed to Veena. In your opinion, does a regime that favours maintenance rights over property rights make the law overall less predictable? For instance, if a client asks you "will I get maintenance or what is the amount of maintenance I will get?", would you find it harder to answer about a maintenance regime as opposed to a property rights regime?

Veena Gowda: Less predictable or not, it's extremely restrictive. It is hardly a right. Once a court passes an order, even recovery/payment of these maintenance amounts is difficult.

I think it would be easier to answer that question in a property rights regime. I would love to be Jeff Bezos' wife, 740 billion dollars divided by two – that would be easier. That's the whole problem; we see more settlements happening in court. The number of mutual consents in cities is increasing, as litigation is costly or laborious/tedious, but it is also because there is no certainty of what you'll get in court. A lot of times I have seen women accept a compromise rather than litigate. Even in situations of violence, even though the Domestic Violence Act talks about compensation, even if the violence doesn't get addressed, women say "let's forget everything and get out of this system." But if there was a little more predictability or a better articulation of rights, we would see less women succumbing to a compromise. If women had more positive rights in family law, I think the use of criminal law would also reduce.

Moderator: Question for all the panellists: What is the impact of over-criminalization – a trend that we have witnessed in the last couple of years – the use the criminal law and its punishments and fines for so many aspects of our everyday lives – on women?

Sandhya Raju: The increased criminalization doesn't really help the women. I feel that increased criminalization doesn't help men or women, it creates rifts between the parties, there can be other methods but women do not really have the economic wherewithal. Women doing paid jobs are fewer, as compared to those who are not.

Apoorva Kaiwar: Pandemic didn't help anything; livelihoods were lost. The lockdown restricted the movement and social activities of women. It was only those of us who had access to devices and internet, who could be in touch with the outside world. For other people, it was difficult. For the majority of women in any country, the majority of poor women in any country, I really don't think the pandemic allowed any social activities.

Veena Gowda: Criminal law is State versus the individual, and other than specific offences, criminal law shouldn't be expanded. What we need to see in the area of family law is what is happening to criminal law. While there is dilution of Section 498A of the Indian Penal Code (cruelty to wives from husband and relatives) for domestic violence, whether in [the Supreme Court's] Rajesh Sharma judgment [of 2017] and in subsequent modifications etc., there is a judicial discourse that women are misusing the law. At the same time you see over-criminalization when it comes to triple talaq. If giving triple talaq has no effect, as per [the Supreme Court's] Shayara Bano judgment [of 2017], how can this be made a criminal offence? Inter-religious marriages are criminalized. At one level where we are talking about violence against women, the judiciary says women are misusing the law and diluting it while at the same time, in the name of women itself, the State is criminalizing certain other aspects.

Apoorva Kaiwar: In sexual harassment at workplace cases, as long as an enquiry is made, it is considered to be fair and proper. Rules of natural justice are automatically applied, but every domestic enquiry is an anti-worker one. Every time a woman questions somebody, she will be seen as a threat. The whole notion of due process is quite scary. What is due process between relationships? I believe that the notion of due process should be applicable only to the State.

Veena Gowda: Men's rights groups have managed to get the Law Commission of India to re-look at law and within the parameters of marital rape as well. I'll take this irretrievable breakdown of marriage question of a participant. Are Indian women ready for it? Yes they are. Who wants to be in a marriage that is broken down? However, we can't have irretrievable breakdown of marriage unless women's matrimonial property rights are recognized in law.

Moderator: Thank you to all the panellists and to all my colleagues and students who are here at this panel discussion. This session was rich in its thoughts and ideas, and at the Centre for Women's Rights, we are actually going to deliberate upon the takeaways from this discussion, which will give us a sense of direction for the research to be undertaken in the future.

Transcription by Navami Krishnamurthy and Payal Mangla, students of Jindal Global Law School.