Divorce Dues - Story in the Telegraph Calcutta by Smitha Verma

Financial woes beset women who separate from their husbands. A survey says most divorced women don’t even file for maintenance.

It’s a date that Nitisha Rao cannot miss. For the last two years, the 30-something Pune resident has been visiting a family court every month. She is seeking maintenance from her husband of three years, now separated. Rao has asked for Rs 7,000 a month, but her husband argues that he is unable to meet her demand with his Rs 20,000 monthly earnings. And the judges are still undecided.
“I quit my job after my marriage and I don’t even own a house. How am I going to sustain myself without a job,” asks Rao, who is now staying in her father’s house.
But Rao, going by a recent survey, is not a solitary case. The survey by the Delhi-based Economic Research Foundation says that approximately 80 per cent of divorced or separated women in India live with a monthly income of less than Rs 4,000. The survey, released in December, highlights the sorry state of women when it comes to matters such as maintenance, share in marital property and economic rights.
“The findings reveal that the majority lives at the mercy of their husbands during the subsistence of marriage, and after separation they depend on their parents,” says Vibha Chaturvedi, director, Women’s Studies and Development Centre, Delhi University.
Under Section 125 of the Code of Criminal Procedure (CrPC) a wife has the right to maintenance. The section says the term “wife” includes a separated or divorced woman and she is entitled to maintenance until she remarries. Yet only 47.4 per cent of the women surveyed had filed for maintenance. “In most cases, women don’t ask for maintenance because of the fear of a long legal battle, ignorance or economic independence,” says Chaturvedi.
Not surprisingly, women activists are now arguing for stronger maintenance laws. The law as it stands now doesn’t specify the range of maintenance that women should get. “It is the judge who decides the amount of money that should be paid to divorced or separated women,” says Malvika Rajkotia, an advocate with the Delhi High Court. “And mostly women have to settle for a pittance,” she adds.
According to Section 20 of the Domestic Violence Act, loss of earnings can also be compensated by the magistrate while assessing maintenance. Factors such as medical expenses or the loss caused by any destruction of property also have to be compensated. Subsection 2 of the act says the monetary relief granted should be adequate, reasonable and consistent with the standard of living that the aggrieved person is accustomed to. “The law may spell out certain things yet nothing is implemented as there is no clear directive on the amount,” says Rajkotia.
The survey highlighted that only 35.6 per cent maintenance cases were resolved in a year. The rest took anywhere between one year and five years. Only 6.4 per cent of those surveyed appealed for an increase of maintenance although most of them were dissatisfied with the quantum of money awarded to them. “The long legal battle ahead puts off most women from pursuing a case,” says Rajkotia.
The onus of providing the income certificate of the husband too lies with the woman. This is often difficult for women to procure for usually they have no access to such documents. “Most women, especially those from rural backgrounds, have no idea about their husband’s income, let alone be able prove it,” says Jaya Sagade, vice-principal, ILS Law College, Pune. “Also, in a divorce through mutual consent, 90 per cent of the women settle for no maintenance,” adds Sagade.
Besides maintenance, lawyers and women activists are also looking at a law on a woman’s right to marital property. After a separation or a divorce, most women move out of their marital homes to live with parents. “In India, in the absence of any law for division of marital property, the husband usually walks away with moveable and immovable assets,” says Supreme Court advocate Kirti Singh.
Sarika Sood, a 32-year old media professional from Jaipur, is a case in point. Sood had to fight a bitter battle for divorce as she was paid a pittance as maintenance for herself and her child by her husband. When she left her marital home, her husband walked away with almost everything that they had bought together, she says. “But I had no proof to refute his claim to things we bought jointly during our marriage,” says Sood.
The Hindu Adoption and Maintenance Act does not give women the right to residence. They are given a certain sum in lieu of residence. Indian family laws follow the “separation of property” regime. Goa, which is still governed by the Civil Code of 1867, is an exception. There, both spouses are equally entitled to marital assets. Everywhere else, the property belongs to the person under whose name it is registered.
“We want to ensure that women have somewhat equal rights in the property acquired by the couple whether or not the asset or property has been bought in the woman’s name,” says Singh.
The Domestic Violence Act of 2005, however, gives the right of residence to a woman facing violence within the home. It recognises a woman’s right to reside in the shared house with her husband/partner while a dispute is on. It also says that if an abused woman seeks alternative accommodation, her husband/partner must pay for it and her maintenance. “However, there is still no right to marital property as it is a right of occupation and not of ownership,” explains Singh.
The lawmakers are pressing for changes in the law to recognise a woman’s economic rights. Several countries have given legal recognition to the unpaid work done by women homemakers.
They argue that the State needs to look into all factors to help women in distress. “It needs to form a corpus fund to help women sustain themselves till they are able to maintain themselves,” says Jawahar Raja, an advocate with Delhi High Court.
According to V.P. Seemandani, a senior advocate from Kerala, legislation should be in place for the formation of a corpus fund. “There should be an appointing authority who can ask employers to deduct the maintenance amount from a husband’s salary and send it across to an aggrieved woman,” says Seemandani.
But despite the rising clamour over the need for new laws, it is going to be a long haul for women seeking economic rights. Till then, Rao will continue to make her monthly visits to the Pune family court.