Though it had stirred up a controversy for seeking to introduce “irretrievable breakdown of marriage” as a ground for divorce, what was even more progressive about the bill was the blow it had struck for gender equality. For the first time ever in India beyond the tiny state of Goa, the bill recognized the concept of “matrimonial property” and there by vested the wife with a share in the assets that have been acquired by the husband in the course of their marriage. In the event of divorce, the bill provided that the wife, as a corollary, would be entitled not just to maintenance or alimony but also a share as determined by the court in the husband’s “share of the immovable property”.
The bill, however, made it clear that this salutary provision would apply only to a divorce decreed on the proposed ground of irretrievable breakdown of marriage. This showed that even as it came up with a path breaking idea, the bill was strategically designed to make an incremental reform lest it ruffled too many feathers. For there are no legal reasons as such to deny the same benefit to the wife who obtains divorce on other grounds such as cruelty, desertion or adultery.
Another caveat contained in the bill, again clearly to allay apprehensions, was that the husband’s assets in which the divorcee would be given a share would be “other than inherited or inheritable immovable property”. The implication being that the divorced wife would not have a share in the assets that the husband had inherited from his joint family. Needless to add, the bill, which had been piloted by the UPA government, applied only to Hindus and those who had a non-denominational civil marriage.
Whatever their justification, these limitations in the now lapsed bill are a far cry from the Goan law, which applies to all communities and confers on the divorced wife an equal share in the matrimonial property without making any distinction between inherited and self-acquired assets. This very equitable conception of matrimonial property in Goa is a legacy of the Portuguese “civil law”, under which each spouse automatically acquires joint ownership of all assets, whether acquired or inherited by them. The more patriarchal system in the rest of India is shaped not only by personal laws but also the British “common law” tradition. It is a testimony to growing feminist consciousness around the world that several common law countries such as Britain, US, Canada and South Africa have in varying forms and degrees embraced the concept matrimonial property.
The trajectory of the Marriage Laws Amendment Bill introduced in August 2010 suggested that India was finally ready to follow this global trend. This was despite the fact that the bill as originally introduced did not make any provision for division of matrimonial property. How this provision came to be incorporated in the bill is, in fact, a demonstration of the checks and balances built into the Indian democracy. For the bill might not have got enriched by this matrimonial property provision had it not been for the safeguard of consultation with civil society through the mechanism of a parliamentary standing committee.
Appearing before the standing committee in November 2010, some of the finest feminist lawyers in the country, Flavia Agnes, Kirti Singh and Nilima Dutta, impressed upon the lawmakers that irretrievable breakdown could not be introduced as a ground for divorce without providing the wife with an adequate share in the matrimonial property. Quoting these serious concerns, the standing committee headed by Jayanti Natarajan gave a report in March 2011, recommending that “liberalization of the laws of divorce should essentially be accompanied with appropriate provisions recognizing the legitimate rights of the women on the matrimonial property at least, in which they have their share of contribution”.
When the bill came up for discussion thereafter in the Rajya Sabha in April 2012, the Manmohan Singh government, surprisingly, did not deem it fit to amend it in the light of the standing committee’s report. Its reason was that the bill already required the court to ensure that the divorced wife was protected from “financial hardship”. This was when another key safeguard in the process of lawmaking kicked in. The then leader of opposition in the Rajya Sabha, Arun Jaitley, said that it would be “a great injustice to the women” to leave them merely in the care of the provision against hardship. Echoing the feminist concerns and the standing committee’s recommendation, Jaitley said that irretrievable breakdown could not be brought in as a ground for divorce “without provisions like sharing of assets”.
Jaitley’s caution forced the UPA regime a year later to move amendments accordingly, paving the way for the passage of the bill in the Rajya Sabha in August 2013. The then law minister, Kapil Sibal, said that he could not however agree to the proposal made by other MPs to stipulate a 50% share for the wife in the matrimonial property. Sibal said the court should instead be given the discretion to determine the share in the facts and circumstances of each case.
Interestingly, Najma Heptullah, who was the main speaker for the BJP in the 2013 debate, went to the extent of demanding that the benefits of the bill be extended to Muslim women as well. Given the BJP’s history of advocating uniform civil code, and given Jaitley’s vital role in the inclusion of the matrimonial property provision, it is ironic that the Modi government has been so hesitant about taking a step towards the Goa model.