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Dated : Saturday, July 14, 2012 |
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Marriage laws get amended, but loopholes remain
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Lavanya Regunathan Fischer and Devadatt Kamat
In India laws that govern marriage, divorce, maintenance, inheritance and adoption are based on religious affiliation. Separate laws have also meant that amendments to the laws of any one religious group affect only a section of the population
Will the recent amendment to the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, protect women’s rights? Or will an easy divorce without adequate rights in matrimonial property and clear financial safeguards, leave an increasing number of women facing lengthy judicial processes for any tangible maintenance rights?
India is one of the few jurisdictions where the laws that govern marriage, divorce, maintenance, inheritance and adoption are based on religious affiliation. Separate laws have also meant that amendments to the laws of any one religious group affect only a section of the population and changes for the better also move at different speeds. Although parties can always opt for the secular Special Marriage Act, the religious law is often the one applied de facto. The amendments passed this year affect only those who are governed by the Hindu Act, including Jains, Buddhists and Sikhs, and those who marry under the secular Special Marriage Act.
The amendments to the Acts mentioned above allow for a change in the procedure of obtaining a divorce when the marriage has irretrievably broken down. In addition, they try to ensure that, at the very least, maintenance arrangements are more than a mere token.
The Amendment Act recognizes that the existing legal frameworks were inadequate. It also admits to a rather mind-boggling scale of delay in acknowledging that the legislative recognition of irretrievable breakdown as a clear ground for divorce was required to reconnect the law with existing social realities. After all, the 1978 Indian Law Commission Report had spoken in favour of these reforms almost 32 years ago. Likewise countless Supreme Court and High Court judgments had consistently echoed the demand for these reforms over the past three decades. Finally, the Law Commission on its own took up the issue again and submitted the suo moto report in 2009. This seems to have propelled the amendment through, giving the matter the necessary final push.
The delay is partly the result of misconceived notions of the impropriety of divorce and the idea that it goes against traditional Hindu practice, both of which are wrong. The amendment can be seen in the light of recent progressive reform to the Hindu Succession Act and indicates that legislators today are more willing to take a fresh approach and less willing to make divorce the symbolic icon of Indian family values.
Leaving the question of legislative delay aside, the question remains as to whether the amendment addresses the two main problem areas of divorce law: The balancing of rights of all the parties involved in a divorce and the welfare of the children after a divorce. In both these areas codified Hindu law has had mixed results till now. From a lawyer’s point of view this is because the courts, especially the lower courts, have not always dealt fairly with, or shown adequate sensitivity to, the financially or educationally weaker spouse, usually the woman. Also, the law has sometimes achieved in practise the opposite of what it had set out to do.
Even if the court was sympathetic, as per law the application of the irretrievable breakdown of marriage as a ground for divorce was unnecessarily cumbersome. The method of obtaining a divorce, which was in reality based on the principle of irretrievable breakdown – was as divorce by mutual consent. For this type of divorce, the Act had required a six-month waiting period between the making of the application and the courts granting the divorce, and had required both parties to be present when such divorce was granted. The amendments now allow for a party wishing to obtain a divorce on the basis of the irretrievable breakdown of marriage to apply separately and obtain such a divorce upon the court being convinced that the marriage had indeed permanently broken down.
The prior requirements of both parties being present and the six-month waiting period have been removed. In the past, if one of the parties decided not to present themselves at court, it has meant lengthy, inhumane delays. It is hoped that the removal of this requirement will speed up the process of obtaining a divorce by the party wishing to do so, and when read with the other amendment to maintenance, might secure for women a right to some financial security. As a safeguard against misuse of this provision, the wife has been allowed to contest a divorce on this ground if it would cause her grave financial hardship. The Court would then have the right to dismiss the petition or ensure that such hardship is eliminated. The husband has not been given such a corresponding right.
Overall, there can be no doubt that the amendment has thus rectified huge problems and is a major step forward. Both applicants as well as the courts no longer have to struggle with procedural unfairness or illegitimate non-cooperation by one spouse. Similarly, the law is no longer in denial about the everyday reality of irretrievable breakdown – mutual consent was an inappropriate proxy, distorting the actual reasons for divorce. Above all, and many countries should take note, is the gender sensitive framing of the new provision, the scope for the husband to play power games at the cost of the woman, has been reduced.
The amendment also makes it the duty of the judge to ensure the adequate maintenance of the children in the marriage and makes explicit mention of those with special needs – again a long overdue clarification and confirmation. The statutory articulation of maintenance for the family is a step in the direction of ensuring that children’s rights are made enforceable and the financial responsibility is to be borne by all able parties. However, although the maintenance for the children has been made ‘consistent’ with the ‘financial capacity’ of the parties to the marriage, the level of maintenance to be secured for the wife has been left to the discretion of the courts. This indeed gives ground for the fear, often raised by women’s groups, that the courts are not always sympathetic to the plight of women, or their desire for a certain degree of financial independence.
Corruption within the judicial system, male biases, gender insensitivity, should make us doubt whether we can afford to trust these institutions blindly. In addition, as with all reform, legal empowerment on paper often does not translate into actual empowerment. Illiterate women or women ignorant of their rights would face much the same situation before an unsympathetic judge as they faced prior to the passage of the amendment, since knowledge of the law remains low.
In any case, even if there is an excellent litigation setting; equally strong parties, good lawyers and a responsive judge, good maintenance arrangements will still be difficult to arrive at, given the complexity of Indian property rights. There is no real, well-formulated concept of marital property. The owner of the property, even during the subsistence of the marriage, is the person who paid and bought the property and not the spousal unit. Secondly, many families still live in joint family arrangements, with the various inhabitants of the property not enjoying clearly demarcated rights. There is a whole jurisprudence that has evolved around the Hindu Undivided Family and maintenance will have to work hard to find its way in.
So while the amendments are a step in the right direction, the loopholes that remain perhaps call for a more coherent reading of what rights need to be secured for all the parties involved in case a family unit breaks down. There is still a gap between the law as it exists in the statute books and everyday realities.
(Women’s Feature Service) |
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Nine ways you must invest in your career
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Most people are too busy working to stop and think about how to invest in their careers. You may be thinking, “I’m doing my job, isn’t that enough?” However, if you want to make sure you stay on the right career track, it takes more than just getting the day-to-day work done to be successful. Not investing in yourself is like floating down a fast river without a paddle, map or knowledge of what’s around the next bend. Things may go fine for a while, but at some point, you’re going to realize you made a giant mistake. To avoid such unforeseen disaster, you need to make a proactive and thoughtful investment in a plan for achieving your career and life goals. And if that isn’t enough to convince you, here are some suggestions to help you keep your eyes on the prize:
1. Focus on the big picture
It’s easy to get bogged down by the little things. You have a bad day, or a bad week, and it seems like the world is coming to an end. Stop and think about it—do you have more successes than frustrations? Concentrate on what you are doing well, and keep looking ahead.
2. Delegate and rely on technology
Are you bogged down in managing minutia, like your calendar, contact information, and errands? Consider possible ways to invest in some help for things you don’t actually need to do yourself. For some people, this could involve hiring someone to help with certain tasks, but it could be just as easy as finding some great smartphone applications. Many grocery stores have shopping helper apps, banks provide applications and reminders, and there are countless calendar and day-to-day management applications you may want to try.
3. Network for results
Collecting business cards doesn’t count as networking. Have goals in mind when you enter each networking event. Who will attend and whom do you want to try to meet? Know how to introduce yourself, so you are relevant for the person you’re meeting. Then, follow-up and keep promising contacts engaged by suggesting a coffee meeting.
4. Propel yourself forward
Good suggests: “If your career isn’t going where you want, consider hiring a career coach, picking up a few books about career success, or seeking online resources and newsletters to help keep up-to-date with advice to help you accomplish your goals.” If you’re stuck in a rut, it will be tough to stay motivated, so do what you can to keep sharp.
5. Keep your online presence professional and up-to-date
When people Google your name, you want to be sure they find useful information about you. Update your profiles to include a great avatar, current information, and correct contact details.
6. Find a mentor
Don’t underestimate how important it is to identify someone willing to share advice and information. A mentor can make a real difference in your career. Use online research and in-person networking to help you identify someone whose career you admire, is a good match for you personally, and who is interested in you and your career.
7. Project confidence via your appearance
“You don’t have to spend big bucks on a designer ensemble,” Good says, but take time to select flattering and up-to-date clothing. She explains, “When you do, you will feel more powerful and confident and other people will notice.”
8. Consider continuing education
If you are in a field, but you don’t have the formal education you may need to succeed, consider enrolling in a degree or certificate program. “Some companies will even pay for this if you can prove it’ll benefit them as well,” Good notes.
9. Keep your goals in mind
Don’t get caught up in the daily grind, only to wake up one day to realize you haven’t accomplished everything you had hoped to do. Make a list of what you want to do. Don’t be afraid to include aspirational items—dream big and you’ll be more likely to wind up where you want to go. (Agencies) |
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Karunalaya: Where the mentally challenged live in dignity
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Left in the wild to get killed, many of them do not know where they came from and who they are. The shelter home Karunalaya, on the edge of Karnataka’s Bandipur Tiger Reserve, provides the 55-odd mentally challenged to eke out their existence with some dignity.
“These unfortunate people are immune from hope and despair. They are not waiting for anyone, as no one will come to take them back home,” said Sister Mary, who shared her thoughts.
Situated 225 km southeast of Bangalore, Karunalaya is home to “those dumped on the highway by truck drivers, who are paid to get rid off unwanted people”. These people are left in the wild to fend for themselves. Some have even got killed by wild animals in the past.
Some were brought here by compassionate souls, while some were dumped on the road in the wildlife sanctuary to fend for themselves by truck drivers, explained an official of the hospital-cum-care centre for the mentally challenged.
The inmates come from Kerala, Tamil Nadu, Karnataka and even from Orissa and West Bengal.
The centre, run by seven Sisters of St Charles Borromeo congregation, started its journey with a dispensary before turning into a full-fledged hospital, and now, a shelter for the mentally disabled. Most inmates do not know any language. One female spoke what sounded like Bangla, while another could mutter a few words in Hindi.
“Many were sexually abused and left in the lurch before being brought here. Two kids born here were sent to an orphanage,” a functionary explained. The construction work on a new home for them continues. There are hurdles and, of course, resource crunch is a chronic deterrent, she added. The inmates have to be taken care with utmost love.
“Some of them have to be fed, cajoled, washed regularly and counselled. This is a regular routine. We do try to keep them busy in some work also, but constant supervision is necessary,” said Sister Mary.
With a new home, these inmates now have a new identity as well. “They do not have a name or an identity, so we give them a name for administrative convenience,” Sister Mary said.
Located alongside the highway to Ooty in the verdent green, the Karunalaya centre is popular with villagers as the first halt for medicare.
“For deliveries, women now choose the government hospitals as there are a whole lot of benefits. We provide various other facilities which are sadly lacking in the area. Every week we get a few cases of people with mental problems,” said a doctor in-charge. The original plan was to provide a decent hospital with modern facilities, but with the number of mentally challenged people increasing, our activities are now focussed on their needs, Sister Mary added.
“Due to social or family pressure, changing life styles and stress, and of course exploitation of women in various ways, the need for such centres is increasing,” Mukta, a social activist, said.
Brij Khandelwal |
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Spanking kids may raise risk for mental health woes in adult years
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Children who are subjected to punishments such as spanking, slapping, and hitting - even in the absence of full-scale maltreatment - are at an increased risk of mental disorders in adulthood, a new study has revealed.
Adults who reported to having such punishments in their childhood were at a greater risk of mood disorders, anxiety disorders, alcohol and drug abuse dependence, and several personality disorders, according to Tracie Afifi, PhD, of the University of Manitoba in Winnipeg, and colleagues.
Up to 7 per cent of some sort of adult disorders can be attributed to “harsh physical punishment” meted out in childhood, Afifi and colleagues reported online in Pediatrics.
The link between child abuse - both physical and sexual - and mental disorders in adulthood has long been established, the researchers noted. But studies of milder forms of punishment that had similar findings have been disputed as having “weaknesses in design, measurement, and analysis,” they added, including the lack of adjustment for confounding factors such as full-scale abuse.
To try to overcome those limitations, Afifi and colleagues took the help of the National Epidemiologic Survey on Alcohol and Related Conditions, which included a representative sample of civilian, non-institutionalized adults in the US.
The second wave of the survey, conducted between 2004 and 2005, included 34,653 adults, 20 or older, and asked about current mental conditions, as well as the past incidence of physical punishments.
“As a child how often were you ever pushed, grabbed, shoved, slapped or hit by your parents or any adult living in your house?” Participants were asked in the interview.
The people had the option of answering, on a five-point Likert scale, could be never, almost never, sometimes, fairly often, and very often.
Participants who answered with ‘sometimes or higher’ were defined as those who have experienced harsh physical punishment.
For this analysis, participants who also reported severe physical abuse, sexual abuse, emotional abuse, physical neglect, emotional neglect, or exposure to intimate partner violence were excluded.
The final analytic sample included 20,607 participants. Overall, the researchers reported, 1,258 participants reported physical punishment, or 5.9 per cent of the total. They were more likely to be male, black, and to have a family history of dysfunction, ABC News reported.
After adjustment for sociodemographic factors and family dysfunction, harsh physical punishment was associated with an increased risk of most lifetime Axis I mental disorders. Specifically:
The risk of major depression was 41 per cent higher; The risk of mania was 93 per cent higher; The risk of any mood disorder was 49 per cent higher; The risk of any anxiety disorder was 36 per cent higher; The risk of any alcohol abuse or dependence was 59 per cent higher; The risk of any drug abuse or dependence was 53 per cent higher.
The findings “provide evidence that harsh physical punishment independent of child maltreatment is related to mental disorders,” they concluded.
The researchers cautioned that the study was cross-sectional, which precludes drawing any causal inferences. Moreover, they noted, that the data was retrospective, which could introduce recall and reporting biases. (Agencies) |
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