It’s quite obvious I have strong view about the recent divorce amendments in India allowing women to get a share of a man’s inherited property, but not the other way around. Let me make it clear that my main objections are not about the inherited property per se (though I disagree with that clause), but how it discriminates between men and women instead of making it about the financially weaker spouse regardless of gender.
But as I read more responses from those who support this bill and hail it as a great step forward, I’ve become aware of a fundamental ideological difference. Those in favor of the law believe that social discrimination justifies legal discrimination. Their opinion is that because people choose to have foolish and outdated prejudices, it’s okay for the law to fall into the same trap. I honestly never even considered that such a view could exist. In my mind, the law should mold itself according to what’s right. The laws should be the same not only across genders, but across all countries, economic levels, and professions. In the US, this principle is codified into the Constitution as the fourteenth amendment and “Equal Justice under the Law”.
As an example of how Indian lawmakers think, here’s how the Indian government would have”solved” the problem of discrimination against blacks as it existed in the US decades ago.
Bus owners made African Americans sit behind whites
US Solution: Discrimination on basis of color, religion, sex etc. is illegal.
Indian Solution: 33% reservation for African Americans in front seats in buses!
Alternative Indian Solution: Every white person must give up their seat to an African American
See the difference between the two responses? The Indian government has a bad habit of perpetrating legal injustice in order to compensate for a social one. This is blatantly unfair to those individuals who never condoned or followed the bad social practices in the first place. It typically lumps an entire demographic into one monolithic entity and proclaims that all of them are either the oppressed or the oppressors. In other words, it violates a basic principle of jurisprudence – equal protection of the laws.
So you ask – why not? Why not legally discriminate in order to compensate for harmful social prejudices? If most women in India are not treated properly by their families, what is wrong in creating a law that discriminates against me to “share the pain”? To hear this sentiment put into even clearer words, read this comment I got a couple of days ago.
The answer to why legal discrimination should not be allowed in any mature civilized democracy is that people have no choice but to follow the laws whereas social discrimination is optional. It’s not as if women’s rights are being taken away. Yes, when it comes to child marriage, forced marriage, mistreatment and beatings by husbands or in laws, or confiscation of their passports/property, the law has to intervene because these are a direct violation of a person’s right to choose how to live their life. But if an adult woman gets married and does not protest against her marriage but goes quietly like a lamb to the slaughter, whose fault is that other than her own? She has the power to fight. Many women have been in the news lately and even called the police to prevent their parents from marrying them off. Even little girls in rural areas now know that they have the option to pursue their studies instead of getting married. If a woman has the power and doesn’t make use of it…what can anyone do? You can take a horse to the water, but you can’t make it drink.
“Social conditioning” is a valid excuse only until the woman turns eighteen. After that she’s an adult and is assumed to have the maturity to vote, drink, drive, and yes – take responsibility for her own life. Now many may say that eighteen is a meaningless number and the mere fact of a person turning eighteen doesn’t eradicate the years of teaching. Fair enough. In which case the solution is to not give these women the status of an adult. More and more I’m coming to realize that what people really want is two sets of laws for women in India. One for the real adults who choose who they want to marry and choose their life, and one for the infantilized versions who don’t possess the mental capacity for making decisions about their life.
But this is wishful thinking. Setting up such a system is absurd and requires too many other thorny issues to be sorted out. The right way is to do as the US does and simply create strong sensible laws relating to alimony, property division, and child support that are gender neutral and look at the relative financial positions of the couple. If it was possible, I would like even the judges to not know who is the man and who is the woman! Why is it relevant?
Social discrimination is bad and unfortunate. But you can’t force anyone to be progressive. You can’t make a law telling people to think in a certain way. As long as they’re not violating anyone’s freedom and rights they can do whatever they want no matter how distasteful. They can allot their property in any manner they choose. It’s theirs after all. That is what is meant by property in the first place! And even if you’re going to force people to give away inherited property, at least for god’s sake make it gender neutral and dependent on the finances of either party.
In my naïveté I assumed that every true feminist would be against these divorce laws. I thought that no way would progressive people support the idea of a system that so blatantly discriminates based on gender. Unfortunately I didn’t take into consideration the two types of feminists – equality feminists and victim feminists. Those supporting such laws want to treat all women as victims and in fact wish for laws that cement that status into law.
But in spite of this, I’m gratified that I’ve seen so many women who cringe at the sight of these amendments. These are the true feminists whose desire is for equality and who believe that it’s not going to be handed down by the government but must be snatched by those who want it. As thousands of women do every year. More power to them!
But when the law itself proudly proclaims that all women are downtrodden and infantilized and all men are mean bastards who take unfair advantage of them, is it any surprise that so many citizens follow the cues and behave as expected?
Unfortunately, India still has those socialist/communist roots. They’ve been this way since the 70s and probably will remain this way because the people find it most convenient.
I’d say this as an American–why even have Civil Rights laws? Don’t people have the right to privately discriminate? I don’t like blacks, lets say. Don’t I have a right not to hire a black maid?
If Disneyland can prevent heavily tattooed people from entering the park, why do they not have the right also not to let certain ethnic backgrounds into their parks? Or certain castes?
In reply to Western Point of View
In the end, as Samuel Butler says, “Extremes are alone logical, and they are always absurd”.
Everything is a question of balance. How much the balance swings one way or the other is the question for us to decide.
@Western Point of View
What Civil Rights focuses on is preventing discrimination on issues that you have no control over even if it is an integral part of who you are. You cannot change the race you were born as. You cannot change your gender you were born as. You cannot change your genetic make up. So it is inherently unfair to discriminate against you when you cannot possibly do anything to become “acceptable”.
If you decide not to hire a black maid, the black applicant cannot do anything to change herself to become non-black. Whereas if you decide not to hire anyone who does not have a minimum education – firstly it is a choice they made to be not educated and second they can do something about it to qualify.
Religion of course is a red herring in the list of reasons you cannot use to discriminate as people can definitely choose to belong to a religion or to none at all – but then all things religious are to be dealt with sympathetic touchy-feely non critical understanding so this gets included in the list. And if you think about it, religious indoctrination is so strong in childhood that it becomes almost like a race to people – something they were born into and cannot do anything about.
In reply to Clueless
It isn’t a question of extreme or discrimination–it is a question of governments role in our daily lives. If there is a company that doesn’t hire blacks, what blacks can do is not buy anything from that company and let them suffer OR they can have their own company and hire blacks only, no whites.
Libertarianism takes care of this. The goverment doesn’t need to get involved in social issues. All the government needs to do is enforce life, liberty and the pursuit of property.
I have EVERY right not to hire a black maid simply because it is under my discretion. If h/she doesn’t like it, she doesen’t have to support me. OR she can hold a protest in front of my house saying that I am racist and no one should work for me.
Look up Ron Paul on this stuff guys. We don’t need the government to tell us anything. All we need are a small police force (local only, no FBI/CIA) to enforce life/liberty and property, NO MILITARY (only a small militia) and states to have WAY more discretion in their own jursidictions.
Let businesses be businesses. If I see a company that hates Islam, guess what? I won’t buy from them and tell my Muslim friends/family members not to buy from them. Same thing can go for me. If I have a business, and someone doesn’t like me as a Muslim, they simply can stop buying from me. No harm, no foul.
BTW religion–Jews are an ethno-religion. How do you deal with that? Sikhs are the same.
Libertarianism is the (second) best choice and is the most “un-extreme” form of government. We people then have the freedom to take care of ourselves. No ridiculous regulations, no ridiculous taxes, no ridiculousness in general. Let me decide for MYSELF not big brother.
You cannot change your race, sure. But you can change your behavior and buying outlets. Libertarianism acknowledges this.
In reply to Western Point of View
There’s a danger of this discussion going off the rails. So from this point forward, let’s just stick to the specific divorce provisions recently implemented in India.
In reply to bhagwad
np.
:)
I feel the law would be fair in some cases, like those who live in patriarchal joint families or those where women have been married for a long time (say more than ten or seven or thirteen years – whatever number is considered appropriate) in a house that belonged to the husbands’ parents, and where they were not allowed to move into or build their own property – (this is very common, but how will they prove this?), where the woman was not allowed to work (how does one prove this? so maybe where the woman was not working) or where their are children involved and the woman has nowhere to live (or if she can show her parens gave dowry or more to her in laws?) … What I mean is details can and should be worked out and that there are families who would benefit from this. Here is what I think might happen, 1. Parents will then not stop their sons from making their own homes before or after they get married 2. There will be lesser attempts to restrict women from working 3. Prenups will soon become legal.
Just some thoughts.
Ofcourse it will not work for couples who are living in nuclear homes, where marital property should be equally divided, again unless there are prenups made (not legal till now I think). This much can be made very clear – and as a side effect: it would encourage Indian parents to let their children be independent.
In reply to Indian Homemaker
I guess the problem will center around the word “allow”. If they say they were not “allowed” to move into or build their own property, what exactly was the barrier? Presumably they weren’t locked up or the woman wasn’t physically restrained from going to work…so can we still use the word “allow” when she had the right and the capability to work but didn’t do it for whatever reason? Unless she was physically intimidated, I don’t think either the law or us can say that she was “forced” to do anything no?
What do you feel?
Kids are a whole different ballgame. All the regular rules go out the window. But without kids, and without the use of physical force or intimidation, I don’t think it’s valid to say that a woman was “prevented” from working or moving into her own place.
Bhagwad,
You are spot-on. When government tries to do what is “good”, instead of what is “right”, we all end up losing. Because, “Good”, is always subjective. “Right” is objective, and we define “rights” based on larger good. So, doing the “right” stuff is automatically “good”, but not the reverse.
But few arguments in favor of this law, although I agree these are not sufficient grounds for a bad law:
1. In a HUF (unlike in west), a large portion of the wealth is not actually with the husband, and hence his family can cheat the divorced-wife of any meaningful alimony.
2. Careers are built over years of diligent work, and when a house-wife, say after 7 – 10 years of marriage, is divorced, she has a very long shot at reasonable success.
In India, government makes laws, under the influence of highly vocal groups, and are often a negotiation between various pressure-groups. Objectivity and reason are only an after-thought, to avoid review petitions in SC.
In reply to Murali
Even if we agree that inherited property should be part of the equation (which I don’t btw), then at least the laws should be gender neutral without discrimination.
I agree that there is huge social pressure for Indian women to conform to some standards like joint family, giving up career, etc. But conformance is a choice they make. Maybe they don’t have other valid choices and are forced to take up whatever is offered to them.
The problem then is to ensure that these women do have valid choices to choose from and to educate them about the choices. What the country needs is setting up in-between houses for victims to help them get back on their feet. We need more incentives offered to educate ALL children in a family. We need reforms to help laws around inheritance become more clear. We need social acceptance of working women at all strata. What we don’t need is a lopsided law.
Here is what I see happening. Women who really don’t have valid non-patriarchal choices end up being victimized anyways – either in terms of pre-nups or through plain old bullying. Women don’t claim their own inheritance because it is their father’s or brothers’ rights in their mind. And this is the question of asking for husband’s inheritance in case of divorce.
Women who do have the choice and means to walk out of a divorce are probably the ones who do not need the lopsided laws but will make use of them anyways. Sometimes in an unfair manner because the law itself is unfair. It is only human to come out of a marriage with some negativity and then sometimes want to do everything legally possible to hurt your ex. These cases will bring down the validity of genuine cases.
Look at the reservation system. It was designed to help the poor, backward tribals. But how will those people who do not even have access to basic education come forward to claim a reserved engineering seat? So the seats get taken by people who do not need the help – the ones who had means to a good basic education. This creates resentment among students who are in the same situation but have to work harder just because they were not born into the right community.
I agree with clueless above, two wrongs don’t make a right. For example, this law probably won’t even be accessible to 50% of women in India who are married off by age 18. They can’t possibly have the education or means to access this law.
I think the real issue is forced marriage, inadequate education for girls, intimidating them into giving up their career.. basically the manufacturing of dependance. A lot of women can’t think of divorce because they literally have nowhere to live if they do.. alimony laws are mostly inefficient and inheritance laws are easily ‘signed away’ by sisters of brothers. This law won’t fix all or much of that.. awareness and education might.. but I can see the intention of this law.. to dismantle the dependance. Why make it gendered and hence something that will become archaic in say 50/100 years though? Do we need more laws that are short-sighted and will never be reviewed (like the mumbai alcohol laws)? It would have been easy enough to say ‘spouse/ partner/ financially weaker spouse’ in the wording of the law. Otherwise it’a a bit like institutionalising sexism.. more families will disinherit daughters because ‘you can get some from your husband if you need it’ and the vast majority that actually is in need will probably have no access to due process of the law in our corrupt system.
In reply to Carvaka
Kind of like reservations no? Now it’s institutionalized and people don’t feel the need to help anyone of lower castes anymore because hey – they’re already receiving benefits right?
I both agree and disagree with your pov. You claim that social conditioning ends at 18. That is not so. I just saw a documentary on homosexual serial rapists / killers in America last night and most of them were caught at the age of 40 – 50, and the reason goes straight back to abusive parents and sexual repression. This is not to say that these people are not responsible for their actions or shouldn’t suck it up and deal with it and pay the penalty of their misdeeds. But the fact remains, that they committed the crimes because they were unable to deal with the consequences of other people’s abuses on them. It’s pretty much the same for Indian women. They are caught up in a vicious cycle, and the price for actually shrugging yourself free is too high for some people. We need to show sympathy for these people, not blame them for being sucked in by society.
As far as the law is concerned, everyone is and must be equal. Reservation is discrimination, and so are divorce laws that talks about inherited property. I think alimony must be decided on the basis of NEED, not on the basis of income or gender. What these discriminatory laws do is actually ensure that the discrimination continues.
Ultimately the only way to change this is to ensure that we bring up the daughters in exactly the same way as we do the sons. Nothing more, nothing less.
In reply to Fem
Yes, I think what 18 means is that one can no longer use conditioning as an excuse. The line is somewhat arbitrary, but it has be drawn somewhere.