There are no breaking news at the moment

 

The neoliberal economy has changed the manner in which labour, love and relationshipshave been recognized,appreciated and structured in a society. The economic crisis which has cropped up in recent years, where the employment is shrinking, the economy is deteriorating, the common people are left with little options to earn their livelihoods and the state is rolling back from its welfare role,all this is making a significant impact on social relations. These economic changes are also making deep impact on the socialinstitution of marriage and family which is weakening and is being threatened in the given neoliberal environment where money is replacing love, commercialization is substituting the social and the emotional bonds, the civicrelations are waning and fading away and where the community support is gradually becoming extinct. The consumer paradigm in the free market economy now put an onus on the individual to seek services such as health, education or employment in the market rather than putting onus on the state or the community to provide for these basic services. This paradigm is deeply affecting the men and women on the margins. More importantly, when the institution of marriage breakdowns and the women are compelled to walk out of the marital relation with no support from the state, community or extended family, their situation becomes challenging. In the absence of the matrimonial property rights, women who abandoned, separated or are divorced, are deprived of any right to assets in the marital property owned by the husbands in the patriarchal society. Neither the law nor the society recognizes the contribution of women in the marital household. This paper looks at two cases going onor have been tried in the family courts and the struggle within the courtroom at the time when the institution of marriage breakdown and the individuals, as men and women, are being left vulnerable in their struggle for survival. It concludes that despite of the legal provisions relating to maintenance, mediation, protection of women against domestic violence, men and women and most importantly, men who are poor,and,women in general, are compelled to struggle in their daily lives.Neither the lawcould neither imagine the situations outside the paradox of the family nor the free market approach has helped in any way to advocate for the social policies that could offer alternatives lead a life with dignity in situations where economic, social and political life is transforming in the market driven economy.Trapped in the web of legal technicalities and the complexities of free market norms, these men and women are facing increasing vulnerabilities, where the state has refused to bail them out in any manner. It is therefore suggested that the law relating to divorce needs to be reconsidered with matrimonial property to be divided equally among the separating parties and more importantly the rights of women to marital property be examined. Giving women equal rights in the marital property is not only a moral imperative but also an economic necessity for any economy. It is also recommended that while considering the ill-effects of the capitalist economy, the concept of the provisions of social security and the welfare support measures need to strengthened, and in cases of breakdown of the institution of marriage, wherever required, special provisions to be made to support the women and children in vulnerable situations.

Atomised Economic Man in a Free Market Economy is the Norm

In today’s neoliberal economy, human being is no longer considered as a social being. Rather s/he has become an economic being or homo economicus or an economic man’ who is consistently rational with limited narrow self-interest agent. This termeconomic man’ was first used by John Stuart Mill when he explained that “[Political economy] does not treat the whole of man’s nature as modified by the social state, nor of the whole conduct of man in society. It is concerned with him solely as a being who desires to possess wealth, and who is capable of judging the comparative efficacy of means for obtaining that end”[1]. Adam Smith in his famous work Wealth of the Nation further wrote “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest. We address ourselves not to their humanity but to their self-love, and never talk to them of their necessities but of their advantages”[2]. Amratya Sen has argued that the there are pitfalls in limiting rationality to selfish rationality and he added the dimensions relating to sympathy and commitment in this model while elaborating that the human behavior is a complex phenomenon driven by multiple motivations including socialization[3]. Though this homo economicus model has been criticized by several scholars, yet this model dominates mainstream economics.

Despite of the limitations of the homo economicus model, today, the emerging trend is that the individuals are driven by the economic needs while the altruistic concerns or humanity is vanishing. The market forces are driving individuals to behave in self-centered manner leading to individualization, alienation, isolation and atomized behavior. In this market-driven consumer paradigm, the state is being relieved from its obligation to provide basic services to its citizens. Any individual is perceived as a consumer of welfare services, and therefore the onus is placed on aperson to avail of basic welfare services such as health, education or employment. Privatization construes individuals as self-sufficient entities not dependent on state machinery and thus, stigmatize those who avail public assistance. The effects of such fast pace economic transition are hardest for poor, women and other marginalized sections of the community.

Also, in the growing economies such as India, where the social security support system already lags behind, increasing stress on free marketization is distressing individuals, destroying social relations, devastating neighbourhoods, fragmenting communities, rupturing solidarities and reiterating patriarchy in its worst form. Today, the situation is that the self-regulated markets,where the state is abdicating itself from social obligation, morals and ethics are becoming subordinate to the market forces[4]. The emergence of free market has also eliminated different forms of social protections where now everything could be bought and sold irrespective of its ethical, social, moral or human consequences. Further, the self-regulating market has abolished the restrictions on buying and selling of land or labour previously restricted by the customary rights and community, social and moral norms, structures of family and kin or the mercantile policies of the state. The situation therefore is that those who have been relegated to margins within the familial or the social structures are being deprived of their entitlements and are denied or their rightful claims. With no social, moral or ethical restrictions and with no social support those oppressed are further being subjugated.

How Marketization is Affecting the Social Relations Including the Marriage and Family?

Earlier, the value was placed on the human emotions and the quality of social relations, however, today in this process of marketization, thisvalue is being replaced by quantitative factors. The qualitative social relations are now reduced to numbers by the quantitative parameters where every element can be measured. Therefore, human emotionssuch as love and care can be measured in terms of sheer numbers such as output, productivity, cost, time span, money and other parameters. Becker[5] in his famous work has applied the principles of market and economy to the social question relating to marriage and argued that people operate as rational agents in every aspect of life. He propounded that in a market, human beings could be considered as social capital and allocated monetary value to prestige, love and affection by applying elegant sets of mathematical formulas’[6]. In his Treatise on the Family[7], Becker analyzed the household as a sort of factory producing goods and services such as meals, child care and shelter. However, his theory has been criticized for not considering the non-monetary variables such as men are in more influential and powerful position as compared to women and can impose their own prices. Bergmann[8] criticized the use of market model to analyse family because of paucity of factors it takes into consideration. He argued that the thesis propounded by Becker failed to take into account that the system is created by men who command force prestige and wealth in all societies and thatthe government intervention would be useless at best and probably be harmful’.

Despite being critiqued, the imperialism of economics[9] is shaping the world today.Love and care are outsourced and the sacred domain of social relations within the family and marriage is altering with the emergence of new players in the free markets[10]. Trust, intimacy, respect and other aspect of social interpersonal relationship is invaded by the market forces. The proponents of commodification argue that “anything that some people are willing to sell and others are willing to buy in principle can and should be subjected free market (laissez faire) exchange and everything people need or desire is to be conceived of as commodity”. Thus, “everything that is desired or valued is an object that can be possessed, that can be thought of as equivalent to a sum of money, and that can be alienated. The person is conceived of and spoken of as the possessor and trader of these goods, and hence all human interactions are sales.” This intervention of reducing every human interaction into a commercial commodity is making an adverse impact on the society. Monetary value is replacing social values and relations. Theinstitution of marriage and family is weakening as the emotional and social tie that bind the family is shattering under economic and social pressures. The support provided by the extended families and the community at the time when marital relation faces crisis is waning away because market is prioritized above the rest.

Radin[11] explained the concept of market inalienability and argued that market rhetoric cannot and should not be applied to every situation. For instance, personal attributes such as the bodily integrity cannot be considered as an object. According to Radin, “Universal commodification undermines personal identity by conceiving of personal attributes, relationships, and philosophical and moral commitments as monetized and alienable form of self. A better view of market should understand many kinds of particulars-one’spolitics, work, religion, family, love, sexuality, friendships, altruism, experiences, wisdom, moral commitments, character, and personal attributes – asintegral to the self”. Further, in an unideal world of ignorance, greed, and violence where poverty, racism and sexism prevail, “commodification will harm the personhood by powerfully symbolizing, legitimating and enforcing class division and gender oppression”. Also, the inequality, disempowerment and oppression that exists in such situation commodification will `exacerbate, not ameliorate oppression and powerlessness’ and therefore would perpetuate order that subjugate women in an oppressive relationship. However, the commercialization has not stopped despite of being critiqued and today, in numerous ways, is harming the society.

 

Social Realities and the Complex Mesh of Law and Economics

The law and economics are two separate fields each with its own complexity yet, at times, these both fields get intertwined and while dealing with complex social realities both these arenas enmesh with each other and enhance complications of the civic life. Though both law and economics overlook complex social realities and make attempt to quantify the complex social and psychological elements into monetary value yet when applied together these make the situations worse. For instance, the changing economy where marketization is prioritized, is making the sharp impact on social relations and is changing the family and the household arrangement.However, when the law intervenes within the family, it completely ignores the impact of socio-economic transformations on the social life. Law has failed to keep pace with the economic transition. More so, the personal laws relating to marriage, divorce, custody, maintenance, all governed by religious norms could not keep pace with the fast rate of economic transition.  The result is that it is the individuals within the family who suffer because of such intricate intrinsic arrangements. Currently, the situation is that the inalienable personal rights within the marriage and family are at the verge of commodification. The conflict between the religious personal laws and the commodification of rights is taking a new twist. Religion does not accept divorce and therefore bargaining of rights at the time of separation or divorce is questionable from this perspective.

In a family court, in the situation of rift between the parties, often the relationship is reduced to stuffs, a party is ready to bring on the table. Therefore, a husband, being a provider is supposed to provide for financially and the wife is supposed to be relegated to her role of being a carer and a nurturer as per the religious and social norms. Love, therefore may be measured in terms of earning capacity of the husband,similarly, a wife is supposed to be adjusting’, loving’devoting’, and caring’ or rather as asilent worker’ who would sacrifice her life and her career for the sake of the family. Individuals, both men and women, are seen as factors of production as Becker has said and therefore, in the free market economy, love is seen as a tangible product which can be bought and sold in the market.But, at the same time, the law could not quantify the work women do at home in terms of rearing the child, sick or elderly or the work involved in maintaining the household. Thus, the share of a husband and a wife in a household is quantified using unjust measures while ignoring the labour and visible as well as invisible contribution of women within households. The quantum of maintenance is therefore decided accordingly. As in India, the law of division of matrimonial property at the time of separation or divorce is not applied, women could not demand for her enormous contribution she makes within the household.

Secondly, in the society where the economic and employment situation is worsening day by day because of wrong policies adopted by the successive governments over the periods of years, both men and women are being denied of suitable work opportunities. In the absence of such jobs, the families and the households are suffering immensely. The increasing precariat working conditions are making an adverse impact on social relations[12]. With no employment opportunities available, individuals are facing difficulties and often many are finding it difficult to survive. In such precarious situations, raising a family is becoming tough. For people who are poor and are at margins, situation becomes more intense.  The roll back of welfare measures by the state is further creating a havoc. With the advent of technology that replaced human efforts and now with the emergence of the Artificial Intelligence which may replace millions of jobs, it is highly likely that human worth will be reduced to naught and love may in that situation has to make other forms of immense efforts in order to survive. For women and children, situation becomes more difficult when the violent culture, repressive religious norms and regressive social culture combines with such precarious economic situations. For instance, the narratives described here portrayed the manner in which economic dimensions are adding insult to the injuries of women who knock the doors of court to seek redress against injustice they faced in their family lives.

My Lord, the Time is Not With Me

Hans Ram hails from a Dalit background form Jharkhand. He has been living in Delhi for more than 18 years. His father used to work as a post man but died of TB 25 years back in the village. His mother also expired a few days later. The three brothers who survived have no source or earning left then. The elder one took the small piece of land his father left and threw both the younger ones out. Hans Ram, therefore came to Delhi and since then never bothered to go back to the village. He survived while taking up some odd jobs in the city. Ten years back, he married Jhumri the second youngest daughter of Sardar Singh. Sardar Singh, now 65, owns a small shop in Rohini. His two sons are managing the shop. Jhumri studied upto ninth grade while his elder brother completed his graduation and the younger brother did a Diploma course in Mechanics. Jhumri and Hans Ram got two kids aged 6 and 8. One of them is crippled because of infection in leg since birth. Hans Ram could not provide for his wife and kids. Often, couple used to fight. Currently, Jhumri has been staying with her parents for past three years and she has filed a case under the Domestic Violence Act. The court has fixed total of 3000/ Rs maintenance per month for Jhumri and her two kids but Hans Ram has not paid a single penny for past 15 months. According to Hans Ram, for past three years the market situation is getting worse. Even the odd jobs he has been doing earlier are not easily available now and after demonetization, the situation has further worsened and therefore he finds it difficult to earn his livelihood and couldn’t pay to his wife as ordered by the court. The Magistrate in the court room strictly asked Hans Ram to make payment. Hans Ram asked for some more time.

The Magistrate got angry and said“but, you have not paid a single penny for past 15 months, how will she survive? If she would have been living with you won’t you feed her?He thundered.

Hans ram replied in the shaky voice, “Huzur, I was putting up the book stall in the market, but this time they (the local municipality) has removed the market and took away my books. I will definitely pay her within a week”.

Meanwhile Jhumri’s lawyer intervened, “He has been saying this for past 15 months and is not paying a single penny. The child is ill and needs medicines which are expensive, from where should we meet the expenses”? She showed medical papers of the child.

My Lord became concerned, “Why you are not paying for the treatment of the child?”

Hans Ram meekly replied, “Huzur, I am trying my best…I fell ill last year… and therefore, I could not earn”

“Where is your lawyer?” Further enquired the judge.

Hans Ram in a low voice replied, “Huzur, no money left to pay to vakil Saheb and vakil saheb was asking for money”.

“But aren’t you feeding yourself, it is your job to provide for your wife and kid, when you can eat yourself you should also feed them. Give her something”, directed the Magistrate.

Hans Ram pleaded, “Huzur, presently I don’t have anything. give me sometime…a month probably…I will pay”.

Magistrate, in angry tone, “But why not now? You have not paid her a single penny in 15 months. It comes to be 75000/- rupees. Pay her now or I will send you to jail”.

Hans Ram, “Huzur, the book fair is starting on 1st, I will put up a stall there and whatever I earn I will pay it to her….They (the municipality) took all my books…I am left with nothing….Time is not with me…Else I would have arranged for the money”.

Magistrate, continued in his angry tone, “Why next month, why not now? This is your kid and your wife…why should her parents feed them. If you are not paying now I will send you to jail”. To the policeman, “take him andput him behind the bars”.The policeman came forward and hold the hand of Hans Ram and told him “chalo” (Move on).

Hans Ram with teary eyes and shaky legs, “Huzur give me some time. I will arrange the moneyif you put me in the jail how will I be able to arrange for the amount”.

“You people thought that we are sitting here to listen to your lame excuses…you can fool us and get away easily…Pay right now or go to jail”, retorted the Magistrate.

Hans Ramwhimpered“Huzur, give me ten days, I will do something”. “Don’t send me to the jail, what will I do?” He said with tears rolling down his eyes and with his entire body trembling with fear.

Magistrate’s heart melted and now he adopted the softer tone, “Ok, I leaving you this time and giving you a week. You have to pay money to her… If again you make some lame excuse I will put you behind the bars”.

Seemingly, a simple case of non-payment of maintenance has complex socio-economic intricate, layers of nuances with its roots in the free market driven economy. In this situation, the man’s ability to pay is controlled by his politico-economic situation whereby the local municipality took away his source of livelihood on the pre-text of removing illegal vendors from the city. Being less educated and lowly skilled, he is left with no other option or source to earn money, but in the court these aspects could not factor in because the court is governed by the principle that man is the provider. The economy that has crumpled in past few years has made devastated impact on the livelihood of many daily wage earners in the city such as Hans Ram and his wife and children. The market economy has shattered the lives of such people as well as their families and has denied them their right to earn their livelihood. Caught in the vicious circle of poverty and trapped in the intricate web of law, people such as Hans Ram are finding it difficult to make their both ends meet or feed or to `provide’ for their families. The wife Jhumri in this situation has studied only till ninth grade and hardly has learned any skills to survive in the competitive market economy. Because of secondary position being accorded to women, her parents have not bothered to ensure that she should complete her education or acquire skills to survive in the market. Additionally, she is burdened with taking care of the sick child.

The courts as the implementers of law could not help men and women entrapped in such situations because the law has narrow, restricted and limited vision[13]. The Magistrate being aware of the fact that Hans Ram with his unstable economic situation is not in position to arrange 75,000/ Rupees, but still he used imprisonment as a threat to pressurize him to arrange money because his child needs money for treatment. The rule of men as providers’ fails to take into account the inability of men to provide for in market driven economy where men are poor or illiterate or for any other reasons could not earn sufficiently.The state has not devised any social support programmes or policies that could help men and women in such adverse precarious economic situations in a free market economy. The law could not imagine the situations, where in case the men fail toprovide for’ the family, then any other alternatives could be devised for to protect the women and children. The law in such situation has ignored the social, political or economic circumstances and visualize the solutions only in the narrow construct of the marriage and the family.

The weakening of social relations and community bonds in the capitalist economy has further affected those who are on margins. With no social support, many of the families are marginalized.On the one hand, the state is taking steps to beautify the cities to make cities smart, yet on the other hand no steps are being taken to secure the life of people surviving on the margins[14]. Rather the livelihoods of such people are being destroyed by the state in its urge to embellish the city, which offers them nothing in replacement. The state in nexus with the market is demonizing those who are poor and homeless[15].Human values as empathy and social concern are completely being erodedwhile the violence is being inflicted on the poor and the vulnerable. Instead of eliminating poverty or reducing inequalities, the state is taking all steps to get rid of the poor themselves. In fact, more budget is allocated to make cities smarter rather than supporting the marginalized to enable them to join the mainstream. Men, women and children in such circumstances are denied their right to earn livelihoods or to survive with dignity.Free market economy has given rise to the culture of violence where the subalterns are mistreated and neglected and those who are rich are being provided with benefits. The Constitution of the India guarantees the right to life with dignity, yet the state has not evolved any mechanism to ensure that these citizens assuredly could live a dignified life.

A Quest for Dignity

Kamla, a 42-year-old woman is compelled to shuttle between Kanpur and Delhi to make her both ends meet. At the age of 23, she got married to Kanwar Lal, an engineer working in Meerut then. He owned a house in Meerut then. A lot of dowry including jewellery has been given by her parents then. The couple shifted to Delhi as her husband got a job in a private company. It has been an arranged marriage and a son is born out of this wedlock. The marriage survived for seven years during which the husband bought a new house while taking loan and selling the ornaments which were given to Kamla at the time of her marriage by her parents and relatives. Her husband later left her for another woman and she has been dispossessed of the house she has been staying in. Later, she filed a case for divorce in Kanpur. The case went on for 11 years and the lawyer took a lot of money. Yet, she could not receive maintenance neither for herself nor for the son.

According to her, only once, ten years back she received 20,000 Rsand this is all he has paid in lieu of her streedhan[16]including her ornaments, maintenance for herself and her son and her visible and invisible contribution she made to her matrimonial home. Nothing else has been paid by her husband. After a long struggle she obtained divorce where she has been made to sign the document that in future she has no right to claim anything from her husband or his family.  Meanwhile she came to Delhi to stay with her sister and her family. She trained herself as a beautician and while staying in Delhi she claimed she could earn a bit. “Kanpur is not an expensive city as Delhi is not many people pay for the beauty enhancement job”, she asserted. Initially, she worked in a beauty parlour, but since the shift is longer and her son requires her attention she left the job and started working independently. “But now my son has grown old and the schools in Delhi are charging high fees and this house is too small to accommodate my sister’s family and myself…my sister’s kids are also growing and then my son and her two kids used to fight….So, I took my son to my parent’s house in Kanpur…I have been shuttling on and off since then”. According to Kamla, her parents are taking care of her son and she is paying for his educational fee besides daily expenses. “But how long will they take care of him…His educational expenses are increasing. My brother’s family is also growing…I have to make some other arrangement…Without any support life becomes difficult. My brothers and sisters are doing their best but they have their own families. In order to survive, I am looking for some solution….I do not see re-marriage as a viable option.  Already life has become a mess”.

Violence thwarts women’ economic agency and empowerment. For Kamla’s problem, and for many women in similar situations, as separated and divorced women trying to stay independently,neither the law nor the society could provide any solution. Divorce has not helped her to dig gold[17] or could get substantial amount even to take care the educational needs of her child. She has tried to acquire skills to become a beautician but this has further added to her woes as she could not find suitable income opportunities in the town where her parents along with her son stay. She is compelled to stay in the city to earn her living and is shuttling down between two geographical areas to take care of her son. The capitalist economy has severed her family and separated her from her only son. Between the necessity to earn her livelihood and to up bring and rear the child, a woman’s life is torn into pieces. She could not obtain any rights in the matrimonial property as the law could not recognize her contribution in the household. She could not even claim the price in lieu of her gold ornaments which were sold by her husband to buy a house. While twisting and manipulating the law, her husband has even denied paying maintenance to her or their son.The law could not help Kamla to claim her rights as a wife and she has been dispossessed of her matrimonial house.

In fact, the law in India does not recognize the concept of marriage as partnership between equals where contribution of both husband and wife are recognized.A wife is therefore denied any contributions she makes into her matrimonial home. She can only lay claims on the gifts she has been given at the time of marriage by her parents. But often, after years of staying in a marital relation, these gifts are utilized and therefore could not support a woman at the time when she may need them most. Sivaramayya[18] referred to such system as those based on separation of property’ model under which thecorpus of matrimonial property’ is not recognized over which both spouses can make a claim. Such model does not recognize marriage as an equal economic partnership between a man and a woman. In such situations, a woman can claim only the property which she acquires either before or her marriage or at the time of marriage by the way of gifts or inheritance. At the time of dissolution of marriage, a woman therefore can only claim her streedhan and not the right to matrimonial property to which she may have contributed through her visible or invisible labour and which may include not only what she has earned if she takes up an employment but also the contribution which she makes as a homemaker, nurturer and carer within the households.

The recent report by the World Bank noted, “Because women are more likely to perform unpaid activities that benefit the household such as child or elder care, they typically have fewer monetized contributions than men and therefore acquire fewer assets during marriage. Recognition of these nonmonetary contributions is important upon the dissolution of marriage as it can grant women access to a share of marital property. Though these contributions are implicitly recognized in community property regimes, separate property regimes can penalize a spouse that does not earn an income during marriage. This income penalty can be mitigated in divorce by explicitly recognizing nonmonetary contributions to a household”[19]. However,the laws in India could not recognize domestic work as productive work and the fact that the women may sacrifice their lives by giving up their careers to look after homes, or in case they take up jobs where they are paid less.

The amendments made in the Hindu Succession Act in 2005 wherein it has been provided that the daughter of a coparcener shall by birthbecome a coparcener in her own right in the same manner as the son andhave the same rights in the coparcenary property as she would have had, ifshe been a son in the joint Hindu family is a welcome step towards socio-legal and economicempowerment of Hindu daughters, but it provides equal proprietary rightsonly in the family of birth. The provisions in law could not recognize the right of women to property in marriage with a male coparcener of another family as his legally wedded wife and her contribution in bearing and rearing of children and household works in the matrimonial home. She is not given the proprietary rights in her matrimonial household. It is only as a widow of her deceased husband, she becomes class I heir of her deceased husband[20]or being the widow of predeceased son of her father-in-law she can claim her inheritance rights in the matrimonial property. One of the issue is that as the Hindu family law recognizes joint family system and the property divisions are based on the notions of Hindu Undivided Family which may assume awkward position in case a divorced wife decides claim her right to reside in the joint family household of the estranged husband[21]. After the enactment of the Protection of Women Against Domestic Violence Act in the year 2005 which provides for the right of women victims of domestic violence to reside in shared household it has been found that the courts are reluctant to recognize the rights of wife to even stay in the matrimonial household[22]. In fact, for the single, separated, divorced or abandoned women, neither the law, nor the society could imagine possible alternatives outside the institution of marriage[23]. In fact, the conservative neoliberal society has failed to think of any possibilities for women who exist independently outside the institution of marriage.

In societies ridden with patriarchy, casteism, feudalism and other such hierarchies the neoliberal world order is further fueling divide and is creating hierarchies[24].In the free market economy where poor are already marginalized because of crisis prevailing in terms of roll back of social security provisions, rising unemployment and growing inequalities, single women and their children are further relegated to the margins because of their inability to cope up in competitive world. The market economy is also replacing the values of social justice, welfare state, democracy and secularism with the anarchy, autocracy and oligarchy. The role of welfare state is shrinking with inequality is widening and further intensifying domination of those already in powerful positions while marginalizing those at receiving end. More so, from a gender perspective, the situation is worsening as patriarchy is being reiterated in its virulent form in the market driven economy where women who already have been placed at a lower pedestal are further deprived and denied of their basic rights to live a dignified life in a feudal capitalist environment. So, a woman may get educated and yet is not allowed to make choices related to work outside home or she may be uneducated and yet she is compelled to work in an insecure, unsafe environment on meager wages because no social security system exists in place. In cases of female headed households where a woman is single, abandoned, divorced, widowed or otherwise for various reasons remained as the main bread earner is not supported by the state or the communityin any manner. She may be compelled to choose a lowly paid job in an unsafe working environment or is allowed to sink in deeper layers of poverty. The state, the communities as well as the families as institutions are failing to fulfill their roles or obligations toward women who may be compelled to support themselves and their children on their own.

Moving Beyond the Concept of the Law and the Free Market

The narratives above are just the glimpse into the lives of men and women in these two families. There are many Hans Rams, Jhumris, Kamlas and their children who are struggling in much worse manner[25]. However, these provides insight into the social realities of men and women and suggest that the emphasis on the law as well as the economy to ameliorate the social evils such as poverty or gender disparities has failed to yield an effective result. These narratives indicate that the with the wide gaps in the pace of economic transitions with that of changes made in the laws and policies at socio-political level, the situation has been created which is creating a havoc in the life of ordinary men and women. Those who are poor and vulnerable are being made to suffer in the process. Such situations are making an adverse impact on the life of the women and children. Patriarchy is reiterated and at the same time those being poor are demonized and made to suffer. The culture of cruelty that is being enforced because of the policy of imposing free market economy without any state support mechanism in place, is harming ordinary men, women and children. The World Bank recently while releasing its report[26] opined that for men, laws work in a straight manner, however for women, laws works more like a maze[27]. More so, in patriarchal societies, situation is much worse. Despite of the existence of intricate laws, implementation remains abysmal and the rights could not be translated into reality at the ground level because of various hurdles.

In fact, India is ranked at 172th position out of 185 countries in the female labour force participation[28]. The Global Gender Gap Index by World Forum placed India at 108th rank out of 144 countries for the year 2017. The country was ranked at 87th position for the year 2016 for the gender parity across four dimensions – economic participation and opportunity, educational attainment, health and survival, and political empowerment[29].  The Global Hunger Index shows that the position of India has fell down to 100th. Also, according to the World Bank Report, 2016 the female work force participation rate of India is 24 percent well below the world average of 39 percent. The need therefore is to re-examine the situation and re-think the alternatives beyond the domain of law and economics into the social stream. From the perspective of women who are seeking divorce or are separated or abandoned by their natal as well as marital families, it is essential that special programmes be created. At micro level, the provisions of the laws relating to the division of matrimonial property need to be considered as women’s control over marital property could make a positive impact of their economic power and agency. At macro level, there is a dire need to strengthen the social support and welfare system. Providing financial support, employment security and economic support to women and children becomes essential to emancipate women with a focus on the fundamental premises of dignity and autonomy.

Spivak[30]has cautioned that law is an introductory strategy rather than a solution and that societal changes and legal reforms are mutually linked and together constitute a continuous ongoing process of social and political negotiation. Short term solutions such as short stay homes, shelter homes to house abused women, creche facilities, medical services, legal aidand other support mechanisms need to be created besides advocating for long term solutions like reorienting gender roles toward equality between the sexes and establishing socio-cultural and legal reforms. The law relating to the rights of women in matrimonial property needs to be examined. In addition, there is a need to direct attention to the asymmetry and power in relationships besides challenging barriers to women’s rights and equality. There is a need to critically scrutinize the institution of marriage and family with a gender lens. The dominant social arrangement that creates different realities for men and women needs to be questioned. The institution of marriage or family as a picture-perfect institution without any dignity or respect for women is merely an abomination. No society can call itself democratic or just, when the so called basic units of society – `the families’, become undemocratic and violent – a place of misery and anguish to women. Challenging the notions of masculinity and femininity is crucial.

At a larger level, the solution may lie in rethinking the situation of women’s dependency on marriage, women’s value in labour market and transmission of property and other resources to women. Another World is Possible’ the movement that emerged in response toThere is No Alternative’ needs to be re-visited as an alternative to neoliberal capitalist free market economy. Employment opportunities need to be generated for men and women while countering the forces that are shrinking the spaces for employment and economic opportunities. Enhancing women’s autonomy through education and employment may help besides ensuring women’s control over resources. Or as Wendy Brown[31] insisted that sharing of power and not regulation, freedom not protection, is a true affirmation of democracy which may end social and legal marginalization of women within families while pursuing the goal of egalitarianism as prescribed by the Indian Constitution.

The author is a practicing advocate, researcher and an activist working in gender, human rights and governance issues. She has written several books and articles and may be contacted at shalu_nigam@rediffmail.com

[1] A quoted by Tittenburn Jacek (2013) The Death of the Economic Man, International Letters of Social and Humanistic Science, Vol 11 p.10-34 https://www.scipress.com/ILSHS.11.10.pdf

[2] Smith Adam (1976) Reprint of An Inquiry into the Nature and Causes of Wealth of Nations, Edited by RH Campbell and AS Skinner, Liberty Classics, Indiana  http://files.libertyfund.org/files/220/0141-02_Bk.pdf

[3] Sen Amratya (1977) Rational Fools: A Critique of the Behavioral Foundation of Economic Theory, Philosophy and Public Affairs 6 (4) 317-344

[4] Polyani Karl (1944) The Great Transformation: The Political and Economic Origins of Our Times, Beacon Press Boston

[5] Becker Gary S. (1974) A Theory of Marriage, In the Economics of the Family: Marriage, Children and Human Capital, edited by Theodore W. Schultz University of Chicago Press, Chicago

[6] Goode William J (1974) Comment: The Economics of Non-Monetary Variables, In the Economics of the Family: Marriage, Children and Human Capital, edited by Theodore W. Schultz University of Chicago Press, Chicago p 345-351

[7] Becker Gary S (1981) A Treatise on Family, Harvard University Press, Enlarged Edition 1991.

[8] Bergmann Barbara R (1995) Becker’s Theory of the Family: Preposterous Conclusions Feminist Economics, Vol. 1, No. 1, p 141-150.

[9] Lazear Edward P. (1999) Economic Imperialism, National Bureau of Economic Research, Working Paper 7300, Cambridge MA http://www.nber.org/papers/w7300.pdf

[10] Nigam Shalu (2014) Outsourcing Love: Globalization, Care Economy and Its Impact on Social Relations Within the Families, Countercurrents.org, September 14 https://www.countercurrents.org/nigam140914.htm

[11] Radin Margaret Jane (1987) Market- Inalienability, Harvard Law Review 100, p 1847-1937

[12] Nigam Shalu (2014) Precariats in India: Globalization and Changing Employment Relations, Countercurrents, October 30

[13] Nigam Shalu (2017) Fighting for Justice in Patriarchal Courts, Countercurrents, August 30 https://countercurrents.org/2017/08/30/fighting-for-justice-in-the-patriarchal-courts/

[14] Nigam Shalu (2015) Delhi: A World Class Smart City or An Inclusive and Equitable Capital, Countercurrents, February 14

[15] Times of India (2018) Following Twitter Outrage, HDFC Bank Remove Metal Spikes Installed Outside Mumbai Branch, March 27

[16] The gifts given to the bride at the time of marriage which exclusively belongs to her

[17] The courts in many cases are pronouncing judgements where they are thwarting women’s right to justice by lamenting that women are filing false cases of domestic violence to dig gold or to retaliate. For more details kindly refer to Nigam Shalu (2017) Is Domestic Violence A Lesser Crime: Countering Backlash Against Section 498A IPC, Occasional Paper No. 61, Center for Women Development Studies, New Delhi

[18] Sivaramayya B (1999) Matrimonial Property Law in India, Oxford University Press, Delhi

[19] World Bank (2018) Women, Business and the Law, Washington DC p 12-13 https://openknowledge.worldbank.org/bitstream/handle/10986/29498/9781464812521.pdf

[20] As specified in the schedule of section 8 of the Hindu Succession Act, 1956

[21] Jaising Indira (1993) Women’s Inheritance Rights in Contemporary Jurisprudence, in Nitya Rao and Luise Rurup (eds.), A Just Right: Women’s Ownership of Natural Resources and Livelihood Security 110-21

[22] The pronouncement made by the Supreme Court in the case of S.R. Batra v. Taruna Batra 2007 (3) SCC 169 reveals the patriarchal mindset of Indian judiciary and the manner in which the right to reside in shared household under the Protection of Women Against Domestic Violence Act 2005 is interpreted by the Court in the context of property rights while denying women their entitlements

[23] Nigam Shalu (2017) Is Domestic Violence A Lesser Crime? Countering the Backlash Against Section 498A IPC, Occasional Paper No. 61, Center for Women Development Studies, New Delhi

[24] Nigam Shalu (2016) The Privileges of Being a Hindu, Upper Caste Elite Male in India, Countercurrents, February 10 https://www.countercurrents.org/nigam100216.htm

[25] Nigam Shalu (Forthcoming) Against All Odds: The Journey of Women to Access Justice against Domestic Violence

[26] World Bank (2018) Women, Business and the Law, Washington DC https://openknowledge.worldbank.org/bitstream/handle/10986/29498/9781464812521.pdf

[27] Summers Hannah (2018) No Women, No Growth: Regressive Laws Prevent Economic Inequality Says Study The Guardian, March 30. https://www.theguardian.com/global-development/2018/mar/30/no-women-no-growth-regressive-laws-prevent-economic-equality-world-bank-study?CMP=twt_gu

[28] https://data.worldbank.org/indicator/SL.TLF.TOTL.FE.ZS

[29]Yadavar Swagata (2017) Global GenderGap Index: India Ranks 108 Of 144 Countries, Down 21 Places From 2016, Fact Checker, November 3, http://factchecker.in/global-gender-gap-index-india-ranks-108-of-144-countries-down-21-places-from-2016/

[30] Spivak Gayatri C (2010) Situating Feminism, Beatrice Bain Research Group Annual Key Note Lecture, Program In Critical Theory, University Of California At Berkeley, 26 February

[31] Brown Wendy (1995) States of Injury: Power and Freedom in Late Modernity, Princeton University Press, NJ, USA

Comments are closed.