Is Hindu so­ci­ety ready for pre- nups?

There are even deeper con­cerns here. De­spite cod­i­fi­ca­tion, Hindu mar­riages con­tinue to be gov­erned by a sacra­men­tal no­tion that a be­jew­elled bride is of­fered to the groom ( sa­ha­lankar kanyad­han). Fur­ther, it has to be topped up with dowry...

The Asian Age - - Oped - The writer is a women’s rights lawyer

The min­istry of women and child devel­op­ment held a high- level con­sul­ta­tion on March 26 to push for­ward its agenda of in­tro­duc­ing the con­cept of pre- nup­tial agree­ments within In­dian fam­ily law. A sim­i­lar idea was floated by the min­istry in Novem­ber 2015, but it couldn’t make much head­way as the pro­posal faced se­vere op­po­si­tion from se­nior of­fi­cials who felt that in­tro­duc­ing such a con­cept would change the sacra­men­tal char­ac­ter of Hindu mar­riages.

But since women and child devel­op­ment min­is­ter Maneka Gandhi has been push­ing for it, the idea has sur­faced again. Os­ten­si­bly, this is be­ing done to se­cure the rights of women at the time of di­vorce. “Di­vorce cases in In­dia of­ten run into sev­eral years of court­room bat­tles over prop­erty, as­sets and main­te­nance, and women of­ten end up los­ing out on their rightful share. If the terms of prop­erty di­vi­sion and main­te­nance are clearly spelt out in a legally valid doc­u­ment prior to mar­riage, it would en­sure women get the as­sets and sup­port they are en­ti­tled to with­out go­ing through lengthy lit­i­ga­tion,” the min­is­ter said.

But there seems to be a hid­den agenda too — of sav­ing the pre­cious time of our over­bur­dened courts. Though we are quick to en­act pro­gres­sive laws — main­te­nance laws, the Do­mes­tic Vi­o­lence Act, Fam­ily Courts Act, etc — the im­ple­men­ta­tion of these laws is dis­mal. It is ob­vi­ous that courts deal­ing with women’s rights have failed to pro­tect women. Is­sues of prop­erty di­vi­sion, child cus­tody and main­te­nance have be­come highly con­tested. While this works out to be a boon for mat­ri­mo­nial lawyers, it is a bane for lit­i­gants, more so, for women, who lack the stay­ing power to en­gage in long- drawn lit­i­ga­tion. The courts have tried to deal with this by re­fer­ring the cou­ple to me­di­a­tion, where they can mu­tu­ally ar­rive at an agree­ment. But sub­tle pres­sure is ex­erted dur­ing these pro­ceed­ings upon the wife to set­tle on the hus­band’s terms. The wife who re­fuses is seen as stub­born and overde­mand­ing. Many me­di­a­tors, in­clud­ing judges, func­tion from the pa­tri­ar­chal premise that fam­ily as­sets be­long ex­clu­sively to the hus­band.

To cut short these prob­lems, in­tro­duc­ing the no­tion of prenups ( as they are pop­u­larly re­ferred to) is viewed as a magic wand, since it sounds pro­gres­sive ( and Western), where the par­ties them­selves set­tle their fu­ture rights at the time of en­ter­ing into mar­riage. A sim­ple so­lu­tion to the prob­lem at hand, or so it seems. If women are be­ing de­prived of their rightful share in fam­ily as­sets, they them­selves are to blame for not be­ing pru­dent, dili­gent and far­sighted!

But how will women, who are usu­ally mar­ried at a young age, be in a po­si­tion to de­cide their fu­ture eco­nomic en­ti­tle­ments at the time of mar­riage? And do they have the au­ton­omy to do so?

There are even deeper con­cerns here. De­spite cod­i­fi­ca­tion, Hindu mar­riages con­tinue to be gov­erned by a sacra­men­tal

no­tion that a be­jew­elled bride is of­fered to the

groom ( sa­ha­lankar kanyad­han). Fur­ther, it has to be topped up with dowry to make amends for her lower sta­tus. Within this pa­tri­ar­chal premise, the bride’s fam­ily is placed at a lower plank, and they lack the ne­go­ti­at­ing power to strike a favourable deal for di­vi­sion of mat­ri­mo­nial as­sets at a fu­ture date. Against this ground re­al­ity, how will a pre- nup­tial con­tract be­tween the par­ties se­cure the rights of women?

In­tro­duc­ing the no­tion of prenup­tial agree­ments will trans­form the sacra­men­tal Hindu mar­riage into a purely con­trac­tual obli­ga­tion. Are our over­whelm­ingly Hindu par­lia­men­tar­i­ans ready for this? This is the moot ques­tion which the bu­reau­crats were try­ing to raise. Un­less the Hindu mar­riage sheds its sacra­men­tal ve­neer, it will not be pos­si­ble to in­tro­duce the con­cept of prenup into the Hindu law of mar­riage.

Since the Is­lamic law, from its in­cep­tion, viewed mar­riage as a con­trac­tual obli­ga­tion, the

nikah­nama ( mar­riage con­tract) pro­vides for con­di­tions to be writ­ten into it to se­cure the fu­ture rights of the bride. She can even di­vorce her­self if the hus­band vi­o­lates these con­di­tions. The same can also be en­forced in a court. In ad­di­tion, in­stead of the Hindu no­tion of dowry, the Is­lamic law pro­vides for mehr, a sum which the groom must as­sure as the fu­ture se­cu­rity of the bride in her mat­ri­mo­nial home. In­deed a rev­o­lu­tion­ary con­cept for 7th cen­tury Ara­bia.

But if we look around, we no­tice that mehr amounts have be­come pal­try and the Hindu no­tion of dowry has crept into Mus­lim mar­riages, which sets off the safe­guard which the Is­lamic law pro­vides for women.

Though con­di­tions can be writ­ten into the nikhanama, a Mus­lim bride, sim­i­lar to a Hindu bride, is not in a po­si­tion to lay down con­di­tions in the nikah­nama de­spite the re­li­gion grant­ing her this right. Dur­ing our dis­cus­sions about in­clud­ing con­di­tions in the

nikah­nama, we were in­formed that it is in­aus­pi­cious to dis­cuss the break­down of mar­riage when en­ter­ing into it. So in most cases, beyond the pal­try amounts of mehr, no con­di­tions are in­cluded in the nikah­nama or iqrar nama( pre- nup­tial con­tract).

We also have the ex­am­ple of the Goan law which pro­vides for a pre- nup­tial agree­ment. This is based on the con­ti­nen­tal ( Euro­pean) law, which trans­formed Chris­tian mar­riages from sacra­ment into con­tracts in the early 19th cen­tury, and the Por­tuguese in­tro­duced it in their ter­ri­to­ries. But ex­pe­ri­ence says that women are bet­ter off if they do not en­ter into these con­tracts as the no­tion of com­mu­nity prop­erty ( joint fam­ily prop­erty) pro­tects them bet­ter since the hus­band can’t dis­pose of the fam­ily as­sets with­out her con­sent, at least no­tion­ally. Pre- nup agree­ments are drawn by wealthy hus­bands to wrig­gle out of the sit­u­a­tion where the wife is given the right only to a pal­try amount as main­te­nance. At the time of mar­riage, women do not un­der­stand the im­pli­ca­tions of sign­ing on the dot­ted line.

At the high- level meet­ing, lawyers and ac­tivists who were present felt that rather than rush­ing into it, there is a need for fur­ther ev­i­dence­based re­search to un­der­stand the ground re­al­ity. This was quickly turned into a project of pro­duc­ing a doc­u­ment based on the ex­pe­ri­ence of Western coun­tries which per­mit such agree­ments. But In­dian re­al­i­ties are very dif­fer­ent, and merely bor­row­ing ideas from the West may not suit In­dian con­di­tions.

While dis­cussing these prob­lems at a meet­ing which lasted just barely about an hour, some of us made a valu­able sug­ges­tion that since a mar­riage un­der the Spe­cial Mar­riage Act ( SMA) is purely a civil con­tract, the op­tion of a pre- nup agree­ment should be in­tro­duced within this law. This would be eas­ier to bring about, since reg­is­ter­ing the mar­riage un­der SMA is purely op­tional. This would also give a boost to the gov­ern­ment agenda of bring­ing a Uni­form Civil Code ( UCC), since SMA is our op­tional civil code.

But the gov­ern­ment does not seem to be in­ter­ested in adopt­ing these work­able so­lu­tions to­wards the UCC. The in­ter­est of the present gov­ern­ment seems to be merely to tar­get the Mus­lim com­mu­nity, project them as back­ward and keep the is­sue of UCC on the boil till the next gen­eral elec­tion.

Flavia Agnes

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