No Wages For Love: Women’s Rights Within Families And Changing Economic Paradigm

30/03/2018

The neoliberal economy has changed the manner in which labor, love, and relationships have been recognized, appreciated, and structured in society. The economic crisis has cropped up in recent years, where employment is shrinking, the economy is deteriorating, the common people are left with few 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 a deep impact on the social institution 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 emotional bonds, the civic relations 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 an 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 relationship with no support from the state, community, or extended family, their situation becomes challenging. In the absence of 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 on or 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 the legal provisions relating to maintenance, mediation, and 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 law could 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 to 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 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 be 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.

Atomized Economic Man in a Free Market Economy is the Norm

In today’s neoliberal economy, the human being is no longer considered 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]. Amartya Sen has argued that 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 human behavior is a complex phenomenon driven by multiple motivations including socialization[3]. Though this homo economicus model has been criticized by several scholars, this model dominates mainstream economics.

Despite the limitations of the homo economicus model, today, the emerging trend is that individuals are driven by economic needs while altruistic concerns or humanity are vanishing. The market forces are driving individuals to behave in a 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 a person to avail of basic welfare services such as health, education, or employment. Privatization construes individuals as self-sufficient entities not dependent on the state machinery and thus, stigmatizes those who avail public assistance. The effects of such fast pace economic transition are hardest for the poor, women, and other marginalized sections of the community.

Also, in 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 neighborhoods, 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 the 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 social structures are being deprived of their entitlements and are denied 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 In the Marriage and Family?

Earlier, the value was placed on human emotions and the quality of social relations, however, today in this process of marketization, this value is being replaced by quantitative factors. Qualitative social relations are now reduced to numbers by quantitative parameters where every element can be measured. Therefore, human emotions such 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 another aspect of social interpersonal relationship is invaded by 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 society. Monetary value is replacing social values and relations. The institution of marriage and family is weakening as the emotional and social tie that binds the family is shattering under economic and social pressures. The support provided by the extended families and the community at a time when marital relation faces crisis is waning away because the 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 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 the market should understand many kinds of particulars- one’s politics, work, religion, family, love, sexuality, friendships, altruism, experiences, wisdom, moral commitments, character, and personal attributes – as integral 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 exist in such a situation commodification will `exacerbate, not ameliorate oppression and powerlessness’ and therefore would perpetuate order that subjugates women in an oppressive relationship. However, commercialization has not stopped despite being critiqued and today, in numerous ways, is harming 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 fields get intertwined, and while dealing with complex social realities both these arenas enmesh with each other and enhance complications of civic life. Though both law and economics overlook complex social realities and make attempts 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 a 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 social life. Law has failed to keep pace with the economic transition. More so, the personal laws relating to marriage, divorce, custody, and 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 on the verge of commodification. The conflict between religious personal laws and the commodification of rights is taking a new twist. Religion does not accept divorce and therefore bargaining for rights at the time of separation or divorce is questionable from this perspective.

In a family court, in the situation of a rift between the parties, often the relationship is reduced to stuff, a party is ready to bring to the table. Therefore, a husband, being a provider is supposed to provide for him 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 that 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 labor 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 the enormous contribution she makes within the household.

Secondly, in a society where the economic and employment situation is worsening day by day because of wrong policies adopted by successive governments over periods of years, both men and women are being denied of suitable work opportunities. In the absence of such jobs, families and 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 the margins, the situation becomes more intense.  The rollback of welfare measures by the state is further creating havoc. With the advent of technology that replaced human efforts and now with the emergence of 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, the situation becomes more difficult when the violent culture, repressive religious norms, and regressive social culture combine 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 on the doors of the court to seek redress against the injustice they faced in their family lives.

My Lord, the Time is Not With Me

Hans Ram hails from a Dalit background from Jharkhand. He has been living in Delhi for more than 18 years. His father used to work as a postman but died of TB 25 years back in the village. His mother also expired a few days later. The three brothers who survived had no source or earnings 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 an infection in the leg since birth. Hans Ram could not provide for his wife and kids. Often, the couple used to fight. Currently, Jhumri has been staying with her parents for the past three years and she has filed a case under the Domestic Violence Act. The court has fixed a total of 3000/ Rs maintenance per month for Jhumri and her two kids but Hans Ram has not paid a single penny for the past 15 months. According to Hans Ram, for the 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 his wife as ordered by the court. The Magistrate in the courtroom 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 the 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 a shaky voice, “Huzur, I was putting up the bookstall in the market, but this time they (the local municipality) have removed the market and taken away my books. I will definitely pay her within a week”.

Meanwhile, Jhumri’s lawyer intervened, “He has been saying this for the 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 the 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 an 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 the 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 and put him behind 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 money…if you put me in 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 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 pretext 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 the past few years has made a devastating 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 ends meet or feed or `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 the 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 the law could not help men and women entrapped in such situations because the law has a narrow, restricted, and limited vision[13]. The Magistrate is aware of the fact that Hans Ram with his unstable economic situation is not in a 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 a situation has ignored the social, political, or economic circumstances and visualizes 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 the 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 such as empathy and social concern are completely being eroded while 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. The free market economy has given rise to a culture of violence where the subalterns are mistreated and neglected and those who are rich are being provided with benefits. The Constitution of 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 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 a 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 And this is all he has paid in lieu of her streedhan[16] including her ornaments, maintenance for herself and her son, and the visible and invisible contribution she made to her matrimonial home. Nothing else has been paid for by her husband. After a long struggle, she obtained a divorce where she has been made to sign the document that in the 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 parlor, 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 arrangements…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’s economic agency and empowerment. For Kamla’s problem, and for many women in similar situations, as separated and divorced women trying to stay independent, neither the law nor society could provide any solution. Divorce has not helped her to dig gold[17] or could get a substantial amount even to take care of 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 to 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 a partnership between equals where the contribution of both husband and wife is recognized. A wife is therefore denied any contributions she makes to 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 relationship, 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 systems as those based on separation of property’ model under which the corpus of matrimonial property is not recognized over which both spouses can make a claim. Such a 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 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 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 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 birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she is a son in the joint Hindu family is a welcome step towards socio-legal and economic empowerment of Hindu daughters, but it provides equal proprietary rights only in the family of birth. The provisions in the 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 children and household works in the matrimonial home. She is not given proprietary rights in her matrimonial household. It is only as a widow of her deceased husband, she becomes a class I heir of her deceased husband[20]or the widow of predeceased son of her father-in-law she can claim her inheritance rights in the matrimonial property. One of the issues is that as the Hindu family law recognizes a joint family system and the property divisions are based on the notions of the Hindu Undivided Family which may assume an awkward position in case a divorced wife decides to 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 a shared household, it has been found that the courts are reluctant to recognize the rights of wives to even stay in the matrimonial household[22]. In fact, for 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 the divide and is creating hierarchies[24].In the free market economy where the poor are already marginalized because of the crisis prevailing in terms of rollback 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 in the competitive world. The market economy is also replacing the values of social justice, the welfare state, democracy, and secularism with anarchy, autocracy and oligarchy. The role of the welfare state is shrinking with inequality widening and further intensifying the 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 the 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 remaining as the main bread earner is not supported by the state or the community in any manner. She may be compelled to choose a lowly-paid job in an unsafe working environment or is allowed to sink into 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 a 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 a much worse manner[25]. However, these provide insight into the social realities of men and women and suggest that the emphasis on the law, as well as the economy to ameliorate social evils such as poverty or gender disparities, has failed to yield an effective result. These narratives indicate that with the wide gaps in the pace of economic transitions with that of changes made in the laws and policies at the socio-political level, the situation has been created which is creating 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 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 a 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 work more like a maze[27]. More so, in patriarchal societies, the 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 172nd position out of 185 countries in 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 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 fallen down to 100th. Also, according to the World Bank Report, 2016 the female workforce 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 a divorce or are separated or abandoned by their natal as well as marital families, it is essential that special programmes be created. At the 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 on their economic power and agency. At the 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 aid and 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 for 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 labor 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 a 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 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