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Cabinet clears changes in marriage, adoption laws
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Anuj Menon Offline
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Post: #1
Cabinet clears changes in marriage, adoption laws

This is in relation to the news article which was being discussed on Nirmukta's Facebook page:

http://zeenews.india.com/news/world/cabi...65704.html

The issue being discussed had gotten really long and the admin have locked that post, so I'm continuing the topic here, and would like to see the discussion afresh.

I like the ruling giving adopted kids the same status as biological kids, and the right to property is very welcome seeing as most women get a very raw deal after a divorce. Still this section irks me:

"According to the Cabinet note, while a wife can oppose a husband's plea for a divorce under the new "irretrievable breakdown of marriage" clause, the husband will have no such rights to oppose if the wife moves the court on the same grounds. "

Isn't that unfair and biased towards men? And is it OK to discuss equal property rights for the man in this case?.... As in can a man lay claim to a woman's resources?... obviously given that a woman is earning more than the man.

I would like to hear more opinion's on this.
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Lije Offline
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Post: #2
RE: Cabinet clears changes in marriage, adoption laws

In any women's issue, I usually find that theoretical cases or cases which arise due to red-tape and corruption are used to argue against any corrective measures. For example, the assumption here seems to be either that men and women are already on an equal footing, and as such such laws are discriminatory towards men or that since in a few cases the implementation hasn't gone correctly, it is the idea of the corrective measure which is wrong and not something else.

More generally, any affirmative action meets with the same kind of arguments. That is why I was trying to nail the moral premises that people use to arrive at what is reasonable and what is unreasonable. Unless we lay them out and follow through with the conclusions they lead to, we'll just be talking over each other.

So my contention is that any corrective action (like government sponsored education) is "biased" and "unfair" to someone else - like those who pay taxes, and who feel that their money is being unfairly used for somebody else's kids and not their own.

I'd like to know why such "biased" and "unfair" corrective actions are generally accepted. Of course, a Randian might say, "the hell with everyone else, I'm the most important person". In that case the discussion will be along different lines. I'm just assuming that people who argue against corrective measures for women's inequality consider themselves as being for "equality" and for reducing inequality.
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arvindiyer Offline
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Post: #3
RE: Cabinet clears changes in marriage, adoption laws

(25-03-2012 12:16 AM)Lije Wrote:  So my contention is that any corrective action (like government sponsored education) is "biased" and "unfair" to someone else - like those who pay taxes, and who feel that their money is being unfairly used for somebody else's kids and not their own.

I'd like to know why such "biased" and "unfair" corrective actions are generally accepted.

These corrective actions are far from 'generally accepted', at least not to the extent that they have been rendered fait accompli by law.

Arguments to convince those who 'bear the cost' of corrective action, typically proceed along these lines:

The 'cost' in several cases is in fact readily bearable.

This is Peter Singer's argument, that it is unethical to refuse an action that can remedy the suffering of a disadvantaged party, without the sacrifice of nearly anything as important to you. The implicit assumption here is that parties with privilege are better able to bear costs.

Fairness and uniformity are not always synonymous.

Isaac Asimov's example of a poll-tax illustrates this point. Once it is acknowledged that total fairness is an unattainable ideal and it is remedying manifest unfairness that should drive policy, the problem becomes one of finding the least unfair alternative, in a collective sense (Point #3 here). Therefore, to say that a certain implementation of corrective action falls short of ideal fairness would be a tautological criticism, and a legitimate critique would be that the given implementation addresses manifest iniquities less adequately than an alternative implementation. The question is how to find 'halting rules' in these tradeoff searches.

Further, addressing long-standing and self-perpetuating marginalizations may require demands for equal opportunity as well as demands for legitimate exceptions, which will, in the immediate term seem as a departure from the ostensible ideal of equality.
(This post was last modified: 25-03-2012 12:18 PM by arvindiyer.)
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unsorted Offline
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Post: #4
RE: Cabinet clears changes in marriage, adoption laws

Quickly sharing an article which I had shared on the fb thread, which goes into why this law is necessary (and also explains why the exception about the waiting period is a legitimate one):

For Indian Women, Divorce is a Raw Deal
http://india.blogs.nytimes.com/2012/03/2...-raw-deal/

Quote:When a woman leaves a marriage, unless she is very well to do, “there is very little left to her,” to be able to sustain herself, Ms. Singh notes. The property goes to the person in whose name it is, and in most cases assets are in the name of a man, she points out.

Quote:Most women surveyed “did not want a divorce even if they have faced violence in their marital homes as they feel both financially and socially insecure outside the marriage,” the study finds.

A large number of women “live at the mercy of their husbands during the subsistence of marriage” and even after a separation or divorce they are financially dependent on their natal family, the report states.

The study points out : “Not giving a divorce is also the only tool that separated women have to negotiate terms of settlement with their spouse as their legal rights are insignificant.” This is corroborated by the statistic, which shows that only 73 out of 405, or 18 percent women surveyed were divorced while 81.7 precent were separated.

Some more info from the Hindu published on this year's Women's Day, which shows the inequality between men and women (these must be some of the premises to any argument involving such laws):

Why is her work never strenuous or skilled enough?
http://www.thehindu.com/news/states/karn...971190.ece
Brushed aside for ‘soft jobs'
http://www.thehindu.com/news/states/karn...971191.ece
A feminised workforce seeks a better deal
http://www.thehindu.com/todays-paper/tp-...972343.ece
Survey shows disparity in MNREGA wages
http://www.thehindu.com/todays-paper/tp-...972345.ece
It's a raw deal for daughters of the soil
http://www.thehindu.com/todays-paper/tp-...972342.ece

Some more premises which we must consider: the very concept of marriage in India, which assumes it is the natural course for any "decent" woman, hence the stigmatisation of women who are divorced; also arranged marriage where you're literally marrying a stranger; no laws to prosecute marital rape etc.

When I first saw that bit Anuj mentioned in the article, it didn't seemed fair to me either. But reading up on why they've put that provision in, it made sense.
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Anuj Menon Offline
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Post: #5
RE: Cabinet clears changes in marriage, adoption laws

I understand that this ruling is some sort of affirmative action in favour of women, however the point bothering me is that men have to state their case, while women don't.

I don't know much about rape laws, but is it possible to be considered guilty of rape, if a woman accuses you of it? I don't think that's how it works, and the "innocent, till proven guilty" understanding is still there.

Likewise, is it fair to assume that any woman filing for divorce is in no way responsible for the breakdown, from the get go? With women not needing to state their case an getting an immediate filing for divorce, with no chance for a man appealing seems unfair.

The case can be discussed,and then settled. The provisions mentioned in the new amendments seem to be a big improvement over the paltry maintenance's being paid earlier. So in that sense, these amendments are good. Its only the initial "filing for a divorce" part that bugs me.... also can someone verify whether it's true that you can be held guilty of rape, just on a witness statement?
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Lije Offline
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Post: #6
RE: Cabinet clears changes in marriage, adoption laws

Anuj,

My understanding is that the courts get to decide it on a case-by-case basis. These aren't laws which just declare men as guilty and leave it at that. Men can still argue their case in the court.

A discussion can be had on such implementation specific details.

But such discussions always, always go into the "Teh men in this country are teh doomed" territory with things blown out of proportion like "men should probably leave this country now", "laws assume all men are offenders".
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nispat Away
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Post: #7
RE: Cabinet clears changes in marriage, adoption laws

Take an example of any other crime involving two people,
Can one person accuse the other that he's has attacked me to be killed? To support this, this man has some injuries on his body. Isn't this possible? Can't be the other person is booked for half-murder, which is unbailable crime?
On the other side, for the rape victim, she has to go through medical examination, to convince the force entry, within hours of crime. What will be her value in society, if she's proved wrong?
Besides, the conviction of rape victims is low. So low that we must feel ashamed. The victim is going trough the mental agony and depression. She needs our support and sympathy, and action. So making law easier to process, to help the victim and punish the criminal must be welcomed.

Besides, the divorce laws are too much complicated in India. You just can't walk away with marriage. It is very difficult for women to prove anything which is going wrong inside the house. Judges in India are more inclined towards the truce, not the breakup. So they give ample time, in which she might have to suffer economically and socially.

Now about the "irretrievable breakdown of marriage" generally means, that both spouses are agreed that the marriage is not working for them. Hence they move to court on the basis of no-one party is guilty and ask to grant for divorce. However, court doesn't give the divorce right-away, and ask them to spend some time to make things happen.
As it is clear that, both parties are initially agreed on divorce, the law being unfair towards men, as women only has right to oppose the plea, is not much of weight.

Indians today are governed by two different ideologies. Their political ideal set in the preamble of the Constitution affirms a life of liberty, equality and fraternity. Their social ideal embodied in their religion denies them. - Ambedkar
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Anuj Menon Offline
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Post: #8
RE: Cabinet clears changes in marriage, adoption laws

Hmm.... i guess this isn't a matter of ethics here, but practical considerations.

As far as i checked back, the recommendations suggested have been approved... does anyone know any other details which the original report had suggested and which have not been met in this judgement?
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Post: #9
RE: Cabinet clears changes in marriage, adoption laws

Laws are biased, somehow we don't really know about it. Take Hindu succession act:
Take an example of a childless couple:
- If widow dies : Her property go to her in-laws.
- If widower dies : His property goes to his parents and definately not his in-laws.
This is clearly biased towards men. This is unethical, but I am not sure that how many of us (say liberal, feminist, rational) have thought of it. But this still exist...
Do you remember why first law minister Dr. Ambedkar resigned in 1951? Bcz the draft of "Hindu code Bill" was stalled in parliament. The bill, which sought to expound gender equality in the laws of inheritance, marriage and the economy could have provided much more women enpowerment in India. Hindu Succession Act (HSA) , which was refused by parliament in 1956, and it was enacted in as late as 2005, gives equal right of property to women. It took almost 50 years, I wonder how much of women enpowerment we have lost in between.
Also the inheritance law is one of the reason of having poor female:male ratio in India.

Indians today are governed by two different ideologies. Their political ideal set in the preamble of the Constitution affirms a life of liberty, equality and fraternity. Their social ideal embodied in their religion denies them. - Ambedkar
(This post was last modified: 26-03-2012 03:27 PM by nispat.)
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arvindiyer Offline
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Post: #10
RE: Cabinet clears changes in marriage, adoption laws

(26-03-2012 03:21 PM)nispat Wrote:  Do you remember why first law minister Dr. Ambedkar resigned in 1951? Bcz the draft of "Hindu code Bill" was stalled in parliament. The bill, which sought to expound gender equality in the laws of inheritance, marriage and the economy could have provided much more women enpowerment in India. Hindu Succession Act (HSA) , which was refused by parliament in 1956, and it was enacted in as late as 2005, gives equal right of property to women. It took almost 50 years, I wonder how much of women enpowerment we have lost in between.

A historical aside that maybe relevant here:

"The Law and the Prophets" : Book chapter on the Hindu Code Bill and the anti-Hindu-Code-Bill agitation from Ramachandra Guha's 'India after Gandhi'

Clip on the Hindu Code Bill episode from Jabbar Patel's movie on Dr. Ambedkar
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