Saturday, 6 August 2016

Why is Section 125: Maintenance immoral and unconstitutional

Section 125 states: Order for maintenance of wives, children and parents – If any person having sufficient means, neglects or refuses to maintain: -
a. Wife, unable to maintain herself
b. Children who are minor, unable to maintain itself
c. Children (not married daughter), who is major but due to mental abnormality or injury unable to maintain itself
d. Father/Mother unable to maintain themselves

The definition of wife here who is liable to get maintenance has also been defined as the one who has been divorced by or has obtained divorce from her husband and has not remarried. But, still courts give maintenance to wives even when divorce is not settled.

Some analysis on why maintenance is immoral:

1. Women mostly never marry down. Dowry made illegal, but looking for “well settled” groom is rampant. This needs to be made illegal too. The status a girl gets post marriage is a “Borrowed Status” not “Earned status” and thus lawfully should not be able to claim the same status post breakup (in maintenance). It’s the man who does a favour to the wife by lending her his status and thus definitely not liable to provide her the same status as she enjoys during marriage after separation.

2. In most maintenance cases, the judge invariably pens down this statement: “It is the moral obligation of the husband to maintain his wife”. It never says “It is the moral obligation of the earning spouse to support the destitute spouse”. Our question should be, men and women are born as human. Then, “What is the source of this statement?”. The answer which we might get is either: “Age Old tradition” or “Religious Texts”.  Whatever source is mentioned, we need to analyse those and find responsibilities for women/wives. Right now there is no responsibilities for women defined by law, whereas responsibility of men has been defined by law such as section 125 which clearly shows who is the oppressed gender. Also, as per DV laws, whether wife is asked to work and share finances or work as home maker, both becomes domestic violence and thus no one can enforce a responsibility on women.

3. The point to ponder here is: Why is no moral obligation of wife defined by law? Why should responsibilities in marriage be one sided? Why are we making a wife a liability by only giving her rights and no responsibilities?

Mainly there should be laws similar to Section 125 where:
    a. A law should be made such that husband can put case against a wife, if she is not performing her designated responsibilities in the marital home.
    b. In case of divorce/separation, husband can demand wife to continue her responsibilities till husband re marries.

4. In case, it is not possible to ensure that women’s responsibility in marital home be defined, then there should be scrapping off duties of men as well by removing the scope of maintenance and other things such as HMA24, alimony under other religions and maintenance under DV Act. One sided responsibilities being defined under law is immoral and unconstitutional.

5. Now days’ women have been given many rights such as she can be head of a HUF, she will get equal share in father’s property, etc. Thus, husband should not be made liable for maintenance until her responsibilities are defined and enforced by law. A husband provides a lot for his wife till she stays with him maintaining a smooth married life whether she fulfils any duty in the marital home or not. This is highly immoral. 

6. Even there is no enforcement of duties to women by law, there are jobs being reserved for them. This is highly derogatory for the society. This is because that means it’s still a man’s duty to work and support lot of people. Now by reserving jobs for women who are not liable to support anyone, tremendous pressure is being put on men who are missing out because of such reservations. This will lead many of them towards crime/suicide and might also cause huge brain drains. Both are highly detrimental to nation and society. Reservations should not be allowed till duties are enforced to women by law.

7. By allowing only rights and rewards to women in form of money, more harm is being done to them than good. This makes them a liability in society as no one can enforce responsibilities on them as law makers are still hesitating to frame laws to put responsibilities on then. Parents cannot claim maintenance from them in old age, Husband cannot enforce her to fulfil her duties in matrimonial home, children can’t claim maintenance, if she becomes head in HUF other relatives cannot press her to take care of their needs in case she ignores. By framing laws to enforce responsibilities on them, we can ensure that women do not become a liability in society. This also explains the inclination towards male child (that too is a myth as reports have shown male infanticide outnumbering female infanticide: Please read here ), because the major reason of wanting a boy child is having someone for support in all spheres. Once, they are educated, they are expected to take care of a lot of people around like parents, wife, kids, young brothers and sisters, grandparents, etc. And they cannot ignore these as they are duty bound by law to do the same. Similarly, responsibilities shouldn’t be an option for women, it should be enforced by law. If not possible, we demand that men also be relieved from any duty by law i.e. scrap section 125, HMA24, DV Act, etc.

8. #RightToPray did away with age old customs to allow women to pray. Then, why can’t we do away with the age old custom of only husband having duty towards wife? Let’s either have duties for women defined or do away with duties of men as well. In this age of equality, we cannot have just one gender bearing the brunt of all duties whereas the other just enjoying all rights.

No comments:

Post a Comment