Samita Sawardekar, who is an investment banker based in Mumbai & writes on economic & other issues, writes for The PSW Weblog on dowry laws and how much they matter. This is her considered viewpoint, and we invite you to engage with it. Do you agree? Why or why not?
Can India take a leaf out of Goa’s laws?
By Samita Sawardekar
Goa is known for its famous beaches, its sussegad attitude and way of life that has captivated thousand of people across India. However, it has some unique laws, which are also worth emulating.
It all started with the SMJ episode on Dowry that got people talking about this cancer that has affected much of Indian society. While I did not see the episode, it clearly resonated with many, provoking fierce debate in newspapers and on-line forums.
What is dowry? Dowry refers to anything from cash to gold and other material goods which the groom and his family may ask the girl and her family to pay to seal the marriage. The girl’s father is often forced to pay exorbitant sums far exceeding the assets owned, and it is not uncommon for the family to take on debt to meet these dowry demands.
While the act itself is condemnable, the social consequences of this are immense and tragic. Because of this practice, girls tend to be viewed as a financial burden and get discriminated against from birth as the incentive to invest in the girl child, whether in terms of health or education, in minimal. The corollary is an increased preference for the male child, who in addition to being someone who carries forward the family name and looks after parents in their old age, is also seen a means to collect dowry. This bias coupled with a move towards smaller families has seen a shocking surge in female infanticide as parents use advancements in medical technology to abort female fetuses.
As a result, the male female ratio in India is highly skewed at 940 females for every 1000 males in 2011 (Thank you, SH, for the edit!). In contrast, the ratio is 1030 in US and 1020 in Scandinavian countries of Norway and Sweden. This malaise is particularly strong in states like Punjab and Haryana where the sex ratio has dropped below 900.
In an attempt to eradicate the practice of Dowry, the Dowry Prohibition Act was enacted in 1961. While there have been several attempts at increasing the penalties and improving the policing, that is clearly not enough. While public education about the ills of dowry is necessary, one also needs to go to the root of the problem and attempt to address it at the source.
The original rational behind dowry was economic rather than social.
The system arose as a means to bring about fair distribution of ancestral wealth amongst the children. In patriarchal societies, sons, who usually stayed with the family post-marriage, were given immoveable property such as land, houses etc. In contrast, daughters who typically moved away post-marriage, were given moveable property such as gold, cows, horses etc. It was thus a voluntary mechanism to distribute family assets between the children and to ensure the financial security of the girl child.
As often happens, over time, the custom degenerated to the system that exists today where dowry is demanded by the boys’ family to seal the marriage.
Given this background, one way to address the root of the problem is to reduce the economic rationale behind dowry and thereby reduce the incentive and indeed the “need” to ask for dowry. In addition, a focus on women empowerment that increases the ability of women to resist such ills and bring a change in society is likely to yield better results.
In this context, one can look at Goa, which anecdotally appears to a more egalitarian society than many parts of the country. Statistics also appear to point in that direction – any additional research on this is welcome:
|Literacy Rate (%)
|Per Capita Income in Rs.
|Females per 1000 Males (Sex ratio)
|Crime against women
Sources: Other figures from Statistics on Women in India 2010 published by National Institute of Public Cooperation & Child Development. Number of crimes against women per total population in lakhs as per National Crime Records Bureau.
As one would expect with greater income & literacy levels, the gender bias tends to reduce. However, Kerala, which scores well on these parameter and has the highest sex ratio in the country, seems to falter on the crime against women parameter. The system of dowry is also known to be widely prevalent with negotiations on the amount of dowry being a key decision factor in finalizing a marriage. In comparison, Goa scores well on these parameters and the dowry is not widely prevalent.
While a range of factors undoubtedly contribute to this state of affairs, one of the contributing factors is the Goan Civil Code, some specific provisions of which are discussed below :
1. Uniform Civil Code
Article 44 of the Indian Constitution says the “the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India”.
Sadly, more than 60 years later, this important directive principle is yet to see the light of day. Even today, multiple civil codes exist and the law varies depending on the religious community to which the individual belongs.
Goa, however, has the unique distinction of already having a uniform civil Code governing all its citizens irrespective of which religion they belong to. The Code, which has in fact been in force for more than a century, is a legacy of the 450-year-old Portuguese rule in the State. It regulates matters relating to family, contracts, succession and property and is based on the principle of equality of race, gender, caste and creed. The law has been adhered to and strictly followed by all communities in Goa, with a vast majority choosing to ignore those usages and customs of their communities that are in conflict with the Code.
2. Laws of succession
The Goan Civil Code stipulates that at least 50% of the property has to be set aside for distribution among the legal heirs viz. the lineal descendants (son & daughter) and ascendants (father and mother). In other words, the law prohibits individuals from making a will and bequeathing more than 50% to somebody who is not a legal heir.
There are several points to note here:
- The law does not distinguish on account of sex when it comes to descendants, and ascendants. All heirs get an equal share irrespective of their gender.
- Secondly, a legal heir is entitled to his/her proportionate share of atleast 50% of the property and in the event there is a breach, the state can intervene and restore the same to the heirs.
- While a legal heir can renounce his/her rights, the law explicitly prohibits renunciation during the life time of their parents even by way of ante-nuptial contract. In other words, even if a declaration is obtained from the daughters at the time of the marriage that they have been given money by their parents on account of their future and indisposable share, the same is illegal and cannot be enforced.
This provides the girl child with significant financial security as she is entitled to her share of her parents’ wealth by law even post her marriage. This also reduces the economic rationale behind dowry. The boys side knows there is no need to “ask” for dowry because she has a rights to her family’s assets even post her marriage.
In contrast, no such protection is available under the Civil laws prevailing in the rest of India. Women typically forgo their share of the family estate as families routinely will away a large majority of the estate to their male heirs. In such situations, dowry becomes a mechanism to ensure that the girl gets a fair share of the family wealth.
3. Laws regarding marriage.
The Goan Civil Code has a unique concept of “Communion of Properties”. While the law permits marriage under 4 regimes, an overwhelming majority (more than 98%) of the population tends to get married under the “Communion of Properties” regime whereby whatever is brought by either of the spouses before the marriage and whatever is acquired or earned by either of them during the subsistence of the marriage, is common till the dissolution of marriage”.
In other words, each spouse, by mere fact of the marriage, gets rights to one half of all assets owned by the other whether ancestral or earned.
There are 2 more significant points to be highlighted here :
- this “common” property cannot be sold or encumbered by one of the parties without the explicit consent of the other.
- this right continues after the dissolution of the marriage, either by death or by divorce. Thus, in the event of a divorce, the woman is legally eligible for 50% of the property/income and there is no question of her being dependent on the spouse’s discretion to get a fair maintenance. Similarly, in the event of death of the husband, 50% of the estate is separated as a share of the wife and only the remaining 50% can be distributed among the heirs.
This is a significant step towards women empowerment as it provides financial security and protects her rights in a very fundamental manner.
In contrast, the concept of “communion” is totally unknown in Indian law.
As per prevailing Indian laws, the woman has precious little financial security post her marriage as she is not legally entitled to her husband’s earnings and his dependent on his benevolence to fund her needs. The situation is particularly skewed against her especially if she is a homemaker without any independent source of income.
Moreover, in the event of divorce, the maintenance she gets depends on the benevolence of her husband. Infact, it is not uncommon the woman to struggle to get her fair share. Often incomes are unreported and difficult to prove in a court of law. Also in many business families, a bulk of the property/income accrues in the name of the joint family and proving the independent income of the husband is particularly difficult.
The financial rights of women are thus very poor and she is often exploited financially in the event of death or a divorce.
Recognising this issue, the Government has proposed the Marriage Laws (Amendment) Bill, 2010, which seeks to give a woman a share in her husband’s property in case of a divorce.
4. Laws regarding registration
In Goa registration of marriage is compulsory by law. In fact, over the years, registration has become an integral part of the marriage ceremony in Goa.
This is not the case in the rest of India where registration is optional and often not done. As a result often women, especially in the event of a separation, struggle to provide the necessary proof and get their dues.
The late Prime Minister Nehru said, “Legislation cannot by itself normally solve deep-rooted problems. One has to approach them in other ways too, but legislation is necessary and essential so that it may give that push and have that educative factor as well as the legal sanctions behind it which help public opinion to be given a certain shape”.
The Goan Civil Code, apart from being uniformly applicable to all its citizens, has progressive and egalitarian laws that empower women in a very fundamental manner. Over time, this has helped to shape the cultural and social arc of Goan society and undoubtedly made it a far more equitable society.
India will do well to take a leaf from Goa and move in the same direction.
- Shri. M.S. Usgaocar, Former Additional Solicitor General, India and Advocate Gurudutt Mallya for their valuable insights
- Margaret Mascarenhas (who has written the must-read novel “Skin”) article on this titled “Legal Legacy” which you can read here.