When the law becomes religion

Police in India stopped a child marriage just in time - news link. Sounds very noble, but the bride was just 2 weeks short of turning 18 years old! The poor and powerless construction worker parents are probably wondering why the erudite law offices think in 2 weeks their daughter is going to be able to decide for herself. This is how mindlessly enforcing rules transition from science or logic to religion or dead habit. I can see a few arguments like the ones below, and my rebuttals are included:

A rule is meant to be followed or changed - violating the rule is not an option... Fine, but then why is the supreme court agreeing to decide a plea to treat someone 6 months short of 18 years as an adult (Delhi rape). You can't have it both ways or as a matter of your convenience.

In most western or developed countries, the minimum age for marriage is 18 years... Not quite - for example in the United States, the law in some states is "minimum 18 years of age without parental consent". Notice how the language makes a difference. In some states a boy or girl of 16 years can marry with parents consent (colorado law).

India needs to end child marriage practice, so this kind of enforcement helps... They are barely scratching the surface, not making any difference and just being a pain to these laborers who are trying to find a safe home for the girls. The statistic is at least 47% girls are married before 18 years of age (UNICEF) and it drops to 18% at 15 years of age. So, really they need  to focus only on stopping the smaller percentage of below 16 years of age marriages or the unconsented 16 and 17 year old marriages (e.g., a 16 year old marrying a 40 year old, or the parents are marrying the girl off to repay a loan). Further India was probably at 100% child marriages (life expectancy was 35 years in 1947) and the 53% girls married at a later age now is not one bit due to police enforcement but through education, realization and social changes among many communities, middle and upper classes.

Many of these child marriage NGO organizations have acknowledged they get the tip offs only from unhappy parties who couldn't marry the bride (or the groom) and want to seek revenge or there is another love affair going on!

Child marriage could end  up in child pregnancy or child sex: Even in the less than 15 year old cases, the culture is that many of them stay with the parents until they are old enough to join the in-laws, so there isn't a child sex issue just because there was a child marriage. Granted there will be exceptions and victims, but there are so many parallels where we don't ban practices just because there are exceptions - we only make laws to deal with the exceptions. 



If the police, NGOs and other powerful organizations adopt a more comprehensive approach, like ensuring education, ensuring pay to the families, help with debt-trap, improve living conditions, influence the laws to be written precisely to address the right problems, then the problem will go away over time on its own. It happened that way with many communities, who also used to practice child marriage in the prior generations.

Lastly, there are many beyond 18 years of age, in their 20s or even 30s that aren't quite mature adults nor ready for marriage! So the legal age for marriage doesn't quite make sense, without a clause on the mental capacity of the individuals. Guy Kawasaki said something along these lines on the right age to marry - at any age, you are never too old to marry, but you could be too young to marry!

Hopefully we'll evolve right.

Husband is an ATM machine - by law in India

I wrote about loose-ended divorce laws in India (Divorce laws poles apart), causing only more distress to both men and women, in the name of solving societal problems. Just read some news that husbands took to the streets about paying 50% of their pay as alimony - felt sad that the saga continues even as years roll by. It is not so much about 50%, but the fact that it is open-ended (no time line) and discriminatory (husband pays 50% even if the wife is working). The news article also indicates suicides among distressed husbands is more than distressed wives. Unfortunately, the law makers are not there yet to make sensible changes, or demonstrate fairness as opposed to revenge, or pay attention to detail when writing laws or providing guidelines. It also doesn't appear that the society gives a damn, since the affected are still a minority (even if few hundred thousands among a billion people). They say, nature doesn't ensure evolution doesn't go the wrong way - it is up to the species to make choices about it's own future. It will be a long while before something sensible happens with Indian divorce, dowry or domestic violence laws - until then, best for a man or woman is to stay of trouble, and second best is to pray for those in trouble!

Dowry Law - Chief Justice admits misuse

I blogged at length on dowry law fallacies in India. Now, the Chief Justice of India admits the law is misused (newslink). This is all good, but change is too slow.

Girija Vyas, the chairperson for National Commission for Women thinks it's not misuse, but "...lack of awareness amongst people that is exploited by lawyers and police...". It is unfortunate that such an influential person in authority doesn't realize that laws, no matter what, will be exploited by lawyers and police when possible, interpreted in different ways at different times, and such things are sometimes costly in terms of precious resource use such as police and courts, derail careers that impact the economy, can produce unjust outcomes and some laws may not accomplish the intended purpose.

This is why Marriage & Divorce laws must be carefully thought out, offer clear and predictable guidelines, and allow for win-win situations. Ms. Vyas should realize that she holds a very responsible position that controls the destiny of so many men and women, and not get caught up in the identity of "women". Her charter is empowerment and development of women as a section of society that currently needs attention, not so much as an association with identity of "women" (similar to "human rights" or "minority" commission), and if policies are devastating in certain ways, she would come out stronger by advocating changes, rather than being defensive. Else, people will lose faith in her and the commission, branding it with the identity of "women" or worse as "feminist". I think she would like to be remembered in history like Lord William Bentinck or Raja Rammohan Roy, who also fought for women's rights and made a difference, and not as a feminist - I hope she can help it. As well, she should note they didn't react to every problem by creating a law!

Child Marriages in India are legal

UNICEF opines that 40% of child marriages in the world happen in India (link). At the outset, child marriage is supposedly illegal in India, but the marriages are legally valid - go figure that one! Well, what it is effectively saying is that parents or adults can be jailed for conducting a child marriage, but once the children are married, it cannot be annulled or dissolved just because they were children when married - they have to go through what's allowed or not allowed by the Indian divorce law (there is a small 2-year window of opportunity soon after becoming a major thanks to an act of 2006 - I wonder how they expected 18-year olds to file a void petition!). The underlying reason for the paradox was to protect the woman (girl), make sure she gets alimony and property rights, but this UNICEF news link goes on to explain why child marriage eventually harms women in so many ways. Another example of laws based on fallacy and shallow thinking, and societal unwillingness to take on liability for bad marriages.

Ban on child marriages is difficult to enforce - at least, according to one chief minister of an Indian state. There is a case of one woman officer from the Indian Administrative Service (that is a lot of authority) who bravely tried to stop a child marriage and almost lost her hand to the wedding mob. The elected chief minister tried to explain it is difficult to enforce due to the centuries old culture in many communities, rather than react by taking aggressive stance. Can't blame him entirely, but baby steps and different policies to prevent, enforce, change the culture should have been initiated. In fact, this confirms such reactive laws banning something or making it a crime are a fallacy, under false hopes of fixes, without deep thought to identifying the real underlying problem. The law commission lists a boat load of reasons why child marriages happen, and recommends some steps in this 2007 report, such as making any marriage under 16 legally void, but I don't believe these are laws yet (See link for a good blog on this report).

The Supreme Court has recently directed all marriages be registered. This is a good first step in prevention. Obviously, it has to be followed up by proper age checks during the time of registration. There will of course be false representations, so the system of registering births need to be in place. Enforcement should include stiff penalties and imprisonment for parents,relatives, corrupt officers that indulge in this process. Finally, education, employment of girls should be encouraged, so the culture eventually changes. Empowerment by virtue of sensible and flexible laws to get out of marriage, crisp guidelines get some form of win-win settlement and move on, quickly implementable without court drag should happen.

Interestingly, the law commission report mentions "...Texts like Manu Smirti which state that the father or the brother, who has not married his daughter or the sister who has attained puberty will go to hell are sometimes quoted to justify child marriage...". Unfortunately, it has misinterpreted. The key point Manu Smriti is trying to emphasize is that the father or brother should actively pursue a marriage for the girl - not so much about the age limit of puberty. See my blog on "Mr. Gurumuthy's views on Social Security", that mentions some parents deliberately delaying their daugher's marriage and trying to live through retirement with her income. That is the type Manu Smriti is trying to address. Moreover, Manu Smriti was written based on the prevailing situation at that time, when life expectancy was so low that early sex, marriage and reproduction was desired, so many years of education was not required for survival etc. Also, Smritis were meant to change, as opposed to Shrutis that were anchored philosophies. Swami Vivekananda said (link),"...the Vedas being eternal will be one and the same throughout all ages, but the Smritis will have an end. As time rolls on, more and more of the Smritis will go, sages will come, and they will change and direct society into better channels, into duties and into paths which accord with the necessity of the age, and without which it is impossible that society can live". So no point faulting Manu Smriti for not making the changes needed for today! Too bad UNICEF needs to wait for those sages who can deliver.

Divorce laws poles apart

I have always wondered why some of the laws are poles apart, on opposite ends of the planet. Below, are some differences in divorce laws between the US and India, to highlight the point (I am not a lawyer, and you should not take any of this as legal advice).

1) Sizing: One size doesn't fit all, so how do they divide the population? In the US, each state defines the divorce law, so that makes it 50 different possibilities. In India, it is based on religion, which is roughly 85% hindu, 10% muslim, 5% christian. Both make sense, since in the US, the culture is predominantly "American", and what matters is the states are either conservative or liberal to a certain degree. In India, the culture was distinctly based on religion when the founding fathers drafted the constitution, so they defined the family law based on the religion - else, they'd have tried to fit a square peg in a round hole.

2) Grounds: In the US, most states allow a "No Fault" divorce, meaning one spouse can file a peitition and get a divorce decree, usually after 6-12 month waiting period. California voters first approved no fault law in 1970, and other states followed suit over time (except New York). Prior to that, courts were going nuts trying to break their head on who's at fault. The idea was allow adults to make the choice, and even if one spouse doesn't want to cooperate, the marriage is broken. In India, either the parties agree mutually, or some fault must be proven (desertion, cruelty, cheating etc.). Muslim husbands are however allowed "No Fault" divorce! This makes the justification not so easy. Why doesn't a muslim woman not get the benefit of "no-fault" divorce? Why christians have to prove two faults to get a divorce (courts recently ruled over this)? The law is based on religion, and thus hardly updated to suit current socio-economic environment. Courts get innovative, but lawmakers don't want to deal with a hot potato that involves religion, unless the voters feel strongly - that still seems a stretch.

3) Support: The non-earning spouse is an extra mouth to feed. However, the state doesn't want to pay, nor do the relatives around. Who is forced to pick up the tab? And for how long? In the US, the higher earning spouse pays "spousal support", an amount based on difference in income levels, taxes, child support etc, regardless of who's at fault, and regardless of gender. The time limit guideline is half the duration of the marriage (e.g., if the marriage lasted 6 years, payment for 3 years). The idea is to provide a leash to the lower earning spouse to be able to move on, while not penalizing the earning spouse life-long, even for even a short marriage. In India, the law is written gender specific - husband pays the wife, and time limit is open, until the wife remarries or is able to sustain on her own. Lately, the laws were changed to increase the alimony limit based on income formula as opposed to a fixed paltry amount, but the time limit was still left open. Also, in the case of muslims, the Wakf board provides some support to the woman for a limited time. Thus, it is lot more unpredictable, though courts try to settle by coming up with an acceptable lump sum settlement.

4) Property: Who takes the bank account? Who gets to keep the home? In the US, property settlement can be separated from issue of dissolution, and has no bearing on who's at fault. Thus, it may be possible to get a divorce decree without fully settling support or property issues. Assets and debts acquired during the marriage are considered "community property", and are divided "equitably", generally 50-50, though not an exact split. Any property held before marriage or after separation belong to the original owner. In India, "conjugal rights" are determined based on who's at fault - meaning property rights, not the right to sleep on the same bed! Thus dissolution issue is not separated from property or support issues. Sometimes threats to use stringent dowry laws are used by an angry wife (or should we say smart?) to bring about a favorable lump-sum settlement, without regard to what assets or debts were obtained during the marriage.

5) Child Custody & Support: In the US, both parents are expected to work with the court to come up with a "parental plan", which determines custody, visitation rights, and child support payments. It is again gender neutral, and support payments are determined based on income levels, who has custody etc. In some cases, one party might try to make a case to show the other as an abusive parent in order to gain sole custody. In India, the mom is awarded custody, and is considered to be more important for the well being of the child. Dad gets to pay and visit.

So what? Why is all this comparison useful? A few reasons below:

1. It allows us to first get the facts straight, and dispel some media misinformation or myths
2. It allows for critical thinking with the right perspective - esp, for lawmakers and legal community responsible for providing sensible conflict resolution.
3. It influences voters to think differently - they ultimately drive for change in a democracy.
4. It allows individuals to evaluate risk and exit options before entering a life time contract

Sounds convincing? Time to sell you bridges. The reality is that only a small percentage of divorces end up in court - mostly ego-centric, revenge oriented type where one party has no interest moving on. Others just settle out of court. In general, lawmakers will not bother to address a minority, even if the laws are unfair in the current context, as the issue may become a political or religious hot potato. And, in reality, people are not going evaluate risk and stop marrying because it is difficult to get out of the contract - countries like Chile and Brazil didn't even allow divorce for a long long time, and yet people there tried their luck with marriage all that time! Also, though the US laws appear more predictable, it is still fraught with issues, complex and expensive in using lawyers (e.g., to enforce support payments, to value stock options).

But every perspective helps, and the key take away in my view is the following:

• Marriages may be made in heaven, but some of them are dissolved on planet earth, and for a good reason. It is mostly to get out of living hell (viz, a bad marriage, violent relationships).
• In many cases, divorce is likely to result in financial or emotional ruin, atleast in the short run, but that doesn't necessarily make it a choice between the devil and the deep sea.
  
• Divorce has its purpose in reinvigorating an otherwise defunct and unproductive life, and in escaping violence in some cases. Economically speaking, divorce helps individuals contribute to society (or GDP) in the long run, when they are no longer able to do so being together.
  
• Intriguingly, societies have come up with dramatically different ways of skinning this cat with the stated goal of “benefit to overall society” (which implies better GDP, but never stated that way).
  
• This is a complex problem with no elegant solution - but, societies that show resiliency in changing laws to reflect current socio-economic environment, create win-win situations and provide fair and predictable guidelines on host of issues will be more successful.
• I think Indian laws will catchup with the US!