Prenuptial Agreements in India….Seriously?

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Do pre-nuptial agreements necessarily benefit the weaker partner in a marriage? Are they a device to make women’s rights within and after marriage more secure? How are such agreements superior to the legal redresses which are currently available to women in case of a marital breakdown? Most importantly, are such options really mandated by conditions which shape the marital landscape of most Indian couples?

These are some of the questions which we must ask in response to the Union Minister Maneka Gandhi’s recent proposal to give legal validity to pre-nuptial agreements. More so, because the Minister has reportedly pegged this proposal on the claim that it will further the interests of women in both marital and non-marital relations.

Popular in many Western countries as well as found in some customary marriages such as nikah, a pre-nuptial agreement in its modern form involves a voluntary contract between two parties delineating, among other things, the distribution of property and assets in the event of marital breakdown. The agreements are primarily a device for reducing the possible high cost which may be incurred in the event of marital dissolution.

In keeping with such a use, pre nuptial agreements have largely been favoured by highly propertied individuals (men and women) who stand to lose a great deal of their existing assets in the event of a breakup. Celebrities and millionaires use them to guard against what are treated as ‘gold diggers’, i.e., those seen as entering a marriage in order to primarily economically benefit from it, one way or the other.

If the predominant use of pre-nuptial agreements is to save affluent people from losing their wealth to a fickle partner, its possible use for advancing the cause of those women who get a raw deal in the event of divorce is far from obvious. Or is saving the wealth of the propertied from marriages gone awry the real purpose of such a move?

Moreover a pre nuptial agreement also presupposes a high degree of individualism in matters of marriage and is seen as part of a trend where marriage is becoming a more privatized affair in which the concerned partners like to enforce their specific expectations through a legally binding agreement. The scenario that prevails in Indian marriages on the other hand is such that the family and even extended kin groups play a major role in not only the choice of marriage partners but also in its solemnization if not the relationship between the spouses. It might even be appropriate to say that family also plays a major role in the event of marital breakdown.

Can we really envisage the possibility of a voluntary freely entered into prenuptial agreement between spouses in such conditions? How can such possibilities be realized in conditions where every other aspect of marriage is not necessarily in the hands of those who are entering the marriage?

Moreover, it is not even clear that instituting this possibility will reduce the recourse to the legal machinery. Can one assume that when a marriage breaks down people will simply honour the agreement even if it may no longer seem like a good idea? Enforcement of the agreement may itself require recourse to the legal machinery and there may also be litigation on the validity of the agreement itself. Examples of such litigation are available even from the western societies where such agreements have had some amount of currency. Indeed the requirement of a pre nuptial agreement will institute the need of lawyers even before marriage and not just in case it ends. This is again hard to imagine in a situation where most marriages are not even registered.

Moreover, it is only in societies with an extremely high incidence of divorce that such an eventuality becomes a defining character of the institution itself and is likely to be consciously articulated and acted upon even before entering to marriage. The very idea of drawing plans around an eventual breakdown of marriage prior to the solemnization of a marriage would be very uncanny in a society where most marriages are expected to be for life. In this sense even people who enter marriages less constrained by caste and family pressures are unlikely to embrace such a possibility as this can easily be read as one’s lack of commitment to the relation in the first place. But even if it is treated otherwise, whose interests does it protect?

Radmacher v Granatino (2010) which is a landmark case involving a dispute over a prenuptial agreement in UK, has some important lessons for us. What is relevant here is the comment of Katrin Radmacher, in this case the heiress wife of Nicholas Granatino: ‘[The prenuptial agreement] was meant to be a way of proving you are marrying only for love. It was a natural part of the marriage process. In my case, my father insisted upon it to protect my inheritance’. What is the lesson in this for us? Obviously not what is proposed by the Union Minister Maneka Gandhi!

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‘Families’ in politics

I just came across a very interesting analysis of the composition of 15th Loka Sabha in terms of how many of the members have family links with politicians or are basically from political families. It seems that a whopping 130 MPs are from political families.

Read the articles by clicking the link: http://www.thehindu.com/news/national/they-have-politics-in-their-dna/article6095560.ece

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Conjugal rights or procreation rights?

In what is being treated as a landmark judgement, the High court of Punjab and Haryana has recognised the right of convicts to have conjugal visits. Alternatively they can seek recourse to artificial insemination. While this certainly needs to be seen as a positive development, it is significant that the Conjugal rights are being treated as identical with the ‘Right to procreate.’ This is clear from the equivalence which is being attributed to the two options: conjugal visits and artificial insemination. Is this about reproductive freedom or is this about right to companionship? It would seem that for the courts conjugal rights are primarily about right to procreate or at least there is a very close link between the two. However the implications of this need to be considered carefully and it would be unfortunate if the two were treated as co-terminus. Is the right to companionship and social intercourse and sexual intercourse with the spouse equivalent to a right to procreate? Should one be treated as necessarily implying the other? Which of these is more important? What is the primary impetus behind the recognition of such rights.

These rights are not being treated as absolute ones and are in some sense subject to the gravity of the crime of the person who has been convicted and is seeking such a right. A  committee is supposed to go over this and make recommendations.

Click here to view the news item on this judgement

 

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The political family tree

It seems that a lot of people are interested in their own family trees and others’ as well these days. My father recently shared with me his visit to his school friends 80th birthday in which among other things he received a calender with the family tree of his friend. An maternal uncle of mine had also visited us from USA and had considerable interest in collecting details about his family and even came back with a family tree of one segment of the family apart from photographing as many people as he could meet. But this seems to be only part of the story.

Online I found family trees of many prominent people such as political leaders and business men.  It is interesting that some of these trees have not been put out by the any of the family members themselves. For instance the family tree of M.Karunanidhi  appears to be widely circulating on the internet. It is available on several blogs and seems to have been the subject of many newspaper and magazine articles.The purpose of this information does not seem very mysterious.

Karunanidhi Family Tree seems to have the ostensible purpose of showing the extended relationships in this powerful family and linking this with the assets they have amassed. The blogger, Deviam PMR,  says that ‘Karunanidhi s’ family is not just like a normal family. He is having three wives, and with their children and the whole story is tough to understand. So Karunanidhi s’ family tree will help you to understand his Family’. This is followed by colourful links to the family trees of Karunanidhi and his sister along with further links to the assets of these members, conveniently translated into English for those who cannot read Tamil and also easily downloadable!

Another blogger tracks the Karunanidhi family’s entrenched stakes in the film and media industry in south India. There is also a wikipedia entry on the family which provides a visual image of the family tree. It seems there is a veritable industry around the Karunandhi family tree with Wall papers and tattoo designs in the name of the family also being  available.

While looking up some background information about the NCW chief Lalitha Kumarmangalam, I found a website maintaining details of her family history. This website is devoted to preserving the family legacy of Dr P.Subbarayan, a  Tamil politician of pre-independence times.

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Private lives with a public face(book)

In one of my recent classes, there was a discussion around why many (but not all) people put out what are usually seen as aspects of one’s private life for a number of others (again not really everyone) to see and read about particularly in the context of social media such as facebook. Why do people share all sorts of things such as the food they eat, family gatherings they have had, places they have visited, and many other trivial and not so trivial aspects of their lives with a circle of ‘friends’ who may or may not have any direct interest in much of this? We did not have a clear answer but some possibilities arose.

Much of our lives are about presenting ourselves to others. Social media is a new location for such self presentation. But it is much more under my (I being the generalised user of such media) control than other ways in which I appear to the world. I cannot edit, change, delete, replace at will how people will see me. Isn’t it wonderful that I (seem to) have full control over how others will see me on my page on facebook? I am finally in control of how I appear to others.

But this is not all. All these things are happening in my life. I wish others knew about it. I don’t see many people so often and who has the time to actually get down to such trivialities. By putting them out on the social media, at least someone will see it. Others will see as I want them to see me and I will be available socially without actual social life!

There is something else as well. We live in a world where images of celebrities in whose private lives everyone seems to be interested are everywhere. By putting out the mundane aspects of our existence in a virtual space we may be living with the fanstasy of partaking in this mediaspace. Am I not looking like that Page 3 celebrity in this picture of mine? Or better still like my favourite film star? Does not my mundane life seem very much more exciting when seen through the eye of the camera and on the screen of my computer or smart phone. Would it also not seem as exciting to the others? F

Finally, when everyone else is sharing all these things I should also do so too. It must be the thing to do !!!

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Straight wife and gay husband

In a troubling new case, a wife secretly filmed her husband’s gay escapades while she was away and used this evidence to slap charges under IPC 377 on him. The case is troubling as it indicates that gay people continue to enter heterosexual marriages due to all sorts of social pressures while continuing to engage in committed or casual homosexual relations. The case which has come to light involves a techie who continued to engage in gay relations subsequent to his marriage and did not engage in sexual relation with his wife. The suspicious wife managed to collect evidence of his homosexuality and made a case under IPC 377.

The problem with the case is that the real issue is not that the man was gay but that he should not have entered into a marital relation with a heterosexual woman. This is surely not fair to the wife and is akin to any other marriage which a person enters with full knowledge that he/she may not be able to fulfil the expectations and obligations entailed in the relation.

There are many instances of such marriages which time and again appear in popular films: Honeymoon Travels Pvt Ltd., a popular film released in 2007 had one such couple in which the man had married a woman while he was gay. Life in a Metro, another film released in the same year also showed a gay man trying to enter a heterosexual marriage in order to satisfy his family. Surely such cases are not entirely uncommon.

Marriage of convenience is another solution which has been adopted more explicitly and perhaps with less moral qualms. Existence of websites promoting such marriages of convenience among South Asian gay men and lesbian women (See http://saathinight.com/groups/moc-marriage-of-convenience/; http://marriageofconvenience.yolasite.com/; http://www.mocmatch.com/) are  a good indicator of palpable social pressures to enter heterosexual marriages faced by gay men and lesbian women. One website claims:

If you are gay or lesbian and under pressure to get married, a Marriage of Convenience will allow you to:

> Fulfill your family’s expectations and make your parents proud
> Marry a person who has the same problem and understands you
> You and your partner keep the freedom to lead your own lives
> Find a partner for a single event, long-term relationship or marriage

(See http://www.mocmatch.com/)

One episode of the American sitcom Big Bang Theory showed an Indian lesbian woman, propositioning Raj (who is often caricatured as a homosexual although he is not) to enter a marriage of convenience (MOC for short) with him again for the sake for the society and family which puts a heterosexual marriage above everything.

It may be argued that a MOC is better than one entered by deceit. But the fact remains that both are indicative of an attempt to socially conform or somehow deal with with the parental and other social pressures.

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Displaying family?

What is this an example of? ‘Mommy’s Love’? Importance of gifts in a relation? Car as gift par excellence? The need to display a gift? The need to display the quality of family relations? All of these?

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Mommy’s GIft

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