The Madras High Court recently passed a significant judgement recognising the value of women’s emotional and physical labour in the domestic space. While hearing a case filed by Kannaian Naidu – a Gulf returnee who petitioned against his wife alleging that she was usurping properties purchased with his money – Justice Krishnan Ramasamy said that the contribution of a wife in facilitating her husband to work and earn makes her an equal shareholder of the assets thus purchased. Underlining the wife’s role in taking care of the family and managing household affairs while Kannaian was away in Saudi Arabia, the judge stated, "If the acquisition of assets is made by the joint contribution, directly or indirectly, of both spouses for the welfare of the family, certainly both are entitled to an equal share." The court further added that a woman who, upon marriage, gives up work and devotes herself to care for her husband and children, should not be left with nothing.
The judgment comes at a time when the Tamil Nadu government has announced a monthly salary of Rs 1,000 for unemployed married women who do household work. Many governments have mooted this idea earlier, and the TN government itself positioned it as a big election promise that still awaits implementation. The current HC judgement has now triggered several debates about the legal recognition of women’s unpaid care work within families. Several people have also come forth with the cliche rhetoric of invisibilising the work women do as homemakers.
Nagasaila, a practising lawyer based out of Chennai, says that this is a welcome judgement regarding a long-pending demand of the women’s movement. “Attributing value to women’s contributions within the family is an important issue, and it has been already legislated upon in several developed countries. For example, in the United States of America, many states legally lay it down that any property acquired by either of the spouses is to be shared equally among them,” she explains, highlighting that in India, there is no equivalent legislation, a point mentioned by Justice Krishnan in the judgement.
If we look at how property is divided among spouses across the world, many countries have the concept of ‘community property’, where a married couple is legally required to split all acquired property equally in case of a divorce. In Kenya, family courts take the woman’s non-monetary contributions such as emotional labour into account when they decide on the distribution of assets. But in India, when there is a divorce, it is not mandatory to split property equally. The decision is left to the subjective discretion of the parties and courts.
Nagasaila explains that often, men resign from their jobs or transfer their property to other people’s names to avoid sharing it with their wives when there is a divorce. “This is because as a patriarchal society, we never really believe that women deserve compensation or a share in property. If we look at the history of our inheritance laws, for example, equal rights for women came into place after constant rebellion with the system,” she says.
The Hindu Succession Act of 1956 was amended in 2005 to give women a share in ancestral property. Before that, Hindu women did not have this right. Similarly, the Indian Succession Act of 1925 also recognises a woman’s right to family property, but this materialised after long legal battles. Educator and activist Mary Roy’s Supreme Court petition challenging gender discrimination in the inheritance rights of Syrian Christian women is a landmark case in this regard. Muslim women still suffer gender discrimination in property division, and a petition filed by the Khuran Sunnath Society is pending before the Supreme Court, seeking amendments to the Muslim Personal Law (Shariat) Application Act, 1937.
But even in situations where property rights look fair on paper, Nagasaila points out that in reality, many women give up their shares to maintain family harmony because the men in the family insist on retaining more property, or because women are shamed for wanting more despite being “a burden” on the family considering the family’s expenses in marrying them off.
Therefore, the current Madras HC judgment not only upholds the right of a woman to her spouse’s property but also confers it as a recognition of her contributions, though invisible, towards running the affairs of the family. However, the judgement has triggered many negative comments on social media, with many men claiming that women do not deserve their husband’s property if they develop intimacies with other men during the marriage. The same was alleged by Kannaian against his wife before the court.
Nagasaila calls such claims misplaced. “In any property right case, does it say that this right is subject to the moral behaviour of the person? This right is not conditioned on good behaviour, however such ‘goodness’ is defined. If sons can claim the property of the father irrespective of whether or not they have been a ‘good son’, why are we asking the wife this question? In property rights, when a person gets a legal status that entitles them to claim a share, that is it. The right is sealed. Putting only women through this test of character is simply a result of patriarchal morality and law is not required to act in tandem with that kind of morality,” she says.
Justice Krishnan’s judgement clearly says that Kannaian’s wife was instrumental in managing his money, purchasing assets in his name, taking care of the children, and running the household, which facilitated him to work abroad. The court said that a homemaker performs this job 24 hours a day without holiday and this cannot be equated with the job of an earning husband, who works only eight hours a day. Calling both spouses “two wheels of a cart,” he lays down in his verdict that nobody can dispute the value of a woman’s presence, support, labour, and companionship in marriage. Consequently, when there is a divorce, she is entitled to a share of what she contributed towards building the assets.
Stressing the need to legislate and legally protect women’s labour in families, Nagasaila points out how some laws already recognise this in some contexts. For example, in the Motor Vehicles Act, when a person dies, his wife can claim compensation for loss of love, affection, and companionship. Here, the law recognises companionship and affection as sufficient grounds for compensation by attaching value to the presence of the spouse. Similarly, she says that a woman’s refusal to cohabit with her husband is treated as cruelty, giving him grounds for divorce. “When we recognise the loss of presence and emotional labour as important and valuable in these contexts, why not positively also recognise how a woman provides for it in a marriage and entitle her to be compensated for having provided it all along when the couple splits up?” she asks.
Though it is impossible to attach exact value to a woman’s care work within a family, most women give up on their careers for childcare and family responsibilities. Even when they return to work, they are behind by many years and forced to endure the constant emotional burden of balancing it all. Recognising the value of a woman’s labour within the family structure by entitling her to a share of the spousal assets can give it some tangible form. Though this is only the beginning of a long road, for any right to be further extended or debated upon, it has to first be put down in concrete terms. This will also shift our moral gaze when it comes to inherently treating women as undeserving of rights over their husband’s assets, no matter how many years they have spent nurturing the family.