Women, Marriages & Unpaid Labour: What's Wrong With the Bombay HC Judgment?
The judgement was reductive also because of the condescension around domestic workers, experts told The Quint.
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“They say it is love. We say it is unwaged work.”
Italian and American feminist Silvia Federici wrote in 1975, as part of the “Wages for Housework” campaign.
She was talking about how household labour often becomes a gendered burden. And how, women are expected to perform unpaid labour under the guise of love and marriage.
“This fraud (domestic work) that goes under the name of love and marriage affects all of us, even if we are not married. Every woman knows that this is what she should be doing to be a true woman and have a ‘successful’ marriage,” she further wrote.
Cut to 2022 and not much seems to have changed.
“If a married lady is asked to do household work definitely for the purpose of the family, it cannot be said that it is like a maid servant,” the Aurangabad Bench of the Bombay High Court observed on 21 October, while quashing a domestic violence FIR filed by a woman against her husband and his family members.
Alleging that she had undergone “physical and mental harassment” at the hands of her in-laws for not fulfilling “certain requirements,” the woman had said that “she was treated like a maid servant.”
“If she had no wish to do her household activities, then she ought to have told it either prior to the marriage so that the bride-groom can rethink about the marriage itself or if it is after marriage, then such problem ought to have been sorted out earlier,” the court responded in the judgement.
What are the problems with what the court said? What has the top court said in cases like this? And is the High Court's comment problematic only on grounds of gender?
Experts answer in conversation with The Quint.
'Comment About Household Chores Legally Unnecessary': What’s Wrong With the Statement?
“The court’s comments about women doing household chores in marriages was legally unnecessary. I understand that the case did not have merits for cruelty because the statements in the complaint were vague but the court could have said all that without getting into the bit about married women and household chores,” Supreme Court Advocate Ayesha Zaidi told The Quint.
The court had noted that the wife's FIR vaguely states that she was treated like a maid servant after being treated properly for a month and that she had not given the details of the alleged mental and physical harassment faced by her.
"Mere use of the word harassment "mentally and physically" are not sufficient to attract ingredients of Section 498-A of IPC", the court had said.
"What also needs to be understood here are the nuances of how in Indian joint families, unpaid labour, and lack of agency of a married woman are enmeshed," Radhika Roy, a New Delhi-based lawyer who also writes extensively on women's rights, said.
Roy was pointing towards the need for a larger conversation about the institution of marriage, families and the role of women in them. Fighting for a woman's agency becomes redundant without taking a long, hard look at these factors, she said.
Is This the First Time That an Indian Court Has Said Something Like This?
> Only a little over a month ago, in September this year, a Sessions court in Mumbai had said that it was the "responsibility of a woman to do household work and earn a living."
Therefore, asking the women to do household work "apart from her work" would not amount to cruelty, the court had said while acquitting a man and his mother on charges of abetting his wife's suicide in 2015.
> In 2020, the Kerala High court had said that asking a woman to engage with household work was not something “unusual.”
“No family is totally devoid of clashes among members constituting it. It is common for elders to scold & sometimes abuse youngsters. Making a daughter-in-law do the household/domestic work is also not something unusual”, the court had said while allowing a divorce petition filed by a husband on grounds that his wife ‘quarrelled’ when asked to work at home.
But, is There a Difference of Opinion?
The apex court has made attempts to highlight the economic value that a woman’s labour adds to a household and has made judgements that point out the problem of unpaid domestic labour, experts told The Quint.
“In cases involving compensation on death of a homemaker, the Supreme Court has observed that the term “services” rendered by the woman needs to be construed broadly when it comes to assessing her notional income that must be arrived at by the insurance company,” Radhika Roy said.
In fact, she pointed out how, in a seminal judgement (Kirti vs. Oriental Insurance Company Ltd) in January 2021, former CJI NV Ramana had noted:
“Conception that house makers do not work or that they do not add economic value to the household is a problematic idea that has persisted for many years and must be overcome.”
The case was about a Motor Accident Compensation Claim filed by heirs of a deceased couple who died in an accident. The court, while trying to ascertain the income of the homemaker, further said:
“The sheer amount of time and effort that is dedicated to household work by individuals, who are more likely to be women than men, is not surprising when one considers the plethora of activities a house maker undertakes.”
“The Courts of the land believe in the value of the labour, services and sacrifices of homemakers,” the judgment further read.
The Supreme court, Roy explained, had correctly dealt with how a woman's labour within the confines of her home forms a very integral part of the economy.
However, the problem with the Bombay High Court's judgement doesn't end with gender.
What Else is Wrong with the Bombay HC's Judgement?
“The judgement was reductive not just because of the court’s analysis of a married woman’s so-called duties but also because of the condescension surrounding the work done by a domestic worker," Roy told The Quint.
“Although the court made the comment about the 'maid servant' in response to the petitioners’ claims, as long as we are unable to dispense with the idea that the work that is done by a domestic worker is unskilled/replaceable, there will be no value accorded to it and it will be considered as a pejorative term,” she added.
The trouble, then perhaps, is that in India the idea of labour is also linked to regressive notions of class and caste. Be it a woman or a 'maid servant', why should either be oppressed? In trying to strive for women's rights, the intersectionality of gender, class and caste needs to be pondered over.
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