With nothing in her name

Published September 12, 2020
The writer is a barrister.
The writer is a barrister.

A WHILE back, our office received a deeply unsettling query. It came from a sweet, elderly lady, and although I am bound to protect her identity, I nonetheless feel obligated to accord her a name — some name, any name, be it nothing more than a poor generic substitute from my limited imagination. Names, after all, carry within them tremendous power, and the act of un-naming itself, albeit necessary here, creates a certain detachment that is not as innocuous as it may seem at first.

And so, throughout this piece, I shall respectfully refer to this lady as Mrs Rubina.

Mrs Rubina had been married for some 30-odd years. It was, by all accounts, a torturous union. A classic cycle of physical and emotional abuse. For decades, she had borne the intolerable conduct of her husband with remarkable resilience, all the while dutifully juggling her many responsibilities as a stay-at-home mother. But of late, things had become unbearable. Her husband had developed a maniacal habit of periodically turning her out of the house, whereupon she would be forced to seek refuge with her children, all of whom were by now married and settled. Eventually, he would take her back in — only to kick her out again at a later date.

Pondering over what would happen if she were to break this toxic chain, Mrs Rubina asked one simple question: beta, if I seek khula or if my husband divorces me, what would I be left with? We took a brief account of everything that she owned, and unsurprisingly, like the vast majority of women in the country, married or otherwise, we discovered that she had next to nothing in her name. Anything and everything of real value — the family house, rental property, cars and bank accounts — vested in the name of her husband, making him the sole owner.

Why should she be compelled to knock on the doors of her children, with nowhere to turn to?

Our advice, though legally sound, was nevertheless disquieting. We told her that if her marriage ended, she would be entitled only to her personal belongings: her jewellery, any gifts she may have received, her dowry (or more aptly, whatever bits of her dowry that had survived 30 decades of matrimony) and of course, her haq mehar, which, like most cases, was a paltry sum, and which, in case she initiated the dissolution, would have to be partly forfeited. In essence, with nothing in her name, Mrs. Rubina would be left with nothing but her name.

The law of our land is clear. While a husband is mandated to pay maintenance to his wife, once the marriage is dissolved, this obligation ends. As they part ways, each has the right to keep their individual property. Anything legally owned by the husband remains his and the same goes for the wife. On paper, this is absolute equality. In practice, however, it creates a shockingly unjust result — one where the winner of the bread takes all, while the one who meticulously slaved over its preparation is left with nothing but recipes imprinted in her memory.

Our sociocultural milieu does not offer a conducive environment for women to attain property. Two fundamental reasons come to mind. Firstly, there exists the silent but pervasive expectation that women must ‘sacrifice’ their personal inheritance in favour of their male kin. Secondly, but far more importantly, the work undertaken by women inside the house — the cooking, the washing, the shopping, the mopping, not to mention round-the-clock care of children, the ill and the elderly — all this work is, as feminist discourse has long pointed out, utterly ‘invisible’.

As a result, whatever happens within the private is deemed to be ‘the intangible labour of love and affection’, and thus legally worthless, while that which takes place in the public is the ‘physical labour of sweat and toil’, and so merits monetary compensation. Add to these long-standing issues, such as lack of literacy and a want for educational or vocational training, and the odds become so steeply stacked against the majority of women that barely a sliver ends up in a financially independent position.

And so they are created — millions and millions of women with nothing in their name.

With no legal stakes, their right to the roof over their head becomes tied to three words alone: talaq, talaq and talaq. If repeated verbatim, they have the power to cast them out of their homes, with little to rely on but the charity of others.

The law must answer to Mrs Rubina. Why should she be compelled to knock on the doors of her children, with nowhere to turn to? Why should she not be permitted a fair share in the wealth that she helped her husband create? Why should she have no proprietary interest in the home that she herself has made? And finally, why should her endless hours of labour be so thoughtlessly disregarded, so offhandedly dismissed, while the labour of her husband receives one of the highest legal sanctions of the land — the inalienable right to property?

There is urgent need for legislative intervention. Homemakers need protection — not empty encouragement and medals of admiration, but something of material value, which allows them to stand on their feet, without crutch or support. One way to do so would be to adopt the concept of ‘matrimonial assets’ — where all property acquired by a husband and wife during the subsistence of their marriage is presumptively treated as joint property, and thus divisible in case of divorce. If not that, then perhaps we should create something new, something even better.

The end goal is simple: equality and equity. The possibilities are endless. All that is needed is a push.

Our society takes deep pride in its women for becoming and being homemakers. It should. It is as honourable and as noble as any other path that a woman may choose for herself. But this pride is a worthless sham if, one fine day, the homemakers who we so laud and respect can be kicked out of the very homes that they make.

The writer is a barrister.

Published in Dawn, September 12th, 2020

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