Apart from divorce, death is another time where the law has looked at the question of women’s labour. Legal scholar Prabha Kotiswaran undertook an analysis of hundreds of cases from Indian appellate courts over a period of 50 years, from 1960 to 2019, under the Motor Vehicles Act, 1988, and found that in motor vehicle accident claims, courts have recognised and attempted to develop mechanisms for evaluating value of women’s labour.
The Motor Vehicle Act, 1988 is the law relating to road safety regulations and provisions for compensation in cases of road accidents. Section 163A and Schedule Second of the act provide for factors for calculating compensation to legal heirs in case of a person’s death. These include factors such as loss of earnings, cost of living, damages, income of the deceased etc.
The loss of income is one of the most important criteria for awarding compensation under the MV Act. A part of it also includes the concept of ‘notional income’, which in simple terms implies guessing a person’s income where there is no income proof or where it is not available. This is the legal category used for calculating compensation in case of a homemaker’s death.
Insurance companies’, however, often refused to award compensation in case of a homemaker’s death arguing that she had no income. In response, courts started recognising a homemaker woman’s labour by accounting for the ‘services’ rendered by homemakers in their homes. In the case of Lata Wadhwa and others vs the state of Bihar, the court referred to as ‘loss of service to the family’ and awarded compensation to her family.
Kotiswaran finds that courts developed multiple methods to measure such loss. In the first landmark case of Abdulkader v Kashinath, the court held that the compensation for the loss of a homemaker’s services should be estimated on the basis of ‘replacement costs’ – the money that the husband has to now pay to employ a ‘maid’.
Courts argued that this replacement cost included lodging, boarding expenses, and increments in the domestic help’s salary over the years. In Rajam v. Manikya Reddy, the court held that ‘services’ have to be interpreted broadly and that loss of love and affection must be included among these. In Jitendra Khimshankar Trivedi v Kasam Daud Kumbhar, the court held that in case of a dispute over a homemaker’s income, her sister-in-law’s earnings can be used to determine the figure because the two are doing the same work.
In Kirti v. Oriental Insurance Company, the court connected the question of the value of care work with equality and dignity guarantee under the Indian Constitution. In this case, the court also criticised the failure of Census of India to count homemakers as workers instead of classifying them as ‘non-workers’.
However, these cases often are based on notions of ‘altruism’ (in Kotiswaran’s critique) and tend to glorify domestic labour. Playing on both national and patriarchal scripts, these cases can potentially further cement essentialising stereotypes about women’s role. This is visible in the court’s treatment of age and marriage status in these cases. And ironically, it is only after her death that a woman’s care work is given a value and awarded to the family.
Further, there also seems to be the presumption of ‘replacing’ a woman’s household work with domestic workers’ (in the court’s words, ‘maid’) without accounting for grossly underpaid work of domestic workers. Many of these domestic workers come from marginalised backgrounds with little or no security. The violation of domestic workers’ rights was analysed here in Behanbox.
It also needs to be asked what the role of the State has here. Care work matters to the State for economic reasons as well as for gender equality. Thus, we should demand the multiple forms of State support and recognition: financial, accommodations at the workplace in the form of creches, pre-schools, and infrastructural support. The deeper question that we must ask the State is this: can society be re-imagined to value care work and recognise the fact that we all need care and support?
(This piece is an explainer based on the scholarship of Prabha Kotiswaran, Flavia Agnes, Jonathan Herring, V Geetha amongst many others. The author is thankful to all of them for their scholarship.)