Why Society Needs To Reimagine Care Work, Support We Cannot Do Without
Currently, India’s legal structure shows little respect for care work of any kind
NEW DELHI: Speaking recently at #Pariksha Par Charcha, Prime Minister Narendra Modi advised students to learn good time management from mothers. He noted that students should observe their mothers to understand how to manage time amidst immense work. This statement glorifies a woman’s labour in heteronormative families and hides the troubling reality of back-breaking working hours and the intense labour required in care work, which is often unrecognised and underappreciated.
The International Labour Organization (ILO) understands one form of unpaid work as a role in supporting the well-being of individuals, households, and communities in the form of goods and services provided within households and families. Despite the necessity of this labour in the functioning of the economy, unpaid domestic and care work of homemaker women, and underpaid care jobs of ASHA workers and Anganwadi workers get little or no recognition.
Lately, some political parties have promised recognition for the labour of homemakers through a monthly payment. For instance, Kamal Hasan’s party Makkal Neethi Maiam promised homemakers Rs 3,000 as ‘value rights assistance’. Similarly, in its 10-year vision document, the Dravida Munnetra Kazhagam promised a monthly payment of Rs 1000. Proposals have also been introduced by the All India Anna DMK, Trinamool Congress, Indian National Congress, and the Left Democratic Front amongst others.
In this piece, I discuss the issue of homemaker’s labour and articulate the legal position on it with a focus on three areas: the All India Women’s Conference proposal for the recognition of ‘homemaker’s labour’ during the freedom movement; the current working of provisions relating to maintenance for women in certain cases; and finally, the limited recognition of women’s labour by courts under the Motor Vehicles Act, 1988.
What Data Says
Data has found that women bear an unproportionate brunt of unpaid care work in India. The 2019 Oxfam India Report on the state of employment in India found that women in India spend 312 minutes/day in urban areas and 291 minutes/ day in rural areas on unpaid care work. Men spend only 29 minutes (urban) and 32 minutes (rural) on unpaid care work. This implies a massive gender gap of around 40.5%.
The value of India’s unpaid care work as a percentage of the Gross Domestic Product is estimated at 3.1%.
The government’s own data from the 2019 Time Use in India Survey of the National Statistical Office says that women spent up to 352 minutes per day on domestic work while men spent merely 52 minutes.
This imbalance is caused by the patriarchal and casteist nature of our society, which while undervaluing care work considers it as an exclusively woman’s job.
This is also reflected in our legal institutions that consider care work as women’s primary. For instance, the ground of ‘cruelty’ in divorce proceedings under section 13 of the Hindu Marriage Act, 1955 has led to precedents where courts have held that a woman who refuses to live with her in-laws, refuses to do household work, refuses to even make tea for her husband and so on is being ‘cruel’ her husband. I have written about it here. This undervaluation is also visible in the lack of even minimum wages to ASHA and Anganwadi workers. Behanbox has reported on this issue here and here.
Freedom Movement Discourse
The question of recognising women’s labour, surprisingly, received attention from the All India Women’s Conference (AIWC) during the freedom struggle. In its 18th session at Hyderabad (Sindh, now in Pakistan) in 1946, the AIWC proposed the drafting of the ‘Indian Women’s Charter of Rights and Duties’ to ‘reiterate and crystallise’ equal rights and responsibilities of women in the ‘national reconstruction’. Article 8 of this charter noted that a homemaker ‘works from morning till night without rest or leave or holiday’ and thus her work has to be recognised. In her Presidential Speech during the 18th session, activist and educator Hansa Mehta recognised that women’s labour is not considered ‘productive’ or of ‘value’ despite their long hours involved. In her speech, she cited the Beveridge Report on this bias in Britain.
Based on this understanding, Article 8 proposed the recognition of such labour through a four-way method:
- wife’s right to use a part of the husband’s income as she likes,
- restriction on the husband’s right to dispose of the entire income without the wife’s consent,
- right to social insurance as in the case of factory and other workers, with deduction of contribution for the same from the husband’s salary, and
- provision of creches, pre-schools, and ‘infant classes’ facilities by municipalities or government.
This charter was even submitted to the United Nations Economic and Social Council and has to be read with its other progressive provisions that attempted to reimagine the family structure from the ‘one-sided’ propertied rights of men over wife and children to a ‘cooperative concern’ with ‘equal place’ for every member of the family (Articles 10 and 11 of the charter).
Notably, the Presidential Speech also asserted that every woman has the right to leisure. Hansa Mehta observed that except for few women belonging to upper classes, the life of Indian women is of ‘long drudgery’. This, she argued, leaves women with no time for their own development, health, and cultural pursuits (page 21-22). This lack of leisure is being recognised today as well with some projects focusing on women’s leisure as equally a political concern, for instance this photo project by Surabhi Yadav.
However, this conversation remained within the larger context of nationalism. The nationalist discourse often created a division between ‘inner’ and ‘outer’ spaces wherein women only belonged to the domestic sphere of health, education, care work, and morality. Thus, Article 8 of the charter, along with the need for recognition of women’s labour, provided that women should be provided training on running home in a systematic and scientific way. Similarly, other provisions on education and health provided for education of women in home science, organisation of model homes, hygiene, sanitation, care of children, kitchen, gardens, and so on. Further, Article 12 provided for a woman’s ‘duty’ to educate and bring up children to become good citizens and to set and maintain high standards of morality in all spheres of life.
Even in her Presidential Speech, Mehta followed the nationalist script and lamented that the lack of recognition of household work is one of the reasons for the growing dislike among educated and awakened women for this kind of work, and for pushing them into careers outside homes.
Working Of Maintenance Provisions
Currently, death and divorce are the only two occasions when an economic claim within a marriage is recognised: maintenance of wives in case of divorce, judicial separation or other proceedings under family laws, or compensation to husbands/families in the case of death of a homemaker under Motor Vehicles Act, 1988.
Following are the laws under which a wife can claim maintenance from her husband:
- Section 125, the Code of Criminal Procedure provides that a magistrate may order maintenance if a person having sufficient means neglects or refuses to maintain his wife, who is unable to maintain herself. ‘Wife’ here includes a divorced wife unless she is remarried. The provision is also applied to maintenance of children and parents.
- Section 25, the Hindu Marriage Act, 1955 provides for permanent alimony and maintenance. A similar provision exists under Section 37 of the Special Marriage Act, 1954.
- Section 18, the Hindu Adoption and Maintenance Act, 1956 provides that a Hindu wife is entitled to be maintained by her husband during her lifetime.
- Section 20(1)(d) of the Protection of Women from Domestic Violence Act, 2005 provides that a magistrate may order monetary relief for maintenance of an aggrieved person and her children along with other reliefs sought under Section 12 against domestic violence in a shared household. The act is also applicable to live-in relationships.
- Provisions on maintenance can also be found under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and Section 40 of the Parsi Marriage and Divorce Act, 1936.
These provisions are largely recognised as a matter of right and a measure of social justice. Courts have held that maintenance provisions are part of Article 15(3) of the Constitution, which provides for special measures for women as part of the guarantee of equality. Section 125 of Cr.PC, for instance, has been declared a social welfare legislation for ensuring that women and children do not suffer destitution.
Despite these progressive notions of justice and equality, feminist lawyer and scholar Flavia Agenes has identified multiple hurdles in their operation:
- difficulties in the execution of maintenance proceedings
- withdrawal of financial support by husbands during matrimonial proceedings
- challenging of the validity of marriage and legitimacy of children by husbands to avoid paying maintenance
- time-consuming, financially draining, and emotionally exhausting proceedings (family law practitioner Malavika Rajkotia terms it ‘litigation fatigue’).
The most important challenge, Agnes says, is that these provisions operate under the notions of sexual purity and chastity. Historically, under English law, only virtuous women were entitled to maintenance, not those facing divorce on the grounds of adultery, desertion or cruelty. While the social justice understanding of Section 125 has attempted to change this, purity codes continue to restrict women’s right to maintenance.
For instance, section 125(4) and section 125(5) of Cr.P.C provide that no wife is entitled to maintenance if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband. Almost similar conditions of chastity can also be found in Section 18(2)(3), the Hindu Adoption and Maintenance Act, 1956; section 37(3), the Special Marriage Act, 1954; and section 25(3) of the Hindu Marriage Act, 1955. Thus, allegations of characterlessness and sexual promiscuity are routinely levied against women during maintenance hearings.
Rajkotia too, in her book Intimacy Undone, recounts multiple incidents of sexism amongst judges, refusal of husbands to pay maintenance by misrepresenting their incomes, or hiding information about income from wives etc.
Thus, the overall experience of demanding maintenance is one of humiliation and indignity rather than of rights and equality.
Agnes argues that such non-recognition leaves women destitute if a marriage breaks down. When this happens, the law largely recognises the husband’s property claim to the house, family assets, and savings. Women contribute to a family’s well-being and monetary wealth through their labour, but the law on divorce does not recognise this. Thus, women in marriages are often left without a steady income or property and dependency on husbands.
Road Accident Cases
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.)
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