Women are generally engaged in home making, bringing up children and also in production of goods and services which are not sold in the market but are consumed at the household level. Thus, the work of women mostly goes unrecognized and they are never valued.  

Admittedly, it has to be recognized that the services produced in the home by the women for other members of the household are an important and valuable form of production. It is possible to put monetary value to these services as for instance, the monetary value of cooking for family members could be assessed in terms of what it would cost to hire a cook or to purchase ready cooked food or by assessing how much money could be earned if the food cooked for the family were to be sold in the locality.

Household work performed by women throughout India is more than US $ 612.8 billion per year (Evangelical Social Action Forum and Health Bridge, page 17). We often forget that the time spent by women in doing household work as homemakers is the time which they can devote to paid work or to their education. This lack of sensitiveness and recognition of their work mainly contributes to women's high rate of poverty and their consequential oppression in society, as well as various physical, social and psychological problems. The courts and tribunals should do well to factor these considerations in assessing compensation for housewives who are victims of road accident and quantifying the amount in the name of fixing `just compensation'.

Time has come for the Parliament to have a rethinking for properly assessing the value of homemakers and householders work and suitably amending the provisions of Motor Vehicles Act and other related laws for giving compensation when the victim is a woman and a homemaker.

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO.5843 OF 2010

(Arising out of SLP (Civil) No.19655 of 2004)

Arun Kumar Agarwal and another Versus National Insurance Company & others

J U D G M E N T

GANGULY, J.

1.While agreeing with the judgment delivered by my learned brother Singhvi, J., I wish to add my perception of the problem which has been raised in this case.  

2.Despite the clear constitutional mandate to eschew discrimination on grounds of sex in Article 15(1) of the Constitution, in its implementation there is a distinct gender bias against women and various social welfare legislations and also in judicial pronouncements.  

3. In the Motor Vehicles Act, 1988 (hereinafter, `the said Act'), Section 163A provides for special provision for payment of compensation on structured formula basis. The said Section has been quoted in the earlier part of the judgment by brother Singhvi, J. Therefore, I refrain from quoting the same. The Second Schedule which is referred to in the said Section has several clauses. Clause 6 of the said Schedule provides for notional income of those who had no income prior to accident. Clause 6 has been divided into two classes of persons, (a) non-earning persons, and (b) spouse. Insofar as the spouse is concerned, the income of the injured in fatal and non-fatal accident has been categorized as 1/3rd of the income of the earning and surviving spouse. It is, therefore, assumed if the spouse who does not earn, which is normally the woman in the house and the homemaker, such a person cannot have an income more than 1/3rd of the income of the person who is earning. This categorization has been made without properly appreciating the value of the services rendered by the homemaker. To value the income of the home-maker as one- third of the income of the earning spouse is not based on any apparently rational basis.  

4.This bias is shockingly prevalent in the work of Census. In the Census of 2001 it appears that those who are doing household duties like cooking, cleaning of utensils, looking after children, fetching water, collecting firewood have been categorized as non-workers and equated with beggars, prostitutes and prisoners who, according to Census, are not engaged in economically productive work. As a result of such categorization about 36 crores (367 million) women in India have been classified in the Census of India, 2001 as non-workers and placed in the category of beggars, prostitutes and prisoners. This entire exercise of Census operation is done under an Act of Parliament.  

5.Under Section 4 of the Census Act, 1948, the Central Government may appoint a Census Commissioner to supervise the taking of census throughout the area where census is intended to be taken.  

6.The Central Government has made Census Rules, 1990 under Section 18 of the Census Act, 1948. Under Rule 5(c), (d) and (e) of the Rules, the functions of the Commissioner are listed, which include devising the census schedules or questionnaires, compiling and providing guidance in taking and computing results and publishing the statistics.  

7. The Census Commissioner released data on classification of population by workers and non- workers based on provisional results of the Census of India 2001 on 30th January, 2002. Thus, the categorization, compilation and computation of the data was done under the supervision and guidance of the Census Commissioner. This is totally a statutory exercise by public authorities. Therefore, this approach of equating women, who are homemakers, with beggars, prostitutes and prisoners as economically non- productive workers by statutory authorities betrays a totally insensitive and callous approach towards the dignity of labour so far as women are concerned and is also clearly indicative of a strong gender bias against women.  

8.It is thus clear that in independent India also the process of categorizing is dominated by concepts which were prevalent in colonial India and no attempt has been made to restructure those categories with a gender sensitivity which is the hallmark in our Constitution.  

9.Work is very vital to the system of gender reconstruction in societies and in this context masculine and feminine work is clearly demarcated. The question which obviously arises is whether Census definition of work reflects the underlying process of gender discrimination.  

10.Women are generally engaged in home making, bringing up children and also in production of goods and services which are not sold in the market but are consumed at the household level. Thus, the work of women mostly goes unrecognized and they are never valued.  

11.Therefore, in the categorization by the Census what is ignored is the well known fact that women make significant contribution at various levels including agricultural production by sowing, harvesting, transplanting and also tending cattles and by cooking and delivering the food to those persons who are on the field during the agriculture season.  

12.Though, Census operation does not call for consideration in this case but reference to the same has been made to show the strong bias shown against women and their work. We hope and trust that in the on-going Census operation this will be corrected.  

13.The same gender bias has been reflected in the judgment of the High Court whereby the High Court has accepted the tribunal's reasoning of assessing the income of the victim at Rs.1,250/- per month. Even if we go by the formula under clause 6 of the Second Schedule, income of the victim comes to Rs.5,000/- per month.  

14. In a recent judgment, the Division Bench of Madras High Court in a case of compensation under the said Act has discussed this aspect of the matter. [See National Insurance Co. Ltd. vs. Minor Deepika rep. by her guardian and next friend, Ranganathan and others reported in (2009) 6 MLJ 1005]. The learned Judge has referred to the general recommendation No. 17 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The said general recommendation deals with the measurement and quantification of the unremunerated domestic activities of women and their recognition in the Gross National Product. The relevant recommendations are:-  

"(a) Encourage and support research and experimental studies to measure and value the unremunerated domestic activities of women; for example, by conducting time-use surveys as part of their national household survey programmes and by collecting statistics disaggregated by gender on time spent on activities both in the household and on the labour market;  

(b) Take steps, in accordance with the provisions of the Convention on the Elimination of All Forms of Discrimination against Women and the Nairobi Forward- looking Strategies for the Advancement of Women, to quantify and include the unremunerated domestic activities of women in the gross national product; (c) Include in their reports submitted under article 18 of the Convention information on the research and experimental studies undertaken to measure and value unremunerated domestic activities, as well as on the progress made in the incorporation of the unremunerated domestic activities of women in national accounts.  

15. India is a signatory to the said Convention and ratified the CEDAW Convention on 9th July, 1993. But even then no law has been made for proper evaluation of the household work by women as homemakers.  

16. The Madras High Court in Minor Deepika (supra) has observed very pertinently:  

"9. The UNICEF in 2000, noted that "unpaid care work is the foundation of human experience". The care work is that which is done by a woman as a mother and definitely in India, the woman herself will be the last person to give this role an economic value, given the social concept of the role of a mother. But when we are evaluating the loss suffered by the child because her mother died in an accident, we think we must give a monetary value to the work of a caregiver, for afterall, the home is the basic unit on which our civilised society rests..."  

17. The Madras High Court in its very illuminating judgment in Minor Deepika (supra) has further referred to various methods by which the assessment of work of a homemaker can be made and the relevant portion from para 10 of the said judgment is extracted below:-

"...that there have been efforts to understand the value of a homemaker's unpaid labour by different methods. One is, the opportunity cost which evaluates her wages by assessing what she would have earned had she not remained at home, viz., the opportunity lost. The second is, the partnership method which assumes that a marriage is an equal economic partnership and in this method, the homemaker's salary is valued at half her husband's salary. Yet another method is to evaluate homemaking by determining how much it would cost to replace the homemaker with paid workers. This is called the Replacement Method."  

18.Various aspects of the nature of homemaker's job have been described in para 11 which are very relevant and are extracted below:-  

"11. The role of a housewife includes managing budgets, co-ordinating activities, balancing accounts, helping children with education, managing help at home, nursing care etc. One formula that has been arrived at determines the value of the housewife as, Value of housewife = husband's income - wife's income + value of husband's household services, which means the wife's value will increase inversely proportionate to the extent of participation by the husband in the household duties. The Australian Family Property Law provides that while distributing properties in matrimonial matters, for instance, one has to factor in "the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of a homemaker or parent."  

19.In paragraph 13, the Division Bench of the High Court has observed and, in my view very rightly, that time has come to scientifically assess the value of the unpaid homemaker both in accident claims and in matters of division of matrimonial properties.

20.It may be of some interest to point out that in the Constitution of Cambodia, Article 36 provides as under:-

"Article 36 -

o Khmer citizens of either sex shall have the right to choose any employment according to their ability and to the needs of the society.

o Khmer citizen of either sex shall receive equal pay for equal work.

o The work by housewives in the home shall have the same value as what they can receive when working outside the home. xxxx xxxx xxxxx"

21.It must be noted that as a result of First World Conference on Women held in Nairobi in 1985, the Statistical Officers of United Nations International Research and Training Institute for the Advancement of Women (INSTRAW), took a major role in promoting the revision of national accounts and other information on women's work.

22.The purpose of maintaining such satellite accounts is to assess the unpaid production of goods and services by homemakers. In 1934, the American economist Margaret Reid suggested a different approach while arguing that if a third person could be paid to do the unpaid activities carried out by homemakers such activities should be counted as part of production.

23.Admittedly, it has to be recognized that the services produced in the home by the women for other members of the household are an important and valuable form of production. It is possible to put monetary value to these services as for instance, the monetary value of cooking for family members could be assessed in terms of what it would cost to hire a cook or to purchase ready cooked food or by assessing how much money could be earned if the food cooked for the family were to be sold in the locality.

24.Jayati Ghosh (Uncovering Women's Work) has referred to National Sample Surveys and according to her, the survey showed "57% of rural women and 19% of urban women were engaged in the free collection of fuel wood for household consumption. Activities related to food processing, such as husking and grinding grain, were engaged in by around 15% of women. Other unpaid activities such as maintaining kitchen gardens and looking after livestock and poultry also occupied a majority of women - 60% in rural areas and 24% in urban areas. These are all economic activities which in developed societies are typically recognized as such because they are increasingly delegated by women and performed through paid contracts."

25.Alternative to imputing money values is to measure the time taken to produce these services and compare these with the time that is taken to produce goods and services which are commercially viable. One has to admit that in the long run, the services rendered by women in the household sustain a supply of labour to the economy and keep human societies going by weaving the social fabric and keeping it in good repair. If we take these services for granted and do not attach any value to this, this may escalate the unforeseen costs in terms of deterioration of both human capabilities and social fabric.

26.Household work performed by women throughout India is more than US $ 612.8 billion per year (Evangelical Social Action Forum and Health Bridge, page 17). We often forget that the time spent by women in doing household work as homemakers is the time which they can devote to paid work or to their education. This lack of sensitiveness and recognition of their work mainly contributes to women's high rate of poverty and their consequential oppression in society, as well as various physical, social and psychological problems. The courts and tribunals should do well to factor these considerations in assessing compensation for housewives who are victims of road accident and quantifying the amount in the name of fixing `just compensation'.

27.In this context the Australian Family Property Law has adopted a very gender sensitive approach. It provides that while distributing properties in matrimonial matters, for instance, one has to factor in "the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of a homemaker or parent".

28.For the reasons aforesaid, while agreeing with the views of brother Singhvi, J., I would humbly add, that time has come for the Parliament to have a rethinking for properly assessing the value of homemakers and householders work and suitably amending the provisions of Motor Vehicles Act and other related laws for giving compensation when the victim is a woman and a homemaker. Amendments in matrimonial laws may also be made in order to give effect to the mandate of Article 15(1) in the Constitution.

.................J. (ASOK KUMAR GANGULY)

July 22, 2010  

New Delhi