Tag Archives: desi divorce

Her Marital Home: His Inherited Property

22 Jul

Her Marital Home: His Inherited Property

07/22/2013

Whenever there is a mention of women’s rights and any proposal of legal protection for women especially desi women everyone becomes an expert and filth starts flying from all directions thanks to internet and its anonymity. It is a sad story just like the anti stalking bill in the parliament few months ago where democratically elected lampoons were jumping up and down to the extent that one even went ahead and said, “who amongst us hasn’t chased women? We are men that is what we do?” With such a sense of entitlement it is hard to expect any good coming by for women.

Last evening, IHM sent DG one line email asking what are DG’s views regarding the wife being given a share from the house a couple was living in, even if it is inherited or inheritable (like in Joint Families I suppose). She was referring to her latest post about the new bill in the parliament. We have done this in the past in-boxing co-bloggers to clarify concepts and issues. What DG wrote back IHM suggested she post here for everyone to read, hence this post. Along with that response DG has also included few comments she had made at IHM’s current post.

DG has spent most of her activist life working in the grassroots working with women and children  experiencing domestic abuse while she was still in des and then abroad. The organization she is affiliated with has actively contributed to drafting of this bill over the decades. In future posts DG will post few examples both from her personal and professional experience how the concept of marital home actually works in real life, here she’ll stick to technical stuff related to marital home and inherited property of the male spouse.

Colonial roots of current problems

Going back to 1858 when India came under the rule of crown and the white man’s burden set out on the project of taming the native male beast who brutalized native women, rather emasculating the native male for crown deemed it incapable of taking care of their own women. The native male elite in order to resist this emasculation gloated in the distant past that he called “golden age of ancient India.” It was like a blind man searching for a black cat in a dark room that never was there. Coming back to the topic, the natives did not have a singular rule of inheritance though they were patriarchal like the colonizer but they had too many customary laws governing the actual practice of property succession depending on the locale and community. For the purposes of uniform administration and tax collection colonizer selectively chose areas of reform, land restructuring and reform being the primary then selectively leaving the family laws for native elite to feel in control. New land revenue systems included landlord systems, individual cultivator-based systems, and village-based systems the latter two allowed individuals and families to maintain the de facto structure of property rights that previously existed; patriarchal and male coparcener neither benefiting nor disinheriting women all together.

The Indian Succession Act of 1925 did not include Hindus who were majority and were governed under the Mitakshara system of succession. The Hindu Women’s Rights to Property Act, 1937 for the first time made a Hindu widow a party (possession not ownership as coparcener) to deceased husband’s estate along with her son (coparcener) not daughter. It was only in 1956 with the advent of Hindu Succession Act 1956 that women’s right to property is spoken of. In their over zealousness the law makers actually harmed the interests of women by tweaking the Mitakshara succession system. By definition:

1. coparcenary (unity of ownership) is the essence of this system.

2. son was a coparcener by virtue of birth in the joint family property, as an adult he could demand partition of this property during the life time of his father.

3. son could prevent (both in action and word) his father from unauthorised alienation of ancestral property.

4. a coparcener has no right to alienate his undivided share in the joint family property. On his death without male offspring, his share goes to his brother.

5. The widow of deceased coparcener has a right to maintenance but she cannot enforce partition.

With Hindu Succession Act 1956, Section 6, a daughter was added as an coparcener but mother, wife and widow were left out. The father could dispose his share in undivided joint family property and could alienate another coparcener both son and daughter by making a will, this also applied to residence as question of agricultural property for women was never asked. In Mitakshara system if daughters had no coparcenary rights at least they still could reside under their father’s roof and a father could not throw away a son who refused to tow the line be it disagreeing to an arranged marriage or marrying outside the caste. When one law gives women access to something the other competes to disempower them at the same time. Not many fathers treated daughters as coparceners but many chose to will them out of natal family’s residential property. It is this statute men on electronic media are making much hue and cry about that women as daughters should ask for their share from fathers and not claim a share in husband’s inherited property. There is yet no law that makes wife a coparcener in her husband’s undivided joint family property. It is a long road ahead.

It is Hindu Succession (Amendment) Act 2005(HSAA) which deleted the gender discriminatory clause on agricultural land for just Hindu women not all Indian women. The Punjab Haryana examples given about women denouncing their right to father’s property in favor of their brothers actually never existed until HSAA 2005. Married daughters were just making a promissory note that they’ll not file a suit as a coparcener to the natal home, thus only an unmarried daughter had a right to remain in her father’s home but not own it.

English Marriage vs Desi Marriage

Now coming back to the primary question what happens to the roof over woman’s head if she lived her marital life in her husband’s undivided joint family. It is not surprising if the legal meaning of marriage differed in England and India in colonial times it continues even today. The British, once married  the couple is considered as a single legal independent unit that set up a household together and neither their parents nor their children had any control over the assets they acquired together. Whereas, in India the new bride “joined” man’s family in his natal home where people of two or more generations in vertical (by blood) and horizontal (by marriage) hierarchy lived together under one roof and only coparceners had the right to residential property during the life time of the primary coparcener (husband). Now from this understanding we can draw number of hypothetical scenarios that are generating so much paranoia in Indian men about their emasculation by Indian legal system and women.

Breaking up while under the joint roof

In case of marital discord women have been thrown out of joint families in the middle of night and when they ask for spousal or child support men wash their hands of the responsibility by saying the house belonged to the family and he like her was just living there thus has nothing to give her. If she insists the man seek his coparcenary rights and take his share of property and then give her what is rightfully her due be it a room or an amount that would be half of what his share amounted to. The “karta” the head of the family, father of the man can immediately alienate/disinherit the man from his coparcener rights thanks to HSA 1956  in order to prevent the daughter-in-law from begetting anything. It is more complex than it is visible to our eyes. It is basically about primary residence of the married couple during the entire duration of the marital union no matter where it is, in the extended family or ancestral house they live in and other family members may be living abroad.
The share will be calculated according to the duration of marriage and it will be subtracted from  what ever is man’s share with respect to other share holders in the joint family so that woman can have a roof over her head or be provided with money so that she can buy a place or pay the deposit for a rented home (deposit often runs in lakhs). A woman who was married for three years cannot have same percentage of share as the one who was married for twenty years. Use some common sense.

What about other women under the joint roof

Some people are worried about the other women living under the same roof who will be rendered roofless in compensating one woman. There are ways to work this out the one who is leaving the joint household need not be paid lump sum at one time she can be provided with easy monthly payments that will give her rent money and living expenses. It is not a rocket science.

Joint Family Business

There is a big section of middle class men that works in family owned businesses and no one knows who is earning what. It is here the court has to decide what the primary earner (usually man) earned during the life time of marriage so that wife can be compensated and child care can be assured.

At the name of woman walking out of a bad marriage man’s family immediately declare him absconding or lampoon who doesn’t contribute an iota to family business whom they have disinherited quite some time ago. Thus woman is rendered penniless and roofless in a minute.

For example: For example: If Sr. Ambani was still alive and one of the brothers were to seek divorce even though they lived in separate homes but still earned from the family business. The man’s share can be calculated from the day he got married divided by three (if only father and 2 sons were working together, but it is here the problem arises coz’ they have Sons-in-law working for them too) so it will be divided by joint business owners and then divided by 50% between man and the woman for the duration they were married.

Same way if the woman is married to a marginal farmer (someone with a very small holding but is also a peasant in other people’s fields to make ends meet), it will be what they made together, even if it is a hutment and little earning they brought from that one field.

The minute you talk about giving something to the woman the number of shareholders go up and her share is reduced to nothing or families go ahead and declare their son or brother is not contributing to the business or has cheated or is alcoholic or lampoon. Hamare kahane mein nahin hai…

A woman asked:

Ansestral property is handed down thru family and why would I split that??

And DG’s answer is:

for exactly the same reasons you’ll uproot a woman from her natal home and force her live in an almost stranger’s home with his natal family.
This is exactly the reason used for centuries why would you split ancestral property by giving a share to female child who is going to leave at marriage (paraya dhan).

The idea of community property/joint property, the property and assets acquired by the couple during the entire duration of the marital union is pretty alien to Indians given the free ride men have in patriarchy. In rural Rajasthan there is a saying, the children belong to man and his family for the woman did not bring them from her natal home, like wise she can leave with what he brought with her. If a woman stays home and does the status production work (making it possible for man to work outside home while she makes sure he has clean clothes for work and his guests are taken care of when they visit and so on…) along with care giving and upbringing of children according to the caste and class position etiquette. Even if she was working outside home for income why should there be any doubt about dividing the assets and the savings they acquired  together during the total duration of this playing house?

Another smart elk asked:

also if the mans a liability in terms of financial loans acquired before and after marriage, will the wife gets a 50% share of that too on divorce.why not ??

Yes, woman and her children suffer more than the idiot who gambles away family assets and his earnings. When you talk about equal division of joint marital property losses are included by default for the duration of marital union not for what debt one acquired before marriage, be it for building his parents a house or paying for his sister’s dowry or capital fee for his brother’s admission.
Same way a woman may bring her student loans into marriage she is responsible for them not him. It is student loans that become a bone of contention with man and his family coz’ they expect her parents to pay for it and she should just hand over her salary to them as is spend it in the marital home. As more women are marrying late and are also marrying for second time they are going to bring assets into marriage, some will bring student loans too. What man or woman brings into the marriage; assets and income they had acquired before they got married remains their sole property, they can choose to keep it as it is or dissolve it according to their volition the spouse or kin should have no covert or overt right to it.

There is another bunch of monkeys jumping up and down screaming women will marry only for man’s property and in one night/month of marriage they’ll file for no fault divorce and beget 50% of his property that his forefathers worked hard to beget. They forget it takes minute to wed in India and it takes years to dissolve that marriage. No person can file for divorce prior to 365 days from the day of solemnization of a wedding no matter what the reason is, one has to be married for a year before they can file for divorce. In the case of no fault the stipulated period is three years.

In a country where registration of marriage is still an alien concept and only 3% pay taxes because they don’t have many options of not paying to imagine a bitter spouse will let a woman rest her hands on anything extra is sheer paranoia than realistic fear.

If anyone wants to make any corrections in the HSA 1956, HSAA 2005 please feel free DG has tried to put it in very simple words, it’s almost 3am DG has to sleep.

Good Night.

Desi Ex Files

5 Feb

The shrilling phone woke DG, it wasn’t early but any hour before noon on Saturday is technically early. It was T* hauling her heart out,

T: Are you up?

DG: Yeah sort of, tell me what’s up?

T: Baw, baw, baw….world is an unfair place, there is no God, there is no justice.”

DG: Um (yawning), oh my, what happened? Are you ok? Tell me what happened?

T: You know he is getting married to her today.

DG: Oh, how do you know?

T: I saw they have posted for registry, I saw it on their wall and you know what, I told it to my dad and he had the audacity to ask, “we could not understand what went wrong between you two?” what part he couldn’t understand that he was cheating on me with his ex-girl friend and he married her.

DG: Yeah, that is really insensitive. After all your dad is a man and he is from a generation that thinks woman is responsible for all marital debacles. But why did you go to their wall?

T: All our friends are common so I can see other people’s comments. It is injustice; he ruined my life and now is enjoying himself with her. I wish they should never be happy. What did I do to deserve this? Did I ask anything outrageous, just a marriage, a home and a family life, is it too much to ask?

DG: I can understand your feelings, but it is beyond you and me to ensure their unhappily ever after… This will hurt until you get what you want and move on… Yes, it’s been years since you enlisted on shaadi.com and encountered numerous scum bags. Each time you face an MCP you are back to square one… Give it a break and may be that will make a difference for now…

T: You know that medico I told you about, she filed for divorce because he could not get it up. She has been cursing every one now even she is married and pregnant. When such a negative and jealous person can get remarried within two years why not me? What is wrong with me? I feel like cursing him and his folks…

DG: Love, I do not know what to tell you. If you want to curse him then do it and get over it there after we are not going back there ever again.

Little more crying and sobbing and life went back to normal until another hurt. When ever we so called desi divorcees struggle with life and face social discrimination, it brings back all the bad memories and all the hurts back to life. Life for many of us just stopped (in desi sense) the day we were kicked out of married people’s club. We are not invited to desi gatherings; if we ever get an invite then dirty looks welcome us and keep an eye on us all evening. When some married woman is kind to us her well-wishers especially other women run to pre-warn her of our evil gaze and designs. God forbid if one of their men exchange customary greetings with us they make 100 meter sprint record to stand in between.

At times we pity these so called happily married women who think we’ll be designing to entice their pot bellied, half bald husbands. We may be looking for companionship but definitely not a married man who is straying on his marriage. Those of us with children (especially young or teen kids) see their exes introducing new girl friends to their children as flavor of the month prefer to stay single so that children have at least on stable household.

Dear ladies, if you are so insecure in our presence, then something is definitely wrong in your relationship kindly work on it than painting us black. Some of us still have it in us and getting a guy is not a problem. Yes, we know there are numerous desi scum bags who want to oblige but the ball is in our court. We can get what we want and we’ll not settle for anything less and why should we? One time compromise is enough we do not believe in second and third…

Such are the times when one wants to blame someone or curse the one who put us through this; who could be better than a spineless squid we now call ex.  All these feelings are normal but our desi upbringing often makes us feel guilty and then divine wrath scares us, wishing bad on someone begets bad karma.

Ah karma, isn’t it good we are done with it in this life time?

*Amu wants to be called T now on.

Ex With Benefits: Sex on My Mind

23 May

Ex With Benefits: Sex on My Mind

 

These days I am working over time on my bucket list. Yeh, I know Atiya says, it’s too early but I ain’t taking no more chances. The one of the items is to watch Hindi black & white, parallel cinema and few good movies that were different. Recently I watched Kaash and Paa, the end of both the movies was similar, estranged couple looses a kid and realize they want to give it a second shot. In almost all bollywood movies (I am not aware of any other than Kabhi Alvida Naa Kehna) the couple lives it through even if they part they come back together. I guess in real life things are little different.

 In every day life we desi divorced thirty some-thing women are confronted with many conflicting ideas about moving past the failed happily ever after. Some of those who are single are trying both conventional and unconventional means of meeting “that” someone second time around. Sometimes its their parents and relatives trying to arrange a match and other times they rely on desi match making websites like shaadi.com, bharatmatrimony.com etc. Amu is on one of these high tech match making sites so I keep getting the latest. Some days she withdraws her consent to share the details with reader and other days she is fine with it. Those with children are usually over whelmed with custody battles so finding a partner is last on their priority list. If they happen to get a good settlement then they too get into the game.

 I also run an in-person support group and online help for those who are abandoned by spouses in a foreign country. So basically I come across a lot of desi abused or divorced thirty some-thing women and their dilemmas. Towards the end of first session usually women ask me hereafter “what about sex?” The high premium placed on being and remaining married for women is bothersome if the marriage breaks due to what ever reasons. It is still difficult for desi women especially those with children to even imagine they can have a life with someone not the father of their kids.

 From last two weeks we have been playing around with this idea of ex with benefits. Is it possible? Will it work? I guess the familiarity, the comfort of knowing the person could help for short term benefits part of it, as the bottom line will remain the reasons couple parted ways are still standing tall. When it is hard to find someone who’ll respect you for a woman with a mind of her own and have a presentable personality I guess the idea of ex with benefits may seem entertaining to some. Amu was brought abroad after a drive through marriage [1]by a spouse who was on rebound after a break up. As soon as he patched up with his girlfriend (she is his current wife) he walked out on Amu. I was in the hospital when my spouse filed for divorce. Atiya has finally filed for divorce because they are two very good but different people so there is no chance of going back. More over we were childless so we do not have reasons to run into our exes. I guess it is really difficult for women with shared custody of children.

The initial period of separation is very tumultuous, anger, hurt; betrayal and love all play havoc. Once the reality of break up sets in person looks at the socially available options (the stories I hear from Amu and other women about men they meet on these marriage websites are pretty annoying as if these men are frozen in time and have never heard of 2010). It usually begins with loneliness and isolation. When nothing else comes forth person tries to seek the familiar. Physical intimacy is also a way of experiencing one self. The stigma ridden existence plays on the mind of the person and she starts questioning if she really exists. Then begins the honeymoon phase where the couple may try to patch up and sex initially acts as binding glue. Followed by usual stuff that was always annoying and cause of rift; the sex that seemed like main dish now appears to be butter less dinner role on the side. Ex with benefits works only on the condition that the ex goes back to his/her home and not pitch a tent in your yard.

Some people may argue that people do change but I believe change is questionable as most people replace one bad habit with another. If they were violent they may turn in to passive aggressive sort and if they were passive aggressive they may chose to be manipulative in other ways. Unless they address the root cause of their behavior (that usually rests in their childhood and family of origin) they’ll keep repeating what ever is easy and works for them. No wait, may be you really want to try it… Go ahead at least then you’ll never ever think if it could have worked out… Again, the ex with benefits rips you not only of time and energy you could invest in exploring your needs and also meeting new people. Unless you let go off the old how do you think you’ll receive the new… Let it go, make room for a new life…  

These people asked DG to share their stories: 

Recently, Ambi (28) a mother of two under five years of age accused me of acting “white.” We met a year ago just after her second child turned one. Her husband left her twelve hours before she went into labor with his second child. He was cheating and he moved out at the best ever time. He was kind enough to leave enough money in the account for her to pay the rent and buy some food. In last two years he had come to see the children couple of times, though she had to file divorce to get some child support from him but she refuses to entertain the idea of parting ways (divorce is pending). She reasons the stigma attached to desi divorcee and her children’s need to have a father in their life. Few months back he was back in the town for good as his love interest had dumped him now he wanted Ambi back. His reasoning is pretty solid, he said, “I see a lot of change in you. You have matured I guess we can work it out.” Ambi was awestruck; she said “I am mother of two fending all by myself so I ought to be mature.” She was in doubts and she came to ask me if it will be a good idea to give it a try more than that she was reasoning where she’ll find someone who’ll accept her, a mother of two. I could clearly see it was not out of choice but out of lack of choices Ambi wanted to try this out.

We went over probable pros and cons. I do not tell people what to do as nobody likes to hear that. I repeated my pet slogan “We make choices and face consequences. What ever you decide I’ll support you. But ‘you’ have to make the decision.” In our hearts we all know what we want or need and what is right for us but we still ask others because we want someone to validate what we are thinking. He kept visiting her every week and gradually after a month he moved back in because it was expensive to maintain two apartments. Things were great and in six months things were back to where he walked out. This is when Ambi confronted me. She marched in tagging her toddler, she said, “You knew it all along that it won’t work. I was silent. She continued, “Why didn’t you ask me not to do that?” All I could say was “I insinuated you but you made a choice.” She was quite upset that I did not act like a friend where I should have forced her to make a right choice. She said in India friends and families ask you to choose between them and the bad choice and people are forced to make a right decision. I was wondering why are people so afraid of taking responsibility for their actions. I recalled parents asking children to break up their relationship with X or loose right to their property or they’ll commit suicide etc. Are we so threatened by choices we make or that others make? Does my refusal to force Ambi to choose between me and her ex makes me a less of a friend? All I could say was, “You tried now you know it won’t work. Be happy at least you’ll never wonder if it could have worked had you not tried it…”

 Coincidently I ran into Arun this week. He was in a bad shape. A year back he moved out and shared the custody of children. He even started seeing El, my Costa Rican friend. They introduced their children to each others and had been out on a family vacation too. But three months ago the mother of his kids insisted they try it one more time.  He moved back in bag and baggage and it was messier than ever. Now he is living with his parents and has even lost the stuff he had managed to gather in last one year. I am disappointed as two of my good friends Arun and El are hurting and have no scope of getting back together as Arun messed up in taking a chance with ex with benefits.

 

 

 

 

 


 

 
 
 


 

[1] Parents pick some pictures of prospective brides and young men from abroad visit Des for few weeks to meet these women get engaged and married on rush.

From the wet market

Mostly vegetarian meals from Asia

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Talking to the Wall

Posting about this and that :)

Surviving Traumatic Brain Injury

TBI - Survivors, Caregivers, Family, and Friends

The Life and Times of an Indian Homemaker

My life and everything that touches it....

"कुरुक्षेत्र"

मेरे विचारो का

समाजवादी जनपरिषद

वैश्वीकरण विरोध हेतु

Own your relationships. Don't let them own you.

W.S.S.A @ UWindsor

Women's Studies Student Association @ University of Windsor, Ontario

Shafiq Ur Rahman Khan

Own your relationships. Don't let them own you.

Beyond The Second Sex (स्त्रीविमर्श)

Own your relationships. Don't let them own you.

नारी , NAARI

Own your relationships. Don't let them own you.

Own your relationships. Don't let them own you.

Sparsh

Own your relationships. Don't let them own you.

Zerqa Abid

Own your relationships. Don't let them own you.