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India’s Family Laws are Discriminatory. That’s Why Judges Shouldn’t Be ‘Neutral’ on Gender.

Monday 20 December 2021, by siawi3

Source: https://thewire.in/women/indias-family-laws-are-gender-blind-judges-shouldnt-be-afraid-to-question-them

India’s Family Laws are Discriminatory. That’s Why Judges Shouldn’t Be ‘Neutral’ on Gender.

Flavia Agnes

December 5, 2021

(This article is written in the context of the UN declared 16-day campaign to end gender-based violence which started on November 25 and ends on December 10, 2021 – Human Rights Day.)

Several feminist theorists have argued that the instrumental characterisation of law as a tool for the potential transformation of society is far too simplistic. They hold that law is a crude and limited device and is circumscribed by the dominant ideologies of the society in which it is produced.

Existing beliefs and assumptions shape the context of a legal provision. Even when changes are successfully made on a doctrinal level, they can and will fail if judges or others charged with the application of new laws revert to interpretations that merely replicate old results.

The impact of dominant ideologies on the shape and content of law and the legal process makes the idea of ‘progress’ through legal reforms problematic. Since legal, moral and social codes are determined by hegemonic claims of patriarchy, an exploration into the notion of justice and fairness to women can be embarked upon only after piercing the veil of ‘neutrality’, ‘impartiality’ and ‘formal equality’.

When we examine women’s rights, it becomes imperative to address the doctrinal concern – whether a woman-centric legal doctrine can be termed ‘biased’ and lacking a ‘neutral’ perspective? Can the lens of feminism or concern for women’s rights be labelled as ‘biased’?

When we examine the development of law we realise that due to the demands raised by the women’s movement, women were added into the ‘Law’ project, particularly after women started claiming their rights as citizens, within an overarching patriarchal system. The demand by the women’s movement was for equality. Right to vote, right to education, practice various professions etc. were hard won battles for Western women. Influenced by these struggles, the Indian Constitution guarantees equality under Article 14 and non-discrimination under Article 15. Equality, along with liberty and freedom, form the pillars of our constitution to protect women. The right to vote, equality of opportunities for education and employment, equal pay for equal work etc. fall within this notion of formal equality.

But when we examine the domestic sphere under the matrimonial laws, this notion of equality becomes detrimental to women. Since men and women within the marriage are not equal, the same yardstick of equality cannot be applied. Equality can only be between equals. If the norm of equality is applied between un-equals it will lead to greater disparity. But this distinction has not been clearly made within matrimonial laws. This is most glaring when we examine the Hindu Marriage Act of 1955, enacted soon after the Constitution came into effect.

An unequal marriage

Women’s status and role within marriage differ a great deal from that of men. The man is the breadwinner and his contribution can be measured in economic terms. The woman is the homemaker and assumes a subordinate status within marriage. She is the repository of cultural norms of the family and community. However, there is no recognition of this unequal status between the spouses within matrimonial laws. While seeking divorce, both men and women have to frame their petitions on the same stipulated grounds – adultery, desertion and cruelty.

But the incidents of cruelty which men plead while seeking divorce vary a great deal to the incidents of cruelty on which women base their plea for divorce. It is like comparing oranges and apples.

Let us examine some of the issues that come up before our courts in divorce litigation.

Not preparing meals on time, not making tea when the husband returns from work (even though the wife too may be an earning member), refusal to have sex, terminating pregnancy, not covering her head in the presence of in-laws or in public, refusal to wear sindoor or a mangal sutra, the symbols of marriage, demand for setting up a separate residence away from the joint family, filing a case under Section 498A of the Indian Penal Code (related to dowry) etc. are pleaded as instances of cruelty by husbands while seeking divorce.

The grounds on which women base their petitions for divorce are vastly different. They are based on the issue of basic survival – throwing her out of the matrimonial residence, constant demands for dowry or insults to her parents for their incapacity to pay more dowry, refusal to provide maintenance, snatching away and refusing to give access to her ornaments and valuables which constitute her stridhan, preventing her from seeking gainful employment or taking away her salary, aspersions on her moral character, acute physical, sexual or emotional abuse, denying custody or access to the children, etc. are grounds on which the woman bases her petition for divorce.

Within the patriarchal social structure and patrilineal residence, in most cases, the woman leaves her natal family and comes to reside in her husband’s home, where until recently her right to residence was not even recognised. When the wife is sent to her natal family for her child delivery, the husband could easily prevent her re-entry and then plead desertion. It took courts a long time to develop the theory of constructive desertion when the husband actively prevents his wife’s re-entry. Hence we can see that even the ground of desertion plays out differently for men and women.

It was the husband’s prerogative to decide the place of matrimonial residence and if the wife took employment at a far off place, the husband could file for restitution of conjugal rights, which courts would grant on the premise that the husband is the lord and master (pati parmeshwar), and it is the wife’s sacred duty to obey him and reside at the place chosen by him as the matrimonial residence. This despite the fact that the Hindu Marriage Act had transformed Hindu marriages to contractual, civil unions in 1955.

The maintenance problem

The most disturbing feature of the Hindu Marriage Act is the right given to the husband to claim maintenance from the wife, based on the notion of equality. This was in 1955, when Hindu daughters were not given the right as coparceners in their natal family, there was great disparity between men and women in literacy, higher education and gainful employment.

Monogamy for men was just being introduced and had not yet become the norm. Yet it was deemed necessary to bring in equality between the spouses based on a liberal notion of formal equality and make women liable for paying maintenance to their husbands. The matrimonial laws governing other communities and even the Special Marriage Act did not have such a provision.

Yet maintenance, which is her basic right to survival, is framed in the context of the husband’s economic power which is pitted against the woman’s sexuality. It is like a sword of Damocles which hangs over her head even after her divorce while the man can contract a new marriage with absolute impunity. The recent trend in the courts is to impose on access to husbands even while they refuse to pay maintenance to their wife and children. Women view this attitude of the courts as a great injustice to them.

It has taken a long time for the courts to realise that the terms cruelty, desertion and adultery have different implications for the husband and the wife.

It has taken more than 60 years for us to realise this anomaly and move away from the notion of equality and demand gender specific legal provisions to protect women from domestic violence. Finally, the Protection of Women from Domestic Violence Act of 2005 grants this recognition by providing a detailed list of all acts that constitute cruelty to women. There is no reciprocal list which men can rely on, nor a reciprocal remedy.

The adultery law, or women’s bodies as property

This anomaly is even more stark when we examine the law on adultery under Section 497 of the IPC, which was finally stuck down by a Constitution bench in Joseph Shine vs Union Of India on September 27, 2018.

Under Section 497 of the 158-year-old IPC, it was a crime against the husband if a man had sexual intercourse with his wife without his consent. A similar recourse was not given to women. Women could not be punished under this law. When this provision was challenged on the ground that it violated Article 14, the courts relied upon a paternalistic doctrine to save it from the premise of equality. It was viewed as a protectionist measure and a beneficial provision in favour of women. The harm caused to women was seldom recognised in legal discourses.

But examining it from a gender lens, it was obvious that it was premised on the notion that women are passive beings, incapable of making choices about their bodies or sexual desires. It presumed that after marriage, the woman’s body belonged to her husband. Framed within the notion of sexual morality of the Victorian era, it viewed the problem to be between two men over sexual access to the body of the woman. Though the law criminalised only men, in essence it was anti-women as it treated women as chattels, and gave legal validity to the proprietorial rights of the husband over the wife. Any man who had sexual intercourse with another man’s wife, without his consent, was perceived to be violating the right of the husband to exclusive sexual access to his wife.

While examining the constitutionality of this provision in Joseph Shine, the Centre had defended this provision using a deeply flawed argument that the section was essential to save the institution of marriage. “Diluting the adultery law will impact the sanctity of marriage. Making adultery legal will hurt marriage bonds,” the Centre had pleaded in an affidavit filed before the court. It failed to see that the provision does not ensure marital fidelity. It merely protected male privileges. When adultery with the consent or connivance of the husband is not an offence, the patriarchal notion of the dominion of the husband over the woman’s sexuality and bodily integrity gets reinforced.

In an extremely short-sighed manner, in 2003, the Justice V.S. Malimath Committee had recommended making the provision gender neutral premised on a flawed logic of equality. When marriage is constructed as a patriarchal institution, the woman does not have the corresponding control over her husband’s sexuality. Granting the husband additional powers to prosecute his wife for adultery would amount to adding salt to a festering wound. Justice Prabha Sridevan, former judge of the Madras high court, comments that that a law which is superficially equal kicks in injustice when it is put in action is something we have recognised too late.

On earlier occasions when this provision was challenged, the courts declined to strike down the section based on a paternalistic notion of protecting women (Yousuf Abdul Aziz vs State of Bombay 1954, Smt. Sowmithri Vishnu vs Union of India 1985 and V. Revathi vs Union of India 1988). These challenges were based on a two-way discrimination – the woman’s right to prosecute her husband and his lover for adultery and the husband’s right to prosecute his own adulterous wife.

Finally on September 27, 2018, the five-judge Constitutional bench validated the feminist analysis of the section and struck it down. The bench observed that the parameters of fundamental rights should include the rights of women, and that individual dignity was important in a sanctified society. The court felt that the law was against women who had no opportunity to defend themselves in a situation where they were falsely linked to a man on mere suspicion, since a woman could not be made party to the case under Section 497 and had no locus standi. The then Chief Justice of India, Justice Dipak Misra, while reading out the judgment, said: “A husband is not the master of his wife. Legal subordination of one sex by another cannot be permitted.” Justice D. Y. Chandrachud held that a woman loses her voice and autonomy after entering marriage and autonomy is intrinsic to a dignified human existence. Section 497 denudes women from making choices and held that this provision is a relic of past. Justice Indu Malhotra held that Section 497 IPC is a clear violation of the fundamental rights granted in the Constitution, and there was no justification for the country continuing with this archaic provision.

While analysing why it took 158 years for this provision to be stuck down, we stumble across the concept of a ‘reasonable man’ – a fictional notion which is often used to arrive at a conclusion about how common people would respond in a given situation. Here again there is a presumption that both men and women would respond in a similar manner and that there is no distinction in their perception between the genders. Questioning this premise of ‘reasonable man’, in an article titled, “In search of the ordinary woman“, Justice Sridevan discusses a case of sexual harassment which came up before the Madras high court:

“The Enquiry Officer found the delinquent officer guilty. But the High Court exonerating him and while doing so, made certain observations which indicate how the Ordinary Man gets constructed differently from the Ordinary Woman. “…The delinquent is leading a happy married life and there was no necessity for him to solicit sexual favours from anyone, much less the complainant … The complainant lodged the said criminal complaint […] only to create documentary evidence in her favour so as to be used in the departmental proceedings which shows her motivated intention of achieving her illegal goal of throwing the delinquent officer from his official position.”

She comments, “Going by the judgment, the Ordinary Man is ordinarily faithful. The Ordinary Woman is ordinarily vengeful.”

A biased neutrality

To conclude I bring back the original question with which I started, can the lens of feminism or concern for women’s rights be labelled as ‘biased’? The answer is provided by none other than Justice Chandrachud. At a roundtable organised by the O.P. Jindal Law School, titled, ‘Feminism in Practice: Feminist Lawyering and Feminist Judging’ in October, 2018, Justice Chandrachud commented: “As a judge you are giving effect to the essential values of the constitution and the basis of those values like equality, liberty, and fraternity which is the essence of the constitution. So in that sense when you apply feminist principles, one is doing nothing more than giving effect to the substance of equality in the constitution.”

Responding to a question, whether the constitution is feminist, Justice Chandrachud said, “Feminism is a lot about a disruption of social hierarchies, and that is what the Constitution intends to do. Transformation involves a disruption of the existing social structures.”

As the number of women judges increases in all our courts, it is essential that they do not shy away from bringing in a women-centric jurisprudence with the fear that they will be implicated as ‘biased’ judges. While it is necessary to bring in a critical mass of women judges to protect women’s rights, it will become a failed project if they become apologists to patriarchal notions of ‘neutrality’, but are able to contribute substantially towards the evolution of feminist jurisprudence, deeply enshrined in the Constitutional values as per the roadmap that Justice Chandrachud has charted out.

Flavia Agnes is a feminist legal scholar and women’s rights lawyer.