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The Constitution can wait
– by Ved Kumari
The various personal laws that apply in India have their origins in religious text books, customs and traditions. While customary Hindu law has been codified and modified in various respects to incorporate the liberal principle of equality, the state has been slow in actively regulating the personal laws of minorities. The official line is that the government is waiting for the demand for change to emanate from the minorities themselves.
India is a secular republic, so citizens enjoy the freedom of religion. However, the constitution also guarantees equality before the law and equal protection to all citizens. The pluralistic way in which family law is practised, however, does not fit in well with the constitutional principles of equality. Religious rules generally privilege men, whereas the state is directed to ensure gender equality.
Traditional norms, moreover, do not apply in a meaningful way to a fast changing society. The concept of family is changing too. In urban areas, joint families are being replaced by nuclear families. Single or two-child norm is leading to absence of extended families and the support structure it provided to old and young alike. In addition, technology is presenting newer challenges in defining the legal rights of the biological and genetic mothers.
Those who teach family law face an alternative. They can either teach the law as it is or focus on its unequal nature, which results in discrimination not only within families but also in the public sphere. The University of Delhi revised its legal courses a few years ago, opting for the critical approach. Accordingly, the focus of family-law courses has shifted away from consideration of the historical origins of various personal laws and the positivist acceptance of such provisions. In Delhi, the emphasis is now on assessing the various laws’ impact on society.
This shift made evident at least three levels of discrimination between men and women:
– There are distinct or discriminatory provisions for men and women.
– Even where a law’s words apply equally to men and women, its application in practice will tend to either serve men or be violated by them.
– The impact of taking recourse to the law often affects women more adversely than it does men.
The differential age of eighteen years for girls and twenty-one years for boys for a valid marriage among two Hindus prescribed by the Hindu Marriage Act 1956 falls in the first category. Most students, when discussing the rationale of this differential age-limit, initially say that this regulation reflects the actual practice of girls marrying older boys, or that there are differences between physical and mental maturity of girls and boys. However, with some more prodding, they will identify stereotypical role patterns. Indeed, the rule reinforces the notion of the patriarchal family, in which men are considered to be the bread earners and women bearers and carers of children.
At the same time, codified law for Hindus recognises fathers as the natural guardians of children. This view is also evident in the husband’s right to adopt a child without consent of his wife. Married women enjoy no such right.
Until quite recently, women did not have equal right to family property either. The “coparcenary” or “joint heirship” consisted of only males. Basically, the rule means that land is shared among the coparceners, who used to be only male relatives of various degrees and several generations. Before the recent reforms, daughters had an equal share with sons in the father’s share in the ancestral property, but the sons had, in addition, a personal share of their own in the ancestral property. Today, daughters, grand daughters and wives are members of coparcenary. One result is confusion, because women now can be members of more than one coparcenary. So long as only males were coparceners, that did not happen.
Inequality clouded by gender-neutral language
Bigamy presents an example of discrimination in spite of gender-neutral language. Both the Indian Penal Code and the Hindu Marriage Act penalise any one who marries again in spite of already having a spouse who is alive. According to an important court ruling, however, a man is not guilty of bigamy if he marries a second wife without solemnising certain ceremonies which, according to tradition, validate a Hindu wedding. For all practical purposes, judges have thus declared bigamy legal under certain circumstances.
The legal provisions about bigamy are spelled out in gender-neutral terms, and so is this particular interpretation. Nonetheless, it is biased in favour of men. Before the state defined monogamy as the norm for Hindus, polygynous families were quite common in most of India, but polyandry was not. Accordingly, it is more often men, rather than women, who still have more than one spouse, and these bigamous husbands are absolved of criminal charges by this supposedly gender-neutral interpretation of the law.
Another important issue in Hindu law has been the location of the matrimonial home. According to traditional Hindu customs, the husband decides where that home is and his wife is obligated to reside there. This practice has lately been contested. The reason is that women are increasingly going to work, as economic necessities demand. Unless women earn more money than their husbands and there is economic necessity, the courts still hold the view that the men have the right to define the matrimonial home, thus reinforcing and encouraging women’s subordination.
In matters such as judicial separation and divorce, gender-neutral language again disguises gender-biased practices. In theory, any aggrieved spouse – whether husband or wife – may resort to these remedies should the other spouse be abusive or neglect duties. Given the prevailing attitudes and role models in Indian society, however, these options are hardly viable for most women. Women’s upbringing (psychologically, socially and educationally) is about seeing marriage as their goal in life, and their inferior economic and educational status normally makes it difficult for them to live without the support of a man.
Single women, moreover, face social ostracism and insecurity. Indeed, most women who leave abusive husbands do not seek a divorce or a judicial separation, even though that would entitle them to maintenance. The reason is the sense of social respectability that goes along with being married. Moreover, a petition for maintenance or judicial separation by a wife is usually met with an alternate petition by the husband for restitution of conjugal rights. Indian courts, so far, have no concept of rape in a marriage. Restitution of conjugal rights, therefore, thus is likely to expose the wife to sexualised violence.
In Muslim family law, gender disparities are even more obvious. Polygamous marriage by men is accepted, and so is talaq-divorce, which allows men to dissolve a marriage, whereas women have no such right. Grossly discriminatory inheritance rules continue to be valid despite constitutional guarantee of equality.
In the recent past, judges have seemed to recognise that the various personal laws are in conflict with the constitution’s guarantee of equality. Nonetheless, their rulings are quite conservative. To declare Muslim traditions unconstitutional would have dangerous political implications, and to date the courts shy from doing so.
However, the judiciary is quite conservative with regard to Hindu law too. In a recent case, the Supreme Court recognised the right of mothers to be the natural guardian of their children by interpreting the phrase “after the father” to mean “when the father is absent” instead of the earlier meaning of “after the death of father”. The Court could have done more by striking down the discriminatory provision altogether. Instead, it chose an interpretation of the law’s language that only somewhat modifies its outdated meaning.
Analysing and studying family laws from the constitutional perspective provides scholars with an opportunity to discuss the patriarchal nature of family and how laws reinforce and incorporate the existing gendered notions. This approach also provides space to examine the private-public dichotomy that is used to keep the public value of equality from the private sphere of family which still subjects women to continued discrimination.
The paradigm shift undertaken at the University of Delhi also brought to the fore that the legal concept of family is limited to relationships by marriage, blood and adoption and thus has very little in common with the social conceptions of family as being a place for love, affection, and bonding. It also exploded the myth of family being a place of safety and peace by bringing out the issues of domestic violence and powerlessness of the women to deal with it in the absence of appropriate laws.
It is my firm belief that teaching family law from the constitutional perspective is essential. This approach exposes the patriarchal nature of family and it generates critical thinking about the nature of law. It also unravels the myths of universality and equal applicability of law to all without discrimination. Law is an instrument of empowerment or disempowerment depending on the status, sex, abilities of the persons to whom it applies. In the long run, this is the road to finally fulfilling the Constitutional principle of equality of all citizens.
In July, the Delhi High Court caused quite a stir in the Indian Media, when two judges ruled that homosexual acts between consenting adults should not be punished. “We declare that Section 377 of the IPC (Indian Penal Code), insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution”, states the judgement of Chief Justice A.P. Shah and Justice S. Muralidhar. An appeal against this judgement is pending in the Supreme Court, and the final decision has yet to be made in the matter. Nonetheless, there was a spate of gay and lesbian weddings soon after the High Court’s decision. There are no legal provisions for creating or recognising any legal rights and obligations between the parties. The widely reported marriages of gay and lesbian couples were thus of a symbolic meaning, expressing the demand for legal recognition of their relationships. A standard argument against homosexual marriage all over the world is that couples of the same sex cannot have children. That is being said in India too. In today’s world, however, condoms are being promoted as means of safe sex to prevent pregnancy and to protect oneself from HIV/AIDS. Potential conception of children looks like an outdated criterion. If, on the other hand, the potential conception was indeed what makes any relationship a “real marriage”, infertile men and women would, by definition, be disqualified too.
It is interesting to note that the Hindu Marriage Act does not allow any relief to a spouse whose partner is infertile. On the other hand, it does enable a spouse to get a marriage annulled if it could not be consummated due to the impotency of the other spouse. On the face of it, this rule seems to grant primacy to sexual pleasure over procreation. The counterpoint to this perspective is that the Hindu Marriage Act does not provide relief in case of infertility because Hindu law permits adoption, so infertile couples can complete their families by adopting children. That argument, however, would work for gay and lesbian couples too. If children are what distinguish a marriage from any other kind of partnership, why shouldn’t two men or two women complete their family that way? The argument that children should be given in adoption to normal families, leads to the question of defining a normal family. Typically, families consist of men and women, but the mere absence of males or females from any family does not make that family abnormal.
India’s Juvenile Justice Act (JJA) as amended in 2006 permits single men and women to adopt children of the same sex. Recently, a single man who was given a child in adoption made front-page news. The concern in deciding the question of adoption needs to be whether the child will be taken care of properly and not the sexual preference of the adoptive parent. Gay and lesbian marriage, very obviously, does not conform to Indian traditions, but apart from that, there is no apparent reason for not legalising such forms of companionship. (vk)