Women’s Rights and Family Law in India: A Critical Analysis

“And they (women) have rights similar to those against them in a just manner” (Qur’an 2:228)

Hillary Diane Rodham, American politician, diplomat, lawyer, writer and public speaker has famously proclaimed, “Women's rights are human rights and human rights are women’s rights.” According to the avenues of social activism in today’s world, we are in the midst of a brand-new feminist wave, one that boasts of principles of a collective voice towards the fight for not only women’s rights but also human rights. The top agenda for all the lists declaring ‘healthy contemporary social dispute and discussion’, has been the hot take of the infamous f-word: feminism. A movement that saw its inception at the dawn of the previous century, the notion of feminism has been long under scrutiny and objection. A common question that is tossed around being, “If women are equal to men, what is the need for feminism? Why not just call it equalism?” What fails to be understood by the naivety behind these interrogations, is the basic economic idea of ‘equality versus equity’. Equity and equality are two strategies that are used in efforts to produce fairness; while equity is giving everyone what they need to be successful, equality is treating everyone the same. Equality aims to promote fairness, but it can only work if everyone starts from the same place and needs the same help. What is ironic to note here is that even etymologically, the word 'woman' means - half of man.

Examining the issues of judicial treatment of gender sensitive issues, Joshi (2019) writes: “equality of status and equality of opportunity is the clarion call of our Constitution. According to the framers of our Constitution, equality could only be amongst equals; otherwise it might result in injustice. Hence, they proposed the concept of substantive equality, whereby special provisions were made for unequals to bring them at par with the equals. They saw women as victims of the rigid hierarchical social system, and hence, introduced Article 15 (3) in the Constitution directing the State and all its machineries to take affirmative action and protective discrimination to alleviate centuries of exclusion of women from politics, education and public employment.” The Supreme Court holds that, “this concept of protective discrimination (in favour of women) needs to be woven throughout the web and fabric of its decisions”.

Stakeholders and Points of Concern 

Pandit Jawaharlal Nehru, Independent India’s first Prime Minister has poignantly said, “You can tell the condition of a nation by looking at the status of its women.” It is an established fact that the fight for women’s rights continues in an India ill-plagued by the detrimental impacts of a patriarchal system. With the many facets of perspectives, this fight has grown to encompass the terms of legal representation of norms, ideological persuasion through the different forms of prevalent media, and the necessary yet simple alteration of the social and ethical practises of conduction. Among these imperatives, it is essential to discern that the strive to maintain changes in the administrative and decision-making bodies with respect to their constitution and the inclusion of women, is the foremost catalytic aim that the legal as well as social systems of the nation should consider. Ensuring that women are paid as much as men, for the same job, administrative positions are occupied as much by women, politics allows for women to be equal opponents to men who can occupy positions in the government, and further making these ideas a norm is the need of the hour - for humanity. These objectives are not to be solely restricted to reservation of seats for women at positions that will eventually be indirectly manned by their husbands and superiors, or Women’s Day discount coupons. 

The fact that the Indian legal system is flawed from a gendered perspective, has been argued by many gender sensitive and feminist scholarships in the past. Personal and family laws remain a fragile concept, attached to which are different identities and interests. Having said that, it is important to mention Subramanian (2014) who writes: “The growth in civil society mobilization, the increased attention of rights organizations to litigation and legal policy, and the experience of the emergency led certain judges in the higher courts to support the rights of weaker groups sporadically”. This implies that minorities and interests of the marginalised are active stimulants towards pushing for judicial and structural reforms in society.  

Herklotz (2017) points out in her prize-winning research on the subject that the interpretation of the problematic elements of family laws from a women's rights perspective can be done through three verticals and be examined from the context of three stakeholders in the discourse. 

Firstly, the strands of literature which stem from feminist legal studies and look at family law and jurisprudence from a feminist or gendered perspective. Dealing with those norms among the personal law system that are discriminatory from a women’s rights perspective as well as with the shortcomings in the application of personal laws by the judiciary and the executive. On the one hand, the fact that personal laws often discriminate against women has led them to criticize these laws as patriarchal and in need of reform. On the other hand, they do not necessarily regard the centralization, secularization and unification of the law as a panacea but also seek to accommodate cultural and religious identity. Broader debates on Third World Feminism, intersectionality, legal universality and cultural relativism play a central role here. 

Secondly, studies of legal anthropologists on how women “on the ground” manoeuvre through the intricacies of state law, religion-based personal and family laws, sociocultural norms and claims for gender justice. These conclusions shed light on the plurality of legal interpretation in india or the ‘plurilegal’ landscape. 

And thirdly, the Indian women’s movement’s activism vis-à-vis the personal and family laws. This vertical examines how campaigning, awareness raising and approaching the parliament and courts can lead – and has led – to legal (and social) reforms vis-à-vis the laws. A key paradox in women’s rights activism, that Gandhi and Shah formulated in 1992 and which is still of relevance today is the fact that on the one hand, “every campaign in the movement has demanded legal reform”, while on the other hand, the movement has severely criticized “the legal system, the hopelessness of achieving legal redress, and the endless squabbles with law makers and implementers”. 

Further, Herklotz looks at the subject and scholarship through a gendered lens vis-a-vis the three main contributors - “the state” (the legislature, the executive and the judiciary), religious communities, the media and civil society. She reiterates: “Here the state” is critiqued as patriarchal, malfunctioning and avoiding confrontation with the religious communities, and the religious institutions are seen as equally patriarchal and biased against women.” 

But the problem at hand is not that easy to redress because there is the critique that family laws are patriarchal and in need of reform as they often violate international human rights law by discriminating against women. While on the other hand, it is also argued by  many Indian feminists that they do not want to mimic the secular agenda of their Western counterparts when considering the reform of personal laws, but rather seek to accommodate cultural and religious identities. 

Landmark Judgements and Related Issues

The Indian Supreme Court’s judgement in Shayara Bano, wherein the Court declared the Muslim form of divorce by triple talaq invalid, and the debates around the Triple Talaq Act once again demonstrate the actuality of the discourse around family laws. In the ladmark 2017 judgment, the Supreme Court of India invalidated triple talaq – a mode of instant, unilateral, extra-judicial divorce available to Muslim males. This mode of divorce has been widely criticized for making Muslim women vulnerable to threats of instant divorce and the resulting destitution. It would also be interesting to see whether the Supreme Court has entered a new era of personal law jurisprudence in the wake of the Shayara Bano case. However, popular criticism regarding the law states that: “the judgement did not engage with the intersectionality of gender and religious identity and ultimately the Court seemed less concerned with women’s rights, but rather with the preservation of marriage”.

Moreover the Supreme Court in C. Masilamani Mudaliar & Ors v. The Idol of Sri Swaminathaswami Thirukoil [1996 AIR 1697] has observed as under: 

“The personal laws conferring inferior status on women is anathema to equality. Personal laws are derived not from the Constitution but from the religious scriptures. The laws thus derived must be consistent with the Constitution lest they became void under Article 13 if they violated fundamental rights.”

Judiciary in India has never shied away from upholding the rights of women when it conflicted with the laws laid down under personal laws in India. For example in Vaddeboyina Tulasamma v. Vaddeboyina Shesha Reddi [1977 SCR (3)] observed that Hindu female’s right to maintenance as a tangible right against property which flows from the spiritual relationship between the husband and wife. The Bench comprising Justice P.N. Bhagwati, Justice A.C. Gupta and Justice S.M. Fazal Ali held that Section 14(1) of the Hindu Succession Act, 1956 must be liberally construed in favour of the females so as to advance the object of the Act. This section makes a female Hindu a full owner of a property, instead of a limited owner of the property. Further on the need for disposing of applications for grant of maintenance at the earliest, Justice Dipak Misra observed in Shamima Farooqui v. Shahid Khan [2015 (5) SCC 705];

“An application for grant of maintenance has to be disposed of at the earliest. When an application for grant of maintenance is filed by the wife the delay in disposal of the application, to say the least, is an unacceptable situation. It is, in fact, a distressing phenomenon. These litigations can really corrode the human relationship not only today but will also have the impact for years to come and has the potentiality to take a toll on the society. This would be the greatest tragedy that can happen to the adjudicating system which is required to deal with most sensitive matters between the man and wife or other family members relating to matrimonial and domestic affairs.”

Going further, attention is invited to certain problematic elements of the family law. We find that according to Section 6 (a) of Hindu Minority and Guardianship Act 1956, it is the father, who is the natural guardian of the minor child and after him, the mother. Thus primary and first right of guardianship is given to the father; whereas mother is given secondary claim. Her right to guardianship can arise only after the father, which necessarily meant and was construed as “after the death of the father”. During his lifetime she cannot assert any right over the minor child. The right to guardianship encompasses not only guardianship of a minor's property but also of his person. In view of this apparent and blatant gender discrimination writ large in this section, Ms. Githa Hariharan has challenged this section as being violative of right to equality, guaranteed in Preamble and Article 14 of the Constitution of India. The Supreme Court had accepted her contention to some extent and read down section 6(a) of the Hindu Minority and Guardianship Act 1956 by interpreting that the words “after him”, used in the said section does not necessarily mean “after his death”; on the contrary, it means ‘in the absence of’, be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise.” In view of this interpretation, it was held that during the lifetime of the father the mother can also become the natural guardian of the minor child in certain circumstances.

However, the fact remained that with this interpretation also, her right to guardianship remained secondary. It was conditional on proving the absence of the father. Hence it was not unqualified, absolute or primary. Taking note of the same, the Law Commission in its Report suggested the amendment to section 6(a) of the Act to make both the parents, the father and the mother as the natural guardians of the minor child. The legislature has yet to effect that amendment in law.

According to Joshi (2019), what is pertinent to note is that even under other personal laws also, women are not given equal rights in guardianship. In Muslim law also, it is the father who is treated to be the natural guardian of minor child. Same is the case in Parsi and Christian laws. Motherhood, thus, is not treated at par or above fatherhood in law. It is also worth noting that in case of an illegitimate child, the mother is the natural guardian. 

A way of evading the disadvantages of the systems currently in place, are the so-called “women’s courts” (mahila adalat or mahila mandal). These are dispute-resolution fora that are designed to address women’s marital and other family related problems. They aim to provide a safe and unthreatening environment in which women can air their grievances, work out satisfactory settlements with their husbands and in-laws or find ways to escape their difficult situations altogether. Vatuk (2005), however, states that the primary goal of the people running these courts is to “reconcile” couples. This commitment to the goal of keeping marriages intact leads Vatuk to ask “to what extent woman-only courts are able to live up in practice to the feminist principles of the NGOs that are responsible for having set them up in the first place”. On the other hand, for Vatuk one of the most positive features of these courts is that “peer mediators are able to suggest solutions based on the realities of the women’s lives, taking into account the social and cultural context in which they live”.

The conclusions that can be derived in this section are, firstly, that women’s equality movements are being soundly reflected in the legal and judicial remedies provided to them. And secondly that there is a deep scope of improvement in this regard.

Scope of Changes in Family Laws 

• Hindu law of inheritance in case of death without a will, where the property of a deceased woman is handled differently than that of a deceased man. 

• Prohibition of a child marriage act - the law only prevents the marriages of children; it does not render them illegal once they actually happen. The married children have the right to make their marriage void. A woman can call off her marriage till the age of 20 whereas a man can call off his marriage till the age of 23.

• Rape (non-consensual sexual intercourse) of a separated wife by husband - The rape of a separated wife by husband carries lesser punishment than the rape of any other woman. Forced sexual intercourse with the former is punishable with two to seven years of imprisonment. Prison sentence for the rape of any other woman ranges from seven years to life.

• The Goa law on bigamy - a Hindu man can remarry if his present wife cannot give birth to a male child till the age of 30. 

• There is also a need to include sexual intercourse against the will or without the consent of women as a ground for Divorce under Section 13 of the Hindu Marriage Act, 1956.  

• Marriageable age - The minimum age for marriage for a boy is 21, but 18 for a girl. This is a legal extension of the patriarchal mindset that believes that a wife should always be younger than the husband.

• No right to marital property - Upon separation or divorce, an Indian woman is entitled only to maintenance from her husband. She has no right on the assets, such as house or commercial property, bought in her husband’s name during the marriage. So if she leaves him or gets divorced, even years after the marriage, she is potentially without assets. Indian family law does not consider the work done at home by a woman as having an economic value.

Conclusions

While it has been established that the Indian society is gradually moving away from a male-dominated structure and composition, ingrained discrimination among the many strata of society still prevails. Legal protection has limited effects and unfortunately, even today, the basic humane treatment to women is denied in their daily lives. A lot can be attributed to the education, unemployment and social security issues that are a part of both Indian rural and urban set-ups. A society that worships the manifestation of women just as easily objectifies them, it truly goes to lengths to showcase its hypocrictical and barbaric nature through the heinous crimes and ill-treatment of women. 

Another aspect that falls short while discussing the subject, is that of the lack of feminist or women-oriented, so to say, litigations in the domains of family and personal law. While this holds true for most domains, this implies that the judicial backing that should be assuring women, that they can successfully approach the judicial system of the nation, and further depend on it for satisfactory resolution of their trials and tribulations, is missing from the social and administrative set-up for our country. Although criminal justice systems exist within a society and those elements and compulsions cannot be overlooked, it goes to say that the judicial system is slowly trudging on its path to providing timely and upholding righteous criminal justice for all.  

Explicitly and aptly pointed out by Herklotz, even after landmark judgements, it appears that key questions remain unanswered in the area of personal and family laws, especially those for women, making it a contested terrain where not only is religious freedom played out against gender equality, but many involved aspects are also intertwined with arguments around identity, nationalism, modernity and secularism.

Many a times, we find ourselves surrounded by the overlapping, sometimes clashing ideas of feminism, religion, society, tradition, rights, crimes; and the list elongates. Unfortunately, we forget the only dependable truth at the time of such moments of conundrum: justice is not an abstract idea; legal justice is tangible and concrete.

References:

1. Narendra Subramanian, Nation and Family. Personal Law, Cultural Pluralism, and Gendered Citizenship (Stanford University Press 2014)

2. Nandita Gandhi and Nandita Shah, The Issues at Stake: Theory and Practice in the Women’s Movement in India (Kali for Women 1992)

3. Shayara Bano v Union of India and Others AIR 2017 SC 4609

4. Indira Jaising, ‘From “Colonial” to “Constitutional”, Gender Justice and Governance’ in Indira Jaising (ed), Men’s Laws, Women’s Lives: A Constitutional Perspective on Religion, Common Law and Culture in South Asia (Women Unlimited 2005)

5. Ratna Kapur, ‘Subversive Sites: Feminist Engagements with the Law in India’ in Mala Khullar (ed), Writing the Women’s Movement: A Reader (Zubaan 2005)

6. Tanja Herklotz, Law, Religion and Gender Equality: Literature on the Indian Personal Law System from a Women’s Rights Perspective (Indian Law Review 2017).

7. Government of Andhra Pradesh Vs. P.B. Vijaykumar & Ors. [AIR 1995 SC 1648]

8. Shalini Phalsankar Joshi ‘Series on Indian Judiciary and Women’ (Population First, 2019)

9. C. Masilamani Mudaliar & Ors Vs. The Idol of Sri Swaminathaswami Thirukoil [1996 AIR 1697]

10. Shamima Farooqui Vs. Shahid Khan [2015 (5) SCC 705]

11. Vaddeboyina Tulasamma Vs. Vaddeboyina Shesha Reddi [1977 SCR (3)]

12. Tauffiqu Ahamad and Anil Kumar Mishra, Legal Status and Rights of Women in the Indian Constitution (International Journal of Advanced Education and Research, 2016)

13. Sylvia Vatuk, ‘Moving the Courts: Muslim Women and Personal Law’ in Zoya Hasan and Ritu Menon, The Diversity of Muslim Women’s Lives in India (Rutgers University Press, 2005)

14. Archana Parashar, ‘Religious Personal Laws as Non-State Laws: Implications for Gender Justice’ (2013)

15. The Journal of Legal Pluralism and Unofficial Law

16. Mary E John, Women’s Studies in India: A Reader (Penguin Books 2008)

17. Tanja Herklotz, ‘Feminist Dilemmas: The Challenges in Accommodating Women’s Rights within Religion-Based Family Law in India’ (2018)