27 Gender Orientation of Law in India

Introduction

Law can never be divorced from the social context in which it is created. Therefore, it is imperative that laws are equally sensitive to all individuals of the society. Many Indian laws are criticised for being gender insensitive. Most of our laws also reflect a lack of understanding of female psychology and at the same time, reflect a patriarchal mindset. It is necessary to have an understanding of issues pertaining to gender in our laws so that we can figure out the pros and cons of our legal provisions. With several emerging issues in Indian society like the rise of a strong feminist movement, awakening of transgender identities, etc, it is necessary to have an understanding of gender orientation of laws in India.

Law, Society and Concerns for Gender in India:

The position of women has been unique in Indian society which has traditionally been patriarchal in its structure, although in some quarters of history, traces of matriarchy were said to exist. The consequences of a patriarchal society have been many and varied, advantageous and disadvantageous. While on the one hand, our patriarchs have tried to protect women chivalrously from other men, they have also taken the idea of protection many steps further by stating that women should be confined to the four walls of the house and their functions be limited to tending the family. In the pre-independence era, Indian women experienced several onslaughts on their dignity. For example, it was widely believed that educating women was a waste of resources and essentially unnecessary. Likewise, brothers and sisters were treated unequally with the former having an edge over the latter; child marriages were in vogue with very young girls being married off to men older to them by a decade or more; the system of Sati was encouraged where women were incited to commit suicide after their husbands died; purdah system was in vogue which meant that women were always supposed to be behind veils; the institution of dowry was prominent because of the general belief that women were an economic burden for the family that took them in as daughters- in- law.

With the Indian National Movement, our country witnessed the rise of significant social reformers who fought tooth and nail to give Indian women their place in society. Reformers like Swami Dayandand Saraswati, Raja Rammohan Roy, Rabindranath Tagore and many others came forward to drill into the minds of Indian men that women deserved to be respected as equals. With the dawn of Independence, the Indian Constitution was drafted which recognised women as a section of society deserving special attention on account of the fact that it had been rendered weak after years of exploitation.

Social Disabilities of Indian Women:

Special Legislations in India for protecting the social status of women:

To protect the status of women as human beings who needed minimum protection of their basic rights, certain stringent laws had to be passed in India. The objective of these laws was to ensure that women receive the minimum dignity and freedom that they are entitled to as part of a democratic republic.

Bengal Sati Regulation, 1989 and Commission of Sati Prevention Act, 1987: Before the Indian Constitution was enacted and enforced, some laws were passed with the sole objective of protecting rights of women and thereby preventing their oppression. One such legislation was directed towards the abolition of Sati, a practice encouraged by Hindu fanatics. In 1829, the Bengal Sati Regulation or Regulation XVII, 1829 A.D. of the Bengal Code was passed by the then Governor General Lord William Cavendish Bentinck for the purpose of prohibiting the practice of Sati in the whole of British India. Under the legislation the practice of Sati was said to mean the immolation of a Hindu widow on the funeral pyre of her dead husband or the burying of such woman when she was alive in pursuance of the death of her husband. The Regulation declared such practice as illegal and also stated that those practising Sati would be prosecuted. Aiding, abetting or encouraging Sati was also declared illegal.

Following the Regulation of 1829, a Central Legislation was passed in the year 1987 called the Commission of Sati (Prevention) Act, 1987. Under this Act, the term ‘Sati’ has been defined as “the burning or burying alive of –

(i)  any widow along with the body of her deceased husband or any other relative or with any article, object or thing associated with the husband or such relative; or

(ii)   any woman along with the body of any of her relatives, irrespective of whether such burning or burying is claimed to be voluntary on the part of the widow or the women or other-wise.”1

The Act not only punishes the commission of Sati but also the ‘glorification’2 of this practice. Punitive provisions have also been made for ‘attempt’3 and ‘abetment’4 of this offence. Banning the practice of Sati was a significant step towards protecting the physical and mental health of many women were either socially conditioned to give up their life after the death of their husbands or were forced to die by their family members and immediate society.

Hindu Widows’ Remarriage Act, 1856: Among the Hindus in Indian society, another major impediment for women was the fact that they were widows. In an age where women as young as 9 to 10 years old were married off to men as old as 40-50 years old, the death of the men would disentitle women of a healthy social life. Very young women were forced to live a life of deprivation and renunciation, sometimes even when the marriage had not been consummated. The then Hindu society did not permit re-marriage of the young widows. After a lot of struggle, social reformers succeeded in getting a legislation passed in 1856 that would make life easier for the widows by allowing them to re-marry. This legislation was titled Hindu Widows’ Remarriage Act. The Act provided that marriage of widows would be

1 Commission of Sati Prevention Act, 1987, s 2(c)

2 Ibid. s 2 (b) “Glorification in relation to sati, whether such sati, was committed before or after the commencement of this Act, includes, among other things.-(i) the observance of any ceremony or the taking out of a procession in connection with the commission of sati; or(ii) the supporting, justifying or propagating the practice of sati in any manner; or(iii) the arranging of any function to eulogise the person who has committed sati; or(iv) the creation of a trust, or the collection of funds, or the construction of temple or other structure or the carrying on of any form of worship or the performance of any ceremony thereat, with a view to perpetuate the honour of, or to preserve the memory of, a person who has committed sati.”

3 Ibid. s 3

4 Ibid. s 4 “Abetment of sati.- (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860) , if any person commits sati, whoever abets the commission of such sati, either directly or indirectly, shall be punishable with death or imprisonment for life and shall also be liable to fine.

(2)   If any person attempts to commit sati, whoever abets such attempt, either directly or indirectly, shall be punishable with imprisonment for life and shall also be liable to fine.

Explanation.- For the purposes of this section, any of the following acts or the like shall also be deemed to be an abetment, namely:(a) any inducement to a widow or woman to get her burnt or buried alive along with the body of her deceased husband or with any other relative or with any article, object or thing associated with the husband or such relative, irrespective of whether she is in a fit state of mind or is labouring under a state of intoxication or stupefaction or other cause impeding the exercise of her free will (b) making a widow or woman believe that the commission of sati would result in some spiritual benefit to her or her deceased husband or relative or the general well being of the family; (c) encouraging a widow or woman to remain fixed in her resolve to commit sati and thus instigating her to commit sati;(d) participating in any procession in connection with the commission of sati or aiding the widow or woman in her decision to commit sati by taking her along with the body of her deceased husband or relative to the cremation or burial ground; (e) being present at the place where sati is committed as an active participant to such commission or to any ceremony connected with it; (f) preventing or obstructing the widow or woman from saving herself from being burnt or buried alive; (g) obstructing, or interfering with, the police in the discharge of its duties of taking any steps to prevent the commission of sati.”

valid and the children born out of such marriages would also be considered legitimate. Not only that, such widows, upon their marriage would be entitled to rights of property and maintenance just as they would have been entitled in case of a first marriage.

The Child Marriage Restraint Act, 1929: Child marriages were very common in India in the past, particularly among girls. Even today, in many parts of India the practice continues, in spite of the fact that it has been struck down as illegal. To do away with the practice, the Child Marriage Restraint Act was passed in 1929. The Act states that women cannot be married off until they acquire the age of 18 years.

Matrimonial Laws:

Personal Laws in India for regulating incidents of marriage have had mixed consequences in relation to women. In some cases, the laws have worked more to the disadvantage of women than to their advantage. Marriage, in India is regarded as an institution which is capable of changing the entire course of a woman’s life, either for the worse or for the better. With marriage, are associated the most significant social problems that women confront, like dowry, matrimonial cruelty/ domestic violence, divorce/termination of marriage, maintenance and custody of children. How far our laws are equipped to tackle these problems is an issue of major concern. With the objective of eradicating the problem of dowry, the Dowry Prohibition Act, 1961 was passed by the Parliament. The Act defines the term “dowry” and punishes the payment, request or acceptance of it. Apart from dowry, another problem that women face very often is the problem of Intimate Partner Violence. An intimate partner could be a spouse or a person with whom the woman may share a romantic relationship. The Domestic Violence Act was passed by the Parliament in 2005 to counter the menace of violence in matrimonial or live-in relationships. Sections 498 -A and 304-B of IPC have also played an important role in protecting the rights of women by prescribing punishment for the offences of matrimonial cruelty and dowry death.

Although the above legislations were enacted with the objective of safeguarding the rights of women, the actual implementation of these legislations has a different story to tell. For instance, for the effective implementation of the Domestic Violence Act, 2005, Protection Officers are required. No matter how stringent the law is, without executing officers, the impact of the law is dampened. The absence of Protection Officers in many states has adversely affected the realisation of the goals under the Act.

In matrimonial laws across all religions in India, the concept of Restitution of Conjugal Rights exists. The concept indicates that every spouse is entitled to the conjugal society of the other unless a reasonable excuse exists. This provision of matrimonial law has been interpreted on several occasions by various High Courts to the woman’s disadvantage. For instance, husbands have used this provision to compel their wives to give up their jobs. Not only that, the concept of Restitution of Conjugal Rights has been the fulcrum of many constitutional controversies on the ground that it is against the basic human dignity of a woman to be forced to live with a man she abhors/dislikes.

Another problematic area for women is that of Divorce under Islamic Law. The legitimacy of the system of Triple Talaq in Islamic Law has been questioned many times by feminists and scholars of human rights. The case of Shah Bano, an old Muslim woman who was thrown out of her matrimonial home because her husband had suddenly pronounced “talaq” three times against her remains sensational till date. Shah Bano’s case had raised several questions on the rights of married Muslim women, who under the Shariat were entitled to maintenance only during the period of iddat (to be calculated as three menstrual cycles from the date of divorce). In order to escape the Supreme Court’s stance in Shah Bano’s case, the Parliament amended the Dissolution of Muslim Marriages Act, 1939 in the year 1986. After the amendment, the liability of maintaining a divorced Muslim woman follows a vicious chain which starts with the husband, proceeds to relatives of the woman who are entitled to be her heirs and finally ends with the State Wakf Board. The chain is vicious because it is difficult to expect relatives of an indigent woman to support her financially and more importantly, it is equally perplexing to have her run from pillar to post for relief from the Wakf Board.

Women face similar troubles when it is about guardianship of children. The patriarchal tone of the society has been very well reflected in many of our legislations, more so, in the Hindu Minority and Guardianship Act, 1956. Under section 6 of this Act, mother is treated as the natural guardian of the minor only after the father. It is surprising that Indian legislations, which are supposed to be based on the spirit of equality of the Indian Constitution, make such distorted provisions. One wonders as to why the mother’s status as a natural guardian should be secondary in relation to a legitimate child, while the law makes her position primary and pre-dominant in connection with an illegitimate child by stating that ‘maternity is conclusive whereas paternity is only a presumption.’

Women and their right to Property in Indian Laws:

So far as the right to property is concerned, Hindu women have traditionally been excluded from the right to property in their parental home as only male members can constitute a coparcenery. In order to bring about equality between sons and daughters, an amendment was made in 2005 to the Hindu Succession Act, 1956. After the amendment, women are entitled to shares in property in the same way as sons and are treated as Coparceners. A logical extension of Coparcenery rights is that a woman can now initiate partition and can also become the Karta of the household. Traditionally, the position of Karta was restricted to the senior-most male member of the family but with women becoming coparceners, it is logically possible for them to acquire the position of Karta if they are the senior-most members of the family. Further, the law also recognises absolute ownership of a certain type of property by a woman in the matrimonial household. Such property is called Stridhan, over which she has absolute rights of transfer, enjoyment and disposal. Likewise, in Islamic Law, women’s rights in the domain of property saw a significant change after the passing of The Shariat Act,1937.

Laws at Workplace and Labour Legislations in India:

The Parliament enacted the Equal Remuneration Act in 1976 to do away with discrimination between male and female employees. Under the Act, no employer can discriminate against an employee on the basis of gender. Other than that, some special provisions have been made under the Maternity Benefit Act, 1961 for women. Under the legislation, certain benefits have been extended to women who are pregnant in a place of employment. Apart from that, sexual harassment at workplace has been taken up with urgency by the Supreme Court in the case of Vishakha v. State of Rajasthan.5 Guidelines have been laid down in the aforementioned judgment for protecting women from sexual harassment. Further, labour legislations also make special provisions for women at the workplace. For instance, the Factories Act, 1948 provides for mandatory arrangements by every factory in India to maintain adequate number of sanitation facilities like urinals and toilets for women. Likewise, employment of women in hazardous occupations is also prohibited under the Act.

5     AIR 1997 SC 3011

Women and the Workplace: Important Laws

Criminal Law:

The Indian Penal Code, 1860 has many provisions which have been thoroughly criticised as gender insensitive. For instance, the definition of Adultery under the Code stipulates that a case of adultery can be filed by the husband against the paramour of the woman with whom she had sexual intercourse. The woman is treated as an entity that can have no active role to play in the entire act. Further, a case of adultery cannot be filed by a wife against a woman with whom her husband might have had sexual intercourse. The law on this count is gender insensitive as it does not give an equitable right to a woman to prosecute for adultery and also treats her as an irrational entity which is always dictated by a man in acts of sexuality. Similarly, section 377 of the IPC has also been controversial in the recent past for not taking into consideration the rights of lesbians, gays and trans-genders. Section 375 of the Code has also undergone a massive change after gathering much criticism about being loose. For instance, it did not recognise oral penetration as Rape. The massive amendment which happened in 2013 following the Nirbhaya episode has broadened the definition of Rape by extending the offence to any and every form of penetration. Not only that, certain new offences like voyeurism, etc. have been created to protect the rights of women. Another major area of concern is the non-recognition of feminine psychology while determining defences. For example, while grave and sudden provocation has been recognised as a partial defence, the battered woman syndrome has not been taken into cognisance as a defence.

Gender Concerns in Other areas of Law:

Considering the struggle women have undergone for several centuries, the Indian legal system has tried to extend benefits to them in various other sectors. Under the Income Tax Act, for instance, women enjoy greater tax benefits than men. Also, women have wide range of exemptions from court fees under Indian Law. Likewise, provisions for reservations also exist in certain sectors of employment.

Conclusion:

So as to conclude, while it is true to a great extent that laws in India have been formulated for the protection of women, at the same time, many of our laws are male-dominated till date. They need to change for the betterment of society and for the creation of an atmosphere which is conducive to the growth of a spirit of equality as envisioned in the Constitution.

Summary:

1. Many laws in India are influenced by a patriarchal mindset and are therefore against the fundamental principle of equality under the Constitution.
2. Several special legislations had to be enacted to equalise the social status of women with that of men.
3. Property rights for women across all personal laws in India were not the same as that of men. Amendments in the relevant statutes had to be initiated to bring about equality.
4. In matrimonial laws, the issue of restitution of conjugal rights has been often challenged as unconstitutional.
5. In guardianship and custody laws, mothers are considered to be natural guardians only after the father.
6. In the domain of Criminal Law, certain offences like adultery need to be repealed in the interest of gender sensitivity.
7. In the employment sector, several legislations have been enacted to ensure parity of pay, maternity benefit and allied issues.
8. Laws need to be oriented in a manner that ensures equality of all men and women.