Paternalistic Approach Of Family Law Towards Woman

Divyam Juneja

15 Feb 2024 12:30 PM GMT

  • Paternalistic Approach Of Family Law Towards Woman

    The subject of religion-based personal legislation in India is a complex and multifaceted one, encompassing various aspects such as secularism, modernism, national cohesion, communal identity, religious liberty, and the principle of equality. India's legal framework operates under the umbrella of legal pluralism, commonly referred to as a personal law system. In this system,...

    The subject of religion-based personal legislation in India is a complex and multifaceted one, encompassing various aspects such as secularism, modernism, national cohesion, communal identity, religious liberty, and the principle of equality. India's legal framework operates under the umbrella of legal pluralism, commonly referred to as a personal law system. In this system, distinct religious communities, including Hindus, Muslims, Christians, Jews, and Parsis, are governed by their individual legal codes. This framework reflects the enduring influence of religion as a potent catalyst for communal identification within Indian society.

    Religion occupies a pivotal position within the framework of human civilization, manifesting its presence in society through intricate belief systems and rituals that serve as guiding principles for both individual and communal existence. Religion has played a profound role in shaping the identity of individuals in India throughout history, exerting its influence over various dimensions of their personal, cultural, and legal spheres. The persistent presence of religion-based personal laws can be attributed to this profound and intrinsic association with religion.

    In recent years, Indian society has undergone significant transformations, primarily driven by urbanization, globalization, and social reform movements. These transformations have left their mark on various facets of Indian society, affecting both legal frameworks and societal standards. However, despite these transformations, many aspects of Indian society, particularly those related to the status of women, have not fully conformed to the principles of contemporary notions of egalitarianism. One prominent area where this discrepancy becomes apparent is within the domain of gender equality. Personal laws governing various religious sects in India have often faced criticism for their role in sustaining gender inequities.

    Discrimination Against Women And Hegemonic Patriarchy

    In the context of India, it is widely acknowledged that women have faced systemic discrimination throughout modern history, particularly concerning their rights in comparison to men. This discrimination is deeply entrenched in a societal structure that upholds male dominance, and it significantly influences the legal framework pertaining to domestic and marital matters. Within the realm of jurisprudence, the principle of equality, despite its inclusion in fundamental rights such as Article 14[1] (guaranteeing equality before the law), Article 15[2] (prohibiting discrimination based on sex), and Article 2[3]1 (ensuring the right to life), has often had adverse consequences for women due to the consistent and unequal application of personal laws, which consistently exhibit a bias in favor of men.

    Instances of subjugation and discrimination can be witnessed in almost all personal laws. Under Hindu personal law, Section 14 of the Hindu Succession Act of 1956[4] provides that a woman is granted complete ownership of the stridhan received from her parents. Nevertheless, it is customary for women to lack any entitlement to her spouse's assets, with the exception of the privilege to receive financial support. Furthermore, it is worth noting that Hindu women in the majority of regions in India do not hold the status of coparceners in terms of joint family property, with the exception of select states such as Andhra Pradesh, Maharashtra, Karnataka, and Tamil Nadu. The incidents of cruelty cited by men seeking divorce vary significantly from those upon which women base their plea for divorce. Husbands seeking divorce often mention instances such as delayed meal preparation, refusal to make tea, sexual denial, pregnancy termination, and non-compliance with traditional customs (like wearing sindoor or mangal sutra) as examples of cruelty. These instances are used to justify their divorce petitions, sometimes alongside legal actions under Section 498A of the Indian Penal Code.[5] In contrast, women who seek divorce often do so for reasons related to their basic survival. These reasons include eviction from the matrimonial home, constant dowry demands, insults to her parents, refusal to provide maintenance, withholding her stridhan (personal property), hindrance in pursuing employment, accusations on her character, and instances of physical, sexual, or emotional abuse. Additionally, denial of custody or access to their children is another common ground on which women base their petition for divorce. There are various other laws that have exhibited biases towards one gender. For example, Section 24 of the Hindu Succession Act, 1956,[6] stated that widows remarrying may not inherit. Additionally, the issue of guardianship, as per Section 6(a) of the Hindu Minority and Guardianship Act, 1956[7], designates the father as the natural guardian in the case of a legitimate child, and in the case of an illegitimate child, the mother is considered as the natural guardian. However, certain circumstances allow the mother to be considered the natural guardian only if the father is absent. This interpretation has often relegated the mother to a secondary role in the life of the minor child. The law has granted equal status to both mother and father as the natural guardian of the child, but societal perceptions often undervalue the role of the mother in certain cases.

    Within the framework of Muslim personal law in India, there exist several instances that underscore the paternalistic approach embedded in family laws. One of the most contentious issues is that of polygamy. Under Muslim personal law, husbands have the legal right to take multiple wives, commonly referred to as polygamy. While this practice may be exercised under specific circumstances and conditions, it effectively grants men the privilege of having multiple spouses, a privilege not extended to women. This inherent imbalance creates unequal power dynamics within families, impacting women emotionally, financially, and socially. Another aspect of Muslim personal law that reflects a paternalistic approach is the concept of "iddat" or the waiting period. This waiting period is imposed on women after a divorce or the death of their husband. During this time, women are effectively barred from remarrying. While this concept has religious and cultural significance, it restricts women's personal choices and freedoms. It assumes a level of dependency and control over women that is characteristic of a paternalistic approach. Christian personal law in India also presents discriminatory issues, particularly in the realm of inheritance. Under the Indian Succession Act of 1910, daughters' inheritance rights are significantly limited compared to sons. Daughters are entitled to only one-fourth of the shares compared to their male counterparts. Any property exceeding this limit automatically goes to sons or other male relatives. This disparity perpetuates gender bias within the Indian Christian community and is reflective of the paternalistic approach embedded in inheritance laws.

    While the existence of paternalistic and discriminatory practices in family laws is undeniable, it is crucial to recognize the efforts made by the Indian judiciary to challenge and rectify these issues. Courts in India have, over the years, played a pivotal role in interpreting laws and advocating for gender equality. One of the most significant cases in recent years that challenged the patriarchal approach in personal laws is Joseph Shine v. Union of India.[8] In this case, the Supreme Court of India decriminalized adultery under Section 497 of the Indian Penal Code.[9] This law had previously treated married women as victims and their husbands as aggrieved parties, reinforcing a paternalistic notion that women were the property of their husbands. The Supreme Courtin Joseph Shine recognized the need to dismantle such regressive beliefs and acknowledged that women should not be treated as possessions of their spouses. This landmark decision marked a significant step towards challenging patriarchal notions embedded in family laws.

    In Shayara Bano v. Union of India[10], another groundbreaking case, the Supreme Court declared the practice of "triple talaq" in Muslim personal law unconstitutional. This practice allowed husbands to unilaterally and instantly divorce their wives by uttering the word "talaq" thrice, often without valid reasons or due process. The court's decision in this case emphasized the imperative to protect the rights and dignity of Muslim women and invalidated a practice that perpetuated gender inequality and a patriarchal approach within personal laws.

    In Mary Roy v. State of Kerala[11], a case involving a challenge to the discriminatory provisions of the Travancore Christian Succession Act, the Kerala High Court ruled in favor of gender equality in inheritance rights among Syrian Christians. This decision challenged the patriarchal approach within Christian personal laws and recognized the importance of equal rights for women in matters of inheritance.

    The patriarchal approach within Indian family law continues to undermine gender equality despite constitutional guarantees. Discrimination against women persists in personal laws governing marriage, divorce, and inheritance. While the judiciary has made commendable strides in challenging these practices, proactive measures and comprehensive legal reforms are essential to align family laws with contemporary notions of equality, justice, and individual rights.

    Achieving gender equity within personal laws is not only a matter of legal reform but also a societal imperative. It requires a shift in mindset and a rejection of regressive notions that perpetuate gender disparities. Gender-sensitive interpretations of personal laws are crucial to ensuring that women are granted the same rights and protections as men, both within their families and in society at large.

    Thus, the multifaceted issue of gender discrimination within religion-based personal laws in India demands sustained efforts from all stakeholders, including the government, the judiciary, civil society, and religious institutions. Only through a collaborative approach that challenges entrenched patriarchal norms and promotes gender equity can India truly realize the principles of justice, equality, and human rights enshrined in its Constitution. The journey towards gender-inclusive family laws is ongoing, and it is a journey that India must embark upon with determination and a commitment to securing the rights and dignity of all its citizens, regardless of their gender.

    Views are personal.

    [1] Const. of India art. 14.

    [2] Const. of India art. 15.

    [3] Const. of India art. 21.

    [4] Hindu Succession Act, 1956, § 14.

    [5] Indian Penal Code, § 498A.

    [6] Hindu Succession Act, 1956, § 24.

    [7] Hindu Minority and Guardianship Act, 1956, § 6(a).

    [8] Joseph Shine v. Union of India (2019) 3 SCC 39.

    [9] Indian Penal Code, § 497.

    [10] Shayara Bano v. Union of India AIR 2017 9 SCC 1

    [11] Mary Roy v. State of Kerala 1986 SCR (1) 371

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