Examining Family Laws from the prism of Feminist Jurisprudence

Flavia Agnes

When we are examining 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’? Further, is there a framework of neutrality that prevails beyond it, which a legal scholar must adhere to?

Going through 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 within the domestic sphere under the matrimonial laws, this notion of equality has been 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. Treating men and women as exactly the same under the so- called ‘sameness doctrine’ was the result of our belief in ‘formal equality.’ ‘Substantive equality’ on the other side requires appreciating the differences between men and women.

These differences do not make women inferior in any way but do require ‘differential treatment’. 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.

Women’s status and role within marriage differ a great deal to that of men. The man is the bread winner and his contribution can be measured in economic terms. The woman is the home maker 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 sindhoor or mangal sutra, the symbols of marriage, demand for setting up a separate residence away from the joint family,  filing a case under S.498A of IPC  etc. are pleaded as instances of cruelty by husbands while seeking divorce.  

To illustrate, in Narender v. K.Meena (October 6, 2016),  Justices Anil Dave and Adarsh Goel of the Supreme Court held that under Hindu traditions, a wife on marriage is supposed to fully integrate herself with her husband’s family and if she refuses to live with her in-laws, it would amount to cruelty and the husband would be entitled to divorce her. The high court had ruled in favour of the wife. But the Supreme court, reversing the high court’s order commented that “in India, generally people do not subscribe to western thought, whereupon getting married or attaining majority, the son gets separated from the family.

In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her.” The court came down heavily on the wife for trying to live separately with the husband solely for monetary considerations and termed it as torture of the husband and on this ground granted the husband 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 more dowry,  refusal to provide maintenance, snatching away and refusing to give access to her ornaments and valuable which constitute her stridhan, preventing her from seeking gainful employment, or snatching 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 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 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 contractual, civil unions in 1955. 

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 while granting 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.  If the divorce is granted on the ground of adultery, the husband is not obligated to maintain his wife. (see Swati Deshpande, “No maintenance  to wife if allegaions of cruelty are proved” Times of India December, 25, 2019). 

But he same legal premises continues even after the divorce.  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 impunity, the divorcee must maintain the same degree of sexual purity that she was supposed to maintain during subsistence of her marriage or she will lose her right to claim maintenance.  

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.

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

Under Section 497 of the 158-year-old Indian Penal Code, 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 being, 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 his 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 the 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 27th September, 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 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.  The bench observed that adultery can only be retained as a civil fault within the matrimonial law and the parties to a marriage can invoke it as a ground for divorce.

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 to this query is provided by Justice D.Y. Chandrachud who at a roundtable organised by the O.P. Jindal Law School, titled, ‘Feminism in Practice: Feminist Lawyering and Feminist Judging’ in October, 2018, 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.” He added further, “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”.  

So the question gets answered in very clear and emphatic terms that the lens of feminism or concern for women’s rights cannot be labelled as ‘biased’.

Presented at the IMPRI #WebPolicyTalk Feminist Jurisprudence and Gender Bias within Family Laws on November 23, 2021

About the Author

Flavia Agnes edited

Flavia Agnes
Women’s Rights Lawyer;
Co-founder, Majlis Legal Centre, Mumbai