INTRODUCTION
India’s family law system has developed under constitutional principles, religious convictions, and cultural traditions. Implementing these laws has frequently reinforced gender differences, though their original intent was equality and protection. This blog looks at how these laws’ well-meaning provisions have contributed to gender disparity because they have not been changed promptly. In Indian culture, the ideal woman is typically represented by the mythical figure Sita, who stands for ideal purity, fidelity, and marriage. This reinforces the idea of the “ideal woman” in a patriarchal society. Women are frequently portrayed in myths and legends as the embodiment of pain and forbearance. This blog emphasises the need for extensive reforms to ensure gender equality in legislation. Thus we will focus on the evolution of gender differences in Indian family laws and how well-intentioned clauses can exacerbate gender disparities in the absence of sufficient amendment. Despite good intentions, the lack of timely modifications to Indian family laws has widened the gender gap.
DISCUSSING CASES AND SECTIONS
Section 6 of the Hindu Minority and Guardianship Act states “the father is the natural guardian of a minor, and the mother is said to assume that role only after the father.” It specifies that “the father, and after him, the mother” shall be the natural guardian of the minor’s person and property[1]. This provision is seen as unfair because it fails to recognise the evolving principles of gender equality in parenting. By automatically prioritising the father, it upholds patriarchal norms and disregards the role mothers play in modern child-rearing. This contradicts constitutional guarantees of gender equality under Articles 14 and 15[2], which prohibit discrimination based on sex. Although judicial interpretations, such as in the Githa Hariharan case[3], have tried to address this imbalance and bring the statutory problems to light, the statutory language still lags, highlighting the need for legislative amendments to reflect contemporary understandings of gender parity in guardianship[4]. In addition, according to Hindu law, Section 6(b) of the HMGA gives sole guardianship to the mother in cases of illegitimate children[5]. While this may appear to be progressive, it also reinforces traditional gender roles by assuming that the mother alone should bear responsibility, disregarding the father’s accountability and undermining the concept of shared parental responsibility.
THE MARITAL RAPE DEBATE
According to BNS Section 63 which defines and criminalises rape, there exists an exception (2) that effectively endorses the notion that consent is implicit within marriage[6]. It highlights a significant gender disparity entrenched in the legal system. An ongoing SC case that deals with this issue would be RIT Foundation V Union of India. With the HC giving a split judgement, the key arguments of the Respondents revolving around how criminalising marital rape would destabilise the institution of marriage. This ignores the fundamental right to one’s body ensured by Article 21 of the Constitution[7]. A former CJI, Justice Bobde commented, “If a man and a woman are living together; though insincerely, as man and wife, the man may be brutal and may do many wrongs; however, can you call sex between them rape?” [8]This not only trivialises the experiences of women subjected to sexual violence but also perpetuates a culture of silence and shame. It automatically assumes that marriage is in a way an “ assumed consent” for the entire duration of the marriage. Activists argue that failing to criminalise marital rape denies women their fundamental rights and reinforces systemic inequalities, necessitating urgent legislative reform to align with contemporary standards of gender justice.
THE OTHER SIDE
The gender disparities are not limited to being faced only by women, but it has been disadvantageous to men as well. Maintenance, under section 125 of the CRPC [9]and also sections 24 and 25 of HMA[10], which is meant to provide financial support to individuals, is often misused in ways that contribute to gender disparities. Women seek maintenance as a way to gain financial advantages without genuine need, leading to perceptions of misuse. This reinforces stereotypes of women as financially dependent on men. Additionally, the lengthy legal processes to resolve maintenance disputes disproportionately burden men, causing stress and financial strain. A recent key case that highlights this is the Atul Subash case where the exorbitant maintenance amounting to 7 Cr while his income was less than a lakh per month and the lengthy legal process pushed him to commit suicide.[11] These dynamics can further entrench traditional gender roles, undermining the objective of maintenance laws to promote equality and support for those genuinely in need.
Indian statutes also do not specify a clear period after which maintenance can be claimed following the solemnization of marriage. This issue, while seeming superficial, can lead to significant complications in practice, as the entire concept of maintenance centres around the financial dependency that partners share during the relationship. Once the relationship is terminated, it necessitates that one partner maintains the financial relationship. Without a specified time period for maintenance, the following situation may occur: a woman claims maintenance after being married for just a few days and then separates, subsequently filing for maintenance. This undermines the fundamental idea of maintenance since the husband in the marriage did not truly get to “maintain” his wife. Given the ambiguous statutes regarding this issue, this case can therefore arise. Though maintenance is nowhere specified to be awarded to the wives only, there are cases where the women have also been required to provide maintenance as in the case of Bhagyasgri v Jagdish[12]. Nevertheless, the crux of the problem has been majorly faced by men as they remain to be the primary breadwinners in most households. On the other hand, Men can exploit the system by delaying payments or contesting claims, leading to financial insecurity for women. The stigma surrounding maintenance claims can discourage women from seeking help, perpetuating their dependency on male counterparts.
DOMESTIC VIOLENCE LAWS
The laws on dowry and domestic violence in India aim to protect women’s rights but can inadvertently create unfair advantages for women, resulting in significant gender disparities. The Dowry Prohibition Act 1961, aims to eradicate the prevalent custom of dowry, a practice that has historically subjected women to financial exploitation and emotional abuse. However, instances of misuse have emerged, where women may file false allegations of dowry harassment against their husbands and in-laws, often as to retaliate due to personal disputes. This misuse not only undermines the legitimate objectives of the law but also results in wrongful implications for men, creating a chilling effect where genuine victims of dowry harassment may find it difficult to come forward due to fear of disbelieving attitudes from society and the legal system. One notable example of a fake dowry case is the Nisha Sharma v Munish Dalal case,[13] Nisha Sharma filed a complaint alleging that her groom, Munish Dalal, demanded dowry, leading to his arrest just before their wedding. The case attracted significant media attention and was emblematic of the complexities surrounding dowry laws. After a lengthy legal battle, Dalal and his family were acquitted in 2012 due to a lack of evidence supporting the charges against them. Similarly, even though the Protection of Women from Domestic Violence Act, 2005, was designed to shield women from abuse. There have been cases where domestic violence allegations have been wrongly used, resulting in undeserved damage to the reputations of innocent people and causing turmoil within families. The legal system frequently takes a long time to resolve these conflicts, leaving real victims of domestic violence in prolonged distress and uncertainty, while wrongly accused individuals bear the social stigma associated with such accusations. Moreover, the judiciary has acknowledged the potential for misuse, calling for a more cautious approach in handling such cases as Moralist assumptions and gender stereotyping are predominantly seen in cases related to domestic violence, which in turn severely impact judicial reasoning. The SC has emphasized the importance of thorough investigations to separate genuine cases from those that are. A nuanced approach is vital to prevent the misuse of protective measures for vulnerable women, complicating the legal landscape. Laws against dowry and domestic violence are important for women’s rights in India, but reforms are needed to balance victim protection with the rights of the accused.
CONCLUSION
Gender disparities reveal the complicated relationship between well-meaning legal frameworks and actual societal inequalities. Laws meant to protect women’s rights from issues like dowry and domestic abuse often reflect patriarchal biases, potentially leading to misuse that impacts both men and women. The failure to update these laws highlights a disconnect between progressive ideals and their implementation. To achieve genuine gender equality, it is essential to reform outdated laws and improve legal literacy. A multifaceted approach—including judicial sensitivity, public awareness, and legislative changes—is necessary to address gender inequities. Aligning Indian family laws with modern ideals of equality is crucial for fostering a just society where all individuals can thrive.
Author(s) Name: Anushka Bhowmick (O P Jindal Global Law University, Sonipat)
References:
[1] Hindu Minority and Guardianship Act 1956, s 6
[2] Constitution of India 1950, arts 14–15
[3] Githa Hariharan v Reserve Bank of India (1999) 2 SCC 228
[4] Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228’ (Drishti Judiciary, 04 June 2024) https://www.drishtijudiciary.com/landmark-judgement/hindu-law/githa-hariharan-v-reserve-bank-of-india-1999-2-scc-228 > accessed 25 January 2025
[5] Hindu Minority and Guardianship Act 1956, s 6(b)
[6] Bharatiya Nyaya Sanhita 2023, s 63
[7] Constitution of India 1950, art 21
[8] Radhika Roy, ‘Can Sex Between People Living As Husband And Wife Be Called Rape? SC Asks While Giving Relief To Rape Accused (Live Law, 01 March 2021) <https://www.livelaw.in/top-stories/supreme-court-grants-8-week-protection-from-arrest-to-rape-accused-in-false-marriage-promise-case-170525> accessed 22 January 2025
[9] Code of Criminal Procedure 1973, s 125
[10] Hindu Marriage Act 1955, ss 24–25
[11] Gursimran Kaur Bakshi, ‘Atul Subhash Case : Supreme Court Disposes Of Habeas Corpus Petition Filed By Mother Of Subhash To Know Whereabouts Of Child’ (Live Law, 20 January 2025 ) https://www.livelaw.in/top-stories/atul-subhash-case-supreme-court-disposes-of-habeas-corpus-petition-filed-by-mother-of-subhash-to-know-whereabouts-of-child-281475> accessed 22 January 2025
[12] Bhagyashri v Jagdish (2022) SCC OnLine Bom 694
[13] Nisha Sharma v Munish Dalal (2012) 2 JCC 876
