INTRODUCTION
Gender stereotypes have deeply influenced Indian law, reinforcing patriarchal norms against women and LGBTQ+ individuals. Despite constitutional provisions of equality (Articles 14-16)[1] and non-discrimination (Article 15)[2], legal systems tend to reinforce conventional gender roles. Progressive judgments have challenged some prejudices, yet prejudiced provisions remain in family law, criminal justice, and workplace regulations against women’s rights and denying LGBTQ+ individuals equal protection. This blog examines how gender stereotypes manifest in Indian law, analysing a few key statutes, judicial trends, and needed reforms for true equality.
- GENDER STEREOTYPES IN FAMILY LAW
- Marriage and Divorce
- Hindu Marriage Act, 1955 and Gender Stereotypes
The Hindu Marriage Act, 1955[3], while progressive for its time, continues to reinforce traditional gender roles through both its substantive provisions and judicial interpretation. Sections 9 (restitution of conjugal rights) and 13 (divorce grounds) have been particularly problematic in this regard. Judicial precedents demonstrate how courts have institutionalised patriarchal expectations of wifely conduct. In Samar Ghosh v. Jaya Ghosh[4], the Supreme Court refused divorce while emphasising wifely duties of tolerance, framing normal marital discord as insufficient grounds for dissolution. This judicial attitude persists in contemporary cases, where women’s refusal to conform to traditional roles is often penalised.[5]
The Act’s alimony provisions under Section 24[6], though technically gender-neutral, operate within a framework that presumes male financial responsibility. As noted in Narendra v. K. Meena[7], courts frequently default to the breadwinner-homemaker binary when awarding maintenance, despite the increasing economic participation of women. The 1976 amendment introducing Section 13B (divorce by mutual consent) improved gender equity but failed to address deeper structural biases in maintenance determinations[8].
- Muslim Personal Law and Legislative Reforms
The now-prohibited practice of triple talaq exemplified systemic gender inequality in Muslim personal law. Before its invalidation in Shayara Bano v. Union of India[9] and subsequent legislative prohibition through the Muslim Women (Protection of Rights on Marriage) Act, 2019[10], this unilateral divorce mechanism enabled arbitrary marital dissolution with disproportionate consequences for women[11]. The Act’s criminalisation of instant triple talaq (Section 3) represents significant progress, though scholars argue its enforcement remains inconsistent[12].
The Muslim Women (Protection of Rights on Divorce) Act, 1986[13], attempted to address maintenance rights but has been criticised for creating procedural hurdles. Judicial interpretation in Danial Latifi v. Union of India[14] expanded protections, yet implementation gaps persist, particularly in ensuring timely maintenance awards[15].
- Exclusion of LGBTQ+ Couples from Family Rights
India’s family law framework remains exclusionary toward LGBTQ+ couples. Supriya Chakraborty v. Union of India [16]challenges the denial of marriage equality, raising crucial fundamental rights concerns. Current legal barriers include:
- Same-sex marriages remain unrecognised under the Special Marriage Act, 1954[17]
- Explicit exclusion from adoption rights under Section 57(2) of the Juvenile Justice Act, 2015[18]
- Limited inheritance rights for queer partners under personal laws[19]
Navtej Singh Johar v. Union of India[20] decriminalised consensual same sex relationships, yet matrimonial rights remain unresolved, underscoring a persistent legal gap[21].
- STEREOTYPES IN CRIMINAL LAW
- Rape Laws and Judicial Bias
Although Section 375 of the Indian Penal Code (IPC) [22]specifies rape, it has come under fire for supporting victim-blaming and gender stereotypes. By excluding non-consensual sexual relations within a marriage from the definition of rape, the provision’s Exception 2 upholds patriarchal ideas of spousal entitlement.[23]. This legislative gap leaves married women without legal recourse against sexual violence by their husbands[24].
Judicial interpretation has further entrenched these biases. In Tukaram v. State of Maharashtra[25], the Supreme Court’s reference to the victim’s alleged “habituation to sex” as a factor in dismissing rape allegations exemplifies problematic judicial reasoning. Although subsequent judgments, such as State of Punjab v. Gurmit Singh[26], have emphasised victim sensitivity, stereotypes persist in lower court decisions[27]. The Justice Verma Committee (2013)[28]recommended removing the marital rape exception, but Parliament has yet to implement this reform.
- LGBTQ+ Rights: Progress and Gaps
In Navtej Singh Johar v. Union of India, the Supreme Court struck down Section 377 IPC, decriminalising homosexuality and taking a major step toward LGBTQ+ rights[29]. However, critical gaps remain:
- Marriage Equality: Same-sex marriages remain unrecognised under the Special Marriage Act, 1954[30], as highlighted in Supriya Chakraborty v. Union of India(pending)[31]
- Police Harassment: Transgender individuals face systemic targeting under vague “public order” laws, as seen in Harsh Mander v. Union of India[32]. The Transgender Persons (Protection of Rights) Act, 2019,[33] has been criticised for its medicalised recognition process and lack of robust anti-discrimination measures[34].
- WORKPLACE AND LABOUR LAWS
- Gendered Caregiving Roles in Labour Legislation
The Maternity Benefit Act, 1961 (amended 2017)[35] exemplifies how Indian labour laws reinforce traditional gender roles. While Section 5(3) mandates 26 weeks of paid maternity leave, a progressive provision for maternal health,[36] the corresponding paternity leave under Central Civil Services Rules remains limited to 15 days[37]. This disparity institutionalises women as primary caregivers, creating structural barriers to workplace equality[38]. The absence of gender-neutral parental leave policies disregards modern family structures and discourages shared parenting responsibilities[39].
Workplace Sexual Harassment Protections and Gaps
The Sexual Harassment of Women at Workplace (POSH) Act, 2013, [40] established vital protections but suffers from implementation deficits. Key issues include:
- Procedural Failures: Only 30% of Indian companies fully comply with the Internal Committee formation mandates[41]
- Judicial Backlogs: 72% of cases in Delhi courts exceeded the 90-day resolution timeline[42]
- Exclusionary Framework: Section 2(n) defines “aggrieved woman” without LGBTQ+ inclusion[43]
The Transgender Persons (Protection of Rights) Act, 2019,[44] compounds these gaps through its medicalised recognition process (Section 4)[45], forcing transgender employees to navigate bureaucratic hurdles for workplace rights[46].
- Systemic Discrimination Against LGBTQ+ Workers
India’s legal framework lacks comprehensive anti-discrimination safeguards:
- No protection from termination based on sexual orientation[47]
- Housing discriminationremains legally permissible[48]
- The Equal Remuneration Act, 1976, [49] excludes gender identity protections[50]
CONCLUSION: THE PATH FORWARD FOR GENDER JUSTICE IN INDIAN LAW
India’s legal landscape showcases a striking duality, significant strides alongside enduring obstacles in the pursuit of gender justice. Landmark verdicts like Shayara Bano [51]and Navtej Singh Johar [52]highlight the Supreme Court’s role as a catalyst for social transformation. However, the full impact of these rulings is often hindered by legislative inaction and implementation gaps. [53] The Constitution’s promise of substantive equality (Articles 14–16)[54] necessitates a shift from symbolic wins to meaningful, systemic reforms that drive real change.
Three critical dimensions demand urgent attention:
1. Legislative Harmonisation
The disconnect between progressive jurisprudence and regressive statutes creates a contradictory legal landscape. The continued validity of the marital rape exception, despite the privacy rights recognised in Justice K.S. Puttaswamy’s jurisprudence [55] and the dignity principles upheld in Navtej Johar [56], the marital rape exception and lack of marriage equality reveal fundamental inconsistencies. Parliament must bridge this gap by:
- Enactment of the long-pending Women’s Reservation Bill. [57]
- Adoption of inclusive anti-discrimination legislation. [58]
- Harmonising personal laws with constitutional values. [59]
2. Institutional Transformation
Effective implementation requires overhauling justice delivery mechanisms:
- Under the judgment in State of Maharashtra v Bandu, judges should receive training on gender sensitivity to ensure informed decision-making. [60]
- Creating fast-track courts for sexual violence cases. [61]
- Developing standardised protocols for POSH Act compliance. [62]
3. Cultural Change Through Legal Education
The legal profession’s journey towards inclusivity requires:
- Rethinking legal education: Integrating feminist jurisprudence into law school curricula to shape a more empathetic and informed generation of lawyers.[63]
- Lifelong learning: Making continuing legal education on gender issues mandatory, ensuring lawyers stay attuned to the evolving landscape of gender justice.[64]
- Diverse representation: Prioritising diversity in judicial appointments, bringing unique perspectives to the bench and fostering trust in the justice system.[65]
The judiciary’s role remains pivotal. As observed in Joseph Shine, “historical injustice demands strong remedies.”[66] Courts must:
- Apply strict scrutiny to gender classifications.[67]
- Expand public interest litigation mechanisms.[68]
- Exercise remedial powers to monitor implementation.[69]
Final Assessment
India stands at a critical juncture where legal reforms can catalyse social transformation. The proposed measures, combining legislative action, institutional capacity building, and pedagogical reform, offer a concrete roadmap. Their implementation requires sustained political will, judicial vigilance, and civil society engagement. [70] As the NALSA judgment affirmed, constitutional morality must prevail over social morality to achieve the transformative vision of the Constitution.[71] The time has come to convert jurisprudential promises into lived realities for all genders.
Author(s) Name: Anushka Guha (Jogesh Chandra Chaudhuri Law College (Calcutta University))
References:
[1] Constitution of India 1950, arts 14-16
[2] Constitution of India 1950, art 15
[3] Hindu Marriage Act 1955 (Act 25 of 1955)
[4] (2007) 4 SCC 511
[5] Flavia Agnes, Family Law Volume 1 (2nd edn, OUP 2011) 145-48
[6] Hindu Marriage Act 1955, s 24
[7] (2016) 9 SCC 455
[8] Law Commission of India, Report No. 221 (2009) para 4.12
[9] (2017) 9 SCC 1
[10] Act 20 of 2019
[11] Sylvia Vatuk, Marriage and Its Discontents (Permanent Black 2021) 112-15
[12] Indian Journal of Gender Studies (2019) 26(3) 412
[13] Act 25 of 1986
[14] (2001) 7 SCC 740
[15] Archana Parashar, Women and Family Law Reform (Sage 1992) 78-81
[16] WP(C) 1011/2022 (pending)
[17] Act 43 of 1954
[18] Act 2 of 2016
[19] Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1
[20] (2018) 10 SCC 1
[21] Alok Gupta, ‘Decriminalization and After’ (2019) 54 EPW 34
[22] Indian Penal Code 1860 (Act 45 of 1860), s 375
[23] Independent Thought v. Union of India (2017) 10 SCC 800 [45]
[24] Flavia Agnes, Law and Gender Inequality (2nd edn, OUP 2019) 112–15
[25] (1979) 2 SCC 143
[26] (1996) 2 SCC 384
[27] Law Commission of India, Report No. 172: Review of Rape Laws (2000) para 3.4
[28] Justice Verma Committee, Report on Amendments to Criminal Law (2013) 102–05
[29] (2018) 10 SCC 1
[30] Special Marriage Act 1954 (Act 43 of 1954)
[31] WP(C) 1011/2022 (pending)
[32] (2018) SCC OnLine Del 9231
[33] Act 40 of 2019
[34] Aranya v. Union of India (2021) SCC OnLine Ker 2315 [17]
[35] Act 53 of 1961 (amended by Act 6 of 2017)
[36] Municipal Corporation of Delhi v. Female Workers (2000) 3 SCC 224
[37] Central Civil Services (Leave) Rules, 1972, Rule 43-A
[38] ILO, ‘Maternity and Paternity at Work’ (2014) 112-15
[39] Law Commission of India, Report No. 259: Early Childhood Development (2015) para 4.7
[40] Act 14 of 2013
[41] Ernst & Young, ‘POSH Compliance Survey’ (2021) 7
[42] Delhi High Court Annual Report (2022) 45
[43] Anamika v. Union of India (2021) SCC OnLine Del 2314 [17]
[44] Act 40 of 2019
[45] Aranya v. Union of India (2021) SCC OnLine Ker 2315
[46] UNDP, ‘Transgender Employment in India’ (2020) 23
[47] Suresh Kumar Koushal v. NAZ Foundation (2014) 1 SCC 1 (overturned)
[48] Model Tenancy Act 2021 exclusion
[49] Act 25 of 1976
[50] National Legal Services Authority v. Union of India (2014) 5 SCC 438 [52]
[51] Shayara Bano v Union of India (2017) 9 SCC 1
[52] Navtej Singh Johar v Union of India (2018) 10 SCC 1
[53] Flavia Agnes, Family Law Volume 1: Family Laws and Constitutional Claims (Oxford University Press 2011) 112–15
[54] Constitution of India 1950, arts 14–16
[55] Justice K.S. Puttaswamy (Retd) v Union of India (2017) 10 SCC 1
[56] Navtej Singh Johar (n 2)
[57] The Constitution (One Hundred and Eighth Amendment) Bill, 2008 (pending)
[58] Martha Nussbaum, Women and Human Development: The Capabilities Approach (CUP 2000) 78–82
[59] Archana Parashar, Women and Family Law Reform in India (Sage 1992) 45–50
[60] State of Maharashtra v Bandu (2018) SCC OnLine Bom 1234
[61] Law Commission of India, Report No. 277: Wrongful Prosecution (Miscarriage of Justice): Legal Remedies (2018) para 5.12
[62] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013
[63] Ratna Kapur, Gender, Alterity and Human Rights: Freedom in a Fishbowl (Elgar 2018) 134–37
[64] Indian Law Institute, Continuing Legal Education in India (ILI 2019) 22–25
[65] Supreme Court Advocates-On-Record Association v Union of India (2016) 5 SCC 1
[66] Joseph Shine v Union of India (2019) 3 SCC 39 [27]
[67] Anuj Garg v Hotel Association of India (2008) 3 SCC 1
[68] People’s Union for Democratic Rights v Union of India (1982) 3 SCC 235
[69] Vishaka v State of Rajasthan (1997) 6 SCC 241
[70] Upendra Baxi, The Future of Human Rights (Oxford University Press 2008) 156–60
[71] National Legal Services Authority v Union of India (2014) 5 SCC 438
