IMPRI: Feminist jurisprudence and gender bias in family laws

Are Indian laws feminist? Do Indian family laws protect the voice of women? And how do the implementation of the laws differ from the law itself? Addressing these and many questions, IMPRI (Impact and Policy Research Institute, New Delhi organised a special lecture on Feminist jurisprudence and gender bias in family laws. The discussion was chaired by Vibhuti Patel, Visiting Professor at IMPRI AND Former Professor at TISS, Mumbai and the speaker was Eminent Women’s Rights Lawyer Flavis Agnes. The discussants of the talk were Anuradha Kapoor, Director at Swayam in Kolkata, Audrey D’Mello, Director at Majlis Legal Centre, Mumbai and Sanchita Ain, professor at ASV Legal and Advocate on-record at Supreme Court of India.

How historically family laws have been discriminatory

Starting the discussion, Vibhuti Patel set the ground of Feminist Jurisprudence by citing examples of how laws have changed and evolved with time. Speaking about the bias in the family or personal laws, Patel said, “Feminist movement has found simultaneous existence of constitutional guarantees of equality and non-discrimination on one hand and religion-based family discriminatory personal laws on the other. They are institutionalising gender inequality while providing institutionalised support to women facing problems like marriage, divorce, maintenance, custody of children, guardianship rights, rights to stay in the marital or parental home.” She further said, “Feminists realise that most of the customary laws were and are discriminatory towards women and they violate a woman’s right to a dignified life. “

Adding further, Patel said, “Our family ">laws are governed by patriarchal ideology, they are irrespective of religious identity and perpetuate patrilineage, patrilocality, double standards of sexual moralities of men and women, and perceive women as perpetual minor and dependent on men. Therefore all personal laws discriminate women in one form or the other.”

Feminist Jurisprudence

However, feminists and judges have directed their effort in making the laws equal for men and women. They have worked hard to include feminist jurisprudence in the framework of family laws. “Over last four decades, women’s rights activists have consistently fought for gender justice within the family laws, in the streets and the feminist lawyers have fought legal battles in the courtrooms.”

Triple Talaq law for example is phenomenal work towards liberty of women from regressive Islamic custom/law of triple law. The domestic violence act is another great effort towards building a gender-specific law for women that protects them from abuse physically, emotionally or monetarily. Christian marriage laws no longer follow the colonial rule in which a wife couldn't leave a husband having an affair with others while a husband could desert an adulterous wife. These and many more laws have changed and shown how feminist jurisprudence is important in framing the laws.

How equal laws are unequal on ground

Taking the discussion further, Flavia Agnes spoke about how marriage laws and other family laws are not equal on implementation, even if they are not biased on paper. “Several feminists… think that law is a crude and limited device’ and is circumscribed by the dominant beliefs of the society in which it is produced…. Even if changes are made you cannot see its impact on ground level. The legal, moral and social codes are administered by hegemonic claim of patriarchy and exploration into the notion of justice and fairness to women can be embarked upon only by piercing the veil of neutrality, Impartiality and formal equality within law.”

Questioning the bias of the laws, even though feminist on the outlook, Agnes says,” Can the lens of feminism and or concern for women rights be labelled as biased? Is there a framework of neutrality that prevails beyond it?”

Speaking about how there is a bias in the implementation of the laws, Agnes says, “Law ensures equality and non-discrimination but when we examine the domestic sphere, under the matrimonial laws the notion of equality is detrimental to women since men and women within marriage are not equal. Equality can only be between equal people. If equality is applied between unequal it may lead to the greater disparity. These distinctions have not been made clearly made in our marriage laws”

Agnes explains that there is a difference between the role of men and women in marriage. Men are breadwinners and women handle the household chores and the contribution cannot be measured in the same economic yardsticks. “But at the time of divorce, the remedies for men and women are same.”

Similarly, “when men plead divorce on grounds of cruelty, it is completely different from women who plead divorce for cruelty.” A man might plead divorce because the woman might have refused to make tea, have sex or stay with in-laws. But women plead divorce for cruelties like marital rape, physical abuse, lack of maintenance and more.

According to Agnes, the worst notion in the Hindu marriage act is the right given to the husband to claim maintenance based on equality. A husband might lose his job or leave it intentionally to seek maintenance from the wife and abuse her.
Similarly in the case of adultery, the law which was used before perceived women as chattels and supported men’s right over their sexuality. “It didn’t protect marital fidelity but a male privilege.”

Citing some case studies, Anuradha said that women are not told by their lawyers how the case will progress. All the paperwork is kept with the lawyers. A lot of them don’t have the means to go to the courts. A man, who gets easy access to court, employs the best lawyer and a woman is ab;e to employ a legal aid lawyer who is not as efficient as professional lawyer.

Audrey D’Mello says that Section 498 A is a misused law. Even if some women muster the courage to report a case under 498a, the police tend to push them back. “Police criticise them, judges criticise them. No matter however progressive we are, when we go to the police station to report sexual abuse, we cannot articulate.” Moreover, she also talks about women using DV law for maintenance rather than reporting or talking about abuse. Which is another misuse and setback in the laws.

“When we are defining law and when we are articulating law, what is happening in the ground is that DV is not taken serious;y. Family courts were formed by the feminist movement but what ended up happening is family courts want to save families. They are forcing women to go back to their husbands or label them as gold diggers.

“We want more laws for women but what is happening on the ground is that women are facing the weight of the misuse of existing laws," she said.

Importance of gender-specific laws

It is just not right, according to Agnes, to deal with the cases of the cruelty, maintenance, desertion and adultery of men and women on the same ground. Even if the law states equality by defining the same laws for all, there is a need to create gender-specific laws to address women’s issues properly and provide them justice. Agnes says, “It took us more than 60 years to realise that there is no equality in matrimonial law. That we need gender-specific laws. In 2005, the protection of women from domestic violence act has a detailed list of acts that constitute cruelty to women. Men cannot claim relief from women in this act.” Adultery, desertion, maintenance and cruelty cannot be judged using the same law. There is a need to move away from the idea of portraying man and woman equal in law to framing gender-specific laws.

Adding further, Anuradha said, “There is one thing to have laws on paper and it is quite other things to implement on the ground. The bias might not exist in the law but it also exists in the implementation of the law in various ways. It exists as a result of how the system itself is structured and the mindsets of people who are actually involved in giving justice to women. Even if law portrays women as equal, women are not equal in the society.”