Getting Rid of Patriarchy in ‘Adultery’ and Other Personal Laws

As a panel recommends redefining adultery laws and marriageable age, Nishtha Gautam writes on its implications.

Legal experts have opined time and again, Indian laws pertaining to family are in urgent need of an overhaul. (Photo: iStock/Altered by The Quint)

A government-appointed high-level panel has recently given recommendations aiming to bring gender parity in family laws in India. The recommendations come on the heels of several progressive rulings by the courts recognising various women’s rights within the institution of family. The Supreme Court is set to hear an appeal by Shayara Bano against her triple talaq and the panel report is also going to be presented there.

As legal experts have opined time and again, Indian laws pertaining to family are in urgent need of an overhaul. It has been noted that some laws are not only discriminatory against women, the very lexicon they use is often derogatory. The committee has also taken cognisance of the same. It recommends that words like “maintenance” that have negative connotations should be substituted with a phrase like “monetary entitlement” suggesting equity. It is important that the language of justice be made gender neutral since it is the women that largely bear the stigma associated with certain words.

The term “cruelty”, for example, is used in various sections of personal laws of Hindus, Muslims, Christians and Parsis without clearly defining it. (Representational image: iStock)

Interpretation of ‘Cruelty’

The world of law is pegged on the word of law. Legal profession thrives on the ability to make the word of law mean what you want it to. However, the wording of certain laws renders them even more vulnerable to be manipulated. The term “cruelty”, for example, is used in various sections of personal laws of Hindus, Muslims, Christians and Parsis, without clearly defining it.

Even in the Special Marriages Act and the Indian Divorce Act cruelty remains obfuscated, hence subject to interpretation.

Anything ranging from physical abuse to calling the husband “fat elephant” can be considered cruelty. The fluidity of the term allows the courts greater power to interpret a case with a greater deal of subjectivity.

While India enjoys a largely progressive judiciary, many rulings have come to be seen as insensitive owing to the honourable judges’ personal convictions. Clearly defined terms are sure to benefit all the stakeholders.

Reforms in Personal Laws

• A government-appointed panel seeks changes in family laws, also asks for a ban on triple talaq and polygamy.
  
• Panel calls for a rethink on Section 497 of the IPC on adultery that allows only husbands to level charges against another man.
  
• The term ‘cruelty’ also needs to be re-defined since personal laws recognise cruelty as a ground for divorce.
  
• Legal experts fear implication on other laws with the panel recognising 18 years as the marriageable age for both sexes.
  

Definition of Adultery

The most important recommendation in the report pertains to the “archaic” Section 497 on adultery. The law deems the wife at par with the husband’s property and allows him to level charges against another man should there be trespassing in the form of sexual relations. The same right is not given to the wife of a philandering husband.

While the very concept of adultery is beginning to appear archaic in the wake of changing societal attitudes towards marriage, divorce and everything in between, the gender bias inherent in Section 497 sticks further out as a sore thumb.

Can the Uniform Civil Code address issues arising due to discrepancies in personal laws? (Photo: Reuters)

Doing Away With Gender Bias in Laws

Another radical recommendation pertains to the marriageable age for men. Why should there be a differential of three years for men and women, the panel asks. This is in contrast with the idea of increasing the age for women as mooted by Madras High Court in 2014. However, in both these cases the assumption of girls attaining maturity earlier than boys is being challenged. Legal experts are sure to see that increasing the marriageable age will have implications on other laws, particularly the Juvenile Justice Act. On the other hand, are we taking a social risk in allowing individuals just out of school to enter matrimony should the age be lowered for men?

A lot of people see the differential in terms of financial prudence. Here, too, the assumption of the man being the breadwinner and thus getting some time to “settle” before entering matrimony is biased against women and their competence. In a country like India, where child marriages are still prevalent, even the legal marriageable age poses such trick questions. Apart from the illegal cases of child marriage, Muslim Personal law allows a girl of fifteen, still a child as per the JJ Act, to marry.

In most countries, the legal age to marry is the same for both the sexes. Is it even possible to have a blanket law in this respect without encroaching upon the ‘personal law’ territory in India? This leads us to the larger question: should the gender bias in personal laws be allowed to flourish? Can Uniform Civil Code address these issues without a forceful cultural steam-ironing?

(The writer is Associate Fellow (Gender) at Observer Research Foundation)

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