Marital Rape Is Not Alone, Here Are 9 Indian Laws That Perpetuate Patriarchy
[Breaking News--”The concept of marital rape does not apply in India as marriage is treated as sacred here, the government said in Parliament today,” an NDTV article proclaims. Not so breaking--if you weren’t expecting more sexism-riddled insensitivity from a government capable of these statements, you’re probably more naive than Haribhai Parathibhai Chaudhary, Minister of State for Home, and the speaker of this statement.]
There are two ways to begin a conversation like this, that’s how formulaic the inherent issue of gender inequality seems to have become. We could either reinforce that our society’s mindset is primitive at best, or we could provide you with damning evidence in the form of statistics that prove we have a long road ahead of us before we see a safer, better country for women. Chances are that readers might come to that revelation themselves, though, because let’s be honest--there’s no getting around it.
And while we’ve decoded the formulae for writing such news, readers too seem to have a formulaic reaction to the news. Repeated circulation either instils a cynical acceptance, or a skepticism, that the overwhelming number of negative stories are false and unsubstantiated. If you have resigned yourself to the former, we urge you to discard it immediately as we refuse to be deterred by cynicism despite reporting and coming across facts/stories such as the present article. However, if you are someone who is a skeptic regarding India’s mistreatment of 50% of its population, we’re afraid we have some damning evidence from one of the foundations of our great nation--Indian laws.
Of all the befuddled and corrupt systems we have to our discredit, our judiciary has always earned a great deal of respect for (largely) remaining above the fray. Recently, we celebrated the one year anniversary of the NALSA verdict to provide third gender rights to the transgender community and we’ve even documented some of the most progressive judgements our Supreme Court has made in the past. Nonetheless, there are several laws India has enacted that foster and institutionally support unfair treatment towards women. Considering we’ve already resigned ourselves to esteemed leaders that have no qualms making vile anti-women statements, it would be a shame to lose hope in the judiciary as well. As such, we’ve created this compilation of laws in our constitution that undoubtedly provide support to an anti-women ideology in India from casual sexism to gross denial of basic human rights in the face of gruesome crime. We can only hope that sufficient measures will be taken to reform them in the years to come.
[Note to readers--we’d love to hear your thoughts about these laws in the comments section below so that we can foster a debate around the issue. Plus, if there are any more laws you believe fit the bill, no pun intended, we’d like to hear about those too.]
I. Rape Of A Separated Wife and Marital Rape, Section 375 of Indian Penal Code
While we have already stated that Marital Rape is not illegal in India if the wife is more than 15 years of age, the legal language comes across as an endorsement of the deep patriarchal misogyny which states that a wife is a property which is a man’s ‘right’. The act states “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”, thereby denying a right to millions of aggrieved women in a country where one in five men have confessed to forcing sex on their wives. If this alone does not make you sick, consider that the non-recognition of marital rape puts us in the company of Pakistan, Saudi Arabia, China and Afghanistan with regard to status of women.
The Justice Verma Report called for a change in the law by criminalizing marital rape stating “ the exemption for marital rape stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands” but India’s Parliament and government seemed to be in a disagreement with the report’s views. The Government put forth the view that if marital rape was criminalized, it would weaken traditional family values and that marriage presumes consent.
An inexplicable provision in the law is concerned with the rape of a separated wife. The crime carries a punishment of 2-7 years, while the rape of any other woman in the law entails a punishment of 7 years to life. You may sit there trying to rationalise the reason for this bias but we’re doubtful you’ll be able to see the logic in this.
II. Hindu Inheritance Laws in Hindu Succession Act ,2005
Different communities and religions in India have varying inheritance laws but one glaring provision in the widely-applicable Hindu Inheritance Laws has to do with the transfer of property of a married woman upon her death. In the absence of a will upon her death and in the absence of a spouse or children, the deceased woman’s property is inherited by her in-laws and not her parents. This means that even if the deceased shared a less than amicable relationship with her in-laws, her inheritance would go to them instead of the parents who raised her. The law is obviously not the same for men, and acts as a subtle implication of how married women are expected to cut all legal ties with their own family and lineage post-marriage. Almost as though she herself has become the property of her husband’s family now.
III. Parsi Law Of Inheritance under Indian Succession Act 1925
The dwindling numbers of the Parsi community over the years have elicited countless debates about the possible measures which could be taken to save them from decline. But while the government has initiated programs to encourage population growth among the communities, many believe that the autocratically closed nature of the community is to be blamed along with the sexist laws which have been framed. If a Parsi man marries a non-Parsi woman, she is not entitled to receiving his inheritance on his death although their children have such entitlement. If a Parsi woman marries a non-Parsi man, her children are not entitled to her inheritance and she is often ostracised from the community and has to suspend her other relationships, even that with her own parents.
IV. No Right To Marital Property
woman in India is only entitled to maintenance from her former husband, but has no rights to any assets such as house or commercial property bought in the husband’s name during the marriage. The economic position of women in India is weak due to the lack of recognition of household work done by them despite several tie studies indicating the immense efforts a woman puts in within the domestic sphere. India operates under the Separation Of Property Regime, wherein the husband has property in his name and the wife has property in her name. Thus, if a woman is separated from her husband, she can be asset-less as she can make no claim to his property. This inequality and discrimination persists despite India ratifying the Convention to Eliminate all forms of Discrimination Against Women (CEDAW) under which several countries have created Community Of Property Regime where women are given equal rights in property in the case of a breakdown of marriage. Being a signatory to the convention requires that the international law is complied with, within domestic legislation. Sadly, Indian law or policy fails to recognise women as equal partners in marriage.
V. No Exclusive Right To Inheritance and No Separate Maintenance for Christian Women, The Indian Christian Marriage Act 1872
Christian woman cannot claim separate maintenance, unlike a Hindu woman who can make such a claim under the Hindu Adoption and Maintenance Act, 1955. The only respite for Christian Women comes under Section 125 of the Criminal Procedure Code, which only gives them a paltry sum of Rs 500 per month. Furthermore, the Indian Christian Widow does not have exclusive rights of inheritance. If the husband has lineal descendants, two-thirds of his property is inherited by them and if he has no descendants but kin, they are entitled to half the inheritance. A particularly anomalous feature lies in the provision that the widow of a pre-deceased son (where the son has died before the parents) has no rights of inheritance but children born or in the womb at the time of death are entitled to equal shares.
VI. Only Prevention, No Cure: Prohibition Of Child Marriage Act 2006
The most bizarre feature of India’s response to Child Marriage is that the acts and laws only work to prevent child marriage, not render them illegal or null and void. There have been subsequent judgements by the courts where marriages which are in contravention of the minimum legal age have not been declared illegal with the judges citing protection of women from exploitation as the justification. The Supreme Court has agreed that child marriage is in violation of multiple laws, and every definition of marriage itself, but the child marriage in itself cannot be held as illegal, resulting in an unusual situation where marriage of a one-year old or a ten-year old is valid. Children themselves have the right to call off the marriage - a woman can do so until she turns 20 whereas the man is allowed to do the same till he turns 23; this is a right few are even aware of in the guarded community settings, where the practice still exists, along with an unjust provision which goes against the vulnerable party-the woman.
VII. The Family Law of Usage And Customs Of Gentile Hindus Of Goa, 1880
If there is room for a debate on the nature of monogamous relationships in the 21st Century, Goa’s law is certainly not the way to have it. The deeply sexist law states that the second marriage of a ‘gentile Hindu’ will not be recognised unless the wife from the first marriage does not have any children by the time she is 25 or has no son by the time she is 30. While we have progressive judgements one end of the spectrum with a recognition for live-in relationships as marriage, the regressive laws such as these take us back to the notion that a woman’s value is tied to her womb, not to mention the ability of her womb to produce a son by a particular age. The scarier fact lies in the fact that the present Union Government seeks to base India’s Uniform Civil Code on the Goan Civil Code.
VIII. Marriageable Age, Hindu Marriage Act, 1955
We now see a couple of laws which are in contradiction with one another, and go on to propagate confusion and patriarchy, no more than the simple marriageable ages fixed in this country. A man can legally get married when he is 21 years of age while a woman can be married when she is simply 18 years old, a fact which has become acceptable without asking a glaring question- why the difference? Why isn’t the common marriageable age for men and women the same, 21 years old? The act further renders itself into an area of not just confusion, but even denial of existence with the added question of child marriages, which are in contravention of the law and yet valid, as seen earlier.
IX. Age of Consent, Criminal Law Amendment Act 2013
A truly sickening conundrum within the Indian legal system comes in while discussing the issue of age of consent for sexual intercourse. The landmark Justice Verma report after the Nirbhaya Rape Case, along with many NGOs has urged for the age of consent to be revised to 16, it has still not been implemented. While the new law has recognised 18 years to be the legal age for sex, the validity of child marriage renders it meaningless where statutory rape is not applicable to one’s wife as long as she is above 15 years of age. With marital rape being legal in this country, India has therefore given institutional support to paedophilia.
If some part of you feels like rationalising such institutional bias as an Indian exception, we should point out few provisions in the Constitution and Law which are being violated by the aforementioned laws:
1) Article 14 : The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
2) Article 15 (i): The State is not to discriminate against any citizen on grounds of religion, race, caste, sex, or place of birth.
3) Article 46: Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections. The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation
4) Article 51(A) (e): To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
[Note to readers--we’d love to hear your thoughts about these laws in the comments section below so that we can foster a debate around the issue. Plus, if there are any more laws you believe fit the bill, no pun intended, we’d like to hear about those too.]
