Patriarchy Embedded in the Family Laws of India

It is not uncommon to predict that India’s roots are traditionally embedded in its culture and rituals. Values in India’s culture have played an eminent role in prescribing an identity, to every citizen of the country, discriminately. The principles attributed to a woman essentially restricts a woman’s primary role to maintenance of the household and caretaking of the entire family. On the other hand, a male member is vitally seen as the breadwinner of the household and the only one entitled to the benefits offered by our’ rich’ culture. Women are always at the disadvantageous side and are seen as shadows of men. They are perpetually deprived of the right to live, as per their will. These family rules are not just prejudiced and biased but inhuman and unethical. The social institution of marriage is entrenched in patriarchy and speaks volumes about the wide gender gap. It is not just one religion but many others which continue to distinguish women from men and consider the former as incompetent. Women have faced endless discrimination as compared to their male counterparts in every field, inclusive of politics, tradition and every aspect of our daily lives.

The problem lies in the fact that these regressive values have been deep-rooted in our culture since the beginning, as a result of which, there lies a prevailing mentality that normalizes gender inequality and injustice. Women have been deprived of their own rights, freedom and independence. The freedom of a woman always lies in the hands of the male member in the family, regardless of his age or mental state of mind. The most important role of a woman is that she is seen as a child-bearing factor. Marriage is the giving away of liability, resulting in giving enormous amounts of money and property to the male groom and his family, in the form of ‘gifts’.

Men are considered to be dominant, superior beings with uncontrolled power over women but the reality lie in the fact that women are stronger because of their ability to reproduce and manage to multitask with work and family both. However, the capability and skill of a woman continue to be unrecognized by the society which deems them to be unfit to work and earn wages. There is an underlying thought that ‘sons’ can continue the next of kin, whereas a ‘daughter’ is a disgrace to a family with no use at all. Since the ancient times, it was always the son who got to inherit the King’s throne while the daughter was married off to a very rich King. This has not only been seen in India but various parts across the world.

Patriarchy Embedded in the Family Laws of India

In order to change this central principle that generalizes behaviour on the gender gap, intrinsic in our culture, it is imperative to create laws that ensure equality and impartiality to both the genders. Failure of laws that support equality results in a blunder and further chaos in society. There will be rampant discrimination against women and endless prejudice, backed by the law.

In various elements of the Islamic Law, there is an unequal treatment where Muslim men can remarry legally whereas it is considered as an unholy sin for a Muslim woman to not only remarry but even to have an interaction with another man. She cannot simply denounce her religion by marrying a man of another religion, whereas, for a Muslim man, it shall be taken into consideration as a ‘temporary’ marriage.

According to the Islamic and as a matter of fact, even the Hindu culture, the essential role of guardianship and principles of inheritance lies with the male member. Islamic law has also indulged in the private life of a woman and forbidden her to engage in sexual intercourse with anyone, except her husband. By doing so, she will be deemed to be impure while the husband is allowed to remarry at any point in his life. Islamic culture values the body of a woman resulting in the legalization of female genital mutilation to keep her body, ‘pure’ and ‘clean’.

Patriarchy Embedded in the Family Laws of India

In the Hindu culture, unmarried daughters did not have the joint right to property and it was against the laws of Hindu succession. It was only after a case Surendra Nath Malhotra (Huf) vs Gift-Tax Officer where the Supreme Court declared that Hindu daughters ought to be given equal rights in their ancestral property. For a prolonged period of time, Sati and Dowry were practised, which obstructed with a woman’s right to live. Till date, even in educated households, Dowry is practised to ensure the continuation of the marriage and in rural households, the widow is forced to give up her life after the death of the husband while the widower has the option to remarry.

In addition to this, Catholic Christian women were debarred from obtaining a divorce on the grounds of adultery by the husband. It ought to be coupled with another crime such as cruelty, bestiality or sodomy, in order to apply for a divorce. It was a long process and the female victim was often subjected to public humiliation in the society for breaking the sacred institution of marriage. On the other hand, the husband could obtain a divorce on any legal ground and the wife would be subject to disgrace and embarrassment. Either way, the woman is at the receiving end for all the shame and are deprived of their dignity. This law was amended after a tremendous number of demonstrations from the Christian women that resulted in a change in the Christian Divorce Act, 1869.

Patriarchy Embedded in the Family Laws of India

Women from all across the world, regardless of their age or religion have continued to walk on the path of narrow mindedness and ignominy. They are subject to male chauvinism and misogyny. In order to bring a change, it is pertinent that there is a change in the mentality of the citizens, in society.

There needs to be more awareness about the fact that men and women are equal and at par. Women should also be given the fundamental rights that they already deserve in the first place. Bringing a change in the traditional mindset, especially in a country like India is a long and gradual process. Even though there seems to be an improvement, bearing in mind a few exceptions where the woman shines with power, the remaining country continues to believe that a woman is a passive, submissive creature and her place continues to be ‘behind the curtains’.

A massive change can be brought about with making of gender-neutral laws and legal processes women-friendly to make the legal remedies helpful and thus eliminating the fear of humiliation and shame for the victim in filing a complaint and seeking justice.

Aditi Shekhar

I'm currently a 2nd year law student at Jindal Global Law School, Sonipat. I absolutely love playing basketball and reading about International Affairs. Apart from this, I am very passionate about public speaking and MUNing. Also, a big time foodie! Feel free to contact me, if you ever wish to have a fruitful discussion about politics or binge watch serials on Netflix.
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