Some time ago, Allahabad high court passed an unusual order awarding maintenance to a husband. The family court had rejected the husband's claim on the ground that he was an able-bodied man, capable of earning his own livelihood. The husband challenged this order in the high court.
On November 7, 2005, the high court allowed the appeal and ordered the wife to pay Rs 2,000 per month as maintenance to the husband, with the following explanation: "Since the husband is residing in his own house and has to incur expenses of his widowed mother, his responsibilities seem to be higher than that of the wife".
It seemed to be of little consequence that the wife had filed the petition for divorce in 1997, on the ground of cruelty and dowry harassment by her husband and his family. While the husband was rewarded with an order of maintenance, the petition filed by the wife was still pending.
In the context of the above ruling, we need to examine the illusion of equality underlying the provisions of the Hindu Marriage Act, which entitles a Hindu husband the luxury of being unemployed and then claiming maintenance from his wife.
How do such superficial notions of equality get validated? Which constitutional mandate or religious dictate prescribes such a perverse notion of justice? Ought not the principles governing family laws be equity and justice rather than a commitment to formal equality?
The notion of an obligation to maintain the husband is alien to our ancient family law system. Our legal systems functioned from a protectionist approach towards women and the obligation of maintaining the wife was cast squarely upon the husband within the prevailing scheme of marriage relationships.
The uncodified Hindu law provided for women's separate property. Rather than the prevailing system of dowry, ancient Hindu law validated the concept of streedhan or exclusive woman's property, to which a husband could not lay a claim.
Even Manu, the much-maligned law giver, had issued a warning: "Friends or relations of a woman, who, out of folly or avarice, live upon the property belonging to her, or the wicked ones who deprive her of the enjoyment of her own belongings go to hell"
Rather than progressing towards justice and equality, we seem to have lapsed further into an unbridgeable chasm of inequality. The neutrality approach within our matrimonial laws does not ensure gender justice. The confusion arises when our judiciary and lawmakers link sameness with equality.
The principle of 'sameness' can be termed as 'formal equality' while the principle, which provides safety and security to a historically disadvantaged class, can be termed as 'substantive equality'.
The focus of a substantive equality approach is not simply with the equal treatment of law, but rather with its actual impact. Its objective is the elimination of the substantive inequality of disadvantaged groups.
It takes into account inequalities of social, economic and education background and seeks the elimination of existing inequalities by positive measures. The focus is not on sameness or difference, but rather on disadvantage. Historically, women have been a disadvantaged group in need of compensatory treatment.
Failure to take difference into account will only serve to reinforce and perpetuate the difference and the underlying inequalities. In this approach, rules or practices that treat women differently from men can be upheld, if they are designed to improve the position of women.
The provision for additional safeguards and special privileges for women is grounded in clause 3 of Article 15 of our Constitution.
The 1953 Bombay high court ruling in Motyiram Dattatrava versus State of Bombay explained this provision in the following words: Article 15(3) must be viewed as a conscious shift towards substantive equality.
It must be interpreted as part of the equality provisions as a whole, so that differential treatment authorised by this article is not an exception to, but a part of equality. This approach advocates a substantive model of equality, in so far as difference and special treatment do not preclude equality, but rather are embraced within it.
The premise of gender justice cannot be gender neutral. Further, it will often be explicitly critical of a paradigm that historically excluded women's perspectives from legal thought. Gender sensitivity, however, should not be viewed as lacking legitimacy because of an inappropriate bias.
Rather, it is premised on the need to expose and correct the existing bias. A gender-sensitive approach seeks to correct the unfairness in the legal system that has excluded attention to circumstances of women's lives even on issues that intimately affect their lives.
Law has developed over time in the context of theories and institutions which are controlled by patriarchal values and reflect its concerns. Historically, law has been a public domain and its focus has been on public concerns.
Traditionally, women belonged to the private recesses of society, in families, in relationships controlled and defined by men. Hence there is an urgent need to connect the principles of law to the ground realities of women's lives and unravel the various strands of the complex and diverse litigation processes.
This complex terrain of laws and codes which underwrite them have to be written over the lives of poor, illiterate and historically disadvantaged women of our country to whom the legal domain appears distant, intimidating and imposing.
This journey, which connects the regal edifice of law and legal structures to lives of marginalised women, is to my mind feminist lawyering.
The writer is a women's rights lawyer.
http://timesofindia.indiatimes.com/articleshow/msid-1927620,curpg-1.cms
On November 7, 2005, the high court allowed the appeal and ordered the wife to pay Rs 2,000 per month as maintenance to the husband, with the following explanation: "Since the husband is residing in his own house and has to incur expenses of his widowed mother, his responsibilities seem to be higher than that of the wife".
It seemed to be of little consequence that the wife had filed the petition for divorce in 1997, on the ground of cruelty and dowry harassment by her husband and his family. While the husband was rewarded with an order of maintenance, the petition filed by the wife was still pending.
In the context of the above ruling, we need to examine the illusion of equality underlying the provisions of the Hindu Marriage Act, which entitles a Hindu husband the luxury of being unemployed and then claiming maintenance from his wife.
How do such superficial notions of equality get validated? Which constitutional mandate or religious dictate prescribes such a perverse notion of justice? Ought not the principles governing family laws be equity and justice rather than a commitment to formal equality?
The notion of an obligation to maintain the husband is alien to our ancient family law system. Our legal systems functioned from a protectionist approach towards women and the obligation of maintaining the wife was cast squarely upon the husband within the prevailing scheme of marriage relationships.
The uncodified Hindu law provided for women's separate property. Rather than the prevailing system of dowry, ancient Hindu law validated the concept of streedhan or exclusive woman's property, to which a husband could not lay a claim.
Even Manu, the much-maligned law giver, had issued a warning: "Friends or relations of a woman, who, out of folly or avarice, live upon the property belonging to her, or the wicked ones who deprive her of the enjoyment of her own belongings go to hell"
Rather than progressing towards justice and equality, we seem to have lapsed further into an unbridgeable chasm of inequality. The neutrality approach within our matrimonial laws does not ensure gender justice. The confusion arises when our judiciary and lawmakers link sameness with equality.
The principle of 'sameness' can be termed as 'formal equality' while the principle, which provides safety and security to a historically disadvantaged class, can be termed as 'substantive equality'.
The focus of a substantive equality approach is not simply with the equal treatment of law, but rather with its actual impact. Its objective is the elimination of the substantive inequality of disadvantaged groups.
It takes into account inequalities of social, economic and education background and seeks the elimination of existing inequalities by positive measures. The focus is not on sameness or difference, but rather on disadvantage. Historically, women have been a disadvantaged group in need of compensatory treatment.
Failure to take difference into account will only serve to reinforce and perpetuate the difference and the underlying inequalities. In this approach, rules or practices that treat women differently from men can be upheld, if they are designed to improve the position of women.
The provision for additional safeguards and special privileges for women is grounded in clause 3 of Article 15 of our Constitution.
The 1953 Bombay high court ruling in Motyiram Dattatrava versus State of Bombay explained this provision in the following words: Article 15(3) must be viewed as a conscious shift towards substantive equality.
It must be interpreted as part of the equality provisions as a whole, so that differential treatment authorised by this article is not an exception to, but a part of equality. This approach advocates a substantive model of equality, in so far as difference and special treatment do not preclude equality, but rather are embraced within it.
The premise of gender justice cannot be gender neutral. Further, it will often be explicitly critical of a paradigm that historically excluded women's perspectives from legal thought. Gender sensitivity, however, should not be viewed as lacking legitimacy because of an inappropriate bias.
Rather, it is premised on the need to expose and correct the existing bias. A gender-sensitive approach seeks to correct the unfairness in the legal system that has excluded attention to circumstances of women's lives even on issues that intimately affect their lives.
Law has developed over time in the context of theories and institutions which are controlled by patriarchal values and reflect its concerns. Historically, law has been a public domain and its focus has been on public concerns.
Traditionally, women belonged to the private recesses of society, in families, in relationships controlled and defined by men. Hence there is an urgent need to connect the principles of law to the ground realities of women's lives and unravel the various strands of the complex and diverse litigation processes.
This complex terrain of laws and codes which underwrite them have to be written over the lives of poor, illiterate and historically disadvantaged women of our country to whom the legal domain appears distant, intimidating and imposing.
This journey, which connects the regal edifice of law and legal structures to lives of marginalised women, is to my mind feminist lawyering.
The writer is a women's rights lawyer.
http://timesofindia.indiatimes.com/articleshow/msid-1927620,curpg-1.cms