Toward a Just Family Law

The essays start out with a work profile of Professor B. Sivaramayya to pay tribute to his scholarship on questions surrounding inequality and discrimination and the intellectual debt owed by scholars to him. The books of Sivaramayya cited in the introduction include Women’s Rights of Inheritance in India: A Comparative Study of Equality and Protection (1975), Inequalities and the Law (1984) and Matrimonial Property Law in India (1999). Readers interested in any of these subjects are advised to read the editor’s reviews for an insight into Sivaramayya’s works.

The first essay of the collection of essays entitled Inheriting Modernity, may be set apart from the other essays in the collection as it looks at family law from the perspective of religious intolerance in Christianity, Islam and Hinduism—towards others—others of a different religion or others of the same religion—‘an intolerance that finds its ultimate justification in religion itself.’ By way of illustration of the religious intolerance in Christianity, Vasudevacharya, the author of the first essay, discusses the violence unleashed by Christians against one another during the Reformation period, which provoked the thesis that religion’s role should be excluded from the public sphere and confined to the private life of the individual. He cites influential writers of the time such as Locke to show the indignant response to the human suffering unfolding in countries such as France over the issue of religion. He also notes that Protestantism’s individualistic character with its belief in the right of the individual to reach his or her own interpretation of scripture, independent of an external authority supported the distinct demarcation of the spheres of religion and civil government.

In Islam, the author notes that the classical commentators saw the world in terms of a radical dualism. The world was divided into two exclusive spheres: Muslims and unbelievers, ‘the land of Islam’ and the ‘land of disbelief’. The commentators understood jihad to be a religious obligation on the part of the faithful to fight all unbelievers until the latter chose either to accept the superior religion of Islam or to submit to it and live under its jurisdiction in the state of humiliation as a ‘protected person’.

The author notes that in contrast to Christianity and Islam, in Hinduism the problem of inequality and intolerance does not find its expression directed primarily against the members of other faiths or against the members of one’s own faith who hold a different theological position, rather the problem of inequality and intolerance is directed inwards and downwards, towards those at the bottom of the social hierarchy on the basis of caste.

The purpose of this first article is to argue, not against religion, but against the inequality and intolerance which religion legitimizes. Vasudevacharya notes that the western ‘secular solution’ may not provide the sole answer to the problem of intolerance. ‘Something else is required, and that is the removal of the religious causes of intolerance through reinterpretation of the source texts, in order to highlight the post-Enlightenment, but now universal, values of liberty equality and tolerance. This first essay thus, brings religion into the realm of the ‘personal’, that is, family law.

The next few essays relate to the role of women in marriage in India. In ‘Saving Custom or Promoting Incest? Post-Independence Marriage Law and Dravidian Marriage Practices’, Patricia Uberoi considers the process of the enactment and amendment of the ‘prohibited relationships’ sections of the Special Marriage Act, 1954 and the Hindu Marriage Act of 1955 to draw attention to a ‘gender’ dimension of the contemporary legal regulation of marriage which is not generally seen as meriting feminist scrutiny. The author notes that in North India the rules of exogamy require not only a ban on marriages within the localized patrilineal descent group but sometimes extend this prohibition to cover all co-villagers. In South India, intra-village marriage is generally permitted. Thus, the author, like many economists, draws attention to the role of north-south regional differences in respect to a range of indicators of social development, gender equity and distributive justice in marriage.

In ‘Divorce at the Wife’s Initiative in Muslim Personal Law: What are the Options and What are their Implications for Women’s Welfare?’ it is noted that there is little information about the reasons for divorce in Islamic law. Sylvia Vatuk notes that case narratives in family court petitions as well as her own interviews suggest that domestic violence, dowry disputes, and sexual jealousy are some of the major issues associated with marital breakdown in Muslim marriages. The essay goes on to discuss the Dissolution of Muslim Marriages Act, 1939 (DMMA) and notes that the specific purpose of the DMMA is to meet the needs of women whose husbands refuse consent to a divorce or whose whereabouts are unknown. The author points out that women-initiated divorces or khul, which have received little or no attention from other scholars, are extremely common in the parts of India where the author has conducted her research, namely, Hyderabad and Tamil Nadu.

‘Hindu Conjugality: Transition from Sacrament to Contractual Obligation’ by Flavia Agnes explores judicial decisions on the notion of restitution of conjugal rights. Historically, it may be noted that the practice of allowing suits for the restitution of conjugal rights originated in England under peculiar circumstances and was transplanted from England into India; this practice has no foundation in Hindu law. Certain Indian judgments have held that the remedy of restitution of conjugal rights is violative of the right to privacy and human dignity guaranteed by Article 21 of the Constitution. The author critiques the Hindu Marriage Act, 1955 in which the restitution of conjugal rights has been retained in section 9 and in which, under the premise of equality, the right has been extended to women. The author notes that the superficial notion of equality only served to strengthen gender inequality between the husband and wife within a society steeped deeply in patriarchal values. For instance, both men and women were granted the right to claim maintenance from each other, under sections 24 and 25 of the Act. While a basic inequality between men and women existed within the scheme of inheritance rights in the form of the Hindu Undivided Family property through which a male gets a share in the family property by birth, the Hindu woman was placed under a legal obligation to maintain her husband. While an 18 year old boy is not entitled to claim maintenance from his father on the ground that he had reached the age of majority, and hence, is capable of earning his own livelihood, an adult male is granted the privilege of exercising the choice of remaining unemployed and claiming maintenance from his employed wife.

The second category of essays in the collection focus on the roles of women in the family from a labour perspective. In ‘Wives and Whores: The Regulation of the Economies in Sexual Labour,’ Prabha Kotiswaran attempts a ‘radical epistemic break within the field of a family law’ by dealing with sex work, ‘a worthy “dangerous supplement” to the primary focus of much family law scholarship, namely, the family, typically articulated in reference to the monogamous, heterosexual marriage.’ In the first part of the essay, she proposes three frameworks drawn from socialist feminism within which to explore the economies of sexual labour inherent in marriage and sex work. In the second part of the essay, the author reflects on the blind spots of feminist theory, ‘which leads to the invisibility of sex work as a form of labour.’ In the third part, the author studies the implications of treating sex work as a form of labour.

The basic framework of the article is the argument that sex work and marriage form two ends of the continuum along which women sell sex for consideration and the law has an important role in maintaining the poles of the continuum. The author notes that middle ground feminism supports the rights of sex workers but not the right to sex work; it supports empowering practices within the sex industry but not the institution of prostitution itself; it acknowledges the agency of sex workers but is at a loss to comprehend the nature of labour involved in sex work. The author opines that politically, middle ground feminism leads to bad results for sex workers. In the author’s view, there are three assumptions of feminist theory which explains its inability to consider sex work as a form of labour. She notes that much feminist work on sex work lacks a theory of sex so that the default position favours mutual, affective, heterosexual, monogamous, marital sex over any other sex. Second, due to the influence of radical feminism on debates surrounding sex work, much feminist theory on sex work ignores the continuum along which women sell sex for consideration, so that sex work is considered to be more worthy of intervention that marriage, unless, of course, marriage involves domestic violence. Third, feminist theory on sex work has a fairly problematic relationship with the material dimensions of sex work in terms of a theory of causation. The author blames family law for women entering into sex work, and she studies examples of married women from different economic strata of society entering into sex work.

Digressing from the role of women as labour, the next essay studies the role of women in marriage and explores their freedom in the institution of marriage and that of same sex couples in India. ‘Sexuality, Freedom and the Law’ by S.P. Sathe surveys the laws which tend to control the sexual choices of women and of persons with homosexual orientations. The author notes that if development of sexuality is to be recognized as part of the fundamental right to life and personal liberty, then such repressive laws either need to be repealed or differently interpreted by courts. The article examines the legal curbs on sexual behaviour by examining the law of rape and other penal provisions against sexuality, the law regarding homosexuality, and coercive methods of birth control.

The author notes that the legal definition of rape is narrow and does not take in various kinds of indignities such as stripping and abuse of genital organs which a woman may suffer. Penile penetration is necessary to constitute the offence of rape under Section 375. After discussing Indian court rulings on what constitutes rape, the author notes that the legal stranglehold on the sexual choices of the married woman is not restricted to the provision relating to marital rape. Section 497 of the Indian Penal Code takes away from a woman her right to consent. The section renders a man who has sexual intercourse with a married woman without the consent or connivance of her husband guilty of adultery. The consent of the woman has been accorded no legal significance. The section punishes only the man who has sexual relations with a married woman. Sexual relations of a man with an unmarried woman or a divorcee or a widow are not punishable. The author notes that the section is clearly one that treats the woman as the property of her husband.

In terms of homosexuality, the author notes that section 377 of the Indian Penal Code makes homosexuality a punishable act. The author notes that while section 377 of the Indian Penal Code is a remnant of Victorian morality, in Britain, homosexuality between two consenting adults is no longer an offence. Regarding coercive methods of birth control, the author notes that since no democratic government can afford to undertake mass sterilization, recourse is taken to tokenism. One such tokenism is to make the two –child norm a condition for eligibility for access to certain elective offices or government service, and that too, only at the panchayat level and not at the State and Parliament levels. The author concludes:

The courts as sentinels of constitutional values have to guard against the infringement of these values at all sites. It is those who make unpopular choices that require the protection of rights and courts. Conformity to the populist is obtained by social sanctions and the numerical force of the majority. Judges do not need to add to the numbers.

In the next article ‘Family, Work and Matrimonial Property: Implications for Women and Children’, Kamala Sankaran notes that B. Sivaramayya’s book Matrimonial Property Law in India (1999), being the first comprehensive study of the subject in India, noted that the disproportionate holding of assets occurs primarily for three reasons:

(1) Law and policies of the states do not recognize ‘domestic work’ as ‘productive work’ (2) Nature and nurture burden women with bearing and rearing of children. They are frequently forced to give up their careers to look after their homes. (3) Even when women take up jobs, they are confined to relatively low-paid ones. The author of the article explores these three themes and examines the gendered nature of work and the implications this has for women’s and children’s rights in matrimonial property.

The author notes that the importance of wealth, in the sense of property ownership, to a person’s quality of life cannot be underestimated. Access to and control over property is a vital factor that determines a person’s standard of living, avenues of future income and sense of economic security. Owning a field of one’s own is not important for the family alone as a unit but particularly for the woman. Her social status and well-being are directly connected to this ownership. Ownership of land by women may not necessarily lead to improved economic status. Often decision making over the land is in the hands of men. However, it has been noted that women who have property are given greater respect and looked after better by their relatives. The author notes that the extent to which women’s labour within the household and outside is rewarded with wages is also important given the manner in which household income is spent. Women’s earnings often go towards meeting food and other basic need of family members. Giving control over this income/property and thus also a voice in decision making may be beneficial not only for the woman but other members of the family too.

Ownership of property is primarily obtained through inheritance though it may also be acquired through acquisition of savings out of one’s earnings. The manner in which the property of spouses is controlled and its ownership determined, during marriage and at its dissolution, lie at the core of the debate over matrimonial property. The author notes that in the regime of matrimonial property that exist in most communities in India, spouses continue to treat the property they bring into the marriage as their separate property. The valuation of the matrimonial property that may take place at the time of the death of the husband or at the time of the dissolution of marriage follows the ‘separation of property’ model. As a result, for many women, the initial corpus of wealth that they have at the time of marriage together with accretions to their property that are made by their own effort or through gifts or inheritance, alone constitute the property over which they exercise ownership at the time of the dissolution of marriage.

The author notes that marriage not being an ‘economic partnership’ results in the limited capacity of the wife to claim rights over the property of her husband at the time of divorce. This has profound implications for the rights of the wife over matrimonial property. Assets such as the matrimonial house or movable assets purchased by the husband are treated to be his exclusive property. The contribution of the wife in creating his savings in the first instance through performing unpaid household work is not a relevant factor in India. The author notes that marriage, for the woman, is an ‘economic arrangement for life’ and failure of the marriage often leads her into a life of poverty and dependence.

Women are often to be found in the lowest paid jobs that are repetitive, and often replicate the kind of work they perform at home. Thus domestic workers, who are invariably women, perform for remuneration the work they undertake within their own households. The author notes that economics and law must inform each other in order that a real and correct picture of the contribution of women’s work to the well-being of the family is incorporated in a matrimonial property law in India.

The third category of essays deals with the law of inheritance and succession and includes the law relating to adoption. ‘A Psychological Critique of the Law of Adoption in India, by Amita Dhanda notes that taking a child in adoption is distinct from giving birth to a child, which fact needs to be acknowledged in policy and law. In ‘Paternalistic Law, Autonomous Child and the Responsible Judges’, Archana Parashar discusses the concept of ‘Best interests of the child’ and points out the drawbacks of this concept in India. She notes that family law has endorsed the cultural construct of the child as a vulnerable subject because of the natural immaturity of the very young human being, and entrusted the judges with the task of deciding what is best for the child. The author notes that judges are not particularly well-informed about the historical origins of the concept of the best interests of the child. The judges do not have access to the services of trained social workers or child specialists and therefore must rely on their own skills to ascertain what is required. Frequently, the judges take on the task of counselling the parents and speaking with minor children in their chambers. In this regard, the author notes that it may be of interest that the historical origin of the concept of Best interests of the child establishes that the concept was developed by the judiciary and adopted by the legislature as a means of keeping the law in step with the changing ideologies of family and marriage. The specific changes in the marriage laws of England (allowing divorce) gave rise to the demands by women that their parental rights ought to be recognized in law. The unquestioned rights of the father therefore came to be juxtaposed against the gradual recognition of the mother’s rights.

As noted by the author, in India, the transfer of laws from England is a function of colonization and the correspondence between these laws and societal developments is obviously lacking. Indian courts in the 21st century are still applying the legislative ideas that are a few hundred years old. Justice demands that the concept of ‘Best interests of the child’ has to remain an open category, interpreted contextually. This context would take into account how the child was brought up before separation, it would avoid assuming gender parity, it will acknowledge the true cost of child care and the mother’s share in bearing that cost and reach a conclusion that would be socially just. Succession Laws and Gender Justice is by Poonam Pradhan Saxena. The legislature and the judiciary in India are the primary institutions entrusted with the task of correcting the imbalance perpetrated on the disadvantaged section of society by outdated laws. Property is one of the important endowments or natural assets to accord opportunity, a source to develop personality, to be independent and a right to equal status and dignity of a person. Therefore, the state should create conditions and facilities conducive for women to realize the right to economic development, including social and cultural rights.

In India, agricultural land forms the bulk of the property. In most of the agricultural and tenancy laws, women have been denied the right to succession. The discernible reason in support of this denial seems to be to maintain the unity of the family and to prevent the fragmentation of the land, agricultural holdings or diversion of tenancy rights. Saxena notes that these reasons have to be seen by courts from the angle of the economic effect they have on women and not merely from the point of view of a family or its unity.

The last essay in this category, ‘“Bargaining” Gender Equality and Legal Change: The Case of India’s Inheritance Laws’ by Bina Agarwal deals with how for a more gender equal direction, it is necessary to improve women’s bargaining power with the state.

A number of factors are likely to determine women’s bargaining power, not least of which are women’s group strength and cohesiveness and the socially recognized legitimacy of their claims. The article notes that women’s collective functioning and sense of group identity are likely to be critical elements in affecting change towards gender equality, both by giving weight to women’s claims and by challenging disabling norms and perceptions.

Having examined in brief this collection of essays on family law, readers are recommended to study in more detail the concepts and nuances emerging from this academic and serious work to fully appreciate the changes in family law that have taken place and that are still required to make a more equitable society for all.

Rohini Rangachari is a lawyer based in Delhi.