Legislations stemming from an orthodox past

A child born shuns it’s the umbilical cord, as it begins a life of freedom, but now is clamped by the iron chains of patriarchy.

Patriarchy holding it’s firm grip on society, has blotted our lives forever.

This institution has become a symbol of human evolution, and hence, any power that strives to break it, suffers the wrath of its protectionists.

Misogyny is only a sentiment embedded within patriarchy, that allows men to ascend to the throne of superiority.

The Indian statutes are not created in vacuum and they too bare the brunt of our primordial mindset. They are not free from the blotches of this system, and are a constant reminder of our failure in imbibing the constitutional ideals laid down in 1950.

Studying the Hindu Marriage act closely, one finds the human mind drawn to the decaying situation of women.

Section 6 of Hindu Minority and Guardianship Act (1956)  (states that, “ The natural guardian in the case of a boy or an unmarried girl is the father, and after him, the mother.”

Even though, through various judgments, the Courts have laid down that the word “after”, should not be construed to demean women, yet even in present times women have a secondary roles and men/fathers are the first ,preferred natural guardians.

In the case of Gita Hariharan v RBI, the court states that the word “after”, “does not necessarily mean, after the death of the father, it means, ‘in the absence’ of, be it temporary or total apathy of the father towards the child”.

This “liberty” of 1999, is a form of “subjugation” in 2020.

A woman, with the consent of her husband, and only if he is incapable or unwilling to contribute to the upbringing of the child, can assume the role of a guardian.

If money and education were the pre- defined standards for granting guardianship, then the law and society have travelled far from it.

Women of today are accomplished and many are able to raise their children independently, not just in the absence of their husbands, but even when they continue to be married to them.

Contrary to the above, the guardian of an illegitimate child is his mother, and then the father.

A sense of equality seems to prevail in this section, but the truth is far from it.

The illegitimacy of the child is determined by the last name he carries. This last  name is a mark of his ancestry, traced through his father’s line.

The child is tainted with the tags of “illegitimate” and “bastard” in the society.

His burden is solely borne by his mother.

Men, very smoothly have shed their skin of “impurity”, whose blanket the woman adorns forever.

According to the National family health survey in 2016, 60,097 mother-child pairs were studied. 27% women get married before they turn 18, and 31% bare children while they are still minors.

The childhood of these little girls is snatched away, and tied to the holy institution of matrimony. Even before they open their eyes to the workings of the world, they are on their journey of motherhood.

The one who is deemed capable of raising a child with the values and virtues of life, is it not ironical that she is still considered in need of a protector, who is none other than her husband, who in all possibility is a minor himself, trapped in the shackles of patriarchy?

Words in the legislation, though just one or two in number, reflect an ancient thought ingrained with male correctness and female immorality.

Section 18(2)(e) of the Hindu Adoption and Maintenance Act ( 1956) uses the word, “concubine”, but no other section refers to a concubinator or a male concubine.

The man, in an intimate relationship, remains a man , but a woman becomes a concubine. She is not “living” with him, she is “kept” by him.

Concubine is an English translation of the Hebrew word “pilegesh”, which according to Professor Susanne Scholz is “ (mostly), a sexually trafficked girl in life-time sexual bondage to produce progeny to her master.”

S.25 of Hindu Marriage Act (1955), denies maintenance to a wife if she is “unchaste”, but denies maintenance to a husband if he has “sexual intercourse with a woman outside wedlock”.

Chastity, morality are associated with only women, and their honour lies in the strong hands of their husband’s.  A woman’s sexuality has to be controlled by tethering her to the vows of marriage and her personality is judged by her celibacy.

A woman, after marriage, takes the name of her Husband, lives in the patrilocal set-up, and forms a part of his joint family, yet if we have a close watch on section 19 of Hindu Adoption and Maintenance Act, the duty to maintain daughter-in law after the death of her husband is vested in the father in- law, only if she cannot be maintained by her deceased Husband’s estate, followed by her own parents and children’s.

This again creates a paradox. A woman married, cannot demand maintenance from her father, under s.125 Criminal Procedure Code, but suddenly with the turn of events, she has to go back to her own parents first, for security.

In a country, where daughters are treated as parcels, and their eyes are shut even before they open them, the state through section 19 only exaggerates the sentiment of preference for a male child.

Our law is truly reflective of our society, but the society of our past. Alterations to law are more gradual than our dynamic culture which is ever-growing.

Men and women, though cut from the same cloth, are kept at different pedestals, with women always relegated to an inferior position.

Cries of feminism echoing throughout India is soaked by the legislations. The old, tough, hardened statutes muffle their voices and blur their intentions.