Abstract
This article is a study which intends to throw shades of light into the existing gender biased laws and how these biases are violating the sacred book of India, the constitution itself. The article covers the legal paradox that exists between the constitution and the various personal and general laws that are in the scope of marriage. The article covers how these legal paradoxes have been used by parties in legal battles to benefit themselves. This article also points out the various solutions which can be implemented to make the legal paradoxes from its existence and hence protecting the constitution and its principles.
Introduction
The early morning of July 24 started with a joke circulating all over the internet. A wife demands a flat, ₹12 Crore Alimony, and BMW from husband. Some are laughing at it. Some are nodding their heads in disappointment, some are arguing that it’s unfair and some are of the opinion that yes “ we also need equality”. Yes this is where all the root problems begin. EQUALITY. GIVEN TO ALL. Irrespective of gender said Art 14 of the Indian constitution. But the legal paradox, don’t search further just look at Art 15 (3) “Nothing in this article shall prevent the State from making any special provision for women and children.” The question arises on the topic even though the country has developed, societal norms have changed and society is ready and when the so called weaker section itself is asking for gender equality, IS IT FAIR TO HAVE DIFFERENT LEGAL PROTECTION JUST BASED ON GENDER?
Background
The answer to the question is based on the history of evolution of society. The laws came into effect in a period where there existed the practice that men will earn and women will do the house hold works and will take care of the family. Because of the same practice women always depended on husband for financial needs and to suffice her material needs. During that time there has also been acceptance that men is above the women and he controlled her. Basically, women was just a shadow of the husband who was not allowed to violate his orders and will be punished physically if violation happens. Then after the british rule the independent india understood that yes these social stigmas should change and the respected Ambedkar while drafting the constitution added Art 15(3). At that time due to the societal environment ld. Ambedkar failed to understand that he just added a legal paradox to one of the golden rule of constitution ie Art 14. But because of Art 15(3) women were safe guarded along with children from various injustices under the umbrella of various statutes that was empowered under the same art. And there is no doubt about that. But the times has changed and the personal environment also changed where the women is striving for equality and women are no longer shadows of men. Today, Man alone is not the evil of the society, women too are equal contributors. Now, the legal paradox arise in this context. Is it due to the lack of adequate changes to the laws or is the old practices barring from amending the laws.
Laws in question
The legal paradox at the heart of the matters can be observed under the big tree of marriage. The domestic violence Act and the personal maintenance laws has spawn the seeds of gender bias undermining the constitutional principles itself.
The Protection of Women from Domestic Violence Act, 2005
The act was enacted to provide protection to citizens who are suffering from domestic violence which is in fact necessary for the protection women who were subjected to the domestic cruelty. The specific part where it undermines constitutional principles are centered around the naming and scope of the act. When the scope of the act states that is to protect the citizens who are subjected to crueltly. Here, citizens are irrespective of gender. But name of the same act which covers both gender is gender biased undermines the constitution values shared under Art. 14. The victim of such a henious D.V on male is Atul Subash, a bengaluru techie who committed suicide based on false allegations and grounds by his wife. So, the fact that the gender bias language used in naming the same act is in violation of constitution.
Maintenance Law in India – An existing mirror of gender bias
Maintenance has been discussed in Sec 24,25 of Hindu marriage act, Sec 3(a) and 4 of Muslim women act, Sec 36,37 of special marriage act and Sec 36 of Indian divorce act. Even though all the laws are not specifically gender biased, when the courts in implementing the same has been gender biased and favoured the wives based on the historical assumptions where women was a mere home maker and the income has only been received from husband. But the courts has failed to update itself based on the time and still crucifying a specific gender without appreciating the growth of equality among the both genders undermines the constitutional principles.
Exploitation of the legal Paradox
Because of the reason that courts always favour women on cases related to maintenance, there has been constant exploitation of the same provisions that were made to protect both the genders have been seen regularly in the modern world. The courts has regularly failed to understand the innocence of men in most cases. The serious problematic approach of various judges in family issues are the fact that they prejudice that husband is the culprit in the same. And thus provide an order for men to give maintenance. But now lets say there has been a situation with gods grace court has found that men was innocent and wife created all the hustles. Still if the divorce is not mutual court will have to order man to pay the female. Where is equality? The courts always ask the women to be paid is due to the fact that they are unable to sustain themselves. But when it’s a same fact with men then one of the criteria court checks is his ability to earn. If court finds that hes capable boom. He wont be given a penny. But isnt it the same with wife, where she will be allowed to get paid her alimony.
The second is the fact that women exploiting it for financial benefit. The courts order self maintainable wife to earn by herself. But still makes the husband pay a reasonable amount. This practice is giving false information to the future generations and are spoiling the essence of marriage. Reason is that it is clearly showing that women, don’t worry you will be paid maintenance no matter what. So what do they do, they marry a random guy, live with him for some years and find a reason and divorce him. The monetary is based on his standard of live but not on the standard of her life before marriage. Just for financial needs the women has been exploiting the institution of marriage using the guard of law and its guardians.
What is the way forward?
The foremost system that is of necessity to over come gender bias is by changing the approach while allowing maintenance. The time is now to change the approach from giving based on gender to based on the financial need of the spouse. By changing approach both gender will be treated equally.
The second solution a clear set of guidelines based on which the maintenance shall be provided. Some of the guideline include already existing principles like duration of marriage, ability of opposite spouse etc. But the solution is based on strict adherence to all the specified guidelines. Removing permanent maintenance is also a solution that can be used to protect the constitutional principles.
The third solution is removing the gender bias in naming the statutes of law. Giving gender bias names itself is violation of Art.14. when the scope of the act it self is not gender specific by naming the act itself based on a gender is a pure violation of Art.14.
Conclusion
The gender biased laws has been exploited by various forces and the need to change them is now. The solutions mentioned above can definitely help in enhancing the society and its view on marital maintenance
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WRITTEN BY Alexander S
