Every man, woman, and child has heard this epochal quote from Abraham Lincoln’s Gettysburg address – “government of the people, by the people, for the people shall not perish from the earth”. Democracy is widely considered to be exactly this – representative of the concerns of all people, a utopia where everybody has a voice. Consequently, the loudest voice is the most represented, resulting in laws that are skewed towards the most vocal majority. This is especially true when it comes to laws that impact women – legislations were drafted predominantly by men at a time when society and patriarchy were practically synonymous.
Despite some progress towards incorporating feminism in our society, regressive laws remain in force. There is still stiff opposition against amending these laws, as the patriarchal society still clings to the status quo and seeks to oppress women.
The prime example of this is marital rape. Sexual intercourse is considered the right of a spouse within a marriage. A husband is entitled to sex from his wife, and therefore, forcefully claiming sex is not criminal. Section 375 of the Indian Penal Code, 1860, makes a specific exception for husbands that rape wives, evidencing that consent is immaterial within a marriage. This entitlement to sex within the confines of marriage has catastrophic consequences. It is effectively a get-out-of-jail card for men to perpetrate heinous crimes with impunity. Shockingly, the exception states, ‘Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape’.
In some states, the age of consent is between thirteen and fourteen years of age. This horrifying legislation giving men inequitable power over their wives needs to be abolished in its entirety. This entitlement towards a spouse is also brought out by the incredibly regressive concept of restitution of conjugal rights in Hindu personal laws. A woman can be ordered by a court to cohabit with her husband. This is gender neutral, but plays out heavily in favour of men. This is not an enforceable order, and can constitute grounds for divorce at a later stage. This is an unfortunate vestige of colonial laws, which India retains despite the United Kingdom having abolished it in 1970, and must be repealed.
These patriarchal ideas also are problematic for men. The definition of rape is not gender neutral; it refers specifically to rape of a woman by a man. This discounts every other form of rape – rape of men by anybody, and rape of women by other women. Rape is not a gendered crime, though victims of rape are most frequently women. The stigma attached to a man that has been raped results in under-reporting of this crime. If the law doesn’t criminalise these shocking crimes, men don’t stand a chance of bringing their violators to justice. The definition of ‘rape’ has to be gender neutral.
This sexist trend continues to the crime of ‘adultery’ under Section 497 of the Indian Penal Code which is said to be committed by a person that has consensual ‘sexual intercourse with a person who is, and whom he knows or has reason to believe, to be the wife of another man, without the consent of that man’. By a plain reading of this law, it is clear that it regards a woman as the property of her husband. It regards any man that has sexual relations with a married woman as being a criminal.
It isn't the case that these regressive laws have gone unnoticed. In 2018, the Supreme Court observed that the law is anti-feminist in a 'grave and ostensible' way, and that a woman cannot be subjected to 'somebody else’s desire' with the consent of her husband. The government defended this pointless legislation by stating that it was in the interest of society and that stable marriages are ‘not an ideal to be scorned'. This is an absurd response given that stable marriages cannot be forced on people. It also cannot be the case that husbands cheating on their wives is kosher.
Inter-personal relations are complicated enough without the state imposing such grave consequences on consensual relations. It is not the place of the state to step into the private sphere and take away the agency of picking a sexual partner from any person, married or otherwise. The law relating to adultery is retrograde and illogical in modern times, and has to be removed.
Inheritance is a similarly fraught topic. Until recently, Hindu women were not allowed to inherit ancestral property. In 2005, when women were finally permitted to inherit it, it was only applicable to those women whose father expired after the year of amendment. It was only this year that this interpretation was set aside, permitting all women to inherit ancestral property. Muslim daughters continue to inherit half that of a Muslim son, provided they inherit jointly.
Personal law is premised on traditions, and constitute an exception to any civil code. This means that ancient sexist practices continue to be endorsed by the government in the name of tradition. Polygamy being permitted while polyandry or polyamory not having any legal recognition is one such law. Traditionally, certain communities have permitted their men to have several wives. This, when subsumed by law, is humiliating to a civil society. It grants men exclusive rights in a manner that causes severe distress to the pre-existing wife or wives. Rights of inheritance and of marriage should place both genders at par – inheriting equally, and marrying equally.
Women continue to be thought of as second-class citizens, and this manifests in the most peculiar ways. The age of consent for marriage is 18 for women but 21 for men. It is time to take a firm feminist stance against laws that are very evidently gendered and problematic, and move towards a society where men and women are treated as equals.
(Edited by Varsha Roysam)