Equality of Convenience – By Ishan Jain & Yash Prakash

Women are equal to men. There is virtually nothing which a man can do and women cannot. The said notion had been statutorily accepted in our country. The power equation in a marital relationship is dynamic in nature and there is no denying the fact that the socially constructed stereotypes and so-called physical/biological incapacity of women which earlier used to be a legal ground of discrimination no longer exist. 

The way of bestowing equality, which was taken away by certain practices, was to restore them by interpreting the law in a manner so as to be in consonance with Article 14 of the Constitution of India. 

The consequences of the same are here to be seen; women actually leading in all three organs of the State i.e. as legislators, as judges at the lowest to highest levels in hierarchy of Courts and in the executive like holding the post of chief secretary. It’s not so difficult to realise that the changes brought in yesteryears are bearing fruit.

Pt. Jawaharlal Nehru and  Dr Bhimrao Ambedkar introduced the Hindu Marriage Act (and a few other minor acts to protect women’s rights) with the vision to protect women from many bad practices which were prevalent in society at that time.  Even in the face of opposition from many sections of society and without caring about the political consequences of the move in the next elections,  the duo fought for the cause and that’s how we got the Hindu Code under which a woman can ask for divorce from her husband and claim maintenance, thereby getting empowered. 

Similarly after the Apex Court judgment declaring ‘triple talaq’ as unconstitutional, the current government took a huge step to change the life of the Muslim women by recognising that the practice of ‘triple talaq’ in the Muslim community is nothing but foul play by the men from that community under the guise of religious practice and the same doesn’t find mention in Quran, and enacted a statute and made it an offence. 

When gender equality is achieved in the said manner, it means equating the status of women to that of men. 

Contrast the aforesaid ways of restoring the status of women with the manner in which women centric laws are made, interpreted and applied. The idea of such laws like for dowry, rape, sexual harassment comprising stalking etc. being stringent was to recognise the menace attached with these evils and to see that the culprits are punished. The essence of these laws is to discourage men who resort to such dastardly acts and make women safe in society. These laws protect women but at the same time, they are not tools in their hands to be used against men. Law is not a tool to be used, it’s tool to achieve justice. 

On a similar footing are maintenance laws and their interpretation and application. There too the practice has been towards granting maintenance to women on the ground that they being dependent on the husband (who is a man) and that husbands have a duty to maintain them. A few judgments even go to the extent of holding that even a working woman is liable to be maintained by the husband. 

If one goes to the family courts of India today, one would find that among the abovementioned laws what is mostly agitated and argued is maintenance only. Furthermore, most of all that is adjudicated upon are maintenance applications. 

The objectivity has been lost. Law has been applied in such a manner to instil in men that women are actually dependent on them for all times to come. 

Section 125 CrPC Requires Broader Interpretation? 

Section 125 CrPC enable a wife to approach  the court for claiming maintenance from her husband in case of failure to pay the same. The said section further states that a ‘divorced wife’ is ‘wife’ within the meaning of section 125 CrPC. Thus, even after marriage ceases to exist, women would have to be maintained by her ex-husband till the time she remarries. 

Section 125 CrPC is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It is for this reason that even a daughter, like a son, is liable to maintain her parents. The law thus comes to the rescue of the destitute and prevents vagrancy. Once the intention of law is to prevent vagrancy and in the present era of equality, there is no rationale as to why Section 125 CrPC doesn’t give right to a husband to claim maintenance. In present times, it is not unreasonable to find instances where the husband is not working due to some disability, loss of employment etc. and the wife is working and earning money.  For example, if in these times of lay offs, a husband loses his job and his wife is fortunate enough to hold on to her job, then wife may very well refuse to maintain her husband there being no obligation on women to maintain their husbands. In a court of law the husband would never have a defence of sitting idle and not working.  

Why Gender Neutral Law?

The State has addressed the problem of inequality by passing laws w.r.t maintenance of wife. The law further casts an obligation on the father of a women to maintain her till the time she gets married. However, inequality against a woman starts from their own parent’s house right from childhood. If the pressure of studies and consequent taking up of any work/job is not put on the woman by her own parents, then the parents of such women are guilty of spoiling and curtailing the future and growth of women. The parents of the female child since her childhood are concerned about her marriage and try to program her in that manner alone. The idea is to inculcate in her that the real home of a female is her in-laws home and that husband is the one who has to take care of her. In the said quest only, the evil practice of dowry started. There are only social reasons that compel the parents of a girl to succumb to give dowry to getting their daughter married.  The very fact that for marriage, dowry is given even by mortgaging everything shows that the mindset must change at the parent’s home. If the girl is only there at her parents’ home till she attains the statutory age of marriage, then solutions to the problem of women can’t be found at her husband’s home. It is therefore high time that each girl child is made to study and work by their parents in the same way as a male child is. If any parent fails to comply with these minimum standards then liability must be imposed on those erring parents as well. Charity begins at home, so does equality.  

Thus, it is necessary that section 125 CrPC must be gender neutral as the problems of women start at their parents’ house and get even bigger at their husbands’ homes. In probably most cases, whether a woman is employed or not is due to her and parents’ commission or omission and the same is then carried forward as she depends on her husband’s and in-laws preferences on the same. If at the time of crises in the family, a woman is liable to be maintained by her husband, then if situation demands a husband should also be given the said right.  

The judgments that go on to say that even a working woman is liable to be maintained by the husband actually lends credence to the fact that law on one hand treats and aspires a women to be equal to men, and then completely surrenders her to  her husband.  The said judgments fail to take into account that the very idea that after marriage the woman belongs to her husband has already been rejected in Joseph Shine case (AIR 2018 SC 4898) where SC while declaring section 497 IPC (adultery) as unconstitutional held that women, unlike chattels, are not the property of man. Therefore, over dependency of the wife on husband for maintenance and to make out a living actually runs counter to the notion that women are not property of men. Dependency itself stems from the mindset of treating a wife as property. 

Complete absence of any liability on wife to maintain her husband and this tumultuous equality and complete silence on these aspects by women’s groups shows the mendacious nature of women’s activism for gaining equality. It is submitted that women and men are equal, i.e. wherever there is inequality of the treatment meted out to them the law would come to their rescue. However, the same would not and cannot mean that to achieve equality or to bypass men laws would be applied in such a manner so as to pull down men. In other words, if A scores 90 marks and B scores 80 marks, then proper way is to ask B to work harder and reach at or beyond 90 marks and not by asking A to score 10 marks less. 

Equality thus achieved would be in consonance with the Constitutional morality. 

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Advocates Ishan Jain and Yash Prakash are Partners at Suvigya Legal.

Disclaimer: The views or opinions expressed are solely of the author.