Indian Laws And Gender Bias: Loopholes That Disadvantage Women

As per the National Commission of Women, there was an increase of 46 per cent in complaints of crimes against women in India in 2021. Although, it is widely believed by experts that the intensity of the hike is essentially due to more women willing to report the crime. We are in a constant state of evolution, vociferously demanding the country to be a safer place for women.

Along with social reforms, cultural evolution and economic empowerment, our society needs laws and provisions that can catalyse change. It would be puerile to say India’s judicial system doesn’t support gender justice, but it would also be benighted to say that our laws leave no room for the lack of it. The same was witnessed when the nation waited a long vexatious wait, to see the perpetrators of the Nirbhaya case receive judgement, as they kept buying time by exploiting the loopholes in our system.

The sheer number of issues that our society needs to work on, makes it impossible to wake up one day and expect to have perfected the equilibrium. It’s a long, tiresome struggle to be woke ourselves and wake up the rest of society to see the desecrating impact of gender injustice. This is exactly why we as a nation should constantly be making amendments and reforms wherever required.

I spoke to Mohika Jain, an advocate from New Delhi about laws in India that do not benefit women and she was able to give her insights into the nuts and bolts of our judicial system.

Gender and guardianship of a child

In India, when the Hindu Minority and Guardianship Act, 1956 came into being, fathers were providers and mothers were nurturers. There was a significant gap between the education and professional capacity of the genders and to secure the future of the child, natural guardianship was bestowed upon the father.

Section 6 of the Hindu Minority and Guardianship Act, 1956, states, “The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of their property. The mother is the guardian after the father and is the first guardian in case of an illegitimate child.” The natural custody of a minor under the age of five is with the mother. This section palpably makes for gender bias, especially in today’s time and age.

In the present day, that reason has become redundant in many sections of our society. Ms Jain explains, “Today, the courts understand that and the custody is given to the mother or father, after carefully analysing each case.”

However, the act in itself gives superiority to men and an amendment—considering 66 years is a long time for things to change socially—is required.

Prohibition of child marriages remains a grey area

Our judicial system ‘prohibits’ the marriage of any girl under the age of 18, that is before she acquires an adult status. However, the marriage is ‘voidable’, not naturally ‘void’. According to the law, the onus of seeking the decree to nullify the marriage falls on the girl and she must make it void, up until two years from gaining major status. While a minor, the onus falls on the girl’s guardians, who are often the people who got her married in the first place, thus making it difficult to make a marriage void.

Ms Jain points out, “Child marriage is mental harassment of the child. A young girl is not prepared for the responsibilities of a marriage at a time in her life when she should be focused on her education. It also leads to physical and mental health issues.”

Even though Indian laws don’t support child marriage, the socio-economic factors drive many families to get their daughters married off. There have been several thousand interventions that stop child marriages from taking place.

This mainly happens as many child brides don’t even have access to the required documents to prove their age. The 205th Law Commission Report on the Proposal to Amend the PCMA 2006, and the Report on Prevention of Child Marriages in The State of Karnataka by a committee headed by Justice Shivraj V. Patil suggests, “changing the status of child marriage from voidable to void, to deter these marriages.” Having said that, these suggestions of amendments recognise the legitimation of children born out of such marriages and provide maintenance to the girl.

Can a minor girl even give informed consent?

Section 375 of Indian Penal Code (IPC), 1860 on ‘Rape’ has an ‘Exception’ which states, “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

Ms Jain explains, “Girls who were married below the age of 18 are not mature enough to give informed consent. They are often not aware of precautions, contraception and the implications of teen pregnancy. Owing to their young age, they do not have adequate understanding to protect their sexual and reproductive rights.”

Marital Rape

Due to such a corresponding social mindset, many women are forced to participate in sexual activity by their husbands at an immature age. We are in the middle of reformation as laws are being reconsidered by experts and citizens. The demand to criminalise marital rape in India has opened up a dialogue about the exception of Section 375 of IPC. However, we are still not there.

Ms Jain points out, “It is very difficult to prove marital rape in court unless there have been physical signs of violence.” It is very difficult to prove if it was forced, especially because laws and our society naturally assume marital consent. She says, “Even in terms of ways of establishing sexual intimacy, a woman, married or not, has the right to refuse consent. One can show evidence of violence, force, and even prove that the abuser has a violent personality to strengthen their case. Seeking the services of a counsellor can also help one make a good case if the professional can help you prove your stance.”

Sexual assault of a separated wife has lesser punishment

According to Section 376B of IPC, a man having non-consensual sex with his legally separated wife does amount to rape. However, the punishment for the same is between two to seven years, which is much lesser than the maximum punishment for rape otherwise.

The punishment is decided based on how rigorous the crime is, and this section, unfortunately, shows that sex with a separated wife is clearly considered less traumatic.

Ms Jain points out, “There are several loopholes in our judicial system that leave room for abuse. Unfortunately, it often comes down to putting energy and resources into building a strong case for yourself.” Gender justice isn’t a dish served easy in our society.

*The opinions mentioned by the writer are her own.

Also Read: 46% More Crimes Against Women Reported In India in 2021