Gender-based laws: a double-edged sword – UPSC GS1

  • The Supreme Court’s notice to the government regarding Section 497 of the Indian Penal Code (IPC), relating to adultery laws, has brought dated assumptions about gender to light
About the provisions of the law:
  • The law allows the husband to initiate criminal proceedings against his wife’s lover
  • It does not punish his wife since it presumes that only a man can seduce a woman into a sexual act
  • Also, it is the husband who has suffered due to the sexual relationship of his wife, carried out without his consent
  • At the same time, the wife is not protected from similar behavior committed by her husband
  • The problem with this law is that it treats men and women differently
  • It perpetuates the notion that women are somehow naive, gullible, and lack the agency a man possesses
Is this the only law doing discrimination? (NOTE: All these are very good examples which can be used in answers and Essay)
  • The law criminalizes consensual sex between minors as rape committed by the boy
  • Women are legally entitled to maintenance from their father until they get married, while boys are only allowed this until they are 18
  • If a woman dies without a will, the Hindu inheritance laws put the rights of her husband’s heirs above those of her parents
  • Women cannot be jailed for not filing their income tax
  • Marital rape is considered an oxymoron
Provisions related to Women’s security:
  • In the light of its failure to provide security, the state has resorted to protecting the interests of women through ad hoc provisions. These have proved to be counterproductive
  • Example: The recent legislation mandating paid maternity leave of 26 weeks and crèche facility in companies hiring more than 50 employees
  • The law intends to benefit working women, but the second-order effects of the piece of legislation will likely be that firms will hire fewer women, and pay those they hire less salary to compensate for the maternity benefits
  • The law furthers several stereotypes as well—that all women want to have babies, that all women want 26 weeks of paid leave, that it is only the woman’s job to take care of the new born.
State has used the law to perpetuate cultural practices
  • If relationships are abusive, it should be easy for the parties to leave them
  • But till as recently as September 2017, the Hindu Marriage Act required that even couples seeking divorce through mutual consent demonstrate that they had tried to work on their marriage
  • They should wait for at least six months after they had first filed for divorce
  • There is, however, still no provision for divorce on grounds of ‘irretrievable breakdown of marriage’—a standard practice in other countries
Way forward
  • In a civilized society, physical strength should not determine your options in life
  • In the West, more social progress on gender equality has been made because women are relatively freer to live independent lives
  • It’s time to remove from the law all privileges and disadvantages that are based on gender.

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