Hindu Marriage Act 1955 Archives

By Dheeraj Diwakar

“I measure the progress of a community by the degree of progress which the women have achieved.”

Dr. B.R. Ambedkar

Introduction

In 2004, Columbia University released a list of the world’s best top 100 scholars, and the list was topped by Dr. B.R. Ambedkar. He made enormous efforts to make sure that society follows a path of Liberty, Equality, and Fraternity. The same can be witnessed from his various writings and speeches.

The concept of caste is so deep-rooted in Indian society that whenever the name of Dr. Ambedkar comes up, the first image of him is that of a messiah of Dalits. But what a lot of people don’t know about Dr. Ambedkar is his fight for women’s empowerment and his pursuit of gender equality in all dimensions of national and private life. This short piece aims to highlight some of the main achievements and endeavours of Dr. Ambedkar for women’s equality in India

Ambedkar And Women’s Rights In Pre-Independence Era

Dr. Ambedkar was aware of the miserable conditions of women. He believed that women are the worst sufferers of the oppressive, caste-based, and rigid hierarchical social system. His main effort was to liberate Indian women from various social and religious ties and provide access to necessities which they were deprived of i.e., Education and Inheritance rights. He regarded education as the only tool for the emancipation of women. On 20 July 1942, while addressing the second All India Depressed classes women’s conference he said, “I shall tell you a few things which I think you should bear in mind. Learn to be clean; keep free from all vices. Give education to your children. Instill ambition in them. Inculcate in their minds that they are destined to be great. Remove from them all inferiority complexes.”

Ambedkar’s approach towards women was completely different from other social reformers i.e. Mahatma Gandhi, Jyotiba Phule, Ishwar Chandra Vidyasagar who tried to reform without questioning the social hierarchical order.

In the early days of 1928, a women’s conference was established in Bombay with Ramabai (Ambedkar’s Wife) as its President. About 500 women participated in Kalram Temple’s entry Satyagraha at Nasik in 1930. The number swelled up to 3000 women participating in the historic Mahad Satyagraha. He believed that family planning measures for women should be taken. In 1942, while serving as a labor minister of the executive council of governor-general he introduced a Maternity Benefit Bill. The bill aimed to provide maternity leave to women workers. In his journals i.e. Mooknayak and Bahiskrit Bharat, he made sure that the issues related to women get an equal place in it.

Hindu Code Bill

Hindu Code Bill is one of the most important initiatives made by Dr. Ambedkar to improve the miserable condition of women. Being the first Law Minister of independent India on February 24^th, 1949, he took an initiative and introduced the draft of the Hindu Code Bill in the Constituent Assembly. The bill aimed to release women from various social bondages created by the Hindu social order. The proposed legislation seeks to provide women with the Right to property and other legal rights which were prohibited by the Manu law. The Bill aimed to put men and women in equal places in terms of legal status. He argued that the ideals enshrined in the Bill have their origins in the Indian Constitution which promotes equality. The Bill was first delayed by the parliamentarians and was later rejected leading to Ambedkar giving his resignation from the post of Law Minister.

He introduced four Acts that were also incorporated in the Hindu Code Bill. The acts improved the conditions of women and strengthened their position. The list of Acts along with important provisions for women are as follows:

Hindu Marriage Act 1955: Section 5 of the Act increases the legal age of marriage for girls to 18 years. Section 17 of the Act provides punishment for bigamy. Provisions related to alimony and permanent maintenance have been provided in Section 25 of the act.

Hindu Succession Act 1956: Section 8 of the Act empowers the widow to adopt Son or Daughter. Section 14 ensures that the property of women will be her absolute property. Further, section 15 of the act makes sure that there would be a uniform succession to the property of a Hindu Female who dies intestate.

The Adoption and Maintenance Act 1956: Under Section 8 of this act, widows are empowered to adopt children. Earlier under Hindu law, they were not entitled to do so. Before this act came into force, daughters could not be adopted. Section 9 of the act makes it compulsory that the wife shall be consulted while carrying on any adoption.

The Hindu Minority and Guardianship Act 1956: Section 6(a) ensures that in case of custody if the child has not completed the age of five then the custody lies with the mother. Under 6(b), if the child has been born out of an illegitimate relationship, then the first natural guardian would be mother and then father. The act also empowers the mother to change a guardian of a child who has been appointed by the father.

Constitutional Provisions

Dr. Ambedkar worked as a Chairman of the Drafting Committee and is regarded as the Father of the Indian Constitution. In many of his speeches in the Constituent assembly, he debated for equal rights for women. His approach towards women’s rights played a significant role in ensuring that Women’s rights find a special place in the Indian Constitution. Some of the important constitutional provisions protecting women’s rights are,

Article 14: This article ensures equality for all citizens irrespective of Gender, Caste, Creed, Religion, and race.

Article 15: This article prohibits discrimination on the grounds of Religion, Gender, Caste, Creed, and Race.

Article 16: This article says that there shall be an equality of opportunity in Public Employment.

Article 23: This article prohibits Human Trafficking and Bonded Labour.

These were some important provisions related to women. Apart from them, many other articles protect the rights of women i.e. Article 39(a) and (d), Article 42, Article 51A(e), Article 243D(3), Article 243T(3), and Article 243T(4).

Conclusion

Even in the 21^st Century, the issue of gender inequality still finds its deep roots in Indian society. The condition was more critical in the pre-independence era and the early parts of post-independence. It was Dr. Ambedkar and some other handful of social reformers who came forward to lessen the plight of age-old sufferers i.e., Women. Interestingly, when the Hindu Code Bill was to be introduced by Ambedkar, numerous women opposed the Bill. The efforts made by Ambedkar with regards to Women’s equality haven’t been much recognized or if recognized get faded because of the title he carries i.e., Liberator of Dalits.

Author: Dheeraj Diwakar

Facts

The facts of the case were as follows: The appellant-husband upon failure of a business started subjecting the wife to constant harassment demanding money from her family, and on various occasions the father of the wife has given him approximately 77 lakhs. Further, the respondent had been subjected to physical harassment and sexual perversion. The appellant husband has committed forceful sex on numerous occasions – when she was sick and bedridden, when his mother expired and even in front of their daughter. She had also been subjected to unnatural sex against her will. Further, the husband was in an illicit relationship with the caretaker of the apartment. The family court had granted divorce on grounds of mental and physical cruelty.

Observations of the Court

The Division Bench while rendering its judgment observed that “sex in married life must reflect the intimacy of the spouse”, and in the present case, the sexual perversions the respondent was subject to was in disregard of her wishes and feelings. Further, the Division Bench observed that marital rape is premised on the patriarchal notion of the husband that the wife of the body owes to him. Such a notion, has no place in a modern social jurisprudence which insists on treating the spouses in marriage as equal partners.

The court recognized that “marital privacy” is connected to individual autonomy and any intrusion into this space would diminish this privacy. That a violation of bodily integrity is a violation of individual autonomy, which is protected as a fundamental right. Thus, the court recognized that “treating wife’s body as something owing to husband and committing sexual act against her will” is marital rape which is to be construed as an invasion of marital privacy. The Bench acknowledged that while marital rape is not criminalized in the Indian penal jurisprudence, that by itself does not deter the court from recognizing it as a ground for divorce. Marital rape essentially constitutes physical and mental cruelty, which is a ground for divorce under section 13(1)(i-a) of Hindu Marriage Act,1955 and Section 27 (1) (d) of Special Marriage Act, 1954.

Thus, the appeal was dismissed.

The Position of Law on Marital Rape

The Indian state is one among only 36 countries that refuse to bring marital rape under the purview of penal consequences. Section 375 of the Indian Penal Code, 1860 that defines rape categorically excludes instances of sexual intercourse by a husband with his wife who is aged above 15 years. The age of consent was later raised to eighteen years by the Criminal Amendment Act of 2013. The Supreme Court in Independent Thought v. Union of India also held that a girl child below 18 years of age was incapable of giving consent for sexual intercourse. The courts have however refrained from getting into the question of illegality of marital rape. This implies that adult wives can still be legally raped by their husbands under the current penal law in India.

The Justice Verma Committee set up in the aftermath of the 2012 Nirbhaya case recommended criminalization of marital rape. In 2017, a parliamentary panel set up to consider the Committee’s recommendations observed that criminalizing marital rape would bring the entire family system under great stress. Thus, it has refused to remove the exception in Section 375 which allows the husband to legally rape his major wife. The government has repeatedly insisted the sacrosanct nature of the institution of marriage to justify the exception.

It is pertinent to juxtapose such conceptions of marriage against cases where rapists are asked to marry rape survivors. Recently, while hearing a case against Mohit Subhash Chavan, a public servant who was accused to repeatedly raping a minor girl was asked by former Chief Justice of India SA Bobde if he intended to marry her. This is not an isolated instance. Rapists often marry the survivors to escape penal consequences under the persuasion of village elders or relatives. Judges too are persuaded by the arguments of stigma and honor. In some cases, rapists have deserted the survivor after marriage.

The apex court in judgments like Lillu Rajesh and others v State of Haryana has observed that a women’s supreme honor is “her dignity, honour, reputation and chastity.” That this supreme honor is defiled and degraded by the act of rape and thus renders the victim helpless and unmarriageable, is repeated in many judgments such as Deepak Gulati v. State of Haryana. Courts routinely advise marriage between the rapist and the survivor as a compromise – to save the woman from the resultant stigma and social rejection, and the man from punishment, especially in those cases where the victim has become pregnant.

Conclusion

It is very telling about the Indian jurisprudence that considers marital rape is essential to preserve the sanctity of the institution of marriage on one hand, and makes the rape survivor marry her rapist on the other. The jurisprudence at some level recognizes that a woman must suffer the worst form of degradation and harassment as a part of the regular course of marriage. The cost of preserving the institution of marriage must be the woman’s autonomy, and such cost must be paid by what the court itself recognizes as the worst form of defiling of her “supreme honour.” The only way to contradict this inference is to consider the married woman as the chattel of her husband, which is an understanding grossly violative of the fundamental right of equality.

In light of this, the Kerala High Court judgment becomes important. It recognizes autonomy as a part of privacy which is a fundamental right, and extends it to the private sphere of marriage and household which state has often refused to do. It in fact goes a step further in acknowledging the legal heteronomy and paternalism in the family and divorce laws of the country. Recognising marital rape as grounds for divorce opens the door for many women who suffered without recourse so far.

Hindu Marriage Act 1955

Ambedkar’s Quest For Gender Equality

Kerala HC Declares Marital Rape as a Ground for Divorce

Facts

Observations of the Court

The Position of Law on Marital Rape

Conclusion

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