By Sharanya Gopinathan
Have you ever heard a parent proudly say that they never treat their sons and daughters differently? Turns out the law says they must, even when parents don’t really want to.
In a recent case coming out of the Kerala High Court on 19 December, 2017, the court ruled that a Hindu woman can claim marriage expenses from her father, and that these expenses are an integral part of her maintenance.
The order reflects the verbiage of the Hindu Adoptions and Maintenance Act, 1956, stating that it is the “duty” of a father to maintain his daughter until marriage.
The judgment explains that “a Hindu is under legal obligation to maintain his unmarried daughter, in so far as such unmarried daughter is unable to maintain herself” while explaining that this obligation to maintain “arises from the existence of the relationship between the parties”.
The judgment also refers to Section 3(b)(ii) of the same Act, which says that in the case of an unmarried woman, maintenance, generally understood to cover the basic things a person needs to live, includes the expenses incurred for and incident to her marriage.
Interesting, isn’t it? The law doesn’t prescribe that parents should maintain all their unmarried children, but that the nature of the relationship between father and unmarried daughter is such that he is automatically obliged to maintain her, until marriage.
If such an obligation doesn’t arise out of the relationship between parents and their sons, it clearly implies that parents have inherently different relationships with their sons and daughters.
Here’s another intriguing situation. While there are conflicting high court judgments on this issue, the most recent, coming out of the Bombay High Court, laid down that a married woman has the right to reside in her matrimonial home even if that home is owned exclusively by, as The Times of India jauntily reported, her “dad-in-law”. On the other hand, the Delhi High Court in November 2016, laid down that a son, irrespective of his marital status, has no legal right to live in the house of his parents, and resides there entirely at his parent’s mercy.
There’s something that seems a bit strange about all these laws, judgments and provisions when you look at them together, and it’s not just that the bizarre fact that the law seems to think that marriage is a life essential for women, and an essential component of their maintenance.
It seems clear that in the eyes of the law, women are meant to be cared for at all stages of their lives by men: Fathers, husbands, and if not husbands, then father-in-laws.
But before we get into the tricky bits, you have to recognise that these provisions exist in order to immediately protect women, and arise from an acknowledgement of the undeniable fact that men and women come from totally different socio-economic situations, and face different vulnerabilities in the living of their day-to-day lives.
The reality is that a huge section of Indian women continue to be deprived of education, socialisation outside the home, and access to other social and financial tools. So, such women can indeed hardly be told to now suddenly go out and work and find homes to live in.
But once this vulnerability is acknowledged, as it clearly has been over and over again with something almost resembling relish, the question is, what should the State’s ideal response to it be?
There’s reason enough to argue that it isn’t to appoint women permanent wards of some man or the other, especially given how the family unit is itself responsible for so many of the vulnerabilities that women face.
A 2013 study by Landesa shows that eight years after the crucial amendment to the Hindu Succession Act (2005) which allowed women to inherit agricultural land, only one in ten women actually do. The same study pointed out some other interesting things: That the biggest opposition to women inheriting agricultural land comes from brothers, followed by parents, and that “dowry [criminalised in 1961] is still seen as ‘adequate’ recompense for inheritance”.
So while there are laws that allow for women to inherit land and property, there’s nothing that actually requires families to do so, unless they want to. Some states, like Uttar Pradesh, even have laws that stipulate that married women cannot inherit family land on the assumption they will inherit their husband’s property (or basically, a twisted form of the idea that married women are “paraya dhan”).
Women also continue to face significant roadblocks to achieving employment and education. The gender literacy gap continues to consistently be over 15 percent, while the female employment rate has actually been steadily dropping in both rural and urban India over the last 20 years.
Both of these provisions (that is, those stating that fathers have a duty to maintain their unmarried daughters, and that married women can claim the right to reside in their matrimonial homes) clearly come from an acknowledgement of the fact that women face clear roadblocks in receiving education, employment and other financial tools such as property ownership and inheritance. So, it suddenly becomes clearer that the State’s efforts at rectifying the problem are misdirected, at best.
So if we need to address the social reality women endure, and have arrived at the conclusion that women in certain circumstances need assistance to overcome the roadblocks they face, the question becomes who’s better suited to provide it: The family, or the State?
The family seems like an illogical answer, because of how damaging excessive familial control can be for women, and how large a part it has to play in the subjugation of women. While this does come with inherent complications and dangers, if it’s been considered perfectly acceptable for all historically disadvantaged communities turn to the State to fix its problems, then is it so far out of line for women to have the option to do the same?
If the State is willing to take departures from ‘normalcy’ large enough to create provisions that mandate fathers must pay for their daughters’ weddings, and that daughters-in-law can claim rights of residence in their matrimonial homes, why not take the more meaningful steps of disproportionate interference and action in mandating disproportionate employment opportunities for women?
Or in creating laws that really lay down and provide property ownership rights for them, or more State investment in education and employment, or in providing adequate housing and shelter to homeless women, especially women who are homeless because of domestic violence?
Why does the State seem so much more comfortable providing the solution of eternal guardians, rather than investing in frameworks to meaningfully offset the hurdles that women clearly face? While these judgments and provisions are meant to be short-term fixes to address the results of the problems women face, a more reasonable, long-term and ultimately less gender-stereotypical response would be to actually address those problems and their causes head-on.
The solution to women’s vulnerability cannot be to subject them to the permanent control and guardianship of their families, often the very unit that helped make them vulnerable in the first place.
Co-published with Firstpost.