NATIONAL LAW INSTITUTE UNIVERSITY

SUBJECT –Sociology of Law

A PROJECT ON – Law and Gender Inequality in India

SUBMITTED BY-

Meghna Khetrapal

Roll No: 2013BALLB111

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 ACKNOWLEDGEMENT

I would like to begin with acknowledging my Professor Tapan Mohanty gave me this opportunity to
work on a project work, and guidance where ever needed.

I would also like to thank the director of the university and the administration who have given me all
the requisite facilities like library, Wi-Fi connection, computer lab, photo stat that made my task much
easier and efficient.

Also, I would like to extend my gratefulness to my batch mates and parents who have supported me
throughout in this endeavor.

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 TABLE OF CONTENTS

INTRODUCTION 4

SCENARIO IN INDIA 6

A SOCIOOGICAL BACKGROUND AND EXPLANATION 7

DISCRIMINATORY LAWS IN INDIA 8

DISCRIMINATION AGAINST MEN 11

NEED OF REFORMS IN INDIA 12

CONCLUSION 13

BIBLIOGRAPHY 14

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 INTRODUCTION

Gender is a progressively salient panorama of the coeval moot and sermon in the vicinity of
law. It is obvious that gender, while computing so centrally in the building and brass of social
life, is nevertheless hardly visible to the eye in the abstract inventory of law. In the
jurisprudential vision law is gender-less; as a result legal scholarship for the most part
continues to hold on to the view that gender plays little or no role in the conceptual make-up,
prescriptive earthing, or categorical dictating of law.1 The functionary situation is that the
approximation of law and legal fundamentals are, or at least ought to be, gender-independent.

Exploring the relationship between law and gender it takes gender as a core concept and
analytical tool and examines how law is conceptualized, organized, articulated, and
legitimated. The relationship between gender and the law is relevant to the extent that it
moulds a number of spheres of law encompassing in its ambit in particular:

1) Criminal law

2) Tort law

3) Family law

4) Employment law

5) Human rights law

6) Military Law

7) Labour Law

With more and more off springs of gender are perceived as the vexation of all, reflecting
broader arguments in the law, including those of equality and sexuality. Covering the key
theoretical and substantive areas of law and inequality are specifically covered by Joanne
Conaghan 2.

1
REGINA GRAYCAR & JENNY MORGAN, THE HIDDEN GENDER OF LAW 312 (2002).
2
JOANNE CONAGHAN, LAW AND GENDER 216 (2013).

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 SCENARIO IN INDIA

Apart from the obvious gender discrepancies that are embedded in the consistency of the
population, social discrimination substantial reinforcement occurs by certain laws that exist in
the country. India has skewed child sex ratios that rights campaigners describe as alarming.
According to the latest U.N. Gender Equality Index, India has one of the worst gender
differentials in child mortality of any country, ranking 132 out of 148 nations, worse than
Pakistan and Bangladesh. The number of girls under six years old has fallen for the past 50
years and there are now 919 girls to every 1,000 boys, against 976 in 1961, according the
2011 census.3

Diplomatically talking some and factually quite a few, Indian laws hence promote a
preference for sons over daughters or boys over girls. The United Nations in a report that
studies the slump in the numbers of the fairer sex highlights the same.

Ban on child marriage, pre-natal sex selection tests and dowry along with sexual harassment
in the workplace, eve teasing etc are poorly inflicted and administered. Certain laws
excluding daughters and widows from inheriting land still exist, a study by the U.N. World
Population Fund (UNFPA) found.

"This study is significant because it holds up a mirror to the laws that overtly or covertly fail
to address discrimination or promote it,"

- Lise Grande, U.N. Resident Coordinator in India, told activists and reporters at the
launch in New Delhi.

3
CATHERINE HOSKYNS, INTEGRATING GENDER: WOMEN, LAW AND POLITICS IN THE EUROPEAN UNION 17
(1996).

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 A SOCIOLOGICAL BACKGROUND AND EXPLANATION

The basic fact that bringing up girls is more economically burdensome has contributed to this
stigma a great deal. Apart from that the fact that education, social life, workplace, politic
conditions all to a great extent are favourable towards boys by being way more acceptable
and easier for them. In much of India, a preference for male children is built into cultural
ideology. Sons are traditionally viewed as the breadwinners who will carry on the family
name and perform the last rites of the parents - an important ritual in many faiths. This can be
said because in the small incidents of life we see a wide discrimination between boys and
girls. It is way easier for boys to attend coaching institutions especially after a time like 8-9 o
clock in the night, they can work anywhere example at petrol pumps etc which is not true for
girls. Hence this sociological background and highlight simply explains this issue further. It
lays down the root cause and the superstructure on which these crevasses are based.

Facts that highlight this are some that can be observed by a number of journals and sources
abroad:

Twelve million Indian girls have been aborted in the last three decades, a 2011 study in the
British medical journal Lancet found.4 Other girls die due to preventable diseases such as
pneumonia and diarrhoea, because they are sidelined in favour of their male siblings when it
comes to access to health care and nutrition.

Being the biased society that ours is, it can be stated that

“A lack of political will meant many gender laws are not enforced.” 5
Female foeticide is also majorly practised. All these contribute substantially to the condition
of women in the society determining their inferior status. The consistency of the population is
dominated by men and the society is inherently patriarchal enhancing this problem to leaps
and bounds.

4
SALLY ENGLE MERRY, HUMAN RIGHTS AND GENDER VIOLENCE: TRANSLATING INTERNATIONAL LAW INTO
LOCAL JUSTICE 314 (2006).
5
Kirti Singh, The Law and Son Preference in India: A Reality Check, UNFPA Journal 116 (2013).

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 DISCRIMINATORY LAWS IN INDIA

DISCRIMINATION AGAINST WOMEN

Examples of the discussion above are found in plenty in India in various areas. Out of the
masses of laws that at least theoretically aim at accomplishing gender equality there are still a
few that promote these gender disparities to a great extent. These reinforce the supremacy of
men in the society to a great extent. Unfortunately they add to the destitution of women in the
society. Some of these include:

1) Hindu laws of inheritance: Different religions have different inheritance laws. According
to the Hindu inheritance law, the property of a woman who dies without a will is handled
differently from that of a man. The differences begin right here. In the absence of spouse
and children, the husband’s heirs inherit the woman’s estate.

2) Parsi laws of inheritance: Despite decreasing numbers in the Parsi community, those who
marry outside the community are penalised. A non-parsi woman who is either a wife or a
widow of a Parsi man cannot inherit. However, their children can. But again, a Parsi woman
marrying a non-Parsi man cannot be considered a part of the Parsi community. Hence
“lawfully” the woman, which is an outsider to the community, is left on the street, one who
has no children and had a love marriage with the deceased.

3) Muslim Laws: Muslim laws allow polygamy and though the discussion has taken place in
Sarla Mudgal v Union of India, this issue has still been misused by many. Moreover allowing
Muta marriages, the concept of limited dower, iddat period that has to observed are all
discriminatory to some extent at least when equated to the current standards of feminism and
gender equality. 2 female witnesses and 1 male witness may be equated equally.6

4) Prohibition of Child Marriage Act: The law only prohibits the marriages of children; it
does not render them illegal once they actually happen. It is a valid marriage. The married
children, however, have the right to declare it void. A woman can call off a marriage until she
turns 20, whereas a man has till age 23. The discrimination in the age is debatable. Also we

6
ANNA C. KORTEWEG & JENNIFER A SELBY, DEBATING SHARIA: ISLAM, GENDER POLITICS, AND FAMILY LAW
ARBITRATION 178 (2012).

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should give girls a preference over boys here since it does not have to be explicitly stated that
girls have more to lose in the Indian society.

5) Age of consent: Sexual intercourse with a girl below the age of 18 is considered rape. But
since child marriages are not illegal, a man can legally have sex with his wife even if she is a
minor, as long as she is above the age of 15. Further, marital rape is still not criminalised in
India. Getting us to the next issue:

6) Marital Rape is not recognized: Marital rape that is recognized in many parts of the
world and remains unrecognized, shamefully. Basically such laws have to be enforced as a
woman’s silence cannot be assumed to be consent. Moreover rape and domestic violence
have to be taken seriously as it is evident that psychologically if that is not checked we
simply see that the pattern is followed by the younger boys in the house. Hence marital rape
and domestic violence are to be taken extremely seriously and have to be dealt with as
efficiently as possible.

7) Rape of a separated wife: The rape of a separated wife carries lesser punishment than the
rape of any other woman. Forced sexual intercourse with the former is punishable with two to
seven years of imprisonment. The imprisonment for the rape of any other woman ranges from
seven years to life.

8) Marriageable age: The minimum age for marriage for a boy is 21, but 18 for a girl. This
is a legal extension of the patriarchal mindset that believes that a wife should always be
younger than the man. It is unacceptable in a number of areas to have a working elder wife as
it does not match the supposed stereotype.

9) Hindu Minority and Guardianship Act: Women are still not equal guardians of their
children. A father is considered the “natural guardian” of a child, although the custody of
offspring under the age of 5 will ordinarily be awarded to the mother. 7

10) The Goa Law on polygamy: A law recognises the second marriage of a “Gentile Hindu”
man of Goa if his previous wife does not have any children before the age of 25 or if she does
not have a male child by 30.

7
LISA FISHBAYN JOFFE & SYLVIA NEIL, GENDER, RELIGION AND FAMILY LAW: THEORIZING CONFLICTS
BETWEEN WOMEN’S RIGHTS AND CULTURAL TRADITIONS 213 (2013).

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11) No right to marital property: Upon separation or divorce, an Indian woman is entitled
only to maintenance from her husband. She has no right to the assets, such as house or
commercial property, bought in her husband’s name during the marriage. 

12) Military service: Women cannot have combat roles in the armed forces. They are not
included in activities which have a high chance of physical contact with the enemy.

DISCRIMINATION AGAINST MEN:

So as popularly is evident because there are a number of anti dowry laws that are misused a
great deal. Men are subject to more taxes than women also there are no laws against men in
the workplace. Also no such schemes are being encouraged by the Government or eminent
celebrities for boys in a manner that is happening for girls. In 2007, about 57,593 married
men committed suicide. Hence there are societal pressures and unfavourable laws that exist.
Basically also there are no welfare schemes especially for men.8 There are also no
constitutional or quasi constitutional bodies that are made to identify the problems of men for
example National Commission for the Welfare for Women.

Besides that there are a numerous anti male and gender biased laws which may be used
against them, grossly instead of being neutral.9 Basically laws should be more of a question
of fact and more objective instead of being inherently biased. Moreover media also does not
give similar attention to men in terms of disparities faced. Men may generally be
discriminated against in the realm of women empowerment. Statistics are not as prominent in
favour of men as they are in favour of women. They have not been highlighted as well.

8
NANCY LEVIT, THE GENDER LINE: MEN, WOMEN AND THE LAW 206 (1998).
9
DAVID BENATAR, THE SECOND SEXISM: DISCRIMINATION AGAINST MEN AND BOYS 111 (2012).

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 NEED OF REFORMS IN INDIA

Reservations for women exist in a lot of fields including, panchayats, educational institutions,
etc. However we see that this is not necessarily applicable in practicality in the sense that
although women may have the rights and on papers be involved but in the pragmatic realm of
affairs this need not be the same. Example in a road trip to Mindori village, what came to
prominence was that the head of panchayat was a female but major functions were carried on
by her husband thereby undermining her position as a female representative.

Live in relationships should be officially recognized. So basically according to the Domestic

Violence act, 2005 women should not be subject to violence in the domestic household even
in case the couple is living without getting married. However they need to be officially
recognized and accepted. Moreover law should be such that it subjects the males and females
to similar status and not just the woman being subject to the societal stigma.10 The legislature
may have in mind a regularized pattern of sexual behaviour however that is a narrow
interpretation, taking into account the current scenario. Hence these relationships need to be
recognized and officially accepted with the woman having the same rights as a wife at least to
some extent.

Moreover, to a great extent prostitution has to be legalized in the sense that the plight of
women since it need not be voluntary or it may majorly be hereditary carried out by women
who are destitute and devoid of major necessities in life. 11

Also, every case should be treated as a question of fact instead of being judged by a
stereotypical idea that exists in the minds of most people.

DAVID FINKELHOR & KERSTI YLLO, LICENSE TO RAPE: SEXUAL ABUSE OF WIVES 212 (1985).
10

JALNA HANMER & CATHERINE ITZIN, HOME TRUTHS ABOUT DOMESTIC VIOLENCE: FEMINIST INFLUENCES
11

ON POLICY AND PRACTICE 114 (2000).

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 CONCLUSION

Law and Gender hence have an intimate entanglement and grow mutually. With the evolution
in societal status of women, the law governing them also evolves and vice versa. These
feminist debates majorly take place so that the laws can be more favourable towards them we
have to have in mind that men in India may also be subject to certain discrimination.
However the distinction is majorly drawn because with men there is less chance of violation
of life like foeticide, rape etc since men tend to be physically stronger. Basically we need to
change the societal temperament needs to be changed to a great extent. Instances in India like
the Nirbhaya rape case etc have to a great extent shaped and helped the law evolve.12 So
basically we need to keep these instances in mind which help the society reform. Moreover
beside the highlighted cases we have to see the normal course of action that has to be
followed by people. So with this the problems and the needs of the society are served to a
great extent. We have to ensure that justice is provided to men and women as both occupy
similar statuses in the society.

Often abuse against men is ignored but what has to be borne in mind is not that the legislature
is making laws that are not favouring men but simply that women do not unfortunately share
the same status in the society. These contribute a great deal to the functioning of the
legislature.

Every case has to be decided in terms of its facts and not a generalized stereotype. Issues of
the contemporary world need to be checked and basically law cannot afford to be static since
stagnancy kills the evolution of law

12
ELIZABETH CHHATTERJEE, DELHI: MOSTLY HARMLESS: ONE WOMAN’S VISION OF THE CITY 423(2013).

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 BIBLIOGRAPHY

BOOKS:

 Graycar, Regina. (2002). The Hidden Gender Of Law, Federation Press.

 Conaghan Joanne. (2013). Law And Gender, OUP Oxford Press.
 Hoskyns, Catherine. (1996). Integrating Gender: Women, Law And Politics In The
European Union , Verso Publications.
 Merry, Sangle. (2006). Human Rights And Gender Violence: Translating
International Law Into Local Justice, Chicago Publications.
 Korteweg, Anna.(2012). Debating Sharia: Islam, Gender Politics, And Family Law
Arbitration, Toronto Press.
 Joffe, Lisa.(2013).Gender, Religion And Family Law: Theorizing Conflicts Between
Women’s Rights And Cultural Traditions, University Press of New England.

 Levit, Nancy.(1998). The Gender Line: Men, Women And The Law, New York
University Press.
 Benatar, David. (2012). The Second Sexism: Discrimination Against Men And Boys,
SPi Publisher Services.

 Chhatterjee, Elizabeth. (2013). Delhi: Mostly Harmless: One Woman’s Vision Of The
City, Random House India.

WEBSITES:

www.wikipediaencyclopedia.com

www.usagov.in

www.inreuters.com

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