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Photo: iStockphoto

Opinion | Towards a more gender-neutral legal paradigm

  • Judicial activism is becoming far more prominent within the Indian legal system, wherein the judiciary is not bound by its traditional obligations to perform its duties within the cages of constitutional limits and statutory dictates

While the average layman may view the judiciary and its composite media as simply a means to the interpretation, clarification and application of laws, that otherwise exist solely through legislative sanction, the fairly recent string of instances, regarding court action upon prevailing archaism and sexist inclinations of significant statutes, is nothing but a clear demonstration towards the contrary.

The most immediate manifestation of such a development, which may be brought to our attention, is the Supreme Court judgement of previous week, which gave retrospective application to the 2005 Hindu Succession Act Amendment. This means that the changes made in the legal provisions of the HSA, by the said amendment would now be applicable to instances originating even before the date of the amendment.

The 2005 HSA amendment, is perhaps, one of the most revolutionary and pioneering legal changes made within the Indian legal system in the past two decades. We treat this article as a promotive defence of this view of ours, and to this extent, let us elucidate the same.

It is of course common knowledge that the property of a Hindu person or any person for that matter, regardless of religion, devolves to their descendants, upon his/her death. However, the manner in which this devolution occurs, depends upon the nature of the property itself.

Hindu law ordains that property can be of two types – ancestral (property that is shared amongst all members of a Hindu family unobstructed, without the partition of the property for four generations), or self-acquired (property that is solely owned by a single member of a Hindu family, through his/her own earnings).

The latter is not relevant to the present discussion, however, the former is crucial in terms of the changes brought about by the 2005 HSA judgement. In ancestral property, all such Hindu members that share the benefit of the stated assets are called co-parceners. As an extension of this logic, each such co-parcener has an equal share in said property. These co-parceners, in addition to the non-coparcenary members of the Hindu family collectively are termed a Hindu Undivided Family (HUF).

The abysmally paternalistic prerogative that was dictated by Hindu family law, and as a consequence, by the HSA as well, was that females could not be co-parceners. Period. The absolute lack of gender sensitivity and religious intolerance of a more equal legal treatment, could not be any more apparent, as in this given instance. Post the 2005 amendment, this sexist notion was rectified albeit only to a certain extent by extending co-parcenery rights to daughters in an HUF.

The amendment certainly provided a bounding leap to the Hindu legal structure, from the dark trenches of patriarchal privilege and blind religious dogma within which, it was embedded, an unpleasant reminder of the fact that the Hindu religion and its Vedic sources could be just as resolute and unwavering, in their beliefs of the inherent dependency, inability and inferiority of the feminine sex, as any other.

This being said, the amendment is certainly in need of further extension and refurbishment. The co-parcenery rights in an HUF, are still not present for mothers, wives and widows, who exist within the family. Such members are entitled only to maintenance by other co-parceners. In this regard, the situation of widows appears prima facie, as most problematic, if anything, they are beset on the most unstable foundation, in terms of livelihood. Observing the general essence of this circumstance, widows must be the first to receive some definite share of ancestral property. This amendment is with right intention and in proper direction however this being of retrospective effect, only time will tell the implementation of the same.

The aforementioned instance revolving around the HSA, was not the first example of the Court’s pivotal role in developing societal norms through the alteration of legal rules and regulations. Citing two older occurrences, Firstly, the Triple Talaq judgement in 2017, a landmark precedent, that witnessed the light of day, despite violating central religious tenets of Muslim personal law, a fact that could serve as the breeding ground for sectarian divide and religious disharmony.

At the risk of sensitizing the Muslim populace towards the sentiment that the Indian State is steadily progressing towards secular apathy, the judiciary brought forth this judgement giving greater weight to the removal of a starkly patriarchal legal rule, emanating out of a sexist religious belief.

Secondly, in 2018, the decriminalization of adultery i.e. Section 497 of the Indian Penal Code. If one ever gets the opportunity to peruse the contents of Section 497 of the IPC prior to its striking down, a plain reading of its text alone would be sufficient to highlight not only the severe lack of individuality and personality the provision afforded to the feminine sex; but also reveals the misogynistic tendency of the said provision as it implicitly presumed the inability of self-governance and independence of female persons, upon their own lives.

Not only did this decriminalization uplift the legal treatment of women it also afforded a far more equal treatment to men because previously under the said section only males could be offenders and a woman could not legally commit adultery. In this regard, the decommissioning of such a gender-biased law, is nothing but a step towards the advancement of the Indian legal system, and the pavement of its path towards a more modern and evolved approach.

As can be observed through these and a number of other existing exemplifications, judicial activism is becoming far more prominent within the Indian legal system, wherein the judiciary is not bound by its traditional obligations to perform its duties within the cages of constitutional limits and statutory dictates.

While the same is essential in reserved situations, to prevent the law from becoming rogue and disenfranchised from central, core beliefs of the Indian society and the prevailing moral standard, it cannot at the same time suffocate the evolution of the legal system. The law cannot be static and stagnant, it must moult its skin, as and when the flesh of the society is altered and emergent needs demand the elimination of redundant principles, especially when they result in unfair, arbitrary or inequitable results.

Given the recent trend established by the Indian judiciary, in its accelerated initiative to reform and reinvent the Indian legal paradigm, it is our sincere hope, that our courts shall continue to demonstrate a similar, if not higher level of independence and initiative, in the near as well as the far future.

(Sumant Nayak and Nishikant Nayak are advocate and senior partner and advocate, respectively, at Desai & Diwanji, Advocates & Solicitors. Views are personal and do not reflect Mint’s)


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