A critically welcoming observation was made by Retd. Justice. Ravindra Bhat
in the same-sex marriage judgment. The fulcrum is on the socio-legal context
instead of a mechanism that leads to broader nothing. Structural change
and adaptation to the evolving society are necessary for today's legal world to
stay relevant. Nevertheless, a change that negates the purpose of legal action
should be avoidable for the legal relevance to hold its ground.
One of the main issues in the marriage equality case was about reading the
marriage of queer couples into the provisions of the Special Marriage Act of
1954. All 5 judges were on the same page on this and agreed to the disavowal.
While CJI Justice. D.Y. Chandrachud summed up the common reasoning to this,
Justice. Bhat's judgment explored the deserted values. He said that a
gender-neutral reading would negate the gender-specific aspects of the
legislation and complicate an already exhausting path to justice for women.
Gender Expression Conforms To Behavior And Is Not An Immutable
The behavior had been tilted towards one gender in the past which paved the way
for law to enter the stage. With each religion having its personal law, a set
standard of uniformity is not attained even in the case of both genders let
alone the inequality towards the females.
When we consider personal laws, different legislations carried the laws that
disintegrated the process of substantive equality. When women are guaranteed
formal equality in the form of constitutional rights, a big question remains
over the substantive and real path.
Let me give examples of some personal laws here. The Hindu Succession
(Amendment) Act, 2005 repealed Section 23 of the act and allowed the daughter to
have co-parcener rights as that of a son but still lacks complete parity in
rights. Marriage is treated as a domestic responsibility for married women in
the Hindu Marriage Act widening the gap between men and women in rights and
A similar scenario is present in the Christian law in Goa and Muslim law
recognizing the superiority of the male over his spouse and treating the civil
union as a contract wherein the wife is capable of giving free consent coupled
with the discrimination against a female child in matters of inheritance
respectively. The persisting inequality in the rights of men and women can be
seen in matrimonial laws extending to most spheres of RPLs (Religious Personal
Laws) such as the right to marital property, guardianship and polygamy etc.
The cruelest of all these is marital rape which strips away the respect and care
shown towards females giving legitimacy to the conduct in the form of legal
regulation. Owing to all these disturbing legal realities, there is a need for
conforming gender expression to social realities and behavior.
The law relating to domestic violence is one such step to recognizing the social
contexts persisting in a particular category which would lead to the pursuit of
gender-just laws and the goals of social justice, writes Prof. Archana Parashar
(Professor of law at Macquarie University).
The Need For Gender-Sensitive Laws:
Generating context-specific legal discourse is the way to ensure substantive
equality and a law must be socially rooted to be effective in its practice.
Although social realities vary in England and India, we continue to follow the
colonial laws and RPL is one of them which subordinated the rights of women to
political considerations in the name of saving the religious laws.
This is a part of the larger codification act done by the colonizers leading to
the creation of a barrier between personal laws and other laws guiding the
general conduct. This led to the need for gender-sensitive laws targeting the
female category to undo the flaw in the religious personal laws.
The Special Marriage Act is a tool to fill the gap in the rights of women in
inheritance and other conjugal rights between women of different religious
categories. The purpose of this act is to facilitate the marriage between a man
and a wife taking into the socio-cultural limitations.
The Special Marriage Act, of 1954 allows women to enter a civil contract which
has been dehumanized for women in RPL. Women can inherit ancestral property and
the right to do it guaranteed by the religion continues to exist despite the
civil contract taking place out of the religious folds.
Contrary to various interpretations regarding Section 12(2) in Chapter II of the
act which is the only place where the words 'husband' and 'wife' are used, it
indeed has a heterosexual construction and cannot be interpreted as exhaustive
of non-heterosexual couples as both the terms strictly adhere to the binary
genders and the earlier mentioning of 'any person in India' must be strictly
construed within the fringes of Section 12(2).
The presumption is that by neutralizing the law to both genders, it opens the
way to non-binary genders but the basic and primary problems faced by women will
not be focused. One way of explaining this is through marital rape. Although
neutralizing will desexualize the offense and neutralize the law to victims and
perpetrators, it may deviate from the principal purpose of safeguarding women's
rights within the confinement of the civil institution.
Neutralizing the provisions of the Special Marriage Act will have the same
effect by shifting away from the focus of giving substantive equality to women
within the scope of marriage as a civil institution. In the words of Flavia
Agnes, the notion of fairness to women is possible only after piercing the veil