Mans world, legally

Published : Aug 10, 2012 00:00 IST

Lambadi, or Banjara, tribal couple Vadthya Sukhya and Vadthya Achio with 11 of their children in front of their home in Nalgonda in Andhra Pradesh on October 21, 2011. The couple wanted a male child and had 12 girls before Achio gave birth to twin boys.-NOAH SEELAM/AFP

Lambadi, or Banjara, tribal couple Vadthya Sukhya and Vadthya Achio with 11 of their children in front of their home in Nalgonda in Andhra Pradesh on October 21, 2011. The couple wanted a male child and had 12 girls before Achio gave birth to twin boys.-NOAH SEELAM/AFP

Son preference continues to be a part of the legal structure and government policy.

Son preference in India is based on patriarchal customs and traditions and the patrilineal form of inheritance, where the inheritance is through the common male ancestor and the sons inherit more than the daughters. Among Hindus it is largely believed that only a son can light the funeral pyre and offer prayers to ancestors, that the son remains part of the family whereas the daughter becomes a part of another family, that kanyadaan (giving away of a daughter in marriage) is a necessary spiritual obligation, and that only a son can provide old-age security. The belief that the daughter does not belong to her paternal/maternal home is so deeply entrenched that even courts have reiterated this belief in a number of cases. In a case in which the accused was convicted of dowry-related murder, the Supreme Court still approvingly spoke about the transference of residence of the girl after marriage.

An inevitable consequence of favouring sons is treating daughters unequally and hence discriminating against them. Some of the major manifestations of son preference are sex-selective abortions, sons being given preferred treatment during childhood while the daughter is discriminated against when it comes to food, medical treatment, education, and so on. A 2007 report on child abuse by the Ministry of Women and Child Development (MWCD) highlighted the neglect of and discrimination against the girl child on several counts. The 2001 Census report listed sex-selective female abortions, female infanticide and female neglect typically by giving girls less food and medical care than boys as important reasons for the low child sex ratio (CSR) in the country. Throughout her life as a child and as an adult, a daughter continues to be subjected to various forms of discrimination that subjugate her to the men in her family, including her brother or brothers and her spouse, and privilege them over her. This discrimination has been seen both as a cause and as a consequence of son preference.

Laws reflect this discrimination in a variety of ways. Even laws that have been passed to address this phenomenon can, because of non-implementation or because of their inadequacy and loopholes, inadvertently advance son preference. Certain kinds of practices that are associated with son preference or certain forms of discrimination remain to be addressed by laws. A study of laws that overtly or covertly advance son preference has been carried out by the United Nations Population Fund (UNFPA). This study sets out some critical areas of intervention and states that they are critical precisely because laws or the absence of laws in these areas have the greatest impact on the practice of son preference and daughter discrimination.

India has a number of laws ostensibly to end the discrimination against daughters and to prosecute and punish those who commit violence against them. These include civil laws that have been supposedly passed to give equal rights to daughters. Cases in point are the amendments to the Hindu Succession Act to give equal rights in inherited property to daughters or special laws that provide criminal and civil remedies. Laws such as the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection), 1994 (PCPNDT) Act, the Dowry Prohibition Act (DPA), 1961, and the Prohibition of Child Marriage (PCMA) Act, 2006, aim at tackling the issues of son preference and daughter discrimination. Like any criminal law, they punish violators with imprisonment and fines and also provide for certain civil remedies such as getting a marriage annulled in certain situations under the PCMA. Apart from these laws, the Indian Penal Code (IPC) criminalises certain acts in relation to marriage and childbirth. It has also been amended to introduce the provisions of dowry death (which seeks to punish dowry-related murder) and cruelty against a woman (which defines cruelty as harassment for dowry and mental and physical violence of a grave nature).

For a law to be effective, however, it has to be implemented and enforced. The government has a poor record of implementing these laws. The PCPNDT Act was passed as far back as 1994, but it took the government two years to bring it into force. The Act is, in fact, a classic example of non-implementation of a law. It was not even notified in some States for several years. The authorities envisaged under the law to monitor, supervise and enforce its provisions the Appropriate Authorities, Advisory Committees, and State Supervisory Boards, for instance were not constituted in a number of places. In places where the Appropriate Authorities were constituted, they had only two persons, one of whom was often a doctor. They were hesitant to take action against other doctors. Deliberate inaction by the state resulted in those guilty of violating various sections of the Act not being punished. Most of the cases filed under the Act relate to non-registration of clinics and machines and are not against doctors who are the major culprits fuelling sex selection. As expected, very few convictions have taken place under the Act.

Similarly, under the Dowry Prohibition Act, the state has not often fulfilled its statutory obligation to appoint Dowry Prohibition Officers to oversee the functioning of the Act and report cases. Even in cases where officers have been appointed, the appointees are often government officers with other regular duties. The lack of implementation of the Act has also shown that the Central and State governments have, perhaps for a variety of reasons, not been serious about stemming the rising tide of dowry. In one case in 2005, the Supreme Court gave directions to the Central government to implement the Act by various means, including the setting up of an appropriate machinery.

Other instances of non-implementation include deliberate police inaction in several criminal cases relating to dowry and non-registration and non-prosecution of such cases by them. Criminal laws continue to be honoured more in the breach than in the observance. It has been reported that the police in charge of registering and investigating offences refuse to register cases or refuse to investigate them properly. The prosecution of these cases in court also leaves much to be desired. Corruption, inefficiency and gender bias among members of the police force are factors that are reported in several cases involving ordinary women. Courts also deal with most of the criminal and civil cases in a casual/lackadaisical manner, and it takes women years to get justice in several cases.

Increasing incidence of corruption in the court system is also being reported. These highlight the need for extensive reforms in the police and judicial systems to make them more responsive and sensitive to womens issues. The record in implementing the laws is so appalling that a number of activists working with women have opposed framing new laws, particularly criminal laws. They contend that the laws that exist do not get implemented, and it would be better to make the police and judicial system more accountable in implementing them than enacting new laws.

Gift & dowry

Some of these laws also, perhaps inadvertently, propagate and advance son preference. These laws contain either loopholes or provisions that continue to favour men and promote son preference. It is important to mention that apart from the problem of non-implementation, laws also contain faulty or inadequate provisions and other loopholes. The practice of dowry promotes son preference, and it has also been cited as a reason why pre-natal sex selection takes place. The Dowry Prohibition Act is an enactment that was ostensibly passed to stem the practice of giving and taking dowry.

Though the growth of the system of dowry can be attributed to various socio-economic reasons, including caste-based arranged marriages, increasing consumerism and the general non-implementation of the Act, the Act itself contains several loopholes that make the conviction of an accused in a dowry case difficult. One such loophole is the definition of gift as distinct from dowry in the Act. The vagueness of this definition makes it possible for a person to contend that what was taken during the marriage was a gift and not dowry. The definition of dowry has also not been carefully crafted. It defines dowry as any property or valuable security that is given prior to, at the time of or after the marriage in connection with the marriage. This has allowed certain judges with a patriarchal mindset to reason absurdly that what is given after the marriage on certain occasions and festivals cannot be construed as dowry unless a direct connection to the marriage is shown.

The Dowry Prohibition Act, 1960, was amended in 1983 and 1986, but some important amendments suggested by womens groups and the Joint Parliamentary Committee set up to look into the functioning of the Act were ignored. The Act itself is couched in neutral language which suggests that dowry can be taken not only by the bridegroom and his family but also by the bride and her family. This neutral language was used in spite of the self-evident fact that the practice of dowry adversely affects only the bride and her family.

Child marriage is another grave form of violence and discrimination that a girl child faces. Though child marriage, being forced marriage, normally affects both boys and girls, it has a far greater and more adverse effect on the girl than on the boy. Child marriage is a human rights violation since it is akin to child abuse. For many girls it is the beginning of frequent and unprotected sexual activity that can have serious health consequences. It compromises the all-round development of girls and affects their education. It results in social isolation since the girl child is sent away from her familiar social surroundings. The Prohibition of Child Marriage Act, 2005, is a much improved version of the Child Marriage Restraint Act, 1929, and provides for greater punishment to persons who are responsible for or participate in the marriage of a child.

It also allows a child marriage to be declared void at the option of the contracting parties, that is, if either the husband or the wife petitions the court before a certain age. However, the main problem with the Act is that it does not invalidate a child marriage. In other words, the law does not make a marriage invalid even if it is performed when the child is an infant or at the puberty or adolescent stage. Such provisions make the Act totally ineffective. This Act is also not implemented by the state. For instance, mass child marriages are openly performed in some parts of the country on occasions such as Akha Teej in Rajasthan. It has also been reported that police personnel often refuse to take action to stop these marriages.

Inheritance laws

Personal laws that deal with inheritance rights seem to propagate son preference. The Hindu Succession Act (HSA), 1956, which was extensively amended in 2005, still contains provisions that favour a womans husbands family. This Act contains provisions that stipulate that even the self-acquired property of a female Hindu dying intestate will, in the absence of her husband and children, devolve upon the heirs of her husband and not on her father and mother. The provision seems to be based on the customary and traditional belief that after marriage a girl belongs to her husbands family and not to her natal family.

A recent judgment of the Supreme Court showed how inequitable this provision is: the self-acquired property of a woman who had been ill-treated by her in-laws and lived all her life with her parents devolved upon her in-laws. Further, land reform laws such as the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, contain provisions that discriminate against a daughters inheritance rights despite an amendment to the HSA that deleted an earlier provision saving such laws. A recent judgment of the Delhi High Court has, however, held that the provisions of the HSA shall prevail over the provisions of the Delhi Land Reform Act, 1950, that give unequal inheritance rights to women. Under Muslim Personal Law also, daughters and wives continue to inherit a much smaller share than the sons.

Studies have also shown that Hindu women continue to be deprived of their inheritance through wills. Even in the absence of a will, women have been forced to give up their share in favour of their brothers for various reasons. One of the reasons often cited is that they are scared of breaking familial bonds. It has, therefore, become necessary to devise ways to ensure that daughters do not lose the right to their inheritance.

Among legal provisions son preference is promoted by some panchayat and municipal laws that coercively enforce the two-child norm and have been seen as being anti-human, anti-women, and anti-poor. These laws exist in Gujarat, Odisha, Maharashtra and Rajasthan.

In certain areas, there is no law to deal with discrimination and violence against girls and women. For instance, in the absence of laws to address discrimination against the girl child at home and outside, discrimination and abuse continue without any remedy or punishment. This can lead to further devaluation of the girl and can become a reason for a familys not wanting a girl child. The absence of a law that gives an equal share to women in marital property also promotes son preference.

Not an equal partner

The denial of equal right to marital property seems to suggest that a woman is not an equal partner in a marriage and the womans contribution to building up a household and her role, in almost all cases, as the primary care-giver of the children, has no value. When women are deserted by or separated from their spouses, they are mostly forced to go back to their natal homes where also they are not welcome. Killings and crimes in the name of honour are deeply gendered crimes that seek to suppress the fundamental right of a girl to enter a relationship of her choice and live with dignity.

Finally, it is necessary to look at policies that promote son preference. The UNFPA study, apart from examining such laws and citing landmark cases that highlight son preference or daughter discrimination, has suggested ways to amend or introduce laws and change policies to ensure that the norm of son preference does not continue to be a part of the legal structure and government policy. This may not, by itself, be enough to reverse the deeply entrenched discrimination against daughters but would be more than a step in the right direction.

Kirti Singh is a senior advocate in the Supreme Court and former member, Law Commission of India.

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