Introduction
Patriarchy has ever since been deeply enrooted in Indian society. Even if certain features of patriarchy have been reduced by the elimination of traditions like Sati Pratha, the history of male domination still has an impact on social structures.
The arrival of the first wave of feminism in India in the late nineteenth century was marked by various anti-colonial and social reform movements. The second wave, which resulted in the creation of several laws focusing on women, aimed to ensure equal rights for them by entering the private sphere. Placing women akin with men was a positive idea that led to the creation of such laws focusing on women.
But, the idea behind the adoption of these laws was that, women, whether as sisters, daughters, or wives, were essentially “dependent” on men. Hence, in response to this, such laws came into existence to empower women and to mitigate this perceived dependence. These laws made in the early 1950’s, were ingrained in circumstances where women were presumed to be dependent upon their male counterparts. Yet, entering into the 21st century, with advancement in women’s literacy and independence, it becomes necessary to examine the need of such laws. These laws may bolster inequality by discriminating against men, specifically when women are the principal earners. According to International Women’s Development Agency, “feminism is about all genders having equal rights and opportunities”. Feminism advocates for veracity and equality rather than favouring one gender over another. This blog calls into question the existence of such women-centric laws in the country which discriminates against the other gender, here particularly discussing the maintenance provisions under Section 144 of BNSS, and advocates for a more gender-neutral approach in line with present-day feminist ideals.
Section 144, BNSS
According to Section 144 of the BNSS, 2023, it is considered a man’s duty to provide maintenance to his wife, children and parents. The main objective of this provision is the welfare of the women by providing them the financial support from their husbands, taking into consideration the financial capacity of the husband. Apparently, the provision may look beneficial to women, but exhibits innate gender bias. It views women as “dependents”, protecting the patriarchal notion that they are financially clinging on their male counterparts for their living. The constitution forbids discrimination and ensures gender equality under Article 14 and Article 15. These basic principles are violated by a law that assumes men, solely are responsible for providing women with financial maintenance, without taking into account women’s earning potential. Furthermore, it is implied by Article 21, which safeguards the right to life and personal liberty, that any legislation that upholds gender based discrimination is against the principle of individual dignity.
This legislation enacted in the 1950’s, displays the situation of an era when women had just started to realise their autonomy. However, more than 60 years have passed, but the legislation continues to consider the status of women as economically dependent irrespective of their growth in education, employment, and various professional areas. In the case of Neeraj Aggarwal v. Veeka Aggarwal, the wife sought maintenance on the grounds that she was unable to maintain herself. However, later it was revealed that she had a degree in engineering and was pursuing an MBA, indicating her capacity to earn.
The supreme court also decided in Savitaben Somabhai Bhatiya v. State of Gujarat that maintenance must be granted to anybody who is truly unable to support oneself, regardless of gender. Maintenance rules ought to fulfil their intended protective function rather than becoming a means of financial exploitation. By requiring both spouses to reveal their assets and income, the court has established thorough standards for calculating maintenance in subsequent cases, encouraging openness and equity in maintenance procedures. The idea of male responsibility and female reliance is upheld by the law’s failure to provide any recourse for men who want to seek maintenance from their female partners.
In comparison, various personal laws in India provide a more uniform perspective to maintenance, encompassing gender neutral provisions. Section 24 and Section 25 of the Hindu Marriage Act, 1955 permits either the husband or the wife to seek maintenance if they are unable to maintain themselves. The provision is outstanding for explicitly mentioning that both men and women can require maintenance, as a result avoiding gender-based discrimination. Similarly, under Section 39 of The Parsi Marriage and Divorce Act, 1936 either spouse has the right to seek support pendente lite. Further, under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act 1986, Muslim women are entitled to receive maintenance from their husbands during the iddat period. The Divorce Act, 1869, applicable to Christians, provides temporary and permanent maintenance to the wife under Section 36 and Section 37 of the act. Under Section 37 of the Special Marriage Act, 1954, a wife can also claim permanent maintenance in form of gross or periodic sum from the husband.
Furthermore, in accordance with the constitutional principles of gender equality, the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 acknowledges that sons and daughters have an equal obligation to support their parents. Section 144 of the BNSS and other marriage statutes shall implement this progressive legal position to guarantee gender parity in maintenance disputes. Additionally, the Protection of Women from Domestic Violence Act, 2005, which focuses on the welfare of women, permits maintenance provisions, but is gender specific. When read with Section 144, this leads to an unbalanced approach in which men may be required to pay maintenance without taking into account women’s earning potential or financial independence.
Adoption of a Gender-Neutral Law
The principal intention of adopting the rules on maintenance was once to hold married and divorced women from becoming homeless or defenceless. Traditional gender roles are evolving, with girls often taking on the function of predominant breadwinner whilst men or non-binary humans once in a while requiring protection because of unemployment or different circumstances. In order to get past the antiquated concept that men ought to be the sole providers for their families, gender-neutral laws have to take these tendencies into account and warranty that husbands in domestic relationships can additionally acquire maintenance. The gender gap has additionally drastically diminished as a result of the country’s passage of numerous laws that are supportive of women and provide protection for their reputation and gender.
There have been many nations that have introduced gender-neutral substitutes to maintenance in family law. While if India introduced a law of this sort, it would also meet international standards for the cause of gender equality and justice in cases pertaining to Family Laws. Maintenance laws in countries such as UK, USA, and Canada are more focused on the financial needs and situations of the parties than the discrimination of laws based on gender. Consequently, the status of women has improved in almost every dimension of their life. Recognizing the impact that social evolution has on the mandates on maintenance, courts have in various cases understood and accepted the intent of the law to be gender neutral. There should be codification of gender-neutral maintenance law under section 144 of BNSS which will promote consistency and clarity of court rulings and pronouncements. Legislation formalizing this would facilitate access to such decisions.
Conclusion
It is essential to acknowledge that provisions set forth the Section 144 BNSS and others have suggested the need to reform so that they meet with the current realities in light of the changing social legal milieu. Although these measures were designed to protect the vulnerable, the rule as it stands today reinforces the stereotypical views of gender that are antithetical to the current dispensation. Such gender-neutral maintenance legislation would guarantee that personal needs and abilities, not archaic gender norms, determine financial duties. Additionally, it would provide the courts more clarity, allowing them to render consistent rulings and preserve the equity concept in family law cases. By pursuing gender neutrality, the law should not only address ingrained prejudices but also conform to international norms, guaranteeing that the legal system adjusts to the shifting social and interpersonal dynamics. This change is necessary to promote a more fair and just judicial system that treats everyone equally, regardless of gender.
This blog is written by Deepanshi Gupta is a second year B.A.LL.B. (Honours) student at the Institute of Law, Nirma University, Ahmedabad. She is a 75% merit-based scholarship awardee. With a firm academic foundation, she has actively contributed to legal research through her published works on Project Juris, NLUJAA, and International Journal for Legal Research and Analysis.Her research experience is vast and includes work in cybersecurity, data protection, constitutional law and humanitarian law. With involvement in several committees, such as the ADR Committee and the Committee on Public Relations, an organic representation is made to bring together intellectual pursuits with extracurricular involvements in order to forge a balanced understanding of law in relation to society