From a Pati-Parmeshawar or a Lord to a Partner: How the Conservative Patriarchal Family Ideology Operates and Is Challenged in the Courts

29/8/2022

The data from the NCRB shows that an increasingly large number of women are approaching the courts with complaints of domestic violence every year. In 2018, around 1,03,272 cases were filed, in 2019, again 1,25,298 cases and in 2020, around 1,11,549 cases were under section 498A IPC. These women are approaching the legal system as agents of change with the hope that they will no longer be abused. Complainants do not see their violent husbands as pati-parmeshwars, lords, or masters, but are expecting men to be their partners. The new generation of women views marriage as a companionship. They are simply demanding violence-free homes. This changing aspiration among young women is also reflected in some of the recent movies such as The `Darlings’, `Secret Superstar’, `Thappad’, and so on.

However, on the other side, neither the violent men, nor the male-dominated courts, nor the patriarchal society as the up keepers and the preservers of patriarchy are willing to come out of their traditional age-old patriarchal mindset. The rigid conservative attitude of the courts is evident from the recent remark made by a woman judge from the Delhi High Court who hailed Manusmriti and preached about family ideology rather than endorsing constitutional values. Also, from the analysis of the spate of judgments, it is observed that the courts promote `familyism and not feminism’. The patriarchal logic in such decisions paints complainants as `disgruntled women’, liars, `gold diggers’, and so on ignoring the fact that the law is clearly being made with the intent to protect the rights of the victims and survivors and that violence in marriage is not a `men versus women’ issue. The top-down approach of the courts failed to uphold the constitutional values or the aspirations of the new generation of women.

While examining these vast contradictions or the `clash of ideologies’ that operates on a daily basis in the courtrooms, this piece of work observes that in the 21st century, a vast difference exists between the way women on grounds are dealing with the realities of domestic abuse, the way the domestic violence laws exist on paper, and the top-down approach taken by the courts while implementing the laws.  This work, while referring to the patriarchal attitude highlights that an `insecurity’ prevails in the male-controlled society that is fearful of a new generation of women who are demanding violence-free homes, see marriage as a partnership and expect men not to be the companions and not the chauvinist lords. It suggests that the courts as the custodian of the rule of law need to uphold constitutional values and need to restrain from imposing the conservative ideology, to accept the changing socio-economic realities to shatter the shackles of conservatism. However, this is not happening. Yet, despite of facing huge challenges[, women, today, are showing the path of transformation by refuting patriarchy and countering the age-old traditions.

https://countercurrents.org/2022/08/from-a-pati-parmeshawar-or-a-lord-to-a-partner/

 Marriage is tragically not construed as companionship by the Indian state and society

“A wife should be an administrator in purpose, a slave in duty, Lakshmi in appearance, Earth in patience, Mother in love, Prostitute in bed”, wrote the Kerala judge while quoting a Sanskrit shloka to interpret the duties of a woman in a matrimonial relationship. (2018)

Thus, as per the court, a wife should be capable of adopting multiple roles. She must be perfect in work and appearance, should be caring and loving, and yet must work as a slave. The role of a wife is painted with high expectations, whereas no such roles are prescribed for husbands by the court. As per this notion, a woman can attain salvation only if she obeys her husband because, for her, her husband is a lord and a master beyond which she cannot have a separate existence. The traditional conservative notions about the ‘good woman’ who is obedient, compliant, docile, and does not question the norms are still prevalent within and outside the courtrooms and prevent many women from seeking justice using the legal system.  In fact, the conventional stereotype of an ‘ideal uncomplaining wife’ is reinforced by the judicial system that reiterates that a devoted and loyal wife will suffer torture silently. The paternalistic attitude that operates within and outside the courtrooms hinders many women from negotiating for their rights or obtaining justice. In fact, marriage is construed as a sacred relationship and not a tie that is based on companionship. As per this approach, it is dharma or the duty of the wife to look after her family subserviently without question. Marriage is considered to be a pious ‘ Dharmic ’ institution that is ‘made in heaven but broken on earth’. Much emphasis is laid on the performance of ceremonies such as the Saptapadi as per the rituals to accentuate the sacramental nature of the relationship that involves a union of souls that extends not only to one but to seven lives. 

Since the colonial era, the courts have been relying on ancient Hindu texts as coded in Vedas and Smritis. Many of these texts have been interpreted as putting the wife on a lower level, considering a woman to be a dasi or a slave. The intersection of caste and gender hierarchies is reproduced to arrive at the interpretation of ancient religious literature while construing rights and wrongs within marriage, rather than the constitutional values or legal norms. For instance, the Bombay High Court adduced that as per Shastras , in an anuloma marriage, marriage between a man from a higher caste to a lower-caste woman is valid, and children born out of such a tie are legitimate. However, the children born out of a relationship between Shudra men and a Brahmin mistress or a pratiloma marriage, which is declared invalid under the Hindu law, are not dasiputra and therefore cannot claim inheritance in their father’s property. While using the Brahmanical texts, gender and caste parameters are utilized to deprive a Brahmin woman and her children of their rights and penalize her for marrying a lower-caste man. This trend of interpreting rights in marriage narrowly continued in independent India. Contrary to the constitutional values of equality, justice, and liberty, such orthodox ideas and stereotypes are being embedded in personal laws morally, religiously, and socially and are evident in the spate of rulings and verdicts pronounced by the courts. 

Excerpt from my Book Women and Domestic Violence Law in India: A Quest for Justice, (2019) Routledge