Bombay HC Upholds S. 20(3) of HAMA

In a brief judgement today, the Bombay High Court rejected a challenge to S. 20(3) of the Hindu Adoptions and Maintenance Act. Under Sections 20(1) and 20(2), a Hindu is bound to maintain his children as long as they are minors. Section 20(3) stipulates, however, that an unmarried daughter is to be maintained as long as she is unable to maintain herself out of her own earnings or property. In other words, an unmarried son loses all claims to maintenance upon majority, while an unmarried daughter can claim if she is unable to maintain herself.

Section 20(3) was challenged on the grounds of Article 14 (equality before laws) and Article 15 (non-discrimination on the basis of sex). The Court rejected both arguments; unfortunately, it made no attempt to provide a reasoned argument supporting its conclusions. On the Article 14 issue, it noted:

The class of unmarried sons who have attainemajority is completely different from the class of unmarried daughters who have attained majorityThe reason being the peculiar position of a daughter and especially an unmarried daughter in Hindu society. Therefore, the argument that two equals are being treated as unequals is not at all acceptable and therefore, Article 14 will have no application.”

The conclusion states the premise. Why are the two classes different? What is this “peculiar position” occupied by the unmarried Hindu daughter? Logically, the reason for granting maintenance to one and denying it to the other can only be that the former class is expected not to be able or willing to maintain themselves. But is that a constitutionally legitimate assumption? In Anuj Garg vs Hotel Association, as we have discussed previously on this blog, the Supreme Court made it clear that stereotypical assumptions about the roles of the sexes in modern society, or about the spheres in which they should be confined by virtue of birth, cannot be made the basis of laws that grant unequal benefits or burdens to men or women. In fact, interestingly, the logic of Anuj Garg, which is borrowed from American sex discrimination jurisprudence, had its inception in Frontiero vs Richardson, a case where the challenged policy was somewhat similar to S. 20(3) of the HAMA. In Frontiero, according to the US Air Force rules for benefits for dependent spouses, “servicemen could claim their wives as dependents and get benefits for them automatically, while servicewomen had to prove that their husbands were dependent on them for more than half their support.” Holding this to be unconstitutional (even though it ostensibly benefited women), the Supreme Court held:

“[T]he sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.

Notice, once again, that from within a tangible, purely economic framework, women were actually benefiting from the policy. But what the American Supreme Court was concerned about was the fact that these benefits were predicated upon an ideology that cast women as inferior, and destined to remain within the domestic sphere by virtue of their sex – a view that is now called “romantic paternalism”.

This brings us to the second prong upon which S. 20(3) was challenged – Article 15. Here, the Court was even more perfunctory in its dismissal:

“… clause (3) of Article 15 specifically provides that nothing in the Article 15 shall prevent the State from making any speciaprovision for women and children. Sub-section (3) of section 20 is a special provision within thmeaning of clause (3) of Article 15.”

Article 15(3) of the Constitution states:

“(3) Nothing in this article shall prevent the State from making any special provision for women and children.”

The key question, of course, is what is legitimately covered by the phrase “special provision” – and it speaks back to the discussion of Anuj Garg and Frontiero. Virtually any kind of inequality can be justified as being a “special provision” for women – in fact, recall that in Anuj Garg that prohibition upon women from working as bartenders was sought to be justified under Article 15(3), being a special provision for their benefit! This, of course, is the very embodiment of romantic paternalism, and Anuj Garg makes it clear that classifications on this basis cannot be sustained, even when the State makes a claim that the law actually benefits women, and is thereby saved by Article 15(3).

This being the case, it is unfortunate that the Bombay High Court blandly assumed that a law that seemed to provided a benefit to women at first blush, was automatically saved by Article 15(3), without the need for a further enquiry into its rationale and its foundations. Of course, there is a very fine line between a law that is based on impermissible stereotypes, and a law that allocates unequal benefits and burdens in a bid to remove historical and structural disadvantages. For instance, a law mandating reservations for women in Parliament is clearly not based on stereotypes about the separate roles and spheres of men and women (quite the contrary!), but is meant to help women to overcome long-standing hurdles to their full participation in politics and the public sphere. Similarly, it might well be argued that 20(3) is simply cognisant of an unfortunate social reality, and seeks to ensure that women are put on a secure financial footing, in order for them to truly be in a position to lead fulfilling and self-determined lives.

I am not sure whether such an argument would succeed, but it is an argument that needs to be engaged with, when considering the constitutional validity of provisions like 20(3), which very evidently place unequal burdens upon men and women, and definitely had their inception in a romantic-paternalistic view of women as domestic and private beings. Unfortunately, by reducing both constitutional arguments (14 and 15) to mere assertions, the Bombay High Court missed a chance to develop Indian sex-discrimination jurisprudence in a meaningful way.


1 Comment

Filed under Article 15 (general), Non-discrimination

One response to “Bombay HC Upholds S. 20(3) of HAMA

  1. Mangesh Patwardhan

    Nice post. I have a few comments.
    1. Art. 15(3) does not even talk about special provisions for women for their benefit. It merely talks about special provisions per se. The Constitution Bench Judgment in “Yusuf Abdul Aziz v. State of Bombay (1954)” was probably the first one to deal with this Article. The constitutional validity of s. 497 of IPC which criminalizes adultery committed by a man with a woman who he knows or believes to be the wife of another man was at issue here. This was challenged on the ground of being violative of Art. 14 and 15 as the wife cannot be tried even as an abettor, even though she is consensual partner in the act (this is because s. 497 comes into play only if the intercourse does not amount to rape, and has to be consensual). The Court held that the section is clearly saved by Art. 15(3). It said “The provision complained of is a special provision and it is made for women, therefore it is saved by clause (3).” It specifically rejected the contention that the special provision has to be for the benefit of women and it cannot be used to give them a licence to commit and abet crimes. There is no discussion on this point however. The Court cryptically remarked “[w]e are unable to read any such restriction into the clause…”. Following this logic, one could argue that amending the IPC so as to exempt women from criminal liability by redefining all offenses as such only when committed by men would not fall foul of Art. 14 and 15. This, I would respectfully submit, is not founded on sound policy. Since Anuj Garg was a two judge bench judgment, I am not sure if it is consistent with Yusuf Abdul Aziz, as the impugned law there was a special provision and was made for women. I think a piecemeal approach to this issue would not work. Rather, a larger Constitution Bench needs to relook at Yusuf Abdul Aziz to delimit the scope of Art. 15(3). This is important as I’ve heard feminists justify the lack of criminalization of (at least some aspects of) domestic and sexual violence against men, simply by invoking Art. 15(3).
    2. Patriarchy is indeed an alluring term but I think we must be careful. Your analysis of the impact of s. 20(3) of HAMA is focused on the inappropriate gender stereotypes w.r.t. women. I think the issue is as serious form men’s perspective as well – it implicates the social and legal burdens they have to bear in terms of their role as providers. The impugned section effectively mandates that once a male becomes a major, he should be able and willing to find a source of income on his own and should not expect any support. This is clearly ridiculous in the current context, as pursuing any respectably advanced course would mean the man is financially dependent much later into his age.
    3. Anuj Garg received a lot of publicity and good press. However, a state law in Tamil Nadu that denied men an entry into a nursing course in the state was upheld by the HC. Unfortunately, there does not seem to have been much discussion on this. So while it is true that traditionally men and women each received a DIFFERENT set of benefits and burdens, it would be wrong to say that men received the benefits while the burdens entirely fell on men.

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