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Do men face negative bias in family courts

August 18, 2021

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This article is written by Akshita Rohatgi, a student at GGSIP University, New Delhi. It covers the lawsuits falling under the Family Courts Act, 1984, and examines the likelihood of biases against men in the same.

Table of Contents

Introduction

Family courts were set up in response to various women’s rights organizations demanding an informal and non-confrontational method of justice. It was hoped that this would lead to cheap, speedy, and accessible justice, especially for women from marginalized sections. The Family Courts Act (1984), (hereinafter referred to as the Act) contains a provision encouraging the appointment of female judges in these courts.

However, the Act behaved differently in practice. Its opening clause enshrines the focus to be on the “preservation of family” through mediation and conciliators. Feminist organizations allege that these conciliators often end up being influenced by patriarchal mindsets. They encourage women to reconcile with their husbands, disregarding their personal autonomy, self-respect, and safety.

The glaring lack of datasets containing decisions of family courts obstructs efforts to arrive at observational conclusions. The ostensible causes include a lack of judgments of family courts in various legal databases, as with other low-level courts. Another reason specific to family courts is that proceedings are held in private. Consequently, the facts of the case often get blurred. Judgments of Family Courts are usually not made available to the public online, which makes it harder to compile datasets and make judgments more accessible.

What is the root of gender bias in courts

Judicial courts, including Family Courts, operate in the broader context of society. Traditional gender roles favor a family unit with a male and female parent with biological children. They regard the mother as the child’s nurturer and the father as their breadwinner. Fathers are not expected to interact as much with the children. Their primary duty is providing money to lend them a comfortable life. In contrast, the mother is to be actively involved in every aspect of their life.

Due to social pressure, many families often fall into abiding by these traditional gender roles. In family courts, this plays a major role. When two individuals- here, a man and a woman, enter into a marriage, they often aspire to maintain a stable family unit. They do not perform their duties anticipating a breakdown. Yet when they reach the court, they are forced to confront this scenario. The courts, as most members of society, end up falling prey to these stereotypes. This affects the result of their case.

As westernization is on the rise, a nuclear family with both parents working is gaining greater prevalence. However, traditional gender roles are not that easy to get rid of. Even as more and more women start going out to work, they are considered the primary nurturers. Consequently, they’re forced to juggle both responsibilities.

Do men face negative bias in Family Courts

Family courts have a wide jurisdiction to cover matters related to the validity of marriage, separation, divorce, maintenance, and child custody. Let’s examine the likelihood of negative biases in each type of case.

Divorce cases

Arguments for

According to some men’s rights activists, cruelty, when alleged by men, is less likely to be believed by judges. This is particularly significant since divorce on grounds of cruelty is often used in divorce cases.

Arguments against

It is a well-recognized concern that women often are not able to opt for divorce due to their unstable financial standing and economic dependence on their husbands. It is argued that maintenance laws are often not strong enough to support them. Thus, they are forced to stay in an unsuitable marriage.

Further, child marriage disproportionately affects women and is recognized legally unless caused by force or fraud. Often, the consent of women is ignored, and nevertheless, a minor’s consent is not recognized under contract law. Even so, child marriages are treated as voidable and not void. Minority at the time of marriage is not recognized as a valid ground for divorce after the woman turns 18.

Under Muslim law, polyandry i.e. a woman having more than one husband is not permitted. In contrast, polygamy (a man having more than one wife) is allowed, and is simply a ground for divorce. These laws are discriminatory against women.

Under the Dissolution of Muslim Marriages Act, 1939, a wife can file for divorce on various grounds including desertion, cruelty, lack of maintenance, imprisonment, impotency, and cruelty. On the other hand, the Bombay High Court in Dagdu Pathan n, Latur vs Rahimbi Dagdu Pathan, Ashabi, (2002) declared that a Muslim man simply has to convey reasons for the divorce and appoint conciliators to obtain a valid divorce. Further, under the concept of khula under Muslim Law, the wife has to pay something of monetary value for the divorce. It is worth noting that many provisions of Muslim personal law arise out of judicial decisions, due to the lack of codification of the same.

Maintenance cases

Arguments for

Under the Hindu Adoptions and Maintenance Act (1956) the wife has the right to maintenance, as long as she remains chaste and unmarried. For Hindus, Parsis, and Christians; the financial position of the man, those dependent on him, and certain other factors are considered.

The Hindu Marriage Act (1955) however, allows either spouse who has insufficient means to be entitled to maintenance during the pendency of the divorce proceedings or permanent alimony. This concept is similar to that of maintenance. Provisions under the Parsi Marriage and Divorce Act, 1936, and Indian Divorce Act, 1869 (governing Christians) are similar.

The Muslim Women (Protection of Rights on Divorce) Act (1986) governs maintenance for the Muslim Community. If the husband fails to provide maintenance to the wife, it is a valid ground for divorce.

Arguments against

Time and again, courts have held that a woman capable of maintaining herself need not be provided maintenance. For instance, in Rupali Gupta v. Rajat Gupta (2017), it was held that a wife well qualified and capable of maintaining herself, who chooses to be unemployed may be denied interim maintenance. Similarly, Somdatta Chatterjee nee Raychaudhuri v. Anindya Chatterjee (2019) held that under the Special Marriage Act (1954) a wife earning well would not be awarded maintenance. These cases prove that only women in need of maintenance and financial assistance are awarded the same.

Next, women’s groups have argued that the father is absolved of all responsibility of supporting the child when they turn 18 if the custody is with the mother. This is a critical juncture in the child’s life. Yet, costs for supporting the child through college are borne by the single mother alone. According to Section 317 of the Indian Penal Code, neglect by the father can only be invoked when a single mother completely abandons her child.

Women are disproportionately affected by unemployment and face various kinds of biases at work. Thus, they are often not in the position to solely provide for themselves, and their child.

Custody cases

Arguments against

In many cases, it is thought that since fathers have a better financial standing, they would be able to better look after a child’s needs. This is reflected in the Hindu Minority and Guardianship Act, 1956 that governs minor’s custody among Hindu, Sikh, Jain, and Buddhist Indians. It regards the father as the primary “natural guardian” of a son or unmarried daughter, once more than five years of age. Until then, the mother is considered a natural guardian of the child, and the father becomes the secondary guardian.

In cases of illegitimate children or an adopted son, the mother is the primary natural guardian and the father- secondary. However, married women are considered in a separate category, and their natural guardian is deemed to be the husband.

The Calcutta High Court in Seikh Simran Rahaman v. Sekh Jiayur Rahaman (2016) shed light on provisions regarding custody of minors under Muslim Law. It laid down that the mother is entitled to custody of a son till the age of 7, and the daughter till puberty, even if divorced. However, in case of her re-marriage, custody transfers to the father.

Arguments for

Oftentimes, courts look at the mother as the primary caregiver, who has a better personal bond with the child. This affects the outcome of the case and mothers are awarded custody.

This mindset is reflected in a 1980 report of the Law Commission of India. The report consisted of an analysis of the Guardians and Wards Act, 1890. It recommended the government allow the mother of a minor their custody till the minor is 12 years of age. The reason attributed was to prevent the father from using the child as a “pawn” to secure the submission of his wife to him.

However, in Dr. Ashish Ranjan v. Dr. Anupama Tandon (2010), the Supreme Court declared that a wife is not above using the child as her pawn either. In the given case, it held that the minor child’s mind had been influenced such that he had no respect or affection for the father. Thus, the court held the mother liable for contempt of court.

Similarly, in the case of Chethana Ramatheertha v. Kumar V. Jahgirdar (2002), the Karnataka High Court believed that a child gets the best education and protection under their mother. This sweeping generalization was condemned by the Supreme Court in an appeal (AIR 2004 SC 1525). The Apex Court made it clear that it did not support the Court’s claim that a mother’s custody would always be favorable to the father’s.

How can family courts be made more equal?

Reducing confrontation and making justice more accessible is an achievement of family courts. However, the reliance on subjectivity of a single judge, produces undue biases and arbitrariness.

Additionally, Family court proceedings are often held in private. Thus, the orders and judgments so passed are not available for public scrutiny. This adds to biases and arbitrariness in decision-making. As a result, many decisions rest on the discretion of judges. This also impedes efforts towards researching the problems of our current structure. A mechanism for ensuring greater accountability, along with encouraging empirical research on how to do that is essential.

Divorce and maintenance

In December 2020, a PIL was filed in the Supreme Court demanding gender-neutral maintenance laws, irrespective of religion. However, the plea had the unintended effect of nullifying provisions of personal law and is likely to be unsuccessful. While qualms may arise on if it is the domain of the judiciary to implement this, the concept is in the need of the hour. Divorce and Maintenance laws based on the financial position of both spouses, irrespective of religion will ensure benefits to the party that needs it.

Child custody

In its 257th report, the Law Commission of India proposed a reform of the child custody system in India. This report placed the welfare of the minor at the highest pedestal. It advocated for courts to award joint custody to both the parents, and was of the opinion that this would be in their best interests. It also brought attention to how joint custody can reduce acrimony between their parents, and allow better bonding. However, it also highlighted that the provisions to share custody may end up being harmful in cases of domestic violence, especially when the violence is directed at the child.

Conclusion

The answer to the question of sexism against men in family courts is not a binary “yes” or “no”. It varies from case to case, as gender roles find different ways to influence the outcome of various types of cases. For instance, courts may presume the mother to have a greater emotional attachment to the child, and award her custody.

It may also assume fathers have better financial standing and will be able to provide for the child better. In maintenance cases, they assume the husband has a better financial standing, and ask him to pay maintenance for the child. On the other hand, it would be uneasy with the notion of a woman providing for her husband.

These stereotypes may even be a reality in many cases. Social notions of a father’s duty often prevent men from being too involved in the child’s life. Laws are made keeping in mind a majority of the people who will be affected by it. This is a well established principle of Jurisprudence. So, one can successfully argue that since India is a traditional society and stereotypes are practiced in most cases, laws simply reflect that. However, laws are supposed to be a positive tool for social reform. If laws reflect the society’s discrimination, and society’s discrimination is reflected in laws, where does this vicious cycle end?

The law needs to step out and be the catalyst for this reform, instead of simply upholding the status quo. That’s the way to break the cycle. Discrimination should not be the basis to justify more discrimination. Such stereotyped decisions perpetuate the same gender bias that leads to this. We need to stop these gendered notions of marital duties from affecting decisions in the court of law.