Terms of equality

The challenge of gender reform through the justice system is complex. Madras HC order is a reality check

An order by the Madras High Court raises grave questions on the law and orthodoxy. On Monday,the court held that an unmarried man and an unmarried woman who indulge in sexual gratification will be considered to be in a valid marriage. The court had been hearing an appeal to an order of a Coimbatore court,which had asked a man to pay maintenance for two children born to a woman he had been living with,while turning down her plea for maintenance. The high court held her plea valid. But the judge also proceeded to rework the marriage contract for wider application. It would appear that if a man over the age of 21 and a woman over the age of 18 choose to have sexual relations,the fact of those ties will bind them in the obligations of a married couple. Not only is the woman entitled to maintenance,if they decide to part ways the man cannot marry another woman without the previous partners permission. Without quoting too many of the judges observations,we hope that wiser counsel will ultimately prevail to iron out the freely moralising nature of the order.

The law in this country has been a key instrument in reforming gender practices from the age of consent controversies a century ago to pitched battles on inheritance rights for women,from getting women their rights to custody and maintenance to preventing female foeticide. In fact,the law,as it has been enunciated,has been as vital to inching towards gender equality as its application. Language is important because the protection of women and their rights needs to be ensured in a modern,democratic temper,not as a patriarchal assurance of the womans honour. This is why there are such strong pleas that allusions to outraging the modesty of women be comprehensively replaced with words that assert a womans legal right to her bodily integrity and personal autonomy. The requirement is to change the vocabulary of honour and custom to one that reflects a progressive internalisation of the notion of individual rights and obligations.

The high court order is a reality check on the complexity of the challenge before the justice system and how easily it could slip backwards.