GS Paper: GS1-06.Salient features of Indian Society

The Centre has opposed any changes to the existing laws on marriage to recognise same-sex marriages, saying such interference would cause “complete havoc with the delicate balance of personal laws in the country”.

What is the case?

• A petition had sought to recognize same-sex marriage.
• Despite the decriminalization of Section 377 of the Indian Penal Code (IPC), the petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country”.

What did the Centre say?

• Living together as partners and having a sexual relationship with same-sex individuals is not comparable with the Indian family unit concept.
• The Indian concept of family constitutes a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out.
• It said the 2018 landmark judgment of the Supreme Court decriminalizing consensual homosexual sex in India was “neither intended to nor did it in fact, legitimize the human conduct in question”.

Why such a move by the Centre?

• The registration of marriage of same-sex persons also results in a violation of existing personal as well as codified law provisions — such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under the personal laws governing the individuals”.
• Any other interpretation except treating ‘husband’ as a biological man and ‘wife’ as a biological woman will make all statutory provisions unworkable, the government cautioned.
• In a same-sex marriage, it is neither possible nor feasible to term one as ‘husband’ and the other as ‘wife’ in the context of the legislative scheme of various personal laws.

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Back2Basics: Article 377 of IPC

• Section 377 of the Indian Penal Code (IPC) is an act that criminalizes homosexuality and was introduced in the ear 1861 during the British rule of India.
• Referred to ‘unnatural offences’ and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life.
• However, in a historic verdict, the Supreme Court of India on September 6, 2018, decriminalized Section 377 of the IPC and allowed gay sex among consenting adults in private.
• The SC ruled that consensual adult sex is not a crime saying sexual orientation is natural and people have no control over it.
• It also said that Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality.

The task force set up to take a re-look at the age of marriage for women has submitted its report to the Prime Minister’s Office and the Ministry of Women and Child Development.

Try this question for mains:

Q.The different minimum age of marriage for women and men is a discriminatory provision. Analyse.

What is the issue?

• PM in his I-Day speech last year spoke about a panel formed to decide on the “right age of marriage” for women.
• The minimum age of marriage, especially for women, has been a contentious issue.
• The law evolved in the face of much resistance from religious and social conservatives.
• Currently, the law prescribes that the minimum age of marriage is 21 years and 18 years for men and women respectively.

Invoking ‘Majority’

• The minimum age of marriage is distinct from the age of majority which is gender-neutral.
• An individual attains the age of majority at 18 as per the Indian Majority Act, 1875.
• The law prescribes a minimum age of marriage to essentially outlaw child marriages and prevents the abuse of minors.

About the Committee

• The Union Ministry for WCD had set up a task force to examine matters pertaining to the age of motherhood, imperatives of lowering Maternal Mortality Ratio and the improvement of nutritional levels among women.
• The task force would examine the correlation of age of marriage and motherhood with health, medical well-being, and nutritional status of the mother and neonate, infant or child, during pregnancy, birth and thereafter.
• It will also examine the possibility of increasing the age of marriage for women from the present 18 years to 21 years.

How common are child marriages in India?

• UNICEF estimates suggest that each year, at least 1.5 million girls under the age of 18 are married in India.
• It makes our country home to the largest number of child brides in the world — accounting for a third of the global total.
• Nearly 16 per cent adolescent girls aged 15-19 are currently married.

Provisions for the minimum age for marriage

• Personal laws of various religions that deal with marriage have their own standards, often reflecting custom.
• For Hindus, Section 5(iii) of The Hindu Marriage Act, 1955, sets 18 years as the minimum age for the bride and 21 years as the minimum age for the groom.
• However, child marriages are not illegal — even though they can be declared void at the request of the minor in the marriage.
• In Islam, the marriage of a minor who has attained puberty is considered valid.
• The Special Marriage Act, 1954 and the Prohibition of Child Marriage Act, 2006 also prescribe 18 and 21 years as the minimum age of consent for marriage for women and men respectively.
• Additionally, sexual intercourse with a minor is rape, and the ‘consent’ of a minor is regarded as invalid since she is deemed incapable of giving consent at that age.

Evolution of the law

• The IPC enacted in 1860 criminalised sexual intercourse with a girl below the age of 10.
• The provision of rape was amended in 1927 through The Age of Consent Bill, 1927, which declared that marriage with a girl under 12 would be invalid.
• The law faced opposition from conservative leaders of the Indian National Movement, who saw the British intervention as an attack on Hindu customs.
• A legal framework for the age of consent for marriage in India only began in the 1880s.

Comes in: The Sarda Act

• In 1929, The Child Marriage Restraint Act set 16 and 18 years as the minimum age of marriage for girls and boys respectively.
• The law, popularly known as the Sarda Act after its sponsor Harbilas Sarda, a judge and a member of Arya Samaj, was eventually amended in 1978 to prescribe 18 and 21 years as the age of marriage for a woman and a man respectively.

Contention over different legal standards

• There is no reasoning in the law for having different legal standards of age for men and women to marry. The laws are a codification of custom and religious practices.
• The Law Commission consultation paper has argued that having different legal standards “contributes to the stereotype that wives must be younger than their husbands”.
• Women’s rights activists have argued that the law also perpetuates the stereotype that women are more mature than men of the same age and, therefore, can be allowed to marry sooner.
• The international treaty Committee on the Elimination of Discrimination against Women (CEDAW), also calls for the abolition of laws that assume women have a different physical or intellectual rate of growth than men.

Why is the law being relooked at?

• Despite laws mandating minimum age and criminalizing sexual intercourse with a minor, child marriages are very prevalent in the country.
• From bringing in gender-neutrality to reduce the risks of early pregnancy among women, there are many arguments in favour of increasing the minimum age of marriage of women.
• Early pregnancy is associated with increased child mortality rates and affects the health of the mother.

Upholding the Constitution

• Petitioners, in this case, had challenged the law on the grounds of discrimination.
• It is argued that Articles 14 and 21 of the Constitution, which guarantee the right to equality and the right to live with dignity, were violated by having different legal ages for men and women to marry.
• Two significant Supreme Court rulings can act as precedents to support the petitioner’s claim.
• In 2014, in the ‘NALSA v Union of India’ case, the Supreme Court, while recognising transgenders as the third gender, said that justice is delivered with the “assumption that humans have equal value and should, therefore, be treated as equal, as well as by equal laws”.
• In 2019, in ‘Joseph Shine v Union of India’, the Supreme Court decriminalized adultery, and said that “a law that treats women differently based on gender stereotypes is an affront to women’s dignity”.

Indian cricket captain has opted for paternity leave amidst an ongoing tournament. This has led to his criticism as well as praise for prioritizing family.

Q.Paternity leave is one of the solutions which can help in ending the “motherhood penalty”.  Examine with context to working mothers.

What is Paternity leave?

• Paternity leave is a short period of leave for the father to take immediately following childbirth to help care for the child and assist the mother.
• Parental leave is a longer period of leave granted to look after the infant child, usually after the expiration of paternity/maternity leave.

Legal Aspects of Paternity Leave in India

There is no specific or explicit law for paternity leave in India.

• Maternity leave is governed by the Maternity Benefit Act, 1961 which was last amended in 2017 to enhance the period of maternity leave to 26 weeks from the previous 12 weeks.
• The Central Civil Service (Leave Rules), 1972 allows for 15 days of paid paternity leave before childbirth or up to 6 months from the date of the delivery of the child.
• An attempt was made to introduce a pan India legislation on paternity leave in 2017 as a private member’s bill in Lok Sabha, but it was not successful.
• The Paternity Benefit Bill, 2017, provided for a paid leave of fifteen days which could be availed up to three months from the date when the child was born.
• It also included an adopted child below the age of three months and applied to men in the organised i.e. private as well as unorganised sectors.

Popular trends

• The longest leave –– six months –– is provided by Ikea, which extends rules from home country Sweden to India.
• Among Indian companies, Zomato made news in 2019 when it decided to give 26-week paternity leave to its employees.

Precursors in India

• The Central Government recently announced that male government employees who are ‘single parents’ which included widowers, divorcees, or unmarried men raising children single-handedly would now be entitled to “child care leave” (CCL).
• Here, they would receive 100% of the leave salary for the first 365 days of leave and 80% of leave salary for the next 365 days.
• This leave was previously only available to women employees.

Why paternity leave matters?

• Most working new mothers (for those who can make that choice) opt for maternity leave either just before the birth or after childbirth.
• It paves the way for at least their temporary, and sometimes their permanent exit from the workplace.
• On the other hand, not many fathers experience much difference in their employment and workplace situation after their child is born, which may either be voluntary by not taking time off or involuntary.
• This structural difference is one of the key components that influence gender dynamics both in the workplace and at home.

The gender dynamics behind

• Lack of paternity leave not only robs new fathers of the crucial chance to bond with their newborn child but also reinforces women’s role as the primary caregiver and underpins the belief that child care is predominantly the mother’s job.
• Paternity leave is a way to directly address the gender dynamic that prevails both at the workplace and at home.
• The undue burden of childcare that is placed on women at home is bound to and does, spill over into their workplace and professional lives.
• The natural effect of it is that it puts hurdles across women’s careers and might slow their growth prospects while some women might choose to quit altogether.

Way forward

• By only having maternity leaves and not giving due consideration to paternity leave, the stereotype that women belong at home, taking care of children is reinforced.
• By no means is the introduction of paternity leave a panacea for gendered workplaces, but it will be a significant step in combating and overcoming stereotype.
• For India, a decent way to begin would be to have a national policy on paternity leave that would include all fathers and would apply irrespective of whether they worked in the organised or unorganised sectors.
• Shifting from a purely maternity oriented care framework to a parental care framework which would involve both parents would be beneficial for all stakeholders and is what we need today.

Conclusion

• A major benefit that accrues from paternity leave is that it eases pressure and stigma from women at the workplace, as they no longer are the only ones who are taking leave for child care purposes.
• Paternity leave is also one of the solutions which can help in ending the “motherhood penalty”.
• The motherhood penalty is a term that describes the disadvantages that women with children face as compared to women who don’t in workplaces.
• Fathers need to be active co-parents and not just helpers to their female partners/wives.
• And for ones with feminist’s perspectives, they should not look paternity leave as a sole vacation for men.