New Delhi, Nov. 15: Laws in India advance son preference, says a study by senior Supreme Court advocate and former Law Commission member Kirti Singh, which cites as an example a Goan law that allows a man to remarry if his wife doesn’t produce a male heir.
The Family Law of Usage and Customs of Gentile Hindus of Goa lays down that a man’s second marriage is legal if the first wife doesn’t have any children till the age of 25 or if she does not have a male child till the age of 30.
The provisions on the recognition of “simultaneous polygamy” as well as the legal endorsement of the need for sons should be deleted with immediate effect, recommends the study that was done in collaboration with the United Nations Population Fund.
Other laws may not be as blunt but many inadvertently promote sex selection, the study says, citing the example of the Dowry Prohibition Act, Prevention of Child Marriage Act as well as succession and land reform laws
The anti-dowry law, for instance, describes dowry as any “property or valuable security given or agreed to be given… by one party to the marriage to the other party to the marriage… at or before or any time after the marriage in connection with the marriage.”
The words “in connection with the marriage” are open to interpretation, argues the study titled Law and Son Preference in India, A Reality Check. The Supreme Court has held that if it is alleged that dowry has been given, it must be shown that the giving of items has some connection with the marriage. This, Singh says, is difficult to prove and has led to acquittals.
“Another problem of this act is that it exempts presents given to the bride and the bridegroom at the time of marriage from being considered as dowry… there is no ceiling on the value of presents that can be given…. Ostentatious marriages have become the norm and this norm is being emulated even by those in the middle and working classes. This is another reason for unwantedness of daughters,” the study says.
Under the Prohibition of Child Marriage Act, while there is provision for strict punishment for those who “promote” or “permit” it, the marriage is not automatically void, but is voidable.
“Since the girl is culturally and socially more vulnerable, it is doubtful whether she will be able to exercise her option of getting out of even a violent marriage,” the study says.
Fredrika Meijer, UNFPA Representative for India and Bhutan, said: “The study finds some legal provisions are not just inadequate in checking son preference, but also promote the practice and end up being discriminatory for women. While a law that is not implemented is damaging, one that inadvertently propagates son preference goes against the Indian state’s commitment to gender equality.”
India has a skewed child sex ratio, with 919 girls to every 1,000 boys according to the 2011 census, against 976 in 1961.
What the study says
Different personal laws discriminate against women in varying degrees. Under the Hindu Succession Act, the property of a Hindu woman dying intestate devolves first upon her children and husband. Then, it devolves not on her own family, but upon the heirs of her husband
Some states have laws that overtly exclude daughters and widows from inheriting land
Female foeticide is pushed up by state laws that restrict to two the number of children an elected panchayat/ municipal council representative can have