January 4, 2024

Hindu marriage laws and reproductive rights

This article has been written by Ms. Hitika Agrawal, a Second-year student of National Law Institute University, Bhopal.

ABSTRACT

Indian matrimonial laws have provisions that touch on the various aspects of marriage one among which is the role of sex and reproduction in marriage. Various provisions in the Indian Constitution talk about equality, gender equality, and also where the state is asked to provide better healthcare facilities and to work towards the upgradation of the standard of living of people. With the development of the country, the idea of reproductive rights has also developed and there are steps taken to provide better facilities, rights, and education on the concept of family planning, sexual autonomy, equality in reproductive choices, and so on. From ancient times, women have not been given autonomy in reproductive choices and have been considered the property of their husbands and were not given any say in this matter as we can see the case in villages where there are 6-7 kids of one couple and in most cases the women do not even have a say in the number of children they want or they even want to have children. So, the step towards expansion of reproductive rights is a significant one and will help in the upliftment of women and will give them a chance to have a say on the things that affect their bodies and minds.

 

INTRODUCTION

India has been making developments in the topic of reproductive rights for a considerable period and there have been various judgments that have safeguarded the woman’s right over their own body. In several judgments, the court has held that to achieve gender equality the essential feature is reproductive rights and has pitched for women’s right to autonomy over their bodies and decisions at the time of pregnancy. Reproductive rights include various things like the decision of when to reproduce, plan a family, use contraceptives, the right to learn about sex education or to have knowledge about reproductive health services, and so on. Reproductive rights encompass a range of civil, social, and economic rights, including the right to a healthy life, the right to non-discrimination, and privacy and to be free from ill-treatment or torture. States also should provide women with comprehensive information about reproductive health and services and positive outcomes such as lower rates of unsafe abortions and maternal mortality rates are reduced and the women can make fully informed decisions about reproduction and sexuality that are free from discrimination, violence, and coercion.

These rights will help in the upliftment of women and will give them a right over their bodies which will be a great step forward. As there are provisions in Hindu Marriage Laws like mental cruelty including when there are unreasonable sexual demands and cases of marital rape and there are abortion laws that provide for the consent of the women as epitome as they are one whose body will have all the changes. This tells us that reproductive rights have gained momentum in the modern world and are having fast developments in it which is important.

 

CONSTITUTIONAL SAFEGUARDS 

By providing reproductive rights to women, we are taking a step toward gender justice and equality for women. There are various fundamental rights and Directive Principles of State Policy (DPSP) present in the Constitution that provide for these rights. The following are the articles:

    • Article 14: This article talks about equality and giving equal opportunity to women in reproductive decisions will further equality as in most cases women’s choices are not heard in these cases.
    • Article 15: This article talks about non-discrimination based on sex, religion, caste, etc., and allows for special provisions to be made for women and children. This helps keep in check the discrimination that is faced by women and gives opportunity to the state to make provisions where supremacy is given to women’s consent and choice.
    • Article 21: This includes the right to life and personal liberty and in many cases, the courts have held that reproductive autonomy is a part of personal liberty under this article. This article also contains within itself the right to health, timely medical treatment, privacy, etc., which are also essential in reproductive rights.
  • Article 51(c): This article states that the state must respect and implement the international law and treaty obligations that it has signed. India is a signatory to various treaties like the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR). These treaties have various provisions for reproductive rights which the state must work forward to achieve.
  • Article 47: This article talks about the obligation of the state to raise the standard of living and nutrition level. This provides for better healthcare services for the women cause the services are in dire condition which will affect the exercise of rights of the people. Providing education about reproductive rights, better technology and availability of other amenities is the responsibility of the state.

There are various other provisions in the Indian Constitution from which reproductive rights can be derived and women can ask the government to enforce these rights and can also take them as a defense in cases where they are being harassed or exploited.

 

PROVISIONS IN HINDU MARRIAGE LAWS

In the Hindu Marriage Act, there is no direct provision that talks about the reproductive rights of women. However, there are provisions that safeguard the autonomy of women over their bodies and allow them to have a say in reproductive matters. The following are some provisions:

  • “CRUELTY”: The Hindu Marriage provides cruelty as a ground for divorce and under this marital cruelty is also included that can be physical, mental, and sexual. Sexual cruelty will include forceful sex or unnatural sex, denial to have sexual intercourse for a long time without any reasonable ground, marital rape, etc. In the case of Bhagwat v. Bhagwat, the court said that the woman cannot be treated as someone “who does not have a say over her body and someone who has no right to deny sexual intercourse to her husband.” This makes it clear that reproductive rights are implicit in cruelty and if the woman is denied these rights, she can even take a divorce under the Hindu Marriage Act. 
  • IMPOTENCY: In the case of Sri Uma Mahesh v. Smt. Methravathi distinguished between impotency and sterility while impotence means the inability to have sexual intercourse sterility means not being able to conceive. Impotence is a ground for divorce but sterility is not and if there is persistent mental, sexual, or physical torture because the woman is barren then the reproductive right is violated because women’s sexual and reproductive health is related to multiple human rights, including the right to life, the right to be free from torture, etc. and can come under cruelty under Hindu Marriage Act.
  • LEGAL AGE: The Hindu Marriage Act provides a provision where the age of the boy should be 21 years and the girl be 18 years. This allows the girl to have knowledge about her reproductive rights and will allow her to make prudential choices when it comes to reproduction. It is seen that in child marriage the woman is not aware of her rights which is a cause for cases like sexual abuse, teenage pregnancy, and having many children. This provision will help the women to make informed choices about their bodies and will help in knowing these reproductive rights.

 

JUDICIARY ON REPRODUCTIVE RIGHTS

The judiciary has made some important strides in recognizing reproductive rights as being part of women’s fundamental and human rights. Various judgments establish women’s right to reproductive healthcare and autonomy and the obligation of the government to provide affordable and quality maternal health care, prevent child marriage, guarantee access to the full range of contraceptive methods, and ensure access to legal and safe abortion.

Abortion laws

Recent jurisprudence highlights progressive evolution in the area of reproductive rights. However, in earlier cases, the autonomy of women over their bodies was undermined by holding that the consent of the husband is necessary to undergo an abortion. Later on, the situation changed, and various cases for greater constitutional protection of women’s reproductive rights were there. In the case of Suchita Srivastava v Chandigarh Administration, it was held that a woman’s right to privacy, dignity, and bodily integrity are all incorporated into her reproductive rights, which also include the right to carry a pregnancy to its full term, give birth, and raise children afterward. There are provisions in the Medical Termination of Pregnancy Act (MPT Act) that provide for abortion in certain conditions under Sections 3 and 5. However, these sections infringe on the rights of the women as in all the stages they require the consent of the medical practitioner as the ultimate decisive factor and the woman cannot choose to get an abortion on her own and can only get it when there are medical conditions which does not take into account various other factors in account various non-medical factors like economic costs of raising a child, effects on career decisions, or any other personal considerations. This is a cause for unsafe and illegal abortion in India and even though there are judgments where abortion is allowed beyond 20 weeks the women have to resort to the tedious process in the courts to get the relief that infringes on their right. Therefore, the provisions in the MPT Act should be aligned with these judgments to provide women with a right to their bodies.

Surrogacy laws

Surrogacy is also another reproductive issue that has come to limelight as various steps have been taken to regulate commercial surrogacy that has become a business in India. It has been considered a reproduction method and has been covered under the reproductive aspect of privacy rights. The Surrogacy bill was criticized from the very beginning as it allowed surrogacy only for a married couple and a woman who is a widow or a divorcee and the surrogate mother can only be a surrogate once in her lifetime. This puts a limitation on the reproductive rights of women who are single and who want to be a surrogate mother for a second time. There are loopholes in the bill that infringe on the reproductive rights of women that need to be addressed to make it more women-centric and more importance is given to women’s autonomy over their bodies.

Child marriage

Child marriage has always been an evil and has been a part of Indian society and is now also practiced in India in some parts even when so many awareness programs have been implemented. This has been a great cause of suffering for girls in the form of domestic violence, sexual abuse, social isolation, and limited knowledge about sexual relations and reproduction denies them the ability to make informed decisions in matters of family planning and sexual relations. In the case of M. Mohamed Abbas v. The Chief Secretary, it was determined that the Prohibition of Child Marriage Act (PMCA), which set the legal minimum age of marriage for females at 18, superseded private laws without going against Article 25 of the Constitution, which guarantees freedom of religion. This shows us that child marriage cannot be justified even on religious grounds. Thus, it is important to educate girls about their reproductive rights which in turn will help them to understand why it is important to marry when reaching the legal age.

 

CONCLUSION

Women have come a long way and have raised their voices for gender equality and today women are enjoying equal status at par with men. But the issue of reproductive rights is something that is now also not that developed. Women now also are not aware of their reproductive rights including the right to equality in reproductive decisions, the Right to Sexual and Reproductive Security, the Right to Reproductive and Sexual Health Services, the Right to Access to Information and Education, and many others. This is a problem that needs to be addressed and the steps that are taken to strengthen reproductive rights like abortion laws and surrogacy laws should be made women-centric and more autonomy should be given to women in these matters. The judiciary through its judgments has been working towards these changes and has defended women reproductive rights and the government should also work towards them.

 

REFERENCE

Case Laws:

  • Bhagwat v. Bhagwat, MANU/MH/0126/1967
  • Sri Uma Mahesh v. Smt. Methravathi AIR 2013 Kar 41
  • Suchita Srivastava v Chandigarh Administration (2009) 11 SCC 409
  • M. Mohamed Abbas v. The Chief Secretary W.P. (MD) No.3133 of 2015

 

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