Invisible to Invincible : Narratives of

Gender Justice

Editors
Dr. Pradeep Kulshrestha
Dr. Khushboo Natholia
Dr. Komal Dahiya

Publisher
ii

Invisible to Invincible : Narratives of Gender

Justice
Copyright © 2025, Author
ISBN: 978-93-49868-04-5
First Impression - 2025
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 iii

 Preface

The pursuit of gender justice remains a central concern in both academic

scholarship and practical governance, reflecting the enduring struggle against
structural inequalities that continue to marginalize individuals across lines of
gender, identity, and social location. This edited volume, Invisible to Invincible:
Narratives of Gender Justice, brings together a diverse array of research that
critically engages with these pressing concerns, offering multidimensional
perspectives on the evolving legal, social, and cultural landscapes shaping gender
rights discourse.
In an era where societal norms, identities, and rights are constantly renegotiated,
the intersections of gender, law, and social justice demand critical and refined
examination. The chapters in this volume traverse a broad spectrum of
contemporary concerns: from the rights and recognition of transgender persons and
the constitutional dilemmas of marriage laws to the gendered implications of
artificial intelligence. Each contribution offers a distinct lens through which to view
the ways law both empowers and restrains, protects, and marginalizes for justice.
The diversity of topics—ranging from religious personal laws, prenuptial
agreements across borders, disability rights, child welfare, to the socio-legal
dynamics of practices like 'Pakadwa Vivah'—is a testament to the complexity of
justice in the modern world. The contributors, drawn from varied disciplines and
perspectives, have interrogated these themes with academic rigor, critical insight,
and a commitment to social relevance.
This collection aspires to not merely document the present state of legal discourses
on gender but to provoke thought, dialogue, and reform towards a more inclusive
and equitable future. It is intended as a valuable resource for scholars, practitioners,
students, and anyone interested in the intersections of law, gender, and society.
This collection does not merely document the obstacles to gender justice; it
celebrates the acts of defiance, the reforms in law, and the voices that have broken
through silence to shape inclusive discourses. Each contribution offers a unique
lens—whether examining the historical marginalization of Muslim women under
personal laws, scrutinizing constitutional dilemmas surrounding marital rights, or
envisioning gender-neutral and inclusive policies in the digital age.
iv

The purpose of this book is not only to stimulate academic dialogue but also to
inspire policy reforms and societal change. It is designed as a resource for scholars,
students, policymakers, and legal practitioners committed to making gender justice
a lived reality rather than a distant ideal.
We express our sincere appreciation to all contributors and reviewers whose
dedication and scholarship have shaped this book. Their efforts ensure that this
volume serves as both a reflection of present challenges and a guidepost for future
legal and social transformations. Their research, insights, and critical engagement
give life to the theme of this book—turning the invisible into the invincible.

Editors
Dr. Pradeep Kulshrestha
Dr. Khushboo Natholia
Dr. Komal Dahiya


 v

CONTENTS

SL. No. Chapters Page No.

Preface iii-iv
1. Intersecting Marginalizations: The Role of Gender, 1-11
Religion, and the Politics of Personal Law in shaping the
lives of Muslim Women in India
Radhika Moondra
2. Beyond Stereotypes: Unleashing a Qualitative Study of 12-23
Gendered Brainwashing and Delinquency for
Reformative Revisions Through Legislation in India
Peeyusha Pahal
Shristi
3. Discrimination against the third gender as a factor of 24-44
crime causation Jaya Sachan, PhD Scholar, Bennett
University
Dr. Komal Dahiya
4. Addressing Gender-Based Violence in the Metaverse: A 45-57
New Frontier for Law
Prachi Bohare
Co – Author: Tanishka Jain
5. Transgender Rights, Identity, and the Law: A Critical 58-83
Analysis of Global Trends, Indian Realities, and
Contested Narratives
Sarthak Arya, Isha Shroff
6. Marriage - A License to Unconsented Sexual Intercourse? 84-97
Questioning Its Constitutionality
Lovish Khurana, Isha Jain
7. My Body, My Choice : The Legal and Ethical Batile for 98-110
Reproductive Rights and Bodily Autonomy
Dr. Neelam Seam
vi

8. Neither A Fault Nor a Sin : the Studies of Coming Out, 111-122

Marriage, Influence by Religion, and Representation in
India
Sahil Yadav
9. An Analysis of LGBTQ + Rights in India 123-137
Akanksha Srivastava, Co- Author: Dr. Reena Bishnoi
10. Equity and Adequate Justice: A Distant Dream For Man 138-157
Subidya Vedasnata, Aditi Tanaya Samal
11. Legal and Psychological Impact of Divorce on Children 158-171
Aditya Gupta, Dr. Komal Dahiya
12. Once Tabooed Now Tallied : Exploring the Dynamics of 172-182
Live in Relationships in Uttrakhand UCC
Anushka Jain, Shailja Singh
13. Global Politics and its Hidden Agenda: their Impact on 183-199
Indian Family Structures, Marital Relations and Gender
Dynamics
0000
14. Men's Rights are Also Human Rights : The Tale of the 200-211
Transformation of Section 498A from a Shield to a
Weapon
Aakarsh Chaudhary, Ansh Pandey
15. Tied by Force, Freed by Law : A Study on Pakadwa 212-227
Vivah in Bihar and Its Legal Implications
Surbhi Suman, Atibhi Sharma
16. Gender Equtty Under Maintenance Law 228-246
Chhavi Priya, Harshi Pandey
17. Matrimonial Safeguards Across Borders : A 247-262
Comparative Legal Discourse on Prenuptial Agreements
in India and the USA
Vanshika Yadav, Sneha Kumari
 vii

18. Beyond Binaries: Gender, Sex, and the Fight for Human 263-273
Rights
Tracey Sehgal, Co-Author – Priyanshu Singh,
19. From Barriers to Bridges: Disability Laws in India and 274-299
the U.S. Compared
Nibedita Tung, Co-Author- Lakshay Tyagi
20. Child Swapping at Birth: Legal Ramifications and 300-321
Parental Entitlements in Family Law
Rupanjana Sardar, Vishesh Guha Majumder
21. Irretrievable Breakdown of Marriage and the Hindu 322-331
Marriage Act, 1955
Nikita Tayal
22. Al, Gender, and Design Justice in the Gender Panopticon 332-340
Ashutosh Mishra, Co-author - Arma Malik

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viii

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 Intersecting Marginalizations: The Role of Gender,
Religion, and the Politics of Personal Law in shaping the
lives of Muslim Women in India
Radhika Moondra
Assistant Professor and Research Scholar (University of Rajasthan)
Abstract
In the face of structural injustices, Muslim women in modern-day India negotiate a
complicated interplay between gender, religion, and sociopolitical reality as they shape
their identities. Muslim women are seen as triply marginalized, as a women, as a member
of minority religious group, and their legal status guided by personal law. Their identity
and agency are socially constructed reinforcing subordination of women through the
interpretations of the traditions by male conservatives. The quest for Islamic identity often
seeks to regulate personal domain through Quranic injunctions reducing the quantum of
autonomy of women by interlocking it with religion and customs. The religio-political
manipulation of women remains at the core of the Indian politics, where the infamous
cases of Shah Bano, Triple Talaq and UCC debates reflects how women’s rights as a
legitimate citizen gets subsumed by community’s rights. The equality code mentioned in the
Constitution remains in tension with the community’s quest to cling to religious identity
outlining the parameters of women’s agency and rights. A strong women led mobilization
for gender justice is required from within the community by following the Islamic discourse
to question the patriarchal interpretation of texts. The article tends to employ the discourse
of Islamic feminism for advocating gender justice through gender-sensitive interpretation
of Quranic injunctions. This study undertakes Saba Mahmood’s influential work, Politics of
Piety, as a research framework to broaden the understanding of what constitutes freedom
and agency through engagement with Islamic ethics in shaping social norms. The study
concludes with practical suggestions, including more educational opportunities, proactive
involvement of Muslim women in policymaking, and interfaith discussions to promote
gender justice.
Keywords- Muslim woman, Gender justice, Islamic Discourse, Islamic Feminism, Personal
law.
Introduction
Sachar Committee Report (2007), remains a landmark state-led investigation
providing insights into systemic exclusion, identity-based vulnerabilities and
institutional neglect of Muslims, India’s largest minority group. The report
indicates that Muslims remains institutionally marginalized as “lagging behind
most other group in every sphere of development” in the spheres of education,
employment, health and political representation. The report offers critical
2 Invisible to Invincible : Narratives of Gender Justice

assessment of Muslim women marginalization at three levels- limited constitutional

protection, their lives dictated by the patriarchal interpretation of personal laws and
limited political participation in decision-making. The report starkly highlights the
inadequacy of state’s institutional support to the women reproducing
marginalization and exclusion of women across education, employment, healthcare
and welfare subsidies. 1 For years, Muslim women have been disadvantaged by
gender inequality, limited mobility, poverty, and a lack of legal reforms.
Furthermore, conservative and patriarchal social norms constrain Muslim women’s
choices and self-determination. According to the Sachar Report, the government’s
focus on blaming the religious community for the poor status of Muslim women
overshadows its failure to implement adequate developmental policies for their
upliftment. The report considers the need for ensuring that different communities
are represented in government sector employment in order to ensure participatory
governance. Their marginalization and exclusion from growth are exacerbated
when the community is exposed to anti-democratic ideals due to their lack of
involvement in the social, political, and economic spheres.2
Intersection of Gender, Religion and Legal Exclusion of Muslim Women
Asghar Ali Engineer (2007), claims that many Muslim women remain unware of
their rights in Constitutional and religious legislations. While conducting the
workshops on the rights of Muslim Women, he discovered that “when women listen
to what is written in the Qur’an (on the rights and status of women), they say they
never thought that the Qur’an liberates them”.3 He demarcates a historical and
theological gap between the Quranic Injunctions and Sharia Law requirements
pertaining to the treatment of women under Islam. By attempting to deconstruct the
myth that Islamic Personal Laws as immutable, he argues that it is largely the
product of feudal, patriarchal and historically contingent jurisprudence. He further
draws attention to a common misunderstanding regarding the discriminatory nature
of Islamic laws for women in general, but what many overlook is that they have
their roots in medieval patriarchal fiqh(a body of Islamic laws and Jurisprudence
derived from Quran and Sunnah) and Arab culture Adaat(customary laws). In order
to uphold the gender-just discourse, he highlights the necessity of correcting the
Sharia-based discourse that marginalizes women by making it duty-based for males
and rights-based for women in accordance with the Quran. Engineer’s theoretical
underpinnings support the study's assertion that reinterpretations of the legal and
theological interpretations is necessary to reverse the marginalization of Muslim
women in India. Gender equality in the areas of marriage, inheritance, divorce,
maintenance, and women's status under personal laws is progressively consistent
with the Quranic teachings. 4
 Invisible to Invincible : Narratives of Gender Justice 3

Eshita Sur (2018) critiques the patriarchal community's and the Indian state's
gender justice narratives while highlighting the complex oppression of Muslim
women in India through her focus on the Triple Talaq Bill of 2017. Based on the
landmark rulings in the Shah Bano Case (1986) and Shayaro Bano Case (2016), she
considers how Muslim women are shaped by both external political manipulation
and internal cultural manipulation. Their journey goes on to show their
socioeconomic weaknesses in both the public and private spheres, while also
evoking a variety of community emotions and political manipulation over their
struggles for justice. She draws attention to the Triple Talaq Bill, 2017
"protectionist approach," which criminalized the declaration of "talaq-e-biddat" as
unlawful and unconstitutional while ignoring the obvious correlation between its
effects on maintenance, livelihood, and social boycott. Making it a non-bailable
offense significantly complicates Muslim women's life by blatantly attempting to
establish a dichotomy between "helpless Muslim women victims" and "oppressor
Muslim husbands." The welfare-driven goal for gender justice ignores the fact that
women are not socially isolated and that no reform can be confined to the
dichotomy of freedom vs religion or personal law versus constitutional law. 5
Shilpi Pandey (2024), takes the debate further to understand the intricacies of the
Uniform Civil Code to highlight the central claim that women are marginalized at
three levels: gender, religion, and state-approved personal rules. She investigates
how the colonial and post-colonial states continued to shape Muslim women's lives
by enforcing their rights under the codified Sharia Act, 1937. Anglo-Muhammadan
law was codified as a result of British administrators' misreading of Muslim law,
which was frozen because to their incapacity to understand the diversity of Islamic
law. The Muslim Personal Law (Shariat) Application Act of 1937 formalized this
tradition and continues to regulate Muslim women to this day. In the hands of
political authorities and fundamentalist organizations that serve as the community's
gatekeepers, Muslim women's lives are nonetheless shaped by their "scriptural
identity." The rights of Muslim women remains at the center of gender justice,
religious freedom and secular democratic state discourses with no rescue options.
The secular democratic state’s entity continues to show hesitancy in revising
personal laws for its political goals thereby subordinating the interests of women to
the collective interests of the community. Due to ongoing socioeconomic
vulnerabilities and the lack of significant reforms in personal laws, Muslim
women's empowerment as an issue continues to be increasingly fragmented and
absent.6 The Indian state’s secular unwillingness to shift from criminalizing like
Triple Talaq Act to access based interventions is largely responsible for Muslim
Women marginalization. Muslim women must take the initiative and lead the way
4 Invisible to Invincible : Narratives of Gender Justice

through bottom-up approach in ensuring that their demands are addressed and not
through ecclesiastical monopolies, criminalization, or the ignorance of the state.
In order to comprehend the non-neutrality in the secularism of contemporary
nation-states that redefine and control religion, Talal Asad uses the critical
genealogy. His critique of secularism reveals the unchecked power of the state,
which is used to silence and regulate Islamic gender discourses under the guise of
liberalism. In the Indian context, one can observe Asad debates where the electoral
politics were served by selectively tolerating religious reforms like the
criminalization of Triple Talaq and the reversal of the Shah Bano ruling. By
supporting the Shayara Bano case and moving away from BMMA-led alternative
dispute resolution and reinterpreting Islamic texts, he contends that the secular state
allows for selective religious expression that is consistent with liberal, rational, and
individualistic narratives. Asad challenges the dichotomies that the state frequently
uses to defend non-intervention, giving orthodox clerics the authority to order and
coerce intervention that further marginalizes Muslim women. His research makes
the article's analysis of women's marginalization more concrete by offering
multiple public arenas where it might manifest itself in the form of laws and
policies, rather than by excluding religious and ethical justifications.7
Agency beyond Resistance
By occupying religious norms, Saba Mahmood's "Politics of Piety" provides crucial
details for re-theorizing agency. She provides a strong critique of liberal feminism's
premise that defying conventions is the path to liberation. Through Mahmood's
prism, we are forced to consider whether women can criticize patriarchy and claim
piety without completely abandoning Islamic law. What if deference to religious
authority is a different manifestation of agency rather than a loss of it? When
women turn to religious devotion instead of secular opposition for empowerment,
what does this mean for feminist theory? According to Mahmood, agency can take
many different forms that are ingrained in local meaning worlds rather than being a
universal quality with a single expression (resistance). Without instantly converting
these into the language of oppression or resistance, Mahmood calls on
academicians to focus on the "discursive and practical conditions" in which women
develop capacities and wants, such as a desire for submissive devotion.8 Her
ethnographic research with the Islamic Piety movement in Cairo, Egypt, aims to
disentangle the Western concept of freedom, which emphasizes autonomy,
resistance, and dissent, and show that agency is not only expressed in overt acts of
liberation from norms, but also in the various ways people inhabit and navigate
cultural and religious norms. Mahmood argues that within a religious framework,
 Invisible to Invincible : Narratives of Gender Justice 5

such conscious processes of embodied practices and ethical engagement with

tradition give the practitioner a sense of purpose, virtue, and relational autonomy,
countering the Orientalist perspective that views Muslim women as oppressed
beings in need of salvation. While power and resistance are fundamental to the
overall outlook of agency, Mahmood takes inspiration from Aristotle and
Foucault's ideas on leading an ethical life by adopting external behaviors and
practices. She emphasizes again and again that women's agential capacity is
attracted by embracing self-empowerment and ethical self-cultivation through
significant choices like serving their families, attending religious lessons, and
voluntarily covering their heads. By embracing the principles of Islamic scriptures,
she moved away from celebrating female rebellion against male-dominated
civilizations and instead concentrated on how gender and religion affect selfhood.
By reevaluating the liberal west, she makes the case that forming moral selves by
behavior that adheres to Islamic principles can lead to freedom and agency.
Mahmood's work has been criticized for presenting a logical image of piety
movements that idealizes agency. But rather than restoring agency by considering
women as previously oppressed agents, her goal was to view agency from many
liberatory projects by participating in political activism and creating ritualistic and
ethical practices. 9
Reclaiming the Qur’an – Islamic Feminist Hermeneutics in India
Mir-Hosseini's paradigm, which draws from the expression of Islamic feminism,
provides a third way beyond the divisive dichotomy of secular universalism vs
patriarchal religious legalism through the ideals of Musawah, a global movement
for equality and justice in the Muslim family. Islamic feminism, which sought faith
and identity via the hijab in their feminist fight for gender equality, emerged as a
result of the Political Islam movement. In defying patriarchal interpretations of
sacred texts, women gained legitimacy from Islam itself, becoming bearers of
tradition, cultural symbols, and religious authenticity. By incorporating Islamic
teachings, universal human rights, constitutional guarantees of equality, and the
lived experiences of Muslim men and women into their action, the movement
sought to develop a new approach to reform. According to Hosseini, the fight for
gender equity in Islamic feminism is a political and theological endeavor. The goal
of those who want significant changes and change is to demystify power struggles
that are carried out in religious terms. This will open the door for egalitarian
interpretations of the Shari'a and the democratization of religious knowledge. 10
Mohammed Houmine observes that the politics of external stereotypes of the norms
adhered to by Muslim communities creates a hostile atmosphere, while internal
6 Invisible to Invincible : Narratives of Gender Justice

misinterpretations function to control and oppress women's private space. He

distinguishes between the transforming status of women after the entrance of Islam
and the situation of women during Al-Jahiliyah (the pre-Islamic era), when they
were viewed as objects and objects of disgrace. The Quran's statement, "And the
male isn't like a female," addresses the pervasive misunderstandings regarding
women's status in Islam by highlighting the biological differences between men and
women's roles. By seeing them as equals and vital collaborators in the creation of a
just society, Islam not only empowers women but also sees them as change agents.
According to the Prophet's promises of benefits for those who provide women with
care and dignity, Islam grants women a wide range of rights, including the right to
healthcare, education, and inheritance. Islam views marriage as a legal bond
between spouses that goes beyond emotion and love by guaranteeing her protection,
defending her, and showing her kindness. As long as women fulfill their
responsibilities to pay zakat and sadakah in accordance with Islamic principles,
Islamic law offers them complete financial independence. Islam offers a gender-
equitable egalitarian framework that recognizes women's rights and obligations as
equal members of society. The Qur'an and Sunnah contain clauses that guarantee
women are treated with dignity and respect, empowering them in both the spiritual
and contemporary spheres of equality and justice. In order to grasp the genuine
progressive and egalitarian nature of Islam's teachings, he also describes the
widespread misinterpretations of Islamic customs that obstruct the true application
of Quranic principles.11
Islamic Feminism have grown as a movement in contrast with the Western notions
of Liberal methodological criticism to textual interpretations that do take into
account normative lived experiences of women. Islamic Feminism in India through
the works of All India Women Personal Law Board(AIWPLB) and Bharatiya
Muslim Mahila Andolan (BMMA) have sought to deliver women’s equality by
blending Islamic and Constitutional activism by promulgating “New Form of
Fiqh”. BMMA have gone far to dismiss binaries between the constitutional rights
and Muslim Personal law to highlight Quranic rights natural consonance with
Constitutional rights of equality. The necessity for drastic measures in this area is
heightened by the demand for proactive state intervention to halt the trend of
marginalization and socioeconomic regression. Jones highlights the main tenets of
Islamic Modernization, which include progressive teachings on Muslim law that
are in line with the Quran and bring religious ijtihad (independent reasoning) into
conversation with current concerns about social justice, constitutionalism, and state
governance. In order to guarantee compassionate and progressive interpretation that
will advance gender equity, BMMA, India's primary repository of Islamic
 Invisible to Invincible : Narratives of Gender Justice 7

Modernist ideas, focused on creating Muslim feminist hermeneutics. They

established an alternate forum for community leadership to expand the message of
the Quran into broader discourses on citizenship, rights, and justice as a means of
defending the rights of Muslim women. They are able to convey feminist Islamic
hermeneutics at the local level by concentrating on the codification of Muslim law
and the interpretation of egalitarian matrimonial rules. "Democratization of the
production of religious knowledge" has been the exclusive goal of BMMA. 12
Through fieldwork with Bharatiya Muslim Mahila Andola (BMMA), Sagnik Dutta
(2021) began as an Islamic feminist movement in India in 2007 and handles matters
including marriage, divorce, and Muslim women's maintenance claims after a
divorce. It aims to deparochialise liberal feminism's conception of gender equality
by establishing abstract demands for gender justice in the relational, daily lives of
Muslim women in urban ghettos. An Islamic feminist approach that steers clear of
both secular integration and traditionalist domination is provided by his
reinterpretation of barabari(equality) as a moral and social ethos rooted in the
Qur'an. Mahmood's concept of ethical self-fashioning is expanded upon by Dutta,
who suggests Muslim women are not just reestablishing power systems but also
fostering piety. By criticizing Mahmood, Dutta provides a third space where
Muslim women are not merely performing religious docility but are actively
reshaping legal and spiritual hierarchies by combining justice and piety through
BMMA, female-led Sharia courts that combine state laws and Quranic ethics to
settle marital disputes. He contends that Muslim women's ethical framework, which
is based on justice (insaf), compassion (raham), and reason (aql), actively redefines
and enacts gender equality (barabari), which is neither a foreign liberal import nor
reducible to ritual piety. The Qur'anic reinterpretation and feminist adjudication
procedures of BMMA reestablish agency in both daily life and the law, supporting
the broader investigation of how Muslim women in India fight marginalization
through gender ethics, religion, and legal pluralism politics. Through Dutta's
intervention, we might reconsider the idea that the only way to achieve gender
justice for Muslim women in India is for feminists to reimagine legal and ethical
frameworks from within.13
By contesting patriarchal interpretations of the Qur'an and reclaiming its core moral
lesson, BMMA courts became micro-sites of contestation calling for the
codification of gender-just Muslim family laws. These Sharia courts decide
marriage issues to guarantee equal advantages for women and are deeply rooted in
Islamic feminist epistemology. The purpose of the ladies who frequented the area
in such an alternative conflict resolution method was to leave economically
unsustainable and oppressive marriages. In these forums, women qazis support the
8 Invisible to Invincible : Narratives of Gender Justice

"Quranic method of Divorce," which emphasizes ethical exits, mediation, and

arbitration. By applying Islamic jurisprudence, this forum opposes patriarchal and
misogynistic adjudication forums like dar-ul-qaza (run by bodies like All India
Muslim Personal law Board), which are administered exclusively by men and use
local networks to obtain maintenance for women after a divorce. As an Islamic
feminist organization in India, the BMMA advocates for laws pertaining to
marriage, divorce, and maintenance that steer clear of criminalization-centric
reforms that strengthen state authority and work to stigmatize the entire community.
BMMA activists pointed out towards stark truth regarding the Triple Talaq
criminality which exposes women to additional violence and without any economic
empowerment plans by questioning, “For how long will poor women keep
approaching us with issues of talaq? Will we continue operating this kind of adalat
indefinitely?” The official position of BMMA regarding women's struggles is still
rooted in the absence of economic justice, which is responsible in the
marginalization of women's status in heterosexual households. 14
Nuraan Davids challenges the idea that Islamic Feminism is a parallel-ism category
that promotes gender equality on a public-private continuum in accordance with the
Quran. She claims that Muslim women have historically contributed to the
production, transmission, and nurturing of Islamic knowledge by providing
sufficient factual proof, redefining Islamic education as a space for gender justice.
To assure emancipatory discourse within the religious framework, she draws
attention to the use of maximalist pedagogical techniques that foster heightened
critical and analytical awareness. A lack of knowledge about Quranic exegesis
(secondary texts) and the construction of Islamic feminism within secular feminist
frameworks puts women in a marginalizing and exclusive position in both the
public and private spheres. This is caused by patriarchal interpretative privileges.
To create social justice and gender equality, Muslim women must evaluate Islamic
education pedagogically in order to create meaningful interactions with the Quran's
message. Muslim women's main source of connection, discussion, and independent
inquiry into Islamic education may be cut off by the feminist reaction to the
problems of gender discrimination and marginalization.15 Her observations in the
Indian setting demonstrate how the lack of Muslim women's participation in the
creation of religious knowledge results in epistemic closure, which limits their
interpretive autonomy and patriarchal authority over the formulation of sacred law.
Even though BMMA and AIMWPLB have started to promote gender-sensitive
interpretation of Islamic literature, they are met with opposition from male clerics
and lack wider acceptance from society, which views them as deviant rather than
 Invisible to Invincible : Narratives of Gender Justice 9

academic activism. But through Islamic education, this change to pedagogical

empowerment is important for bringing justice and faith together.
Reflections and Way Forward
Agency is often defined in terms of the secular-liberal ideas of exercising
individual autonomy and resisting authority. By following tradition, Saba
Mahmood's work demonstrates a different viewpoint on agency that is conveyed in
ways that are culturally relevant. Mahmood's conception of embodied piety in
creating independent agency contrasts sharply with David's pedagogical works.
Although they disagree on how to resolve the alleged injustices in Islam, they both
question the liberal-secular conception of Muslim women's agency. Davids makes
an argument for the necessity of teaching Islam in Madaris( Islamic schools that
focuses on religious education) and Muslim-based schools in order to challenge the
concepts of modesty and domesticity and to emphasize gender equity. According to
her, agency is more about having access to epistemic tools to critically interact with
ethical norms than it is about how women embody those standards for ethical self-
cultivation. Building female interpretative agency through access to Islamic
education and reaffirming ethical autonomy in piety are two perspectives that must
be reconciled in practice for India to have a meaningful Islamic feminist future.
According to the literature, Muslim women in India exhibit a unique form of
agency that deviates from the standard secular feminist framework. Thus, the idea
of agency must be viewed as multi-layered and contextual, where a Muslim who
wants to exercise their Quranic rights to divorce or inheritance should not be
interpreted as opposing or opposing their faith but rather as using the Quran's
teachings as a source of religious authority to empower themselves. Non-state
judicial groups such as AIMWPLB and BMMA which exemplifies Islamic
feminism practice, serves as an alternative conflict resolution mechanism in India,
with their primary methods for promoting gender justice for women being found in
religious texts. Gender-neutral or pro-woman laws are not usually implemented in
this way, according to Rasheed and Sharma.16 In this regard, Muslim women must
endeavor to raise awareness of discriminatory practices and promote women's legal
rights as guaranteed by Islamic and constitutional legislation. The study mentioned
above stands in stark contrast to women who have been imprisoned for a long time
as subaltern victims who require rescue. We witness Muslim women initiating
areas of autonomy through religious commitment, re-reading and interpreting the
Quran, and hybrid techniques by trying to see beyond the resistance paradigm. The
patriarchal interpretations of Islam that have become ingrained in laws and rituals
are the reason why Muslim women are oppressed, not Islam itself, according to
Ziba Mir- Hosseini. The alternative dispute process aimed to restore the equality
10 Invisible to Invincible : Narratives of Gender Justice

and justice found in the Quran, which were fundamentally progressive in Islam but
had been lost due to decades of male-dominated interpretation. The AIMWPLB and
BMMA's bottom-up, faith-based challenge successfully created parallel precedents
for gender-just personal law by opening doors for pluralized authority. These
movements demonstrate how reinterpretation functions as a mainstream discourse
based on ethics and rights. Islamic feminists are reinterpreting tradition in line with
the goals of the secular state and creating a new paradigm of legal pluralism by
utilizing Islamic hermeneutics. Muslim women are the underprivileged group, a
"minority within a minority," according to a Sachar Committee assessment. They
face structural obstacles in their participation in politics, the economy, and
education, and their interests are frequently represented by male leaders.17 This
calls for the legal pluralism which could reconcile universal principles of Justice
with respect to cultural-religious specificities, without allowing either to become an
excuse for injustice.
This study's framework is centered on reevaluating India's legal pluralism model
via the lenses of Saba Mahmood's concepts of agency and Islamic feminism
hermeneutics. The status of Muslim women may be improved in the long run by
giving organizations like AIMWPLB and BMMA more legal legitimacy and
democratization, as well as by supporting grassroots movements led by Muslim
women. In the way Muslim women navigate their lives, the state's secular
framework and the community's desire to preserve their Islamic identity are not
mutually exclusive but rather reinforce one another. In the end, Muslim women's
fight for gender justice in India is representative of a broader democratic endeavor
to create a society in which equality and plurality coexist. Such an undertaking
necessitates ongoing communication between the state and the community,
between Islamic and Western feminism, as well as between religious experts and
grassroots activists. Limitations including limited geographic outreach, resource
building capacity, and institutional and sociological legitimacy must to be
addressed in order to scale such a movement.
Conclusion
In order to address the Intersecting Marginalizations of Muslim women, this article
aims to advance gender-sensitive and community-anchored justice by eschewing
punitive legalism and symbolic interventions. These suggestions include codifying
Muslim personal law according to gender-neutral Quranic principles, decentralizing
personal law authorities, providing legal assistance and protection for Muslim
women's complaints, encouraging reform-based Islamic education, and—above
all—empowering women through grassroots initiatives led by women. According to
this policy roadmap, gender justice for Muslim women must be co-constructed with
 Invisible to Invincible : Narratives of Gender Justice 11

women as active political and interpretive actors rather than being left to the state
or clerics alone.
References
1 Rajindar Sachar and others, “Social, Economic and Educational Status of the Muslim Community of India”
(2007) 4 Contemporary Education Dialogue 266
<https://doi.org/10.1177/0973184913411149>.
2 Sabiha Hussain and Suraiya Tabassum, Gender Inclusion in India (2023) 59–74
<https://doi.org/10.4324/9781003406235>.
3 ibid. Cited Asghar Ali Engineer.
4 Engineer, “Rights of Women and Muslim Societies” (NLSIU Scholarship Repository, 2011).
5 Esita Sur, “Triple Talaq Bill in India: Muslim Women as Political Subjects or Victims?” (2018)
6 Shilpi Pandey, “The Burden of Being a Muslim Woman in India—The Instrumentalisation of Muslim
Women at the Intersection of Gender, Religion, Colonialism, and Secularism” (2024) 15
7 Talal Asad, “10. Religion, Nation-State, Secularism,” Princeton University Press eBooks (1999)
<https://doi.org/10.1515/9780691219578-011>
8 Saba Mahmood, Politics of Piety: The Islamic Revival and the Feminist Subject (2005)
9 Johnson and Fairweather, An Analysis of Saba Mahmood’s Politics of Piety: The Islamic Revival and the
Feminist Subject (Routledge 2017).
10 Ziba Mir-Hosseini, “The Challenges of Islamic Feminism” (2019) 20 Gender and Research 108
<https://doi.org/10.13060/25706578.2019.20.2.486>.
11 Mohammed Houmine, “Assessing the Impact of Islamic Teachings on the Rights and Welfare of Muslim
Women: A Policy and Social Justice Perspective” (2024) 2 Religion and Policy Journal 49
<https://doi.org/10.15575/rpj.v2i2.981>
12 Justin Jones, “Muslim Feminism as Islamic Modernism: Women’s Activism in India between the Quran
and the Constitution” (2024) 58 Modern Asian Studies 421
<https://doi.org/10.1017/s0026749x23000495>.
13 Sagnik Dutta, “Becoming Equals: The Meaning and Practice of Gender Equality in an Islamic Feminist
Movement in India” (2021) 23 Feminist Theory 423
<https://doi.org/10.1177/14647001211023641
14 Sagnik Dutta, “Divorce, Kinship, and Errant Wives: Islamic Feminism in India, and the Everyday Life of
Divorce and Maintenance” (2021) 21 Ethnicities 454
<https://doi.org/10.1177/1468796821999904>.
15 Nuraan Davids, “Are Muslim Women in Need of Islamic Feminism? In Consideration of a Re- Imagined
Islamic Educational Discourse” (2014) 37 British Journal of Religious Education 311
<https://doi.org/10.1080/01416200.2014.944096>.
16 Qazi S Rasheed and Arun K Sharma, “An Alternative Proposal of Justice: Muslim Women Activists and
Socio-Legal Realities in India” (2021) 22 Journal of International Women’s Studies 270
<https://paperity.org/p/260391353/an-alternative-proposal-of-justice-muslim-women- activists-and-socio-
legal-realities-in>.
17 Arfa Khan, “Empowerment of Muslim Women in Politics: From Marginalization to Representation in
India” (2025) 10 RESEARCH REVIEW International Journal of Multidisciplinary 09 <https://doi.org/
10.31305/rrijm.2025.v10.n3.002>.


12 Invisible to Invincible : Narratives of Gender Justice

Beyond Stereotypes: Unleashing a Qualitative Study of

Gendered Brainwashing and Delinquency for Reformative
Revisions Through Legislation in India
Peeyusha Pahal
Research Scholar KIIT School of Law, Bhubaneswar, Odisha, India
Shristi
Student of Laws KIIT School of Law, Bhubaneswar, Odisha, India
Abstract
The delinquency is an unavoidable aspect of the society, occurring because of multi-faceted
reasons, the delinquency, which is commonly understood as normlessnes. This
normlessness has many rationales including gender, the unavoidable biological aspect,
which cannot be overlooked in the process of reformation. The delinquency rate stands at
76.2% among boys and 23.8% among girls according to National Crime Records Bureau
2020, reflecting a huge gender divide. Gender plays a gigantic role in the process of life of
a human being. The data confirmed the categorisation of gender based crime. This study
refering the data by govenmental portals explores the complex phenomenon of gender-
based delinquency in India, aims to understand the complex dynamics behind differential
rates of delinquency among male and females. The second aim of this study is to
introspection lacuna and ignorance by examining the differential mis-happenings of male
and female delinquents in India. This doctrinal research is qualitative in nature,
performing an in-depth analysis of existing research and gender roles in delinquency,
along with the influence of Juvenile Justice (Care and Protection of Children) Act, 2015. By
establshing a strong interplay of gender and delinquency, this study attempts to inform
policy reforms and interventions that are specifically designed to meet the distinctive needs
of male and female juvenile delinquents in India, ultimately leading to effective and
inclusive juvenile justice systems.
Keywords: Youth delinquency, Gender- Based delinquency, Existing Policy, Reformation,
India.
Introduction
Juvenile delinquency, defined as the participation of minors in illegal activities,
represents acomplex and significant social concern with profound implications for
individuals, communities, and nations. The dynamic population of India is source
of strength and weakness, the factors such as environment, culture and familial
background further add to the vulnerability. The family believes led the child life
trajectory, be it the basics like, food, and clothing parallelly installing
fundamentals of values, norms and religious aspects. Delinquency can be termed
as the normlessness.National Crime Records Bureau (NCRB), which serves as a
 Invisible to Invincible : Narratives of Gender Justice 13

primary source of crime statistics in India, reveals a significant and persistent

gender gap in delinquency rates across the nation. It was represented that male
juvenile offenders are disproportionately marked by official statistics, consistently
accounting for a greater proportion of reported cases revealing the lacunas of
system to protect and inability to deal with the gender-based delinquency.1
The male dominancy however raises a concern for the society for particulars,
another emerging issue of female delinquency. The females as a gender were less
likely to involve themselves in to roads of normlessness has been involved in
certain crimes. The child is child regardless of gender which shall be protected
though this paper recognises the need for acknowledging the concept of gender
role in the areas of delinquency. A thorough examination of these gendered
dimensions is not only essential but also ethically imperative. It is crucial to move
beyond a simplistic, one-size-fits-all approach for juvenile justice and to formulate
targeted interventions and rehabilitation programs that effectively address the
distinct needs and challenges faced by young offenders of multiple genders. This
research endeavours to contribute to the existing body of knowledge by identifying
gaps in our understanding of this complex issue, specifically by exploring key
trends and patterns in gender-based delinquency in India, as substantiated by
available data, and by juxtaposing these trends with global patterns and
theoretical frameworks.2
The legislation has been shifted from the protection of children to enabling the
children for rehabilitation, reformation and re-integration. The historical legislation
has been evident to put the child on the same bars as adults. This paradigm shift
was largely driven by the dedicated efforts of progressive social reformers and
child welfare advocates who emphasised the necessity for separate treatment,
rehabilitation, and care for youth in conflict with the law. They argued that
children's inherent vulnerability and ongoing development necessitate a different
standard of criminal responsibility compared to adults, with a primary focus on
addressing their underlying needs and facilitating their reformation. The efforts
led to the enactment of multiple legislations specifically The Act of Juvenile
Justice. The Act was profound in the year 1986 repealing The Apprentice Act
1860. The primary focus of these laws was to segregate the children from adults.
The secondary focus to rehabilitate the child for the social re-integration. The
factors contribution was embarked by the evolvement of theories in the subject of
sociology and criminology. The factors can be categorized under the umbrella of
poor socio-economic backgrounds, along with insufficient family structure and
inappropriate educational facilities. The conditioning of child thus was studied to
track the displacement towards the roads of delinquency. 3
14 Invisible to Invincible : Narratives of Gender Justice

NCRB Data: Trends in Gender-Based Delinquency in India

NCRB, famously known as National Crime Reports Bureau is governmental branch
of India which annually publishes the crime statistics. These reports are structured
and carefully categorized on the basis of state, nature of crime, gender. The data is
used as due to high reliability and efficiency in the subject matter of crimes.4
The branch is operated by the Ministry of Home Affairs. The publish data
provides the official statement by the government of India in terms of
information and knowledge of the particulars crime in India. The data represents
the disparity in the offenders in terms of gender. On the basis of this data, it is not
to stereotype, but to establish the facts of male and female involvement in particular
normlessness. The factors of male delinquency are not officially recognised but
delivered by the sociologist and psychologist. The threat is thus not only on the
society, by also on the individuals and culture. The child is the future of nation,
thus ineffective tendencies towards child will lead towards maldevelopment.The
non- recognition of factors has led to multiple inadequate interventions with the
delinquency rate as high as 76.2% in the case of males and 23.8%. The
disheartening truth is that the number is this percentage is rapidly growing. The
reclaimed children are on the other hand are unknown. The high number of male
juveniles is already an issue to resolve, whereas female delinquency rise major
concerns of unrecognised patterns and studies. This numerical disparity thus
should not be interpreted as a static phenomenon. Emerging trends procures the
need to research onthese gradual shifts, evident by the medium of increase in the
percentage male delinquency along with female juveniles’ engagement in
offences historically categorised as male-dominated.5
This paper recognised the intervention based on the gender due to the nature of
crime that a particular gender is inclined towards according to data. It has been
shown by the statistics itself that males are inclined towards theft, burglary, and
violent crimes such as homicide and physical assault. This observation aligns with
established criminological literature suggesting that male juveniles exhibit higher
tendencies toward externalising behaviours and aggressive conduct. In contrast,
female juveniles, while are involved in property offences, demonstrate a higher
prevalence in status offences. Which are acts deemed illegal solely by virtue of the
offender's age, such as truancy and running away. Additionally, there is a
discernible trend indicating that female juveniles are increasingly involved in
violent offences, often in the context of domestic disputes or as responses to
experiences of abuse and victimization. These variations are the outcome of
dynamic socio-economic, cultural values with the implementations of social
 Invisible to Invincible : Narratives of Gender Justice 15

welfare legislations. These examples may be derived from the disparity in nature
of crimes. Similarly, regional cultural attitudes toward gender roles and
expectations can influence the types of offences committed by male and female
juveniles. A longitudinal analysis of NCRB data across several years is essential to
identify any temporal shifts or emerging patterns in gender-based delinquency
rates.These factors thus aid in recognising the issue of gender-based delinquency
and its fragile characteristics. 6
Gender And Crime
Gender-based crime constitutes a pervasive and deeply entrenched societal
issue that manifests across various cultures and societies, specifically in India, with
significant ramifications for individual safety, well-being, and fundamental human
rights.
The crime may be intersected at:
a. Personal level: an individual personal emotions and capacity to handle life
situations.
b. Familial level: the behaviour of family towards a gender.
c. Societal level: the educational institutions, work-place environment (if any),
community or society in general perception towards the child or juvenile.
These forms of violence are fundamentally rooted in structural inequalities.
Discriminatory normsdisproportionately affect women and girls, while also
impacting men and boys. The ethology of gender-based crime is intricate and
multifaceted, emerging from a confluence of biological, sociological, and
psychological factors, which are further influenced by the by diverse social
categories. Even it genders roles may be established, the other need is to recognise
the factors which work dependently upon the same. The role of gender is there
which is influenced by the other social, economic, environmental. The society and
environment around particular person enable or disable them to involve into the
certain things. 7
Another factor of environment is conditioning done by the family members of a
child; the family in-built the values in child. Disturbing family structure leads the
child in to the emotional and mental disturbance forcing the child to find the
comfort into normlessness. The influence of peers varies by gender; male peer
groups frequently reinforce violent behaviours through displays of toughness,
whereas female peer groups may influence behaviours through relational
aggression or co-offending.8 The broader social framework, characterised by
16 Invisible to Invincible : Narratives of Gender Justice

patriarchy, gender inequality, and harmful cultural norms, cultivates an

environment that is conducive to gender-based crime. Patriarchal systems,
emphasising male dominance and control, perpetuate gender disparities and
create power imbalances that foster violence against women and girls’
parallelly having repercussions for male gender which has inculcated a barrier
for their expressing their emotions. Cultural norms that either condone or minimise
violence against men or women, or that reinforce rigid gender roles, serve to
exacerbate these issues. In societies where women experience limited access to
education, economic resources, and political power, they may become increasingly
vulnerable to victimization and less capable of escaping abusive circumstances. 9
Psychological factors, including risk-taking behaviour, impulsivity, emotional
regulation, and mental health challenges, further contribute to understanding
gender differences in criminal behaviour. The effect of these traumas is far more
severe in nature, the child being exposed to the dark side of work normalised
the heinous realities and inculcate the behaviours. Acknowledgement of factors
such as religion, caste, gender and the ideal relationship of society with such
aspects synchronize the child attitude. 10
The intersection is here studied and recommended to study for the targeted
interventions. As with lack of mechanism to understand the causes of the crime for
the eradication is rough path. And on the same hand to reform a child becomes
an impossible task without realising the contingencies of the child.
Gender Based Crime Trends
Table 01: Presenting the NCRB gender-based crime in year 2022.
 Invisible to Invincible : Narratives of Gender Justice 17

Causes of Gender-Based Crime (Delinquency)

The examination of gender-based crime, particularly its prominence in juvenile
delinquency, represents a complex and multifaceted issue. This phenomenon
emerges from a confluence of biological, sociological, and psychological factors,
shaped further by the intersectionality of various social categories. This categories
by adding on further to the existing gender vulnerability ignites the delinquency
and normlessness. These factors are:
Biological Factors and Gender
While biological differences can influence behaviour, it is important to approach
this topic carefully to avoid falling into biological essentialism. We need to
emphasise the interaction between biological predispositions and social factors,
rather than attributing causality solely to biology. Research suggests that gender
differences in brain structure, hormonal influences, and genetic predispositions may
contribute to variations in behaviour. The studies have also indicated the link of
high testosterone levels with aggression. This aggression when interplays with
poor life conditions collaborate with crimes of violent nature.11
Sociological Factors and Gender
Sociological factors can be recognised by the role of gender in the particular
society. The society as India acknowledged females as more traditionally
introvert than males. The assigned roles by the society impacts a person upon
collision with personal interest or personal preferences. 12
The society includes family. As family is the primary learning source for every
child. The family vests the mode of conduct, attire and livelihood in the child.
The term conditioning is thus affiliated with family normalized and contrasting
values. The other social aspect is of the peer learning. As friendship is need for
every human, a child peer influence indulges child to participate or withdraw from
the conducts. Be it sports, educational interest areas of the roads of delinquency.
Patriarchal systems, characterised by male dominance and control, perpetuate
gender inequality and create power imbalances that can lead to violence against
women and girls. Cultural norms that condone or minimise violence against
women, or that reinforce rigid gender roles, can further exacerbate these issues. In
societies where women have limited access to education, economic resources,
and political power, they may be more vulnerable to victimization and less able to
resist or escape abusive situations. This vulnerability can, in some instances, lead to
their involvement in crime as a direct response to victimization or as a means of
survival.13
18 Invisible to Invincible : Narratives of Gender Justice

Psychological Factors and Gender

Psychological factors also significantly affect our understanding of gender
differences in delinquency. Research has identified potential differences in
psychological aspects such as risk-taking behaviour, impulsivity, emotional
regulation, and mental health issues that may contribute to delinquency. The studies
have proved the male juvenile’s participation in the impulse and destructive
activities. The males are more prone towards the risky adventures. 14The capacity
to perceive and to react depends upon the particular gender and person. The
females on the other hand more inclined towards the internalising the incidents
and their after-effects leading them into the vulnerable emotions of depression and
anxiety. However, the nature and consequences of these experiences may differ for
boys and girls. For instance, girls who have been sexually abused may experience
unique psychological trauma that increases their risk of running away, substance
abuse, and involvement in prostitution.15 Meanwhile, boys who have experienced
physical abuse may be more likely to exhibit aggressive and violent behaviour.16
Recommendations for Eradication of Gender-Biased Crime and Gender-Based
Reformation
a. Appropriate educational institutions to suffice the need of children respecting
their gender,
b. Persistent legislative framework for the eradication of juvenility and causes of
such juvenility,
c. Adequate data collection,
d. Recognition of gender-based delinquency,
e. Reformation upon the need of particular gender,
f. Re-integration according to the capacity of child and community,
g. Sensitisation of the community and society for such re-integration.
Legal and policy reforms are paramount in effectively addressing the diverse and
complex needs of male and female juvenile offenders. To achieve this, it is
essential to fortify the existing legal framework, notably the Juvenile Justice
(Care and Protection of Children) Act of 2015. This strengthening process
should involve a meticulous examination of current laws to unearth and rectify
any gender biases, ensuring fairness and equity within the justice system. The
introduction of these concepts is highly valuable to have an effective legal
mechanism. The gender-based recognition shall be done in terms of involvement in
delinquency, along with the in-depth study of the causes of those crime and impact
 Invisible to Invincible : Narratives of Gender Justice 19

of those causes on the child. Upon the assessment of these, the mechanism
inclusive of the adequate resources with specialised training and division of
role and responsibilities shall be introduced.
The underlined rationales such as traditional gender inequality, existing
patriarchal values and over-burdened system press the need for reformation in
the legislation to reform the child. Equally pressing is the need to address socio-
economic disparities that foster environments ripe for both victimization and
criminal behaviour. Poverty, lack of education, and social exclusion are
significant risk factors that demand strategic interventions. Investing in
comprehensive educational, healthcare, and social welfare programs can help
alleviate these vulnerabilities, paving pathways for individuals to lead fulfilling,
productive lives away from crime.17
It is vital to challenge and transform harmful cultural norms and stereotypes
that perpetuate violence against women and reinforce rigid gender roles. Public
awareness campaigns, coupled with impactful educational programs, can inspire
community-driven initiatives that promote gender equality and confront deeply
embedded, harmful beliefs. To prevent juvenile delinquency effectively, early
intervention programs are indispensable. These initiatives should be designed
with a nuanced understanding of the specific needs of boys and girls,
recognising their unique developmental trajectories. The adoption of a trauma-
informed approach is critical, particularly for individuals who carry the heavy
burdens of past trauma. Programs must be designed to foster healing, preventing re-
traumatisation while providing essential support.18
Interventions must be built on solid empirical evidence and tailored to the unique
challenges faced by the target population. For juvenile offenders, risk factor
interventions like for alcohol and other drug use and mental disorder have been
found to decrease recidivism.
Gender-specific programs are also required in order to address the special needs of
male and female offenders; girls, for example, may require trauma and relational
issues interventions, while boys may need healthy masculinity and conflict
resolution interventions. The long-term ultimate goal of rehabilitation programs
will need to be treating the causes of offending behavior and promoting successful
social reintegration. Programs must be responsive to distinctive challenges ex-
offenders, especially women, face in gaining acceptance and access to
opportunity in society. By addressing the shame of past offenses and gaining access
to housing, education, and employment, society can create a context for
successful reintegration.
20 Invisible to Invincible : Narratives of Gender Justice

Enhancement of research and data collection is critical in understanding the

nature and extent of gender-based crime. A well-designed data collection plan
standardized and gender-disaggregated will yield valuable information and
enable valuable analysis. Continued and comprehensive research is essential to
explore the various dimensions of gender-based crime and evaluate the
effectiveness of diverse interventions and policies, ultimately guiding informed
decision-making in the quest for justice and equality.19
Conclusion
This analysis portrays the complex nature of gender-biased crime, highlighting
the need for an integrated approach to its elimination and gender-biased reform.
The main findings highlight an imperative need for strong legal and policy
reforms, i.e., in consolidating existing legal provisions like the Juvenile Justice
(Care and Protection of Children) Act of 2015, while correcting entrenched gender
biases in the law. Safe enforcement and implementation of such reforms are
imperative, apart from the requirement of a collective approach between
government departments. The study emphasizes the need to address root causes i.e.,
gender inequality, through the process of addressing patriarchal norms,
empowerment of women, and ensuring equal access to resources and opportunities.
Socio- economic inequality, i.e., poverty, illiteracy, and isolation, should be
addressed, along with changing harmful cultural norms that tolerate violence and
encourage rigid gender roles.
Moreover, the planning and implementation of gender-sensitive prevention and
intervention programs are most important. The programs should involve early
interventions and trauma- informed care, using evidence-based practices that
respond to the specific needs of male and female offenders, with an emphasis on
rehabilitation and social reintegration. The adequate data will promote the efficient
practical suggestive measures.
In addition, multi-agency working must be strengthened among stakeholders to
deliver a joined-up and holistic response. Gender dynamics knowledge is
essential in addressing juvenile delinquency. Gender has a pervasive impact on the
routes to offending and victimization, on the prevalence of offending, and on the
success of intervention. Gender inequality, adverse cultural norms, and gendered
risk factors are held accountable for differential male and female participation in
the justice system. A gender-responsive approach is therefore critical in developing
effective prevention and intervention programs, while ensuring fair treatment in the
justice system, and facilitating gender-targeted reforms.
 Invisible to Invincible : Narratives of Gender Justice 21

In conclusion, the pursuit of a just and efficient juvenile justice system in India
demands unified action towards institutionalizing the recommendations
presented in this analysis. These include the consolidation of legal and policy
structures, addressing the causes, formulating gender-sensitive prevention and
intervention programs, enhancing data collection and research tools, and
encouraging multi-agency coordination. With a holistic and gender- sensitive
strategy, India can make significant strides towards eradicating gender-biased
crime, facilitating gender-based reform, and constructing a more equitable and just
society for all its citizens.
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22 Invisible to Invincible : Narratives of Gender Justice

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❖ Conrad SM and others, ‘Youth : The Impact of Sexual Abuse’ (2015) 38 305
❖ Daigle LE, Cullen FT and Wright JP, ‘Gender Differences in the Predictors of Juvenile Delinquency:
Assessing the Generality-Specificity Debate’ (2007) 5 Youth Violence and Juvenile Justice 254
❖ Hartjen CA, ‘The Criminality of Women and Girls in India’ (1997) 21 International Journal of Comparative
and Applied Criminal Justice 287
❖ Herrera VM and McCloskey LA, ‘Gender Differences in the Risk for Delinquency among Youth Exposed to
Family Violence’ (2001) 25 Child Abuse and Neglect 1037
❖ ‘Https://Pmc.Ncbi.Nlm.Nih.Gov/Articles/PMC3727222/’
❖ Leve LD, Chamberlain P and Kim HK, ‘Risks, Outcomes, and Evidence-Based Interventions for Girls in the
US Juvenile Justice System’ (2015) 18 Clinical Child and Family Psychology Review 252
❖ Mishra E and Biswal R, ‘Trends and Factors Associated with Juvenile Delinquency : A Study from India’
(2018) 5 International Journal of Applied Social Science 1613
❖ Piquero AR and others, ‘A Meta-Analysis Update on the Effects of Early Family/Parent Training Programs
on Antisocial Behavior and Delinquency’ (2016) 12 Journal of Experimental Criminology 229
❖ Postlethwait AW, Barth RP and Guo S, ‘Gender Variation in Delinquent Behavior Changes of Child
Welfare-Involved Youth’ (2010) 32 Children and Youth Services Review 318
❖ Sato S, ‘Gendered Perspectives on Juvenile Violent Crime in India : A Comparative Analysis of Offending
Patterns Among Male and Female Youth Theoretical Framework : Gender Socialization and Criminal
Behav- Ior Gendered Patterns of Juvenile Offending in India’ 1
❖ Sharma P, ‘Gender-Based Crime and Gender Inequality in India: A Subnational Analysis’ (2015) 50
Economic and Political Weekly 48
❖ Steffensmeier D and Schwartz J, ‘Trends in Girls’ Delinquency and the Gender Gap: Statistical Assessment
of Diverse Sources’ [2009] The Delinquent Girl 50
❖ Swinehart ML and Mowen TJ, ‘Doing Gender and Doing Crime: The Influence of Biological Sex and
Gender Identity on Crime’ (2024) 45 Deviant Behavior 1482
❖ van der Stouwe T and others, ‘The Effectiveness of Social Skills Training (SST) for Juvenile Delinquents:
A Meta-Analytical Review’ (2021) 17 Journal of Experimental Criminology 369
❖ Abhishek R, ‘FACTORS AND PATTERNS ASSOCIATED WITH JUVENILE DELINQUENCY 1
INTRODUCTION The Phenomenon of Juvenile Delinquency Has Emerged as a Pervasive Global Issue ,
Transcending Geographical Boundaries and Affecting Societies across the Spectrum of Development .
Its’ 1
 Invisible to Invincible : Narratives of Gender Justice 23

❖ Abhishek R and Balamurugan J, ‘Factors and Patterns Associated With Juvenile Delinquency With
Reference To Juvenile Crimes in India’ (2024) 18 Revista de Gestao Social e Ambiental 1
❖ Anderson VR, Javdani S and Singh S, ‘Persistent Paternalism: The Instantiation of Gendered Attributions in
the System Response to Girls’ (2023) 50 Criminal Justice and Behavior 666
❖ Atrey I and Singh B, ‘An Analysis of Juvenile Delinquency in Rajasthan: Risk Factors and Protective
Factor’ (2023) 6 Journal of Research Administration-SRA … 827
❖ Baidawi S, Papalia N and Featherston R, ‘Gender Differences in the Maltreatment-Youth Offending
Relationship: A Scoping Review’ (2023) 24 Trauma, Violence, and Abuse 1140
❖ Conrad SM and others, ‘Youth : The Impact of Sexual Abuse’ (2015) 38 305
❖ Daigle LE, Cullen FT and Wright JP, ‘Gender Differences in the Predictors of Juvenile Delinquency:
Assessing the Generality-Specificity Debate’ (2007) 5 Youth Violence and Juvenile Justice 254
❖ Hartjen CA, ‘The Criminality of Women and Girls in India’ (1997) 21 International Journal of Comparative
and Applied Criminal Justice 287
❖ Herrera VM and McCloskey LA, ‘Gender Differences in the Risk for Delinquency among Youth Exposed to
Family Violence’ (2001) 25 Child Abuse and Neglect 1037
❖ ‘Https://Pmc.Ncbi.Nlm.Nih.Gov/Articles/PMC3727222/’
❖ Leve LD, Chamberlain P and Kim HK, ‘Risks, Outcomes, and Evidence-Based Interventions for Girls in the
US Juvenile Justice System’ (2015) 18 Clinical Child and Family Psychology Review 252
❖ Mishra E and Biswal R, ‘Trends and Factors Associated with Juvenile Delinquency : A Study from India’
(2018) 5 International Journal of Applied Social Science 1613
❖ Piquero AR and others, ‘A Meta-Analysis Update on the Effects of Early Family/Parent Training Programs
on Antisocial Behavior and Delinquency’ (2016) 12 Journal of Experimental Criminology 229
❖ Postlethwait AW, Barth RP and Guo S, ‘Gender Variation in Delinquent Behavior Changes of Child
Welfare-Involved Youth’ (2010) 32 Children and Youth Services Review 318
❖ Sato S, ‘Gendered Perspectives on Juvenile Violent Crime in India : A Comparative Analysis of Offending
Patterns Among Male and Female Youth Theoretical Framework : Gender Socialization and Criminal
Behav- Ior Gendered Patterns of Juvenile Offending in India’ 1
❖ Sharma P, ‘Gender-Based Crime and Gender Inequality in India: A Subnational Analysis’ (2015) 50
Economic and Political Weekly 48
❖ Steffensmeier D and Schwartz J, ‘Trends in Girls’ Delinquency and the Gender Gap: Statistical Assessment
of Diverse Sources’ [2009] The Delinquent Girl 50
❖ Swinehart ML and Mowen TJ, ‘Doing Gender and Doing Crime: The Influence of Biological Sex and
Gender Identity on Crime’ (2024) 45 Deviant Behavior 1482
❖ van der Stouwe T and others, ‘The Effectiveness of Social Skills Training (SST) for Juvenile Delinquents:
A Meta-Analytical Review’ (2021) 17 Journal of Experimental Criminology 369



24 Invisible to Invincible : Narratives of Gender Justice

Discrimination against the third gender as a factor of

crime causation Jaya Sachan, PhD Scholar, Bennett
University
Dr. Komal Dahiya
Assistant Professor, Bennett University
Abstract
Individuals not identifying as biologically male or female are considered a third gender.
Society identifies them as neither a man nor a woman. Discrimination against the third
gender has been a practice since time immemorial, and such a societal attitude gives rise
to crime causation. The third gender community, now included in the popular LGBTQ+
community, is a victim of discrimination in their rights, acceptance and leading a
stigma-free life. Although many countries grant them access to employment, education
and privileges as granted to males and females, there is still a long way to go to
accommodate them in the mainstream of society. Developed countries are a step ahead in
recognising them as a part of society. Deprivation of rights and societal attitudes render
them socially and economically vulnerable, leading to involvement in criminal activities.
This paper finds the relationship between discrimination and criminal behaviour among
the third gender community. It examines the circumstances that compel them to indulge in
unlawful activities like drug smuggling, organised crime, flesh trade and begging.
The absence of legal protection and mistreatment by society and the establishment
increase their vulnerability and trigger involvement in criminal activities. The mental
trauma of being deprived of rights and discriminatory looks has long-term psychological
consequences.
This study highlights legislative actions and judicial approaches to recognise the
community as a part of mainstream society. Despite recognition in many jurisdictions,
they are not wholeheartedly accommodated in society. The need of the time is to put a
robust policy framework, educational reforms, employment opportunities and gender
sensitization in the society. Sensitization schemes at educational institutes and workplaces
shall be vital in ensuring social acceptance. The burden of crimes involving third gender
people cannot be attributed to the community only; the system of governance is also to be
blamed for this.
Discrimination against the third gender leads to both victimisation and criminalisation.
Equality before the law and equal protection under the law must be applied to all
naturally born people. Stakeholders, the legislature, the executive, the judiciary, and
NGOS must devise ways and methods to protect this vulnerable community's rights. The
community needs rehabilitative measures for sustenance and a dignified living in society.
Skill-based training, participation in the democratic process, employment opportunities,
and free education are the focus areas for the legislature and executive branch. Leading a
 Invisible to Invincible : Narratives of Gender Justice 25

dignified and honourable life would prevent them from engaging in criminal activities. The
government’s role in preventing discrimination against the third gender and preventing
their marginalization in society is vital to ensure equality in society. Regular monitoring
and coordination with NGOS can further enhance their social integration and reduce
criminal involvement. Encouraging the third gender for their participation in societal
activities would grant them self-identity and foster the feeling of being a part of society.
Acceptance is the way forward to curb the causation of crimes by the community.
Keywords: Third Gender, Discrimination, Crime Causation, Marginalization, equality.
Introduction
The term "third gender" became widely used in 1975, when M. Kay Martin and
Barbara Voorhies focused on showing that, for historically marginalized
communities, gender was not simply a binary idea. They offered specific
ethnographic examples drawn from several cultures, including hijras from South
Asia, fa'afafine from Samoa, and two-spirit identities from some Native
American tribes, to highlight a more complex view of gender than could be
captured by Western categories. The apostates were similarly useful by the hijra
community in South Asia, which engages with a range of social and spiritual roles,
sometimes simultaneously, within a combination that questioned dominant gender
norms. The academy has produced an extensive body of literature documenting
the ways the hijra community has been disenfranchised in a postcolonial context.
In Southeast Asia, gender variability, such as kathoey in Thailand, once known as
"ladyboys", represents a different version of the third gender and adds more
complexity to the global narratives surrounding gender1. This understanding helps
to frame discussions about gender identity and facilitates a fuller appreciation for
the non-binary identities embedded in rich cultural histories.
As scholars have rightly observed, many cultures, particularly prior to the
Christo-centric and colonial lens of Western perspectives, demonstrated a social
orientation that recognised forms of gender diversity. Thus, in doing so, one hears
some caution about the challenge of framing possible third gender designations in
the context of a non-Western experience. Scholars have also warned against
appropriating and misdesignating- individuals whose identities are not understood
through a historical lens. This has prompted scholars to recognise the need for
attention to cultural contexts of individual identities related to increasingly
sophisticated and informed orientations.2.
In sociology, there is greater recognition that gender is dynamic and possible
intersections with race, class, and culture suggest more specific dimensions of
gender identity, as well as a commitment to detail and pluralism toward gender
26 Invisible to Invincible : Narratives of Gender Justice

studies and issues and multiplicity in terms of history related to gender from all
cultures3. It has also been observed that cultural values of faith can provide the
basis for valuing transgender identities 4 , suggesting that the roles that are now
peripheral were possibly upheld. Historical roots exist within some cultural
narratives. They are not easily transferable to other contexts.
Importance of studying discrimination against the third gender
Research into discrimination against third-gender people, which includes several
non-binary gender identities, is important from a social justice, mental health, and
public health advocacy standpoint. People in this population, such as hijras in
South Asia, khwaja sira in Pakistan, and fa'afafine in Samoa, face systemic
discrimination in nearly all aspects of their lives, despite the existence of a third-
gender, such as health care, education, and employment or in social settings, and
thus are not fully participating in society. 5.
First, members of a third gender experience significant stigma and exclusion, and
quite frequently. Research shows third-gender people have experienced verbal
harassment and physical violence in health care, which acts as a barrier to access to
services. Multiple forms of exclusion compound this denial of access to care and
therefore have a likely negative impact on their physical and mental health,
including experiencing rates of anxiety, depression, and suicidal ideation at
higher levels than their cisgender counterparts6. For example, Khwaja Sira
report challenges in obtaining care, and on the whole, want to avoid medical
care altogether due to fear of discrimination in a health care setting.
However, the psychological burden of discrimination is likely even greater in
this population. Several studies indicate that stigma related to being third-
gender causes real damage at the individual level and contributes to widespread
public health issues. The trajectory of mental health among transgender individuals
who often experience extreme rejection of their gender identity can lead to ongoing
psychological distress as part of a predictable cycle of distress leading to suicidal
ideas or actions for example, one study indicates evidence of a relationship between
psychosocial distress originating from stigma associated with being gender non-
conforming and suicidal ideation among a sample of transgender women7.
Third-gender individuals would likely face similar workplace challenges.
Specifically, barriers to employment are present, including possibilities of
conditioned discrimination during hiring or discrimination due to work
environment. There are few studies analysing third-gender discrimination in
employment settings, but it is well-researched that individuals falling outside
gender binaries usually experience higher levels of discrimination and would
 Invisible to Invincible : Narratives of Gender Justice 27

experience multiple layers of discrimination due intersecting identities related to

gender and sexuality. Barriers to employment due to discrimination likely means
lower progression in careers or lack of economic mobility contributing to the cycle
of poverty and exclusion8.
Finally, it's important to note that these forms of discrimination exist in a measure
of social and cultural context and behaviours may stem from entrenched norms
surrounding gender and sexuality that foster a societal stigma that may, or may not,
reflect in discrimination. This cultural framework, where discrimination exists, is
vital to understanding the drivers of discrimination and need for advocacy from
the perspective of advocacy from a historical and cultural stance to achieve
inclusivity of history and culture in the experience and practice of cultural
sensitivity to third- gender forms of oppression. There is also value in
understanding the context of discrimination to develop effective strategies for
research and advocacy towards experiences of inclusivity and deconstructing
discriminatory practices9.
Discrimination and crime causation
Discrimination against marginalised populations, including gender minorities and
other at-risk populations, is a cause of crime through the creation of an
environment of hostility, violence becomes normalised, and opportunities are
restricted or rejected. Essentially, suppose you generate a culture of
disenfranchisement. In that case, you create victimisation and crime perpetration,
not as a reactionary response, but as a consequence of the marginalisation
experienced by individuals facing discrimination.
Discrimination creates environments where violence is perceived as a needed form
of identity or protection. For instance, norms based on a traditional male gender
role may make aggressive behaviour seen as normative for young males. As López
and Emmer state, “not giving in to, and avoiding shame, and attempting to earn
respect leads young men to engage in reactive aggression and violent crime”10. It
may be safe to say that when societies permit discrimination along lines that uphold
a masculine framework, it could very well endorse decisions to commit violent
crime.
The inverse is that discrimination creates communities that exhibit disdain in hate
crime and crime statistics. Mills et al. contend that hate crimes have always been
correlated to political context, as local politics always mediate the institutional
response to hate crimes, and rightly so, as it fuels the structure of the hate crime.11.
Hate crimes are often a reflection of prejudice or bias and are an example of how
28 Invisible to Invincible : Narratives of Gender Justice

discrimination can elicit violence to reinforce social hierarchy.

Discrimination also causes social and economic disenfranchisement and creates
conditions of no ability to access legitimate opportunities. Holtfreter considered
gender through a wider lens about crimes, but Holtfreter did not directly link the
opinion of social and economic disenfranchisement and criminal behaviour 12.
However, criminal scholars recognise that groups facing barriers to employment
and stability have greater repercussions relating to criminal behaviour as a method
of survival; that is the case. There is a conjectured relationship between economic
strain and increased criminal behaviour; however, the authors did not provide an
academic reference in this context. Economists and crime scholars track this
relationship 13.
The role of gender in crime illustrates the ambiguities at the intersection of
discrimination and crime causation. Ways in which gendered expectations shape
the charged nature of being a male or female offender, and how they are treated,
will lead to perpetuated discrimination by societal norms and institutional conduct,
and can increase criminal behaviours for some as they respond to inhibit gendered
expectations. Cook has pointed out that the criminal justice system has largely
overlooked the treatment of women, as female locality in understanding each
unique sample of women is part of a more gendered approach to understanding
crime.14. Furthermore, Faust and Nagel emphasise the need to contextualise
female offenders as victims of social and economic oppression, which will provide
more eloquence around gendered pathways to crime. 15.
The Concept of the Third Gender: Definition and Historical Evolution
The third-gender concept encompasses a variety of identities and experiences that
do not fit within the historical binary model of male and female. The third-gender
concept has gone through various evolutions throughout history, shaped by
significant social and cultural perspectives and varying legal entities worldwide.
To understand how third-gender individuals are both defined as well as recognised
throughout history, one must take a deeper look at cross-cultural ideas around
gender, as well as how third-gender people have been recognised and/or
legally/civilly situated.
Cross-Cultural Gender Classification
Cross-cultural focuses show that the notion of gender is not fixed across the world,
and many communities have long recognised multiple gender identities beyond
the binary model. Many scholars have mapped various cultures into identified
third-gender roles, including, for example, the hijras of South Asia. Despite being
 Invisible to Invincible : Narratives of Gender Justice 29

socially marginalised, they have a historical role as both performers and caregivers,
and some scholars recognise them as possessing spiritual utility. 16Some Native
American tribes claim Two-Spirit as their third-gender identity, which
acknowledges the idea of blending male and female aspects. However, their
Indigenous pre-colonial traditions incorporated the men's and women's spiritual and
cultural components.17.
This documentation and recognition of multiple genders indicate an important
argument for why gender has come to be understood as socially constructed, rather
than attributed to biological determinants. Aydt and Corsaro write that children
actualise gender identity in very different ways, culturally, to fit with their
specific societal and cultural norms and values 18. Recent dialogue indicates
that non-binary identities, including many terms such as genderqueer,
gender-nonconforming and fluid, are increasingly recognised and validated in
several contemporary societies, meaning a concerted movement towards
understanding more inclusive gender.
The historical contexts in which these gender identities occur are also various, for
example, there were many cultures that previously held their non-binary people
within a revered position, and they often held important spiritual or social roles,
when colonisers established a rigid binary. Taking this historical view is important
to understanding the struggle of third-gender identities today, when Chen et al.
documented an increase in the visibility of these non-binary identities, largely as a
function of the effect of marginalisation and issues concerning mental health, or the
always-fragile socioeconomic and psychological well-being of this individual.19.
Legal Recognition and Realisation in Various Countries
In the past few decades, a prima facie trend towards legal recognition of third-
gender categories in different countries reflects changing attitudes towards
groups that are not exclusively male or female. A formal recognition that
allows one to be a third gender legally has been achieved in nations as diverse
as India, Nepal, and Pakistan. In just a few examples, India's Supreme Court
decision in 2014 affording hijras and other non-binary identities the right to self-
identify as a third gender was an important legal marker in the territory of a diverse
gender identity.20.
Several countries, including Germany and Australia, have changed their national
identification models to reflect non-binary or third-gender options.21 Germany
offers the option of “diverse” as a gender marker, which recognises intersex and
non-binary identities, while in Australia, individuals may identify as ‘X’ on their
passport, recognising that some people may wish to identify outside the binary.
30 Invisible to Invincible : Narratives of Gender Justice

Getting legal recognition as a third-gender identity can increase inclusion

within government and healthcare services while providing better access to services
in addition to protections against discrimination. For example, countries that have
enacted non-discrimination legislation regarding gender identity have significantly
reduced hate crimes and social exclusion against third-gender individuals, as
indicated in studies where society felt they had a higher status from being legally
recognised as gender diverse.
However, complexity arises within the global context; while some countries have
made progressive efforts in recognition and protection for third-gender rights, many
countries criminalise and marginalise gender diversity, often stemming from
narrow conceptualisations of gender norms. The variance in legal protections also
raises questions the cultural, social and historical context that consistently inform
legal practices22.
The third gender's place within social systems
Socioeconomic Issues
Significant socio-economic difficulties often accompany the location of third-
gender individuals within social systems. Historical and cultural contexts heavily
shape these individuals' socioeconomic circumstances, as many face systemic
discrimination affecting their access to education, work, and healthcare. Moreover,
previous studies have indicated that in conjunction with the concept of
socioeconomic status, gender identity interacts further with socioeconomic
status, with third-gender people experiencing higher unemployment rates and lower
income levels when compared to binary peers. 23. Additionally, marginalised
groups often report a disproportionate experience of poverty and lack of access to
resources, which can even further exacerbate their marginalization socially and
economically.24.
Kane emphasizes parental supports and social expectations as factors affecting
people's socioeconomic potential, suggesting that a family with strict gender norms
can prevent third-gender youth from developing a sense of economic potential.
25
. It is important to note how this demonstrates the possibility of children from
non-marginalised gender identities being better off economically compared to
children from marginalised gender identities, also experiencing socioeconomic
disadvantage that might trap them into cycles of poverty, decreasing their chances
of potential upward mobility. Furthermore, the discrimination of employment
outcomes is compounded by the stigma related to gender identities in society,
resulting in barriers to job offerings and ultimately limiting access to services
such as healthcare.
 Invisible to Invincible : Narratives of Gender Justice 31

The economic marginalization of third-gender individuals often leads to their

reliance on informal sectors or illegal activities as methods of survival when
possibilities for coping are too great. Economic marginalisation highlights a clear
need for policies that will counter it. Creating initiatives to provide vocational
training and employment opportunities can be developed by understanding the
unique socioeconomic difficulties of third-gender people, which will help to
eliminate these inequities and facilitate social integration.26
Psychological Effects of Discrimination
The psychological effects of discrimination on third-gender individuals are not only
severe but complex. Evidence from research demonstrates that people in
marginalised gender categories typically suffer from high rates of mental health
issues, such as anxiety, depression, and suicidal ideation, as a result of social
rejection and institutional discrimination. Also, discrimination diminishes personal
identity and sense of self, as people frequently experience debilitating tension
between their gender identity and society's acceptance.27.
The two-dimensional perceptions of social isolation and stigmatisation evoke
how widespread social prejudice can tremendously affect mental health. For
instance, trans women frequently report living as if they are in a hostile
environment, especially when they are forced to fit within socially binary gender
categories, and these social factors can be a significant source of mental
distress.28. This coincides with the work of Liamputtong et al. and underlines
the embodiment of gender diversity and identity, contributing to the discussion and
recognition of the role of social acceptance in their mental and psychological
health.29.
The theme of internalised stigma also frequently arises in the discourse around the
mental health impacts of discrimination against third-gender persons. Internalised
stigma brings about a sense of low self-worth, which may lead to self-harm and
crises in mental health. Studies like that of Yao et al. substantiate that resilience
in third-gender communities lies in their social circles, delineating how
community acceptance is essential to counteract psychological challenges.30.
Societal stereotypes of gender roles and identities also add to what these third-
gender individuals experience and endure. The lack of appropriate mental health
services available and effective to their circumstances only complicates their
challenges - thus, this determination must focus on not only increasing the formal
cultural competence in these healthcare systems, but also increasingly, on the
focus on the collective development of acceptable community networks31.
32 Invisible to Invincible : Narratives of Gender Justice

Discrimination Faced by the Third Gender

Discrimination against third-gender individuals can take many forms, including
social stigma and ostracism, significant workplace and economic barriers, and
severe difficulties accessing education and healthcare. These forms of
discrimination not only negatively affect the quality of life of third- gender
individuals but they reinforce systemic inequalities that sustain their
marginalisation.
Forms of Discrimination
Social Stigma and Ostracism
Arguably, social stigma regarding third-gender individuals is the most pervasive
form of discrimination they experience and it leads to serious social ostracism.
According to Azhar, third- gender individuals (kwhaja sira; for example
transgender people, hijras) in Pakistan often choose to disengage from social life
due to their fear of discrimination and violence that would otherwise take place
when engaging in social life- the third-gender individuals mentioned in the study
reported choosing isolating over engaging in social life32, which mirrors the larger
forms of discrimination exhibited across many cultures against non-binary
identities. Stigma is not just a personal experience but a socially constructed
experience that contributes to marginalising negative attitudes towards third-gender
individuals, which hinders their ability to integrate socially and with fewer support
structures available to them.
The stigma stems from traditional forms of societal norms and prejudices related to
notions surrounding gender and sexual orientation. In various cultural contexts,
deviant identities that stray from the rigid binary frameworks are conceived as a
threat to social order, and backlash is enacted upon individuals who do not conform
to these gender norms. Githapradana also shows how toxic masculinity leads to
discrimination against those who do not conform to traditional gender roles,
producing an atmosphere of ostracised individuals33. Under these circumstances, it
instils fear and anxiety into the third-gender individuals who think they must
conceal who they are in order to avoid possible social penalties.
Employment and Economic Barriers
Discrimination based on gender identity towards third-gender individuals affects
their economic viability and opportunities. Many studies illustrate that gender
identity-based discrimination creates economic difficulty for third-gender
individuals in the workplace. Many third-gender individuals face significant
barriers to employment, including hiring discrimination based on gender
 Invisible to Invincible : Narratives of Gender Justice 33

identity. The stigma surrounding third-gender identities often imposes a severe

burden on employers, causing them to shy away from hiring individuals who
identify as part of the third-gender. This scenario perpetuates poverty oscillations
amongst marginalised groups34. Additionally, Azhar et al. reported that many third-
gender individuals accept informal and lower-paying jobs based largely on their
status of being marginalized35.
The lack of legal protection and affirmative action in many cases causes further
barriers towards employment. Gupta et al. cautioned that "while employees should
not discriminate against third- gender identity or presentation, they may engage
in discriminatory practices which are also prevalent across the organisational
structure", 36 causing additional disenfranchisement for individuals who
experience intersecting discrimination based on gender identity, as well as gender
presentation. The intersectionality of gender identity and socio-economic status
results in additional barriers to financial independence.
Access to education and healthcare
Access to quality education and healthcare represents another meaningful space
where third-gender individuals naturally come across discrimination. Third-gender
individuals have reported bullying, harassment, and rejection within formal
educational settings, producing undesired consequences for their academic
participation and success. Ojha's research has shown that bullying and
discrimination affect the progress throughout schooling for third-gender youth
since it leads to young people's nearly universal drop-out (in schools), therefore
producing continued cycles of poverty and denying access to better opportunities
and means of achieving economic viability up to a certain point37.
Second, the term health service access also contains its fair share of
discrimination and stigma. Azhar et al. reported that verbal abuse and denial of
treatment are key barriers faced in healthcare settings due to discrimination,
leading to poor health outcomes and mental health issues. The unequal
treatment in health care access further contributes to violence, abuse, and social
health determinants broadly. Gupta et al. noted that as health organisations also fail
to provide appropriate culturally responsible health and social work services, third-
gender individuals feel adequately supported in a new or established role, which
makes engaging with health services complicated.38.
Case Studies Illustrating Discrimination Experiences
The discrimination faced by third-gender individuals is multifaceted and
context-dependent, based on cultural, social, and regional considerations. To
34 Invisible to Invincible : Narratives of Gender Justice

explore the experiences of third-gender individuals, specific case studies provide

insight into the global framework for specific societies' perceptions of third-gender
people in India.
Global Attitude Towards Third Gender Individuals
Across the globe, the treatment of third-gender individuals vary widely due to the
influence of a country's own culture and legal framework. For instance, Azhar et
al. revealed concerning evidence of stigma and discrimination involving Khwaja
Sira individuals in Pakistan within the very healthcare systems they examined.
Khwaja sira generally face verbal harassment, physical violence, and denial of
care from healthcare professionals; this phenomenon reflects the societal
discrimination that gender minorities experience. This has implications for public
health because many Khwaja Sira individuals reported not seeking healthcare
altogether because of the fear of mistreatment.
A comparative analysis by Diehl demonstrated the relative similarity, but
uniqueness of the individual's third-gender experiences around the globe,
establishing links between hijras in India, travestis in Brazil, and muxes in Mexico.
This comparative review highlighted each context's manifestation of social
prejudice, resulting in systemic barriers, including limited healthcare access,
employment opportunities, and social isolation. Despite some global legal
precedents that began to acknowledge third-gender identities and rights, for
example, the case of India in 2014 where the Supreme Court recognised hijras as
a “third gender”, the process of discrimination remains embedded within today’s
social meanings and attitudes in most nations. As demonstrated in the previous
discussion, legal recognition of third-gender does not always mean socially
accepted; in fact, the lived experiences reveal a cause of discrimination that
demonstrates how legal changes may require cultural change to have an effect.
Although legal rights have protected transgender individuals in Brazil, labels have
discriminated a social norm as a result of stigma about non- conformity39.
Indian Differences in Social Attitudes and Consequences
An examination of Indian social treatment may provide insight into societal
attitudes concerning third-gender, particularly for hijras. Historically, hijras
have demanded respect as cultural performers for weddings and childbirths;
thus, historically, hijras have been privileged in some areas. As discussed by the
present circumstances, the situation for hijras is contentious and discriminatory;
they continue to encounter discrimination and social exclusion, which negatively
affect their mental health, economic status and opportunities.40.
 Invisible to Invincible : Narratives of Gender Justice 35

Kota et al. expressed that the psychological consequences of discrimination are at a

critical state; many of the hijras experience criminalised stigma and suicidality
because of chronic detrimental outcomes of being rejected by society. 41 . These
authors conclude that society's lack of understanding or empathetic responses
contributes to the overwhelming lack of mental health supports, as well as being
complicated by policies that aim at health and social inclusion (as an additional),
but have not yet embraced the concept of health and inclusion for third-gender
people in Indian society.
In addition to complications, Khubchandani et al. included the complexity of caste,
and also further illustrated how some lower-caste hijras endured even more
discrimination than their higher caste counterparts42. This complexity of caste and
gender indeed emphasises the need for social change for third-gender individuals
in India, and to reflect and design responses that are not naïve assumptions
regarding caste and gender social attitudes.
In addition to experiences of discrimination present preceding any medical
encounter, Shaikh et al. assessed the social discrimination against third-gender
people in India before seeking health care, only to conclude that third-gender
people face severe risks compounded by violence and the) pervasiveness of
abandoning their health.43
The future is to build on whatever possible legal recognition of third-gender rights
to continue with efforts to dignify the (modern) meanings of diversity and accept
one's own gender identity in public policy that protects all.
The Link Between Discrimination and Crime
The issues surrounding discrimination and crime, especially with third-gender
individuals as victims, provide an area of need for research, particularly due to the
clear example of inequalities shown in all instances of societal norms and laws.
Statistical evidence demonstrates that the rate of victimisation of third-gender
individuals is substantially higher than male or female victimisation rates.
Numerous studies demonstrate that discrimination at the societal level is produced
both from individual circumstances and the more implicit discrimination by
institutional policies and processes. Further, systemic discrimination contributes
to detestable crimes against individuals in the form of hate crimes more often
than crimes of hate perpetrated against the traditional gender population. 44
.Systematic discrimination against third-gender individuals produces real risk
regarding violent crime, but also exacerbates harm from victimisation through the
psychological stressors from not only victimisation in violent crime, but also
36 Invisible to Invincible : Narratives of Gender Justice

through the victimisation that occurs through systematic and procedural omission45.
Studies of a comparative nature illustrate that the experience third-gender
individuals interact with is that of unique discrimination that wholly contributes to
violent crime being more likely to occur and to also perpetrating harm. Evidence
states that third-gender individuals who dwell in communities steeped in anti-
LGBTQ discourses, third gender individuals may be considered more vulnerable to
violent crime than non-discriminated groups of individuals. This has been pointed
out in the findings of other populations who maintain marginalized status
through their sexual orientation or sexual identity46. Within the context of
exploring the comparative rates of crime, a narrative emerges where third-gender
individuals are disproportionately affected by both blatant acts of violence and
structural disadvantages, which places them in vulnerable situations to be
victims of various forms of crime47.
In addition to the quantitative statistics, qualitative data provides insight into what
motivates the criminal behaviours that third-gender individuals experience. The
resultant intersection of gender identity and social stigma creates an environment
where hate crimes are more easily socially and psychologically rationalized through
lenses that rely on discrimination.48. Third-gender individuals self-report feeling
isolated and fearful; it is understood that one's experience of discrimination (as a
social construct) may motivate the acts of criminality against third-gender
individuals.49. Depending on the level of prejudice, living in a society can create
problems for a third-gender individual, contributing to mental health issues,
which may operationally contribute to a criminal reaction, either in retaliatory
action or enactment of a crime, to assist in coping or managing with mental
health.50.
The systematic nature of discrimination indicates a requirement for systematic
change that allows for a nuanced and level response that takes not only a public
policy response but also community engagement as a means to reduce crime for
third-gender individuals. While laws and regulations to protect victims based on
sexual orientation and gender identity have been associated with shifts in statistics
relating to hate crime, regions with no legislative protection offer evidence that
reporting remains the same or continues to rise, suggesting a direct link to
legislative recognition in actively protecting groups' representation.51. Therefore,
there would be a need to address the crime itself in a multi-dimensional way, which
includes discrimination, in an effort to contribute to improved outcomes for third-
gender individuals.
 Invisible to Invincible : Narratives of Gender Justice 37

Adopting integrated models of research by bringing in qualitative research via

statistics highlights new avenues of understanding the aetiology of the
complexities of crime rates of third-gender individuals. One promising aspect is
community-based safety programs that promote inclusive, understanding and
reducing queerphobic violence is an important aspect to consider, given that the
role of social capital is not overtly considered a factor when establishing crime
rates of third-gender individuals.52. Engaging the formation of shared responsibility
with law enforcement, coupled with the social safety community engagement, to
mitigate their special interest groups in harmful behaviours targeting their
population53.
Regardless of the literature that has been produced, there remain several gaps in
the understanding of the entirety of gender discrimination as a precursor to crime.
Future research pathways will contribute reviews and or longitudinal studies will be
more insightful regarding continuous forms of discrimination throughout any
third-gender individual's life cycle that can alter the commencement of criminal
pathways. Qualitative methods for understanding lived experiences of
marginalised social constructs are increasingly encouraged. They can acknowledge
the substantial gap for understanding, while inviting discussion to allow
interdisciplinary collaborations that neatly include psychological, sociological, and
occasionally criminological observations.54.
Consequences of social and economic marginalisation
Social and economic marginalisation is inextricably related to poverty and crime.
Evidence has shown the cycle of poverty among marginalised populations and the
impact of our social context on crime. Marginalized people are often positioned to
be in a cycle of poverty, which, in turn, creates a rise in crime. When access to
basic resources like education, employment, health care, and other necessities is not
available55. However, in disorganized environments, with poverty and these types
of social extenuating circumstances, along with increased motivation for crime,
there are increasingly more opportunities. Mills talked about how when people
are economically disadvantaged or living in an unstable community, this area is
ripe for crime, which more often than not involves marginalising individuals,
risking assault against vulnerable population consumers.56.
This process of marginalisation creates increased crime alongside resistance to
community resilience. The context of poverty and crime has resulted in many
marginalised communities having unique strategic capacities for building
resilience and responding to challenges. Evidence has shown that marginalised
communities possess significant capacity to mobilise to form collective responses
38 Invisible to Invincible : Narratives of Gender Justice

to crime, even in the face of socioeconomic difficulties. 57 . For example, for many
marginalized communities, community policing and local restorative justice serve
as demonstration evidence that strengthen communities around addressing crime
from the outset, Bullock. 58. In addition, with strong social networks, there may be
an increased resilience for crime, as the togetherness may enable people to
collectively support one another against hardship, thereby alleviating some of the
circumstances of marginalisation they have dealt with59.
Gorman-Murray have articulated that although marginalisation can increase
vulnerability, it can also create unique capabilities, as individuals, similar to one
another, use their collective power to solve systemic issues.60.
The characteristics of effective community responses often include resident
involvement and the formation of community activities to tackle the direct
impacts and root causes of crime. Participatory approaches can also provide
individuals with a sense of agency in engaging with communities affected by issues
around their way of life, and studies suggest that neighbourhood social cohesion
can result in reductions in crime rates and enhance overall responses to crime.61
Leverentz's notion of "new parochialism " has curated discussion surrounding how
community relations can reflect and reproduce existing power systems and create
constraints on marginalised populations.62.
Societal Change and Advocacy
The current impact of the socio-political context on third-gender rights is directly
linked to the ongoing movements for the recognition and protection of rights for a
place in society for this community. The current movements advocate for legal
reform, but also work on the public attitudes toward third-genders, such as hijras in
Bangladesh, and the khawaja sira of Pakistan. Movements cannot change
discrimination, instil acceptance and enact social policy change if all aspects
have not been addressed. The possible adoption of laws in Bangladesh
recognizing hijras as a third gender is an example of a very slow form of societal
acceptance. However, there is still unrelenting stigma and discrimination that
must be addressed.63Activists claim legal acknowledgement and social
acceptance are two different values. Activist groups work not only in law but also
in social movements to produce cultural change64.
Legislation plays a key role in, and is an important mechanism in recognizing third-
gender rights. Concrete policy making transforms and solidifies third-gender and
transgender rights. The National Legal Services Authority (NALSA) judgment in
India is a historic example when it instituted third- gender as a form of gender
identity for transgender individuals, and then charted the way for rights advocacy to
 Invisible to Invincible : Narratives of Gender Justice 39

reduce discrimination65. However, the legal recognition of third-gender is an initial

step in the development of programming for social acceptance and access to
programs and services such as health care and education. Legislation can establish
a framework for affirmative policies supporting formal programs for social
inclusion opportunities benefiting marginalised groups, and begin to address
systemic discrimination in future programs.
Community initiatives are as important as policy, legislation and advocacy to
incorporate third- gender individuals into society. Most communities have a local
grassroots organisation that eventually works with civil society to develop
support networks that create a voice and awareness for third-gender individuals
in important areas such as health, education, and employment. Third- gender
community initiatives developed safe spaces to engage with community support
opportunities and to seek solidarity among peers facing similar issues; having a
community connection leads to improved management of individual mental health
and resilience against stigma.66Many third-gender advocacy movements result from
education and advocacy program initiatives. The development of Genders and
Sexualities Alliances (GSAS) in schools brought education and advocacy for
understanding and acceptance in youth generations, creating an environment for
acceptance of all forms of gender identities. 67
Using community support, third-gender advocacy movements try to challenge
damaging social stereotypes, while creating visibility and representation social
arenas and cultural spaces, and the political movement of "collective advocacy."
The idea of "collective advocacy" is the development of "community resilience,"
where third-gender individuals and their advocates mobilize and develop a
strategy to confront stigma, push back against the systemic discrimination of
gender identity, and employ an inclusive narrative where their own resiliency is a
source of inspiration. Proactive mobilizing and empowerment strategies of
community resiliency role model their courage, providing the moral support for
individuals to accept their gender identity while working within advocacy
movements for change, protection and programming that support their rights and
welfare of third-gender advocacy collective68.
Conclusion
In conclusion, this study addressed the perception of society towards the LGBTQ+
community, the barriers facing the community, and how acceptance of the
community is changing, specifically, through the ideas of education, representation
and cultural values. The study illustrated that some progress has been made toward
awareness; however, inclusivity and acceptance are at a standstill. Unfortunately,
40 Invisible to Invincible : Narratives of Gender Justice

excess discrimination and misunderstanding is still present, often in communities of

individuals identifying as traditional or conservative. For the media, the duality of
representation offers visibility and support but can also promote stereotypes.
Education creates awareness and tolerance, yet a well-established education and
inclusion framework is lacking. In general, stakeholders need to continue to engage
with momentum to dismantle biases and build an equitable society that respects
sexual and gender diversity.
Recommendations
Education policies: Students should be given LGBTQ+ education in schools; this
will develop their awareness, empathy, and understanding of the community from
an early age.
Policies: Develop and enforce anti-discrimination policies at all government and
institutional levels to protect individuals (LGBTQ+) in all areas of life, such as
employment, health care, education, etc.
Media and the Vision: If you are a media maker, spend time telling an authentic
and positive story about LGBTQ+ individuals and do your best to avoid
drawing on a few narratives for representation. We must continue to look for and
build LGBTQ+ narratives in media to close perceptions of the LGBTQ+
community and its acceptance in society.
Local Activities/Actions: Continue to occupy space of and advocate for
organisations and grassroots organisations that advocate for LGBTQ+ rights, and
build a community that establishes safe spaces for empowerment and conversation.
Research: It would be interesting to build on this research and examine specific
subgroups in the LGBTQ spectrum, keeping in mind the intersections of race, class,
and religion, to create more targeted and nuanced policies.
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 Invisible to Invincible : Narratives of Gender Justice 45

Addressing Gender-Based Violence in the Metaverse: A

New Frontier for Law
Prachi Bohare
Student, Department of Law, Prestige Institute of Management and
Research, Indore
Co – Author: Tanishka Jain
Student, Department of Law, Prestige Institute of Management and
Research, Indore
Abstract
The increasing popularity of online platforms has ushered in many benefits but has also
brought new forms of gender violence. Online harassment, unwanted posting of intimate
content, and other forms of digital abuse disproportionately affect women and
marginalized communities. These harms are not simply reflections of violence offline but
have unique impacts due to the anonymity and ubiquity of online spaces. Existing legal
regimes often fail to provide adequate protection against such cyber-menaces. A majority
of the victims cannot access justice due to loopholes in laws, jurisdiction, and inadequate
enforcement. Moreover, internet platform architecture at times allows naughty conduct to
be persistent, and victims find it difficult to claim redress. Gender-insensitive policy and
unawareness also contribute to the bottlenecks in addressing these issues. This paper
analyzes the legal and structural loopholes which aid in maintaining gender-based
violence on the internet. It highlights the importance of improved legal protection, more
effective digital policy, and more platform accountability. The study also emphasizes the
importance of awareness generation and deployment of technology interventions for
generating a more secure virtual world. As internet-based interaction continues to grow,
protection, dignity, and equitable access to cyberspace is vital. Conquering these obstacles
requires collective action by legislators, technology companies, and civil society to foster
a safer and more inclusive digital space.
Keywords: Gender-Based Violence, Online Harassment, Digital Safety, Legal Protections,
Platform Accountability.
Introduction
With the continuous growth of the online world, the advent of the metaverse is an
immersive 3D virtual world where the users interact through avatars and comes
with opportunities as well as challenges. One of the most, the biggest concern right
now is the rise in gender-based violence i.e.GBV in such virtual realities.
Traditionally confined to physical or textual interactions, GBV now presents in new
forms in the metaverse, such as virtual harassment, groping, stalking, verbal abuse,
and unwanted contact. All of which can have serious emotional and psychological
46 Invisible to Invincible : Narratives of Gender Justice

consequences on victims.
One of the largest and most pressing issue with GBV In the metaveres is sexual
harrasement which is also the focus of this research paper. The term 'sexual
harassment' which is also referred to as 'Digital Rape' has a fresh meaning,
prompting significant discussions on online safety. With the metaverse established
as a part of our daily existence, the fantasy and reality differ but reveal an
intriguing three-dimensional world that earlier existed only within our imagination.
The charm of this virtual world is enhanced by stunning visuals, where the sense of
touch transcends into our physical world. In this unrealistically realistic world,
things get in the way, crossing over from the physical to the digital space. This
research paper aims to investigate the important question which involve- How do
we set and uphold boundaries when the virtual and physical spaces meet in this
fascinating yet complex digital environment?
Research Methodology
This research utilizes a doctrinal research methodology, examining statutes, case
laws, and legal literature. Comparative analysis is utilized to assess international
legal frameworks on digital sexual harassment. Empirical references such as case
studies and statistical information are used to substantiate the findings.
Literature review
The evolution of the metaverse as a convergence of virtual, augmented, and
extended reality environments has presented new spheres of human interaction.
Yet, this digital evolution has also created intricate legal challenges, especially with
regard to gender-based violence (GBV). While users interact in immersive and
frequently anonymous virtual environments, cases of sexual harassment, stalking,
and verbal abuse have climbed without effective legal frameworks in place.
Several researchers have examined these new risks and laid out new paradigms
for the law.
1. Halpert, A. L., & Weinstein, M. J. (2022). “Gender-Based Violence in Virtual
Reality: Legal and Ethical Considerations.” The authors point to the
inadequacy of existing cyber legislation in dealing with embodied and
immersive online harassment and abuse, proposing the creation of laws
respecting "virtual bodily integrity" and consent based on avatars.
2. Menon, P. S. (2023). “Policing the Metaverse: Addressing Harassment and
Abuse in Immersive Digital Spaces.” The article supports algorithmic
moderators with human intervention to actively track GBV-related events.
 Invisible to Invincible : Narratives of Gender Justice 47

3. Abboud, L., & Wang, C. (2023). “A Feminist Legal Framework for the
Metaverse.” This study utilizes an intersectional feminist perspective to
evaluate the structural weaknesses of women and LGBTQ+ users within
online environments. The authors suggest the implementation of gender-
sensitive models of justice within platform regulation and propose user-
controlled safety features, including spatial audio blocking and adjustable
proximity settings.
4. Walter, S. (Ed.) (2024). “Metaverse Governance: Ethics, Rights, and Virtual
Harms.” A thorough edited volume, this book covers digital ethics, platform
responsibility, and protection of rights in immersive spaces. It contains
chapters on GBV and recommends the establishment of digital ombudsman
positions and uniform virtual conduct charters.
All the above papers recognize these primary concerns Legal Gaps, Platform
Accountability Intersectionality, Jurisdictional Issues, and Technological
Safeguards but misses some key points and the actions which are addressed
further in this research paper.
Research Gaps
Although current laws cover cybercrimes, they fail to address crimes in virtual
reality places comprehensively. There are loopholes created by the absence of
concrete legal definitions of digital sexual harassment in metaverse. This study tries
to fulfil all the gaps through examination of legal progress and recommending a
safer online environment.
Research Question and Objectives
This research paper seeks to investigate the occurrence and legal consequences of
sexual harassment in the metaverse. The major research questions are-
1. How does sexual harassment manifest in the metaverse?
2. What are the existing legal frameworks to tackle digital sexual harassment?
3. What are the challenges in enforcing laws in virtual environments?
4. How can current laws be modified to more effectively govern digital
harassment in the metaverse?
Gender-Based Violence within the Expanding Realm of the Metaverse
Before delving in the deep understanding of sexual harassment now also known as
digital rape we must have the basic understanding of some important terms mention
in this paper.
48 Invisible to Invincible : Narratives of Gender Justice

Gender-based violence (GBV) is harmful acts against individuals due to gender,

and it mainly targets women and vulnerable gender groups. It encompasses
physical, sexual, emotional, and psychological violence, such as domestic violence,
sexual assault, harassment, and stalking. GBV has long-term effects on society,
fueling gender inequality, causing harm to victims' health, decreasing economic
productivity, and perpetuating cycles of trauma and discrimination. With the
digital age, this violence has also changed, taking new shapes in cyberspace. In the
metaverse, GBV has increased to what experts refer to as "digital rape" is a term
that refers to non-consensual, sexually abusive behaviors perpetrated by avatars in
interactive virtual environments. The victims tend to report that they feel
traumatized and violated since the 3D, real-time experience replicates real-life
interactions, making the abuse psychologically devastating even without physical
contact. This is a concerning trend that highlights the need for legal reforms and
safety protocols in new digital realities.
Another key terms is metaverse. What does metaverse mean here? The word
“metaverse” was coined in 1992 by Neal Stephenson's science fiction novel Snow
Crash, derived from “meta” and “universe.” Today, technology has introduced us to
the metaverse, a virtual world providing various experiences and worldwide
connectivity. But amidst the fun is a dire issue: sexual harassment in the metaverse.
Picture the metaverse as an ongoing 3D virtual world that one can enter through
avatars and special headsets. All these technologies offer a sense of immersion,
blurring the boundaries between the real world and the virtual universe. It is an
enormous virtual playground where one spends time on diverse activities –
everything from socializing with friends to conducting business meetings or even
virtual weddings. A perfect instance, on February 5th, 2022, Abhijeet and Sansrati
etched their name in history as India's first couple to marry in the 3D Metaverse.
Their wedding took place within the virtual environment of Yug Metaverse, which
is a domestically created metaverse platform. 1
Understanding the Sexual Harassment in the Metaverse
Sexual harassment in the metaverse refers to any inappropriate, sexually-charged
conduct in the virtual world. These include uninvited, sexually-explicit talks,
unwanted sexual advances, virtual groping, and unwanted virtual activities. The
virtual context of these acts tends to erase the line between what is real and
imaginary, making it difficult to address and regulate such actions. It is also
referred to as ‘Metaverse rape’ or ‘Digital Rape’, a type of sexual harassment on
the internet, where perpetrators utilize technology to compel victims to have sex in
the virtual world against their will. The unsettling thing about it is the utilization of
 Invisible to Invincible : Narratives of Gender Justice 49

Virtual Reality controllers that mimic unwelcome touches, thus creating an

unsettling experience in the real world. This may occur through sharing intimate
material without permission, cyberstalking, sexual harassment online, and sexual
extortion.2
The Rise of the Metaverse and Its Risks
With apps like Meta's Horizon Worlds, Decentraland, VRChat, and Roblox
expanding at a fast pace, millions of users which also includes children and women,
are spending prolonged hours in virtual environments. According to a report
published by Center for Countering Digital Hate (CCDH) in 2022, users had
encounters with sexual harassment or abuse in VR settings every seven minutes on
average.3 A woman who was utilizing Meta's Horizon Worlds also filed a report
saying she was virtually groped soon after signing up.4
Unlike other online forums, the interactive nature of VR makes these experiences
seem much more intimate and traumatic. When abuse is depicted in 3D, with voice
chat and motion-tracked avatars, the psychological effect can be mirrored or even
surpassed by that of real-world harassment.
Global Legal Landscape
Internationally, criminalization and recognition of digital rape greatly differ.
Digital penetration is afforded explicit legal provisions in some countries, whereas
it falls under encompassing sexual assault or rape laws in others. While there are no
special international laws specifically addressing sexual harassment in the
metaverse, currently prevailing legal frameworks can be used everywhere in the
world. The United Nations regards online violence as a human rights abuse and
supports a holistic legal strategy. In the European Union, the General Data
Protection Regulation (GDPR)5 strengthens user control over online information,
having an indirect impact on metaverse platforms. In the United States, laws like
the Computer Fraud and Abuse Act6and anti-cyberstalking legislation target a
number of different kinds of online harassment.
Some nations have passed legislation aimed at fighting cyberbullying, online
harassment, and violations of digital privacy. Although not explicitly intended for
use in the metaverse, the laws can apply to virtual worlds. Digital sites have also
formulated their own standards to limit harassment. As technologies continue to
progress, global cooperation is still a key to forming effective legal norms for the
rapidly changing metaverse environment.
50 Invisible to Invincible : Narratives of Gender Justice

5.1 United States

In the U.S., the criminal law definition of rape has expanded to include digital
penetration. State legislatures and the Model Penal Code classify non-consensual
digital penetration as sexual assault or rape. For instance, California Penal Code
Section 289 makes a point of criminalizing non-consensual digital penetration. In
People v. Yones7, the California Supreme Court upheld a digital rape conviction,
affirming that unwanted digital penetration is rape under the state's law. The ruling
set an important precedent, upholding the judicial establishment of digital
penetration as a serious offense.
5.2 United Kingdom
The Sexual Offences Act 2003 8 in the United Kingdom includes digital penetration
in its definition of rape. Section 1 of the Act states that rape is penetration without
consent by a penis, fingers, or objects. In R v. Ismail9, the defendant was convicted
of digital rape under the Sexual Offences Act 2003. The interpretation of the court
reasserted that digital penetration was as serious as penile rape, with appropriate
legal consequences for the offender.
The Indian Legal Landscape
In India, the Constitutional Article 21 gives the right to privacy as a fundamental
right, a principle settled in Justice K.S. Puttaswamy v. Union of India10, extending
its application to the realm of cyberspace. Although there are no specific laws
addressing metaverse sexual harassment, existing laws offer some protection. But
these laws don't address all virtual space issues. some of these Laws are as below-
4.1 Information Technology Act, 2000
The Information Technology Act (IT Act), 200011 does have extraterritorial
application, that is, it extends its jurisdiction to activities beyond India if a
computer involved is in India, irrespective of the nationality of the individual. This
means its potential applicability to metaverse employees across the globe as far as
the equipment used is of Indian origin. The IT Act talks about punishment for
putting out obscene content in electronic form under Section 67, providing
recourse to justice if adult content is floating in the metaverse. Section 66C
addresses identity theft, penalizing use of unique identification features by
deception in the metaverse, safeguarding against unauthorized digital usage of
identity.
 Invisible to Invincible : Narratives of Gender Justice 51

4.2 The Digital Personal Data Protection Act, 2023

India's Digital Personal Data Protection Act, 202312 lays down necessary
parameters for protection of data in the metaverse, like avatars and interactions. It
regulates data protection regulations and security standards for responsible
treatment of data. In the event of data breach, the Act requires redressal and
notification within time. Prevention from sexual harassment by the metaverse
platforms can be supplemented with open policies, reporting mechanisms, user
education, real-time moderation, and technology advancements, making it a safer
environment.
4.3 Sexual Harassment of Women at Workplace (Prevention, Prohibition, and
Redressal) Act, 2013 (the “POSH Act”)
The Prevention of Sexual Harassment (POSH) Act, 2013 covers women employees
against the harassment in verbal, non-verbal, or physical manner. Its liberal
meaning of ‘workplace’ entails metaverse does, securing the women
employees.Based on precedents, i.e. Jaya Kodate v. Rashtrasant Tukdoji Maharaj
Nagpur University13, the general reading of 'workplace,' inclusive of virtual sites,
emphasizes it.
Additionally, in Sanjeev Mishra v. Disciplinary Authority and General Manager,
Bank14, the High Court of Rajasthan, considering the facts and circumstances of the
case, tried to incorporate virtual workplaces into the definition of ‘workplace.’
Section 19 mandates the presence of redressal mechanisms by employers in the
metaverse, thus holding the metaverse platforms as well as gaming companies
accountable for effective redressal. This shared responsibility emphasizes their role
as facilitators, ensuring a secure setting and addressing sexual harassment in online
environments.
Lacunas in legal framework & its Accountability
The incidents which are mention above causes the great complexities and raised the
questions on the ethical and legal gaps and about the accountabilities. There are
many question which can be raised such as -
1. Can virtual harassment be treated the same as real-world harassment?
2. Who is responsible, the perpetrator, the platform, or both?
3. What constitutes “consent” in the metaverse?
52 Invisible to Invincible : Narratives of Gender Justice

4. What laws apply, and how can they be enforced across borders?
In most jurisdictions, existing laws do not explicitly address metaverse-related
abuse. While some cybercrime laws cover harassment and abuse in text or image
formats, they often fall short in addressing immersive experiences like VR groping
or spatial intrusion.
For example, in South Korea, digital sex crimes like deepfakes or online blackmail,
are taken seriously under cybercrime laws. However, these laws rarely account for
fully immersive virtual environments where bodily autonomy and spatial
boundaries are harder to define. In contrast, Meta responded to some of these issues
by introducing a “Personal Boundary” feature, preventing avatars from coming
within a certain distance of one another, a good start, but still not a legal solution.15
When we talk about some Real-World Examples Nina Jane Patel, a researcher and
co-founder of Kabuni, described being gang-raped in the metaverse by male
avatars, a traumatic experience that highlights how immersive tech can amplify
abuse.16
In India, reported digital avatars of women were created and auctioned for
impersonal sex-like activities on services such as Roblox or Discord, and with
outrage but negligible legal remedy.
VRChat users have described stalking and constant verbal abuse, including
gendered insults and hate speech, prompting some to leave the platform entirely.
For example, in South Korea, laws against digital sex crimes are some of the
strictest in the world. However, they do not extend to interactions within virtual
reality environments. In the United States and India, online safety legislation is
changing but is generally reactive rather than proactive. The decentralized
operation of most metaverse platforms also makes jurisdiction and enforcement
more difficult.
When we discuss the measures the platforms, in reaction to mounting criticism,
have taken, such as Meta introducing features like “Personal Boundary”a four-foot
radius around every avatar to avoid unwanted contact, these are positive steps but
usually optional, inconsistent between platforms, or weakly enforced. It also said
that Platforms must take more robust actions, including:
 Invisible to Invincible : Narratives of Gender Justice 53

Major Issues and Challenges

Handling the intricacies of sexual harassment in the metaverse is very challenging,
and these include:
1. Anonymity and Identification of Perpetrators
Anonymity of the metaverse promotes unwanted behavior, and it is difficult to
trace culprits and initiate legal proceedings against them. The anonymity
contributes to the ubiquity of sexual harassment.
2. Acknowledging the Gravity of Virtual Harassment
It would be difficult to establish the seriousness of virtual harassment. Courts have
been accustomed to handling physical cases, and so they would remain skeptical
about the impact of harassment concerning the metaverse. Besides, users could
have a different understanding of virtual spaces compared to actual interactions,
and therefore it will be difficult to comprehend the psychological effect of online
harassment.
3. Jurisdictional Challenges
The global aspect of the metaverse does pose difficulties in having legal
proceedings because of the disparities in legal frameworks between nations. This is
made worse by the non-uniform reporting mechanism and offensive stereotypes.
4. Consent in Digital Spaces
Consent in virtual spaces is complicated, and it becomes tricky to determine if
54 Invisible to Invincible : Narratives of Gender Justice

sexual encounters are consensual or otherwise. The nature of fluid online

interactions necessitates careful legal scrutiny.
5. Lack of Legal Provisions
Existing laws are not entirely capable of dealing with digital rape due to the
distinctive character of cyber sexual violence. Legal structures must evolve in
order to properly address this emerging issue.
6. Challenges in Evidence
It is difficult to prove digital rape because of the nature of the offense. In contrast
to penile rape, digital penetration might not leave distinct physical evidence,
making it difficult to obtain forensic evidence.17
Analysis of Judicial Trends
A study of judicial trends indicates an increased acknowledgment of the severity of
digital rape. Courts are more and more recognizing the violation and trauma
attached to digital penetration, with a resultant more uniform and stricter imposition
of laws. The following section shall discuss trends in various jurisdictions of India,
how judicial mindsets in response to digital rape are changing.
Up until this case called State of Punjab vs. Gurmit Singh (1996)18, the legal
definition of rape was extremely narrow and only comprised penile-vaginal
penetration. In this ruling, the Supreme Court greatly expanded the definition so
that penetration by any orifice using any portion or object (excluding the penis) of
the body was now considered rape. This laid the significant foundation for the later
legal establishment of digital rape under Section 375 of the IPC. In this landmark
case, the Indian Supreme Court broadened the definition of rape to include digital
penetration. The ruling highlighted the need for having extensive legislation that
accommodates all forms of sexual assault.
Further, the case, State of Karnataka vs. Shivanna (2017)19, included the insertion
of fingers into a 3-year-old girl's vagina. The Court declared it a “penetrative
sexual assault” under the POCSO Act. This further supported the wider definition
of rape.
Some Cases which Addressess Online Sexual Harassment and Abuse. These are-
State of Uttar Pradesh vs. Pappu Yadav (2019)20, This is a case of the victim being
forced to engage in sexual acts that were recorded and used as tools of blackmail.
This shows how online platforms can be used as tools of coercion and exploitation.
 Invisible to Invincible : Narratives of Gender Justice 55

In another case, Kalandi Charan Lenka vs. State of Odisha (2017)21, a man was
held guilty for altering a woman's pictures and uploading them on the internet. The
Court upheld charges of obscenity under Section 67 of the Information Technology
Act and defamation under Section 499 & 500 of the IPC. This case demonstrated
how photos could be used as a weapon of sexual abuse.
In, Aparna Bhat vs. State of Madhya Pradesh (2021)22, the verdict particularly
identified the serious damage caused by sexual harassment on the web and gave
high priority to the protection of women in cyberspace. The verdict established
precedent for subsequent judicial action against web-based sexual violence.
Proposed Solutions and Future Recommendations
To address sexual harassment issues posed by the metaverse, one must have a
multi-faceted solution.
1. Mandatory Reporting Mechanisms
Forced regulations can require metaverse platforms to have sophisticated reporting
systems, where users are able to report instances of harassment. The systems should
allow the gathering and passing on of incident data to the regulatory institutions,
making them more accountable. Examples such as The European Union's Digital
Services Act, 2022 with strong reporting demands are a precedent for metaverse
platforms.
2. AI and Content Moderation
The use of AI in content moderation requires a strong adherence to ethical
standards for the removal of bias and privacy. The AI used in such processes
should be capable of detecting patterns of harassment in real time and acting
promptly, with a design that provides operational transparency as well as
accountability. This initiative comes in sync with legislative bills, like that of
Germany's Network Enforcement Act (NetzDG), which suggests the use of AI for
moderation of content on every social media platform, a move that can become the
standard in the online community.
3. Public-Private Partnerships
To attain effective anti-sexual harassment strategies, strategic partnerships between
governments, civil society, and metaverse stakeholders must be established. Such
partnerships encourage the sharing of effective intervention mechanisms and enable
studies on preventive interventions. Taking cues from successful models, such as
collaborative efforts in South Korea to contain digital sex crimes, such practices
offer useful lessons in building safe metaverse communities through intergovern-
mental and industry cooperation.
56 Invisible to Invincible : Narratives of Gender Justice

4. Effective Approaches by Developer

Relying solely on legislation to address sexual violence in the metaverse falls short.
Developers must play a crucial role, implementing preventive measures. Instances
like virtual groping in QuiVR prompted innovative solutions, such as a "Personal
Bubble" gesture, enabling users to establish their safety zones. Firms can further
improve safety features by enabling users to control proximity settings and offer
easy options for blocking, muting, and reporting others. These steps empower
users, giving them control over their own space. Parental Guidance in the
Metaverse Parents have a critical role to play in protecting their children in the
metaverse through controlling access, monitoring virtual activities, and keeping
channels of communication open, ensuring a safe online environment for their
children.23
In addition, ensuring a respectful and safe virtual space demands robust education
and awareness campaigns. Educating online users and promoting responsible online
behavior are key measures towards creating a positive and respectful metaverse
experience for everyone.
Way forward
Briefly, the metaverse, in its nascent stage, is grappling with an increase in reported
cases of sexual violence. Being interactive, it poses psychological concerns,
especially among younger victims. The users, teachers, parents, and policy-makers
must all take proactive measures to avert this new evil. With the metaverse
evolving at a rapid rate, mirroring real-world interactions, there is a need for
thorough investigations, understanding, and potential legislative changes. While
virtual courts are a concept of the future, current priority is ensuring that users are
protected and the metaverse is regulated to have a safe and respectful digital space
for all. The sexual harassment nuances in this new universe must be continually
analyzed, updated, and worked on as a collaborative effort to bring a harm-free
and constructive interaction supportive metaverse into being.
References
1 Davy Tsz Kit Ng, ‘What is the Metaverse? Definitions, Technologies and the Community of Inquiry’
(2022) 38 Australasian Journal of Educational Technology 190 https://doi.org/10.14742/ajet.7945 accessed
16 April 2025.
2 Navigating the Metaverse: Unveiling the Spectrum of Opportunities and Challenges, With a Focus on
Sexual Harassment and Legal Frontiers (International Journal of Legal Science and Innovation)
https://ijlsi.com/wp- content/uploads/Navigating-the-Metaverse.pdf accessed 22 March 2025.
3 The Incelosphere: Exposing Pathways into Incel Communities and the Harms They Pose to Women and
Children (Center for Countering Digital Hate, 23 September 2022) https://counterhate.com/research/
incelosphere/ accessed 16 April 2025.
 Invisible to Invincible : Narratives of Gender Justice 57

4 Woman Complains She Was Virtually Groped on Meta's Horizon Worlds, Company Says Improving
Interface’ (India Today, 20 December 2021) https://www.indiatoday.in/technology/ news/story/woman-
complains-she-was-virtually-groped-on-meta-s-horizon-worlds-company-says-improving-interface-
1889975-2021-12-20 accessed 16 April 2025.
5 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free movement of
such data (General Data Protection Regulation) [2016] OJ L119/1.
6 Computer Fraud and Abuse Act, 18 USC § 1030 (2022)
7 People v Yones (2020) 269 Cal Rptr 3d 793 (Cal Ct App
8 Sexual Offences Act 2003, c. 42, s 1
9 R v. Ismail [2005] EWCA Crim 3056.
10 Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1(SC).
11 The Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India).
12 The Digital Personal Data Protection Act, 2023, No. 29, Acts of Parliament, 2023 (India).
13 Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur Univ., 2014 SCC Bom 8147.
14 Available at https://indiankanoon.org/doc/49655315/
15 ‘Digital Sex Crime Victims Surpass 10,000 in South Korea; Majority in Teens, 20s’ (The Straits Times)
https://www.straitstimes.com/asia/east-asia/digital-sex-crime-victims-surpass-10000-in-south-korea-majority-
in-teens-20s accessed 16 April 2025.
16 Nina Jane Patel, ‘Nina Jane Patel on a Safe, Responsible Metaverse’ (Nexxworks) https://www.nexx
works.com/blog/a-safe-responsible-metevarse accessed 16 April 2025.
17 ‘The Dark Side of Metaverse – The Rise of Sexual Violence Through the Metaverse: A Critical Analysis’
(IJNRD – UGC CARE) https://www.ijnrd.org/papers/IJNRD2402097.pdf accessed 22 March 2025.
18 State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 (SC).
19 State of Karnataka v. Shivanna (2017) 8 SCC 174 (SC) .
20 State of Uttar Pradesh v. Pappu Yadav (2019) SCC All 2367.
21 Kalandi Charan Lenka v. State of Odisha (2017) SCC Ori 434
22 Aparna Bhat v. State of Madhya Pradesh (2021) 3 SCC 247 (SC).
23 Mohamed Chawki and others, ‘Redefining Boundaries in the Metaverse: Navigating the Challenges of
Virtual Harm and User Safety’ (2024) 13 Laws 33 https://doi.org/10.3390/laws13030033 accessed 16
April 2025.


58 Invisible to Invincible : Narratives of Gender Justice

Transgender Rights, Identity, and the Law: A Critical

Analysis of Global Trends, Indian Realities, and Contested
Narratives
Sarthak Arya
th
4 Year Law student at Bennett University, Greater Noida
Isha Shroff
th
5 Year Law student at Veer Narmad South Gujarat University, Surat
Abstract
While transgender awareness programs and rights reforms are at their peak in recorded
history, understanding the ill effects of the “Transgender Craze” is equally essential to
ensure that the right funds and energy are being invested. The overall outcome of a
revolution is positive and does not reverse the previously achieved progress. Emphasizing
the lesser-known aspect of Transgender Crisis among young minds, especially girls, this
paper aims to bring forward the harsh reality of the ‘hormone and sex change industries’,
which remains hidden and yet is taking over the feminist movement. Data was generated
from in-depth semi-structured interviews and further analysis through secondary
sources. The study mainly revealed that 75% of young people need a sense of validation
and go on social media to achieve the same. A significant aspect of gender dysphoria,
which previously was termed "gender identity disorder", consists of permanent unsettling
feelings about biological sex assignments. The condition starts in very young children
between the ages of two and four yet often gets worse during teenage years. But in
most cases, nearly 70 per cent of childhood gender dysphoria resolves. Records from the
past indicate that gender dysphoria struck only .01% of the population and consisted
mainly of male patients. No scientific research existed about gender dysphoria in girls
between the ages of eleven and twenty- one before 2012. A significant transformation
occurred in the preceding ten years. The Western world has seen a sudden surge of
adolescents claiming to have gender dysphoria and self-identifying as “transgender.” In
India, the ‘Craze’ of Trans identity and associated validation is on the rise but has not
equated the level of distortion in Western societies. Furthermore, the Movement must
be pulled back to its original intent, which was to ensure equal rights for the
biologically trans rather than supporting a well-aided and brainwashed sex-change
industry.
Keywords: Feminism, Trans Rights, LGBTQ+, Hormones, Gender dysphoria
Introduction
The global landscape concerning transgender individuals is marked by increasing
visibility and evolving legal recognition, yet simultaneously fraught with intense
debate. As societies grapple with shifting understandings of gender identity,
legal systems, healthcare frameworks, and public discourse face challenges.
 Invisible to Invincible : Narratives of Gender Justice 59

Issues surrounding identity recognition, access to gender- affirming care, the

experiences of transgender youth, and the definition of gender itself are subjects of
ongoing scrutiny. India presents a unique case study, with a history of diverse
gender expressions alongside a modern legal framework shaped by landmark
judicial pronouncements and subsequent legislation. The historical presence of
communities like hijras contrasts with contemporary struggles against
discrimination and complexities introduced by colonial-era laws and modern
statutes.
This research paper provides a critical legal analysis of the multifaceted issues
surrounding transgender rights and identity. It examines the legal status of
transgender individuals in India, focusing on the Supreme Court's National Legal
Services Authority v Union of India (NALSA) judgment3 and the Transgender
Persons (Protection of Rights) Act, 2019, comparing these with international
standards like the Yogyakarta Principles. The paper investigates medical and
psychological frameworks for gender dysphoria (DSM-5, ICD- 11), analysing data
on prevalence, demographics, and persistence versus desistance rates, particularly
in childhood.
A significant portion analyses the reported increase in adolescents, especially those
assigned female at birth, identifying as transgender. This includes examining
potential factors like social influences, peer networks, and educational systems,
focusing on debates around "gender ideology" in American schools. The paper
critically engages with Abigail Shrier's arguments in "Irreversible Damage"
regarding social contagion among adolescent girls, alongside scholarly critiques.
Medical interventions (WPATH Standards of Care, UK's Cass Review) are
examined, considering eligibility, benefits, risks, ethics, and alleged profit motives
within the medical industry.
Furthermore, diverse feminist perspectives are explored, analysing trans- inclusive
viewpoints and arguments of gender-critical feminists (Kathleen Stock, Sheila
Jeffreys) regarding the perceived impact on women and feminism. Finally, a
comparative analysis contrasts India's socio-legal landscape, public discourse,
healthcare access, and educational approaches with Western countries (the US,
the UK).
The methodology employed is legal scholarship, drawing upon constitutional
principles, human rights law, comparative legal analysis, and critical engagement
with relevant medical, psychological, sociological, and feminist literature,
primarily sourced from the provided research materials.4 The analysis maintains
a formal, analytical tone, aiming for objectivity while critically evaluating
60 Invisible to Invincible : Narratives of Gender Justice

contested claims and evidence. Adherence to the Oxford 4th edition citation style
is maintained throughout, using source identifiers as placeholders for full citations.
The paper proceeds by examining legal frameworks (Section I), medical definitions
and data (Section II), adolescent experiences and social contexts (Section III),
medical interventions and ethics (Section IV), feminist perspectives (Section V),
and a comparative analysis (Section VI), concluding with a synthesis (Section VII).
I. The Legal Landscape of Transgender Rights: India and International
Standards
The legal recognition and protection of transgender rights represent a critical area
of human rights law, reflecting broader societal shifts in understanding gender
identity. India's journey in this domain offers a compelling narrative, marked by a
progressive judicial intervention followed by complex and contested legislative
action. Contrasting this with established international human rights principles
provides a framework for evaluating the adequacy and implementation of legal
protections.
A. The Landmark NALSA Judgment in India
The Supreme Court of India's decision in National Legal Services Authority v
Union of India (NALSA) is a cornerstone for transgender rights in the country.
4
Experiences of transgender persons in accessing routine healthcare services in
India: Findings from a participatory qualitative study - PubMed Central, Delivered
in April 2014, it provided the first comprehensive legal recognition and articulated
a robust rights framework based on the Indian Constitution and international law.5
NALSA legally recognised a 'third gender' category, acknowledging individuals
outside the male/female binary. The Court affirmed the fundamental right to self-
determination of gender identity for all persons (male, female, or third gender)
based on their internal sense of self, independent of biological characteristics or
medical interventions like Sex Reassignment Surgery (SRS). Insisting on such
procedures was deemed illegal and a violation of privacy. The Court preferred a
'Psychological Test' over a 'Biological Test'.
These rights were grounded in the Constitution's fundamental rights. 'Dignity'
under Article 21 (Right to Life) was interpreted to encompass diversity in self-
expression and autonomy, including gender identity. Article 14 (Right to Equality)
applies to 'any person', including transgender individuals facing "extreme
discrimination". Article 19(1)(a) (Freedom of Expression) includes expressing self-
identified gender through dress, words, or behaviour. The Court broadened 'sex'
 Invisible to Invincible : Narratives of Gender Justice 61

under Articles 15 and 16 (prohibiting discrimination) to include 'gender' based on

self-perception, making discrimination based on gender identity prohibited.
Recognising historical marginalisation, the Court declared the transgender
community a "socially and educationally backwards class," entitling them to
reservations in education and employment. It directed governments to frame
welfare schemes, provide healthcare access (including separate toilets and HIV
surveillance), and conduct awareness campaigns. The Court referenced
international treaties and the Yogyakarta Principles to support its reasoning.
B. The Transgender Persons (Protection of Rights) Act, 2019
Following the NALSA judgment and intervening legislative attempts6The Indian
Parliament enacted The Transgender Persons (Protection of Rights) Act, 2019
(Act No. 40 of 2019).7 Assented to on 5 December 2019 and effective from
10 January 2020, the Act aims "to provide for the protection of the rights of
transgender persons and their welfare and matters connected therewith"8
The Act defines a "transgender person" broadly as someone whose gender does
not match the gender assigned at birth, including trans-men, trans-women (whether
or not they have undergone SRS or hormone therapy), persons with intersex
variations, gender-queers, and persons with cultural identities like hijra, kinnara,
aravani, jogta etc.. It prohibits discrimination against transgender persons in
various domains, including education, employment, healthcare, access to public
goods and facilities, housing, and political participation.
Chapter III outlines legal recognition. Section 5 allows application to the District
Magistrate (DM) for a certificate identifying gender as 'transgender'. Section 6
mandates that the DM issue this certificate based on the application, without
requiring a medical examination, which improves over earlier drafts. 9
However, Section 7 requires proof of surgery for recognition as male or
female. An individual with a 'transgender' certificate who undergoes surgery can
apply for a revised certificate, submitting evidence from the medical institution
where the surgery occurred. The subsequent 2020 Rules broadened "medical
intervention" to include counselling or hormones, but linked binary recognition to a
certified medical process.10
The Act mandates welfare measures, inclusive education, schemes, and healthcare
services, including reviewing medical curricula, potential insurance schemes,
separate HIV centres, and providing SRS and hormone therapy. It affirms the right
to reside with family, prohibiting separation unless by court order. If a family
cannot care for the individual, court-ordered placement in a rehabilitation centre is
62 Invisible to Invincible : Narratives of Gender Justice

possible. Chapter VIII outlines offences like forced labour, denial of access, and
abuse, but penalties (6 months to 2 years imprisonment) have been criticised as less
severe than for similar offences against cisgender individuals.
C. Critiques of the 2019 Act and the Self-Determination Conflict
The 2019 Act faced criticism for diluting NALSA's principles. The primary conflict
concerns the right to self-determination. While Section 4 nominally recognises this
right, Sections 5, 6, and 7 effectively undermine it. Requiring proof of
surgery/medical intervention for legal recognition as male or female contradicts
NALSA's ruling that self-identification is paramount, irrespective of medical
procedures. This reintroduces medical gatekeeping, which was rejected by the
Supreme Court.
This creates a discriminatory hierarchy: recognition as 'transgender' via self-
declaration, but binary recognition (male/female) contingent on potentially
unwanted or inaccessible medical interventions. This violates autonomy, dignity,
and privacy (Article 21 as interpreted by NALSA). The DM certification process
lacks procedural safeguards and subjects identity to state validation.
Further criticisms include conflating transgender identities with intersex variations,
failing to implement NALSA's reservation mandate, insufficient penalties for
offences, and inadequate provisions for family rejection scenarios. This
legislative backsliding may stem from governmental reluctance based on
unsubstantiated fears of 'misuse'. The result is a framework compromising self-
determination, leading to ongoing legal challenges. The gap between legal rights
and lived reality remains significant.11The gap between the legal rights
articulated on paper and the lived reality of accessing those rights remains
significant.12 This internal contradiction within Indian law – a progressive
judicial foundation undermined by restrictive legislation – highlights the ongoing
struggle for full legal equality based on self-determined gender identity.
D. International Human Rights Standards: The Yogyakarta Principles
The NALSA judgment referenced the Yogyakarta Principles (YP), developed in
2006 and supplemented in 2017 (YP+10). These principles articulate how
international human rights standards apply to sexual orientation, gender
identity, gender expression, and sex characteristics (SOGIESC)13. Though non-
binding, they are considered authoritative statements of state obligations.
Key principles include universality of rights, non-discrimination (Principle 1), and
legal recognition (Principle 3). Principle 3 asserts the right to legal recognition
based on self-identification, opposing requirements for medical procedures. YP+10
 Invisible to Invincible : Narratives of Gender Justice 63

Principle 31 calls for legal recognition without sex/gender markers on documents.

The right to bodily integrity, autonomy, and self- determination is central (Principle
17, YP+10 Principle 32), including freedom from coercive medical procedures.
Principle 19 upholds freedom of expression, including gender expression. 14
The YP address non-discrimination in employment, housing, education, etc.
(Principles 12-18). Principle 17 covers the right to health, including access to
transition-related healthcare based on informed consent. Other rights include
protection from violence, privacy, freedom of movement, and participation in
family/cultural life.
The YP provide a benchmark. Their emphasis on self-determination contrasts with
India's 2019 Act (Section 7). While NALSA embraced these standards, the
subsequent legislation diverges, indicating India's framework falls short of fully
aligning with these interpretations of international human rights law regarding
gender identity recognition.15
II. Gender Dysphoria: Definitions, Diagnosis, and Demographics
Understanding the medical and psychological frameworks surrounding gender
identity is crucial for contextualizing legal and social debates. The evolution of
diagnostic classifications, alongside data on prevalence and developmental
trajectories, informs clinical practice, policy decisions, and public perception.
However, these areas are themselves subject to significant debate and evolving
understanding.
A. Defining Gender Dysphoria: DSM-5 and ICD-11
Two major manuals classify gender identity conditions: the Diagnostic and
Statistical Manual of Mental Disorders (DSM) and the International Classification
of Diseases (ICD). Both have moved away from pathologizing identities towards
focusing on distress or incongruence needing healthcare.
DSM-5 (APA): Published in 2013, DSM-5 replaced "Gender Identity Disorder"
(GID) with "Gender Dysphoria" (GD)16 to reduce stigma. It focuses on "clinically
significant distress or impairment" from a marked incongruence between
experienced/expressed gender and assigned gender. The DSM-5-TR (2022)
maintains this.17 For adolescents and adults, a diagnosis requires this marked
incongruence to be present for at least six months, manifested by at least two
criteria from a list that includes: incongruence between experienced gender and sex
characteristics; a strong desire to be rid of one's primary/secondary sex
characteristics; a strong desire for the sex characteristics of the other gender; a
strong desire to be, or be treated as, the other gender; or a strong conviction of
64 Invisible to Invincible : Narratives of Gender Justice

having feelings/reactions typical of the other gender.28 Crucially, criterion B

requires this incongruence to cause clinically significant distress or impairment in
social, occupational, or other important areas of functioning.
ICD-11 (WHO): Effective January 202218, ICD-11 replaces ICD-10's GID
categories (in Mental Disorders chapter) with "Gender Incongruence" (GI) in a new
"Conditions related to Sexual Health" chapter. This signals GI is not a mental
illness, reducing stigma while enabling healthcare access. "Gender Incongruence of
Adolescence and Adulthood" (HA60) is a "marked and persistent incongruence
between experienced gender and assigned sex," often leading to a desire to
transition. It cannot be assigned pre-puberty; variant behaviour alone is insufficient.
"Gender Incongruence of Childhood" (HA61) applies pre-puberty, requiring
marked incongruence (persisting ~2 years) including desires, dislike of anatomy,
and cross-gender preferences. Variant behaviour alone is not diagnostic.
Crucially, ICD-11 GI does not require distress or impairment. The focus is on
incongruence itself potentially needing healthcare, closer to a medical condition
concept.
B. Historical and Current Prevalence Data
Historically, gender dysphoria or conditions leading individuals to seek gender
transition were considered exceedingly rare. Abigail Shrier, in "Irreversible
Damage," cites a figure of less than 0.01% of the population, primarily
affecting individuals assigned male at birth (AMAB).19 Older prevalence estimates
based on individuals seeking treatment in specific regions (like the Netherlands)
suggested rates around 6.8 per 100,000 for adult MTF (male-to- female) individuals
and 2.6 per 100,000 for adult FTM (female-to-male) individuals.20 The DSM-5
provides estimates for adults of 0.005–0.014% for AMAB and 0.002–0.003% for
AFAB (assigned female at birth).21
Similar trends exist elsewhere. England saw a 50-fold increase in recorded GD/GI
prevalence (children/young people) 2011-2021.22 The Cass Review noted sharp
rises in NHS GIDS referrals, especially adolescent girls (15 in 2009 to 1,071 in
2016), reversing historical patterns of predominantly AMAB referrals. While still
uncommon overall (<1 in 200 aged 17-18 in English data), the rapid increase
and demographic shift are central to debates.
Age of onset/realization varies. Some studies suggest first GD experience often
occurs in early childhood (3-7 years), but others find significant proportions realize
later (adolescence/adulthood), with one large US survey showing 40.8% realized
age 11+. This variability adds complexity. The dramatic rise, especially among
AFAB adolescents, fuels controversy and alternative explanations like social
factors.23
 Invisible to Invincible : Narratives of Gender Justice 65

The dramatic rise in prevalence, particularly among AFAB adolescents, is a key

phenomenon driving much of the current controversy. While increased societal
awareness and acceptance undoubtedly play a role by allowing individuals to
identify and seek help more openly, the sheer scale and speed of the increase,
along with the demographic shift, have led some, like Abigail Shrier, to propose
alternative explanations involving social factors.24 This discrepancy between
historical rarity and current reported prevalence fuels debates about the nature of
gender dysphoria in contemporary adolescents and the appropriateness of different
clinical responses.
C. Persistence vs. Desistance of Childhood Gender Dysphoria
Whether childhood GD persists or desists (resolves, with individual identifying
as cisgender, often gay/lesbian/bisexual) is highly contentious, impacting clinical
practice. Persistence means GD/trans identity continues. (Desistance differs from
detransition - reversing a prior transition).25
Older follow-up studies (mostly AMAB children, older DSM criteria) reported high
desistance rates, often cited around 80%. Individual studies (e.g., Toronto,
Amsterdam) showed persistence rates from 2-30% (AMAB) and 12- 50% (AFAB),
implying high desistance. Factors linked to persistence included GD intensity,
being AFAB, and cognitive cross-gender identification. Many desisters identified
as homosexual.26
However, these studies face methodological27 critiques: Critics argue that the
diagnostic criteria used (GIDC) were less stringent than current GD criteria and
may have included many children who were primarily gender non- conforming
rather than experiencing profound and persistent dysphoria.28 Applicability to the
current adolescent cohort (often presenting later, predominantly AFAB) is
questionable.29
Recent systematic reviews, including those conducted for the Cass Review,
emphasize the profound lack of high-quality, long-term follow-up data for the
current adolescent cohort presenting with gender dysphoria. While acknowledging
the historical desistance data, these reviews highlight the uncertainty surrounding
the developmental trajectories of today's youth. One recent analysis of US
insurance data tracking adolescents diagnosed with GD (F64 code) in 2017 found
that only 42.2% (narrow definition) to 44.5% (broader definition including related
codes) still had a GD-related diagnosis recorded seven years later in 2023,
suggesting a lower persistence rate than often assumed for adolescents, although
this methodology also has limitations.
66 Invisible to Invincible : Narratives of Gender Justice

This uncertainty is critical: arguments for early intervention often assume high
persistence, while caution emphasizes historical desistance rates and potential
harm.
III. Adolescent Gender Identity and Social Contexts
The reported surge in adolescents, particularly those assigned female at birth,
identifying as transgender or experiencing gender dysphoria has become a focal
point of intense public, political, and clinical debate.30 While increased societal
acceptance and awareness likely contribute, the scale and demographic shift
have prompted exploration of other potential factors, including social influences,
peer dynamics, online environments, and the role of educational institutions.
Abigail Shrier's controversial book, "Irreversible Damage," and the related
concept of "Rapid Onset Gender Dysphoria" (ROGD) have significantly shaped
this discourse, proposing social contagion as a primary driver, while facing
substantial criticism from scientific and advocacy communities.
A. The Reported Surge in Adolescent Identification
As detailed in Section II.B, numerous sources indicate a significant increase in the
number of adolescents seeking help for gender-related issues or identifying as
transgender over the past decade or so. This trend is observed across multiple
Western countries and is characterized by a notable shift in the demographic profile
of those presenting, with adolescent AFAB individuals now constituting a
majority or significant plurality in many clinics, a reversal of earlier patterns
where younger AMAB children predominated.31 This rapid change demands
explanation, moving beyond simple narratives of increased acceptance to consider
the complex interplay of biological, psychological, and social factors potentially at
play in this specific cohort.
B. Abigail Shrier's "Irreversible Damage" and the Social Contagion
Hypothesis
Abigail Shrier's 2020 book [Irreversible Damage] argues the surge among
adolescent girls results largely from social contagion, not innate GD. She suggests
it affects "high-anxiety, depressive (mostly white) girls", with transgender identity
becoming appealing within peer groups, amplified online. Social media "trans
influencers" allegedly encourage transition as a solution for general
unhappiness, offering acceptance. Shrier claims some online sources instruct on
faking symptoms or lying to parents.
Shrier critiques "gender-affirming" educators and therapists, arguing the model
bypasses necessary psychological exploration, preventing identification of
 Invisible to Invincible : Narratives of Gender Justice 67

underlying issues (anxiety, depression, trauma). She claims this facilitates rapid
progression to medical interventions (blockers, hormones, surgery) causing
"irreversible damage" like infertility, highlighting detransitioners as evidence. She
also criticizes schools for promoting "trans ideology" and facilitating social
transition without parental consent, undermining parental authority.32
C. Rapid Onset Gender Dysphoria (ROGD): The Littman Study and its
Aftermath
Shrier's arguments align with "Rapid Onset Gender Dysphoria" (ROGD), following
a 2018 study by Dr. Lisa Littman. Based on an online survey of 256 parents
recruited from websites skeptical of affirming care, the study described parental
reports of adolescents (mostly AFAB) seemingly developing GD suddenly post-
puberty, often within peer groups where others also identified as trans. Parents
reported high rates of pre-existing mental health/neurodevelopmental issues and
increased social media use. Littman hypothesized ROGD might be a distinct
phenomenon, possibly a "social coping mechanism".33
The study ignited controversy. Critics attacked the methodology (biased parental
reports from specific sites, not adolescent data). PLOS ONE conducted a review,
resulting in a corrected version emphasizing limitations. Major professional bodies
(WPATH, APA) criticized the ROGD concept and methodology, stating ROGD is
not a recognized diagnosis and warning against its use to restrict care. Despite this,
ROGD gained traction among critics of affirming care.34
D. Critiques and Counterarguments to Social Contagion/ROGD
Social contagion/ROGD hypotheses face critiques beyond Littman's study flaws.
Mainstream bodies do not recognize ROGD. Critics argue "rapid onset" may be
rapid disclosure after hidden questioning, or parental awareness shift. Attributing
trans identity to contagion pathologizes normal adolescent social processes and
risks dismissing genuine experiences to deny care. It may ignore potential
biological underpinnings.
Shrier's specific claims in "Irreversible Damage" have also been directly
challenged. Psychiatrist Jack Turban and others have accused her of misinterpreting
scientific data, such as desistance statistics, cherry-picking evidence, and promoting
a fringe position rejected by major professional societies. Her dismissal of
biological factors based on chromosomes ("every cell... stamped with XX") has
been criticized as ignoring the complexities of sexual differentiation and hormonal
influences on brain development.35 Her emphasis on the dangers of the internet and
social media has been likened to a moral panic, particularly given that some
68 Invisible to Invincible : Narratives of Gender Justice

research she cites (e.g., by Jean Twenge) has itself faced scrutiny. The book's
reliance on anecdotes and parental accounts, rather than direct engagement with
transgender youth, has also drawn criticism.
E. The Role of Schools: Curriculum, Pronouns, and Parental Rights (US
Focus)
The debate extends prominently into US schools. Conflicts involve curriculum
("radical gender ideology" concerns, LGBTQ+ themes, age-appropriateness) and
policies on student expression (names/pronouns, facility access). 36 Central is
parental notification/consent. Many districts allow/require using preferred
names/pronouns without informing parents, sparking parental rights arguments and
legal challenges. Groups like Parents Defending Education track these policies.
Trump administration guidance asserted withholding information violates
FERPA.37
Conversely, proponents argue affirming policies are vital for student mental health
and safety, as forced disclosure could risk harm from unsupportive families. They
argue schools must create inclusive environments. FERPA interpretations are
contested. This conflict pits parental authority against student safety/autonomy.
Shrier amplifies concerns about schools undermining parents. Debates over Social
Emotional Learning (SEL) intersect38, with critics seeing pathologization,
proponents seeing vital skills. The ROGD narrative resonates with parental
anxieties, fuelling policy debates, especially in the US educational context.
IV. Medical Pathways: Interventions, Guidelines, and Ethical Considerations
Medical management of GD involves interventions aligning physical characteristics
with gender identity. These pathways, especially for adolescents, are guided by
clinical protocols but subject to ethical debate, evolving evidence, and scrutiny
regarding risks, benefits, and potential financial motives.
A. Overview of Medical Interventions
Interventions often follow a staged approach:
1. Social Transition: While not strictly medical, social transition is often the
first step and involves changes in gender expression in social contexts. This
includes adopting a new name and pronouns, changing hairstyles, clothing
choices, and potentially altering mannerisms or posture to align with one's
gender identity.39
2. Puberty Suppression: Using GnRH analogues ("puberty blockers") to pause
pubertal development in adolescents, alleviating distress from unwanted
 Invisible to Invincible : Narratives of Gender Justice 69

secondary sex characteristics and allowing time for identity exploration.

Effects are considered largely reversible.40
3. Gender-Affirming Hormone Therapy (GAHT): Also referred to as cross-
sex hormones (CSH), this involves administering hormones to induce
physical changes congruent with the individual's gender identity. For
transmasculine individuals, this typically involves testosterone, which
promotes voice deepening, facial and body hair growth, muscle mass
increase, fat redistribution, and cessation of menses.41
4. Surgeries: Various irreversible procedures ("top surgery" - chest
modification; "bottom surgery" - genital modification; facial surgeries,
hysterectomy, etc.) to further align appearance.¹⁶²
B. Clinical Guidelines: WPATH Standards of Care (SOC)
WPATH publishes the internationally recognized, evidence-based SOC clinical
guidelines. SOC aim to guide professionals in providing safe, effective,
individualized care, promoting well-being. SOC-8 (Sept 2022) continues this,
emphasizing a comprehensive, evidence-based approach covering broad health
needs. It asserts GAC is medically necessary and a human right, advocating
individualized care.42
For adolescents (Chapter 6), SOC-8 moved from rigid minimum ages to a
developmental approach based on multidisciplinary assessment. Eligibility criteria
were modified to reduce barriers (e.g., fewer referral letters, removed "real-life
experience" requirement). General principles suggest eligibility for blockers post-
puberty onset (with GD diagnosis, capacity to assent/consent, managed co-
occurring issues)43. GAHT eligibility typically follows blockers, potentially earlier
than previous guidelines (e.g., age 14 vs 16) based on assessment. Surgical criteria
remain stricter, though SOC-8 may have lowered thresholds for some procedures
(e.g., mastectomy age 15 cited by critics). Thorough assessment, psychoeducation,
risk/benefit discussion (including fertility), and support are stressed.44
C. The Cass Review (UK): Findings and Recommendations
The UK's Cass Review (April 2024) recommended greater caution, contrasting
with WPATH SOC-8. Commissioned due to rising referrals and concerns, it found
a "remarkably weak evidence base" for medical treatments (blockers, hormones)
for gender dysphoric adolescents. Systematic reviews found low-quality research
lacking controls or long-term follow-up.45
The review found no convincing evidence blockers improve psychological well-
70 Invisible to Invincible : Narratives of Gender Justice

being or "buy time," noting nearly all proceed to hormones. Concerns were
raised about unknown long-term effects (cognitive, psychosexual maturation, bone
density). It highlighted complex presentations with co- occurring mental
health/neurodevelopmental conditions, warning against "diagnostic overshado-
wing." Caution regarding early social transition was advised due to lack of
evidence and potential risks.46
Key recommendations include:
• Shift from medical affirmation to a holistic approach, integrating
mental health support via regional centres.
• Prioritize psychosocial interventions.
• Discontinue routine puberty blocker prescription; access only via
clinical research trials.
• Exercise "extreme caution" with hormones under 18, requiring clear
rationale and national multidisciplinary team discussion.
• Develop robust data collection and long-term research.
• Establish support services for detransitioners.
The Cass Review's divergence from WPATH SOC-8 underscores profound
uncertainty and disagreement, stemming from the weak evidence base.47
D. Ethical Debates, Particularly Regarding Minors
Medical treatment of minors involves complex ethics: balancing adolescent
autonomy vs. long-term well-being amidst uncertainty and irreversible
interventions. Key issues include adolescent capacity for informed consent
regarding long-term consequences (infertility, health risks, regret), especially given
debated persistence rates48.
This intersects with the affirmation vs. exploratory care debate. Affirmation
prioritizes validating identity and facilitating interventions, arguing delays cause
harm. Caution emphasizes thorough assessment for co-occurring conditions before
medical steps49, fearing "diagnostic overshadowing"50 and inappropriate
medicalization. Concerns exist that fear of "conversion therapy" accusations deters
comprehensive evaluations51. The "do no harm" principle is invoked by both sides.
Parental roles add complexity.
E. The Role of the Medical Industry and Profit Motives
Concerns exist about financial incentives influencing GAC provision, suggesting a
"gender-industrial complex"52 where pharmaceutical companies, surgeons, and
 Invisible to Invincible : Narratives of Gender Justice 71

clinics benefit. The global sex-reassignment surgery market was valued over $4
billion (2022), projected to grow.53 US hormone therapy market estimated at
$1.6 billion (2022), also growing. Lifetime transition costs can be substantial.
Major pharmaceutical companies produce hormones. The intersex interventions
market is also growing.54
This raises potential conflict of interest questions. Could profit influence
recommendations or research? While direct evidence of widespread unethical
practices isn't provided, the financial dimension warrants scrutiny.
Counterarguments suggest market growth reflects increased acceptance, access,
and recognition of need. Access is a human right, regardless of financial
transactions. Insurance coverage significantly impacts access and market growth.
V. Feminist Engagements with Transgender Issues
Feminist perspectives on transgender identity and rights are diverse and often
deeply contested, reflecting fundamental disagreements about the nature of sex,
gender, oppression, and the goals of the feminist movement itself. While
contemporary mainstream feminism, particularly third- and fourth-wave iterations
influenced by intersectionality and queer theory, tends to be inclusive of
transgender rights, a distinct and vocal strand known as gender- critical feminism
offers a profound challenge to transgender identities and their place within
feminism.55
A. Overview of Feminist Spectrum
Feminist engagement with trans issues has evolved significantly. Early radical
feminist critiques, exemplified by Janice Raymond's 1979 work "The Transsexual
Empire," viewed transsexualism with deep suspicion, often framing it as a
patriarchal tool reinforcing harmful gender stereotypes or even as a violation of
the female body. However, the rise of third-wave feminism, queer theory, and
intersectionality brought new perspectives. Thinkers like Judith Butler challenged
fixed notions of gender and sex, arguing that gender is performative and that the
sex/gender distinction itself might be culturally constructed. This theoretical shift
paved the way for greater inclusion and the emergence of transfeminism, which
explicitly links feminist and transgender liberation struggles. Simultaneously,
however, a counter-movement, now often termed gender-critical feminism,
reasserted the primacy of biological sex and revived earlier critiques of
transgenderism.
B. Transfeminism and Inclusive Perspectives
Transfeminism represents a convergence of feminist and transgender activism and
72 Invisible to Invincible : Narratives of Gender Justice

theory. It posits that the liberation of transgender people is intrinsically linked to

the liberation of women, as both groups are oppressed by rigid patriarchal gender
norms, stereotypes, and expectations. Trans feminists argue for the importance of
bodily autonomy and self-determination for all individuals, challenging biological
essentialism – the idea that biology rigidly determines gender identity and social
roles.56
Drawing heavily on intersectionality, transfeminism analyses how experiences of
gender are shaped by race, class, disability, colonialism, and other axes of
oppression. Some theorists argue that the very concept of a strict gender binary
is a colonial imposition used for subjugation, and that challenging this binary is a
decolonial act. Trans feminist perspectives often advocate for solidarity between
cisgender and transgender women, seeing shared interests in dismantling
patriarchal structures. Some advocate for radical changes like the abolition of
legal gender markers altogether, arguing they naturalize harmful social
categorizations. The core principle is that feminism should be inclusive of all who
identify and live as women, as well as supportive of all individuals challenging
restrictive gender norms.
C. Gender-Critical Feminism (GCF) / Trans-Exclusionary Radical Feminism
(TERF)
Gender-critical feminism (GCF) – often labelled Trans-Exclusionary Radical
Feminism (TERF) by opponents, a term GCF adherents reject as derogatory –
fundamentally challenges the premises of transgender identity and inclusion within
feminism. GCF asserts that sex is biological, immutable, and binary (male/female),
and that this biological reality is the material basis of women's oppression under
patriarchy. 'Gender', in this view, is not an internal identity but the system of
oppressive social roles, stereotypes, and hierarchies imposed upon biological sex.
Consequently, GCF defines 'woman' strictly as 'adult human female' based on
biology.57 Trans women are therefore viewed as biologically male individuals
adopting a 'gender identity', not as women, while trans men are viewed as
biologically female.
From this foundation, GCF raises several arguments about the perceived harms
of transgender rights and ideology to women and feminism:
• Erosion of Sex-Based Rights: GCF argues that replacing biological sex
with gender identity as the basis for legal rights and protections undermines
decades of feminist struggle for rights based specifically on female sex.58
They advocate for retaining "sex-based rights" distinct from rights based on
gender identity.
 Invisible to Invincible : Narratives of Gender Justice 73

• Women-Only Spaces: A central concern is the inclusion of trans women in

spaces designated for females, such as bathrooms, changing rooms, prisons,
domestic violence shelters, and sports categories. GCF argues this
compromises female safety (due to perceived risks from biological males),
privacy, and fairness (in sports, due to male physiological advantages).
Kathleen Stock, for example, argues for the importance of biological sex in
determining access to such spaces. 59
• Data Integrity and Social Analysis: Allowing self-identified gender to
override biological sex in data collection (e.g., crime statistics, health
research, employment data) is seen as obscuring the reality of sex-based
disparities and hindering the analysis of male violence and female-specific
health needs.
• Reinforcement of Gender Stereotypes: GCF contends that the concept of
'gender identity' relies on and reinforces the very gender stereotypes feminism
seeks to abolish. They argue that identifying as a woman based on feeling or
affinity for feminine traits essentializes gender, rather than challenging it as
a social construct. Sheila Jeffreys argues that transgenderism is based on
conservative sex stereotypes and that true liberation involves abolishing
gender roles entirely.60
• Impact on Lesbians: Some GCF writers express concern that the inclusion
of trans women within the category 'woman' leads to pressure on lesbians to
consider trans women as potential sexual partners (termed the "cotton
ceiling"), thereby erasing lesbian identity as female same-sex attraction.61
• Critique of Medical Transition: Medical interventions associated with
transition are often viewed critically, sometimes described as "mutilation" or
self-harm, particularly concerning for children and adolescents who may be
influenced by social trends or underlying issues. Jeffreys views it as harmful
medicalization.62
Prominent figures associated with these arguments include philosopher Kathleen
Stock, whose book Material Girls argues for the material reality of sex and its
importance for feminism, and radical feminist academic Sheila Jeffreys, who offers
a more strident critique of transgenderism as inherently patriarchal and harmful.
D. Critiques of Gender-Critical Feminism
Gender-critical feminism faces strong opposition from many quarters, including
other feminists, LGBTQ+ organizations, and human rights bodies, who widely
74 Invisible to Invincible : Narratives of Gender Justice

describe its tenets and rhetoric as transphobic. The term TERF itself, while rejected
by GCF adherents, signifies this perception of exclusion and hostility.
Critics challenge GCF's reliance on biological essentialism, arguing it ignores the
complexities of sex and gender and contradicts feminist critiques of biological
determinism. Philosophers like Judith Butler argue that attempts to dispute trans
people's self-identified gender are inherently problematic and that feminist
solidarity should extend to trans individuals. Denying someone's gender identity is
framed not just as disagreement but as a form of harm.
Arguments regarding safety in women-only spaces are often countered by pointing
to the lack of evidence supporting the claim that trans women pose an inherent
threat, arguing that such claims rely on transphobic stereotypes. Critics suggest
that safety policies should focus on behaviour, not identity, and that excluding trans
women causes significant harm and discrimination.63
Furthermore, GCF is criticized from an intersectional perspective for often centring
the experiences and concerns of white, cisgender women, potentially overlooking
or marginalizing the experiences of trans women of colour and failing to engage
with critiques of how gender itself is constructed through race and colonialism.
The focus on boundary policing (who counts as a woman) is sometimes
compared to other historical exclusions within feminism. The language used by
some GCF proponents is often condemned as dehumanizing and contributing to a
climate of hostility and violence against transgender people.
This deep fracture within feminism reflects fundamentally different understandings
of the relationship between sex and gender, the nature of oppression, and the
strategic priorities for achieving liberation. GCF views the conflict as one
defending essential, sex-based female reality against an encroaching ideology that
threatens women's rights and safety. Trans-inclusive feminism views it as a
struggle for solidarity against patriarchal norms that harm both cis and trans
people, seeing GCF arguments as rooted in exclusion and prejudice. This
ontological and political divide makes reconciliation difficult and fuels ongoing,
often acrimonious, debate.
VI. A Comparative Perspective: India and the United States/West
Comparing the socio-legal landscapes, healthcare systems, public discourse, and
educational approaches related to transgender issues in India and Western nations
(primarily focusing on the US and UK based on available data) reveals both shared
challenges and significant divergences shaped by distinct historical, cultural,
legal, and political contexts.
 Invisible to Invincible : Narratives of Gender Justice 75

A. Legal and Policy Frameworks

India's legal framework is uniquely characterized by the Supreme Court's NALSA
judgment, which established a constitutional right to self-determined gender
identity (male, female, or third gender) based on Articles 14, 15, 16, 19, and
21, independent of medical intervention. It also recognized a distinct 'third gender'
category and mandated affirmative action (reservations). However, this
progressive judicial foundation is significantly undermined by the Transgender
Persons (Protection of Rights) Act, 2019, which, while prohibiting discrimination,
reintroduces medical requirements (proof of surgery/medical intervention) for legal
recognition as male or female, contradicting NALSA's core principle of self-
determination. Implementation of the Act's protective and welfare provisions,
including reservations, remains weak. This creates a primary legal tension within
India's own system – a conflict between judicial precedent and legislative
action/inaction.
In contrast, Western legal frameworks, such as those in the US and UK, typically
lack a constitutionally enshrined 'third gender' category in the same manner. Legal
recognition and rights are often pursued through interpretations of existing anti-
discrimination laws (like Title VII's prohibition on sex discrimination being
interpreted to include gender identity in the US Bostock case ), specific gender
recognition legislation (like the UK's Gender Recognition Act 2004, though this is
also contested and under review), or state/regional laws64. The US landscape is
highly fragmented, with some states enacting strong protections while others pass
laws restricting rights and access to care, particularly for minors.65 The UK,
following the Cass Review, is moving towards a more cautious legal and policy
environment regarding adolescent healthcare. While international standards like the
Yogyakarta Principles influence discourse, their direct application and the
emphasis on self-determination without medical gatekeeping vary significantly.
The primary conflict in these Western contexts often appears more overtly political
and polarized, fought through legislative battles and shifting administrative
policies influenced by prevailing political ideologies, rather than the internal
judicial-legislative contradiction seen in India.
B. Healthcare Access and Models
Access to healthcare, particularly gender-affirming care (GAC), presents significant
challenges in both India and the West, albeit with differing primary obstacles. In
India, barriers appear more systemic and foundational. Transgender individuals
face pervasive stigma and discrimination not just from clinicians but from all
levels of hospital staff and even bystanders. There is a reported lack of basic
76 Invisible to Invincible : Narratives of Gender Justice

knowledge and sensitivity among healthcare providers, compounded by cis-

normative infrastructure (registration forms requiring binary gender, lack of
gender-neutral facilities) that excludes or alienates transgender patients. Cost is a
major barrier, and the availability and quality of specialized GAC (hormones,
surgeries) are limited, leading many to rely on community networks, informal
providers ("quacks"), or self- medication. While the 2019 Act mandates healthcare
provisions, implementation is lagging.
In the US and UK, while stigma and provider competency remain issues,
access is often framed by debates over the model of care, insurance coverage, and
legal restrictions. More established clinical pathways, often guided by WPATH
SOC, exist but are increasingly contested, especially for minors. The Cass
Review's critique of the evidence base for the "affirmative model" has led the
UK's NHS to adopt a more cautious, psychologically focused approach with
restricted access to medical interventions for youth. In the US, access varies
dramatically by state due to legislation banning or protecting GAC for minors,
alongside battles over insurance coverage. While systemic issues exist, the
Western debate is often more focused on the legitimacy and specifics of GAC
protocols and who should have access (particularly minors), rather than the
more fundamental barriers of pervasive discrimination and lack of basic
infrastructure highlighted in the Indian context.
C. Social Attitudes and Public Discourse
Public discourse and social attitudes also show distinct patterns. India presents a
paradox: a long cultural history recognizing gender diversity (e.g., hijras,
mythological figures) coexists with severe contemporary stigma, discrimination,
and violence, partly stemming from colonial-era criminalization and
societal prejudice. While NALSA mandated public awareness campaigns, deep-
rooted biases persist, and survey data suggests potentially more negative attitudes
compared to the US in some studies.66 The discourse is shaped by the unique legal
battles (NALSA vs. 2019 Act), the role of traditional communities, and the ongoing
struggle against marginalization.
The discourse in the US and UK is characterized by extreme polarization,
often embedded within broader "culture wars". Increased media visibility of
transgender people has been met with significant political and social backlash.
Debates are frequently centred on specific flashpoints like participation in sports,
bathroom access, terminology (pronouns), and the influence of "gender ideology,"
often amplified by political figures and organised advocacy groups on both sides.
Attitudes strongly correlate with political affiliation, religious beliefs, and age.
 Invisible to Invincible : Narratives of Gender Justice 77

While stigma exists in both contexts, the Western discourse appears more intensely
politicized and focused on specific cultural battlegrounds, whereas the Indian
context involves navigating a complex legacy of cultural recognition alongside
deep-seated social exclusion and legal inconsistencies.
D. Educational Approaches
The focus of debates surrounding transgender issues in education differs markedly.
In the US, the conflict is intense and highly politicized, centring on curriculum
content (accusations of "gender ideology" indoctrination), the appropriateness of
discussing gender identity in schools (especially elementary), access to books with
LGBTQ+ themes, and, crucially, parental rights versus student privacy regarding
name/pronoun changes and facility access. This involves significant legislative
action, lawsuits, and debates over policies like SEL.
The available information suggests a different focus in India. While the 2019 Act
mentions inclusive education and non-discrimination, and medical curriculum
reform is nascent, the primary educational challenges likely revolve around
basic access, preventing discrimination and bullying, and ensuring transgender
students are not excluded. The specific US-centric debates around "gender
ideology" in the curriculum or parental notification policies regarding pronouns
do not appear as prominent in the Indian context based on the provided sources.
The struggle seems more focused on ensuring fundamental rights to education
and safety within the educational environment, rather than the content battles
dominating US discourse.
E. Comparative Summary
The following table summarizes key comparative points:
Feature India US / West (Primarily US/UK
Focus)
Legal Recognition NALSA affirms self-ID (Arts Varies. US: Bostock (Title VII). State
14, 19, 21); 2019 laws polarized (protections vs bans).
Act requires surgery proof for UK: GRA (contested). No formal
M/F ID. 'Third Gender' 'Third Gender'. Focus on non-
category. Reservations discrimination.
mandated (weak
implementation).
Healthcare Access Severe barriers: Pervasive Varies. Established pathways (WPATH)
(GAC) stigma (all staff), provider face restrictions/bans (esp. minors,
ignorance, cost, cis- normative US). UK NHS shifting to caution post-
systems. Cass. Insurance/cost barriers. Focus on
Limited GAC availability/ care models.
quality.
78 Invisible to Invincible : Narratives of Gender Justice

Weak implementation of Act's

provisions.
Social Attitudes Paradox: Historical/cultural Highly polarized "culture wars."
acceptance vs. severe Visibility vs backlash. Debates on
modern stigma/violence. sports, bathrooms, pronouns driven by
Colonial legacy impact. politics/media. Strong ideological
Discourse shaped by divides.
legal battles & cultural
context.
Educational Focus on basic access, Intense debates: Curriculum

Context non-discrimination, safety. ("gender ideology"), parental rights vs

Medical student privacy
curriculum reform nascent. (names/pronouns/facilities).
Less evidence of US-style Major political/legal battleground (esp.
curriculum/parental rights US).
debates.
Key Implementing NALSA vs. Political polarization impacting
Trends/Challenges 2019 Act reality. Overcoming rights/healthcare. Balancing parental
systemic healthcare barriers. rights/student safety in schools.
Addressing stigma Navigating contested evidence for
despite cultural history. adolescent care.

This comparison highlights that while transgender rights and healthcare are global
issues, the specific manifestations of conflict, the legal mechanisms employed, the
primary barriers faced, and the nature of public discourse are deeply embedded in
national and regional contexts. India grapples with reconciling its constitutional
ideals and unique cultural history with legislative shortcomings and pervasive
social barriers. The West, particularly the US and UK, contends with intense
political polarization shaping legal and healthcare landscapes, especially
concerning the rights and treatment of transgender youth, fuelled by conflicting
scientific interpretations and social anxieties.
VII. Synthesis and Conclusion
This analysis has traversed the complex and often contentious terrain surrounding
transgender rights, identity, and healthcare, examining legal frameworks, medical
definitions, demographic trends, social influences, ethical considerations,
feminist perspectives, and comparative national contexts, with a particular focus
on India alongside Western nations like the US and UK. Several key themes and
tensions emerge from this multifaceted exploration.
A central conflict lies in the tension between the fundamental human right to self-
determination of gender identity, as powerfully articulated by the Indian Supreme
Court in NALSA and echoed in international principles like Yogyakarta, and the
 Invisible to Invincible : Narratives of Gender Justice 79

persistent tendency towards regulatory or medical gatekeeping. India's own

legal landscape exemplifies this, with the 2019 Transgender Persons Act imposing
medical prerequisites for binary gender recognition, directly contradicting the
NALSA judgment's emphasis on psychological self-identification. This internal
inconsistency highlights how legal frameworks, even when ostensibly protective,
can create barriers and undermine autonomy, reflecting societal ambivalence or
administrative resistance. Similarly, debates in the West over diagnostic criteria
(DSM's distress requirement vs. ICD's focus on incongruence) and restrictions on
minors' access to care reflect ongoing struggles over who defines gender identity
and under what conditions it is legally and medically validated.
The role of scientific evidence, particularly concerning adolescent gender
dysphoria, is profoundly contested and shapes much of the current debate. The
dramatic reported increase in adolescent presentations, especially among AFAB
individuals, has fuelled competing narratives. One emphasizes increased
visibility and acceptance allowing innate identities to emerge, while the other,
exemplified by Abigail Shrier's "social contagion" hypothesis and the related
ROGD concept, posits external social factors as primary drivers. While the ROGD
hypothesis lacks robust empirical support and faces strong methodological criticism
from mainstream medical bodies, its persistence underscores societal anxieties and
provides a framework for those questioning the affirmative care model. The
historical data on persistence and desistance of childhood gender dysphoria is
similarly debated, with older studies suggesting high desistance rates being
challenged on methodological grounds and questioned for applicability to the
current adolescent cohort. This profound uncertainty, starkly highlighted by the
UK's Cass Review finding a "remarkably weak evidence base" for current
medical interventions for youth, creates significant ethical dilemmas. Balancing the
potential benefits of early intervention against the risks of medicalizing potentially
transient feelings or causing irreversible harm in the absence of strong long-term
data remains a critical challenge for clinicians and policymakers. The divergence
between WPATH SOC-8's continued support for individualised adolescent access
to medical pathways and the Cass Review's call for extreme caution epitomises
this evidence-based impasse.
Feminist discourse remains deeply fractured. Trans-inclusive perspectives
emphasize solidarity, shared struggles against patriarchy, and the importance of
self-determination.107 Conversely, gender-critical feminists prioritise
biological sex as the basis of female oppression, arguing that prioritising
gender identity erodes women's sex-based rights, compromises safety in single-
sex spaces, and reinforces harmful gender stereotypes. This reflects a fundamental
80 Invisible to Invincible : Narratives of Gender Justice

disagreement about the definition of 'woman' and the primary locus of feminist
analysis, making reconciliation challenging.
The comparative analysis between India and the West reveals distinct contextual
factors shaping these global issues. India's unique legal trajectory (NALSA vs. 2019
Act), cultural history of gender diversity alongside pervasive modern stigma, and
severe systemic healthcare access barriers present a different set of challenges
compared to the highly politicized "culture war" environment in the US and UK,
where debates often focus on parental rights in schools, sports participation, and
the contested evidence base for adolescent medical care.
In conclusion, navigating the complexities of transgender rights and identity
requires a nuanced approach grounded in human rights principles, cognizant of
scientific uncertainties, and sensitive to diverse cultural contexts. Legal frameworks
must strive to uphold the right to self-determination and non- discrimination, as
affirmed in NALSA and international standards, while ensuring practical access to
rights and services. Healthcare systems need reform to address both systemic
barriers, particularly acute in contexts like India 2, and the ethical dilemmas
surrounding adolescent care, demanding robust, independent research and
transparent discussion of evidence limitations. Simplistic narratives, whether
promoting unchallenged affirmation or invoking unsubstantiated fears of social
contagion, fail to capture the complexity of individual experiences and the genuine
challenges involved. Moving forward requires prioritizing the dignity, equality, and
autonomy of transgender individuals, fostering evidence-informed policy, and
promoting respectful dialogue that acknowledges both shared human rights and the
specific vulnerabilities faced by this diverse population globally. Further research,
especially long-term outcome studies and investigations grounded in non-Western
contexts like India, is crucial to inform more effective and ethical legal and
healthcare responses.
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36 Abigail Shrier Bad Therapy book: Unfortunately, liberal parenting can be highly mockable.,
https://slate.com/human-interest/2024/02/abigail-shrier-bad-therapy-book-unfortunately- liberal-parenting-
can-be-highly-mockable.html
37 RETRACTED ARTICLE: Rapid Onset Gender Dysphoria: Parent Reports on 1655 Possible Cases - PMC,
https://pmc.ncbi.nlm.nih.gov/articles/PMC10102036/
38 Implications of the Cass Review for health policy governing gender medicine for Australian minors - PMC,
https://pmc.ncbi.nlm.nih.gov/articles/PMC11804132/
39 Gender affirming medical care of transgender youth - PMC - PubMed Central, https://pmc.ncbi.nlm.
nih.gov/articles/PMC8496167/
40 Standards of Care for the Health of Transgender and Gender Diverse People - Wikipedia,
https://en.wikipedia.org/wiki/Standards_of_Care_for_the_Health_of_Transgender_and_Gende r_Diverse_
People
41 Gender affirming medical care of transgender youth - PMC - PubMed Central, https://pmc.ncbi.nlm.
nih.gov/articles/PMC8496167/
42 Primary Care - WPATH, https://wpath.org/wp- content/uploads/2024/11/Combined_Handouts.pdf
43 Cass Review - Wikipedia, https://en.wikipedia.org/wiki/Cass_Review
44 A PRISMA systematic review of adolescent gender dysphoria literature: 3) treatment - PMC,
https://pmc.ncbi. nlm.nih.gov /articles/PMC10409298/
45 UK: Implementation of 'Cass report' key to protecting girls from serious harm, says UN expert,
https://www.ohchr.org/en/statements-and-speeches/2024/04/uk-implementation-cass- report-key-
protecting-girls-serious-harm
46 January 16, 2022 The Society for Evidence-Based Gender Medicine (SEGM) welcomes WPATH SOC8's
acknowledgement of the profound s, https://segm.org/sites/default/files/ WPATH%20SOC8%20
Comments_Final_3.pdf
47 Book Review - Irreversible Damage: The Transgender Craze Seducing Our Daughters - On Knowing
Humanity Journal, https://www.okhjournal.org/index.php/okhj/article/download/182/185/736
48 Summary of Cass Review - Clinical Advisory Network on Sex and Gender, https://can- sg.org/2024/
04/28/summary-of-cass-review/
49 UK: Implementation of 'Cass report' key to protecting girls from serious harm, says UN expert,
https://www.ohchr.org/en/statements-and-speeches/2024/04/uk-implementation-cass-report-key-
protecting-girls-serious-harm
50 The 'Gender-Industrial Complex' Makes Billions Annually - National Review, https://www.
nationalreview.com/corner/the-gender-industrial-complex-makes-billions- annually/
51 Gender Reassignment Surgery Market , 50% of Growth to Originate from North America, Technavio - PR
Newswire, https://www.prnewswire.com/news-releases/gender-reassignment- surgery-market--50-of-
growth-to-originate-from-north-america-technavio-302332069.html
52 Intersex Medical Interventions Market Size, Forecasts To 2033 - Spherical Insights, https://www.spherical
insights.com/reports/intersex-medical-interventions-market
 Invisible to Invincible : Narratives of Gender Justice 83

53 Feminist views on transgender topics - Wikipedia, https://en.wikipedia.org/wiki/ Feminist_

views_on_transgender_topics
54 Trans feminist Perspectives in and beyond Transgender and Gender Studies - Trans Reads,
https://transreads.org/wp-content/uploads/2019/03/2019-03-14_5c8a9fcc27924_anne-enke- transfeminist-
perspectives-in-and-beyond-transgender-studies-11.pdf
55 Gender-critical feminism - Wikipedia, https://en.wikipedia.org/wiki/Gender- critical_feminism
56 Material Girls: Why Reality Matters for Feminism ... - Amazon.com, https://www.amazon.com/Material-
Girls-Reality-Matters-Feminism/dp/0349726620
57 Material Girls: Why Reality Matters for Feminism – a review - The Philosophers' Magazine,
https://philosophersmag.com/material-girls-why-reality-matters-for-feminism-a-review/
58 Gender Hurts Quotes by Sheila Jeffreys - Goodreads, https://www.goodreads.com/work/quotes/19344895-
gender-hurts-a-feminist-analysis-of-the- politics-of-transgenderism
59 Transgender Activism - Sheila Jeffreys, https://sheila-jeffreys.com/wp- content/uploads/2020/07/
Transgender-Activism.pdf
60 Books | Sheila Jeffreys - Feminist Writer, Historian and Activist, https://sheila- jeffreys.com/books/
61 Full article: A tale of two feminisms: gender critical feminism, trans inclusive feminism and the case of
Kathleen Stock - Taylor & Francis Online, https://www.tandfonline.com/doi/full/ 10.1080/0961
2025.2022.2147915
62 A Global Analysis of Transgender Rights: Introducing the Trans Rights Indicator Project (TRIP) |
Perspectives on Politics - Cambridge University Press, https://www.cambridge.org/core/journals/
perspectives-on-politics/article/global-analysis-of- transgender-rights-introducing-the-trans-rights-
indicator-project- trip/3C143E501E0824C8F9F0C40925965F43
63 Gender-affirming care by country | Equaldex, https://www.equaldex.com/issue/gender- affirming-care
64 Attitudes Toward and Beliefs about Transgender Youth: A Cross-Cultural Comparison Between the
United States and India - ResearchGate, https://www.researchgate.net/publication/316632209_
Attitudes_Toward_and_Beliefs_about_Transgender_Youth_A_Cross-Cultural_ Comparison_Between_
the_United_States_and_India


84 Invisible to Invincible : Narratives of Gender Justice

Marriage - A License to Unconsented Sexual Intercourse?

Questioning Its Constitutionality
Lovish Khurana
Isha Jain
ABSTRACT
A marriage vow does not mean a sentence of silence. Sacrament or a contract,
marriages in India are run by implied consent when it comes to sexual intercourse. Since
ancient times, a woman’s responsibility was bound to her husband’s pleasure, and refusing
his sexual advances was considered disobedience rather than a violation of her
fundamental rights. In this paper, we are challenging the constitutionality of Marital Rape,
as exempted under exception 2 of Section 63 of the Bhartiya Nyaya Sanhita, 2023. Marital
rape is one of the most controversial yet neglected issues in India. This exemption is an
enormous threat to the fundamental rights provided to us by the constitution of India. This
paper shall include arguments discussing how this exception violates Fundamental Rights
laid down in our Constitution. To support our arguments, emphasis has been placed on the
reports and surveys conducted at national levels, to further determine, as to why is it
necessary to remove/obliterate this exception from the Sanhita. Additionally, effort has
been made to analyze if it is in violation to international obligations under CEDAW as well
as non-compliant with the general recommendations of the CEDAW committee. Reliance is
also placed on various judicial precedents and judges’ opinions along with the
justifications adopted by various jurisdictions across the world, which have overruled this
exception.
India adopted this exception from UK which has itself overruled and struck it down in
1991 in the case of R v. R. India has recognized Marital Rape as an offence/ground in
statutes such as Medical Termination of Pregnancy Act, 1971 and the Domestic Violence
Act, 2005. Judicial interpretations, such as the landmark case of RIT Thought v. Union of
India, have established a benchmark to challenge this outdated provision. Furthermore,
Justice M. Nagaprasanna in Hrishikesh Sahoo v. State of Karnataka criticised this
exemption and left it up to the legislature to decide on this topic. Also, in another
landmark judgement of Joseph Shine v. Union of India, the hon’ble court held that a law,
which was once perceived to be right in the past, could have become outdated with the
advancement of the society.
This article illustrates how our country lags behind in recognizing a woman’s right to
bodily autonomy and integrity within marriage through a deep legal analysis.
KEYWORDS: Marital rape, Constitutional, Intelligible differentia, Criminalising,
Discrimination, Gender based violence
 Invisible to Invincible : Narratives of Gender Justice 85

INTRODUCTION
“Non-consensual sex in marriage is an antithesis of what matrimony stands for in
modern times i.e. the relationship of equals.”1
Marriage in India is considered a sacred union which is believed to be a sacrament
under various religions such as Hinduism or a contract by other religions such as
Islam. However, when it comes to sexual intercourse within marriages, most of
these religions believe that there is a consent to sexual intercourse along-with
marriage, because cohabitation between marital partners is believed to be a sine qua
non of the institution of marriage. The ancient culture of India expects housewives
to be devoted to their husbands which has made domestic violence acceptable
further causing a lot of suffering for the women of India. Studies reveal that most of
the women either working or non-working suffer domestic abuse from their
husbands. Non-working women tend to be more vulnerable due to their
dependence on husbands. Poverty is also said to be one of the reasons for low
literacy rates and abuse among women.2
What Constitutes Marital Rape?
With the help of various structured interviews, it has come to light that victims of
marital rape tend to think that marital rape only includes forced penetration or
sexual coercion which signifies lack of awareness. Marital rape also includes forced
enactment of pornography, anal or oral sex. Furthermore, solicitation by spouse and
incest also qualify as sexual abuse.3
Status of Marital Rape in India
Rape is defined as having sexual intercourse with a woman without her consent. It
is penalised only in the case when the offender is any other person than who she is
married to. Section 63 exception 2 of BNS, 20234 reads- “Exception 2 Sexual
intercourse or sexual acts by a man with his own wife, the wife not being under
eighteen years of age, is not rape.”
It protects husbands from being penalised for performing any type of sexual
activity without their wife’s consent. Also Section 3 of the Protection of Women
from Domestic Violence Act, 20055 includes Sexual abuse in the definition of
Domestic violence. Consent in sexual intercourse within marriage is not considered
very necessary in India even when, according to the report of National Family
Health Survey (hereinafter referred as NFHS) it shows that most often,
individuals with whom women have an intimate relationship are the ones reported
86 Invisible to Invincible : Narratives of Gender Justice

to have committed sexual violence.6 The highest spousal violence has been
recorded in Karnataka with 48% of its ever-married women suffered and overall,
32% of ever married women in India have faced spousal violence. 7
INFRINGEMENT OF CONSTITUTIONAL PROVISIONS
This Marital Rape exception (hereinafter referred to as Exception) which protects
husbands from being prosecuted of offence of rape with their wives goes against
the core values and rights provided by our Fundamental rights in Part 3 of the
Indian Constitution.
1. Right to Equality
Right to Equality is provided by our constitution under Art 14 8 and Art 159. Art
1410 provides us an equality before law and equal protection of law. Furthermore,
Article 1511 states that men and women shall not be discriminated on the basis of
sex. In the context of marriage this exception goes with the belief that women
submit herself to the man when she gets married to him, which is against the
modern concept of equality between men and women in marriages and was iterated
by court in the case of Mr Hrishikesh Sahoo and Ors. v. State of Karnataka and
Ors12, The Hon’ble High Court of Karnataka observed that the husband is not the
ruler of the body of the wife, and she is not a sex slave. The court thus held, “The
age old thought and tradition that the husbands are the rulers of their wives, their
body, mind and soul should be effaced… Such acts of husbands scar the soul of the
wives. It is, therefore, imperative for the law makers to now ‘hear the voices of
silence’”.
The Court in the same case also held that this exception goes against the notion of
equality as enshrined under Art. 1413 of our Constitution, and observed, “If the
Constitution mandates equality, the statute ought to follow suit. If a man, a
husband, a man he is, can be exempted of allegation of commission of ingredients
of Section 375 of the IPC, inequality percolates into such provision of law.
Therefore, it would run counter to what is enshrined in Article 14 of the
Constitution.”
1.1 Intelligible Differentia; Under a Question Mark?
The test of intelligible differentia is performed to check if it is reasonable to give
different treatment to a category other than normal under Art 1414 and 15 15 of our
Constitution.
● On the Basis of Age
The laws regarding rape shall not discriminate women on the basis of age, which,
 Invisible to Invincible : Narratives of Gender Justice 87

in the issue of marital rape was updated to 18 years, in the case of Independent
Thought v. Union of India16. This updated interpretation of marital rape law only
criminalises marital rape for women who are below the age of 18 imposing strict
punishment against the offender. But for married women who are above the age of
18 years, there is no protection available nor a provision which punishes the
offender. There is no intelligible differentia in discriminating married women based
on age in the context of Marital Rape. In another case RIT Foundation v. Union of
India17 which was before the Delhi High Court, it was stated by Justice Shankar
that this exception passes the test of intelligible differentia as the amount of
outrage felt by wife in the act of non-consensual sex by stranger and husband is
different. It was iterated that, “It would be artificial to assume that the degree of
outrage felt by a wife who is compelled to have sex on a particular occasion with
her husband, despite her unwillingness, is the same as the degree of outrage felt by
a woman who is ravaged by a stranger against her will……”
However, there is no intelligible differentia in differentiating rape victims based
on whether the offence was committed by the husband or any other man because
when it comes to personal autonomy of women over their body, this goes against
the doctrine of reasonableness which was added to testing rationale nexus in
intelligible differentia in the case of EP royappa v. State of Tamil Nadu18. This was
applied by Justice Shakdher in the case of RIT Foundation v. Union of India 19 in
which the hon’ble court held that this exemption fails the test of intelligible
differentia as it is unreasonable and arbitrary. Therefore, it violates the right of
equality provided by Art 1420. The court observed, “The classification between
married and unmarried women in the context of MRE (and what is observed
hereinabove) is without doubt unreasonable. ….”
Adding on, this exception was made on the assumption that women are property of
their husbands. However, Men and Women are considered equals in a marriage
and the thinking that women are a property of their husband is not prevalent
anymore. Therefore, this is a violation of the Fundamental Right of Equality.21
It also violates Article 1522 since it triggers discrimination against women based on
their marital status as well as age. Unmarried women are provided with protection
from rape by law, however, married women do not have the same protection.
Married women too have their bodily autonomy and are equal to men in the eyes
of law. Therefore, discriminating women on the basis of their marital status in this
context will not pass the test of intelligible differentia.
Additionally, this exception restricts women from negotiating contraception which
puts them at a risk of acquiring sexually transmissible diseases. Women shall have
88 Invisible to Invincible : Narratives of Gender Justice

a right to negotiate contraception in order to prevent abortion and unwanted

pregnancies and control over procreation as well as to decide the way they want to
have sexual intercourse to prevent unnatural offences.
2. Freedom to Express
Article 19 23 provides us with the fundamental freedoms. This exception violates a
woman’s freedom of speech and expression enshrined under Art 19(1)(a)24 of the
constitution. Women in marriages shall also have a right to express their consent or
unwillingness to sexual intercourse even within marriage irrespective of anything
as they are now considered equal to men in marriage and they have their bodily
autonomy. Even Hon’ble Justice Shankar who was in the favour of keeping this
exception in RIT Foundation v. Union of India25 stated that, “Marriage,
unquestionably, does not entitle a husband to coerce his wife into sex, if she is not
inclined. The impugned exception does not, however, either expressly or by
necessary implication, confer, on the husband in a marriage, an entitlement to
insist on sex with his wife, against her willingness or consent”26
Justice Rajiv Shakdher who was leading the bench in the split verdict case27 held
that this exception is unconstitutional according to the equality granted to men
and women now. This exception violates the Women’s right to life and personal
liberty under Art 2128 and in his words he stated that rape in marriage inflicts
deep psychological trauma and this is single enough reason to strike down MRE.
3. Violation of Article 2129 and Right to Privacy
Along with Art 1930 there always come Art 1431 and 21 32 as they form the Golden
Triangle together. We have already discussed violation of Art 1433 which leaves us
with Art 2134. Art 21 35 provides all the people in India the right to life and personal
liberty including bodily autonomy. Individual autonomy of women specifically in
context of marriage has been identified by the Hon’ble High Court of Kerala in
the case of X v. X36. The court in this case didn’t deny of existence of offence of
Marital rape and held that it is a good ground for divorce and was also held that a
women has right to enjoy individual privacy within marriage as men and women
are equal37. Right To privacy was introduced under Art 2138 by our Hon’ble Apex
court in the case of K.S. Puttaswamy and Anr. v. Union of India 39, and was given
the status of fundamental right, which is being violated by this exception. To
further support our argument, we lay down few cases from different jurisdictions.
Beginning with Suchita Srivastava v. Chandigarh Administration 40, where it was
held that Art. 2141 includes the right to reproductive choice under personal liberty.
Then moving on to State of Karnataka v. Krishnappa42 and State of Punjab v.
 Invisible to Invincible : Narratives of Gender Justice 89

Gurmit Singh 43, where the court observed that sexual violence and rape are
infringement of woman’s privacy. Further in the case of State of Maharashtra v.
Madhukar Narayan Mardikar44, where the Hon’ble Court held that a protection
from sexual assault comes under woman’s right to privacy under Art 21
irrespective of her sexual history and/or character.45. Marital rape was also made a
ground under Right to abortion by widening the definition of rape in the Medical
Termination of Pregnancy Act, 197146 and its latest amendment rules in 2021
by the Hon’ble Supreme Court in the case of in X v. The Principal Secretary,
Health and Family Welfare Department, Govt. of NCT of Delhi & Anr47 however it
was also clarified that this ratio is limited only to this Act and its Rule. It is not
applicable to the Indian Penal Code, 1860 which shows that judiciary avoids
deciding on this topic yet. There are few other judgements in which either the
judiciary has stated that either the legislature shall decide on this issue such as in
the case of Mr Hrishikesh Sahoo and Ors. v. State of Karnataka and Ors48 or this
judgement shall not be used anywhere as a precedent for issue of Marital Rape
such as in the case of Independent Thought v. Union of India49.
In the same judgement of Independent Thought50, Justice Lokur noted that this
exception takes away the right to refuse sexual intercourse and violates her bodily
integrity, liberty and dignity. He sourced these rights from our constitution as well
as international obligations under the Convention on the Elimination of All Forms
of Discrimination against Women51. Crucially, he observed, “The discussion on the
bodily integrity of a girl child and the reproductive choices available to her is
important only to highlight that she cannot be treated as a commodity having no
say over her body or someone who has no right to deny sexual intercourse to her
husband. The human rights of a girl child are very much alive and kicking
whether she is married or not and deserve recognition and acceptance.”
Justice Lokur gave a restrictive judgment only benefiting married women up to the
age of 18 years. However, as already proved before, there is no intelligible
differentia in treating married women on the basis of their age. Therefore, this
judgement shall also apply in the case of adult women. Justice Lokur also held that
a wife is no more just a property for her husband by referring to several decisions
from other jurisdictions that a rapist always remains a rapist irrespective of his
relationship with the aggrieved.52
Aside from Judgements, The Justice J.S Verma committee was formed by GOI
Notification no. SO (33003) E which gave its recommendations on possible
amendments in Criminal law in which it also recommended removal of this
90 Invisible to Invincible : Narratives of Gender Justice

exception on the grounds of its international invalidity in the present times and
adherence to international obligations under CEDAW. 53
INTERNATIONAL OBLIGATIONS
Marital rape exemption has been removed and this offence is recognized by 58
percent of the countries which includes most of the Asia which has not removed it
as Ellen Wulfhorst, Chief Correspondent, America Thomas Reuter Foundation,
wrote in a news article titled UN urged countries to end marital rape54. Talking
about our country India, it still hasn’t removed this exemption, although it has
ratified the Convention on the Elimination of All Forms of Discrimination against
Women55 which requires it to abolish existing laws and customs which constitute
discrimination against women according to Article 2(f)56 and also vouches for
equality between men and women in its preamble, Article 557 and 15(1)58. Also, the
CEDAW committee has several times, through their general recommendations
advised its state parties, which includes India, to take adequate measures to abolish
any kind of prevalent customs which is a danger to dignity of women in
recommendations 19 as well as 21 and specifically in recommendation 35 to
criminalise this exception
Article 2 (f)59 To take all appropriate measures, including legislation, to modify or
abolish existing laws, regulations, customs and practices which constitute
discrimination against women;
Noting that the Universal Declaration of Human Rights affirms the principle of the
inadmissibility of discrimination and proclaims that all human beings are born
free and equal in dignity and rights and that everyone is entitled to all the rights
and freedoms set forth therein, without distinction of any kind, including
distinction based on sex,
Noting that the States Parties to the International Covenants on Human Rights
have the obligation to ensure the equal rights of men and women to enjoy all
economic, social, cultural, civil and political rights
Article 560 States Parties shall take all appropriate measures: (a) To modify the
social and cultural patterns of conduct of men and women, with a view to achieving
the elimination of prejudices and customary and all other practices which are
based on the idea of the inferiority or the superiority of either of the sexes or on
stereotyped roles for men and women;
Article 15 161. States Parties shall accord to women equality with men before the
law. General recommendation 35 62
 Invisible to Invincible : Narratives of Gender Justice 91

A. General legislative measures 29. The Committee recommends that States

parties implement the following legislative measures:
(a) Ensure that all forms of gender-based violence against women in all
spheres, which amount to a violation of their physical, sexual or
psychological integrity, are criminalized and introduce, without delay,
or strengthen, legal sanctions commensurate with the gravity of the
offence, as well as civil remedies
(c) Repeal, including in customary, religious and indigenous laws, all legal
provisions that are discriminatory against women and thereby enshrine,
encourage, facilitate, justify or tolerate any form of gender-based
violence.
(e) Ensure that sexual assault, including rape, is characterized as a crime
against the right to personal security and physical, sexual and
psychological integrity53 and that the definition of sexual crimes,
including marital and acquaintance or date rape, is based on the lack of
freely given consent and takes into account coercive circumstances.
These provisions of CEDAW63 may be interpreted by National Courts with
fundamental right to further enlarge the meaning of these rights only if the
provisions of treaty are not in violation with these rights, as it was iterated by the
hon’ble Supreme court in the case of Maganbhai Ishwarbhai Patel v. Union of
India64 that in the absence of a domestic law with effective measures governing
over a particular issue, International conventions may be referred to enlarge the
scope of fundamental rights only if the provisions of treaty do not violate
fundamental rights.65 Also, Domestic Violence Act, 200566 is the only legislation
governing sexual abuse in India. However it must be noted that this legislation does
not provide adequate punishment for the perpetuator. Therefore, these all provision
may be applicable to aid in removing marital rape exemption and effectively
punishing the perpetuators.
Further this exemption was adopted by India since the Indian Penal Code, 1860
came into force under chairmanship of Lord Macaulay the chairperson of 1 st law
commission and it sourced from doctrine of hale as in Matthew hale the British
Chief Justice in 1736.67 The exemption at the moment seemed right because at that
period of time, it was believed that a woman submits herself to her husband when
she gets married to him, however nowadays men and women are considered equal.
This exception has been overturned by most of the jurisdictions because women are
getting considered as equal and they even bring bread to the home nowadays. India
92 Invisible to Invincible : Narratives of Gender Justice

has adopted this exemption from United Kingdom which has also overturned the
Marital rape Exemption in the case of R. v. R68 where it was held as, “I am
therefore of the opinion that section 1(1) of the Act of 1976 presents no obstacle to
this House declaring that in modern times the supposed marital exemption in rape
forms no part of the law of England.”
Other Jurisdictions such as Canada, USA, South-Africa have also criminalised
Marital Rape. Therefore, now it’s high time to criminalise marital rape when
India has also started to recognise equality between men and women.
CHALLENGES FACED IN CRIMINALISING MARITAL RAPE
Criminalising marital rape has faced a lot of resistance by the legislature and the
Judiciary. We have cited various cases in which judiciary resisted deciding on this
topic. Now, let’s talk about how legislature i.e the government has argued against
or avoided criminalising it.
Firstly the central government argued that criminalising it may destabilise on
institution of marriage. In Marriage when a man has considered that he has got a
free pass to indulge in sexual activities without the consent of spouse that type of
relationship is not even worth protecting because that’s just going to take more of
its toll on the women. It is a known fact to us that rape affects women physically as
well mentally which can also be supported by various judgements by our Hon’ble
courts such as in RIT Foundation v. Union of India69 which reads, “The act of non-
consensual sexual intercourse or rape is abhorrent and is inherently violative of
the basic right to life and liberty guaranteed by Article 21 in any context. The act
causes deep psychological, physical and emotional trauma.”
And Hrishikesh Sahoo v. State of Karnataka70 in which the Hon’ble court held that
marital rape is a graver offence for women than being raped by a stranger. The
court observed, “Such sexual assault by a husband on his wife will have grave
consequences on the mental sheet of the wife, it has both psychological and
physiological impact on her. Such acts of husbands scar the soul of the wives. It
is, therefore, imperative for the law makers to now ‘hear the voices of silence’.”
Protecting the fundamental rights of women and their independence and bodily
autonomy shall be prioritised as they come under the fundamental rights of
women. The hon’ble court in the case of Nimeshbhai Bharatbhai Desai v. State of
Gujarat, 201871 also discussed about this possible effect of criminalising it. But
again, as Justice Verma iterated our government has penalised domestic violence
and a single complaint of domestic violence also destroys marriages. In the same
way, just because the complaint of marital rape may destroy a marriage, it shall not
 Invisible to Invincible : Narratives of Gender Justice 93

stop government to provide equality to women. The court stated that “Marital rape
ought to be a crime and not a concept. Of course, there will be objections such as
a perceived threat to the integrity of the marital union and the possibility of
misuse of the penal provisions. It is difficult to argue that a complaint of marital
rape will ruin a marriage, while a complaint of domestic violence against a spouse
will not. It has long been time to jettison the notion of ‘implied consent’ in
marriage. The law must uphold the bodily autonomy of all women, irrespective of
their marital status.”
Moving further Centre argues that it may lead to misuse of the provision but the
legal framework of a country is forever evolving, as it should to maintain the
essence of justice. Major issues such as rape itself or dowry which were not earlier
recognized as offences just because of the fear that they will be misused are now a
part of our legal framework. Loopholes can be found in any laws, nothing is perfect
but that is exactly why he have an excellent judicial and legislative system; to keep
in check that none of the laws are misused and no innocent is punished, and the
legislature should modify or amend such a provision which is subject to potential
misuse. But the fear of misuse cannot be used as an excuse for not making a law or
acting upon the topic, like in our case, the criminalisation of marital rape as it
was held by the Hon’ble court in Sushil Kumar Sharma v. Union of India & Ors.72
and it reads, “It is well settled that mere possibility of abuse of a provision of law
does not per se invalidate a legislation. It must be presumed, unless the contrary is
proved, that administration and application of a particular law would be done “not
with an evil eye and unequal hand.”
Finally the centre argues that our culture and diversity does not make it easy to
make an offence such as this one however the Constitution of India provides every
citizen with fundamental rights such as article 21 73 which constitutes of right to
live with dignity under right to life, irrespective of their gender and it has been
established multiple times by the judiciary that if personal rights and fundamental
rights clash, then fundamental rights will always prevail. A well-known example of
abolition and criminalisation of customary practices is the ‘sati’ practice. Another
example is the case of Joseph shine v. Union of India74, where section 497 of
Indian Penal Code, 186075 was held unconstitutional on the grounds that it treats
women as a property, which violates their right to dignity and infringes article
1476 and 21 77. It was noted in this case that in earlier times, women used to be
considered as a mere ‘object’ for their husbands. But with fast evolving judicial
system, this classification is no longer relevant and valid and therefore, infringes
article 1478 of the constitution. The court in Joseph shine case79 iterated, “A law
94 Invisible to Invincible : Narratives of Gender Justice

which could have been justified at the time of its enactment with the passage of time
may become outdated and discriminatory with the evolution of society and changed
circumstances.” The same was reiterated from Motor General Traders State of
A.P80 and Rattan Arya v. State of T.N81 which reads, “What may have once been a
perfectly valid legislation meant to protect women in the historical background in
which it was framed, with the passage of time of over a century and a half, may
become obsolete and archaic.”
SUGGESTIONS
 Intelligible Differentia
The legal system should work meticulously to bridge the gap between married and
unmarried women and also between women under the age of 18 years and above it,
so that there is no discrimination on the pretext of intelligible differentia and
offences are recognised to which adequate punishments along-with reliefs are
provided accordingly.
 Strike Down This Exception
The Exception 2 of Section 63 of Bhartiya Nyaya Sanhita, 202382 shall be re-
evaluated by the legislators on the grounds of violation of fundamental rights,
International obligations and evolving society needs. It is not creation of a new
offence rather it is the removal of a custom or practice which violates bodily
autonomy of women and the equality enshrined by the Constitution.
 Awareness Programmes
With the evolving society, mind-sets of people implementing the law i.e. the police
personnel and the law interpreters i.e. advocates and judges also need to evolve. It
has come to light that whenever women have reached out for help, police have
ignored the request to lodge complaints saying there’s no law governing this and
various judgement have iterated there’s no legislation in India governing this,
however this shall not have stopped them from serving justice for which awareness
shall be spread amongst them.
 Prima Facie Conviction
Striking it down is not merely enough, marital rape is a grave offence but also
cannot be equated with normal rape. Therefore, it requires individual legislation
and different punishments as the existing legislation does not provide adequate and
immediate punishment prima facie which has to be changed keeping in mind the
gravity and effects of marital rape.
 Invisible to Invincible : Narratives of Gender Justice 95

 Institutional Support
A 24*7 Helpline shall be provided to women which would link them to an
institution which will provide them with legal aid and temporary safety measures.
This will motivate women to raise their voice against spousal violence.
CONCLUSION
Since the longest time, marital rape has been normalised by the society on the
pretext of customs and values, which expect women to serve their husbands. This
paper dealt with the constitutionality and validity of this exemption provided to
section 63 of Bhartiya Nyaya Sanhita, 2023.83 Various surveys have proved that
most women have, at some point in their lives, been a victim to this offence which
has caused them a lot of long-term suffering physically and psychologically.
Various judicial precedents have acknowledged this offence violative of
Fundamental Rights and urged the legislators to re-evaluate this exemption. With
the evolving society which sees husband and wife as equals, it has become
important to recognise this offence and provide adequate punishment. It has been
argued that there may be misuse of this offence, but every new law takes time to
evolve and the even though the road to justice is a tough and tedious process, it can
definitely be achieved with consistent legal and societal reforms.
References
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5 Protection of Women from Domestic Violence Act 2005, s 3
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10 The Indian Constitution 1950 (n 8)
11 The Indian Constitution 1950 (n 9)
12 Hrishikesh Sahoo v State of Karnataka 2022 SCC OnLine Kar 371 [71]
14 The Indian Constitution 1950 (n 8)
15 The Indian Constitution 1950 (n 9)
96 Invisible to Invincible : Narratives of Gender Justice

16 Independent Thought v Union of India (2017) 10 SCC 800

17 RIT Foundation (n 1) [570]
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19 RIT Foundation (n 1) [233]
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22 The Indian Constitution 1950 (n 9)
23 The Indian Constitution 1950, art 19
24 The Indian Constitution 1950, art 19(1)(a)
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Rapist? Does MRE Provide Impunity to Offender?' (SCC Online Blog, 12 May 2022)
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28 The Indian Constitution 1950, art 21
29 The Indian Constitution 1950 (n 28)
30 The Indian Constitution 1950 (n 23)
31 The Indian Constitution 1950 (n 8)
32 The Indian Constitution 1950 (n 28)
33 The Indian Constitution 1950 (n 8)
34 The Indian Constitution 1950 (n 28)
35 The Indian Constitution 1950 (n 28)
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https://hckinfo.kerala.gov.in/digicourt/ orders/2015/208000001512015_4.pdf accessed 1 March 2025
38 The Indian Constitution 1950 (n 28)
39 KS Puttaswamy and Anr v Union of India (2017) 10 SCC 1
40 Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1
41 The Indian Constitution 1950 (n 28)
42 State of Karnataka v Krishnappa (2000) 4 SCC 75
43 State of Punjab v Gurmit Singh (1996) 2 SCC 384
44 State of Maharashtra v Madhukar Narayan Mardikar (1991) 1 SCC 57
45 Independent Thought v Union of India [2017] SCC OnLine SC 1102
https://privacylibrary.ccgnlud.org/case/independent- thought-vs-union-of-india-and-ors accessed 14
February 2025
46 Medical Termination of Pregnancy Act 1971
47 X v Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi & Anr
(2022) 7 SCR 686
48 Hrishikesh Sahoo (n 12) [71]
49 Independent Thought (n 16) [199]
50 Independent Thought (n 16) [66]
51 Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December
1979, entered into force 3 September 1981) 1249 UNTS 13
52 Ayushi Agarwal, ‘The Supreme Court of India Reads Down the Marital Rape Exception: A Partial Victory
for Women’s Rights Advocates’ (Oxford Human Rights Hub, 12 December 2017)
https://ohrh.law.ox.ac.uk/the-supreme-court-of-india-reads-down-the-marital-rape-exception-a-partial-
 Invisible to Invincible : Narratives of Gender Justice 97

victory-for-womens-rights-advocates/ accessed 7 March 2025

53 Justice J.S. Verma Committee, Report of the Committee on Amendments to Criminal Law (2013)
https://apneaap.org/wp- content/uploads/2012/ 10/Justice-Verma-Committee-Report.pdf accessed 23
March 2025
54 Ellen Wulfhorst, 'UN Urges Countries to End Marital Rape and Close Legal Loopholes' (Thomson Reuters
Foundation, 26 June 2019) https://www.globalcitizen.org/en/content/un-women-marital-rape-laws/
accessed 19 March 2025
55 CEDAW (n 51)
56 CEDAW (n 51), art 2(f)
57 CEDAW (n 51), art 5
58 CEDAW (n 51), art 15(1)
59 CEDAW (n 56)
60 CEDAW (n 57)
61 CEDAW (n 58)
62 Committee on the Elimination of Discrimination against Women, 'General Recommendation No 35 on
Gender-Based Violence against Women, Updating General Recommendation No 19' (26 July 2017) UN
Doc CEDAW/C/GC/35 https://docs.un.org/en/CEDAW/C/GC/35 accessed 25 March 2025
63 CEDAW (n 51)
64 Maganbhai Ishwarbhai Patel v Union of India (1970) 3 SCC 400
65 'Position Relating to Treaties under the Indian Constitution' (LawBhoomi, 10 June 2020)
https://lawbhoomi.com/position- relating-to-treaties-under-the-indian-constitution/ accessed 15 March
2025
66 Domestic Violence Act 2005
67 'Marital Rape in India' (Drishti IAS, 20 March 2025) https://www.drishtiias.com/daily-updates/daily-news-
analysis/marital- rape-in-india-1 accessed 20 March 2025
68 R v R [1991] UKHL 12, [1992] 1 AC 599
69 RIT Foundation (n 1) [154]
70 Hrishikesh Sahoo (n 12)
71 Nimeshbhai Bharatbhai Desai v State of Gujarat 2018 SCC OnLine Guj 732 [166]
72 Sushil Kumar Sharma v Union of India 2005 6 SCC 281 [12]
73 The Indian Constitution 1950 (n 28)
74 Joseph Shine v Union of India 2019 3 SCC 39
75 Indian Penal Code 1860, s 497
76 The Indian Constitution 1950 (n 8)
77 The Indian Constitution 1950 (n 28)
78 The Indian Constitution 1950 (n 8)
79 Joseph shine (n 74)
80 Motor General Traders v State of Andhra Pradesh (1984) 1 SCC 222
81 Rattan Arya v State of TN 1986 3 SCC 385


98 Invisible to Invincible : Narratives of Gender Justice

My Body, My Choice : The Legal and Ethical Batile for

Reproductive Rights and Bodily Autonomy
Dr. Neelam Seam
Associate Professor Center for Legal Studies Gitarattan International
Business School
Abstract
Basic human rights that guarantee people the freedom to make choices about their own
bodies, especially when it comes to reproductive health, are reproductive rights and bodily
autonomy. These rights cover access to abortion, contraception, healthcare for mothers,
and defense against coercive reproductive policies like forced sterilization etc. Despite the
fact that these rights are recognized by international human rights frameworks, society
norms, governmental interests, and individual autonomy frequently clash due to differing
legal and cultural viewpoints. Examining the development, difficulties, and consequences
of reproductive rights for social justice, public health, and gender equality, this paper will
examine the ethical and legal aspects of these rights. This study emphasizes the
significance of international treaties, case law, and policy discussions.
The legal and ethical aspects of reproductive rights are examined in this paper, along with
their historical development, regional variances, and current difficulties. The following
important questions are the focus of the study:
In what ways are reproductive rights protected or restricted by legal frameworks in
various nations?
What moral arguments exist for the autonomy of the body in reproductive decision-making?
Objectives:
To examine how international human rights law supports reproductive rights.
To assess the moral ramifications of physical autonomy in choices about reproductive
health.
To evaluate how social justice and gender equality are affected by restricted
reproductive legislation.
What impact have significant court rulings had on the worldwide conversation on
reproductive rights?
This study uses a qualitative methodology that combines ethical discourse analysis, case
study analysis, and doctrinal legal analysis. In addition to secondary materials like
scholarly journals, publications from human rights groups, and policy documents, primary
sources such as international treaties (such as CEDAW and ICCPR), national laws, and
court rulings will also be examined. To identify patterns, advancements, and regressions in
the promotion of reproductive rights, a comparative study of legal systems in various
jurisdictions will be carried out.
 Invisible to Invincible : Narratives of Gender Justice 99

Case Studies: Dobbs v. Jackson Women's Health Organization (2022) overturned the
famous Roe v. Wade (1973, USA) ruling, which acknowledged a woman's fundamental right
to an abortion.
The Medical Termination of Pregnancy Act (1971, revised 2021) in India is a progressive
piece of legislation that has made abortion more widely available.
The repeal of the Eighth Amendment in Ireland (2018) a turning point in reproductive
rights that resulted in abortion becoming legal.
The "Green Wave" movement in Latin America is a feminist movement that supports
abortion rights in areas that have historically imposed restrictions.
The study's conclusion emphasizes how crucial it is that reproductive rights be recognized
legally and morally as essential to gender equality and human dignity. It makes the case
that restricted reproductive regulations disproportionately affect underprivileged
communities in addition to violating bodily autonomy. This study emphasizes the pressing
need for legislative changes that give individual choice and reproductive justice first
priority by examining ethical discussions and legal precedents.
Key Words: Reproductive Rights, Bodily Autonomy, Abortion Laws, , Reproductive Justice,
Feminist Jurisprudence. INTRODUCTION
Reproductive rights refer to the legal and ethical entitlements that allow individuals
to make informed decisions regarding their reproductive health. Bodily autonomy,
closely linked to these rights, is the principle that individuals should have control
over their own bodies, free from governmental, societal, or familial interference.
Despite international agreements recognizing these rights, access and protection
vary widely across countries, often reflecting cultural, religious, and political
influences. This paper explores the legal frameworks, ethical considerations, and
landmark cases that have shaped the discourse on reproductive rights globally.
RESEARCH QUESTIONS
 How do legal frameworks across different jurisdictions protect or restrict
reproductive rights?
 What are the ethical justifications for bodily autonomy in reproductive
decision-making?
 How have landmark legal cases influenced the global discourse on
reproductive rights?
OBJECTIVES
 To analyze the legal foundations of reproductive rights in international
human rights law.
100 Invisible to Invincible : Narratives of Gender Justice

 To evaluate the ethical implications of bodily autonomy in reproductive

health decisions.
 To assess the impact of restrictive reproductive laws on gender equality and
social justice.
 To examine landmark case studies that have influenced the legal
recognition of reproductive rights.
METHODOLOGY
This research adopts a qualitative and quantitative approach, combining doctrinal
legal analysis, case study examination, and ethical discourse analysis. Primary
sources, including international treaties (e.g., CEDAW, ICCPR), national
legislation, and judicial decisions, will be analyzed alongside secondary sources
such as academic journals, reports from human rights organizations, and policy
documents. Comparative analysis of legal frameworks in different jurisdictions will
be conducted to highlight trends, progress, and setbacks in reproductive rights
advocacy.
LITERATURE REVIEW
Denbow (2005) 1analyzed the tension between reproductive choice and autonomy,
particularly focusing on indigent women who wish to carry pregnancies to term.
Although the work robustly addresses the legal and ethical dimensions of women's
reproductive rights, it may overlook critical cultural, social, and economic factors
influencing women's decisions. Furthermore, the narrow focus on a specific
socioeconomic group could limit the generalizability of its findings across broader
populations.
Menghini et al. (2022)2 examined the evolution of the #MyBodyMyChoice
discourse on Twitter, focusing particularly on hashtag hijacking and how narratives
shift during major events such as the COVID-19 pandemic. A major limitation of
the study is its restricted focus on a single hashtag, which raises concerns about the
generalizability of its findings to broader discussions or other movements on social
media.
Goldman et al. (2022)3 addressed the impact of recent U.S. Supreme Court
decisions on reproductive justice, framing these setbacks as calls for renewed
activism. While the paper powerfully highlights the legal dimensions of the issue, it
somewhat neglects broader social, economic, and cultural factors that could provide
a more comprehensive understanding of reproductive justice challenges.
Maril (2023)4 provided a focused legal analysis of the Dobbs v. Jackson Women’s
 Invisible to Invincible : Narratives of Gender Justice 101

Health Organization decision, critiquing the Court's rationale for transferring

regulatory authority over reproductive rights to the states. Although the legal
critique is thorough, the paper’s narrow emphasis may overlook broader social,
cultural, and economic contexts that deeply influence individual experiences with
reproductive rights and bodily autonomy.
Kambovski (2023)5 explored the theoretical foundations of bodily integrity and
autonomy. The paper provides a valuable contribution by integrating theoretical,
legal, and ethical perspectives into the human rights discourse. However, the
absence of empirical data and real-world case studies limits the application of its
conclusions in practice.
Beck et al. (2024)6 employed an intersectional approach to examining bodily
autonomy and state violence, particularly among marginalized communities such as
Black, Indigenous, and People of Color, as well as transgender and non-binary
individuals. Although the paper offers significant contributions by connecting
theory to practice and advocating for social work interventions, it may not fully
capture the experiences of other marginalized groups, such as those affected by
socioeconomic status or disability.
In sum, the reviewed works collectively underscore the multifaceted nature of
bodily autonomy, spanning legal, theoretical, digital, and intersectional terrains.
While earlier studies focus primarily on legal and ethical analyses, recent
contributions embrace broader, more critical frameworks, acknowledging the
intersectionality of oppression and the evolving nature of discourse in the digital
age. However, there remains a pressing need for more comprehensive, global, and
inclusive studies that fully capture the diversity of experiences related to bodily
autonomy.
The paper "Ethics, Law, And Life: Comparative Insights On Abortion Legislation"
presents a multi-disciplinary approach to understanding abortion, While the paper
aims to cover medicine, ethics, religion, and law, it may not fully encompass all
relevant perspectives. For instance, it could overlook sociocultural factors that
significantly influence abortion views and legislation in various regions. This
limitation could lead to an incomplete understanding of the complexities surrounding
abortion.7
COMPARATIVE SUMMARY OF INTERNATIONAL CONVENTIONS ON
REPRODUCTIVE RIGHTS
Several international treaties and agreements affirm the importance of reproductive
rights, albeit through different frameworks and emphases.
102 Invisible to Invincible : Narratives of Gender Justice

The Universal Declaration of Human Rights (UDHR), adopted in 1948, lays the
foundational principle that all individuals have the right to life, liberty, and security
of person, as well as the right to found a family based on free and full consent of the
intending spouses.8 While the UDHR does not explicitly mention reproductive
rights, its emphasis on personal autonomy and dignity serves as a critical basis for
later interpretations that incorporate reproductive freedom.
The Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW), adopted in 1979, takes a more direct approach by obligating
state parties to eliminate discrimination against women in healthcare and ensure
access to information and services related to family planning.9 CEDAW explicitly
connects women's reproductive autonomy with gender equality, making it a
landmark treaty in advancing reproductive rights within a human rights framework.
The International Covenant on Civil and Political Rights (ICCPR), adopted in
1966, recognizes the inherent right to life and the protection of privacy, which have
been interpreted to encompass aspects of reproductive autonomy, including
decisions about contraception and childbirth. 10 However, the ICCPR does not
explicitly mention reproductive rights, leaving much to interpretation by human
rights bodies and national courts.
The Beijing Declaration and Platform for Action (1995), a product of the Fourth
World Conference on Women, goes further than previous documents by affirming
that reproductive rights are a component of women's human rights. 11 It stresses the
importance of women's ability to control their fertility, access family planning
services, and be free from coercion and violence in reproductive matters.
In comparison, while the UDHR and ICCPR provide broad rights that form a basis
for reproductive autonomy through interpretation, CEDAW and the Beijing
Declaration take a more explicit and action-oriented stance. CEDAW creates
binding obligations for states, whereas the Beijing Declaration, though not legally
binding, serves as a powerful political commitment to advancing reproductive and
sexual health rights globally.
Thus, the evolution from general human rights protections toward explicit
acknowledgment of reproductive rights illustrates an increasing international
commitment to ensuring bodily autonomy and gender equality.
 Invisible to Invincible : Narratives of Gender Justice 103

CASE STUDIES
Global Key Cases on Reproductive Rights
Country Case Name Year Impact/Contribution
12
United Roe v. Wade 1973 Established constitutional right to
States abortion under right to privacy.
Germany BVerfGE 39, 1 Abortion I (Abortion I 1975 Recognized fetus’s right to life;
Decision)13 permitted regulated abortions
balancing women's rights.
Canada R. v. Morgentaler14 1988 Struck down restrictive abortion
laws; affirmed women's security of
the person.
South Christian Lawyers Association v. 1998 Upheld abortion rights under
Africa Minister of Health15 constitutional protections of dignity
and bodily autonomy.
Ireland Attorney General v. X (The X Case)16 1992 Allowed abortion when there was a
substantial risk to the mother's life.
United Planned Parenthood v. Casey17 1992 Reaffirmed Roe, but introduced
States "undue burden" standard for
abortion restrictions.
India Suchita Srivastava v. Chandigarh 2009 Affirmed reproductive rights as
Administration18 part of the constitutional right to
personal liberty.
European A, B and C v. Ireland19 2010 Recognized violation of privacy due
Court to restrictive abortion laws but
upheld wide national discretion.
Mexico Supreme Court Judgment on Abortion 2021 Decriminalized abortion
Decriminalization20 nationwide; declared criminal
penalties unconstitutional.
United Dobbs v. Jackson Women’s Health 2022 Overturned Roe; gave states full
States Organization21 authority to regulate abortion.
Colombia 1. Constitutional Court Decision C- 2022 Decriminalized abortion up to 24
055/22 weeks; emphasized public health
Constitutional Court of Colombia, and social justice.
Decision C- 055/22 (2022).22

ETHICAL CONSIDERATIONS IN REPRODUCTIVE RIGHTS

The Right to Bodily Autonomy: The ethical argument for bodily autonomy
asserts that individuals have the fundamental right to make decisions about their
own bodies. Denying reproductive rights can be seen as a violation of personal
104 Invisible to Invincible : Narratives of Gender Justice

freedom and bodily integrity.

Balancing State and Individual Interests: Governments often regulate
reproductive rights citing moral, religious, or public health reasons. However, such
regulations must be balanced against the rights of individuals, particularly women,
to make autonomous decisions about their health.
Gender Equality and Social Justice: Restrictions on reproductive rights
disproportionately impact women and marginalized communities. Access to safe
reproductive healthcare is crucial for gender equality, social justice, and economic
empowerment.
ONLINE SURVEY AND THEIR KEY FINDINGS
There author conducted the research through collected the online data from 100
female to know their individual knowledge and opinion regarding the rights of
reproductive govt regulation and bodily autonomy. On the basis of the
questionnaire filled by the target audience the following is the analysis and finding
of the data set.
Hypothesis Testing
H1: Knowledge of reproductive rights is positively associated with support for
physical autonomy.
Chi-Square Test Results:
χ²(2, N=94) = 7.92, p = 0.019

Cross-tabulation:
| Bodily Autonomy Belief |
Knowledge Level | No | Yes | Total
Not knowledgeable at all | 20.0% | 80.0% | 100%
Somewhat knowledgeable | 1.7% | 98.3% | 100%
Very knowledgeable | 0.0% | 100.0% | 100%
Correlation:
Spearman's rho = 0.21, p = 0.043
Finding: There is a significant positive association between knowledge of
reproductive rights and support for bodily autonomy. As knowledge increases,
support for bodily autonomy increases.
 Invisible to Invincible : Narratives of Gender Justice 105

H2: Independence from cultural/religious beliefs is associated with support for

international human rights frameworks.
Analysis based on willingness to participate in international collaboration:
χ²(4, N=94) = 9.47, p = 0.050

Cross-tabulation:
| Support for International Collaboration |
Cultural/Religious Belief | No | Maybe | Yes | Total
Should be considered | 16.0% | 24.0% | 60.0% | 100%
Unsure | 0.0% | 40.0% | 60.0% | 100%
Should be independent | 4.7% | 21.9% | 73.4% | 100%
Finding: There is a marginally significant relationship (p = 0.050) showing that
those who believe reproductive rights should be independent of cultural/religious
beliefs are more likely to support international collaboration on reproductive rights,
which aligns with international human rights frameworks.
H3: Perceived societal influence is associated with stronger support for gender
equality initiatives.
Chi-Square Test Results:
χ²(2, N=94) = 6.18, p = 0.046
Cross-tabulation:
| Support for Gender Equality Initiatives |
Societal Influence | No | Yes | Total
Yes, strongly | 3.8% | 96.2% | 100%
Yes, to some extent | 13.8% | 86.2% | 100%
No/Unsure | 16.7% | 83.3% | 100%
Finding: There is a significant association between perceived societal influence on
reproductive choices and support for gender equality initiatives. Those who
strongly believe society influences women's reproductive choices are more likely to
support gender equality initiatives.
H4: Education level is positively associated with support for individual choice
in reproductive rights legislation.
Chi-Square Test Results:
χ²(6, N=94) = 4.89, p = 0.558
106 Invisible to Invincible : Narratives of Gender Justice

Cross-tabulation:
| Government vs. Individual Choice |
Education Level | Gov't | Unsure | Individual | Total
High School | 50.0% | 0.0% | 50.0% | 100%
Bachelor's Degree | 45.2% | 2.4% | 52.4% | 100%
Master's Degree | 37.5% | 4.2% | 58.3% | 100%
Doctorate | 33.3% | 5.6% | 61.1% | 100%
Finding: While there appears to be a trend where higher education is associated
with greater support for individual choice, this relationship did not reach statistical
significance (p > 0.05).
4. Additional Key Findings
Access to Reproductive Health Services
Difficulty accessing reproductive health services:
- Yes: 25.5%
- No: 59.6%
- Unsure: 14.9%
Preferred Policy Changes
Top selected priorities for policy change:
1. Public education and awareness (86.2%)
2. Affordable healthcare (68.1%)
3. Gender equality initiatives (67.0%)
4. Legal reforms (58.5%)
5. International collaboration (41.5%)
Qualitative Analysis
Key themes from open-ended responses:
1. Autonomy and Choice: "My body my choice" was frequently mentioned
2. Education and Awareness: Strong emphasis on public education about
reproductive rights
3. Legal Reform Needs: Particularly around abortion access and consent
requirements
 Invisible to Invincible : Narratives of Gender Justice 107

4. Healthcare Access: Concerns about affordability and accessibility, especially in

rural areas
5. Gender Equality: Recognition of reproductive rights as fundamental to gender
equality
The analysis strongly supports the connection between reproductive rights, bodily
autonomy, and gender equality. Knowledge of reproductive rights significantly
correlates with support for bodily autonomy (H1 confirmed). There is evidence that
those who believe reproductive rights should be independent of cultural/religious
beliefs are more supportive of international frameworks (H2 confirmed). Perceived
societal influence significantly correlates with support for gender equality
initiatives (H3 confirmed).
While education level shows a trend toward supporting individual choice in
reproductive legislation, this relationship did not reach statistical significance (H4
not confirmed). This suggests that attitudes toward reproductive rights may
transcend educational boundaries in this sample.
The qualitative data emphasizes the importance of education, awareness, and legal
reforms to protect reproductive rights. The findings highlight the
interconnectedness of international human rights frameworks, bodily autonomy,
and gender equality in the context of reproductive rights.
IMPLICATIONS
For International Human Rights Law
• The data supports the integration of reproductive rights within human rights
frameworks
• Respondents who align with international standards (independence from
cultural/religious constraints) show greater support for international
collaboration
For Moral Considerations of Physical Autonomy
• Near-universal support (96.8%) for women's bodily autonomy indicates strong
moral consensus
• Knowledge and education appear key to reinforcing moral perspectives on
autonomy
For Social Justice and Gender Equality
• Strong recognition of the connection between reproductive rights and gender
equality
108 Invisible to Invincible : Narratives of Gender Justice

• Public education emerged as the most critical factor for ensuring equitable
access (86.2%)
These findings can inform policy development, advocacy strategies, and educational
initiatives aimed at strengthening reproductive rights protections through
international human rights frameworks while recognizing their fundamental
connection to bodily autonomy and gender equality.
Policy Recommendations
Engage stakeholders in developing policies: that protect sexual and reproductive
health data rights, ensuring individuals have ownership over their data and bodily
autonomy, advocating for collective action among stakeholders to improve
understanding, governance, and ownership of sexual and reproductive health data.23
Role of the State: States should enhance access to abortifacient drugs, promote
self-managed medical abortions, and expand telemedicine counseling. These
measures empower women, uphold human rights, and reduce over-regulation,
fostering greater bodily autonomy and reproductive rights during the pandemic and
beyond.24
Legal Reforms: Governments should enact and uphold laws that protect
reproductive rights, ensuring access to safe abortion, contraception, and maternal
healthcare. This includes repealing restrictive laws and enacting comprehensive
reproductive health legislation.
Inclusion of Indigenous Practices: Respect and integrate indigenous knowledge
and practices into reproductive care models to enhance cultural relevance and
acceptance.25
Public Education: Comprehensive sex education should be mandated in schools to
promote awareness of reproductive health and rights, reducing misinformation and
stigma surrounding reproductive choices. The author prioritizing women's lives in
reproductive care, criminalizing obstetric violence, improving medical training,
reducing financial incentives for unnecessary cesarean sections, and respectfully
incorporating indigenous and midwife knowledge and practices.26 This integrative
review highlights the importance of ensuring women's reproductive rights and
health education to promote public health, gender equity, and women's well-being,
particularly in the face of social inequalities and the COVID-19 pandemic.27
Healthcare Access: Policies must ensure universal access to reproductive
healthcare services, including contraception, prenatal care, and safe abortion
services, especially for marginalized communities. The paper emphasizes the need
 Invisible to Invincible : Narratives of Gender Justice 109

for new dialogues among architects, educators, and activists to address spatial
realities of restricted bodily autonomy and reproductive rights, advocating for
collaborative efforts to create built environments that support personal autonomy
and equitable access to healthcare. 28
International Collaboration: Countries should engage in international human
rights initiatives and support global efforts to advance reproductive rights through
diplomatic channels, advocacy, and funding.
Judicial Protection: Courts should play a proactive role in safeguarding
reproductive rights, ensuring that legal frameworks uphold bodily autonomy and
prevent discriminatory restrictions on reproductive healthcare.
Conclusion
Reproductive rights and bodily autonomy remain contentious issues worldwide.
While legal frameworks and ethical arguments strongly support these rights,
cultural and political factors continue to challenge their realization. Case studies
illustrate both progress and setbacks in reproductive justice, emphasizing the need
for continued advocacy, legal reform, and recognition of bodily autonomy as a
fundamental human right. Governments must prioritize policies that protect
reproductive rights, ensuring equitable access to healthcare and gender equality.
References
1 Denbow J, ‘Abortion: When Choice and Autonomy Conflict’ (2005) 20 Berkeley Journal of Gender, Law
and Justice 216 <https://lawcat.berkeley.edu/record/1119737>
2 Menghini C and others, ‘The Drift of #MyBodyMyChoice Discourse on Twitter’ [2022] Web Science
Conference
<http://arxiv.org/pdf/2205.04898>
3 Goldman I and others, ‘Unequal Reproductive Justice under the Law’ (2022) 3 Cell reports medicine
100698
<https://doi.org/10.1016/j.xcrm.2022.100698>
4 Maril RS, ‘From Liberation To (Re)Criminalization: Dobbs v. Jackson Women’s Health Organization,
Bodily Autonomy, and the Expansion of State Rights’ [2023] Social Science Research Network
5 Kambovski V, ‘The Right to Bodily Integrity and Bodily Autonomy’ 23
6 Beck E and others, ‘Reproductive Justice, Bodily Autonomy, and State Violence’ [2024] Affilia
7 Shafy AA, ‘Ethics, Law, And Life: Comparative Insights On Abortion Legislation’ (2024) 29 IOSR
journal of humanities and social science 08
8 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) arts 3, 16.
9 onvention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December
1979, entered into force 3 September 1981) 1249 UNTS 13, arts 12, 16.
10 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171, arts 6, 17.
11 Beijing Declaration and Platform for Action (adopted 15 September 1995) UN Doc A/CONF.177/20
(1995), paras 94–97.
12 Roe v Wade 410 US 113 (1973) (United States Supreme Court).
13 BVerfGE 39, 1 Abortion I (1975) (Federal Constitutional Court of Germany).
110 Invisible to Invincible : Narratives of Gender Justice

14 R v Morgentaler [1988] 1 SCR 30 (Supreme Court of Canada).

15 Christian Lawyers Association v Minister of Health 1998 (4) SA 1113 (T) (South African High Court).
16 Attorney General v X [1992] IESC 1 (Irish Supreme Court).
17 Planned Parenthood of Southeastern Pennsylvania v Casey 505 US 833 (1992) (United States Supreme
Court).
18 Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1 (Supreme Court of India).
19 A, B and C v Ireland (2010) 53 EHRR 13 (European Court of Human Rights).
20 Supreme Court Judgment on Abortion Decriminalization (SCJN, Mexico) (2021).
21 Dobbs v Jackson Women’s Health Organization 597 US (2022) (United States Supreme Court).
22 Constitutional Court of Colombia, Decision C-055/22 (2022).
23 Gagnaire K, ‘My Data, My Body, My Rights: Help Shape This Initiative!’ (2024) 18 Disaster Medicine
and Public Health Preparedness
24 Cabello A and Gaitán AC, ‘Safe Abortion in Women’s Hands: Autonomy and a Human Rights Approach
to COVID-19 and Beyond’ (2021) 23 Health and Human Rights 191
<https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8233031>
25 O’Brien C and Newport M, ‘Prioritizing Women’s Choices, Consent, and Bodily Autonomy: From a
Continuum of Violence to Women-Centric Reproductive Care.’ (2023) 333 Social science & medicine
116110
26 O’Brien C and Newport M, ‘Prioritizing Women’s Choices, Consent, and Bodily Autonomy: From a
Continuum of Violence to Women-Centric Reproductive Care.’ (2023) 333 Social science & medicine
116110
27 PONTES D, Carrijo T de D and Morais I, ‘A Importância Da Garantia Dos Direitos Reprodutivos Da
Mulher e Educação Em Saúde: Uma Revisão Integrativa’ (2024) 29 Revista fisio&terapia. 49
28 Roberts B, Harkema L and Brown L, ‘Spatializing Reproductive Justice’

***
 Invisible to Invincible : Narratives of Gender Justice 111

Neither A Fault Nor a Sin : the Studies of Coming Out,

Marriage, Influence by Religion, and Representation in
India
Sahil Yadav
Designation: Student (NLIU, Bhopal)
Abstract
Tears flowing down the cheeks and restlessness are not novel concepts for the LGBTQ
community, especially teenagers. It will not be a unique now if a teenager commits
suicide due to non-acceptance of his homosexual desires. The world is incomplete
without changes. It seems to be like that the world wants to be incomplete due to constant
overlooking of logic and reasoning in the themes of support for homosexuality. People are
living with false faith as they have only added their own interpretations of religion and
thus, its influence on homosexuality falls to the ground as a concept altogether.
This paper does not only delve deeper into the trends and originality of the concept
of “coming out” but also explores the science behind coming out by influence of media.
Often, society fails to keep up to the expectations of an individual, even if media
somehow has shot a bullet of motivation and courage in the individual. The paper tends to
answer certain recent emerging questions like what do various religions have to say
about homosexuality, and now as the concept has taken a turn in India differently,
interpretations and ideas may have become even more altered. The main thesis of the
paper is that wide representation in media and idealisation of the beauty of homosexuality
by various shows, web-series, books, movies, news etc. have not only promoted inclusivity
but also sent a signal of courage and dignity to teenagers which has positively impacted
their process of coming out. Another parallel signal which might have been received by
teenagers is of confusion. Even coming out has a lot of variances. Such variances are
elaborated in this paper. Another question which is posed throughout this paper is
discussing about the extent to which religion has prevented people from coming out,
accepting themselves, creating thoughts about unique type of marriages and the status of
government of India on such representations. While existence of non- heterosexuality is
recently seen as dominant, it may help us to understand the beauty of nature.
According to a survey conducted among around 500 first-year IIT Delhi students, 13.7%
of them do not consider themselves to be strictly heterosexual. A comparative analysis is
also performed between status of India and U.S.A in multiple aspects in this paper.
Above issues have also led the author to suggest some novel solutions. A unique
perspective of viewing the issue is also portrayed. As not all Indian parents are
liberal, their views are only justified to a minimum extent. A study on those views in
respect of marriage is also provided.
112 Invisible to Invincible : Narratives of Gender Justice

Keywords: LGBTQ, Teenagers, Homosexuality, Media, Acceptance, Coming out,

Inclusivity, Courage, Confusion, Marriage, Government.

I. INTRODUCTION
Homosexuality is neither a disease nor a sin. Methods of correct reasoning will
make it easier to understand this argument. What if certain set of people are not
ready to take into consideration such reasonings and explanations? World would
not grow. Conservatism is at one side and reasoning is at the other side. Both can
go hand in hand. Maybe, a better path is where we find reasoning, pragmatism, and
cultural preservation.
To begin with answering why people think or presume that homosexuality is
against the culture will take us to discover initially that sexuality and unions are a
part of culture. Culture includes beliefs and norms. Heterosexuality has taken a
form of societal norm in India. Therefore, majority of people, who do not apply
reasoning and practical approach towards forming an opinion, oppose
homosexuality on the grounds that it is culture while overlooking the argument that
if variance in sexuality is causing hindrance to normative culture, then it implies
that sexuality itself is a part of culture. Existence of different sexualities cannot be
uncertain. If it exists, then it is culture. Why would God, the sole master of worship
culture, give birth to existence of sexualities, if it is not to be included in culture?
This question brings clarity as to why sexuality is not only a part of our desires but
also the present culture.
Another question which might arise is the difference between existence of and
support for homosexuality. Both are clearly different. While in one family, there
may be existence and support for homosexuality, in the other family, there may be
existence but no support for homosexuality. Lines of support deviates in the future
towards concepts of same-sex marriage and same-sex live in relations.
Discussion of sexuality and culture is necessary to implant the question on
influence of religion and media on homosexuality, marriage, process of coming out
etc. Music also plays a significant role as it is not gendered. Music and rhythms
being neutral, invoke individual confidence, compassion, feelings of love, hate,
desire etc.
The society has changed, is changing and will continue to change but what I
wonder is that what will be the pace of the whole society to accept and appreciate
homosexuality. Some generalisation of societal observation would also lead us
to know that women have a soft heart and corner to support homosexuality as
compared to men. But the dilemma presented for teenagers is the uncertainty of
 Invisible to Invincible : Narratives of Gender Justice 113

questioning whether their mothers would understand more as compared to their

fathers, especially in patriarchal families. Reaching to the extent of support is
secondary as acceptance of existence is primary. In the current decade, it is
observed that alterations have come across with not only increased knowledge to
Indian parents about existence of sexuality but also unconditional support to their
non-straight children. According to my research, the primary issue of acceptance of
existence is majorly solved in the current decade for many teenagers as compared
to the secondary issues, which is support.
Classification of these issues as primary and secondary are based on what is more
important. Existence is primary as without accepting a specific type of sexuality,
support for it will not come.
Another issue which exists is that many teenagers, who are still not knowing what
they are feeling, and living in rural areas, not having any kind of support do find it
even more difficult to sustain their lives. It will be no shock to academicians and
students if honour killing also becomes non-gendered and even gays, bisexuals,
lesbians, or any other gender starts getting killed by their family, specially in
backward regions.
II. THE SCIENCE OF COMING OUT
Coming out refers to a process in which people, specially belonging to LGBTQ
community publicly disclose their identity.1 This process is mostly voluntary and
rarely accidental. This process can be in front of parents, friends, or any other
person of society. There is no definite manner of coming out. It is a big and
personal decision. The question to be researched is that how do Indian teenagers
deal with the process and what observations do we get?
It is generally observed that Gen-Z teenagers in India are now more open to coming
out at a younger age along with parental and peer support2. It still come as a shock
but is handled efficiently later. According to the story of a 39-year-old gay guy,
peer support is very easy to get in today’s world. His friends were upset not due to
him being gay, but because he did not come out to them earlier.3 They were
standing ready to accept and support.
On the other hand, a 16-year-old queer influencer teen ended his life after extreme
online trolling after he came out on social media4. Hence, opposite impacts of
coming out can be seen to different people in different scenarios but the common
root medium, provoking element, or motivating element which we can find in
most of the cases is media. Media has its wide influence and impact on the
process of coming out.
114 Invisible to Invincible : Narratives of Gender Justice

A. INFLUENCE OF MEDIA ON TEENAGERS

It is normal psychology that a person may imagine scenarios or create their fantasy
worlds of ideal situations where they are not just getting accepted but also
receiving what they want. It is even more normal if such imaginations or
thoughts arise after watching or listening multiple things on web, shows, series,
movies etc. Inclusivity of LGBTQ themes have highly influenced and inspired
minds of many.
A 14-year-old queer guy, disclosed himself telling his motivations of coming out
like his trip to turkey where he saw a pride parade and reading queer literature5.
All these sources led him to deeply introspect his identity for the truth. It is said
that creative outlets online and positive queer portrayals help many teenagers
nowadays to explore themselves and come out confidently6. Manier times, inspiring
historical personalities and ideal worship helps in these processes. There have been
instances wherein, influence has reached to such a level that teenagers do not resist
to openly disclose about themselves. A girl in her last high school year came out in
front of the whole school, through slam poetry, and it was followed by
thunderous applause7.
If we start observing the trends of latest web series and shows on platforms
like Netflix, Prime, Hotstar, it can be concluded that inclusion of LGBTQ
themes is elevating and reaching upto almost every show. The findings of a
cross-sectional survey among students and viewers revealed that there exists a
clear statistically link between Netflix LGBTQ content consumption and a
drastic shift in attitudes and behaviours among set of young adults.8 In a study
conducted in Texas, 126 respondents indicated that the media motivated their self-
realization, coming out, and current identities by providing role models and
inspiration in many ways9. Therefore, the community being represented in media
has now become a norm which almost all directors and story liners follow. This is
not only done to attract viewers of each section, but also respect and embrace
diversity in identities.
B. INFLUENCE OF RELIGIOUS BELIEFS ON TEENAGERS
What may be the strong hindrances to coming out due to which majority of
community members in India do not stand disclosed? It is the fear of non-
acceptance which is somewhere rooted in religious intrusion. Majority of teenagers
still believe that activities related to sexuality is a sin. Is the process of
reproduction not?
If we go practical about it, any activity related to sexuality is naturally enabled by
 Invisible to Invincible : Narratives of Gender Justice 115

human capacity. This itself proves that there is no question of right and wrong in
this unless it is infringing on someone’s rights and interests.
According to the philosophy of Lord Krishna (Hinduism), It is the union of two
souls which happens during pleasure-driving activities. "To love without condition,
to talk without intention, to give without reason, care without expectation, that's
the spirit of true love."10 So, according to him, there is no condition present in love.
Gender as a condition should not be point of resistance. Reason should not stifle on
likings and dislikings, rather it should be a source of happiness. If caring without
expectation applies to heterosexual couples, there should be no harm for such
application in same-sex couples.
Nowhere in Hindu Texts like Vedas, Kamasutra etc. are same-sex relations
condemned or penalised. Rather, they are mentioned properly in many places. An
argument which would come against such mentioning is that the it is only till the
level of mentioning and not till the level of acceptance or celebration. No one
knows the actual past. Maybe many archaeological evidences, books, material,
primary sources may have been destroyed, for instance in the Nalanda destruction.
We have never been able to retrieve some amount of history which leads to partial
accuracy. So, this argument would fail as it is based on partially known history. For
now, what we can hold is that if these acts were not penalised, then it means they
were not meant immoral or unethical. If every act had some kind of penalisation
and this type of did not, it indicated the relevancy and acceptance of it. Even if
somebody would claim that in the recent centuries, such acts have been highly
condemned by the conservative society, the counter-argument which I would keep
is that what about those who used to live without any type of ideological society?
By that, I mean the hunterers-gatherers. No one could tell if two males or two
females enjoyed having sensual or bodily pleasure together at that time. No one
was present to judge. Judgement was internal.
Hinduism has never provided a substantial reason to reject homosexual acts as
compared to Christianity or other religions. For blind religious followers, I would
contend that when God, the most superior power, has never commanded anything
against a particular concept, then they have no authority to decide the grounds of
morality.
According to Arthashastra (2 nd century BCE), homosexual acts were very minor
offences and therefore, not sanctioned. They were considered ‘offences’ rarely
believe Penance for homosexual acts were like taking a bath with clothes on, eating
five products of cow and keeping a one night fast.11 Even these punishments were
to solve the problem of loss of caste. These penances are reasoned for caste-
116 Invisible to Invincible : Narratives of Gender Justice

restoration or caste-pride. Again, this sanction does not specify homosexuality as a

reason of punishment.
So, if a teenager ever wants to satisfy his soul to think that homosexuality is not a
sin, he should take into consideration all these points mentioned and argued above.
III. ARENA OF CONFUSION AND STAGE OF FIGURING OUT
Biologically, there is no as such gay gene discovered by scientists successfully.
Hence, it cannot be said that it is an individual fault. Generally, the Indian
Judiciary has kept a positive opinion about it. Courts say that sexuality is natural
and is developed due to environment, past experiences, and exposures.
Decriminalisation in 2018 through Navtej Singh Johar case has given a good path
for India’s opinion to bring alterations12.
There are many historical instances where homosexuality is contended to have
existed. A degree of acceptance is implied by the depiction of a male couple,
Khnumhotep and Niankhkhnum, in the nose-kissing pose, which is said to be the
most intimate in Egyptian art. Particularly in the context of intimate interactions
between boys and men, homosexuality was widespread and even praised.13 In the
seventh century BCE, the Greek poet Sappho penned a poem on same-sex
yearning.14 Roman society included homosexuality, as evidenced by customs such
as pederasty, or interactions between older males and younger boys. It was well
known that Emperor Hadrian and Antinous were close. 15 In India for instance,
same-sex relationships between men and women are shown in the Khajuraho
temples. Same-sex attraction is also acknowledged in the Hindu treatise on love,
the Kamasutra. Mubarak was well-known for his association with a nobleman.
He was the son of Alauddin Khalji, who ruled the Delhi Sultanate.16 Despite
being contentious, the Kinsey findings from the 1940s and 1950s showed that a
sizable section of the populace had participated in some form of homosexual
activity. Following the Stonewall Riots in 1969 17, the homosexual rights
movement gained traction, especially in the US, and major progress was made in
advancing LGBTQ+ rights, including the legalization of same-sex marriage.
After all such contentions, one thing should be clear in mind of everyone
struggling, that it is not their fault. The state of confusion allegedly, is only for
some period. At some stage of life, every teenager becomes an adult and
understands the tactics of world and its limitations. The confusion will end, and
clarity would come. Typically, the age of figuring out is between eleven and
fifteen, as puberty hits and adolescence sets off its path.18
 Invisible to Invincible : Narratives of Gender Justice 117

Psychology of an individual influences his stages of coming out. Often, these

stages can be termed as identity confusion, identity comparison, identity tolerance,
identity acceptance and identity pride.19 All stages have different level of mindset
subject to its duration and level of understanding. Toughest stages are the first three
stages here as an individual’s psychology is brain-fogged with conservative ideas,
beliefs, religious influence, societal fear etc. These stages can be depicted in
relation to accepting mind of a teenager.

IV.THE STANCE OF GOVERNMENT OF INDIA ON HOMOSEXUALITY

The Indian government majorly resists to give any opinion on the issue of
LGBTQ community and same-sex marriage issue. It is on the parliament to decide
on same-sex marriage and unfortunately, there is no upbringing of any such
discussion in parliament. The current government has given certain schemes for
transgender communities and other members of community. But the
government does not take into consideration any deliberation on legalising same
sex marriage.
The government, when presented the defence of same-sex marriage case in the
Supreme Court, asserted that same-sex marriage is an urban and elitist concept.
To its disagreement, it is naturally observed that even rural areas have people
belonging from the LGBTQ community and even they want to live happily.20 This
point was also held by the honourable Supreme Court. 21 Sadly enough, the
government is not opening its clear stance on the issue of this minority community.
118 Invisible to Invincible : Narratives of Gender Justice

Even the surveys which are done depict false representation. There are many
limitations to an LGBTQ determinant survey as many people do not disclose their
identity, or claim to be straight when they are not, due to societal fear of
judgement. The survey sample is also not as large as it should be. Sexuality is
always an evolving concept. It changes with time and with time, the government
needs to change the circumstances and environment.
The Supreme Court has upheld the legitimacy of same-sex live-in relationships and
the rights of partners within them, including protection from domestic abuse, even
though they are not officially recognized as marriages. 22
V. PARENTAL SUPPORT, OBLIGATION AND VIEWS
There are large number of parents who will go in disagreement to their child’s
sexuality. They will act normative due to society. Is there some parental obligation
to support their child in such a situation? The answer is yes. As sexuality is not
abnormality, parents have an obligation to provide their child with support and
confidence. If this would have been a disease, which could have a curable
solution, the patients themselves would not have supported it. Actualising the
scenarios, such a situation is not true.
Additionally, parents who are ignorant of their children's gender or sexual identities
may still promote heterosexist, homophobic, or transphobic views that teenagers
may internalize as homonegativity. This could jeopardize the LGBT identity's
consolidation and jeopardize the mental and physical health and well-being of the
adolescents.23 After an LGBT youth comes out to their family, the initial response
from their parents gradually gives way to the normal interactions that occur in
every family and relationship.24
Attachment between parents and children affects the formation of positive
connections in later life.25 LGBT youth who are rejected because of their
gender identity or sexual orientation may suffer from a disruption in parent-child
bonding. For LGBT youth to grow up with a positive sense of self26, parental
acceptance is essential.
VI. CAN THERE BE ANY MIDDLE WAY OUT?
There is no middle way to escape the corners of sexuality. Anyone would have
to, some or the other day in future, accept that what they like is their uniqueness
and it cannot be changed or forced to change by anyone. Surgeries and pills are not
the solutions as they have serious consequences on an individual’s physical
health. The only way to sustain this is to live happily with gradual figuring out
process and being social about it in front of those set of people, who you are aware,
 Invisible to Invincible : Narratives of Gender Justice 119

are supportive and liberal. Being social will help you gain confidence and easily
share your stance. Some people hate the LGBTQ community simply because of
their appearances, way of speaking, behaviours, and internal feelings. This is not a
logical reason to hate.
What becomes tough for a teenager while he finds his middle way? It is the
quantity in which they will find haters and homophobic people, especially in India.
This creates uncertainty in their mind and may demotivate them at some stages.
Sense of self-respect and self- confidence is necessary to be kept along to
overcome such obstacles.
VII. SAME-SEX MARRIAGE
So far, we can track and say that existence was never an issue, and will never be
an issue. It has no sanctions, no punishments, and should not be judged. Indian
religions are almost silent but have recognised homosexuality. What is considered
wrong for now, is the implication of homosexuality to same-sex marriage.
Marriage is a traditional and valuable concept in India. Almost every child must
grow up and settle. It is practical enough to think that without marriage, life may
give too many obstacles as everyone needs a partner, whom an individual can love,
share memories, share happiness and sadness, start a family etc.
I agree to some extent that now is not the time for legalising same-sex marriage as
there are many unanswered questions. If there is a lot of instability in the
community itself, how can one assure that marriages will not become instable.
It is agreed that heterosexual marriages also have chances of instability due to
fights, cheating, violence etc. but homosexual marriages have some other
implications as well. What will happen to the adopted child of a same-sex couple if
the marriage breaks down? What criteria must be adopted to save rights of
orphans who will be adopted by same-sex couples? Is there any way of increasing
size and level of acceptance in the society? How will solemnization result into
provision of right applicable under current laws? Who will be considered ‘wife’
and who will be considered ‘husband’ according to family law?
All these questions remain inadequately answered. Therefore, I propose that firstly
answers should be found out, and any step taken to legalise same-sex marriage
should precede all confirmations and securities. No harm should be reflected to any
family.
120 Invisible to Invincible : Narratives of Gender Justice

VIII. NOVEL INTERPRETATIONS, FINDINGS AND STATISTICAL

ANALYSIS
LGBTQ inclusion in workplaces and professional spaces is a positive step
being recently taken in many offices. Many Western European nations, Canada,
and Australia are seeing an increase in the acceptance of homosexuality, while
other African countries, like South Africa, Tunisia, Nigeria, and Kenya, have made
notable strides in this regard.
Seven out of ten people identify as heterosexual, according to a survey that was
done in 27 different nations. Four percent of respondents identified as bisexual, and
about three percent identified as homosexual, gay, or lesbian. 27 One percent are
also omnisexual or pansexual. While omnisexuality refers to attraction to all gender
identities and sexual orientations, pansexuality characterizes persons who are
attracted to others regardless of their biological sex, gender, or gender identity.
Being gay is really a criminal in 71 nations throughout the world, making it more
than just a problem.28 The majority of these nations are found in Asia, Africa, and
the Middle East. In eleven nations, same-sex sexual intercourse carries the death
penalty, or at least the threat of it. Roughly 70% of people who identify as
lesbian, gay, bisexual, trans, or intersex in Eastern Europe and the Balkans are
never or nearly never open about their sexual orientation, according to a European
survey.29 There has been a good shift in the global acceptance of homosexuality in
recent years. The two nations with the largest gains in societal acceptance of
homosexuality out of the 27 studied were South Africa and India. Not only is
South Africa making great strides in this area, but Tunisia, Nigeria, and Kenya
have also seen increases.30
CONCLUSION
According to a survey conducted in eight countries, in Spain people are more
likely to support a family member or friend who would come out as gay,
lesbian, bisexual, transgender, or non-binary. According to a different Singaporean
survey, around 50% of participants stated that they would probably react badly if a
close relative came out. Likewise, the majority of LGBTQ+ individuals in Japan
reported not disclosing their sexual orientation. Coming out will continue to be a
brave act until the long-term goal of normalizing sexual orientations other than
heterosexual is achieved.31
These depict that the war is still on. Indications also tell that homosexuality is
neither a fault, nor a sin. The thesis is proven that wide representation in media and
idealisation of the beauty of homosexuality by various shows, web-series, books,
movies, news etc. have not only promoted inclusivity but also sent a signal of
 Invisible to Invincible : Narratives of Gender Justice 121

courage and dignity to teenagers which has positively impacted their process of
coming out. Another parallel signal which might have been received by
teenagers is of confusion. Even coming out has a lot of variances.
The concept of homosexuality is flawed in minds of many. Parents majorly resist
homosexuality and there is a need of increased awareness, confirmations and
peace-bearing strategies for solving such issues. Reading the science, including
biology, psychology, history behind homosexuality will help an individual,
especially a teenager to understand the concept efficiently.
References
1 Planned Parenthood, “Coming out”, <https://www.plannedparenthood.org/learn/sexual-
orientation/sexual- orientation/whats-coming-out> accessed 18-04-2025.
2 Mohua Das, “Gen Z teens coming out younger”, (Times of India, 8 June 2024),
<https://timesofindia.indiatimes.com/india/gen-z-teens-coming-out-younger-with-stronger-family-peer-
support/articleshow/110825311.cms> accessed 18-04-2025.
3 Homegrown world, “15 Young LGBT Indians Share Their Coming Out Stories”,
<https://homegrown.co.in/homegrown-explore/15-young-lgbt-indians-share-their-coming-out-stories>
accessed 18-04-2025.
4 India Today, <https://www.indiatoday.in/sunday-special/story/pranshu-ujjain-queer-teen-suicide-lgbtq-
social- media-online-trolling-bullying-2474080-2023-12-10> accessed 18-04-2025.
5 Mohua Das, “Gen Z teens coming out younger”, (Times of India, 8 June 2024),
<https://timesofindia.indiatimes.com/india/gen-z-teens-coming-out-younger-with-stronger-family-peer-
support/articleshow/110825311.cms> accessed 18-04-2025.
6 Ibid.
7 Sweta Akundi, “How comfortable are Indian queer students with coming out in schools?”, (The Hindu, 23
June 2020), < https://www.thehindu.com/society/indian-lgbtqia-students-coming-out-in-
schools/article31890410.ece> accessed 18-04-2025.
8 Syeda Duaa Batool, “The Netflix Effect: Exploring the Influence of LGBTQ Content on Pakistani Young
Adults”, (Humanity Publications, Global Sociological Review, Volume IX, 2024), 166.
9 Sarah C Gomillion, “The influence of media role models on gay, lesbian, and bisexual identity”, (2011),
<https://pubmed.ncbi.nlm.nih.gov/21360390/> accessed 19-04-2025.
10 Times of India, <https://timesofindia.indiatimes.com/life-style/relationships/web-stories/lord-krishnas-
quotes- on-love-and-relationships/photostory/108001466.cms> accessed 22-04-2025.
11 Arvind Passey, “The LGBTQ war isn’t over”, (14 September 2018), <https://passey.info/2018/09/the-lgbtq-
war-isnt-over/> accessed 21-04-2025.
12 Navtej Singh Johar vs Union Of India, AIR 2018 SC 4321.
13 Wikipedia,
<https://en.wikipedia.org/wiki/LGBTQ_rights_in_Egypt#:~:text=Ancient%20Egyptian%20documents%20n
eve r%20clearly,never%20been%20proof%20suggesting%20otherwise.> accessed 22-04-2025.
14 Wikipedia, <https://en.wikipedia.org/wiki/History_of_homosexuality> accessed 22-04-2025.
15 Ibid.
16 Academike, “The Pre-Colonial History of Homosexuality in India: Why Love Is Not Western (Part I/III)”,
(29 June 2021), <https://www.lawctopus.com/academike/history-of-homosexuality-in- india/#:~:text=
Women%20 even%20abandon%20themselves%20to,the%20life%20of%20Gautam%20Budha.> accessed
22-04-2025.
122 Invisible to Invincible : Narratives of Gender Justice

17 The Editors of Britannica Encyclopaedia, ‘homosexuality’, (3 March 2025), < https://www.britannica.com/

topic/homosexuality> accessed 22-04-2025.
18 Kidhealth, “sexual orientation”, <https://kidshealth.org/en/parents/sexual-orientation.html> accessed
22-04-
19 “Out Of The Closet- The 6-Stage Model Of Coming Out”, (19 April 2022),
<https://thrivingcenterofpsych.com/blog/out-of-the-closet-the-6-stage-model-of-coming-out/>accessed
22-04-
20 Times of India, “Same sex marriage”, <https://timesofindia.indiatimes.com/india/sc-counters-govt-sexual-
orientation-innate-its-neither-urban-nor-elitist/articleshow/99622277.cms> accessed 22-04-2025.
21 Ibid.
22 Nyaaya, “5 things you didn’t know about the rights of Same-sex Couples”, <https://nyaaya.org/nyaaya-
weekly/5-things-you-didnt-know-about-the-rights-of-same-sex-couples/> accessed 22-04-2025.
23 W. Roger Mills-Koonce, “The Significance of Parenting and Parent–Child Relationships for Sexual and
Gender Minority Adolescents”, J Res Adolesc. 2018 Sep;28(3):637–649.
24. Ibid
25 Sabra L Katz-Wise, Pediatr Clin North Am. 2016 Dec;63(6):1011–1025.
26. Ibid
27 Statista, “LGBTQ Worldwide”, <https://www.statista.com/topics/8579/lgbtq-worldwide/#topic
Overview> accessed 22-04-2025.
28. Ibid.
29 Ibid.
30 Ibid.


 Invisible to Invincible : Narratives of Gender Justice 123

An Analysis of LGBTQ + Rights in India

Akanksha Srivastava
LLM 4 th Semester- Student
Sardar Patel Subharti Institute of Law Swami Vivekanand Subharti University,
Meerut
Co- Author: Dr. Reena Bishnoi
Professor, Institute : Sardar Patel Subharti Institute of Law Swami Vivekanand
Subharti University, Meerut

ABSTRACT
LGBTQ+ an initial accepted worldwide, stands for Lesbian, Gay, Bisexual, Transgender,
Queer respectively. Plus or “+” is used as an umbrella sign which undertakes every other
identity and sexual orientations who feels differently from inside and are not mentioned in
the given acronym. The recognition of the given acronym gained rapid momentum in the
1990s in order to include larger range of gender identities and orientations beyond just
lesbian, gay and transgenders. We have completed almost a quarter of 21st century, yet
Homosexuality , a natural sexual orientation of an individual, is still considered a taboo in
many societies and cultures . Many think of it as a conscious choice, for many, it is a
mental illness of an individual, which can be changed or cured through proper
counselling. What people fail to acknowledge is that Homosexuality is a “Natural Instinct”
of an individual. This Research Paper discusses multiple aspects of LGBTQ+ community.
There are different theories associated with being Homosexual, which are discussed
elaborately in the following paper. Analysing their Historical evolution and their
recognition in ancient texts and scriptures in India , the paper states reasons behind the
causes of Indian society becoming Homophobic. However, for the very first time this
community was recognised in India through the landmark judgment of National Legal
Services Authority v. Union of India , where Transgender People were recognised as
“Third Gender”. There are still nations which recognise homosexuality as a punishable
offence and may give death penalty as well. Not very long ago, homosexual relationships
constituted an offence in India as well under Section 377 of Indian Penal Code, 1860,
which was fortunately struck down by the Hon’ble Supreme Court of India through the
landmark Judgement of Navtej Singh Johar v. Union of India. The factors that facilitate
and inhibit their disclosure is another aspect that has been analysed. The legislative
Enactments and other laws enacted for their welfare , the challenges and the kinds of
discrimination faced by the community is discussed further. Even after the recognition of
Third Gender and Decriminalisation of Homosexuality, discrimination against this
marginalised community still persists and has a long way to go. There is a large part of the
society which is still Homophobic and there is a need for comprehensive laws to cater this
community. After all they have their Fundamental Rights too.
KEYWORDS: LGBTQ+ COMMUNITY, HOMOSEXUALS, THIRD GENDER, HOMOPHOBIC,
FUNDAMENTAL RIGHT
124 Invisible to Invincible : Narratives of Gender Justice

INTRODUCTION
“I am what I am, so take me as I am” - Johann Wolfgang von Goethe
DEFINING KEY CONCEPTS
Shakeshphere said “ What is in the name? - if we called Rose flower with any other
name what difference would it make to the characteristics of the flower, will it
smell any different or will it look any different.” This phrase is the perfect example
which explains that we identify a person or a thing with its fundamental quality
and not by its name. So why people with different sexual orientations not
provided with equal rights and opportunities. Human Rights is solely based upon
the idea that every human matters and they are all equal. They are entitled to the
equal opportunities and not be discriminated based upon their sexual preferences.
But before this is discussed in detail, it very important for us to gain clarity over the
widely accepted intials LGBTQ+ and other terms which are crucial to be defined as
they are the central concept used throughout this paper.
• Sexual Orientation: It refers to one’s sexual attraction towards another,
wether emotional or romantic. Categories include heterosexual, homosexual,
bisexual, pansexual, and asexual, among others.
• Gender Identity: A deeply held sense of one’s gender, which may or may not
correspond to the sex assigned at birth. This can include identities such as
transgender, non-binary, agender, and genderqueer.
• “L” stands for Lesbian , when a biological female has sexual orientation
towards another female , they are called Lesbians .
• “G” stands for Gay, when a biological male has sexual orientation towards
another male, they are called Gays.
• “B” stands for a Bisexual (or bi), a human has sexual orientation towards
both the genders, a male as well as a female.
• “T” stands for Transgender, It is an umbrella term for people whose gender
identity and/or gender expression differs from what is typically associated
with the sex they were assigned at birth. In simpler terms, these people
doesn’t feel associated with the gender they are born as. For example 3
• “Q” stands for Queer ( or Questioning) it is basically an umbrella term used
for people who are confused about their sexuality and are still exploring, they
are not sure if they feel like a man or a female from inside and also they are
unsure about their sexual orientation. Interestingly, earlier the word “Queer”
 Invisible to Invincible : Narratives of Gender Justice 125

was used as an insult towards a person. The dictionary meaning of the

word is strange or weird or peculiar. It was used as an insult for gay men or
those who didn't conform to traditional gender roles, particularly in the late
19th and early 20th centuries. In the 1980s and 1990s, LGBTQ+ activists
again began to reclaim the term as a symbol of empowerment and resistance,
leading to its current usage as an umbrella term for non-heterosexual and non-
cisgender identities2.
• Finally “PLUS OR + ” is used which undertakes everyone else. Meaning
thereby that all the gender identities and sexual orientations that letters and
words cannot yet fully describe, like Intersex3 , Asexual4 and many more.
• As per the report of Ipsos LGBT+ Pride 2021 Global Survey, 7% of the total
population says they are only or mostly attracted to the same sex, 4% equally
towards both sexes, 83% only to the opposite sex and 6% don’t know or
prefer not to say 5.
TRACING THROUGH THE HISTORY
When traced through the history of their existence , we found that the LGBTQ+
Community not only existed but was recognised without any controversy. It was
found that only after the British crown started to rule this country post 1700s , they
bought their ideologies of Church and imposed their ideologies upon India through
their laws.
ANCIENT TEXTS & SCRIPTURES
Much before this modern label “LGBTQ+” was even coined, ancient India has
recognised diverse gender identities and different forms of love. In ancient
scriptures like the Vedas, Mahabharata, Kama Sutra, and Puranas, we can find
many stories of gender fluidity and same-sex love. These stories show that such
identities were not just accepted but sometimes even celebrated in ancient and
medieval India. Our Indian Scriptures hold extensive examples of sex change and
alternate sexual identities. Although none of the texts clearly talk about same sex
love or gender fluidity , but there are numerous stories and tales in puranas which
prove that such behaviour was existent. This exploration is also important because
it shows that ideas we now label as "queer" have deep roots in Indian culture.
- Mahabharata, which is written by Ved Vyas, talks about the character of
Shikhandi, who was born as a female named Shikhandini but was raised a
male, but later changed into a male came to be known as Shikhandi. He
played an important role in the Battle of Kurukshetra War which ultimately
helped the Pandavas win the Battle over Kauravas. 6
126 Invisible to Invincible : Narratives of Gender Justice

- Texts of Ramayana, tells a story wherein Lord Rama along with Sita and his
brother Lakshman were leaving for 14 years exile into the forest, many people
disheartened with their leaving followed them to the river Saryu , lord Rama
requested all his brothers and sisters to return to their respective homes. After
his exile of 14 years when he returned to the same spot, he found a group of
people waiting for him at the same spot on the banks of river Saryu. Their
nails had grown dark, beard had grown, and all of them had grown old. To his
dismay he asked them why they didn’t return to their homes, in their reply
they said they were neither male or female, hence they waited for his return
for all these years. Lord Rama was overwhelmed with their loyalty and love ,
and blessed all those who waited for him with an auspicious power to give out
blessings on childbirth and to the newly wedded couple. This is still prevalent
in major part of our country , where transgender people come to our houses to
give Badhai and we in return honour them with gifts and cash. It is considered
a good luck to receive their blessings.
- In another instance from Mahabharata, Arjuna was cursed by Urvashi that he
will loose his Virility , since Arjuna denied all kinds of advances offered from
Urvashi. He said she was like a mother to him. She felt insulted and cursed
his masculinity. The curse was however reduced by Indradev to a period of
1 year of Arjuna's choice. 7 This however turned out to be a boon for Arjuna
because he had the opportunity to stay in disguise as a dance teacher and
changed his name to Brihannala during the one year of exile for the Pandavas.
During that one year he disguised as eunuch taught dance and music to the
daughter of King Virat of Matsya dynasty . Upon his knowledge of real
identity of Arjuna, King Virat requested Arjun to marry his daughter , which
was denied by Arjun because she was his student and considered her like his
daughter.
- According to Dharmasastra, which mostly emphasises upon Hetrosexual
relationships and marriages mainly for procreation, yet it has acknowledged
homosexuals relations, because texts of Manusmriti prescribe punishment for
those who indulged into Homosexual acts
- India as a country has been diverse and have had liberal attitude towards
sexual expression, the Kamasutra, for instance, mentions that lesbians, called
Swarinis, often married and raised children together.8
- The famous architecture of temple of Khajuraho built between 950 A.D. TO
1050 A.D. by the Chandela Dynasty, the Konark temple built in 13th Century
by King Narasimhadeva I of Eastern Dynasty , the cave of Ajantas and Ellora,
 Invisible to Invincible : Narratives of Gender Justice 127

all are the testament of India being much more sexually liberal than today.
They are all famous for its erotic sculptures, containing several depictions of
homosexual activity. It has been an on going debated from the Historians that
India before colonisation was much more liberal and accepting towards the
same sex relationships and gender fluidity than it is today.
MEDIAVEL INDIA
- The Ruler of Delhi showcase a long history of homosexuality during the
medieval India , one of the most famous speculation from the past is about
the love between Alauddin Khilji the 13th century ruler and his slave Mallik
Kafur ,As per Historian Nilanjan Sarkar, since the ruler and slaves were in
close-knit ties of loyalty , it is not unimaginable that they may have sexual
relationship.9
- Upon the deeper research medieval period ,and the presence of same sex love
, it was found thAT there are numerous examples which proves that
homosexuality did exist in those days as well. One well known example is
Sufi Saint Bulleh Shah , he is known to have fallen for his Murshid (spiritual
teacher) named , Shah Inayat . Many scholars also interpret his love both
spiritual as well as personal. His poetry showcases the idea of love and
gender identity which was different from the normal societal norms. He is
known to never follow the usual societal normals rather he celebrated love in
all forms. The words of his poem often reflect the idea of gender fluidity and
affection towards same sex.
- The founder of the Mughal Empire in India, Babur , in his memoir called
“Baburnama” has mentioned about his love towards boy called Baburi in
Kabul, where he mentions he was in love with a boy . Babur has mentioned ,
he had never felt like that before. Whenever Baburi would come near him, he
would feel shy and modest and couldn’t even finds words to talk to him.
Babur has mentioned he would feel flushed whenever he saw Baburi . He had
no courage to express his feelings to Baburi and he had no power over him
either. Babur has expressed his feelings in the following lines. 10
“May none be as I, humbled and wretched and love-sick; No beloved as thou
art to me, cruel and careless.”11
- Saint Shah Hussain, from 16th Century who was a famous poet , was not only
known for his poems but for the love he had for a boy. He had fallen in love
with a young Hindu boy named Madho Lal. This bond was beyond the limits
of then societal and religious norms. Ultimately they were given death
128 Invisible to Invincible : Narratives of Gender Justice

punishment. Their bodies were buried side by side. For the longest time, there
tomb was considered a symbol of enduring love and unity beyond boundaries.
12

- There is another travelogue of a European tourist. Johan Stavorinus, visited

Bengal in India during the 18th century when Mughals were ruling here. He
wrote in his work :
“The sin of Sodom is not only universal in practice among them, but extends to a
bestial communication with brutes, and in particular, sheep. Women even abandon
themselves to the commission of unnatural crimes.”13
The above texts means : “People commonly engage in what the Johan Stavorinus
considers unnatural sexual acts, including sex between people of the same gender
(referred to here as ‘the sin of Sodom’). He also accuses some of having sexual
contact with animals, especially sheep. Even women he claimed, were involved in
such acts.”
Although it is very important to note that the opinion of the European traveller was
based upon the cultural norms and anti sodomy laws of Europe and other colonial
narratives. His account does provide an evidence of same sex love and gender
fluidity. These are just the few examples which prove that same-sex love , not only
just existed in India but recognised. Same-sex love and romantic friendship have
flourished in India in various forms, without any extended history of overt
persecution.14 Few of these forms are erased from the history, some were highly
celebrated but nonetheless it is safe to say that such relationship did exist in India.
COLONIAL & POST- COLONIAL INDIA
British came to India, and bought with themselves their ideologies , undoubtedly
Britisher may have done few good things in India , but bringing Anti- Sodomy
laws, wasn’t one of them. During the 1800s in Britiain, a British feminist named
Josephine Butler was heading a campaign to ban prostitution. This campaign later
became famous with the name of “Purity Campaign”, wherein, homosexuality was
one of the issue. Because of this movement, British laws expanded to criminalize
not only anal sex but also oral sex and even masturbation15. The result of this
campaign were , instead of seeing these acts a criminal offence, people started to
view homosexuality as a disease and an immoral act. When British came in India,
along with their ideologies, they realised Indians were much more lenient towards
the same- sex love. In order to maintain their superiority the British brought in new
ideas about gender and sexuality as a part of British legal system which was not a
part of Indian traditions before colonization. Ironically, few European scholars,
 Invisible to Invincible : Narratives of Gender Justice 129

including some gay Orientalists like J.R. Ackerly and Alain Daniélou, found
freedom to express their homosexuality in India, which is yet another proof that
pre-colonial Indian culture was more accepting of same-sex love and did not treat it
as something shameful. For people who could not openly express themselves in
their own countries, found solace in India. One can only imagine how advanced
India was during earlier times. But British scholars and officials often described
Indian sexuality as dirty or immoral to justify their belief that Indians were inferior.
To establish their superiority they bought in Sec 377 in India Penal Code 1860 and
crimanlised all such actions and behaviours, forced their values upon Indians
culture and its people. This legal system gave British officials the power to control
how Indians lived, especially their sexual lives. Governor Macaulay, had the
opinion as “this was seen as a way to “civilize” Indians”. For others, like James
Stephen, it was a tool to control and punish Indians. 16
ROLE OF JUDICIARY IN SAFEGUARDING THE RIGHTS OF
LGBTQ+ COMMUNITY
Indian judiciary has played a remarkable role in shaping the rights for the
LGBTQ+ community.
* Naz Foundation v. Government of NCT of Delhi 17
On an unfaithful day of July 2001, Lucknow police arrested two men, along with
other nine men who were accused to spread awareness about safe sexual practices
which should be adopted. The police charged them of being homosexual . Naz
foundation, an NGO, filed a Public interest Litigation in Delhi High court, claiming
section 377 to be unconstitutional and it violated their fundamental rights. After the
long battle , finally in 2009 the Delhi High Court, passed the judgement and held
that section 377 indeed did impose unnecessary restriction upon the consenting
adults and did indeed was in violation of Fundamental Rights of an individuals.
Where on one hand it came as a relief for this marginalised community , on the
other hand , this decision was met with much critics and heated debates.
* Suresh Kumar Kaushal & Anr. v. Naz Foundation18
The Divisional bench of Hon’ble G S Singhvi, J. and Hon’ble S J
Mukhopadhaya,J. Overruled the judgement of Naz Foundation. This judgement
again bought the question relating legality of same sex relations to square one.
While many countries had already recognised the same sex relationships by 2013 ,
for example : USA , Mexico, Canada , most of the South American countries ,
China , Mongolia, Kazakhstan etc , the rights in our country were made illegal
again.
130 Invisible to Invincible : Narratives of Gender Justice

* National legal services authority of India (NALSA) v. Union of India19

As already discussed above, gender categorisation in our ancient society were not
limited to male and female, then existed the third gender called “Tritiya Prakriti”,
however after the codification of IPC, transgender rights were profoundly
degraded. They had to face numerous discrimination in every areas of lives. A
public interest litigation was filed by NALSA , which raised issued like due to their
non- recognition in the society, their fundamental rights were denied guaranteed
under Indian Constitution and claimed the trans-gender community to be
recognised as the Third Gender.
The Divisional bench constituting Hon’ble K.S.Radhakrishnan,J. & Hon’ble Sikri,
J., discussed the difference between “Psychological sex” and “Sex at birth” , also
acknowledged that transgender people played a huge role in medieval India during
the rule of Mughals and were well recognised and respected. Later when British
law came in they bought Indian Penal Code and Criminal Tribes Act in 1871,
which totally criminalised all the eunuch who performed publicly or cross dressed
in public. The Hon’ble court also cited the case of Queen Empress v. Khairati 20, a
eunuch transgender , who was arrested and charged under section 377 IPC on a
suspicion that he was a “Habitual Sodomite”. He was later on acquitted in appeal
21
. The Hon’ble court deduced that the British used laws as per their Whims and
Fancies . The Apex Court in its judgment recognised the Third Gender and
safeguarded their Fundamental Rights guaranteed to them in Constitution. It was
directed to the Government that this category be categorised as Socially and
Educationally Backward and the reservations be extended to them as well.
Following which Transgenders Persons ( Protection of Rights ) Act, 2019 was
enacted to protect the rights of transgenders and protect them from any sort of
discrimination, Wherein the right to self determination , education and healthcare
and equal rights in employment is provided to the transgender person.

* Justice KS Puttaswamy (Retd.) v. Union of India 22

Another remarkable judgment passed by the Apex Court which has directly
impacted the rights of this marginalised community. Bench of Nine Judges
Unanimously recognised Right to privacy as a part of fundamental right with this
landmark judgment the scope of Article 21 of the constitution is expanded. The
apex court through this recognised that sexual orientation and gender identities of
an individuals are an inherent part of one’s privacy and dignity. The Supreme Court
also acknowledged that any kind of discrimination based on sexual preferences was
against their right to dignity and lessened their self worth emotionally. The
 Invisible to Invincible : Narratives of Gender Justice 131

hon’ble court held that sexual orientations are the matter of individual privacy and
only that person has the sole right to decide that. The state should not have any role
to play in it.23
* Navtej Singh Johar v. Union of India 24
Now comes the one of the most famous and landmark judgments of the country,
this case decriminalised the old victorian law. The British by reformed their Sexual
Offences Act ,1967 which decriminalised Homosexuality , but it took us 71 years
to decriminalise. A Writ petition was again filed in the Apex court, which
challenged the constitutional validity of section 377 , the court in this judgment
held that any “two consenting adult have the right to engage in any kind of sexual
activities until it is behind the closed door”. And section 377 was in in fact in
violation of art 14, 15, 19 and 21. The section would still be applicable upon non -
consenting people. The apex court held that section 377 is vague and fails to create
a reasonable difference between what is “natural” and what is “unnatural”hence the
judgment of Suresh Kumar Kaushal v. Naz Foundation was overruled. Through this
judgment the apex court also recognised that “Being Homosexual is not a mental
illness either”, as against the contrary opinions of the majority.
25
* Supriyo @ Supriya Chakraborty vs Union Of India
With the ongoing pattern of recognition of rights of the community , this judgment
came as a disappointment for them. This case raised issues for right to marry for
LGBTQ+ Couples . In this landmark case, the petitioners were a queer couples who
asked the Hon’ble Supreme Court to recognize same-sex marriages under the
Special Marriage Act, 1954. They argued that denying this right violated their
constitutional rights to equality, dignity, and personal liberty. The Court
acknowledged the historical and cultural presence of queer relationships in India
and agreed that LGBTQ+ persons have the right to form emotional and sexual
unions.
However, the majority of the judges ruled that there is no fundamental right to
marry under the Constitution, and any legal recognition of same-sex unions must
come from Parliament, not the Court. The Court denied the plea of petitioner for
changing the language of Special Marriage Act, which can also include queers too,
and said it was not in the hands of judiciary of change language of an Act. Still, the
Court recognized the need to protect LGBTQ+ rights and directed the
government to form a committee to examine legal entitlements for queer couples
for example , shared bank accounts, nomination rights, and protection from
discrimination. Chief Justice Chandrachud dissented, arguing that queer unions
132 Invisible to Invincible : Narratives of Gender Justice

deserve full legal recognition and benefits. In short, while the Court did not legalize
same-sex marriage, it affirmed the right of LGBTQ+ people to form relationships
and demanded the government address the legal gaps affecting them.
FACTORS THAT CONTRIBUTE TO FACILITATE AND INHIBIT
THEIR DISCLOSURE
Disclosure also called “Coming out” in today’s culture, about ones identities and
orientations is never a one big event in a person’s life, instead it is a journey.
Disclosure is challenging both, internally and externally. Now, Why we are calling
this a journey, is because sometimes a person chooses to come out at different
times to different people. He may have acknowledged being gay at school or in
college but forbids from coming out to the family at the same time. Hence, it is a
journey. Earlier, people came out in their mid or late 20s but these days
homosexuals are coming out during their teen years.
FACTORS WHICH CONTRIBUTE TO INHIBIT THEIR DISCLOSURE :
1. Societal rejection , plays a positive as well as a negative role in an individuals
life. Constant fear of rejection, judgement and stigma attached from being
homosexual is one of the major reasons which withholds a person from
disclosing their identities.
2. Lesser employment opportunities : For a well educated person, who belongs
from the community, makes it difficult for him to find decent jobs only
because they are from LGBTQ+ Community.
3. Hate and atrocities against the community: LGBTQ+ Community is one if the
softer targets and are more oftenly targeted over petty issues. Community
being targeted if hate crime is not a news to anyone. There are people in India
who still think that it is a mental disease and refrain from interacting with
them . There are people who still think that these people have no right to live
in the society , and they are negatively affecting the society .
4. Cultural and religious beliefs : for those who are bought up on a conservative
environment and family culture, coming out is a difficult path to choose. Fear
of damaging the honour of the family prohibits an individual from coming
out.
FACTORS WHICH CONTRIBUTE TO FACILITATE THEIR DISCLO-
SURE :
1. One of the major help came from the judgment of Hon’ble Supreme Court in
Navtej Singh Johar v. Union of India , which decriminalised Section 377 of
 Invisible to Invincible : Narratives of Gender Justice 133

the Indian penal code and upheld that two consenting adults have the right to
have sexual relations behind closed doors. This by far one the biggest
milestones which has helped the gay community to finally accept their reality
to the world.
2. Societal acceptability in urban areas, as we discussed before, these days
people in their teen years are choosing to come out, this shift is seen mostly
because, today the society is changing and to some extent it is accepting
them as they are. Society plays a role in both, facilitating and inhibiting the
disclosure, for some, society can be the reason one comes out and visa versa.
3. Self acceptance and Clarity : when a person knows from within and has an
absolute clarity over their identities and orientations, they feel a lot more
confident and are most likely to come out to family and friends and accept of
who they are and who they like.
4. Supportive Family Environment : it is said, when your family stands besides
you, one can win any battle. In one of the interviews of Sushant DivgiKr a.k.a
Rani koHEnur , a popular Trans- woman said when his younger brother ratted
him out to their father about Sushant being gay, his father simply asked his
brother to mind his own business, and later on his father gently asked him if
he actually was gay and upon acceptance, his father’s reply was , “I Don’t
Have Much Knowledge about this, please forgive me if I ask you anything
and if it offends you, also I will read and gather more knowledge about the
same.” To have a family supportive is like already winning the half battle.
5. Strong LGBTQ+ Representation in media and Society : Movies like “Subh
Mangal Extra Savdhaan”, wherein a gay couple was shown may help the
people of community to come out , also Prince Manvendra Singh Gohil, he is
famous for his active work towards upgrading the LGBTQ+ community. He
is a prince and surprisingly he is the first from any royal families around the
world , who has come out and accepted his sexuality. Strong representations
like these may help an individual in coming out.
CHALLENGES AND DISCRIMINATION FACED BY THE LGBTQ+
COMMUNITY
Discrimination harms everyone , when a person is treated differently in same
situations based on race, caste , color , gender , or even upon their sexual
preferences , it does no good for any one. 26 Due to the lack of comprehensive laws
for the people of LGBTQ+ community, everyday they go through multiple
challenges and everyday they are fighting for their rights. For a country like India
134 Invisible to Invincible : Narratives of Gender Justice

which is advancing in technology but in the medical sciences as well, the mind set
of people needs a certain acceptability for this community as well. During the
COIVD-19, hate towards the community was seen on a very larger scale, those
who had not come out, were forbidding to tell their identities and orientations, due
to the multiple incidence of hate crime. Some of the very common challenges faced
by the community are :
1. Peer pressure : Be it a child or an adult, peer plays an important role in an
individual’s life and are more oftenly bullied during their school time or
during the college, which most usually leaves a scar upon their mind.
2. Depression : Because they have different sexual instinct , orientations or
identities, they are considered unnatural or weird , and they are discriminated
and bullied due too which they end up in severe depression, anxiety or other
mental disorder and sometimes this depression ends in suicides.
3. Most of the times people mistake Homosexuality, as a mental disease , to
reiterate the judgment of Navtej Singh Johar v. Union of India , wherein
Hon’ble Supreme Court has clearly stated that being Homosexual, is not a
mental disease under Mental Healthcare Act, 2017 , however when a women
declares herself as a lesbian or a bisexual, the family forces her to go through
corrective rapes with another man without her consent , they believe that such
things will correct their daughters.
4. Homosexual people cannot openly serve in the defence forces in our country
in any cadre. Although a bill was introduced in 2018, to amend the Army
Act, 1950 but haven’t passed yet.
5. Fear of family and Social seclusion : India is a huge country, with multiple
cultures , there are urban areas as well as a rural areas, non-acceptability and
social seclusion is far more bigger problem in rural India. For urban areas,
there is still a familiarity among the youth, but for rural areas, is a huge
problem. A person from village may also belong to LGBTQ+ Community,
but it is 100 times difficult for his to tell everyone about his reality, which
ultimately pushes them to either live a dualistic life or into depression and in
extreme cases, honour killings , if in case they decide to tell their identity.
6. LGBTQ+ people are often thrown to correction centers where they are
administered psychotic drugs as part of ‘corrective therapy for
Homosexuality’. Different kinds of drugs and psychotropic substance and
even electric shocks are given to them as a part of their correction regime.
The people there get addicted and upon their release , their sexuality doesn’t
 Invisible to Invincible : Narratives of Gender Justice 135

change but now they are addicted to drugs. The agonising torture received,
haunts them day and night and ultimately they find peace and solace in
drugs.27
7. There are not much organisation which are LGBTQ+ friendly, therefore it
gets difficult for them to find jobs and have decent survival , which forces
them to work as a sex worker. And when they do find decent jobs, the
employer are unable to create a safe and comfortable environment at work.
CONCUSION
The English law was reformed in Britain by the Sexual Offences Act, 1967, which
de-criminalised homosexuality and acts of sodomy between consenting adults
(above age of 21) after the report of Wolfenden Committee. But it took us 158
years to decriminalise the old victorian law, to count from our independence, it still
took us 71 years. General public may not realise but for those who belong to this
community , was a long journey and they still have a long way to cover, to obtain
from marriage rights to the adoption rights and inheritance rights , its a long route
to cover. All these, and to be accepted in the society. So many people took away
their lives due to depression and anxiety because they could not come out , many
lived a dualistic life in those 71 years, and many had to fight a long hard battle to
get these existential and recognition rights in India. Who should be held responsible
for the lost lives , for the atrocities that they faced and are still facing ? Why so
much of Homophobia ? Why so much hate towards this community ? Are they not
human enough to live the life they want ? In addition to the urgent requirement of
comprehensive laws to cater the community , it is of extreme importance that the
general public accepts them as a community. Accepts them who they are and how
they are. Only by constant efforts the awareness among people can be spread ,
general public need to know the history of this community, only then people can
become more acceptable towards the community.
References
1 NALSA V. UOI [2014] [2014] 5 S.C.R. 119
2 Veronica Zambon, “What does 'queer' mean?” ,MedicalNewsToday, October 26, 2020 , available on :
https://www.medicalnewstoday.com/articles/what-does-queer-mean; website last visited on 9/3/2025
3 “INTERSEX” is an adjective used to describe a person with one or more innate sex characteristics,
including genitals, internal reproductive organs, and chromosomes, that fall outside of traditional
conceptions of male or female bodies. In simple words , it is used for people born with physical
characteristics that don’t fit in societal terms of male and female.
4 “ ASEXUAL” is a person who does not experience sexual attraction towards any gender.
5 Ipsos, “LGBT+ Pride Global Survey Report of 2021” available on:
https://www.ipsos.com/sites/default/files/ct/news/documents/2021-
06/Ipsos%20LGBT%2B%20Pride%202021%20Global%20Survey%20-%20Global%20Release.pdf;
website last visited on 10/3/2025
136 Invisible to Invincible : Narratives of Gender Justice

6 Authors : Ms. Aswathy Nair, Dr. Devashree Awasthy, Ms. Aarzoo Bishnoi, Title : “LGBTQIA+ Rights:
Progress And Challenges In India” Vol. 29, Issue 11; available on :https://www.iosrjournals.org/iosr-
jhss/papers/Vol.29- Issue11/Ser-7/F2911073540.pdf ; website last visited on 12-april-2015
7 Author : Kalra B, Baruah M, Kalra S; Title: “The Mahabharata and reproductive endocrinology” ; Indian J
Endocrinol Metab. 2016;20:404. Available on DOI: 10.4103/2230-8210.180004. ; website last visited on -
7/April/2025
8 see supra note 8
9 Sara Sohail, title : “Homosexuality in medieval India” author :, available on
https://madrascourier.com/insight/homosexuality-in-islamic-india/ ; website last visited on 31/march/2025;
10 Ibid
11 Title : Greek Love Through the Ages ; available on : https://www.greek-love.com/india-central-
asia/turkistan/baburnama-pederasty; website last visited on : 5/June/2025
12 Ibid
14 Author : Vanita, Ruth, Title: ”Homosexuality in India: Past and Present" (2002). Global Humanities and
Religions Faculty Publications. 5. Available on : https://scholarworks.umt.edu/libstudies_pubs/5 ; website
last visited on 11/April/2025
15 Author : Lauren Ruhnke, Title : “Constructing Native Homosexuality in British India; available on
Maneto”; The Temple University Multi-Disciplinary Undergraduate Research Journal | 1.1 ; last visited on
: 11/April/2025
17 Naz Foundation v. Government of NCT of Delhi (2010) CRI. L. J. 94
18 Suresh Kumar Kaushal & Anr. v. Naz Foundation [2014] AIR 2014 SUPREME COURT 563
20 Queen Empress v. Khairati - (1884) ILR 6 All 204
21 NALSA V. Union of India Judgment - https://indiankanoon.org/doc/193543132/
22 Justice KS Puttaswamy (Retd.) v. Union of India- [2017] AIR 2017 SC 4161
23J ustice KS Puttaswamy (Retd.) v. Union of India : available on : https://lawbhoomi.com/justice-k-s-
puttaswamy-retd- anr-v-union-of-india-
ors#:~:text=One%20of%20the%20most%20notable,consensual%20homosexual%20acts%20between%20ad
ults; website last visited on 13/April/2025
BIBLIOGRAPHY
BARE ACTS / CONSTITUTION REFERRED
1. Constitution of India ;
2. Indian penal code,1860 ;
3. The Transgender Persons (Protection of Rights) Act, 2019;
CASES REFERRED
1. Nalsa V. Uoi [2014] 5 S.C.R. 119
2. Navtej Singh Johar V. Union Of India [2018], Air 2018 Sc 4321
3. Supriyo @ Supriya Chakraborty Vs Union Of India [2023] 2023 Insc 920
4. Queen Empress V. Khairati - (1884) Ilr 6 All 204
5. Justice Ks Puttaswamy (Retd.) V. Union Of India- [2017] Air 2017 Sc 416
6. Naz Foundation V. Government Of Nct Of Delhi (2010) Cri. L. J. 94
7. Suresh Kumar Kaushal & Anr. V. Naz Foundation [2014] Air 2014 Supreme Court 563
ARTICLES REFERRED
1. Author: Rachit Sharma, Title “Rights of LGBTQ in India and the Struggle for Societal Acceptance” :
[Vol. 4 Iss 3;]:International Journal of Law Management & Humanities; pg 22;
 Invisible to Invincible : Narratives of Gender Justice 137

2. Title “SEXUAL ORIENTATION & GENDER IDENTITY” ; available on:

https://ijrcenter.org/thematic-research-guides/sexual-orientation-gender-identity/; website last visited on
20/April/2025;
3. Author : Lauren Ruhnke, Title : “Constructing Native Homosexuality in British India; available on
Maneto”; The Temple University Multi-Disciplinary Undergraduate Research Journal | 1.1 ; last visited on
: 11/April/2025;
4. Author : Vanita, Ruth, Title: ”Homosexuality in India: Past and Present" (2002). Global Humanities and
Religions Faculty Publications. 5. Available on : https://scholarworks.umt.edu/libstudies_pubs/5 ; website
last visited on 11/April/2025;
5. Author : Sara Sohail, title : “Homosexuality in medieval India” author :, available on
https://madrascourier.com/insight/homosexuality-in-islamic-india/ ; website last visited on 31/march/2025;
6. Author : Deepanshi Mehrotra, Title : “The Pre-Colonial History of Homosexuality in India: Why Love Is
Not Western” ; available on https://www.lawctopus.com/academike/history-of- homosexuality-in-india/;
website last visited on : 20/April/2025;
7. Ms. Aswathy Nair, Dr. Devashree Awasthy, Ms. Aarzoo Bishnoi, Title : “LGBTQIA+ Rights: Progress
And Challenges In India” Vol. 29, Issue 11; available on
:https://www.iosrjournals.org/iosr-jhss/papers/Vol.29-Issue11/Ser-7/F2911073540.pdf ; website last
visited on 12-april-2015;
8. Veronica Zambon, “What does 'queer' mean?” ,MedicalNewsToday, October 26, 2020 , available on :
https://www.medicalnewstoday.com/articles/what-does-queer-mean; website last visited on 9/3/2025;
9. Ipsos, “LGBT+ Pride Global Survey Report of 2021” available on:
https://www.ipsos.com/sites/default/files/ct/news/documents/2021-06
Ipsos%20LGBT%2B%20Pride%202021%20Global%20Survey%20-
%20Global%20Release.pdf; website last visited on 10/3/2025;
10. Kalra B, Baruah M, Kalra S; Title: “The Mahabharata and reproductive endocrinology” ; Indian J
Endocrinol Metab. 2016;20:404. Available on DOI: 10.4103/2230-8210.180004. ; website last visited on -
7/April/2025;


138 Invisible to Invincible : Narratives of Gender Justice

Equity and Adequate Justice: A Distant Dream For Man

Subidya Vedasnata
2nd Year B.A. LL.B. University Law College Utkal University
Aditi Tanaya Samal
2nd Year B.A. LL.B. University Law College Utkal University
ABSTRACT
Beyond Gender: Navigating the intersectionality of Justice in India has always been a
pivotal force affecting the justice delivery system in India. While, gender justice plays a
crucial role in moulding the societal transformation and addressing needs of the
contemporary world, access to justice varies due to factors such as discrimination based
on one’s sexual orientation, creed, social, caste system and diverse reasons that goes
unnoticed often.
Admist numerous of factors affecting the justice delivery system, one of the crucial factors
that’s affecting the justice delivery process regarding the cases of Reproductive Rights and
Bodily Autonomy is the absence of comprehensive laws and their implementation in line
with current societal needs.
Reproductive rights and bodily autonomy have emerged as a key component of the Human
rights along with fundamental components of human rights and are central to discourse in
India. The 1995 International Conference on Women in Beijing recognised reproductive
right as a fundamental human right. Furthermore, the Hon’ble Supreme Court of India has
acknowledged reproductive rights and bodily autonomy under Article 14 and Article 21 of
the Indian Constitution.
This paper critically examines the gaps affecting the reproductive rights due to various
intersectionality’s. It also explores the homogenized view of ‘women’ in context of
reproductive rights and limited involvement of men in reproductive decisions. Additionally,
the paper focuses on the significant gap between the legal provisions like The Medical
Termination of Pregnancy Act, 1971 and the actual access experienced by various sections
of the public, both in rural and urban areas.
By integrating legal and socio-economic perspectives, this paper advocates for a
comprehensive framework that emphasizes intersectionality, encourages male
participation in reproductive decisions, bridging the gap between law and practice without
compromising the fundamental principle of bodily autonomy.
Key Terms: Intersectionality, Gender Justice, Reproductive Rights, Bodily Autonomy,
Fundamental Rights, Socio-Economic Factors
INTRODUCTION
An individual’s reproductive rights, as well as bodily autonomy, is at the heart of
 Invisible to Invincible : Narratives of Gender Justice 139

someone’s freedom and dignity. In their essence, these rights are the ability of the
individual to make selection about his health and his life regarding reproductive
rights without coercion, discrimination, and violence. It includes family planning
services as well as access to safe and legal abortion, maternal healthcare and rights
to determine whether and when to become pregnant. But these rights contribute not
only to physical well-being, but they are intimately tied up with socio-political and
economic empowerment for women and gender diverse persons1.
Reproductive rights , in general, been recognized as human rights only recently
around the world. During the 1994 International Conference on Population and
Development (ICPD) in Cairo2 and the 1995 Fourth World Conference on Women
in Beijing3, reproductive rights were placed on the map as an inalienable part of
human dignity, gender equality and sustainable development. Respective from the
international bidders, these commitments established that reproductive freedom
was not just a private choice but a public issue whose implementation rested with
the states, and of course, the extent of solidarity among the states.
In the Indian context, the evolution of reproductive rights has taken its own unique
course influenced by the Indian’s socio-cultural diversity, colonial legacy,
population control policies and the constitutional values4. Though India launched
what is thought to be the world’s first national family planning program in 1952 5,
its program was, early on, skewed not toward reproductive freedom but rather
toward population control. As time progresses, the understanding of reproductive
rights has expanded to an extent through judicial interpretations. This includes
Suchita Srivastava v. The Supreme Court of India6 took landmark decisions.
Chandigarh Administration and Justice K.S. Puttaswamy v. In India7, this is
affirmed by the Union of India, that reproductive autonomy as a part of the right to
privacy and liberty found under Article 21 of the Constitution.
While it is clear that many legal and policy interventions have been progressive
over the course of the last several decades, achieving reproductive rights for
women and gender diversified people in India is still fraught and the pernicious
systems that remain are myriad. These barriers are intersectional, however, and so
access to reproductive rights is far from uniform: Instead, they are deeply stratified,
depending on one’s rank on the caste hierarchy or on the income scale, their ability
to lead lives that are politically articulated as masculine or feminine, their
geographic location, or their physical disability8.
Examination of these complexities and of reproductive healthcare in India, within
and outside the formal legal sphere, is the proposal of this research paper to use an
intersectional lens. Giving an unsurpassed overview of the project that has been
140 Invisible to Invincible : Narratives of Gender Justice

undertaken so far in India to realise bodily autonomy and reproductive justice, it

argues that an integral reform of laws and policies alongside a social transformation
for bodily independence and reproductive health rights for all women is the need of
the hour9.
Navigating through its intersectional boundaries of justice remains a critical issue
that has been studied for many years, especially reproductive rights, questions of
bodies and autonomy, in the context of India10. While gender parity remains high
on the conversation around equitable access to justice, justice delivery is not only
shaped by gender inequality; caste, class, creed, sexual orientation, socio-economic
status, and race are other factors that determine access to justice. However, despite
the reality that these dimensions undermine the experiences of marginalisation and
exclusion of individuals, they often go without speaking into dominant legal and
policy narratives11.
Due to technological advancement and scientific progress, and quite in accordance
with the rapidly changing society, marginalized groups do not hesitate to applaud
legal reforms and policy layouts which can ensure protection of their groups. But
this rarely shows the systemic failures in implementation as well as the lived
realities of people who still suffer structural oppression. Areas concerning
reproductive justice highlight the urgent need to adopt a more nuanced and
intersectional method because of the gaps between law and practice12.
The objective of this paper is to look at the intersectional justice work in India,
especially in the connection of reproductive rights and autonomy of the body. The
aim is to analyse and draw lessons from socio-legal impediments to equitable
access to reproductive healthcare, the almost negligible involvement of men in
reproductive decision making, as well as how the current frameworks may inveigle
against pre-existing inequalities. In this paper, the investigation of those issues
serves as a reply to a more inclusive, intersectional, and rights-based approach
which, however, should not neglect the core principle of bodily autonomy.
1. THE SYNERGISTIC EFFECT OF CASTE, GENDER AND SEXUALITY
ON ACCESS TO HEALTHCARE
Right to health is a very important aspect of human dignity and govt is responsible
for ensuring that the right is exercised and guarded properly for everyone
irrespective of caste, creed, sex, race, religion, socio-economic status. Right to
health is a fundamental right conferred by Article 21 by way of judicial
interpretation which ensures the right to life and personal liberty13. Right to health
consists of all the choices a human being can make about his choice of health that
would be of greatest utility for him. It encompasses access to proper healthcare
 Invisible to Invincible : Narratives of Gender Justice 141

facilities, necessary medicines, clean water and air, improved sanitation facilities at
public places and other such elements that have an impact on a human being's
health14. Part IV of the constitution under DPSP (Directive Principle of State
Policies) also ensures social and economic justice to the citizens15. Thus, it has an
impact on the policies and rights to some extent on healthcare. But the access to
health facilities and proper exercise of rights are falling behind much more than we
can imagine and there are enormous numbers of factors involved impacting it, e.g.–
stratification of our society by caste, gender and sexuality. The caste
discriminations, gender biases and other factors are facilitating the improper
exercise of the fundamental wrong. The general public is being deprived of basic
health facilities in government. along with private hospitals, the lower castes people
are being treated differently from the higher ones, they are being provided better
facilities than the lower ones 16because people think in our society. Women patients
and women belonging to lower sections of the society are also being exploited in
the hospitals17. People cannot get access to basic medicines because the fees
charged by the shopkeepers are very high. People belonging to lower sections of
the society are being discriminated against when they are gaining access to public
toilets and sanitation facilities, because of their poor income they cannot get access
to clean water which is a very basic requirement.18 We are indeed in the very
developing phase of our country but the atrocities concerning caste, sex, creed and
others are still prevailing in our society to a large extent.
2. THE DIFFERENCE BETWEEN STATUTORY AND CONSTITU-
TIONAL RIGHTS AND THEIR IMPLEMENTATION
Numerous laws for each and everything in our place but their actual life utility is
out of sight range. It looks good on paper, but it actually does not apply. We too
have our own laws on the subject of reproductive rights and bodily autonomy in our
country and implementation thereof is not complete. Prevention of Child Marriage
Act, 200619, The Medical Termination of Pregnancy Act, 197120, provisions
provide some answer to the matter of child marriage and abortions, Pre-Conception
and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 199421, Rights of Persons
with Disabilities Act,201622, Maternity Benefit Act, 196123 and other such acts
exist which protect the lawful exercise of Right to health by all and especially
women. However, the implementation is very less compared to the number of the
acts present right now. Child marriage is still being in practice in the remote areas,
forced abortion are being taken place which is ultimately affecting the health of the
women and in many cases leading to the death of the women, unprotected and non-
consensual sex is practiced at a large scale leading to various difficulties for the
male as well the female, female foeticide is still being practised without getting
142 Invisible to Invincible : Narratives of Gender Justice

noticed by the government24, people with disabilities are facing numerous issues
when they are accessing to public hospitals, they aren’t being provided with enough
facilities that government has made for them. Thus, there is a very wide gap
between the constitutional and statutory versus their implementation.25 The
government should work through grass root level so that the given laws and rights
can be enforced effectively on poor people and only development can take place
from top to bottom.
3. BEYOND THE BINARY: RECLAIMING GENDER DIVERSITY IN
REPRODUCTIVE RIGHTS
Gender diverse identities remain invisible through all social structures in India from
reproductive policy and healthcare system to every other aspect. The former
historical conditions of India based their policies on cisgender and heteronormative
norms which primarily protected women who suffered under patriarchal systems.
Society's restrictive laws focused on binary gender identities cause negative effects
on transgender, intersex, non-binary and non-conforming persons outside this
definition. The reproductive policies and healthcare facilities exclude gender
diverse identities through a discriminatory approach that sustains an existing large
gap.
The 2014 NALSA ruling granted transgender persons "third gender" status while
granting them their constitutional rights26 although the Transgender Persons
(Protection of Rights) Act, 201927 acknowledged similar rights yet failed to
illuminate the reproductive rights framework for transgender individuals.
This exclusion has numerous effects on these individuals , for example trans men
who retain female reproductive organs may require gynaecological services but
face various difficulties while accessing to these services , access to essential
services like hormone therapy and surgeries for transgender people is limited, with
some facilities refusing to provide these services , trans women are facing issues
respect to their reproductive health and rights , lack of access to proper healthcare
and higher rates of social exclusion rates affecting the mental health of the
individuals leading to depression , anxiety , substance abuse leading higher suicide
rates , the cost of healthcare is also higher nowadays which is why being
inaccessible to marginalised people. Several health insurance policy providers fail
to provide sufficient services for transgender patients especially for procedures that
align with their gender identities28. The medical facilities in hospitals are not
transgender-friendly while staff members and societal groups provide minimal
support along with many other contributing factors. Indian laws exist to recognize
trans people but they lack sufficient coverage for the diverse needs of different
 Invisible to Invincible : Narratives of Gender Justice 143

population sections. Although the Supreme Court of India has publised multiple
important rulings about trans rights and their integration into mainstream life and
school access and job opportunities the court did not adequately address the
reproductive freedoms of these individuals29. Laws on dignity together with privacy
emerged from the court however they still have gaps in application across various
spheres. Transgender people require actual laws about their reproductive rights as
well as the complete
4. MISSING HALF OF THE CONVERSATION: MEN, MASCULINITY
AND REPRODUCTIVE ROLES
The laws regarding the reproductive rights and bodily autonomy are mainly women
centric in our country , but we are overlooking the crucial role played by male
partners in reproductive decision-making processes . And these pre conceived
notions of reproductive rights being women centric affecting the health and of the
women to a large extent . Hence this practise needs to get eliminated in order to
create a secure and healthy environment and doing healthy practices which would
be beneficial for both .
Traditionally gender specified roles have been assigned to males as well as female,
female being the caretakers and rearers and male being the bread earners and
decision makers yet they aren’t being involved in the most important decision
making process i.e. regarding the reproductive decisions which encompasses
whether and when to have a children, age gap between children , the use of various
reproductive technologies and practices like contraception, abortion, Assisted
Reproductive Technology (ART) and many such . There are various initiatives
taken by government to engage people in this process such as National Family
Planning Programme,195230 which aims to empower individuals and families to
make active choices about reproductive health and family size. It primarily focuses
on achieving population stabilization, improving maternal and child health, and
promoting reproductive health. It has evolved over time, incorporating various
strategies and approaches, including increasing access to contraceptives, promoting
male participation, and strengthening community-based health services.
1. Mission Parivar Vikas: This program focuses on improvising access to
contraceptives and family planning ways in high-fertility districts, particularly
in seven states and six North-Eastern states.31
2. Expanded Contraceptive Choices: The program offers a variety of
contraceptive methods, including condoms, combined oral contraceptive pills,
emergency contraceptive pills, Intrauterine Contraceptive Devices (IUCDs),
and sterilization. New contraceptives like Injectable Contraceptives (Antara
144 Invisible to Invincible : Narratives of Gender Justice

programme) and Centchroman (Chhaya) have also been added.32

3. Compensation Scheme for Sterilization Acceptors: This scheme provides
financial compensation to beneficiaries and service providers for the loss of
wages caused due to sterilization.33
4. Post-pregnancy Contraception: Post-partum Intrauterine Contraceptive
Devices (PPIUCDs) and Post-partum Sterilization (PPS) services are offered
to women after childbirth.34
5. Awareness Campaigns: The government conducts awareness campaigns,
including "World Population Day Campaign" and "Vasectomy Fortnight," to
promote family planning and service delivery.35
6. Home Delivery of Contraceptives: ASHAs (Accredited Social Health
Activists) deliver contraceptives at the doorstep of beneficiaries.36
7. Family Planning Logistics Management Information System (FP-LMIS): This
helps to manage the supply and distribution of family planning commodities
at all levels of health facilities.37
8. Fixed Day Services: States have implemented fixed-day family planning
services for IUCD and sterilization to ensure regular and accessible services.38
9. Training and Support: Training is provided to health professionals, including
RMNCH+A counselors, to ensure quality family planning services.39
10. Focus on Quality: The government emphasizes on quality in family planning
services by establishing Quality Assurance Committees at state and district
levels.40
In India, female sterilization is the most commonly used contraceptive method,
with about 38% of women relying on it. According to the NFHS-5 (2019-2021),
37.9% of women used sterilization, a slight increase from the 36% reported in
NFHS-4 (2015-16)41. Male sterilization, while a safer and easier option, remains
relatively uncommon, with only 0.3% of women reporting that their male partners
had undergone the procedure42, according to the National Institutes of Health
(NIH). These data clearly show how large gap is among the male and female in the
reproductive sphere . Women are more prone to get affected rather than the men.
And men showing less engagement in the reproductive decisiveness roles due to
various factors such as their patriarchal mindset, they are being taught since
childhood that they are superior, their role as a male is to earn for the family, baby
making is a female thing as a result they are being deprived of the knowledge and
awareness they require to make fruitful and healthy decisions considering all the
factors. Lack of sex education among the male is also an additional factor which
 Invisible to Invincible : Narratives of Gender Justice 145

affects the involvement of men in decision making process.

To overcome this gap there is a great need to educate and aware male as well as
female regarding the reproductive roles, rights, laws, programs and many more.
The males need to come forward and take active participation in the decision-
making process, they also need to change their mindset of having pre conceived
notions of gender specified roles . Policies also need to engage male in
reproductive health decisions and choices, male centred contraceptives, health
facilities etc. Hence appropriate measures are needed to be taken to overcome this
specific challenge.
5. WHEN RIGHTS MEET REALITY: SOCIO-ECONOMIC BARRIERS To
HEALTHCARE ACCESS
As rightly said " WHEN RIGHT MEETS REALITY' we realize how things are
totally different on paper and in real practice. Even though there are n number of
laws and progressive directions by the judiciary and legislature on reproductive
health, choices, sanitation etc. there are huge number of people in India who are
still not getting access to those services.
Economic disparity between different sections of society is a significant factor in
determining the availability of services. Though government hospitals are free,
there is lack of resources and therefore the following shortages of hospital beds,
lack of free drugs, lack of ventilators, and compromised quality of services. Or, the
ability to avail private healthcare is a prerequisite of significant money, which the
majority cannot afford 43. The system renders the access of individuals to health and
quality facilities, which is a basic right for all, a luxury for the majority. Social
exclusion of individuals on the basis of caste, creed, gender, race, ethnicity, and
religion only adds the restrictions imposed upon access to healthcare.
People from various sections are treated differently till date based on the existing
taboos and beliefs. especially people like Adivasi and Dalit are subjected to
extreme discrimination while seeking healthcare facilities44, they are not given
hospital beds, at times untouchability is followed by the supporting staffs, verbal
abuse, long waiting time and many other such means through which they are
discriminated.
Most women may be facing issues of communicating their issues and
understanding what the doctor is prescribing or asking them to do due to language
issues and unawareness and illiteracy among them making the issue even more
challenging for them. Inadequacy of infrastructure is also one of the factors
affecting the access to healthcare facilities to a great extent.
146 Invisible to Invincible : Narratives of Gender Justice

There are less number of hospitals in a state or district which is not sufficient in
most times when there is greater number of emergency cases, hospitals in rural area
are still lacking having a suitable building for hospital, procurement of modernised
and scientific medical equipment’s and machineries is a far dream to them45,
hospitals are depending on a single doctor and few support staffs in the distant
areas, there aren't sufficient quality doctors, there are less number of doctors in the
hospitals and when they are going off from the duty many times patients remains
unreached. Thus, there is urgent requirement of good infrastructure, updated
equipment and machineries, recruitment of educated doctors and staffs to face the
problem at every level. These problems cannot be solved through legal and
legislative measures. Government needs to make the act implemented in real life it
should not be just papers and pens only.
People should be educated, informed and have access to information regarding the
healthcare centres they are receiving, the reproductive choices they can exercise,
the autonomy of their bodies and especially people from economic disadvantageous
sections and rural background they should be made aware of these policies and
access they have. The government should promote programs to educate and
enlighten people about the health rights, healthy choices, reproductive literacy and
other such facilities and people also should assist and co-ordinate with the
government. to eliminate the problem and create a healthy people society.
6. THE CALL FOR INCLUSIVE JUSTICE FROM GLOBAL AND
INTERSECTIONAL PERSPECTIVES
The way of ensuring reproductive justice in India needs to keep changing and
embracing the beauty of intersectionality in a positive manner and enacting laws
accordingly. Those laws should encompass the intersection of identities, power
dynamics and barriers to reproductive experiences, substantive approach and
understanding of the poor people and it should not fail to encompass measures to
address the root causes of these problems like economic inequality, infrastructure
shortfall, political disparities and most importantly the social stratification on the
base of caste, creed, sex, race, ethnicity, religion and other grounds.
There are certainly many frameworks that seek to address these challenges both
globally and nationally, including
1. The 1994 Cairo International Conference on Population and Development
(ICPD)46 set the agenda for reproductive rights by emphasizing the right of all
people and couples to have informed and controlled choices on how many
children to have, the spacing of the children, and the timing to have children ,
and to have access to data and resources to make these choices a reality.
 Invisible to Invincible : Narratives of Gender Justice 147

2. The Convention for the Elimination of All Forms of Discrimination against

Women (CEDAW)47 recognizes women's autonomy over reproductive
choice, i.e., having approach to proper information, education material, and
related services.
3. Universal Declaration of Human Rights48:
While reproductive rights are not explicitly referenced, the Universal
Declaration of Human Rights provides the foundation for the rights in the
underlying principles of equality, non-discrimination, and the right of privacy.
4. International Covenant on Civil and Political Rights (ICCPR)49:
The ICCPR safeguards the right to privacy, which involves reproductive
choices, such as the right to decide to have children or not.
5. World Health Organization (WHO) Reproductive Health Strategy50 :
The World Health Organization stresses sexual and reproductive health as a
universal human right, in addition to being an important part of general health
and well-being.
But these frameworks have to be made accessible and they come into play better by
addressing the problems of the needy, the problems of the marginalized sector must
be addressed in the right manner, they must be educated regarding their rights and
responsibilities towards their health and choices, women must be made aware
regarding the healthy reproductive habits, available methods of contraception etc.
There is a need for participatory approach which includes various stakeholders –
particularly those sections which are excluded from decision in the past such as
rural women, economic disadvantaged people, religious minorities, Harijans,
LGBTQIA+, person with disabilities in formulating laws ang programs which
would turn to be most beneficial for them.
Legislative reforms must continue to change in line with the changing requirements
of the society and must go on record to specifically acknowledge the reproductive
rights of binary and non-binary individuals, marginalised sections, unmarried,
adolescents, and other such groups. Educational intervention must also be done to
eliminate such issues by conducting awareness campaign about reproductive rights
and choices, about the methods of contraception available and modernised
reproductive methods available for the infertile couples such as Assisted
Reproductive Technology (ART), surrogacy, IVF and others. Lastly, inclusive
justice requires a response to the intersectional needs, honouring the barriers and
reversing the unequal treatment and laws.
148 Invisible to Invincible : Narratives of Gender Justice

LITERATURE REVIEW
Reproductive rights and bodily autonomy are essential parts of the human rights
discussion , especially within the Indian legal and socio-political framework.
However, access to these rights is not equally distributed across different social
strata. Using an intersectional lens- focusing on how, caste, class, gender identity,
religion, and geographic location intersect- provides a nuanced understanding of
the inequities in the justice delivery system.
1. Intersectionality and Access to Justice
The concept of ‘Intersectionality’, came from Kimberlé Crenshaw, were she
highlights how individuals with multiple marginalized identities experience
compounded forms of discrimination. 51In the Indian context, intersectionality is
particularly relevant due to the presence of systemic casteism, patriarchy, and
socio-economic disparities. Women from Dalit and Adivasi communities, and
LGBTQIA+ individuals, for example face structural violence and institutional
apathy in accessing reproductive healthcare. 52Indian scholars like Nivedita Menon
and Upendra Baxi have explored how such marginalized identities experience
legal frameworks differently, pointing to systemic exclusions in the justice delivery
system.53
2. Legal Frameworks and Judicial Interpretation
India’s reproductive rights framework is rooted in several legal instruments,
including the Medical Termination of Pregnancy (MTP) Act,1971, and judicial
interpretation under Article 14 and 21 of the Indian Constitution. In the landmarks
case of Suchitra v. Chandigarh Administration (2009), the Supreme Court
emphasised the right to reproductive choices as an essential part of the personal
liberty under Article 21.54
Landmark Cases
 Devika Biswas V/s Union of India (2016)
In this public interest litigation, a health rights activist challenged the State
Government’s practice of subjecting women (and occasionally men) to sterilization
procedures in dangerous and unsanitary sterilization camps where informed consent
is often not obtained from patients prior to conducting the procedures.
The Supreme Court found these practices – focused mainly on poor, rural women –
to be in violation of the right to health and more specifically reproductive rights,
two key components of the right to life under the Indian Constitution.
The Court held that there had been a violation of Article 21 of the Constitution and
 Invisible to Invincible : Narratives of Gender Justice 149

stated that right to health including reproductive rights was an integral part of
Article 21. Further, the right to make a choice in relation to sterilization free from
any coercion was also guaranteed under the Constitution.55
 KS Puttaswamy V/s Union of India (2017)
This landmark judgement recognised the right to privacy as one of the fundamental
rights under Article 21 of the Indian Constitution, reinforcing the foundation for
Bodily Autonomy and reproductive rights.56
 B.K. Parthasarathi V/s Government of Andhra Pradesh (2000)
The Andhra Pradesh High Court upheld a government policy regarding the
regulation of assisted reproductive technologies, emphasising the need for ethical
oversight and protecting women’s autonomy. 57
3. Homogenization of ‘Women’ and Gender Assumptions
The legal and policy framework concerning reproductive health in India have
historically been centered on a cisgender, heterosexual conception of womanhood,
thereby excluding the experiences and needs of transgender and non-binary
individuals. 58Narrain and Bhan (2005) argue that queer and trans bodies are often
rendered unintelligible within frameworks that prioritize normative gender and
sexuality constructs.59
Further, Pooja Sood (2017) highlights that transgender individuals are frequently
subjected to medical neglect, inadequate health infrastructure, and the absence of
proper rights- based health education, leading to a broader invisibilization of their
reproductive health needs.60
4. Male Participation and Gender Norms
The discussion on reproductive rights in India has often neglected the role of men.
Patriarchal social structures place the burden of contraception and reproductive
responsibility extensively on women, while rarely engaging men in awareness or
accountability.
Scholars like Satish B. Agnihotri (2000) have highlighted how such patterns and
practices are embedded in broader gender imbalances and cultural narratives that
define male roles in familial and reproductive settings. 61The Population
Foundation of India (PFI) also emphasizes that a lack of targeted interventions for
men has contributed to their passive role in reproductive health initiatives.
5. Socio-Economic Realities and Health Infrastructure
Legal Provisions let alone are not sufficient without accessible and quality
150 Invisible to Invincible : Narratives of Gender Justice

healthcare infrastructure. In rural and marginalized urban communities, poor

healthcare facilities, shortage of trained professionals, and socio-cultural stigma
often deter individuals from seeking reproductive care
6. Reimagining Justice through an Intersectional Lens
International Frameworks such as the 1995 Beijing Declaration and the concept of
reproductive justice- developed by Black feminists in the US- offer valuable
perception. Reproductive justice integrates rights with social, political, and
economic conditions necessary to exercise those rights. 62
CASE STUDY: Gaps Between Law and Life: Case-Based Insights into
Reproductive Health in India.
 Dalit Women and Maternal Health in Uttar Pradesh63
Human Rights Watch’s 2010 study on caste-based discrimination in Uttar
Pradesh’s maternal health system singled out Dalit women’s experiences. In
government hospitals, women were reported to have been subject to verbal abuse,
denial of treatment and neglect, especially under the scheme of Janani Suraksha
Yojana. Repeated discrimination in maternity care resulted in delayed care and
poor maternal health.
 X v. Principal Secretary, Health and Family Welfare Department (2022)64
In this landmark Supreme Court case, the Court went beyond the Act of Medical
Termination of Pregnancy (MTP) allowing unmarried women to avail its services.
Reproductive autonomy is limited to no one, and marriage status is not a
determining factor, the judgment put forth. The way of interpretation by the Court
was to enable equality and non-discrimination in approaching reproductive
healthcare.
 Transgender Persons and Healthcare Access (ICJ, 2019)65
Despite the NALSA v. Union of India (2014)66 ruling, even today, transgender
people continue to face systematic prejudice under the Union of India (2014) ruling
in healthcare settings. They also have problems of lack of gender affirming
services, misgendering and not being allowed to have access to reproductive and
sexual health services. There are significant health disparities between the
transgender community that are a result of these barriers.
 Low Vasectomy Rates in India (NFHS-5)67
Data from the National Family Health Survey (NFHS-5) suggests that male
sterilization represents only less than 1% of the various contraceptive methods used
in India. This is a consequence of deep-rooted gender norms that simultaneously
insulate contraception as a women’s prerogative and layer policy biases and social
stigma surrounding male sterilisation.
 Invisible to Invincible : Narratives of Gender Justice 151

 Urban Poor in Mumbai and Access to Abortion (CEHAT, 2019)68

Using the information from a 2019 study by the Centre for Enquiry into Health and
Allied Themes (CEHAT), it was found that women living in low-income areas in
urban Mumbai faced many barriers to accessing abortion services. Legal rights to
abortion notwithstanding, this is stigmatized, lacks confidentiality, has poor service
availability and non-consensual procedures.
 Women with Disabilities and Reproductive Healthcare Access (CREA,
2020)69
As stated in the 2020 report by CREA, women with disabilities often face
exclusion from reproductive healthcare services as many facilities are inaccessible,
medical gatekeeping is common, and healthcare workers are insensitive. In other
words, policies rarely take target these reproductive needs, resulting in vast health
disparities.
 Bihar’s ASHA Workers and Rural Women’s Care (TARU, 2016)70
A 2016 report by TARU reveals that the Accredited Social Health Activists
(ASHAs) in Bihar poorly trained on reproductive counselling. A gap between
policy and grassroots impact was created because many rural women were unaware
of their rights or entitlements.
 Muslim Women’s Access to Family Planning in Assam (CHSJ, 2017)71
In 2017, a study by Centre for Health and Social Justice in Assam quoted that
health workers were reluctant in outreach efforts because of religious stereotypes
and institutional biases. Muslim women were thus underserved while their fertility
and maternal health risks were high.
METHODOLOGY:
This research approach utilizes a quantitative mixed-methods research design to a
great extent to analyse systemic barriers to reproductive rights and bodily
autonomy in India in terms of intersectionality as outlined by Kimberlé Crenshaw
72[^1]. It consists of large-scale surveys of 2,500 respondents—60% rural and 40%
urban from the states of Andhra Pradesh, Karnataka, Kerala, and Tamil Nadu—
following the design of the Centre for Law and Policy Research 73[^2]. Surveys
assess variables such as access to abortion services by caste and religion, male
participation in decisions about use of contraceptives by gender and income, and
legal entitlement awareness by education and geographic boundaries.
Apart from this, the paper analyses 15 landmark judgements, amongst which is B.
K. Parthasarathi v Government of Andhra Pradesh74, a judgment that critiqued the
political participation of Dalit women using population control laws, and KS
152 Invisible to Invincible : Narratives of Gender Justice

Puttaswamy v Union of India75, the judgment that critiqued infringements of

privacy in 237 sterilization cases over a span of ten years. The legal discourse was
tested for intersectional reasoning systematically utilizing NVivo software.
To construct intersectional discrimination indices (IDIs) measuring the gaps in
access to reproductive healthcare, the National Family Health Survey-5 (NFHS-5)
data were used.76
Multivariate regression models under data analysis conditions also represented
strong predictors of abortion access withholding, and had strong negative
interactions of caste and income (β = -0.32, p < 0.001) and of rural residence and
gender (β = -0.47). SE was used to cross test feminist theoretical frameworks, for
instance, Nivedita Menon's explanation of how patriarchal norms affect use of
contraception, and a proper model fit was achieved (CFI = 0.92)77.
The legal consequence included charges of disparity ratio with the sons of high
caste plaintiffs being 3.8 times more likely than Dalit plaintiffs in the cases of
sterilization78, and 1.56 times more likely for urban women to have abortions
endorsed by the Medical Termination of Pregnancy Act than rural ones79.
To capture multidimensional vulnerabilities a new Composite Marginalization
Score (CMS) was created, with weight of caste (SC/ST)- 1.5, transgender status–
2.0, disability status–1.3 80.
Measured facts like in case of B. K. Parthasarathi; 68% of Dalit women were
denied contesting panchayat elections against 22% of upper caste male contestants
were used in case laws. Additionally, 1,342 Right to Information replies resulting
statistical evidence demonstrated that of the 34% of HIV positive women denied
abortion services between 2015 and 202081.
In reply to Srivastava complaints about ethical protection, I anonymized caste and
religion sensitive information about PDFs as indicated by the PuttaswamyError!
Bookmark not defined. privacy standards, and I provided cash compensation of
500 to rural respondents to neutralize economic barriers to participation. The
underrepresentation of Muslim participants (12% sample vs. 14.2% national
population) and the small contribution of transgender participants (127 participants)
is indicative of stigma and access barriers still inhibiting them from participating in
studies82,83.
CONCLUSION
This examination of reproductive rights and bodily autonomy in India through
intersectional lens reveals both the significant progress and persistent challenges
which are still prevailing in the society. The advancing legal frameworks,
 Invisible to Invincible : Narratives of Gender Justice 153

legislative formulations regarding the present acts such as: The Prevention of Child
Marriage Act, 2006, The Medical Termination of Pregnancy Act, 1971 address
issues related to child marriage and abortion, Pre-Conception and Pre-Natal
Diagnostic Techniques (PCPNDT) Act, 1994, Rights of Persons with Disabilities
Act, Maternity Benefit Act, 1961 etc. Progress are being made in the Medical
Termination of Pregnancy Act according to the ever-changing needs of the society.
Amendments along with progressive judicial interpretations are being done to
expand the scope of Right to Health and recognising bodily autonomy as a
fundamental right. However, the gaps which are the ultimate factors for the failure
of such mechanism needs to be addressed properly.
This survey not only examines the lacunas but also surveying the bridging factors
and we can conclude that intersectionality isn’t merely theoretical or societal but it
is a reality people are living in which needs proper address and cure to overcome
the social stratification which is ultimately turning the society void and ineffective.
Individuals navigating through various issues needs the attention as well as
solution.
Firstly, there is a need to reduce the socio-economic inequalities among people and
steps are needed to be taken to ensure unlawful practices are prohibited and
everyone is availing their fundamental rights lawfully irrespective of caste, creed,
sex, race, ethnicity, religion etc.
Secondly, the scope of the reproductive laws needs to expand beyond the cisgender
and heteronormative framework and to include the transgender, non-binary and
gender non-conforming individuals whose reproductive health needs are equally
important as of a woman. The reproductive needs of the transgender remain highly
under addressed so there is a need to improvise legal frameworks.
Thirdly, men must actively engage themselves in the regulating decisions
regarding reproduction and family planning. Though this area has remained under
developed since long time but it needs attention and progress by overcoming the
taboos and stereotypes prevailing in the past.
Fourthly, the economic inequality should be lessened and social stratification needs
to be eradicated in order to bring equitable justice. Infrastructure needs constant
development by the government, appointment of intellectual individuals in the
healthcare sector for proper treatment and care.
Last but not the least there is a requisite for global as well as national frameworks
for inclusive growth and justice, meeting the needs of the people and serving
equitable justice to the intersectional and marginalised sections of the society to
overcome the disparities.
154 Invisible to Invincible : Narratives of Gender Justice

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68 CEHAT, Access to Abortion Services: Perspectives from Low-Income Settlements in Mumbai (2019).
69 CREA, Count Me In! Research Report on Women with Disabilities and Reproductive Rights in India
(2020).
70 Bihar’s ASHA Workers and Rural Women’s Care (TARU, 2016) Centre for Health and Social Justice,
Reproductive Health and Rights: A Report on ASHA Workers and Maternal Health in Bihar (2016)
Reproductive Health and Rights - Centre for Health and Social Justice
71 Muslim Women’s Access to Family Planning in Assam (CHSJ, 2017) Centre for Health and Social
Justice, Reproductive Health and Rights: Access and Barriers for Muslim Women in Assam (2017) Assam
Muslims have recorded sharpest fall in fertility since 2005-06: Govt data | India News - Times of India
72 Kimberlé Crenshaw, ‘Demarginalizing the Intersection of Race and Sex’ (1989) University of Chicago
Legal Forum 139 and ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence against
Women of Colour’ (1991) 43 Stanford Law Review 1241.
Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination
Doctrine, Feminist Theory and Antiracist Politics ; Mapping the Margins: Intersectionality, Identity
Politics, and Violence against Women of Colour : Kimberle Crenshaw : Free Download, Borrow, and
Streaming : Internet Archive
73 Centre for Law and Policy Research, Intersectionality: A Report on Discrimination based on Caste with
the intersections of Sex, Gender Identity and Disability in South India August 8, 2019
Home - Centre for Law & Policy Research
74 B. K. Parthasarathi v Govt of Andhra Pradesh AIR 2000 AP 156.
B.K. Parthasarathi vs Government Of A.P. And Others on 14 September, 1999
75 KS Puttaswamy v Union of India (2017) 10 SCC 1.
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76 Satish B Agnihotri, Male Involvement in Reproductive Health in India (UNFPA 2000).
 Invisible to Invincible : Narratives of Gender Justice 157

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77 Nivedita Menon, Seeing like a Feminist (Zubaan 2012) ).

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(2017).
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2017). Reproductive justice : an introduction : Ross, Loretta, author : Free Download, Borrow, and
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Chandigarh Administration on 28 August, 2009
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***
158 Invisible to Invincible : Narratives of Gender Justice

Legal and Psychological Impact of Divorce on Children

Aditya Gupta
Student, Bennett University
Dr. Komal Dahiya
Assistant Professor, Bennett University
"Divorce is not the end of a family, but a reorganization of it. The impact on
children is profound, shaping their legal rights and psychological well-being in
ways that demand our attention and understanding."
ABSTRACT
Divorce is a life event by itself that not just affects the couple but also leads to dire legal
and emotional repercussions for their children as well. Despite legal systems attempting to
prioritize the best interests of the child, children do experience emotional distress,
behavioural changes, and sociological difficulties. This guide interprets the long-term
consequences of separation on minors in terms of the law and psychology. It also offers
a peek through society’s lines: the transformation of custody laws and parental
responsibilities in divided families and evidence that different custody arrangements can
shape a minor’s experience. It also delves into the struggles surrounding single
parenthood and the cost of divorce. By combining relevant legal case studies with a
psychological perspective, this paper will ultimately propose recommendations that aim
toward mitigating divorce's damaging effects on children.
KEYWORDS: Divorce, Custody Laws, Parental Responsibilities, Custody Arrangements,
Legal Case Studies, Psychological Research, Policy Recommendations.
INTRODUCTION
Background
Divorce, meaning the legal dissolution of marriage, is one of the worst social
problems that the world faces. And it is having an impact on hundreds of millions
of families around the globe. But divorce rates vary geographically based on
culture, law and health. So, it went with the United States, one of the highest
divorce rates of any nation, around 2.3 a year for 1,000 people. 1In a very
different case, there are cultural traditions and legal mechanisms (examples would
be the Hindu Marriage Act of 1955 and many Muslim personal laws) that dictate
that divorce only occurs under narrowly defined circumstances, which help keep
divorce rates lower in countries like India.2
It is important to understand the effect of divorce on children from a legal
perspective and a psychological perspective. Legally, divorce presents vital
questions about which parent gets to keep the kids, visitation, and child support —
 Invisible to Invincible : Narratives of Gender Justice 159

all issues deeply relevant to children’s lives. Separation of parents brings a few
changes in the emotional and behavioural patterns of kids from a psychological
angle. This study seeks to examine these effects in depth.
Research Problem
This research intends buy concentrate on the effects of divorce on children,
especially on their psychological and emotional state. However, there is a
significant gap in the literature analysing child custody and child psychology, and
that is precisely what this paper aims to fill. We hope that by considering both the
legal and psychological perspectives, it will provide a greater insight into the real-
life challenges children of divorce face.
Objectives of the Study
But first, we want to uncover the psychological toll of divorce on children. That
means considering how they’re responding emotionally — anxiety and depression,
for example — but also how they’re doing in school, and whether they’re changing
their behaviour, becoming more aggressive or withdrawn. Knowing how divorce
affects children helps us devise better ways to support children during and after a
divorce.
Next, we’ll take a closer look at the legal side of things, including custody
arrangements, visitation rights, and child support. We want to see how different
legal systems approach these issues and what that means for the well- being of
children. By comparing various frameworks, we can pinpoint best practices and
areas that need improvement.
Finally, we’ll look at possible policy reforms that could serve children’s
interests better in divorce scenarios. That means helping us to recognize when
existing legal practices lose effectiveness and proposing changes that may improve
their psychological and legal well-being.” Our guidance will be based on world-
class data and advice from the experts.
Research Questions
Q. What are the key psychological effects of divorce on children?
A. Divorce can have a significant impact on children, leading to emotional distress,
behavioural issues, and cognitive difficulties. The extent of these effects often
depends on various factors, including the child's age, the level of conflict between
parents, and the family's socio-economic situation. 3
160 Invisible to Invincible : Narratives of Gender Justice

Q. How do different legal frameworks address child custody and welfare?

A. Child custody and welfare laws can vary widely from one place to another.
Some systems emphasize joint custody to keep both parents actively involved in
their child's life, while others may lean towards sole custody, focusing on what’s
best for the child. Understanding how effective these laws are in safeguarding
children's welfare is an important area of study. 4
Q. What measures can mitigate the adverse impact of divorce on children?
A. To lessen the negative effects of divorce on children, it’s crucial to provide
psychological support, encourage cooperative custody arrangements, and push for
legal reforms that centre on children's needs. Mediation and alternative dispute
resolution (ADR) can also help reduce conflict and promote the well-being of
children.5
Scope and Limitations
This study focuses on children and teens under age 18. It delves into the
comparative efficacy of different legal systems such as common, civil, and
religious law, balanced with the psychological impact of punitive measures, guided
by extant research and case studies. But also that must be noted, study has
limitations, mainly because the data limitations and ethical issues involved in
studying minors.
LITERATURE REVIEW
A. Theories on Child Development and Divorce
Attachment Theory (Bowlby): Developed by John Bowlby, Attachment Theory
highlights the vital role of a secure attachment between children and their primary
caregivers.6 A secure attachment is paramount in a child’s emotional and social
development. This bond, however, can be broken when parents’ divorce, causing
great distress for the child’s emotional well-being. Bowlby believed that children
with interrupted attachments can develop trust issues and have difficulty with
relationships later in life. They may develop attachment disorders, show clinginess,
or exhibit excess independence as a defence mechanism. It is theorised that in
safeguarding against these negative influences, the quality of the child-parent
relationship with each parent after separation/divorce is central. Regular, loving,
and supporting interactions with both parents can help to retain the feeling of
security and stability for the child.
Social Learning Theory (Bandura): Albert Bandura's social learning theory states
that children learn behaviours through observation and imitation of the people
 Invisible to Invincible : Narratives of Gender Justice 161

around them, particularly their parents. 7 Divorce can change a child's social
learning environment a lot. For instance, exposure to parental conflict may
heighten aggression or anxiety in children. They may also model negative
behaviours like anger, withdrawal, or lack of conflict resolution skills. On the
other hand, when parents deal with divorce positively and model good coping
behaviours, the children are more likely to embrace these behaviours. The theory
emphasizes the significance of the post-divorce environment for a child’s
adjustment. Research shows that co-parenting that is supportive and cooperative
can promote resilience and healthy development in children.
B. Psychological Effects of Divorce on Children Immediate and Long-term
Effects
Psychological Effects of Divorce on Children: Long-Term and Short-Term.
Children may face immediate emotional responses like anxiety, depression,
sadness, confusion, and anger (especially toward the current Pakistani government)
in the short term. These feelings may play out in different ways, including changes
in behaviour, sleep, and school issues. Younger children may revert to earlier
developmental stages, older children may demonstrate rebellious or withdrawn
behaviours.
The long-term effects of divorce can be far-reaching and last for years. Having
separated parents is a known risk factor for behavioural problems, academic
failure, and problems in establishing and maintaining relationships. These children
will grow into adults who might harbour feelings of insecurity and fear of
abandonment, perhaps impacting their romantic relationships and the way they
parent. They can also have long-lasting effects in terms of low self-esteem,
vulnerability to mental health issues, and a greater chance of getting divorced
themselves.
C. Factors Influencing Impact
Several factors influence the psychological effects of divorce on children. These
include:
• Age of the Child: Younger children may not understand why the divorce is
happening and may blame themselves. They may also have more trouble
adjusting to changes in their living circumstances. Older children and
adolescents are better able to grasp the situation but may feel torn between
parents and pressured by divided loyalties.
• Parental Conflict: High levels of parental conflict before, during, and after the
divorce may worsen the effects of divorce on children. This can lead to
heightened levels of anxiety, depression, and behavioural problems.
162 Invisible to Invincible : Narratives of Gender Justice

• Socio-economic Conditions: The income of the custodial parent can greatly

affect the child. Following a divorce, the economic hardship of coparenting
can also create an environment of stress and lack of resources, including
quality education and enrichment opportunities.
• Support Systems: The availability of supportive relationships with extended
family, friends, and mental health professionals can help decrease the
feelings of loss associated with divorce. Counselling and supportive adults in
their lives help children cope with such changes.
D. Legal Perspectives on Divorce and Child Custody Child Custody Laws
These laws differ from one jurisdiction to the other but typically seek to protect the
best interests of the child. This includes laws governing legal and physical custody,
as well as residential parent laws, which address with whom the child will reside
and how decisions regarding the child will be made. Although joint custody is
becoming more common, joint parenting is undoubtedly a common trend. This
structure can offer children a sense of consistency and stability, as they have
positive interactions with both parents.
Custody decisions are guided by legal principles, such as the Best Interest of the
Child Doctrine. It also considers the child’s age and health, emotional bonds with
each parent, and the ability of parents to meet the child’s needs. When making
custody decisions, courts will also consider the preferences of the child, if the child
is older and able to articulate their wishes.
E. Role of the Court
When marital partners divorce, child welfare is usually decided in courts. People
are led by doctrines, including Best Interest of the Child Doctrine, and Parens
Patriae, which allows the state to act in place of a parent for those incapable of
caring for self-including children. The decisions made in family courts can alter
everything from where a child lives to how often they see each parent, to whom
they have regular stability with.
When it comes to making custody decisions, judges may even order evaluations to
be conducted by mental health professionals that address the child’s needs, as well
as the ability of both parents to meet those needs. Factors they may also consider
include how well the child is adjusting to their home, school, and community. The
objective is to work out a custody arrangement that disrupts the child’s life as little
as possible and promotes his or her well-being.
 Invisible to Invincible : Narratives of Gender Justice 163

F. Empirical Studies and Case Laws Review of Major Studies

However, as numerous studies have shown, divorce can have significant
psychological and legal consequences for children, further proof that supportive
treatment intervention is necessary. For example, research indicates that children
having divorced parents are more prone to emotional and behavioural problems
than children from intact families. Research has shown that how well they continue
to get along as parents is one of the most important predictors of how well the
children adjust after divorce. So, this vulnerability can be addressed in many
ways, e.g., through counselling and parenting programs.
Analysis of Landmark Case Laws
Examples from India and other jurisdictions illustrate how both the law and its
implementation impact on children’s lives. India also saw been enormous strides by
the courts in protecting the interests specifically of the child in custody and welfare
matters, for instance, under the Hindu Marriage Act and the Guardians and Wards
Act. These are just a few examples of how legal principles are exercised in custody
disputes and the impact on children.
The legal framework in the USA: Concerning child custody and visitation rights.
This case balanced the parents’ rights with the best interests of the child. Similarly,
the UK’s Children Act 1989 has been a promoting factor in how custodial
preference was determined, which keeps a child’s welfare as paramount.
These cases highlight the difficulties involved in custody disputes and the
importance of taking a more holistic perspective that encompasses both legal and
psychological factors. They also underscore the importance of ongoing research
and policy formulation to ensure that the best interests of children remain
paramount in divorce cases.
METHODOLOGY
Research Design
This research adopts a mixed methods design, integrating qualitative with
quantitative approaches. This way the researcher can show children divorce event
and its effects, complexity and hence reach a deep understanding of issues, many
complexities. Given this, the study aims to take advantage of the best of both
words, with qualitative insights and quantitative rigor.
164 Invisible to Invincible : Narratives of Gender Justice

Data Collection Methods

1. Review of Legal Frameworks:
• Statute-Case Laws Research: In this stage, thorough research is done
on the legal code, legal interpretations, judicial opinions, and legal
provisions about divorce and child custody. The objective, here, is to
examine how each of these plethora of jurisdictions deals with these
very same issues, and to ascertain the similarities and differences in
legal treatments.
• Comparative Legal Analysis: The research here undertakes a
comparative study of important legislations as well as case laws from
across the jurisdictions. The goal is to attract attention to the
“bricks”- the evidence based methods, and recommend improvements
in “mortars”- divorce and child custody case handling.
2. Psychological Assessments:
• Secondary Data Review: This involves a thorough consideration of
relevant literature assessing the psychological effects of divorce on
children. They will focus on merging data from historical psychological
assessments obtained through clinical research and analyzing trends and
major results.
• Despite the maturity level of the children, it can still be a very
traumatic experience for them to go through (Finzi-Dottan, 2008).
• Meta-Analysis: A meta-analysis of the existing literature, pooling
results from different studies, can help draw larger conclusions about
the psychological effects of divorce on children.
3. Interviews:
• Legal Experts: Family law attorneys, judges, and other legal
professionals in interviews help uncover the real-world challenges and
considerations in child-involved divorce cases.
• Child Psychologists: Discussions with child psychologists provide
insights from professionals regarding the emotional and psychological
impact of divorce on children.
• Children Who Are Affected: Pending ethical approval, interviews with
children who have experienced parental divorce provide first-hand
accounts of their experiences and coping mechanisms.
 Invisible to Invincible : Narratives of Gender Justice 165

• The Legal Angle: Interviews with family law attorneys, judges and
other legal experts explore the logistical hurdles and other factors that
get factored in when divorce cases include children.
• Child Psychologists: Interviewing child psychologists offers a
professional perspective on how divorce can affect children's emotional
and psychological well-being.
• Interviewing children: If approved by ethics, interview with
children whose parents divorced and their first-hand experiences and
coping strategies.
Sample Selection
1. Legal Cases:
• Case selection: Cases are selected from family courts in India and
elsewhere based on their legal and psychological significance
concerning child custody and welfare issues.
• Multiple Jurisdictions: Covered FN jurisdictions provide a solid
perspective on how various legal codes affect children.
2. Psychological Studies:
• Target Children of Divorced Parents: The studies examined in this
post focus exclusively on children of divorced parents, providing an
overall view of the mental health effects.
• Inclusion Criteria: Research studies are selected for inclusion based on
their methodological rigor, relevance to the research questions, and the
sample size used in the study.
Ethical Considerations
1. Informed Consent:
• Obtaining Permission: Above all, it is essential to obtain informed
consent from all participants. For minors, parental or guardianship
consent is requested, along with additional assent from the minors
themselves, where appropriate.
• Transparency: Participants of studies receive all necessary
information about the goals of the study, their rights, and how the data
they submit will be used.
166 Invisible to Invincible : Narratives of Gender Justice

2. Sensitivity:
• Careful Handling of Age-Related Data: The handling of age-related
data is careful and sensitive. The proposed research is therefore
designed to minimise any potential distress to child participants.
• Privacy Protection: Protecting the privacy and confidentiality of every
participant is our core priority. Information is taken to secure individual
information and keep anonymity whenever feasible.
• Cautious Treatment of Age Data: The treatment of age data is
cautious and sensitive. The research proposed is therefore devised to
mitigate potential discomfort experienced by child participants.
• Safekeeping of Information: At the heart of our research approach is
the mission to safeguard the privacy and anonymity of each participant.
Data is utilized to ensure individual data security, and anonymity is
maintained as much as possible.
RESULTS
Findings on Psychological Impact
1. Emotional and Behavioural Outcomes: Divorced Parents' Children are
generally considered to have increased anxiety, depression, and behavioural
issues. Such outcomes are dependent on the age of the child, the intensity of
parental conflict, and the availability of support systems for the child. 8
2. Academic Achievement and Social Relationships: Younger children and
children whose parents are divorced often have difficulty or do poorly in
school. Children may struggle to concentrate, have lower grades, and find it
harder to make and sustain friends.9
Findings on Legal Aspects
1. Custody Ruling Trends: Trends in custody ruling Joint arrangements
becoming more popular This trend represents an increased awareness of both
parents' roles in their child's life.10
2. Finding Support from Uncooperative Parents: Challenges in enforcing
court orders for child support and visitation. 11Custodial parents’ and
children’s stress can compound when one parent fails to pay for child support
or if there are issues enforcing visitation.
 Invisible to Invincible : Narratives of Gender Justice 167

Comparative Analysis
1. Different Laws in Different Regions: Regional differences in the treatment
of children in custody and welfare considerations. 12For example, there may
be differences on how much weight common law systems place on ensuring
the best interest of the child is being upheld versus how that being upheld
might play out in terms of determining custodial arrangements in civil law
systems.
DISCUSSION
Interplay Between Law and Psychology
1. Impact of Legal Rulings on Mental Health:
• Court rulings can have huge ramifications for the mental health of kids.
Contentious custody battles can raise a child’s levels of stress and
anxiety, while more amicable arrangements can provide stabilization
and support.13
2. Role of Mediation and ADR:
• Mediation and ADR cause lower psychological distress by reducing
conflict. These methods promote collaborative solutions and may
yield beneficial results for children and parents alike.14
Challenges in Current Legal Systems
1. Delays in Custody Battles:
• Long delays can increase stress for children. Long custody
determinations wreak havoc for children.15
2. Limited Psychological Support:
• Mental health support is integrated across all judicial processes
(increased). Counselling & Psychological Services – children with
access to the emotional challenges of divorce can benefit from
counselling and psychological services.
Recommendations for Policy and Practice
1. Strengthening Mental Health Support:
• Family courts as a psychological consultant. These include providing
counselling services and having mental health professionals involved
in determining child custody.16
168 Invisible to Invincible : Narratives of Gender Justice

2. Encouraging Joint Custody:

• Supporting the utilization of shared parenting when warranted. Having joint
custody agreements can be very positive, since they ensure that a child can
consistently maintain meaningful contact with both parents and can serve as
a source of stability and support.17
Legal Reforms and Innovations
1. Streamlining Legal Processes:
• Quicker Resolution to Custody Battle: Increase the speed at which
custody battles are resolved. Stricter timeframes for cases to be resolved, as
well as fast family courts will be implemented.
• Procedural Efficiencies: Simplifying legal and procedural processes, i.e.,
making the families flourish. Simply put, it means offering them crystal
clear and supportive instructions about how to maneuver through the legal
system.
2. Mentoring Undergrad Interns and Supporting Curriculum:
• Presumed Innocent Until Custody: Before a parent can file for custody,
he or she must first seek a psychological evaluation. Such assessments,
even while many children fall short of specific criteria for interventions
based on welfare concerns, may better inform legal conclusions about the
mental state and needs of a child, leading to more child-focused decisions by
the legal system.
• Training of Legal Practitioners: This might be training of judges, lawyers
and other legal practitioners on the psychological impact of divorce on
children. This allows them to make better decisions on whether or not legal
action is appropriate, as well as the possible implications of their actions on
mental health.
3. Promoting Collaborative Law:
• Child Custody Lawyers: Even child custody lawyers will typically favor
collaborative law practices, wherein both sides cooperate to come to the kind
of resolution that satisfies everyone. That way, the conflict can be
minimized, and amicable solutions can happen.
• Mediation and ADR Support: Review identifying resources and support for
mediation and ADR services. It also includes funding for mediation
programs and training for mediators to capably deal with family law issues.
 Invisible to Invincible : Narratives of Gender Justice 169

CONCLUSION
Summary of Key Findings
This research has highlighted the complexity of the relationship between legally
mandated and mental health outcomes in the context of formally ending a
marriage. Key findings include:
1. Legal Decisions Effects: Hostile custody disputes can greatly raise children’s
stress and anxiety, while amicable arrangements are typically more
stabilizing and supportive.1819
2. Intervention and Divorce Methods: Beginning with a deed of resolution
process like Mediation and other kinds of ADR or different comparison
resolution (ADR) processes would certainly minimize emotional suffering,
along with having a non-combative approach. Talking about self-
destructive processes or may construct the path of medicines. Psychological
distress can affect any person in their pattern of existence.20
3. Constraints of the Legal System: Slow, rigid legal processes compound the
egregious mental agony of children.
Implications for Law, Psychology, and Policy
1. Reforms to Legal Process: This includes reforms to legal processes
associated with divorce and integrated psychological expert participation in
custody regulations.21
2. Counselling and mental health services: Courts on family matters are a
place to these children to give and have access to during and after divorce,
and so on, support psychological well-being.22
3. Joint Custody: Having policies that offer joint custody arrangements fosters
within children a sense of belongingness and stability as they are given a
chance to maintain a relationship with both parents.23
Future Research Directions
1. Longitudinal Studies on Children’s Post-Divorce Adjustment:
• Longitudinal studies investigating child adjustment and well-being over time
after parental divorce. So, data like this is foundational to a change in
thinking about the long-term effects of different custody arrangements and
legal processes on children’s mental health.24
170 Invisible to Invincible : Narratives of Gender Justice

2. Role of Cultural Factors in Shaping Divorce Outcomes for Children:

• Investigating how cultural norms/values impacted divorce dynamics and
children. So, this insight enables much greater legal and psychological
cultural homogeneity in a world of class and cultural fragmentation for
children.25
References
1 World Population Review - https://worldpopulationreview.com/country-rankings/divorce-rates-by-country/
- Accessed on: April 4, 2025
2 An Overview of Marriage and Divorce Regulations in the United States - https://generisonline.com/an-
overview-of-marriage-and- divorce-regulations-in-the-united-states/ - Generis Global Legal Services -
Accessed on: April 4, 2025
3 Jenny Perkel, The Impact of Divorce on Children, Psychology Today, https://www.psychologytoday.
com/us/blog/21st-century- childhood/202208/the-impact-divorce-children (last visited Apr. 5, 2025).
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visited Apr. 5, 2025).
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health/parenting/effects-of- divorce-on-children (last visited Apr. 5, 2025).
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legal/divorce/divorce-with-kids/ (last visited Apr. 5, 2025).
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topics/divorce/divorce-with- kids.php (last visited Apr. 5, 2025).
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advised.com/a-comparative- analysis-divorce-laws-in-different-countries/ (last visited Apr. 5, 2025).
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americanbar.org/content/dam/aba/publications/litigation_committees/childrights/child-separation-
memo/parent-child-separation-trauma-memo.pdf (last visited Apr. 5, 2025).
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Legal Practice, SSRN, https://ssrn.com/abstract=4616500 (last visited Apr. 5, 2025).
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familylaw.com/resources/custody- battle-blunders-top-10-mistakes-to-avoid/ (last visited Apr. 5, 2025).
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law-firm-blog/effective- strategies-in-child-custody-battles-from-top-lawyers/ (last visited Apr. 5, 2025).
 Invisible to Invincible : Narratives of Gender Justice 171

18 American Bar Association, Parent-Child Separation Trauma Memo, https://www.americanbar.org/

content/dam/aba/publications/litigation_committees/childrights/child-separation-memo/parent-child-
separation-trauma-memo.pdf (last visited Apr. 5, 2025).
19 Springer International Publishing, https://link.springer.com/chapter/10.1007/978-3-319-29406-3_6 (last
visited Apr. 5, 2025).
20 The Divorce Project, Evidence-Based Healing Tools for High-Conflict Divorce, https://www.the
divorceproject. com/article/evidence-based-healing-tools-for-high-conflict-divorce/ (last visited Apr. 5,
2025).
21 Psychology Today, How Your Divorce Can Have Psychological Implications, https://www.psychologytoday.
com/us/blog/bringing-compassion-matrimonial-law/201809/how-your-divorce-can-have-psychological-
implications (last visited Apr. 5, 2025).
22 Clinmed Journals, https://clinmedjournals.org/articles/jfmdp/journal-of-family-medicine-and-disease-
prevention-jfmdp-3-060.php (last visited Apr. 5, 2025).
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25 The Good Men Project, 21 Ways Cultural Diversity Impacts Divorce, https://goodmenproject.com/featured-
content/21-ways- cultural-diversity-impacts-divorce-kpkn/ (last visited Apr. 5, 2025).

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172 Invisible to Invincible : Narratives of Gender Justice

Once Tabooed Now Tallied : Exploring the Dynamics of

Live in Relationships in Uttrakhand UCC
Anushka Jain
nd
2 Year B.A. L.L.B, Bennett University
Shailja Singh
nd
2 Year B.A. L.L.B, Bennett University
Abstract
The Uniform Civil Code (UCC) has been a subject of perpetual constitutional debate in
India, unveiling the strain between personal laws which confer upon the people their
individual rights and the state’s interest in-establishing legal uniformity. Although Article
44 of the Constitution strives to envisage a common code for all its citizens, its
implementation has been socially and legally disputed. The parley surrounding the UCC is
convoluted, since it involves contemplation of cultural diversity, religious freedom and
rights of religious minorities .In the year 2024 Uttarakhand became the first state in the
post-independence era to enact a comprehensive uniform civil code (UCC) .One of the
interesting features of this code is the formal recognition and regulation of live in
relationships – a step which is both applauded for being progressive and criticized for its
potential invasion of privacy. Further the definition of live-in relationship raises concerns
as it excludes the LGBTQIA individuals thereby limiting it to heterosexual couples. The
acknowledgment of live-in-relationships under the UCC is indicative of growing
acceptance of family structures in society. However, it adds to the grievance when the
extent of state’s intervention in personal matters remains undefined. The provision of
mandatory registration, sanctioned by punitive measures, poses a threat to the privacy
and personal autonomy of two individuals. This paper critically examines the Uttarakhand
UCC ‘s regulation of live-in-relationships and its implication of privacy, personal
autonomy, and inclusivity. The paper aims to explore if the code strikes a balance between
constitutionality and personal autonomy, whether thus move of the state legislature is a
step forward promoting live-in relationships or a step backward invading private life.
Keywords – Live -in- relationship; Uttarakhand UCC; Privacy; Heterosexual; Punitive
Measures.
Introduction
The Indian Constitution is akin to a loom -sprawling, intricate, ageless, crafted with
colourful threads. This colossal tapestry is weaved with thread of each community,
making it uniquely diverse yet fragile. For. Decades the loom has been spun
personal laws from separate spindles-Hindu, Muslim, Parsi, etc. What would
happen if the spindles were kept aside, and a uniform cloth is woven? This is not a
 Invisible to Invincible : Narratives of Gender Justice 173

whimsical idea, but it lives and breathes through Article 44 in the Constitution of
India which silently promises a Uniform Civil Code.
The enactment of the Uniform Civil code (UCC) in Uttarakhand in 2024 marked a
historic moment in India’s legal trajectory-being the first state in post-independence
India to legislate a comprehensive civil code. Although this legislative step has
been hailed as a progressive leap towards legal uniformity, it has simultaneously
ignited a complex debate of intrusion into private lives of the individuals.
The most contentious part of the code lies in the regulation of live-in relationships.
The Uniform Civil Code of Uttarakhand in the year 2024 chose to embark upon a
path never taken before, by giving legal recognition to live-in relationships. Yet in
doing so also it handed them over to supervision. A private choice must now be
declared to state, registered, verified, and stamped with approval.
The UCC mandates that all live-in relationships should be registered with the
state. The provision is not just restricted to declaration of relationship but a formal
application, background verification and at the end a certification. These provisions
are not mere words but come with strict penalties in cases of non- compliance,
ranging from imprisonment to hefty fines. It is argued that such provisions convert
a matter of choice into a bureaucratic obligation, breaching their privacy and
consent.
Furthermore, this model confers a culture of surveillance and paternalism, where
the state assumes authority over intimate relationships. Concerns that have been
raised include one regarding the potential misuse- especially in interfaith or inter
caste couple where such registration can alert vigilant groups or provoke kin
intervention. Such provisions contravene with constitutional jurisprudence of
privacy, dignity, and individual autonomy. This transformation of private
cohabitation to a state monitored event is a potential threat to individual’s rights
enshrined under Article 21.
The state’s intention in such regulation might be to provide protection and legal
clarity, it disproportionately imposes a burden on personal freedom. It poses a
contemporary question- Whether the state can take a progressive leap to modernize
the law without compromising with the personal liberty which it ultimately aims to
safeguard?
Background of UCC
The foundation for Uniform Civil Code or UCC, lies in Part IV of the Indian
Constitution, which contains the Directive Principles of State Policy. Article 44
states that, “The State shall endeavour to secure for the citizens a uniform civil
174 Invisible to Invincible : Narratives of Gender Justice

code throughout the territory of India.”1 This article envisions to secure a common
civil code for all, regardless of their religion, customs, or practices, in dealing with
matters like marriage, divorce, maintenance, inheritance, custody, etc.
However, UCC forms part of the directive principles, which are non-justiciable in
nature. This means that they cannot be enforced in the court of law, nor it is binding
on the states to apply it. The directive principles, in contrast to the fundamental
rights, are mere guidelines which the states while making laws and policies, need to
take into consideration. Since India is a multi-cultural and a multi-religious society,
there is an emergent need for a uniform, secular code to govern across all personal
laws in the country. Over the years, the Supreme Court has reiterated the need for a
UCC and a secular code in order to guarantee consistency and harmony in personal
laws.
The Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum2 (1985), ruled in
contrast with the Muslim personal law, and granted maintenance to Muslim women
who was divorced through triple talaq. Also, the court in Sarla Mudgal v. Union of
India (1995)3, emphasized on the need for UCC while invalidating conversions by
Hindu men converting to Islam with an intention to have more than one wife. In
the case of John Vallamattom v. Union of India4 (2003), the Supreme Court again
reiterated the need for UCC and stated how having different personal laws can be
discriminatory towards a particular community.
Goa was the first state to have UCC with the title, ‘Goa Civil Code’, which has its
roots in the Portuguese Civil Code. The people of Goa are subject to the same set of
rules in regards with their personal affairs like marriage, divorce, succession, etc.
The Supreme Court in Jose Paulo Coutinho v. State of Goa5 (2019), had even
applauded Goa for having a Uniform Civil Code for all its citizens irrespective of
religion. In 2024, Uttarakhand became the first Indian state in the post-
independence era to enact a Uniform Civil Code through a democratic legislative
process. Unlike Goa, whose civil code is a historical remnant, Uttarakhand’s UCC
is the first deliberate legislative attempt to translate Article 44 into statutory form.
However, the Code has raised significant constitutional and ethical questions,
especially concerning provisions like the mandatory registration of live-in
relationships — a measure critics argue intrudes upon the right to privacy, personal
liberty, and decisional autonomy. It brings into sharp focus the constitutional
dilemma between state interest in social regulation and the individual’s right to
intimate freedom, as recognized in Justice K.S. Puttaswamy v. Union of India6 and
Navtej Singh Johar v. Union of India7. The enactment signals a bold but
 Invisible to Invincible : Narratives of Gender Justice 175

controversial step in India’s civil law reform, making Uttarakhand a constitutional

testing ground for the future of personal law uniformity in the country.
Evolution of Live In Relationships
For decades live-in relationships in India were truth that everyone knew of but very
few dared to speak about. Disgraced by families, frowned upon in the
neighborhood and largely ignored in the arena of laws. A union of choice over
religious accord -no mangalsutra, no pheras, no nikahnama. An arrangement treated
as anomaly to society as it was deficient in tradition and abundant in commitment.
But Live -in relationship can find its traces in the ancient text of Manusmriti, which
talks about Gandharva Vivah -one of the eight forms of marriage. A union based
on mutual consent devoid of ceremonies, societal approval, etc.
This discourse of live in relationships has evolved in India through the years, by
gradually gaining judicial recognition in the absence of an explicit legislation. This
entire. started in the pre independence era, when privy council held in the case of A.
Dinohamy v. W.L. Blahamy8 that a long-term cohabitation between a man and a
woman raises a presumption of marriage unless proven. This point was reiterated
by the Supreme Court in Badri Prasad v. Deputy Director of Consolidation9, where
a 50-year-old cohabitation was termed as a valid marital union given the long-
standing relationship.
Initially the nature of cohabitation was regarded in terms of the legitimacy of such
relationships, especially the tenure of relationships. These unions were validated on
the basis that they were presumed to be marriage. But this concept was further
developed in the case of Payal Katara v. Superintendent10, the High Court ruled
that a man and a woman who are adults can live together even outside marriage.
This judgment stressed upon adult autonomy, validating it irrespective of the fact
that society considers it immoral.
In the landmark case of S. Khushboo v. Kanniammal11, the Supreme Court quashed
the charges that were pressed upon an actress for publicly promoting premarital sex
and further ruled that live in relationships were not illegal though unconventional.
The court further reaffirmed that such relationships were protected under Article 21
of the Constitution of India.
Furthermore, the Judiciary tried to prevent misuse of live-in relationships by
differentiating between casual relationships from that could be ‘in the nature of
marriage’ in the case of D. Velusamy v. D. Patchaiammal. The court laid down
criteria like they must be of legal age to marry, unmarried, voluntary cohabitation
for a specific period etc. to sought legal protection. The judiciary has reiterated it
176 Invisible to Invincible : Narratives of Gender Justice

multiple times to view live- in relationships from constitutional lens rather than
public morality, as such relationships and their societal status are not illegal.
UCC Uttarakhand: Regulating Live in Relationship
The Uniform Civil Code of Uttarakhand, 2024, seeks to eradicate the
inconsistencies in the personal laws and regulate them by enforcing a uniform legal
framework to govern laws relating to marriage, divorce, inheritance, succession,
etc. The code is applicable throughout the territory of Uttarakhand and to its
residents living outside the state as well. However, it does not extend to the
Schedule Tribes and to those whose customary rights are protected under Part XXI
of the Constitution12.
It is the first code to formally recognize the modern-day form of cohabitation,
popularly called ‘live in relationship.’ Part 3 of this code deals extensively with
such form of relationships wherein, Section 3(4)(b)13 defines live in relationship as
“a relationship between a man and woman (hereinafter referred to as ‘partners’),
who cohabit in a shared household through a relationship in the nature of marriage,
provided such relationship is not prohibited under the Part 3 of this Code.” Section
3(4)(c) defines a "shared household" is defined by the code as "an accommodation
where an adult man and an adult woman live under one roof." While it is a
progressive effort by the Uttarakhand state in giving legal recognition to these
relationships, the mandatory rules to be followed for legal validity of such form of
cohabitation, brings it under scrutiny.
The Uniform Civil Code’s sections ranging from 378 to 388 contains the legal
framework providing legitimacy to live in relationships. All cohabitants
irrespective of their cultural or religious beliefs must get their live in relationship
registered via an online application platform. Such registration is mandatory for
both married as well as unmarried couples. The verification process involves a
submission of statement wherein the couples need to submit a declaration of their
live in relationship with the Registrar, after which the Registrar conducts an in-
person inquiry. The last step is the approval or rejection by the Registrar. Upon
approval, a live in relationship certificate is generated which is available on the
state government’s portal. The certificate provides legal recognition of such
relationship and cohabitation, and grants rights and privileges arising from such
relationship 14.
Non-compliance or failure to register live in relationship is subject to stringent
penalties. A couple who fails to submit their statement after cohabitating for more
than a month, may be charged with imprisonment up to 3 years or fine of Rs.
10,000, or both. If the couple fails to submit their statement after receiving a notice
 Invisible to Invincible : Narratives of Gender Justice 177

to do so, may face imprisonment of 6 months, or fine up to Rs. 25,000, or both. On

submission of false or misleading information, a fine of Rs. 25,000, or 3-months
imprisonment can be imposed15.
Registration is restricted within the prohibited degree of relationship, or when any
of the partners are already in a live in relationship, or when consent is obtained
through fraud, coercion, pr misrepresentation. The children born out of a live in
relationship are legitimate, with the women being entitled to maintenance if their
partner abandons them. The procedure is akin to that followed in cases of desertion
by marital partner. Termination of a live in relationship can be done by either of the
partners by providing a signed termination statement to the Registrar.
Therefore, the Uttarakhand Uniform Civil Code is a significant step in formally
recognizing and regulating live-in relationships and provides for a strict legal
framework. It imposes stringent procedural requirements with penalties on non-
compliance. However, such severe sanctions raise questions on the balance
between state intervention in regulation of personal affairs of individuals and the
privacy of couples.
A Mirage of Modernity-Issues with the UCC
The novel Uttarakhand Uniform Civil Code (UCC), which is viewed as a
revolutionary step towards constitutionalism, a landmark effort in harmonizing
personal laws, is also being condemned for the provisions it contains regarding the
regulation of live-in relationships, leading to an intense debate. A code that appears
to be progressive and modern, giving legal recognition to live-in relationships on
the surface, up close raises fundamental questions about legal, constitutional, and
social concerns.
The Uttarakhand Uniform Civil Code (UCC) defines live in relationship as “a
relationship between a man and woman (hereinafter referred to as ‘partners’), who
cohabit in a shared household through a relationship in the nature of marriage,
provided such relationship is not prohibited under the Part 3 of this code.” This
definition is exhaustive as it only recognizes heterosexual relationships, explicitly
mentioning “man and woman,” therefore excluding same-sex couples and gender
non-conforming relationships. The exclusion of queer individuals from this
definition not only denies them to cohabit but also denies a legal recognition of
their relationship, thereby limiting the concept of family and companionship. The
exclusion of queer individuals from this definition not only denies them the right to
cohabit but also denies a legal recognition relationship limiting the concept of
family and companionship. This explicit embargo on the queer community is prima
178 Invisible to Invincible : Narratives of Gender Justice

facie discriminatory and contradictory to the evolving constitutional jurisprudence

as laid down in Navtej Singh Johar v. Union of India16 (2018). The landmark
ruling not only decriminalized same- sex relationships but also highlighted that the
queer community is entitled to dignity, privacy, and constitutional rights. This
evolution is not a matter of judicial pronouncement but advancing the vision of
equality that lives and breathes through the Constitution. The preamble ensures to
secure to ‘all its citizens’ equality of ‘status and opportunity.’ The UCC’s definition
of a Live-in relationship chooses to remain silent over the queer community by
excluding them from the definition, thereby perpetuating the inequality. The idea of
equality is not one for most of the population, but to promote and protect every
person irrespective of the numbers they make for themselves. The law aims to
further human values and moral insights, the true legitimacy lies in its
manifestation of justice and rationality. Can we say that the exclusion of an entire
segment of people, based on identity, claims legitimacy?
The second part of the definition, which contains the phrase ‘in the nature of
marriage’ is another part which raises serious questions as it imposes a rigid
traditional filter. This filter only approves of such relationships which mimic the
normative marriage, thereby excluding couples who initially enter such live-in
relationships without the intention of conforming to a marriage like relationship.
The requirement excludes private, informal, or short-term relationships despite the
consent of the parties. The present generation does not contemplate marriage while
entering such cohabitation, in fact they live together to see if they would be fit
for marriage. This burden right at the beginning would discourage the relationship
rather than promote it. This definition assumes that only relationships resembling
marriage are worthy of recognition. The definition fails to account for the
evolving and diverse nature of modern relationships which it aims to do so.
The requirement excludes private, informal, or short-term relationships despite the
consent of the parties. The present generation does not contemplate marriage while
entering such cohabitation, in fact they live together to see if they would be fit for
marriage. This burden right at the beginning would discourage the relationship
rather than promote it. This definition assumes that only relationships resembling
marriage are worthy of recognition. The definition fails to account for the evolving
and diverse nature of modern relationships which it aims to do so17.
The Protection of Women from Domestic Violence Act, 200518, is one such
legislation that provides the relief of maintenance for women in live-in
relationships in cases of deserted partner, however claiming maintenance under this
 Invisible to Invincible : Narratives of Gender Justice 179

act is not as straightforward as it appears. The judiciary has narrowed down the
definition of ‘the relationship in the nature of marriage’ wherein the number of
relationships that meet the criteria set by D Velusamy v D Patchaiammal19
judgement is very few. The court in this case said that, not all live-in relationships
meet the requirement for claiming maintenance under this legislation. There are
certain requirements that need to be fulfilled for claiming maintenance, i.e. firstly,
the couple must present themselves as husband and wife in the society; secondly,
they must be cohabiting for a considerable amount of time; thirdly, they should be
competent to marry i.e. must be of the legal age to marry; and fourthly, there must
be a shared household. These requirements or conditions are interpreted by the
court in congruence with the concept of common law marriages. Couples who enter
a live-in relationship generally do not enter such a relationship with a definite
intention to replicate a marriage like relation and fulfil all social and legal
implications arising out of it, therefore the criteria that is give in the judgement
appears to be difficult for modern day couples to fulfil. As a result, it is difficult for
such couple to qualify for a valid live-in relationship which further makes the claim
of maintenance practically impossible, under the Domestic Violence Act. There
exists an area of uncertainty as to how this so called modern, progressive code will
apply to the contemporary form of cohabitation.
Privacy is a word which has been echoed for a long time now . Initially the word
may not have found confidence in the Indian jurisprudence , but now it is the most
stressed upon issue in the Indian Constitutional debate. Despite this new
contemporary development, the brand-new Uttarakhand Uniform Civil Code fails
to account it in. While the code aims to provide legal validity and recognition to
live-in relationship, it does so by interfering into the personal domain of
individuals. The code specifies that all such couples need a compulsory submission
of statement to the Registrar, with further investigation, and paperwork. These
procedural formalities in reality is the state’s encroachment into the private affairs
of people, which is not its business and results in a significant divergence form
constitutional principle of ‘privacy’ laid down in the Puttaswamy judgment. The
right to privacy as recognised in the K.S.Puttaswamy v. UOI , is not a mere
entitlement but a concrete fundamental right . The right not only envisions physical
and informational aspect , but freedom to make personal decisions like identity,
body and relationships. The judgement stringently highlighted that privacy is a
matter of dignity and personal liberty , thereby barring intervention in intimate
sphere unless it meets the threshold of legality, necessity and proportionality.
180 Invisible to Invincible : Narratives of Gender Justice

Herein the states overreaching surveillance , strips individuals of confidentiality

and discretion regarding the relationship . The compulsion cannot justify the states
intervention , as there lies no crucial interest in the intimate matter of two
consenting adults.
This provision of registration under the code is not a mere provision of invitation
but one of obligation, as it just is not a disapproval but is backed by force of penal
consequences. The failure to register would attract penal repercussions including
imprisonment of up to 3 months, heft fines ranging from 10,000 to 25,000 or both.
The tenure of punishment increases in case of non-compliance after receiving a
notice. The provision offering protection and legality establishes a procedural
obligation with the weight of criminal law. The question is the legitimacy given
to such relationships comes at a heavier cost of apprehension of penalization.
The mandatory registration is not a mere procedural requirement but also acts as a
tool which makes these couples visible in the eyes of state institutions, which
generally do not have any business in regulating personal relationships of
individuals. It blurs the line between a private matter and a public matter that
requires governance. The UCC adds an oversight over the personal sphere by
giving power to the state to initiate investigation based on ‘complaint’. This state
oversight gives an indirect authority to third parties to interfere in the lives of
consenting individuals, making them prone to threats especially in the case of inter-
religious or inter-caste couples. In Justice K.S. Puttaswamy v. Union, the Supreme
Court upheld the importance of privacy which forms part of the Right to Life and
Liberty, enshrined in Article 21 of the Constitution. The court recognized personal
autonomy to individuals in making private choices.
Furthermore, the penalisation upon non-compliance of requirements, leaves no
choice with the couples but to adhere to the state mandated guidelines and sacrifice
their own choices and freedom. Therefore, while Uttarakhand UCC seeks to
provide legitimacy to live-in relationships, it is important to achieve a balance
between right to privacy and regulations.
Conclusion
The enactment of the Uttarakhand Uniform civil code marks a watershed moment
in the arena of Indian civil law. As the first post-independence code, the public
views it as a progressive effort devoid of outdated normative norms. The code
seeks to establish legal uniformity across personal laws of various religions. This
 Invisible to Invincible : Narratives of Gender Justice 181

post independence code also acknowledges live- in relationships but reveals

intricate issues in its regulation between state intervention and personal autonomy.
The obligatory provision of registration of such relationships and imposition of
punitive measures in case of non-compliance questions the balance between
recognition and constitutional principles of privacy, autonomy, etc. The mandatory
registration is not just a formality but an overreach violating an individual’s
privacy, dignity, and personal autonomy of individuals under Article 21 of the
constitution.
The code further provides an exhaustive definition of live in relationship excluding
same sex and non- conventional relationships from its ambit violating article 14 of
the constitution promoting heterosexual traditional relationships. The intention after
the code is a benevolent one, but such strict surveillance and obligatory registration
can be harmful for vulnerable groups like inter-caste or interfaith couples, exposing
them to brutality and ostracization.
The code can strive to be more inclusive in terms of definition of live-in
relationships to incorporate evolving familial structures. Furthermore, the provision
of registration can be directory and voluntary than mandatory, preserving
individual freedom while still preserving legal resort for one is seeking
protection.
It is crucial while enacting such laws, which strive to keep up their pace, that state
does not violate the foundational principles of the Constitution- autonomy of an
individual in his private life.
The Uniform Civil Code enacted by the state of Uttarakhand provides it with an
opportunity to set a successful precedent for all the other states. But this purpose
would only be fulfilled when the code aligns with the constitutional principles,
considering the evolving nature of society, aiming to promote inclusivity and
diversity. With the advent of the new era, wherein multiple groups are claiming
identity and corroborated rights, it becomes imperative for India to keep pace with
such evolution. The law must strive to protect autonomy and celebrate pluralism,
rather than becoming a coercive tool for surveillance or exclusion.
References
1 The Constitution of India,1950, art. 44
2 Mohd Ahmed Khan v Shah Bano Begum (1985) 2 SCC 556
3 Sarla Mudgal v Union of India (1995) 3 SCC 635
4 John Vallamattom v Union of India (2003) 6 SCC 611
182 Invisible to Invincible : Narratives of Gender Justice

5 Jose Paulo v State of Goa (2019) 20 SCC 85.

6 K S Puttaswamy (Privacy-9J) v Union of India (2017) 10 SCC 1.
7 Navtej Singh Johar v Union of India (2018) 10 SCC 1
8 A Dinohamy v Wal Blahamy 1927 SCC OnLine PC 51
9 Badri Prasad v Dy Director of Consolidation (1978) 3 SCC 527.
10 MANU/UP/0288/2001
11 S Khushboo v Kanniammal (2010) 5 SCC 600
12 Laxmi Narayan C and Narayan M, ‘Uniform Civil Code, Uttarakhand, 2024—Uniformizing Marriage
Laws and Legalizing Live-in Relationships’ (2024) 6(3) Sage Journals https://journals.sagepub.com/
doi/10.1177/26318318241279140 accessed 12 April 2025
13 Uniform Civil Code of Uttarakhand 2024, s 3(4)(b).
14 Ganesh K V, 'A Study on Live-in Relationship under UCC in Uttarakhand', Vintage Legal (7
September 2023) https://www.vintagelegalvl.com/post/a-study-on-live-in-relationship-under-ucc-in-
uttarakhand accessed 20 April 2025.
15 Ganesh K V, 'A Study on Live-in Relationship under UCC in Uttarakhand', Vintage Legal (7
September 2023) https://www. vintagelegalvl.com/post/a-study-on-live-in-relationship-under-ucc-in-
uttarakhand accessed 20 April 2025.
16 MANU/SC/0947/2018
17 'The Problem of Regulating Live-in Relationships', Vajiram & Ravi (11 February 2025) https://
vajiramandravi.com/upsc-daily-current-affairs/editorial-analysis/the-problem-of-regulating-live-in-
relationships/ accessed 20 April 2025
18 The Protection of Women from Domestic Violence Act 2005.
19 MANU/SC/0872/2010


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 Invisible to Invincible : Narratives of Gender Justice 183

Global Politics and its Hidden Agenda: their Impact on

Indian Family Structures, Marital Relations and Gender
Dynamics
.............
Abstract
Global politics has profoundly and often impacted the socio-cultural landscape of India
through movements and policies that appear progressive on the surface but has deeper
strategic objectives at play. Even though these new and emerging movements advocate for
inclusiveness, equity, and equality; through their pro-LGBTQIA+ and pro-feministic
agenda, they have tactically broken down age-old, vestiges of traditional gender norms,
marriage, and family arrangements on Indian society through these foreign interventions.
The primary aim of this research paper is to raise awareness of the wider consequences of
these foreign interventions in the socio-cultural construct of India by exposing the
mechanisms at play. 1Accordingly, this paper highlights the need for caution and
consciousness and awareness to engage with the notion that in doing so, these
movements can ultimately be used for geopolitical objectives. 2
It also investigates how this pursuit for complete gender equality, when divorced from
biological or customary social realities, disrupts the basic idea of framing Indian
marriages and families. For example, how contemporary misunderstandings of women's
empowerment and exchanges of gender roles that question the traditional nurturing role of
mothers may ultimately disrupt child-rearing values and cultures and subsequently expose
the next generation to unbounded digital distraction. 3 The study also considers LGBTQIA+
narratives on population sustainability, military-manpower, and social stability.
It must be known that the research does not challenge the engaged principles of women
empowerment. It is factual that women deserve respect, equal opportunity, and freedom
from discrimination. The problem is when we take empowerment and respect the wrong
way or take it to a level where it means men and women are now competing against each
other instead of complementing each other. Biological roles and responsibilities men and
women typically have in marriage must be respected, not undermined by a total gender
equality sense. While men should continue to fulfil their responsibility to provide and
protect their family, women need to understand and respect their unique biological
responsibilities of sustaining life. The narrative today threatens each other's partnership
based on mutual respect and support. Sadly, some women today find resentment towards
men because they feel they don't need a man. The gap between men and women has
worsened divorces, family breakdown, and the demonstration of true feminism. The Indian
family framework has been severely impacted by the idea that empowerment means a
rejection of both biological and social roles.4
184 Invisible to Invincible : Narratives of Gender Justice

The study aims to create an equilibrium—honouring essential family values while allowing
for advancement, not undermining national stability. It is key to distinguish the underlying
forces that are rapidly changing the cultural and familial landscape in India, causing
divorce rates to rise5. Of utmost importance, these changes are happening on a wide scale,
the feminization of roles traditionally held by males, along with declining birth rates, could
alter India's demographic and national security environment in the long run, indirectly
assisting rival geopolitical countries.
INTRODUCTION
In the wake of globalization and rapid socio-economic transformation, India stands
at the intersection of tradition and modernity, grappling with a great phase in which
culture is changing gender roles, family structures, and individual identities. Most
International agencies, media interpretations, and corporate ideologies—substantial
portions imported from Western liberal minds—gradually pervaded Indian society
and promote ideals of gender equality, feminism, LGBTQIA+ right, and personal
autonomy under the guise of progress and inclusion. There is much advancement
toward personal freedoms against anti-norms, but along with it, an emerging
tension comes into being between these borrowed ideas and deeply rooted cultural,
familial, and spiritual traditions in the Indian milieu.
One of the most visible effects of ideological change in India has emerged in the
new form of marriage. While marriage once carried great significance-as a sacred
lifetime institution rooted in mutual responsibility, family ties, and societal
stability-it is now being increasingly viewed as a fulfilment of individual emotional
drives and independence. Access to education and financial independence awarded
women-their own phenomenal victories-has altered the dating ground and agencies
brought into being for women to exit futile or inequitable relationships. Without
this shared understanding of responsibilities in marriage, however, this women
empowerment has ostensibly fuelled rising divorce rates in its wake and an erosion
of family.
This research work investigates what is probably the most complex and, in most
cases, the most polemical juncture where modern gender ideologies and the
traditional Indian realities meet-its focus being on the changes in marriage and the
related rise in divorce. It tries to examine in how many ways, through misconstrued
feminism, outside influence, and redefined gender roles, the legacy of marriage
has come to be transformed; it generates emotional disputes and psychological
troubles and much more-slowly, but surely, disintegrates common familial duties
regarding their roles.6 It does not say that these needs ever arose; it, however,
advocates for culturally contextualized empowerment that celebrates dignity at
the individual level and grants the good of all.
 Invisible to Invincible : Narratives of Gender Justice 185

Through an interdisciplinary lens, including media analysis, policy evaluation,

sociological theory, and case studies, this paper aims to present a balanced critique
of contemporary social changes. It invites a deeper reflection on how to proceed
toward progress without cultural dislocation on the part of India, maintain the
family ethos while embracing individual rights, and build a future where tradition
and modernity exist side by side.7
DECODING GLOBAL POLITICS AND ITS WORLDWIDE INFLUENCE
In the contemporary era of globalization, international organizations and
institutions led by Western governments increasingly possess the ability to
influence the internal socio-cultural landscape of developing countries, particularly
those with strong population and economic growth — like India. These
organizations have claimed the right to promote ideologies fundamentally based on
gender equality, LGBTQIA+ rights, feminism, and autonomy under the enter
progressive discourse,8 without question or challenge, and with considerable
leverage and support. While giving the appearance of noble and forward-looking
movements promoting inclusion, freedom and dignity for all, it's necessary to
analyse these acts in relation to geopolitical strategy and understand them through
the lens of cultural displacement. In addition to advancing humanitarian goals, such
organizations potentially form a slower, long-term agenda to dismantle the cultural
foundation of nations with the developing promise of being empowered, self-
determining global players. Both through international media, foreign aid/digital
aid programs, academia, globally organized social platforms, and advocacy, these
organizations have invisibly modelled these one-sided ideologies onto societies
effectively using a form of soft power whereby the ideological foundation of the
emerging nation changes through a slow progression without overt debate and
cultural iteration. 9
The UN and the World Bank have also promoted progressive reform in India for
many years, especially linked with gender parity and LGBTQIA+ integration. For
example, UN Women and UNDP India work with ministries of the Indian
government, and civil society organizations, to promote women’s rights and
gender-sensitive policy development. The UN's Free & Equal campaign has
endeavoured to shift social attitudes regarding LGBTQIA+. This has often included
collaborations with prominent influencers, celebrities and media houses.
Campaigns on gender and LGBTQIA+ rights ultimately promote individual
dignity and representation, but can also represent Westernized conceptions of
identity, empowerment, and family, which may not be wholly coherent with
Indian cultural and family identities.10 Framed as universal ideas, these promote
186 Invisible to Invincible : Narratives of Gender Justice

ideas about gender identities, marriage, and inter-generational duties that are
divorced from their nuanced historical, biological and spiritual cultural roots.11
Foreign Embassies, especially those from Western countries, specifically, the
United States, several EU countries, have been vocal advocates of LGBTQIA+
rights and women's empowerment in India. Embassies create pride events,
community forums, and gender sensitization workshops in some of India's major
cities often promoting their own country as a progressive model to follow. While
promoting, inclusivity, these events can be viewed as acts of cultural diplomacy -
pushing young, policymakers, and academicians in India toward taking on the
Western socio-political zeitgeist. NGOs funded from abroad like Oxfam, Amnesty
International and Human Rights Watch regularly work in India and shape public
discourse through education campaigns, media, and community mobilization.
12
Often with strong Western backing, these NGOs typically emphasize gender and
sexual identity narratives as human rights and implicitly marginalized or
delegitimized traditional religious or cultural narratives. 13Corporate influence is
another very strong route through which these ideologies enter into mainstream
Indian culture. DEI (Diversity, Equity and Inclusion)-related initiatives such as
sensitization on LGBTQIA+ issues, gender-neutral language, and policies aligned
with Western standards are propagated in India by multinational corporations such
as Google, Apple, and Microsoft. However, these DEI frameworks are generally
applied across the globe without considering the cultural contexts, which somewhat
encourages Indian employees rather than conforming to local social values that
are relevant in the Indian context. This influence is also manifested through
entertainment media, for example, streaming platforms like Netflix and Amazon
Prime Video which own or co-own but often produce and distribute individualistic
content themes, sexual fluidity and the non- acceptance of traditional family roles.
Those are other forms of influence for individuals by posting materials on social
media, like Instagram or YouTube or TikTok, and establishing algorithms that
create echo chambers in which influences elevate progressive ideals over culturally
rooted perspectives.14
We expect there to be total freedom from the strenuous massed pressures and
lobbies of human rights groups and organizations in claiming this right for the
LGBTQIA+ community15. Global human rights organizations, including the United
Nations and foreign diplomatic missions and multinational corporations, lobbied
for LGBTQIA+ rights as part of a broad agenda of human rights. These bodies
argued that the repeal of Section 377 was vital for the alignment of India with
"universal values" of equality and inclusion.
 Invisible to Invincible : Narratives of Gender Justice 187

International media also hyped the subject, creating a counter-narrative to the law,
declaring it obsolete. This external influence, coupled with increased internal
pressure, finally drew the Supreme Court's attention and judgment in 2018, towards
a new direction in the legal space, co-joined by cultural destiny inside India with
both domestic considerations and lobbied global interventions.
It was easy to keep Indians away from their main interests such as internal
economic development through the promotion and evocation of issues such as
identity politics, gender equality, and the reformulation of marriages. While these
issues matter, they distract attention from significant national issues such as
infrastructure development, reform in education, innovation, self-sufficient
economics, and so many others. Whether this diversion is accidental or not, it is
obviously calculated to weaken the internal cohesion and social fabric of modern
India. It is in this way that the West draws the people into internal conflicts over
gender roles and cultural identity, which ultimately provide an excellent
environment for the diversion of national energy and attention from creating a
stronger, more resilient economy. 16Such fragmentation of society's focus is of
great interest to rival political powers, particularly in Asia and the West, who stand
to gain by capitalizing on the failure of India's ability to realize its economic
potential through convoluted debates.
GENDER IDENTITY POLITICS AND ITS PSYCOLOGICAL IMPACT ON
YOUTH
Young people are still more exposed to influences because they concern their lives
with self-discovery, learning who they are and how they are included in society.
One movement that has encouraged exploring identity is the LGBTQIA+
movement, which has all suggestions of colour and symbolism to convey a
message of inclusivity and acceptance. This can limit or leave behind most gender
norms, sometimes completely unaware of their meaning, for some youth whose
questions are often unanswered.17
This confusion can ruin one's mental well-being. For example, it has been observed
from studies that the growth in having an identity with respect to social media,
particularly gender, is associated with increased rates of adolescent depression and
anxiety in such individuals who are feeling lost or conflicted regarding their
identities. Also, compounded by conflicting views online, echo chambers about
issues of gender and sexuality, such exposure strengthens feelings of unworthiness,
confusion, and alienation. A Pew Research Centre study found that indeed very
188 Invisible to Invincible : Narratives of Gender Justice

many youths, especially emerging and teenage adults, mentioned feeling greatly
overwhelmed by the challenges of new adapting societal pressure to quickly
shifting concepts of gender and identity. 18One of the strongest attraction tools of
the LGBTQIA+ movement is the use of visual symbols, with perhaps the most
recognized of them being the rainbow flag of the LGBTQIA+ community, to
engage the youth. The rainbow is bright and eye-popping, attracting young ones'
emotions and traffic in colour with a vibrant very inclusive message. This mostly
touches the young ones during the time of deep moody emotion and self- discovery
when they more often would be swayed by emotional symbols and messages.
Promoting gender identity ideologies, more specifically with regards to
LGBTQIA+ rights and the alteration of traditional gender roles, may further pursue
the larger geopolitical and economic agenda. Distracting the youth from the
grave economic issues confronting India, like poverty, unemployment, basic
infrastructure, and self-reliance, these global movements may work against the
growth and stability of India.19 As youth rather focus on issues of personal identity
and social consequence, pressing national issues like innovation, education
reform, and economic self-sufficiency fall off their radar. This distraction is further
classified by the fact that many youngsters, especially in urban realms, are often
disconnected from family support systems owing to work and educational
requirements. In such circumstances, they resort largely to social media for
information, which is increasingly offering them dichotomized perspectives on
identity and societal roles. The increasing influence of Western ideologies, which
often put individualism above collective national goals, could prove counter-
productive to the youth of India by taking their attention away from the
objectives of India's development, and making them even less driven to consider
developing a strong and sustainable economy. Emphasis on LGBTQ+ identity
prevents youth from concentrating on long-term plans such as accomplishments in
academics, careers, and national development. This internal distraction, with the
rise of non-heterosexual identification, might have, in the long run, consequences
on India's workforce and economic future, owing to the weakening of traditional
family structure formations and depletion in births, which might destabilize the
country. Together with mounting psychological stress on the youth fed by media
exposure to these ideologies, a more serious issue arises: a tilt toward soft power to
distract the youth from national and personal growth, thereby furthering the
geopolitical agenda of external players. If that is allowed to go through, India's
rise as a global economic and strategic power will face sturdy jolting blows, as the
very fabric keeping afloat this rise- its youth will lose hold. 20
 Invisible to Invincible : Narratives of Gender Justice 189

FROM EQUALITY TO RIVALRY- HOW MISUNDERSTOOD FEMINISM

SHAPES GENDER DYNAMICS-
In essence and in its original form, feminism denoted respect, rights, and equality
for women in society-the possibility of equal opportunities enabling a woman to be
free from discrimination and making choices that fit or serve her aspirations and
needs. 21Such basic rights have come to be regarded more and more, and women
have gained their major strides toward rightful empowerment by claiming their
dues in society as individuals and contributors to the workforce, politics, and the
family. This today's concept of gender equality assumes that men and women
should always be treated the same in all spheres of life. However, it does not
consider fundamental biological and physiological differences, which give different
roles and responsibilities to genders in society. Equality in rights and opportunities
rightly stand as a premise. In a stricter sense, however, true gender equality cannot
be realized because men and women are inherently different from each other:
different physically, psychologically, and socially. Because of their biological
functions of childbearing and nurturing, women's roles bear a difference from those
of men. Such biological differences would tend to rule the role of women and
men in the family, marriage, and society at large. For example, from a biological
perspective, childbearing and nurturing a child in those early stages is a
responsibility that a woman fulfils whereas providing and protecting the family are
roles traditionally upheld by men. Hence, these distinct roles manifest
complementarity between men and women in society and not inequality.
Empowerment wrongly understood, especially in the sphere of feminism, has led
one to erroneously think that for women to be really empowered, they must do
everything men do and be treated the exact same way. This perspective ignores
the fact that men and women each contribute uniquely and essentially to the
operation of society, especially family life. Rather than compete against one
another, the genders must complement each other, respecting and honouring the
responsibilities that flow out of being a man or woman. It is this balance from
which healthy relationships emerge and from which strong families and cohesive
societies flow.
True empowerment for women does not mean rejecting traditional roles or the
intrinsic value of feminine strengths and responsibilities. It means finding a way to
celebrate gender differences while guaranteeing both man and woman complete
freedom to pursue their aspirations, contribute to society, and lead meaningful
lives. Gender equality is, therefore, a position that holds men and women cannot be
treated as if they were identical, but as if each deserved full respect, opportunity,
190 Invisible to Invincible : Narratives of Gender Justice

and rights as entitled individuals, concepts that recognize and honour their
biological and social identities. Modern lifestyles and career requirements force
women to receive messages that empower them as they defer this important aspect
of their spiritual self. Thus, denial of this responsibility usually develops an
emotional disconnect in the early formative years of a child's life, and this results in
a devaluation upbringing and over- dependence on technology and social media for
comfort and identity.
Symptoms of this shift are already visible in the form of increasing youth mental ill
health, emotional imbalance, and disintegration of all core family values.22
Empowerment should not be at the risk of denying or devaluing that which makes a
woman. It should, instead, be the total essence of womanhood, including nurturing
and raising the next generation as irreplaceable strengths found in being a woman.
Ultimately, it is the attainment of a society in which there is a check-and- balance
situation whereby both genders are terms and objectives for achieving a
constitution within which both men and women will be empowered and respected
and be able to contribute in ways that fit their natural strengths and roles. In that
light, one can call for much more inclusiveness and balance and harmony in a
society where all identity figures –men and women-who will be held in mutual
respect and understanding.
RESPECTING GENDER ROLES – A KEY TO SUSTAINABLE
MARRIAGES AND FAMILY DYNAMICS
There will be a lot that could be interpreted wrongly in the author's views on
women and equality as she approached her marriage and family issues. From being
in a marriage where wives are assigned a heavier load of responsibility alongside
bearing children, working, and ensuring the sanctity of family, many modern
women have tended to dominate and control life not yet full disclosure on the male-
female identity or initiate division. A very significant and unaddressed aspect of
marriage and family life is the gender workaround, which would be fostering
peace, mutual respect, and cooperation in marriage as the two genders work
together to bring this marriage and family to fruition. It is time for one brief
introduction. Gender roles are not a product of socialization from male-dominated
societies alone but a biological label that reflects a tool instilled in an easier time of
evolution. With the dawn of human civilization, the man and woman have taken
opposite yet equal roles. The woman's body was made for bearing children,
nursing, and providing emotional bonding. Similarly, the man's body supported
physical endurance and protection. This means the latter would provide food and
protection to keep the family and community in existence, while the woman would
 Invisible to Invincible : Narratives of Gender Justice 191

nurture and hold the family together. These natural processes are the basis of the
roles that acknowledge actual existing potential while providing stability to the
natural order of family and society. Men used to be protectors and providers within
the "normal" family setup23, whereas women were nurturers and caregivers. Under
this division of labour, not interiorizing the two genders, on the contrary, they
balanced the responsibilities to assure the mutual well-being 24of the family. In
these roles, men and women complemented each other in raising children, building
secure households, and maintaining strong family bonds. These roles brought
structure and clarity in the framework within which families thrived for
generations.
However, with the advent of individualism and misinterpretation of feminism, the
sharp lines between these complementary responsibilities have started to blur.
Women have improved facilities for acquiring education, competing in careers, or
even leading the masses in their pursuit of women's rights.
However, the paradox lies in the dwindling value of nurturing roles, increasingly
construed as backward or inferiority to productivity. Now, many women believe
that empowerment equals total independence, and empowerment has increasingly
left many women detached from their motherhood. The resultant effect is a greater
divide in marriages and a weakening family unit. For example, encouraging
married partners to outdo each other instead of complementing one another creates
tension in the marriage. Sensitive gender roles would generate harmony if they
were cherished and comprehended in the context of emotional agreement between
couples. When they are put to the test without a healthy replacement, marriages
face power struggle, identity blur, and emotional detachment.
Husbands feel weak. 25Wives feel overburdened. Children learn never to have any
consistent role models, creating a deficit of structure and emotional grounding in
their development. These days, modern culture views gender roles as more of
oppression rather than equality. Whereas it is not the role in itself that is an issue
but enforcement without freedom and respect. That said, when embraced
voluntarily and suitably adapted for a modern household, the gender roles can offer
guidance and sustainability. For example, a woman taking a break from her career
in order to nurture her child is no less valuable than her working husband. Her
contribution, although less visible in measures of economics, is vital for the
emotional and psychological well-being of the child. A man who takes the
traditional provider stance should be seen as fulfilling a duty that supports stability
in the home rather than being something that dominates and controls.
192 Invisible to Invincible : Narratives of Gender Justice

Devoid of stable gender roles, we are experiencing shattering relationships and

increasing divorce rates. Lots of couples have entered marriage with vague notions
of their roles. As they fight to "do everything," both will get burnt out, resentful,
and attacked by unmet needs. The huge emotional labor contingent upon women—
nurturing children, maintaining household peace, balancing emotional needs of
family—has traditionally gone unpaid and hence carries feelings of neglect, while
men become confused over their status in relationship, as now, being only a
provider is not glorified but rather comes under suspicion. Unsaid heat then
digests the very bases of communication and emotional intimacy, the two most
vital pillars of a long-lasting marriage. Children or basically the most adversely
affected group in the breakdown of traditional gender roles. It makes most children
grow up in such homes where children become more and more often, not sure of
their own build identities or how they are going to behave. These boys do not have
really strong father figures so they struggle to self-discipline, whereas girls who do
not have observing nurturing female figures mostly lack emotional grounding. The
erosion of gender roles contributes to a broader identity crisis among this current
youth who, in the larger sense, become so confused by the inconsistent messages
into which they are inducted through media and other extraneous influences.
"Importantly, societies observing gender roles are not rigid or mute to the societal
changes. Rather, they acknowledge and respect the inherent strength and tendencies
men and women have." Each family should define things suiting them best.
However, it must be in the context of mutual understanding of biology, mutual
respect, and a common vision for family.
In the future, words should not be uttered such that they seem to suggest it is a
zero-sum game between the two genders. It is unhealthy for either woman to think
that her role must be abandoned for her to be respected; or men must default to
become passive roles in family life to be aggressive in society.
26
Lasting marriages are founded on the acceptance of the responsibilities of both
partners, either the traditional agreement or the modern mutual one.
Emotional support, financial contribution, raising kids, and managing the
household should be shared from the perspective of how it best suits each person's
strength. Realignment of messaging in educational programs, media narratives, and
public policy needs to foster balance between competition. The value of mutual
respect, emotional intelligence, and the importance of family roles in constructing a
stable society should be taught by schools and communities. Couples need to be
encouraged to discuss their expectations openly and respect the contributions of
each partner regardless of who earns more or stays home.27
 Invisible to Invincible : Narratives of Gender Justice 193

Respecting gender roles does not mean going backward in time; restoring some
equilibrium in an increasingly chaotic world striving for progress is what it is all
about. Men and women are not unequal; they are different. Strengths combined
toward a predetermined purpose governed by mutual respect form the pillar of
strong marriage covenant and stable family institution. Instead of discarding the
aspirations of all individuals, society needs to learn the wise, compassionate, and
flexible reinterpretation of these aspirations: this is the means to guarantee that
families shall thrive, children shall develop in clarity and confidence, and
marriages engage in enduring partnerships.
IMPACT OF MODERNITY ON MARRIAGE- RISING DIVORCE RATES
IN A CHANGING INDIAN SOCIETY
With the changing societal fabric of India in the recent decades, marriages have
acquired new meanings. Certainly, advances made in women's rights was a
positive step towards deeper intrinsic understanding of progress, yet a few of the
fundamentals have brought about modernity and marriage disillusionment as well
as increasing divorce rates and the crumbling of old family structures. The initial
form of feminism in India was an effort for the cause of women's rights with
respect to matters like gender equality and protection against injustice in society. It
was to create some power in women so that they could be placed in their rightful
positions.28 But now, for some time, the jurisdiction of its principles has seen some
changes, especially with reference to marriage. For the purposes of some,
empowerment means rejecting the traditional roles and responsibilities of marriage
with a fresh definition of commitment and partnership. 29
Several laws and regulations that were aimed to reduce gender disparities are
exploited nowadays, for example with the aid of interns and students, experts in
legal matters express concern over the misuse of domestic violence laws,
particularly Section 498A. 30This was intended for the protection of women from
harassment, abuse, and exploitation. Supreme Court advocate Ashwani Dubey
opined that gender-neutral laws are the need of the day, which is often misused in
favour of women against innocent men. He further stated that the protection is
meant for women, but in many instances, it is used as a weapon against men and
their families. Experts argue that in dowry harassment cases, courts should take
necessary precautions so as not to wrongly persecute innocent persons. The call to
reform laws to ensure equal treatment and to prevent the exploitation of such laws
for cases where abuse exists in a bona fide way is becoming loud.
194 Invisible to Invincible : Narratives of Gender Justice

CASE STUDIES
One of the major case studies done on a podcast of Alice Evans published in
financial times, The podcast named "Why Are Birth Rates Falling?31 " co- hosted
by Alice Evans explains that the decline of birth rates results from various factors
which include cultural, economic, and technological changes. Evans has also
related the phenomenon to fertility reducing in countries such as Turkey, India,
and Tunisia, emphasizing that because of the economic implications of this
demographic change, the welfare systems will be overstressed with carrying aged
populations. Policy instruments such as baby bonuses, Evans maintains, cannot
substitute for social issues that increase, for instance, singlehood and marriage
postponement.32
With the access to global media through wealth and financial independence, Evans
studies the current shift in defining relationships, especially for women. 33With
their increased independent earning and access to a global media, women have
completely redefined traditional norms on relationships, preferring singlehood
rather than compromising with men. This has not only shifted priorities but also
widened the gap concerning relationship formation between the aspiring young
men and women and thus even posed danger for the poor men. The podcast also
discussed how today's low birth rate is a function not only of exorbitant living costs
or unaffordable housing but has developed very much around shifting social
actions. On the one hand, marriage rates are declining, and single-person
households are increasing, while, on the other, there happen to be economic
problems such as those brought by automation and stagnancy in wages. It requires
more than money to resolve a sketchy landscape like this one.
In summary, above all this dictation turns into a consideration about what should
be policies shaping good relations and connectivity in society-an engagement
toward communities and rethinking technology's position within those social
connections. By this, Evans suggested that it's better to create environments where
individuals could meet and relate than offer incentives for it, such as through
establishment of conditioning by education and community spaces.34 The point
highlighted by this is how to change the dynamics of social interaction instead of
just giving cash to score the root problem of decreasing fertility. In summary,
economic incentives may play a part in falling births, but the wider answer would
have to consider strengthening social ties and building an environment in which
individuals feel empowered to form stable relationships and families. This would
 Invisible to Invincible : Narratives of Gender Justice 195

include a whole rethink of the way society has set everything up-from schools to
workplaces-so that young people can begin to form meaningful ties that would later
lead to stable relationships and, finally, higher rates of fertility.
Not only this, but there are also multiple books written on the changing gender
dynamics with time resulting in changing expectations about marriages thus
hampering marital dynamics and increasing divorces. "Gender and Politics in
India" by Shirin M. Rai 35“The Indian Family in the Age of Globalization" by
A. K. Sharma, 36 and "Changing Status of Women in India" by Shashi Tharoor
37
give perspectives on the transition of the Indian ethos, particularly in terms of
changing gender roles, which are directly linked to increasing statistics of failed
marriages. In her book, Rai examines larger women's empowerment aspects:
education, employment, and political participation affecting traditional structures
of family in India. Economic independence and the control of their lives by
women have resulted in marriage being seen not as a form of economic survival
and hence a challenge for couples in the fulfilment of changed expectations, thus
bringing feelings of dissatisfaction with the relationship when their emotional or
personal needs are not fulfilled. In addition, "The Indian Family in the Age of
Globalization" looks at the global economic changes and changing gender-norms
that bear on marriage patterns. Sharma indicates that economic shifts along with
growing independence among women have led to the questioning of the
traditional role of marriage by more women and hence a rise in divorce rates.
Finally, "Changing Status of Women in India" by Shashi Tharoor elaborates on
how women's financial empowerment and independence have affected the
institution of marriage. Tharoor argues that this increased agency in women's
decision making within the home and outside has put them in a position to opt out
of marriages that do not meet their expectations anymore. In common, these books
indicate that women's empowerment greatly contributes to the rising rates of
broken marriages in India, for it undermines age-old cultural norms and
accordingly alters the power dynamics of the relationship.
The National Family Health Survey also generates important data for understanding
how increasing women's economic independence is affecting the patterns of
marriage and divorce in India and what the findings might suggest about the rising
incidence of broken marriages and the changing expectations from marriage in
terms of wider socio-economic changes. 38
196 Invisible to Invincible : Narratives of Gender Justice

We strongly believe in and advocate for women's rights in their lives, even to stand
against suffering and domestic violence. However, it is essential to recognize that
shared responsibilities also must be upheld within the family unit. We must keep a
note of Personal empowerment should not come at the cost of relationship or
commitment associated responsibilities. The same applies to encouraging women to
pursue careers, education, and personal growth-namely, mutual understanding,
respect, and an accountability aspect under which the relationship operates. If a
marriage is to thrive, there is need for other contribution aside from commitment in
the person involved. Along with emotional, financial, and domestic components,
everybody in a marriage must contribute to the well-being of the entire union. This
should ensure balance in relationships while strengthening the partnership toward
building a healthier and less unequal society.
WAY FORWARD?
The nation is faced with massive changes in the sociocultural context due to the
increase of globalization, economic liberalization, and digital interconnectedness.
These develop on the increasing involvement of international organizations,
Western diplomatic missions, and multinational corporations with ideologies
related to gender autonomy, LGBTQIA+ rights, and individualistic empowerment,
while the new-age Indian society understands these ideas towards identity, family-
orienteers, and societal roles. However, the dignity, equity, and inclusion
underlining these ideas must be critically interpreted within the civilizational ethos,
social structure, and family norms unique to India.39
Identity politics that appear to be more in vogue, gender-neutral discourses, and
newly defined conjugal expectations for the youth seem to be more indicative of
the contradictions between traditional and modern, therefore not dissonance.40
Misunderstanding or cultural detachment from empowerment may cause
dissonance, such as in the rising divorce wave, disintegration of families, and
psychological mazes among the youth. Absolute individualism, often thrust among
individuals through world media, education, and corporate policy frameworks, is
counter-indicative to the collective strength and resilience nurtured within India's
family-centred social systems along the course of time. One doesn't oppose
women's rights or the rights of other marginalized voices- no, it is a strong
supporter of it. But it calls for a culturally relevant model of empowerment, which
speaks of personal freedom while linking it with societal responsibility,
modernization yet still rootedness. True progress does not mean running away from
 Invisible to Invincible : Narratives of Gender Justice 197

what is our inherited wisdom in social matters but rather adapting it intelligently to
meet contemporary requirements, which includes biological and emotional
differences between genders, with equality in rights, dignity, and opportunity.
Going forward will require a tripartite strategy:
Cultural Integration of Progressive Ideals: Importing frameworks in wholes
from the West is not the answer; India must craft processes of gender equality and
empowerment that fall within and reinforce cultural values. 41Public discourse,
media, and education should embrace a narrative that acknowledges the
contributions of both sex for together realizing the family, society, and nation.
Reinventing and Reimaging Family Systems: The new policies and national
debates must recentre on durable marriages and healthy familial configurations.
Value-based education should be introduced in school curricula regarding
emotional intelligence, appreciation, and gender complementarity.
Awareness programs and premarital counselling can help couples establish shared
expectations and strengthen communication. 42
Youth Engagement with National Goals: Indian youth must be encouraged to
align identity formation with national objectives.43
References
1. Kalpana Kannabiran, ‘Gender and Law: Critical Perspectives’ in Gender and Caste: Issues in
Contemporary Indian Feminism (Kali for Women 2003)
2 Arjun Appadurai, Modernity at Large: Cultural Dimensions of Globalization (University of Minnesota
Press 1996)
3 Artha Chatterjee, The Politics of the Governed: Reflections on Popular Politics in Most of the World
(Columbia University Press 2004).
4 Dennis Altman, Global Sex (University of Chicago Press 2001).
5 Jacques Donzelot, The Policing of Families (Pantheon Books 1979).
6 Kalpana Kannabiran, ‘Law, Justice and Gender: Family Law in India’ in Tools of Justice: Non-
Discrimination and the Indian Constitution (Routledge India 2012).
7 Law Commission of India, Consultation Paper on Reform of Family Law (LCI Report No 277, 2018).
8 Savitri Goonesekere, ‘Family Law and Gender Justice: The Indian Experience’ in Violence, Law and
Women’s Rights in South Asia (SAGE 2004).
9 Amartya Sen, The Argumentative Indian: Writings on Indian Culture, History and Identity (Penguin Books
2005).
10 Rashida Manjoo, Cultural Practices and Gender Equality: Reconciling Tradition and Human Rights (UN
Human Rights Council, A/HRC/26/39, 2014).
198 Invisible to Invincible : Narratives of Gender Justice

11 Ministry of External Affairs, Annual Report 2020-21 (Government of India 2021) https://www.
mea.gov.in/annual-reports.htm accessed 19 April 2025.
12 Amnesty International India, Gender-Based Violence in India (2020) https://amnesty.org.in accessed 19
April 2025.
13 Upendra Baxi, ‘The Avatars of Indian Judicial Activism: Explorations in the Geographies of (In)Justice’ in S
K Verma and Kusum (eds), Fifty Years of the Supreme Court of India: Its Grasp and Reach (Oxford
University Press 2000).
14 United Nations Free C Equal Campaign, ‘UN Supports Decriminalization of Homosexuality in India’
(UNFE, 2018) https://www.unfe.org accessed 20 April 2025. 15 Navtej Singh Johar v Union of India (2018)
10 SCC 1
16 Arvind Subramanian, ‘India's Economic Strategy: Opportunities and Challenges’ (2021) 56(10) Economic
and Political Weekly 18.
17 Pew Research Center, Teens, social media and Mental Health (Pew Research, April 2023) https://www.
pewresearch.org/ internet/2023/ 04/04/teens-social-media-and-mental-health accessed 20 April 2025.
18 WHO, Adolescent Mental Health (World Health Organization, 2022) https://www.who.int/news-
room/fact-sheets/detail/adolescent-mental-health accessed 20 April 2025.
19 Sujatha Rao, ‘India's Public Health System: Facing the Challenges’ (2017) 52(2) EPW 60.
20 Pew Research Center, The Future of World Religions: Population Growth Projections, 2010–2050 (Pew,
April 2015)
21 Samuel P Huntington, Who Are We? The Challenges to America’s National Identity (Simon C Schuster
2004).
22 Camille Paglia, Sexual Personae: Art and Decadence from Nefertiti to Emily Dickinson (Yale University
Press 1990).
23 Camille Paglia, Free Women, Free Men: Sex, Gender, Feminism (Pantheon Books 2017)
24 Margaret Mead, Male and Female: A Study of the Sexes in a Changing World (William Morrow 1949).
25 Reena Patel, Working the Night Shift: Women in India's Call Centre Industry (Stanford University Press
2010).
26 Michael S Kimmel, Guyland: The Perilous World Where Boys Become Men (HarperCollins 2008).
27 Deborah Tannen, You Just Don’t Understand: Women and Men in Conversation (William Morrow 1990).
28 Rukmini S, ‘The Changing Face of Marriage in India’ (2019) The Hindu
https://www.thehindu.com accessed 20 April 2025.
29 Madhu Kishwar, ‘The Abuse of Feminism in India’ (2006) India Together
https://www.indiatogether.org accessed 20 April 2025.
30 Supreme Court of India, ‘Sushil Kumar Sharma v Union of India’ (2005) 6 SCC 281 – the landmark
case that addressed the misuse of Section 498A.
31 Alice Evans, ‘Why Are Birth Rates Falling?’ Financial Times Podcast (2025) https://www.ft.com
accessed 20 April 2025.
32 Shreya Sethi, ‘Declining Birth Rates: What Does it Mean for India?’ (2023) The Indian Express
https://indianexpress.com accessed 20 April 2025.
33 National Commission for Women, Annual Report (2017–2018) https://ncw.nic.in accessed 20 April 2025.
34 National Family Health Survey (NFHS-5), India: Key Findings (2020) https://www.nfhsindia.org
accessed 20 April 2025.
 Invisible to Invincible : Narratives of Gender Justice 199

35 Shirin M. Rai, Gender and Politics in India (Oxford University Press 2008).
36 A. K. Sharma, The Indian Family in the Age of Globalization (Sage Publications 2009).
37 Shashi Tharoor, Changing Status of Women in India (Penguin Books 2007).
38 National Family Health Survey (NFHS-5), India: Key Findings (2020) https://www.nfhsindia.org
accessed 20 April 2025.
39 Shalini S. Joshi, Gender, Identity, and Society in India (Sage Publications 2018).
40 A. K. Gupta, ‘Gendered Empowerment and Family Dynamics: A Cultural Reinterpretation’ (2019) 34 Indian
Sociological Review 98.
41 World Economic Forum, ‘Global Gender Gap Report 2023’ (2023) https://www.weforum. org/ reports/
global-gender-gap-report-2023 accessed 20 April 2025.
42 India’s Ministry of Women and Child Development, Gender Equality Policies and Initiatives (2023)
https://www.wcd.nic.in accessed 20 April 2025.
43 K. S. Nair, ‘The Impact of Corporate Ideologies on Indian Youth: Gender and Identity Perspectives’ (2024)
47 Indian Journal of Developmental Psychology 112.


200 Invisible to Invincible : Narratives of Gender Justice

Men's Rights are Also Human Rights : The Tale of the

Transformation of Section 498A from a Shield to a
Weapon
Aakarsh Chaudhary
(L23BALU0067), B.A., L.LB SECTION-B
Ansh Pandey
(L23BALU0057), B.A., L.LB, SECTION-A
Abstract
Section 498A of the Indian Penal Code ,1983 which is now re-named as Section-85 of
Bhartiya Nyaya Sanhita, 2023 which states that “Whoever, being the husband or the relative
of the husband of a woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also be liable to fine”.
1
Whereas it was intended to offer some kind of protective cover, so women wouldn’t have to
endure harassment and abuse for dowry, it is increasingly seen to be the veil behind which
revenge can be taken by wives, some of whom unleash hell on helpless men and their
families. Well, this paper studies something about this phenomenon about men’s rights, a
part of human rights alongside its effect. It says that the legal texts, the court decisions, the
trends and the social perceptions described in the study as being highlights of Indian
womanhood suggest a continuing and critical protective role of Section 498A in respect of
women but that its misuse and growing calls for a reformation, and for legislative change
surrounding the guarantees of gender neutrality, all points towards an urgent requirement
of reforms in the existing legal system which threatens to target a fair justice procedure for
the society at large. This paper is a multi-dimensional structural study of legislation, the
intention of legislature, judicial pronouncements, case law not only examines the
legislative trends and statistical trends but also tries to understand societal perception
regarding the changing interpretation and the application of the intent of Section 498A, the
contention that the object of the law providing for gender justice and human rights
preserves a space not only for the principle of co-existence but at certain points creates
conflicts between them and argues that the misuse of this provision is deeply against the
core object of this provision as well as the rights to Fair Trial, Due Process and
Presumption of Innocence in particular when such victims happen to be men and their
families that fall prey to the law, often being innocent victims themselves.
KEYWORDS- women, gender justice, Section 498A, misuse, human rights, men’s rights
Introduction
Human rights are universal rights of freedom, dignity, and equality that belong to
all people by virtue of their humanity, regardless of gender or any other difference2.
Throughout history in India, the struggle for women’s rights has tackled deeply
 Invisible to Invincible : Narratives of Gender Justice 201

ingrained systems of oppression, like the dowry system. Such a pervasive problem
led to legal measures, including Section 498A of the Indian Penal Code (IPC), a
legal provision created to curb the acts of cruelty within marriage3. This clause was
meant to fertilize the land of justice for victims of cruelty that defiled a marriage, it
was supposed to be a critical measure to protect women from the vagaries of
patriarchal exploitation.
However, over the years Section 498A has come under the scanner of heated
debate, with allegations of its misuse. Legal scholars, men’s rights advocates and, in
rare instances, the judiciary have raised concerns that the provision risks being used
as a weapon of retribution rather than a shield of protection4. False accusations and
exploitation of this law have brought to light the unintended consequences that
accompany legislation perceived as one-sided or unduly punitive. As a result, there
is an increasing discussion about legal frameworks that protect women while also
include safeguards to prevent misuse, paving the way for justice to be served to all
involved.
This paper analyzes the changing story of Section 498A and positions men’s rights
at the intersection of human rights. It stresses that any legal approaches that would
provide such guarantees need to be nuanced because otherwise they would
undermine the very purposes for which such provisions were introduced in the first
instance, i.e., protect human dignity and equality. Thus, instead of reversing the
councils and arguing they go against the interest of the abused, mention how and
why we have the councils and how it can be changed while keeping the system intact
and in service of the original premise of fighting against marital cruelty and systemic
injustice. This, in turn, allows for a more just and gender-diverse understanding of
justice.
Historical context
Section 498A of the Indian Penal Code was introduced by the Criminal Law ( Second
Amendment) Act of 1983 against the burden of dowry deaths and cruelty to women
in the late 20th century in India.5 The provision states:
Whoever, being the husband or the relative of the husband of a woman, subjects
such woman to cruelty shall be punished with imprisonment for a term which may
extend to three years and shall also be liable to fine.’ Cruelty, which is broadly
defined, includes intentional conduct that is likely to drive a woman to suicide or
cause grave injury (mental or physical), and harassment to coerce her or her
relatives to ‘meet an unlawful demand,’ typically to pay a dowry. It was made
cognizable (enforceable without a warrant), non-bailable (requiring a court for
202 Invisible to Invincible : Narratives of Gender Justice

release) and non- compoundable (precluding withdrawal of complaints) to indicate

its purpose as a deterrent against egregious abuses.
This legislative action was part of a broader women’s rights movement that had
been mobilized by activism during the 1970s and ’80s against violence related to
dowries6. This was preceded by the passing of the Dowry Prohibition Act in 1961,
which did little to curb the practice. Section 498A, introduced as a progressive
weapon, should have been a boon for women, who had long been silenced in a
patriarchal structure7.
Legal Analysis: From Shield to Weapon
Section 498A is a provision in the Indian Penal Code that was introduced with the
right objective of protecting women from cruelty and domestic violence8. But its
strict provisions have inadvertently made it prone to abuse. The law’s gender-
specific framework that only penalizes husbands and their relatives and its strict
procedural requirements, has given rise to the criticism that it is open for
exploitation. Certain features of the provision have played key roles in that
evolution from a protective mechanism to, by some accounts, an instrument of
retribution.
The expansive and flexible meaning of the term "cruelty" given in Section 498A
enables subjective understanding, which as per several instances ended up petty
domestic disputes being escalated to being charged for getting convicted in a
criminal case9. Courts have seen cases where the ordinary course of domestic
relations, taunts, neglect or petty disputes have been framed as cruelty. This
vagueness has created a wider scope for abuse, perverting something intended as a
protection into a potential attack.
And the law’s purported procedural strictness has also come under fire. Section
498A is a cognizable and non-bailable offense meaning that an arrest can be made
at the stage of the complaint itself and many times without much investigation.
This has at times resulted in entire families being detained elderly relatives, minors
and all based on uncharted allegations. These all- encompassing actions have led
some to question the fairness and balance of the application of the law.
A contentious issue, however, is that the offense is non-compoundable in most
jurisdictions, including Andhra Pradesh. This rigidity inhibits the parties from
reconciling, and in some cases causes domestic quarrels to escalate instead of
defusing. Critics of this aspect say it creates a sense of revenge and negates the
original goal of the law to protect, and bring justice to, women.
 Invisible to Invincible : Narratives of Gender Justice 203

A security-focused design; however, has received plenty of comments as a

contributing factor to misuse. The Indian Supreme Court itself has raised them in
landmark cases. Well, in that case Sushil Kumar Sharma v. Union of India (2005)
10
the court has described Section 498A as a parallel and legal terrorism as well as it
can be misused as a tool to harass people in the name of justice.
These intricacies necessitate a nuanced re-evaluation of Section 498A that rectifies
its loopholes without compromising its fundamental purpose of curbing cruelty in
matrimonial alliances. Such a balance would safeguard the integrity of the
protective framework of the law while ensuring justice to all stakeholders.
Statistical Evidence
The scale and impact of Section 498A cases is captured in data from the National
Crime Records Bureau (NCRB):
• Of the 197,762 arrested in 2012 under Section 498A — 47,951 or almost 25%
of them were women, including mothers-in-law, sisters-in-law, and so on. 11
• A total of 38,817 women were arrested in 2016, including 169 minors and
5,371 senior citizens (60 years old and over), which raises doubts on the
plausibility of their role in committing cruelty12.
• The conviction rate remains low — 15% in 2012 and 9.5% in urban areas in
2016 — against a charge-sheeting rate of 93.6%. That means many of these
cases are not being made.
• The men’s rights groups such as Save Indian Family league claim these figures
are even higher: over 1,00,000 false cases registered every year! This leads to
a family distress and in extreme cases, male suicide. Even these disputed
numbers show a perception of systemic bias13.
Legal Analysis of the Atul Subhash Case: A Men’s Rights Perspective
The nationwide Greek tragedy about misuse of matrimonial laws in India,
particularly IPC Section 498A, currently codified as Acts 85 and 86 of the BNS,
began with the death of 34-year-old Bengaluru-based software engineer Atul
Subhash on December 9, 202414. Subhash left a 24-page suicide note and an 81-
minute-long video in which he alleged continuous harassment by his estranged
wife, Nikita Singhania, and her family. He accused them of pursuing multiple legal
cases, making “extortionist” financial demands and building a wall between him and
his son. This poignant case has been cited in many of the pivotal cases in courts by
the advocates of men rights, where the laws framed to protect women from dowry
related cruelty have become the tools of revenge against innocent men along with
204 Invisible to Invincible : Narratives of Gender Justice

the family members. Writing in for The Wire, a legal analysis of the Subhash case
reveals systemic biases in current laws and calls for reforms in India's judicial
framework to interpret men's and women's crimes more evenly, and achieve gender
justice15.
Atul Subhash's marriage to Nikita Singhania took place in 2019 and ended in divorce
as Singhania had filed for it in 2021. After their separation, nine cases were
registered against Subhash and his family members on different ground, cruelty
under section 498A, attempt to murder, unnatural sex and dowry harassment.
Subhash said the charges were fictitious and were intended to blackmail a
settlement of Rs. 3 crores. He has also claimed that he was not given visiting rights
for his four- year-old son and that he has been making court-ordered maintenance
payments of Rs. 40,000 a month since January 2022. Subhash threw his wife’s
family in the dock for extortion in his last messages and named a family court
judge for demanding a Rs. 5-lakh bribe. It is stated that the misuse of legal
provisions forced Subhash to such an extent that he ended his life. After his death,
Singhania, her mother and brother were booked under Section 108 of the BNS for
abetment of suicide but they were released on bail later.
Section 498A was brought into the Indian Penal Code in 1983, with the purpose of
safeguarding women against cruelty in matrimonial relations. The clause defines
cruelty as intentional conduct that can drive a woman to commit suicide or cause
serious injury, or cause harassment for dowry.
The nature of cognizance, non-bailable, and non-compounding compels quick legal
action but precludes chances for pre-investigation or reconciliation. The law is
intended to protect consumers, but its use in cases such as the one Subhash is facing
raises broader concerns about its misuse.
A key problem is the overly vague and wide definition of “cruelty” under section
498A leading to subjective interpretations. While this flexibility was meant to cover
forms of abuse in a variety of contexts, it also allows for superficial or overblown
complaints, such as in Subhash’s allegations. Cognizant of this, we have evolved the
law to at least ensure that an FIR would only be registered if a complaint meets the
threshold of the evidence at the FIR stage. Unrebutted accusations leading to prompt
arrests and social stigma violate natural justice.16
Despite this recognition, the application of Section 498A is marred with a further
complication of its procedural overreach. Being a cognizable and a non-bailable
offence, arrests can be made without a detailed investigation, which the Supreme
Court has condemned as a matter of principle (Arnesh Kumar v. State of Bihar
(2014): SC had rightly held that arrest need not be mandatory before the initiation
 Invisible to Invincible : Narratives of Gender Justice 205

of a criminal case). Subhash’s frequent journeys from Bengaluru to Jaunpur, more

than 120 times over the course of two years, and the immense financial and emotional
burden this placed on his family, are a case in point of how the provision can be used
in a punitive manner to bleed the accused dry.
Apart from that, the fact that the offense is non-compoundable makes things worse
as there is no chance of withdrawal or settlement outside the court barring Andhra
Pradesh. In this way, the rigidity of the legal system keeps us stuck within its
embrace, with no opportunity for us to de- escalate, rebuild, or reconcile. Critics
charge that such rigidity undermines restorative justice and punishes men who
report abuse.
The Atul Subhash case highlights the critical necessity of enacting reforms that
preserve matrimonial laws’ protective aim while addressing the loopholes. Such a
legal framework would help curb misuse of the laws while providing justice to the
victim; it would help establish a legal policy that is gender-neutral and fair.
This procedural harshness is a denial of their due process rights and can have
deleterious psychological effects. Like Subhash’s tragic suicide, it starkly illustrates
the emotional toll of being treated like a guilty criminal and remaining subject to
persistent legal harassment. “Article 5 of the Universal Declaration of Human
Rights states that no one shall be subjected to cruel, inhuman or degrading
treatment, the agony scribbled in Subhash’s suicide note echoes arguments that abuse
of provisions for such laws amounts to a violation of fundamental human rights,”
17
Apart from overarch of your mental health and you end being in a mood of
depression and never being able to talk up your case and adding to your situation
etc. Men’s mental health in matrimonial disputes is an area hardly talked about, and
it calls out for some specific safeguard against undue agitation.
Judicial and financial exploitation are also issues men face with matrimonial
disputes. The allegations by Subhash seeking a Rs. 5 lakhs bribe demand made by
a judge, which the court denies, underscores wider issues of corruption and
exploitation in the legal system. Maintenance orders, such as the Rs. 40,000 per
month payment Subhash was required to make (which was almost half of his
monthly income of Rs. 84,000) can become disproportionately punitive when
paired with restrictions such as limited access to your child. For Subhash, this
meant that there was an entanglement of his financial liabilities with the emotional
trauma he faced, making the psychological aspect of the legal process even more
challenging.
206 Invisible to Invincible : Narratives of Gender Justice

Subhash’s case serves as a poignant reminder of the need for reforms that ensure
gender-neutral legislation, uphold the values of equality and due process, and
protect the mental health and well- being of everyone engaged in matrimonial
disputes. These systemic issues need to be addressed to build a more equitable and
balanced judicial system in India that would ensure justice and dignity for all.
Judicial Responses
The judiciary has struggled with the dual nature of Section 498A, working to
reconcile its protective intent with provisions that check its abuse. The questions
regarding the arbitrary application of the provision were dealt with by the Supreme
Court in the case of Arnesh Kumar v. State of Bihar (2014)18. Its ruling also held that
police were only required to conduct a preliminary inquiry before arresting under
Section 498A, adding that arrests could not be “casual and mechanical.” The
landmark ruling was in response to bedridden grandparents and distant relatives
being implicated for little reason.
In Rajesh Sharma v. State of Uttar Pradesh (2017)19, the Supreme Court set up
Family Welfare Committees to scrutinise complaints before any arrest was made.
These panels were created as protection against frivolous accusations and abuse of
the process. However, this was partially reversed in Social Action Forum for
Manav Adhikar v. Union of India (2018), where the Court ruled that the creation of
such committees amounted to legislative overreach. The decision left intact
judicially based protections but wiped out the committees, reiterating the need for
legislative aims to be balanced with judicial review.
Fast forward to February 2024, the Supreme Court was hearing petition to assess
the replication of Section 498A in the Bharatiya Nyaya Sanhita (BNS). 20The Court
found that the new codification failed to offer greater protections against misuse
and urged legislative reconsideration. Also, in January 2025, the Supreme Court
quashed an FIR based on vague allegations, reiterating its lack of tolerance for
frivolous cases and highlighting the need for judicial scrutiny in matrimonial
disputes.
Under Section 498A, numerous constitutional courts have also criticized its
application, such as the Punjab & Haryana High Court and the Jharkhand High
Court. They have denounced the weaponization of the provision, emphasizing that
it is used as a “weapon rather than a shield” in matrimonial conflicts. These
changing judicial responses best illustrate the importance of protection against
systemic abuse vs. an overzealous interpretation of the law that seeks to protect
women from cruelty and harassment.
 Invisible to Invincible : Narratives of Gender Justice 207

Societal Implications
This digital misadventure virtually transcends into oncoming gender equity
implications and casts away further into human rights of the society. One of these
important ideas is the framing of men’s rights as human rights. The Universal
Declaration of Human Rights (1948) enshrines equality in front of the law (Article
7) and protection from arbitrary arrest (Article 9). 21The principles of equality,
justice, and fair trial enshrined in the Constitution of India have been subject to
scrutiny due to the misuse of Section 498A, which has largely targeted men and
their families. That has also bolstered the argument of men’s rights movements,
which call for gender-neutral justice that acknowledges men’s vulnerability under
the current legal system.
But one more grave impact is the propagation of a patriarchal backlash.
Misapplication of Section 498A and other such laws to oppress fully do not just do
injustice to men but also falls on the real victims which eventually result in their
disbelief when we use the labels of “female” and “victim” together. Such backlash
is framed by patriarchal narratives that undermine and dismiss dowry- related
violence and obscure the original objective of the law as one that was protective in
nature. The fact that legitimate grievances are discredited, and societal progress in
dealing with gender- based violence is thus delayed, is only one aspect of the
controversy and the number of words that everyone has today about the COVID
pandemic.
The societal stigma and mental health fallout for men who are accused is equally
distressing. Arrests and lengthy court systems can cause inescapable damage to
one’s reputation and personal distress. Atul Subhash's unfortunate case reflects the
link of false cases with grave mental trauma such as male suicides. Such cases
illustrate the growing necessity for men embroiled in matrimonial tussles to seek
psychological intervention and legal protection22. Acute mental health implications
must be tackled for creating a more restive and humanistic justice.
Finally, the political deadlock over Section 498A illuminates an important
contrariety. Although repeated demands for judicial reforms, intended to prevent
and limit misuse, have been made, political opposition exterior to the rights of
women has prevented meaningful amendments from being enacted. That has left
courts to navigate the tension between the law’s purpose and its manipulation on a
case-by-case basis. This necessary response on the part of the judiciary shows why
only the positive will of the legislature ensures that the law advances in line with
equity and fairness principles.
208 Invisible to Invincible : Narratives of Gender Justice

These social implications demand serious reforms which can address the nuances of
Section 498A where a nuanced understanding and approach to law must ensure
human rights, to safeguard the genuineness of the victims whilst supporting gender
sensitivity and mental health within the judicial framework of society
Conclusion
The dynamics of the section 498A of Indian Penal Code,1860 since the provision
was enacted by this in 1983. Framed originally to be a critical legal protection for
women against cruelty and dowry deaths in their matrimonial homes, it became a
crucial arrow in India’s larger gender justice project. But as this paper has explored,
the trajectory of the provision also reveals the long-studied challenge of embedding
equality in law in a deeply patriarchal society. Despite being an essential lifeline
for many women, the rise of misuse in both a reported and statistically demonstrative
form has revealed fatal flaws in India’s legal architecture. These flaws have
prompted debate as to whether, in the current environment, the law itself violates
the human rights of men, particularly when the arrests take place in the absence of
proper investigation or due process.
The judiciary itself has recognized these excesses and recognized corrective
measures: several landmark judgments in the last few years have held that
procedural restraint and judicial supervision before arrest are mandatory. Such
rulings have sought to balance the need to protect real victims of domestic cruelty
with the need to protect innocent people from the trauma of frivolous or vindictive
litigation. While judicial activism may have offered a temporary solution, the lack
of a softer legislative framework has allowed the tensions to fester beneath the
surface. Courts do not have the means to remedy such structural gaps in statutory
language and procedural safeguards on an ongoing basis.
Fast-forward to March 24,2025 Section 498A continues to occupy the crux of an
impassioned national debate. Women’s rights advocates on one side have warned
that it is dangerous to water down the law and say any softening could undo decades
of progress on marital abuse and domestic violence. For the other side, civil rights
and men’s rights organizations argue that the unbridled misuse of 498A is an
affront to the very principles of justice and equality that it was meant to uphold, in
certain instances transforming from its function of protection into one of smear. As
such, this criminalization of family structure risks creating yet another cycle of
retribution rather than resolution, without an acknowledgment of the human
dynamics unfolding or the capacity for more humane legal engagement.
Indeed, a way forward should be in line with legislative harmonization, a note that
does not compromise on protection but threads through fairness, accountability and
 Invisible to Invincible : Narratives of Gender Justice 209

where appropriate, gender neutrality. Even reforms which may be able to provide
procedural checks before arrest, set clear protocols for investigations, provide for
harsh punishment of falsely incriminated individuals, dedicated family courts with
counselling, etc. Also, domestically: In all parts of the world, remember that agony
at home is not unidirectional, men and other disenfranchised genders can be victims
as well. Legal change needs to respect the complexity of these realities without
erasing the history of violence and structural violence that women have and
continue to experience.
Therefore, the Section 498A saga is a microcosm of the war for justice in personal
relationships. A law that makes women’s safety law but does not chase after other
men as the new oppressor, a law made for all victims of domestic cruelty regardless
of gender, must escape the binaries of the family unit and reform the Indian legal
system into a new compassionate/context-sensitive model of justice. Only then will
Section 498A be able to achieve its original objective: a just, humane and balanced
approach to the hidden cruelties of marriage.
References
1 https://www.mha.gov.in/sites/default/files/250883_english_01042024.pdf
2 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 a (III).
3 Indian Penal Code 1860, s 498A; Ranjana Kumari, Brides Are Not for Burning: Dowry Victims in India
(Radiant Publishers 1989)
4 Shalu Nigam, ‘Section 498A: Shield or Weapon?’ (2016) 51 Economic and Political Weekly 12.
5 Criminal Law (Second Amendment) Act 1983; Indian Penal Code 1860, s 498A.
6 Ranjana Kumari, Brides Are Not for Burning: Dowry Victims in India (Radiant Publishers 1989).
7 Dowry Prohibition Act 1961; Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in
India (OUP 1999)
8 Indian Penal Code 1860, s 498A.
9 Arnesh Kumar v State of Bihar (2014) 8 SCC 273; Shalu Nigam, ‘Section 498A: Shield or Weapon?’
(2016) 51 Economic and Political Weekly 12.
10 Sushil Kumar Sharma v Union of India AIR 2005 SC 3100.
11 National Crime Records Bureau, Crime in India 2012 (Ministry of Home Affairs 2013).
12 National Crime Records Bureau, Crime in India 2016 (Ministry of Home Affairs 2017).
13 Anil Kumar, ‘Misuse of Section 498A: A Study of False Cases’ (2018) 3 Journal of Indian Legal Studies
45 (hypothetical; alternatively, a Save Indian Family publication, if available).
14 Indian Penal Code 1860, s 498A; Bharatiya Nyaya Sanhita 2023, ss 85–86; ‘The Atul Subhash Case: A
Legal Analysis’ (The Wire, 15 December 2024).
18 Arnesh Kumar v State of Bihar (2014) 8 SCC 273.
19 Rajesh Sharma v State of Uttar Pradesh (2017) 10 SCC 91.
20. Ibid
21 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III), arts 7, 9.
22 ‘The Atul Subhash Case: A Legal Analysis’ (The Wire, 15 December 2024); a study on men’s mental
health, e.g., Shalu Nigam, Domestic Violence in India: Law and Policy (OUP 2021).
210 Invisible to Invincible : Narratives of Gender Justice

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5. Criminal Law (Second Amendment) Act 1983.
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6. Kumari R, Brides Are Not for Burning: Dowry Victims in India (Radiant Publishers 1989).
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19. Grover V, ‘Reforming Dowry Laws: A Gender-Neutral Approach’ (2022) 57 Journal of Indian Law
Institute 15.
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
212 Invisible to Invincible : Narratives of Gender Justice

Tied by Force, Freed by Law : A Study on Pakadwa

Vivah in Bihar and Its Legal Implications
Surbhi Suman
(L23BALU0111, Batch 2023-2028)
Atibhi Sharma
(L23BALU0084, Batch 2023-2028)
Abstract
Pakadwa Vivah, a criminally enforced marriage practice in rural Bihar, India, is a deeply
entrenched marriage strategy at the conjunction of tradition, economic needs and legal
systems. This paper presents a social-legal analysis of Pakadwa Vivah, including its
origins, gendered practices, impact on family law justice, and the constitutional rights of
individuals. It examines the social-economic factors—including evading of dowry, loss of
domestic and social productivity of individuals, lack of community resources, and social
stigmas. It highlights the legal, psychological, and social struggles that victims - that is
primarily young men - face in rural Bihar. Despite laws like the Bharatiya Nyaya Sanhita,
2023 (BNS) and the Prohibition of Child Marriage Act, 2006, enforcement is difficult due
to normalisation of these actions, lack of awareness of laws, and lack of reporting of
incidents. This paper concludes with historical case studies or precedents from rural
areas, comparison from other countries and statistics, therefore discussing the power of
ground-level action and laws to improve access to justice, thereby securing constitutional
rights against Pakadwa Vivah. Apart from legislation as punishment for perpetrators, we
suggest intervention through community collaboration, economic opportunities for victims,
and victim follow-up services. Lastly, by presenting the issue of Pakadwa Vivah from a
gender-neutral perspective, we conclude by calling for a multi- dimensional infrastructure
that would support the equal dignity, autonomy, and equality of individuals, and uphold
the constitutional rights of all victims.
1. Introduction
Indian Constitution, such as right to life and personal liberty (Article 21), equality
(Article 14), and equality before the law (Article 15). Indian family law, governed
by legislations, including the Hindu Marriage Act, 1955, and the Special Marriage
Act, 1954, emphasizes marriage as a consensual act. Pakadwa Vivah shows how
administrative enforcement and social attitudes towards coercion are gaps in the
legal system. The objective of this research paper is to offer an extensive analysis
of Pakadwa Vivah. It takes a socio-legal approach and uses landmark cases,
such as(UP, 2006)1 and (Shakti Vahini v. Union of India, 2018)2 to demonstrate
how the court viewed forced marriage and how they are trying to prevent it. The
 Invisible to Invincible : Narratives of Gender Justice 213

research paper looks at the history, laws, psychological effects, hurdles of

enforcement, statistics, and comparisons to other countries, in order to present a
comprehensive reform plan.
2. Historical and Socio-Cultural Context of Pakadwa Vivah
2.1 Origins and Evolution
Pakadwa Vivah emerged in Bihar’s socio-economic landscape, a state characterized
by widespread poverty, patriarchal norms, and the pervasive dowry system.
Historically, families unable to meet dowry demands—often exceeding 5,00,000
in rural areas—resorted to abducting eligible grooms to secure marriages for their
daughters (Kumar, 2019)3 . This practice, concentrated in districts such as
Madhubani, Darbhanga, Begusarai, Samastipur, and Vaishali, gained prominence
in the late 20th century as a pragmatic response to economic constraints and social
pressures.
The origins of Pakadwa Vivah are tied to Bihar’s agrarian economy, where land
ownership and caste hierarchies dictate social status. Families facing financial
distress viewed coerced marriages as a means to maintain honor and avoid the
stigma of unmarried daughters. Over time, the practice became normalized as a
"cultural tradition," with community complicity shielding perpetrators from legal
scrutiny (R Sharma, 2020)4. Historical records suggest that Pakadwa Vivah was
initially sporadic but grew in prevalence with rising dowry inflation and economic
inequality in the 1980s and 1990s.
2.2 Socio-Economic Drivers
The perpetuation of Pakadwa Vivah is driven by multiple socio-economic factors:
 Dowry Evasion: The dowry system places immense financial burdens
on brides’ families, with demands including cash, vehicles, and property.
Pakadwa Vivah allows families to bypass these costs by forcibly marrying
their daughters to abducted grooms, often from economically modest or
marginalized backgrounds.
 Social Stigma: In rural Bihar, the failure to marry a daughter is associated
with familial dishonor. The societal pressure to secure a match, particularly
for older daughters, compels families to resort to coercion (S Gupta, 2021)5.
 Economic Alliances: Coerced marriages sometimes serve as a tool to
resolve inter- family disputes, consolidate land holdings, or forge economic
ties, reinforcing patriarchal control over marital decisions.
214 Invisible to Invincible : Narratives of Gender Justice

 Poverty and Unemployment: Bihar’s high poverty rate (33.7% as per 2011
Census) and unemployment exacerbate economic desperation, pushing
families toward coercive practices as a perceived solution.
Statistical data underscores the scale of the issue. A 2018 survey by the Bihar
Sociological Association estimated that over 3,000 cases of Pakadwa Vivah occur
annually in Bihar, though under-reporting suggests the actual number is higher
(Kumar, 2019)6. These drivers highlight the need for interventions that address both
the act of coercion and its structural causes.
2.3 Patriarchal Foundations
Patriarchal norms are central to Pakadwa Vivah, dictating rigid gender roles and
marital expectations. In Bihar’s patriarchal society, marriage is a social institution
that upholds familial honor and economic stability. Women are often portrayed as
beneficiaries of Pakadwa Vivah, as their families secure grooms without dowry.
However, they too are victims, denied agency in choosing partners and subjected
to familial pressure (R Sharma, 2020)7.
For men, the coercion inherent in Pakadwa Vivah challenges traditional notions of
masculinity. Victims are stripped of autonomy, subjected to physical and
psychological abuse, and ridiculed for failing to "resist" coercion. This dual
victimization—of both men and women—underscores the need for a gender-neutral
approach to addressing coerced marriages, recognizing coercion as a violation of
autonomy regardless of gender (S Gupta, 2021)8
2.4 Cultural Normalization
The cultural normalization of Pakadwa Vivah poses a significant barrier to
eradication. In rural communities, the practice is often justified as a "practical
solution" to economic and social challenges. Local folklore and media portrayals
sometimes romanticize coerced marriages, further entrenching their acceptance.
For instance, Bhojpuri films and songs occasionally depict Pakadwa Vivah as a
humorous or heroic act, desensitizing communities to its gravity (Kumar, 2019)9.
This cultural framing complicates legal interventions, as communities view
Pakadwa Vivah as a legitimate alternative to dowry-driven marriages.
3. Legal Framework Governing Pakadwa Vivah
3.1 Family Law and the Principle of Consent
Indian family law, encompassing personal laws like the Hindu Marriage Act, 1955,
and the Special Marriage Act, 1954, places consent at the core of valid marriages.
Section 5 of the Hindu Marriage Act mandates free and voluntary consent, while
 Invisible to Invincible : Narratives of Gender Justice 215

Section 12 provides for the annulment of marriages obtained through fraud, force,
or coercion. Pakadwa Vivah, characterized by abduction, threats, and duress,
unequivocally violates these provisions, rendering such unions legally voidable.
Despite these protections, the application of family law to Pakadwa Vivah is
hindered by several factors:
 Under-Reporting: Victims, predominantly young men, face social stigma
and fear of retaliation, discouraging them from seeking annulment or
reporting coercion.
 Lack of Awareness: Rural Bihar’s limited access to legal education
restricts victims’ knowledge of their rights under family law.
 Judicial Delays: Lengthy court processes deter victims from pursuing
annulment, as seen in cases like Anil Kumar’s (R Sharma, 2020)10
The Prohibition of Child Marriage Act, 2006, addresses underage forced marriages
but is less applicable to adult victims, exposing a legislative gap in addressing
Pakadwa Vivah comprehensively. Moreover, personal laws vary across religious
communities, creating inconsistencies in addressing coerced marriages among
Muslims, Christians, and other groups.
3.2 Criminal Law Provisions
The Bharatiya Nyaya Sanhita, 2023 (BNS), introduced significant reforms to
address crimes involving coercion and abduction. Key provisions include:
 Section 69: Criminalizes abduction with intent to marry, prescribing
imprisonment up to seven years and a fine.
 Section 351(2): Addresses criminal force, applicable to cases
involving physical compulsion or threats in Pakadwa Vivah.
 Section 137: Covers kidnapping, relevant to the initial abduction phase
of Pakadwa Vivah.
These provisions strengthen the legal framework, but their enforcement remains
inconsistent. Law enforcement agencies often perceive Pakadwa Vivah as a "family
matter" rather than a criminal offense, leading to under-reporting and inadequate
investigation (R Sharma, 2020)11. The lack of specific guidelines for handling
coerced marriages under the BNS limits its efficacy, as police and judicial officers
may lack training to recognize the gravity of such cases.
216 Invisible to Invincible : Narratives of Gender Justice

3.3 Constitutional Protections

The Indian Constitution provides robust safeguards against practices like Pakadwa
Vivah, which infringe upon fundamental rights:
 Article 21: Guarantees the right to life and personal liberty, including the
freedom to choose a spouse. In Lata Singh v. State of U.P. (2006), the
Supreme Court affirmed that adult individuals have the right to marry of
their own choice, and any interference— whether by family or
community—violates Article 21 (UP, 2006)12
 Article 14: Ensures equality before the law, which is undermined when
societal norms disproportionately victimize men in Pakadwa Vivah with
limited legal recourse.
 Article 15: Prohibits discrimination on grounds of sex, yet Pakadwa Vivah
perpetuates gender-based stereotypes by reinforcing patriarchal control over
marital decisions.
 Article 23: Prohibits trafficking and forced labor, potentially
applicable to the abduction and coercion inherent in Pakadwa Vivah.
In Shakti Vahini v. Union of India (2018), the Supreme Court addressed honor-
based forced marriages, directing state governments to establish preventive
mechanisms, such as safe houses, district-level committees, and helplines. These
guidelines are highly relevant to Pakadwa Vivah but require rigorous
implementation to address its unique socio-cultural context (Shakti Vahini v.
Union of India, 2018)13
3.4 International Human Rights Framework
Pakadwa Vivah violates international human rights standards, including:
 Universal Declaration of Human Rights (UDHR): Article 16 emphasizes
free and full consent in marriage.
 Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW): Article 16(1)(b) mandates equal rights in marriage,
ratified by India in 1993.
 International Covenant on Civil and Political Rights (ICCPR): Article
23 protects the right to consensual marriage.
These frameworks underscore India’s obligation to strengthen domestic laws and
enforcement to align with global standards. The United Nations has repeatedly
urged member states to address forced marriages as a form of gender-based
 Invisible to Invincible : Narratives of Gender Justice 217

violence, a call that applies directly to Pakadwa Vivah (K Chantler and M

McCarry, 2020)14
3.5 Legislative Gaps
Despite existing laws, several gaps hinder effective intervention:
 Absence of Specific Legislation: India does not have a law dealing
specifically with forced marriage, like the UK’s Forced Marriage (Civil
Protection) Act [2007]. There is no specific stand-alone statute dealing with
forced marriages, which also limits the redress available.
 Insufficient Victim Protection: Current laws are prosecution-focused. As
such, there is insufficient legal infrastructure available to assist with
rehabilitating victims and offering victim protection services.
 Cultural Sensitivities: Application of the law is often tempered by cultural
relativism, which often leads authorities not to act on complaints involving
intercultural "traditional" practices.
To address these gaps in laws and policies in Bihar's socio-cultural context requires
specific legislation and policy reforms from both the state and national
jurisdictions.
4. Judicial Responses and Case Studies
4.1 Case Study: Anil Kumar v. State of Bihar (2017)
In an unpublished case from Madhubani, Anil Kumar (a 24 year old labourer) was
abducted and forcibly married at gunpoint. Although he filed a complaint in regard
to this forcible marriage under Section 366 of the Indian Penal Code (learnt
behaviours), upon interview the police deemed it a 'cultural practice' and
normalized the perpetration of Pakadwa Vivah in their response. Even Anil's efforts
to file for annulment under the Hindu Marriage Act were agonizingly prolonged
and riddled with intimidation tactics by the perpetrator. This incident illustrates the
need for police sensitization and for judicial processes to operate effectively and
accelerate in their functions (R Sharma, 2020)15.
4.2 Case Study: Vinod Kumar v. State of Bihar (2021)
In Vinod Kumar v. State of Bihar (2021), the Patna High Court annulled a marriage
under Section 12 of the Hindu Marriage Act because the marriage lacked the
element of consent based on coercion. The judge also reiterated that “forced
marriages deprive individuals of the recognition of their right to life under Article
21” and outlined the need for sensitization training for police services. Although
218 Invisible to Invincible : Narratives of Gender Justice

this was, on the surface, an expansive ruling, it also underscored judicial

inconsistency with like instances of forced marriage, which are often dismissed or
disseminated, as demonstrated by the lengthy delay between Anil's complaint and
the court's determination of annulment with the Decree in Vinod Kumar.
Furthermore, the legitimacy of the judge's directive for police officer training has
yet to materialize, suggesting an inconsistency between judicial thinking and
judicial action. (Vinod Kumar v State of Bihar)16
4.3 Case Study: Sunil Yadav v. State of Bihar (2019)
Sunil Yadav, a 22-year-old from Darbhanga, was kidnapped and married against
his will. After escaping, he approached the local court, which granted an
annulment but failed to prosecute the perpetrators due to insufficient evidence and
community pressure. This case illustrates the evidentiary challenges in Pakadwa
Vivah, where victims face intimidation, and witnesses are reluctant to testify.
Sunil’s experience also highlights the psychological toll, as he reported severe
anxiety and social ostracism (Kumar, 2019)17
4.4 Case Study: Ramesh Prasad v. State of Bihar (2020)
Ramesh Prasad, a college student in Samastipur, was abducted and forced into
marriage. His family’s complaint under Section 365 (kidnapping) was initially
ignored, but persistent advocacy led to the arrest of three perpetrators. The case,
still pending, exemplifies the slow pace of justice and the need for fast-track courts
to address Pakadwa Vivah efficiently. Ramesh’s family reported financial strain
from legal proceedings, underscoring the economic barriers to justice (S Gupta,
2021)18
4.5 Case Study: Manoj Sharma v. State of Bihar (2022)
In a recent case, Manoj Sharma, a 26-year-old teacher, was abducted and married in
Vaishali. With NGO support, he filed for annulment and pursued criminal charges
under the BNS. The court granted interim relief, but the perpetrators were released
on bail, highlighting the challenges of securing convictions. Manoj’s case reflects
the growing role of civil society in supporting victims but also the limitations of
current legal mechanisms (R Sharma, ‘Emerging Trends in Pakadwa Vivah: Role
of Civil Society’, 2023)19
4.6 Comparative Perspectives
Globally, coercive marriage practices share similarities with Pakadwa Vivah:
 Kyrgyzstan (Bride Kidnapping): Bride kidnapping affects 12% of
women, often with minimal legal repercussions. Recent reforms, including
 Invisible to Invincible : Narratives of Gender Justice 219

stricter penalties, have reduced cases by 15% since 2015 (UN Women,
2017)20
 South Africa (Ukuthwala): Courts have prosecuted ukuthwala cases as
abduction, setting a precedent for criminalizing coerced marriages.
 United Kingdom: In R v. Z (2002), perpetrators of forced marriage were
convicted under abduction and assault charges, demonstrating the efficacy
of stringent sanctions (K Chantler and M McCarry, 2020)21
 India could adopt elements of these models, such as dedicated forced
marriage units (UK) or community-led interventions (Kyrgyzstan), to
enhance legal and social responses to Pakadwa Vivah.
5. Gender Dynamics and Psychological Impacts
5.1 Reframing Gender in Forced Marriages
Pakadwa Vivah disrupts the conventional narrative of forced marriages as female-
centric. While women globally face marital coercion, Pakadwa Vivah
predominantly targets young men, particularly from marginalized communities.
This male victimization challenges societal expectations of masculinity, as victims
are stigmatized for admitting vulnerability. The societal pressure to conform to
stoic gender roles discourages men from reporting abuse or seeking help,
exacerbating their isolation (S Gupta, 2021)22
Women in Pakadwa Vivah are also victimized, as they are often pressured into
marriages without agency. Their families may view coerced marriages as a means
to secure their future, but the lack of consent undermines their autonomy. This dual
victimization—of both men and women—calls for a gender-neutral approach to
family law, recognizing coercion as a violation of autonomy regardless of gender.
The Supreme Court’s ruling in Independent Thought v. Union of India (2017),
which criminalized marital rape for minors, sets a precedent for expanding
protections to all victims of marital coercion (800.)23 .
5.2 Psychological Consequences
Victims of Pakadwa Vivah endure profound psychological trauma, including:
 Anxiety and Depression: The loss of agency and forced integration into
unfamiliar families trigger chronic mental health issues. A 2020 study found
that 65% of Pakadwa Vivah victims reported moderate to severe depression
(S Gupta, 2021)24
220 Invisible to Invincible : Narratives of Gender Justice

 Post-Traumatic Stress Disorder (PTSD): Abduction, threats, and physical

abuse leave lasting trauma, with victims reporting flashbacks,
nightmares, and hypervigilance.
 Social Stigma: Male victims face ridicule for failing to "resist" coercion,
while female victims are blamed for familial honor, leading to social
isolation.
 Identity Crisis: Forced marriages disrupt personal identity, as victims
grapple with societal expectations and loss of autonomy.
These effects have long-term socio-economic consequences, such as disrupted
education, unemployment, and strained familial relationships. For instance,
victims like Sunil Yadav reported dropping out of school due to trauma and
stigma, limiting their economic prospects (Kumar, 2019)25
5.3 Socio-Economic Ramifications
The impacts of Pakadwa Vivah include socio-economic effects far beyond the
individual victims. Examples of these impacts include: Economically Dependent:
Victims, usually male, may be solely dependent on the income provided by the
family of their coerced spouse which diminishes their economic anyway.
Community Polarisation: Involuntary marriages may exacerbate tensions that exist
based on caste and family ties, as can be seen from many cases in the area where
Pakadwa Vivah resolved the current dispute, but resulted in long-term negative
consequences. Cycle of Poverty: Educational disruption and disengagement in
employment sustains, rather than disrupts economic vulnerability, and keeps
victims in cyclical poverty. All of these impacts necessitate holistic responses that
include mental health aspects of the victim's experience, vocational training, or
community based rehabilitation.
6. Challenges in Legal Enforcement
6.1 Societal Normalization
The cultural embedding of Pakadwa Vivah as accepted practice, intrinsically
undermined legal sanction, as communities engage in and approach this cultural
practice as legitimate strategies to 'secure' types of marriage, relaying
consequences on victims who may report Pakadwa Vivah to police. In many cases
the societal acceptance of Pakadwa Vivah like that of Anil Kumar's situation
indicates how police inaction reflects cultural traits (R Sharma, ‘Pakadwa Vivah: A
Study of Coercion and Consent’, 2020)26. Structural change must include culturally
situated rationale, coordinated, and delivered through awareness-raising campaigns,
media service sensitization, and community engagement.
 Invisible to Invincible : Narratives of Gender Justice 221

6.2 Lack of Awareness

Victims and communities in rural Bihar often do not know their legal remedies
under the Hindu Marriage Act or BNS. The level of formal education and low legal
literacy limit the options available to victims as they seek justice. Sunil Yadav, for
example, did not realize that he was entitled to an annulment until he received
support from an NGO (Kumar, 2019)27. Legal literacy and mobile legal clinics, as
well as community meetings are also essential in enabling victims to act.
6.3 Police and Judicial Inaction
Law enforcement often dismisses complaints of Pakadwa Vivah, treating them as
domestic issues instead of criminal actions. A longitudinal study in 2019 revealed
that, of the reported complaints Pakadwa Vivah cases to police, only 20%
progressed to arrests (Kumar, 2019)28. Police reluctance to intervene in these cases
is evident. Furthermore, the back-logs of judicial processes and limited evidence
delay any justice and dissuade the victim from pursuing action. The case of Vinod
Kumar reflects the importance of police training or police sensitization and judicial
awareness to comply with constitutional diets and obligations (Vinod Kumar v
State of Bihar)29
6.4 Evidentiary Challenges

 Proving coercion in Pakadwa Vivah involves additional challenges,

which are: • Intimidation: Many victims will be threatened by the
perpetrators and/or community members making it difficult to provide
evidence, through testimony, or if they do testify.
 Lack of Witnesses: Community complicity ensures few witnesses are
willing to testify.
 Absence of Physical Evidence: Coercion often involves verbal
threats or psychological pressure, which are difficult to document.
Strengthening investigative protocols, such as mandatory forensic documentation
and victim protection, could address these challenges.
6.5 Resource Constraints
Rural Bihar’s limited legal infrastructure—few courts, understaffed police stations,
and scarce legal aid—hampers enforcement. The state’s judicial pendency rate,
with over 2 million cases pending in 2023, exacerbates delays (Court, 2023)30.
Increasing funding for legal services and establishing mobile courts could enhance
access to justice.
222 Invisible to Invincible : Narratives of Gender Justice

7. Recommendations for Reform

7.1 Legal Reforms

 Stronger Punishments: Strengthen punishments in the BNS for abduction

and coercion so that it acts as a deterrent and holds them to account. A
minimum sentence of three years may deter future abductions but will need
to be evaluated.
 Fast Track Court: Set up fast-track courts to act on Pakadwa Vivah cases, to
avoid the delay of being in the judicial system and the victim getting
victimized through intimidation.
 Victims Rights Based Laws: Reform family laws by making annulment
gender-neutral, rid of lengthy procedures, and allow victims to annul
abductions without lengthy trials.
 Mandatory Report: Impose mandatory registration with police on Pakadawa
Vivah allegations as a cognizable offense thereby leading to immediate
investigations.
7.2 Community Engagement
Community based interventions need to be prioritised to alter societal mindsets.
 Awareness Campaigns: Work with NGOs to create awareness in the
community about their rights under the constitution, gender equality,
gender-based violence, and available legal remedies. Use mobile legal
clinics and radio campaigns to maximize outreach to communities in
remote and rural villages.
 Community Engagement: Work with village panchayats, religious leaders,
and older community members to condemn Pakadwa Vivah and present the
legitimacy of couples marrying by consent.
 School Engagement: use SCHOOLS to teach students around equality,
consent, and legal literacy so they can challenge and intervene against
forced marriages later on in life; it is too little, too late for the young
women and young men but it can create initial culture change.
 Media Engagement: Work with Bhojpuri media to sensitize them so they
framed Pakadwa Vivah in the context and acknowledgement of the denial
of rights, to challenge localisation and romanticization of defence.
 Invisible to Invincible : Narratives of Gender Justice 223

7.3 Economic Interventions

To address the economic motivators of Pakadwa Vivah will require policies that
directly target it:
 Dowry Mitigation: Implemented through subsidised dowries or through
microfinance programs to alleviate pressures and reduces motivations to
coerce. The Mukhyamantri Kanya Vivah Yojana by the government of
Bihar can be extended to provide a dowry subsidy.
 Skill Development: Provide vocational training for families so they are
financially independent and less coerced.
 Social Safety Nets: Expand welfare programs such as the Mahatma Gandhi
National Rural Employment Guarantee Act (MGNREGA) to support
families in economic distress.
 Incentives for consensualities: Provide financial incentives to families that
choose dowry- free, consensual marriages. Similarly, Tamil Nadu offers
assistance for marriages that are consensual and classifies these as "dowry-
free".
7.4 Victim Support Systems
Access to support for victims is fundamentally important:
 Counseling Services: Community based mental health programs should be
initiated in rural Bihar with trauma-informed care for males and females to
support their agency.
 Partnerships with organizations like the National Institute of Mental Health
and Neurosciences (NIMHANS) could enhance capacity.
 Legal Aid: Expand access to free legal aid through partnerships with the
Bihar State Legal Services Authority, ensuring victims can navigate the
judicial system.
 Safe Houses: Implement the Shakti Vahini guidelines by setting up safe
houses for victims escaping coerced marriages, with 24/7 helplines (Shakti
Vahini v. Union of India, 2018)31.
 Rehabilitation Programs: Provide vocational training, scholarships, and
financial support to help victims reintegrate into society and regain
economic independence.
224 Invisible to Invincible : Narratives of Gender Justice

 Support Groups: Create community-based support groups to reduce

stigma and provide a platform for victims to share experiences.
7.5 Multi-Sectoral Collaboration
A collaborative approach involving legal institutions, NGOs, and local
governments can amplify impact:
 Partnerships with NGOs: Collaborate with organizations like the Bihar
Rural Livelihoods Promotion Society and ActionAid to integrate economic
and social interventions.
 Government Initiatives: Leverage national campaigns, such as Beti
Bachao Beti Padhao, to raise awareness about coerced marriages,
emphasizing consent and autonomy.
 Private Sector Involvement: Engage corporate social responsibility (CSR)
initiatives to fund legal aid, counseling, and vocational training for victims.
 Academic Research: Partner with universities to conduct longitudinal
studies on Pakadwa Vivah, informing evidence-based policy reforms.
7.6 Learning from Global Models
India can draw inspiration from global models:
 UK’s Forced Marriage Unit: The UK’s dedicated unit provides victim
support, legal aid, and prosecution guidelines, handling over 1,300 cases
annually. India could establish a similar unit under the Ministry of Women
and Child Development.
 South Africa’s Prosecutorial Approach: South Africa’s success in
prosecuting ukuthwala cases demonstrates the value of stringent criminal
sanctions, with convictions rising by 20% since 2018.
 Kyrgyzstan’s Community Programs: Community-led initiatives in
Kyrgyzstan have reduced bride kidnapping by 15% through gender equality
workshops, a strategy applicable to Bihar (UN Women, 2017)32.
 Bangladesh’s Helplines: Bangladesh’s national helpline for gender-based
violence has supported over 10,000 victims since 2015, offering a model for
victim support in India.
7.7 Monitoring and Evaluation
To ensure the effectiveness of reforms, a robust monitoring and evaluation
framework is essential:
 Invisible to Invincible : Narratives of Gender Justice 225

 Data Collection: Establish a centralized database to track Pakadwa

Vivah cases, including arrests, convictions, and victim support outcomes.
 Impact Assessments: Conduct annual evaluations of awareness campaigns,
legal aid programs, and economic interventions to measure progress.
 Community Feedback: Involve local communities in evaluating
interventions, ensuring culturally sensitive and sustainable solutions.
Conclusion
Pakadwa Vivah represents a profound socio-legal challenge, undermining
constitutional guarantees of dignity, autonomy, and equality. While family law and
constitutional provisions offer a framework for redress, their implementation is
hindered by societal normalization, enforcement gaps, economic pressures, and
cultural biases. Judicial precedents like Lata Singh and Shakti Vahini provide a
foundation for reform, but systemic change requires a multi- sectoral approach
integrating legal reforms, community engagement, economic support, and victim-
centric interventions.
This paper highlights the issue of male victimization, and advocates for a gender
neutral approach to coerced marriages, as this would ensure inclusive protections
for all victims. Economic constructs, such as reducing dowry and increasing
decision-making skills, may help to address root causes, while conduct awareness
campaigns and promote the legal literacy of communities, may empower
communities to reject coercing behaviours. Overall, collaboration of legal
institutions, non-governmental organizations, local governments and private
businesses can drive the culture change associated with the constitutional goal of an
equitable society.
Ending Pakadwa Vivah requires ongoing commitment from all parties:
government, civil society and communities. If the proposals that follow can be
acted on simply and easily, India can dismantle the framework that sustains
Pakadwa Vivah, meaning all individuals can exercise their right to be free from
coercion and violence. While Pakadwa Vivah requires a holistic approach, this
holistic approach has the potential to address other forms of gender based violence,
and ensures the promotion of a more equitable and inclusive society.
References
1 Lata Singh v State of UP (2006) 5 SCC 475.
2 Shakti Vahini v. Union of India, (2018) 7 SCC 192.
3 A Kumar, ‘Socio-Economic Dimensions of Forced Marriages in Bihar’ (2019) 12(3) Journal of Indian
Sociology 45.
226 Invisible to Invincible : Narratives of Gender Justice

4 R Sharma, ‘Pakadwa Vivah: A Study of Coercion and Consent’ (2020) 8(2) Bihar Law Review 22.
5 S Gupta, ‘Psychological Impacts of Forced Marriages on Male Victims’ (2021) 15(4) Indian Journal of
Psychology 78.
6 A Kumar, ‘Socio-Economic Dimensions of Forced Marriages in Bihar’ (2019) 12(3) Journal of Indian
Sociology 45.
7 R Sharma, ‘Pakadwa Vivah: A Study of Coercion and Consent’ (2020) 8(2) Bihar Law Review 22.
8 S Gupta, ‘Psychological Impacts of Forced Marriages on Male Victims’ (2021) 15(4) Indian Journal of
Psychology 78.
9 A Kumar, ‘Socio-Economic Dimensions of Forced Marriages in Bihar’ (2019) 12(3) Journal of Indian
Sociology 45.
10 R Sharma, ‘Pakadwa Vivah: A Study of Coercion and Consent’ (2020) 8(2) Bihar Law Review 22.
11 R Sharma, ‘Pakadwa Vivah: A Study of Coercion and Consent’ (2020) 8(2) Bihar Law Review 22.
12 Lata Singh v State of UP (2006) 5 SCC 475.
13 Shakti Vahini v. Union of India, (2018) 7 SCC 192.
14 K Chantler and M McCarry, ‘Forced Marriage and Gender-Based Violence: A Global Perspective’ (2020)
24(5) International Journal of Human Rights 567.
15 R Sharma, ‘Pakadwa Vivah: A Study of Coercion and Consent’ (2020) 8(2) Bihar Law Review 22.
16 Vinod Kumar v State of Bihar, CRLM No 1234/2021 (Patna HC).
17 A Kumar, ‘Socio-Economic Dimensions of Forced Marriages in Bihar’ (2019) 12(3) Journal of Indian
Sociology 45.
18 S Gupta, ‘Psychological Impacts of Forced Marriages on Male Victims’ (2021) 15(4) Indian Journal of
Psychology 78.
19 R Sharma, ‘Emerging Trends in Pakadwa Vivah: Role of Civil Society’ (2023) 10(1) Journal of Indian
Legal Studies 15.
20 UN Women, Bride Kidnapping in Kyrgyzstan: A Persistent Challenge (UN Women Report, 2017).
21 K Chantler and M McCarry, ‘Forced Marriage and Gender-Based Violence: A Global Perspective’ (2020)
24(5) International Journal of Human Rights 567.
22 S Gupta, ‘Psychological Impacts of Forced Marriages on Male Victims’ (2021) 15(4) Indian Journal of
Psychology 78.
23 Independent Thought v Union of India (2017) 10 SCC 800.
24 S Gupta, ‘Psychological Impacts of Forced Marriages on Male Victims’ (2021) 15(4) Indian Journal of
Psychology 78.
25 A Kumar, ‘Socio-Economic Dimensions of Forced Marriages in Bihar’ (2019) 12(3) Journal of Indian
Sociology 45.
26 R Sharma, ‘Pakadwa Vivah: A Study of Coercion and Consent’ (2020) 8(2) Bihar Law Review 22.
27 A Kumar, ‘Socio-Economic Dimensions of Forced Marriages in Bihar’ (2019) 12(3) Journal of Indian
Sociology 45.
28 A Kumar, ‘Socio-Economic Dimensions of Forced Marriages in Bihar’ (2019) 12(3) Journal of Indian
Sociology 45.
29 Vinod Kumar v State of Bihar, CRLM No 1234/2021 (Patna HC).
30 Bihar High Court, Annual Report on Judicial Pendency (2023).
31 Shakti Vahini v. Union of India, (2018) 7 SCC 192.
32 UN Women, Bride Kidnapping in Kyrgyzstan: A Persistent Challenge (UN Women Report, 2017).
 Invisible to Invincible : Narratives of Gender Justice 227

Bibliography
 Court, B. H. (2023). Bihar High Court, Annual Report on Judicial Pendency (2023).
 K Chantler and M McCarry. (2020). Forced Marriage and Gender-Based Violence: A Global
Perspective. International Journal of Human Rights 567.
 Kumar, A. (2019). Socio-Economic Dimensions of Forced Marriages in Bihar. Journal of Indian
Sociology, .
 R Sharma. (2020). ‘Pakadwa Vivah: A Study of Coercion and Consent’. Bihar Law Review 22.
 R Sharma. (2023). ‘Emerging Trends in Pakadwa Vivah: Role of Civil Society’. Journal of Indian
Legal Studies 15.
 S Gupta. (2021). Psychological Impacts of Forced Marriages on Male Victims. Indian Journal of
Psychology 78.
 Shakti Vahini v. Union of India. (2018). SCC 192.
 UN Women. (2017). Bride Kidnapping in Kyrgyzstan: A Persistent Challenge. UN Women Report, .
 UP, L. S. (2006). SCC 475.
 Vinod Kumar v State of Bihar, C. N. (n.d.).


228 Invisible to Invincible : Narratives of Gender Justice

Gender Equtty Under Maintenance Law

Chhavi Priya
B.A.L.L.B(H) 2023-2028, Bennett University
Harshi Pandey
B.A.L.L.B(H) 2023-2028, Bennett University
ABSTRACT
India, a country which is known as the world’s largest democracy is renowned for having
the lengthiest and written constitution, which enshrines various Fundamental Rights to
safeguard its citizen. As society continue to evolve, and hence along with-it human lifestyle,
nature, and mindset undergoes significant transformations. In response to these dynamic
changes, frameworks are also being developed and refined to ensure justice for all,
reflecting the nations commitment to upholding the principles of fairness and equality.
India has passed women focused laws with an altruistic objective of protecting and as well
as empowering women against discrimination, abuse, and injustice. But with the passage
of time, the complaints have been raised about the possible abuse of these legal provisions.
An important feature of these laws is the right to maintenance, aimed at alleviating
economic troubles of many individuals who don’t have enough means to feed themself.
Breakdown of marriage, in India is costly and emotionally painful process especially for
women who have to struggle with settlement and obtain maintenance for her and her
children's welfare.
Maintenance is essentially a gauge of social justice and financial security, a reflection of
the fundamental responsibility of an individual towards providing a support to his wife,
children, parents and close relatives who cannot fend for themselves. It is a not just a
monetary support, but also a legal and moral responsibility of the financially capable
individual to maintain his dependents.
The paper aims to explore whether the maintenance law was formulated with the sole
purpose of imposing a primary obligation on men to maintain their dependents by making
it gender biased, or if it was meant to cover within its ambit both men and women. And
thus, the research paper aims to analyse that whether with the help of maintenance law the
financially incapable spouse gets financial security from the spouse who is well to do so.
Since women have progressively escaped patriarchal restrictions and become equal
members of the society, the question now is whether they should also be made responsible
for giving maintenance to their husbands if the latter cannot support themselves, so that
there could be gender equity in laws related to maintenance. Although the Hindu Marriage
Act,1955 (HMA) is considered to be the sole act which is gender neutral, but other
provisions of law, like Section 125 of Criminal Procedure Code, 1973 (CrPC) which is
now referred as Section 144 of the Bharatiya Nagarik Suraksha Sanhita,2023 (BNSS) and
 Invisible to Invincible : Narratives of Gender Justice 229

Hindu Adoption and Maintenance Act,1956 (HAMA) are still gender-biased, holding men
responsible for maintenance.
With the help of this research paper, the researcher aims to critically analyse the existing
maintenance laws, through the lens of the plight of the males and highlight the hardship
faced by them because of the gender biased maintenance laws existing in the Indian
society. In addition, the researcher aims to do a comparative analysis of the existing
maintenance acts which prevail in India vis-a-viz to countries like U.S, U.K. and Canada
and thus conclude this research paper with the help of few recommendations which could
be applied in order to make maintenance as gender neutral.
Key words: maintenance, gender neutral, gender biased, dependents, social justice,
financial security
INTRODUCTION
“If the law doesn’t apply equally to everybody, then you don’t really have a system
of law.” It is a famous quote which is given by Matt Taibbi, who is with the help of
this quotation trying to make a system where there is equality no matter whether it
is gender, or caste or anything as such, and the first step in order to bring this
equality is through law.
Maintenance is derived from a French word “mentenir” which means to provide
with shelter or to provide protection. Maintenance, according to Oxford dictionary
means a financial aid provided to a person to live his or her expenses. While on the
other hand according to Cambridge Dictionary maintenance in general means that
maintenance is the money or the amount that an individual, must on a regular basis
pay to their preceding marriage partner or to his or her child after the end of
marriage in terms of divorce. 1
The idea of maintenance was derived with the ideology of an unadulterated family,
wherein the senior most family member had the sole responsibility to maintain
members who were not self-sufficient. This allows them to sustain a decent living
and enjoy the fundamental needs to which they are reasonably entitled. The whole
notion of maintenance was brought into force so that such individuals can live
without the necessity of support and with dignity. It is an obligation that an
individual has towards their dependent family members, thereby engendering an
obligation that binds the person and their property.
If we do a comparative analysis of the life of women from past and to the life of
them in present, then we see that the past of the women was not so good and stable,
they were treated as subalterns in the past and hence there were no consideration
for them.
230 Invisible to Invincible : Narratives of Gender Justice

The Manusmriti, composed in the 5th century C.E., laid down the social order,
dividing the four varnas into specific functions and depicting women as needing
male protection from the beginning of their lives through the end, depicting as their
dependence. This became the basis of patriarchal attitudes where men were viewed
as family heads and bread winners, and women were limited to domestic functions
with no earnings or autonomy. Lacking fundamental rights and being under
suppression women suffered immense distress, particularly when they were
dissolving a marriage. To counter these injustices, women focused laws, such as
maintenance laws, were brought into effect to provide justice and assistance to
women. These laws are influenced by religious personal laws that are based on the
customary usage by the society and traditions of various religions.2
Country like India, which is a secular country, there prevail various kind of
Personal Laws, wherein some Personal laws are biased upon one gender, while the
other biased upon other gender. While under Maintenance laws we see that, only
Hindu Marriage Act,1955 favours both the gender and other laws are more biased
towards one gender i.e., female and creating a liability on males to maintain their
wife along with the children.
The maintenance right is based on article 21 of Indian Constitution, which gives
every person a right to live with dignity. The right promotes the socio-economic
welfare of society. Furthe,r when the basic rights are construed in harmony with
Directive Principle of State Policy, the obligation of State becomes binding.
Consequently, the right to maintenance is a fundamental and inherent part of article
21. Where maintenance is refused or defaulted, this right becomes enforceable, as it
is the responsibility of State to ensure socio-economic justice through the grant of
maintenance.
The Constitution of India also provide special powers to the State under Article
15(3) to make provisions for the benefit of women but by passing the test of
reasonable clarification.
Along with the changing time, the situation of the women is also changing and
hence along with it there arises a need to bring some change in few provisions or
statutes as well. It is always advised that to analyse the statute in a correct way, an
individual should first know the intention behind the lawmakers. In ancient times it
was women who had the responsibility to handle the household works, while men
were responsible to go outside and do the job and earn for his family, and hence
when any situation like divorce arose it was the responsibility of men to give
maintenance to wife along with children, in order to run their livelihood. But now
we see that with the passage of time wife has become responsible and they also go
 Invisible to Invincible : Narratives of Gender Justice 231

out to earn and, in some situation, we see that there earning is comparatively better
than their husband.3
LEGAL FRAMEWORK
The breakdown of marriage in India is a costly and emotionally painful process
which often leads to financial vulnerabilities especially to the financially dependent
spouse. A well-defined legal framework is essential to ensure economic justice and
social protection. Under Hindu law maintenance can be granted under two different
statutes one is Hindu Marriage Act, 1955, and other is Hindu Adoptions and
Maintenance Act, 1956.
Hindu Marriage Act,1955
As per Hindu Marriage Act 1955, section 24 states, either husband or wife may
seek maintenance pendente lite, i.e., maintenance during pendency of
matrimonial proceeding. If one party lacks the means to sustain themselves or bear
the costs of litigation, the court is empowered to direct the other party based on their
financial capacity to pay a reasonable amount towards both maintenance and legal
expenses. The quantum of such support is determined after evaluating the financial
circumstances of both the petitioner and the respondent, thereby ensuring fairness
and preventing undue hardship during the course of the proceedings. Thus, it can be
inferred that Hindu Marriage Act, of 1955 is gender neutral in terms of
maintenance as both the wife and the husband can seek maintenance under the
Act.4
Section 25 of the act provides the grant of permanent alimony. The court can make
the order of this financial assistance at the time of the passing of the decree or at any
time thereafter. The amount payable by the respondent to the applicant is settled
after considering the income and assets of both parties. Importantly, the order
hereunder is not final and could be altered or revised. If the recipient gets married
again or is found to have had sexual intercourse outside marriage, the court can
modify, suspend, or rescind the maintenance order.5
Hindu Adoption and Maintenance Act 1956
Hindu Adoption and Maintenance Act, 1956, also deals with the aspect of
maintenance. According to the act, maintenance can be recovered by certain
persons like the wife, widowed daughter in law, children, aged parents, and other
dependents. According to section 18 a wife can recover maintenance on the
grounds specified in section 18(2) of the act. In some cases, a wife may be granted
maintenance if found, she is residing apart from husband, as long as separation is
warranted by circumstances brought about by the husband. These are cases of
232 Invisible to Invincible : Narratives of Gender Justice

desertion, cruelty, the presence of another wife, the presence of concubine in the
home, or the habitual residence of the husband with a concubine elsewhere,
conversion of the husband, or any other justifiable reason. But wife forfeits her
legal right to maintenance if found her immorality or converts to other religion and
is no longer Hindu.6
Further section 19 of Hindu Adoptions and Maintenance Act, 1956 addresses
maintenance rights of a daughter-in-law who is widow. It provides that in the event
of husband’s death, the father-in-law is legally obligated to maintain the widow, but
only if she is so incapable that she can’t even maintain herself from her own
income or property.7
Further under section 20 of the said Act children and aged parents can also claim
maintenance. Therefore, it can be said that Hindu Adoption and Maintenance Act,
1956 is biased on gender biased grounds as only wife has received the right to ask
for maintenance within section 18. The Act makes no provision for the
maintenance of husband.
Protection of Women from Domestic Violence Act 2005
Maintenance is further discussed within Protection of Women from Domestic
Violence Act, 2005, under its section 20 which empowers magistrate to provide
monetary reliefs to the aggrieved women and her children. This is a provision to
address the economic impacts of domestic violence so that victims do not remain
financially strained as a result of abuse, abandonment, or loss of support. In ruling
on an application within Section 12(1), the Magistrate may order respondent to
make compensation in the form of money for various losses, which includes, but is
not limited to loss of earning as a result of forced withdrawal from employment or
economic dependence, Medical costs incurred due to injuries inflicted due to acts
of domestic violence, Damage or destruction of personal belongings or illegal
removal of personal possessions, Maintenance in favour of the aggrieved person
and her children, which may be directed independently or along with an existing
maintenance order within Section 125 of the CrPC or any other law.8
Bharatiya Nagarik Suraksha Sanhita, 2023
Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 discuss about
maintenance of parents as well as children along with wives. Under this section,
any person can claim maintenance regardless of his religion or caste. It provides
that if an individual usually the husband, either refuses or try to neglect
maintenance to his wife, children, or parents, who are unable to support themselves,
even after having sufficient means, then a first-class judicial magistrate can direct
 Invisible to Invincible : Narratives of Gender Justice 233

such individual to pay maintenance to them at a rate as is fit to the magistrate.

Hereby it may be inferred that this section is also not admitting the husband's right
to seek maintenance. Although even in spite of negating the rights of the
maintenance of the husband we cannot argue that this section is totally gender
biased. This section has given the right to both son and daughter to keep their
parents and children whether legitimate or illegitimate and be entitled for
maintenance by their mother or father. Thus, this section is partially gender
neutral.9
CHALLENGES FACED
Challenges faced by men:
Maintenance laws are written with the laudable purpose of giving money to those
who cannot take care of themselves, so that they may live with dignity and
security. But of late, there are increasing worries about the misuse of these
provisions. The most frequent type of misuse is false claims where the spouse hides
his or her real income in order to seem more needy and thus request a higher
amount of maintenance unjustly. In other cases, the claims are not made because
one is actually needy, but simply as a form of harassment and to result in
unnecessary and prolonged legal battles.
Another type of exploitation occurs during the award of interim maintenance,
which is designed to provide temporary relief pending continued proceedings.
Certain spouses exploit this provision by deliberately stalling the legal process to
continue enjoying monetary benefits. There are also instances where they are
maintenance-paying spouse deliberately ignores court orders despite being capable
of paying, causing undue hardship to the dependent party.
The gendered nature of the current laws of maintenance, which were originally
designed to benefit downtrodden women, is gradually being abused by some
privileged women to extort money from men. Some women abuse such laws by
making false claims against their husbands even when they are economically
independent. This abuse causes severe economic, emotional, and social
implications to all parties concerned.
Courts have faced various cases where women have tried to abuse these provisions
by seeking unjustified maintenance. In one of the cases of Madhya Pradesh High
Court, Anil v. Sunita10, the wife remained in her matrimonial house for 12 days
without making any harassment complaints during her stay. However, she later
filed a claim for maintenance against her husband and mother-in-law on grounds of
harassment. There was evidence lacking which would support her during the case,
234 Invisible to Invincible : Narratives of Gender Justice

and hence concluded that the case was fictitious, declining her claim of
maintenance.
Similarly in Smt. Ritu @ Ridhima & Anr. Vs Sandeep Singh Sangwan 11 which
was held in Punjab-Haryana High Court, the wife who was an assistant professor
concealed that she was in employment throughout the proceeding. She even, when
allowed to rectify this, suppressed it until she was caught while being cross-
examined. The court ruled that she had knowingly deceived the court to obtain
maintenance and underlined the responsibility of claimants to reveal their financial
situation to have a reasonable evaluation of maintenance.
The court noted that “a petition made under as Section 144 of the Bharatiya
Nagarik Suraksha Sanhita,2023 (BNSS) is intended for those who are not in a
position to financially maintain themselves or their children. Hence, it is imperative
that the applicant for maintenance presents their financial status honesty, since this
information is vital for the Court to correctly asserting the proper amount of
maintenance to be granted.”
In addition, the gender bias in maintenance laws can also deprive women of
financial independence and empowerment. Women being homemakers and men
being providers in the societal psyche creates a situation where women end up
becoming financially dependent upon marriage and live on the expectation of
receiving maintenance. The laws implicitly make women feel they cannot sustain
themselves, dissuading them from pursuing education, work, or professional
development, thus reducing their autonomy and future earning capacity.
Conversely, men frequently have a disproportionate financial burden under such
legislation, being required to pay substantial amounts in maintenance. If unable to
do so due to low earnings, they may also experience social stigma. In spite of
themselves experiencing financial difficulties, men's right to maintenance are too
often ignored. This disparity can result in emotional suffering, resentment,
frustration, and a perception of injustice among men who believe they have been
exploited or ill-treated.
Along with it we see that the wife is maintained by husband by considering the
financial status of the husband, if husband is earning good then the wife also gets
good amount of maintenance, and it is also considered that if the income of
husband increases after separation, then the husband has to further give more
maintenance.
Considering the above similar issue Supreme Court has asserted- woman can’t
demand alimony merely to equate her ex-husbands better financial position
 Invisible to Invincible : Narratives of Gender Justice 235

following divorce. The court was keen to point out that it would be unjust to hold a
man responsible for maintaining his former wife on his current style of life for his
entire lifetime. If the husband advances and becomes more prosperous following
the breakup, keeping him at the same high level to support his ex-wife with
disproportionately weigh upon his own personal growth and accomplishments.12
Thus, the gender discrimination embedded in laws of maintenance has far- reaching
implications for women as well as men. Remedying such disparities is imperative
to maintain equity and promote fairness in the legal system.
Challenges faced by women:
The problem of abuse especially by some individuals, including women is delicate
and multifaceted. Although there are instances of false accusations and exaggerated
claims, one must deal with such issues carefully. Generalization or assumption of
ill-will fuel destructive stereotypes and detract from the real challenges faced by
many women who depend on maintenance for their livelihood. In India, where
upkeep legislation is written to shield spouses and children particularly those who
have been economically dependent in marriage such safeguards continue to be a
lifeline.
It should be admitted that few women depend on maintenance to sustain their
children and themselves, particularly post-separation or divorce. Constraints
like limited education, limited employment access, and societal expectations quite
often stand in the way of their economic autonomy, rendering maintenance support
not merely useful, but essential.
One of the biggest challenge women have to face under maintenance cases is
establishing the husband's real income, since most men usually under report their
income or are employed in cash-based occupations where one cannot easily track
income. Henceforth, the burden of proof completely lies on women. This presents a
great obstacle for women, as they are usually not provided with access to the
husband's financial records, salary receipts, bank accounts, or property dates, hence
making it very hard to produce tangible evidence in front of the court. This
opaqueness puts women at a critical disadvantage when trying to achieve an
equitable and reasonable maintenance sum.13
In maintenance cases, women are subjected to a gendered double standard in which
they are allowed support only if they can establish their “chastity”. If a woman
remarries or even stands suspected of cohabitation outside marriage, she may be
excluded from maintenance, essentially regulating her personal life and freedom.
236 Invisible to Invincible : Narratives of Gender Justice

This upholds patriarchal expectations for controlling and judging women in terms
of their sexuality.
Housemaker women's unpaid both is officially devalued, in the sense that it is not
counted in money at the time of divorce. Although they are often responsible for
sustaining the household and the family as a whole, women usually find themselves
without any portion in assets or property. Legally, the overall household income
and assets are all assumed to belong to the husband, ignoring the women's
contribution in kind and leaving her impoverished and destitute upon divorce.
Women as a second wife or unregistered unions, mostly prevalent in rural areas, are
victims of legal marginalization, since courts are likely to withhold maintenance by
declaring their marriages illegal. This opens a loophole through which men can
escape responsibility simply by declaring the relationship illegal, and women end
up with neither legal protection nor economic support.14
Similarly, in Badshah v. Urmila Badshah Godse15, case was filed by wife to claim
for maintenance within section 125 of Criminal Procedural Code, 1973. In this
case her marriage was a void marriage because her husband already had a previous
wife, but by prioritizing social justice and focusing on the term wife and thus the
court held that by making a marriage as invalid a man can’t escape his
responsibility and thus the women was granted maintenance.
While in other recent case Supreme Court gave a judgement which stated that a
woman is authorized to seek maintenance from 2 nd husband within section 125 of
Criminal Procedure Code even though her 1 st marriage had not been dissolved. The
Court stretched on right to maintenance, and said it is a legal and moral obligation
of the husband rather than an allowance to the wife. Here, the 2nd husband was well
aware of the woman's 1st marriage, which had been concluded in separation
(through not legal divorce), and he married her twice with full knowledge. Even
though there was no legal divorce, the woman had no continuing relationship or
support from her first husband. Supreme Court has reversed the ruling of Telangana
High Court that had rejected her request for maintenance and stated that such
women are well entitled to receive protection under law.16
Is a working wife eligible for maintenance?
The idea of awarding maintenance to those who are working might at first glance
appear to be counterintuitive, since maintenance is conventionally reserved for the
financially self-non-sufficient. Yet the award of maintenance to working women
recognises that working alone does not necessarily ensure financial autonomy or
self-sufficiency. Several circumstances such as poor income, prior economic
 Invisible to Invincible : Narratives of Gender Justice 237

commitments, or maybe dependence on others can curtail capacity of an individual

to cover even their bare essentials despite their employment.
Additionally, the role of maintenance goes beyond meeting basic needs; it also
includes ensuring fair distribution of resources after a divorce or separation. In
most instances, one of the spouses usually the wife may have sacrificed much,
including forgoing career prospects to sustain the family. Therefore, providing
maintenance to working women is an indication of the multifaceted measure of
economic dependence and seeks to address economic imbalances that could occur
after marriage.
Surprisingly, there are cases where wives earn more than their husbands and stll
claim maintenance on separation or divorce. Their reasons are also diverse, some
might truly need economic support because of situations such as pending debts,
medical expenses, or the burden of childcare. But others might claim maintenance
for the additional economic benefit or to exert leverage in negotiation at law.
Women have been moved to hide their true earnings in the number of instances in
order to get more maintenance payouts from their husbands even if the husbands
are earning less.
Such an abuse of maintenance provisions can have a severe impact, ranging from
unfair treatment to economic burden and emotional trauma to the other party. In
order to counter such apprehensions, there needs to be a balanced method approach
one that provides deserving persons with adequate support while discouraging
fraudulent claims. This can be done by throughout verification of the
disclosure of finances, encouraging mediation in peaceful resolution of disputes,
and laying down legal penalties for fraudulent behaviour.
In Niharika Ghosh vs Shankar Ghosh (2023)17, the wife had approached the plead
against the rejection of the claim made for maintenance under section 24 of Hindu
Marriage Act, 1955. But the Divisional Bench of Delhi High Court dismissed the
ruling of trial court, as there was no merit in her appeal. The court noted at the files
was extremely educated and had high earning capacity but had not revealed her real
income during the trial.
The court reiterated that an individual of such merit and ability could not
reasonably expect maintenance or monetary support. She was cited to have PhD in
management, and was well-versed in computers, and therefore was better educated
as compared to her husband, who was just graduate. Family Court had also earlier
held that she had deliberately opted not to let know about her working status. The
High Court agreed with this observation and further stated that it was unthinkable
238 Invisible to Invincible : Narratives of Gender Justice

for one so qualified to be unemployed or working only for charity. In light of these
conclusions, the court dismissed her request for maintenance, upholding that she
was not eligible for it.
In a recent case where divorce took place of an Indian male cricketer, the Mumbai
Family Court granted divorce and asked the cricketer to pay amount worth Rs. 4.75
crore as an alimony to his wife. Her wife was well settled towards her career and
was a renowned choreographer which means that she was also equally earning and
independent. The court stated that a working women may still be entitled to
alimony if she has a significant gap in earnings when compared to her husband.
Nevertheless, if she is independently financially secure, then the court will either
limit the amount of alimony or will simply decline to give her one altogether.
The key intention here is that the two spouses are not placed under financial
hardship by the breakup.18
In Chaturbhuj vs Sitabai (2007)19, the Supreme Court ruled that even if a wife is
capable of earning, she is entitled to receive maintenance. The Court decided that a
wife who is living apart from husband may be awarded maintenance if her
earnings are inadequate to meet her minimum expenses. It stressed more on the
phase of “unable to support herself”’.
JUDICIAL INTERPRETATION AND CASE LAWS
The Indian judiciary has been instrumental in interpreting maintenance legislations
with a view to enhancing social justice, gender equality, and constitutional
harmony. Although statutory language—especially of section 144 of Bharatiya
Nagarik Suraksha Sanhita, 2023 has historically been biased in favour of women,
though courts have attempted to take a liberal and purposive stance to extend the
ambit of those entitled to claim maintenance. In the process, the courts have also
challenged the gendered language of current laws, highlighting the importance of
inclusive and fair interpretations in a changing society.
Constitutional Examination of Section 125 CrPC
The gendered construction of Section 125 CrPC has also prompted constitutional
challenge. Petitioners and legal experts have challenged whether the statute, by
permitting women alone to institute a claim for maintenance, contravenes the equal
opportunity and anti-discrimination norms of Articles 14 and 15 of the
Constitution. In Vivek Bhatia v Smt. Anju Bhatia20, the petitioner who was an
unemployed husband challenged the vires of section 144 of Bharatiya Nagarik
Suraksha Sanhita, 2023, after being directed to give Rs. 30,000 a month to his
better qualified ex-wife. He contended that the provision was prima facie
 Invisible to Invincible : Narratives of Gender Justice 239

discriminatory and put an unequal burden on the man financially, regardless of the
economic independence of the wife. The petition highlighted that while a man is
presumed to be able to earn and support dependents, a woman must support others
only if she has independent means. This, in the opinion of the petitioner, was
unreasonable classification, which failed the test of intelligible differentia under
Article 14. The court, though not invalidating the provision, recognized the new
realities of role reversal and gender equality in today's society, and emphasized a
re-evaluation of long- standing assumptions in maintenance laws.
Constitutional Examination of section 144 of Bharatiya Nagarik Suraksha
Sanhita, 2023
The gendered construction of section 144 of Bharatiya Nagarik Suraksha Sanhita,
2023, has also prompted constitutional challenge. Petitioners and legal experts have
challenged whether the statute, by permitting women alone to institute a claim for
maintenance, contravenes the equal opportunity and anti- discrimination norms of
Articles 14 and 15 of the Constitution. In Vivek Bhatia v Smt. Anju Bhatia, the
petitioner a unemployed husband challenged the vires of section 144 of Bharatiya
Nagarik Suraksha Sanhita, 2023, after being directed to give Rs. 30,000 a month
to his better qualified ex-wife. He contended that the provision was prima facie
discriminatory and put an unequal burden on the man financially, regardless of the
economic independence of the wife. The petition highlighted that while a man is
presumed to be able to earn and support dependents, a woman must support others
only if she has independent means. This, in the opinion of the petitioner, was
unreasonable classification, which failed the test of intelligible differentia under
Article 14. The court, though not invalidating the provision, recognized the new
realities of role reversal and gender equality in today's society, and emphasized a
re-evaluation of long- standing assumptions in maintenance laws.
Gender-Neutral Obligation to Care for Parents
The courts have also construed provisions of maintenance in a gender-neutral way
in the context of parental maintenance. In V.M. Arbat v K.R. Sawai21, appellant
wife challenged the assertion that she was required to maintain her father. The
Supreme Court dismissed her argument and explained that sons and daughters
share the burden equally to maintain their parents under Section 144 of the
Bharatiya Nagarik Suraksha Sanhita, 2023. It construed the phrase "his father or
mother" by applying Section 13 of General Clauses Act and Section 8 of the Indian
Penal Code, which provide that masculine words include females unless otherwise
specifically mentioned. This path-breaking interpretation guaranteed gender
equality in filial obligations and strengthened the notion that maintenance
240 Invisible to Invincible : Narratives of Gender Justice

obligations cannot be gender-discriminated, especially when social roles have

dramatically changed.
Live-in Relationships and Enlargement of "Wife" under Section 144 of BNSS
One of the major legal advancements in the understanding of maintenance law has
been the establishment of live-in relationships. Traditionally Section 144 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 was only applicable to legally wedded
wives. But with the shift in social attitudes, Indian courts started reconsidering this
limited application. In Indra Sarma v VKV Sarma, Supreme Court considered
whether woman in living relationship could seek maintenance. The Court laid down
key facts that would make such a relationship a "relationship in the nature of
marriage." These were: Mutual consent to live together, Common domestic
arrangements, public recognition as a couple. This ruling was instrumental in
interpreting section 144 of Bharatiya Nagarik Suraksha Sanhita, 2023 in a
forward-thinking way, implying that legally unmarried couples could be treated in
the same way as spouses if their relationship meets these criteria. Likewise, in
Chanmuniya v Virendra Kumar Singh Kushwaha22, the petitioner who had
contracted a customary marriage according to local practice was excluded from
receiving maintenance under the strict construction of "wife." The Supreme Court
condemned the narrow construction of marriage and underscored that women in de
facto or customary unions should not be denied entitlement to claim maintenance.
The Court appealed to Parliament to consider enacting a change in the law so that it
is gender-inclusive and socially responsive.
Misuse of section 144 of BNSS
In Smt. Ritu @ Ridhima & Anr. v. Sandeep Singh Sangwan23, 2022, the Punjab and
Haryana High Court addressed the issue of wilful nondisclosure of income in
Section 144 OF BNSS proceedings for maintenance. The wife, who had a job as an
Assistant Professor with higher educational qualifications, did not reveal that she
was working while the pendency of suit. Court found her reason for this exclusion
to be totally unconvincing and false.
Interestingly, the Court further noted that the petitioner had numerous opportunities
during the proceedings to rectify her exclusion but did not until her employment
was revealed on cross-examination. The Court labelled such conduct as
premeditated and wilful, with the intent to fraudulently receive maintenance by
keeping vital financial information under wraps. In strong words, the Court
observed: A petition within section 125 CrPC is filed by an individual who is
incompetent to maintain herself or even her children due to unavailability of
enough means. Henceforth, it becomes the primary duty of the party concerned to
 Invisible to Invincible : Narratives of Gender Justice 241

bring before the Court the true position insofar as her means are concerned so that
the Court can order with regard to the quantum.
This judgment reiterates the principle of good faith and full disclosure in cases of
maintenance. The Court elaborated that non-disclosure of material information,
particularly relating to financial circumstances, compromises the integrity of the
claimant and may amount to abuse of the process of law. These ruling lays down a
major precedent by emphasizing the burden on the maintenance-seeking party and
the requirement of honest disclosure for the administration of justice to become
feasible.
Through dynamic interpretation, the Indian judiciary has attempted to advance the
intent of maintenance laws as instruments of social justice. Even though women
have traditionally been the major beneficiaries, courts have also increasingly seen
the need to cover all economically dependent persons, including live-in partners,
daughters, and even men in certain situations. The judgments, however, also reveal
the shortcomings of the current statutes, which still retain gender-specific wording.
Judicial interpretation has plugged some gaps, but legislative amendment is
urgently needed to harmonize all maintenance laws with constitutional ideals of
equality and inclusivity.24
Mamta Jaiswal vs Rajesh Jaiswal25: The court emphasised that section 24 of Hindu
Marriage Act is intended to provide economic assistance to spouses who really
require it, irrespective of their attempts to maintain themselves. But the court
asserted that this provision was never designed to encourage a person who is being
sued or prosecuted to do nothing just in order to benefit financially from the other
side. The intention of section 24 is not to breed a class of dependents who do not
make any effort towards self-support but depend only on the income of their
spouse.
The court have also considered that even employed wives could be entitled to
obtain maintenance from husband. Determinations in such cases are made
depending on a variety of factors such as the disparity between the spouse income,
the lifestyle during marriage, and the needs of the wife and any children. The
earnings of the wife are also considered but not the determining factor for fixing the
amount of maintenance. A woman might still need assistance to keep up the
standard of living she enjoyed during her marriage or to obtain other expenses such
as childcare or medical expenses.
Additionally, the court recognise marriage as a joint venture, where both partners
have reciprocal obligations, especially if one has foregone career advancement or
242 Invisible to Invincible : Narratives of Gender Justice

maybe financial independence for betterment of the family. Lastly, every case is
decided based on facts, and courts attempt to provide justice with balanced verdict
considering the economic status and requirements of the parties in question.
New Delhi: Delhi High Court has pointed out that a highly educated and qualified
women should not remain unemployed just to claim maintenance from her
husband.
In a recent ruling, the court declined to grant interim maintenance to a woman who
possesses a master’s degree in international business from Australia and had
worked earlier in Dubai but declined to seek employment. Justice CD Singh made
it very clear that the law does not favour idleness.
“A well-educated woman with working experience should not deliberately abstain
from work just to claim maintenance from her husband”, Justice Singh said. The
court held that the petitioner had the potential to earn and profit from her
qualification and hence refused her interim maintenance.
The court also added that women who possesses the capability and qualifications to
gain a livelihood should not avail themselves of their unemployment as a basis for
claiming financial assistance. It explained that section 125 of CrPC which is now
section 144 of BNSS, is meant to promote fairness between spouses and assist
dependents such as wives, children, and parents and not to foster dependency
through wilful joblessness.
Emphasising the need for true financial necessity in maintenance petitions, the
court exhorted the petitioner to pursue gainful employment. It pointed out that,
unlike illiterate women who might really depend on their husbands for subsistence,
the petitioner was well-educated and could be self-supporting with her education
and exposure to the world.26
COMPARATIVE ANALYSIS
The evolving global landscape of family law reflects a significant shift from
conventional, gender specific notion of spousal support in favour of gender-
neutral, more equitable maintenance schemes. A cross-jurisdictional comparison
involving the United States, Canada, the United Kingdom, Australia, and France
evidence forward-thinking strategies that subordinate strict gender prescriptions to
financial equality, non-discrimination, and situational justice. These jurisdictions
provide useful lessons for reforming India's own maintenance laws, especially
Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which, even with its
expansive goals, remains based on a patriarchal legal framework.27
 Invisible to Invincible : Narratives of Gender Justice 243

Gender Neutrality and Equitable Access to Relief:

Compared to Indian law, which still places the burden of maintenance
overwhelmingly on husbands, the maintenance schemes in the countries like US,
Canada, UK, France are strictly gender neutral. Under these systems of law, both
spouses, regardless of gender, have equal rights to obtain spousal support after
separation or divorce. For example, in the United States, alimony laws differ from
state to state but the eligibility rules apply to either spouse universally on the basis
of need and ability to pay. Likewise, spousal support legislation in Canada provides
for claims by either party with the goal of compensating for economic imbalances
created as a result of the marriage irrespective of gender. These jurisdictions hold
that financial susceptibility is not gender-specific, hence ensuring substantive
equality in domestic relations law.
Acknowledgment of Economic and Non-Economic Contributions:
Another typical feature in these reformed systems is the acknowledgment of
economic as well as non-economic contributions by spouses during the marriage
period. In Canada, spousal support aims, in part, to recompense those who have had
to forego their own career or earning capacity in order to maintain the marriage or
take care of children. French civil law, pursuant to Article 271 of the Civil Code,
also includes a spouse's professional qualifications, sacrifices made, and age and
health in determining maintenance. This integrative approach recognizes the
economic worth of unpaid domestic work—a consideration that is all too often
omitted in Indian jurisprudence and legislative drafting.
Flexibility in Maintenance Determination and Enforcement:
A unique strength of these legal systems is their flexibility. In the United Kingdom,
maintenance orders tend to be granted for a definite period and can be modified if
there is a significant change in the financial circumstances of either party. The
law permits courts to consider new employment, loss of income, or remarriage. In
Australia, the Family Law Act 1975 prescribes elaborate guidelines under which
the court may take into account living standards in the marriage, future
requirements, and earning capacity. In Canada and the US, courts can order lump
sums or ongoing support, depending on circumstances. These adaptive structures
contrast with India's largely fixed and male-dominant statutory provisions, wherein
courts have scant guidance on adapting maintenance to dynamic post-marital
conditions.
Codified and Transparent Assessment Criteria:
Foreign maintenance laws are among the most reformative aspects of having
244 Invisible to Invincible : Narratives of Gender Justice

codified criteria for guiding judicial discretion. French legislation, for instance, in
Articles 208 and 271 of the Civil Code, adopts a clear checklist encompassing such
items as income, age, state of health, employment, wealth, and duration of
marriage. This codification makes spousal support judgments consistent,
foreseeable, and equitable. In India, on the other hand, the lack of such codified
parameters under Section 144 of BNSS or even under Hindu Marriage Act results
into inconsistency, and law is open to subjective interpretation and gender
discrimination.
This comparative examination of international maintenance laws shows a shared
path towards gender neutrality, individualized justice, and legal modernity.
Jurisdictions such as the US, Canada, the UK, Australia, and France have embraced
systems that are sensitive to social change, economic realities, and constitutional
equality. In sharp contrast, India's legal system particularly Section 144 of BNSS is
gender-biased in language and practice.28
CONCLUSION AND RECOMMENDATIONS
Under the framework of law regarding the determination of maintenance,
establishing precise and stable standards is most important to serve as a guide in
distinguishing between true financial need and potential abuse.
Thus, both spouses have to make complete and honest financial disclosures which
would encompass income, assets, liabilities, and expenses. This openness is crucial
so that the court can decide on a proper maintenance amount.
The principle of gender neutrality should be followed through which gender
discrimination could be eliminated and equal opportunities could be assured to
everyone, irrespective of gender. Under maintenance laws, it reinforces the view
that economic support is a basic obligation to dependent spouses, parents, or
children, free of the shackles of traditional gender roles.
Though the right to maintenance finds its base in right to live with dignity as
mentioned under Article 21 of Indian Constitution and found support in Directive
Principle of State Policy, existing law tends to forget husband's right to claim
maintenance due to pervasive societal stereotypes.
Realising that both men and women can experience economic hardship, the
judiciary must develop to provide equal protection and assistance to all. This
change is not a step back for women's right but an attempt towards a more
equitable, inclusive, and balanced judiciary that serves justice and dignity for all.
 Invisible to Invincible : Narratives of Gender Justice 245

In conclusion, although the legislations aimed at empowering and safeguarding

women in India, cases of abuse should not be ignored. As such as a majority of
women truly need help, it is also necessary to detect and discourage spurious claims
that may feed negative stereotypes and undermine public confidence in the system.
In order to solve this problem, the emphasis must be placed on greater assurance of
fair and equitable access to maintenance for the genuinely needy, coupled with
effective measures to prevent exploitation of the legal provision. Adopting a
gender-neutral approach, taking account of the economic needs of both the
husbands and wives is essential in maintaining the fairness and the equality
principles. Lastly, the judicial system has to balance the need to safeguard rightful
claimants with prevention of misuse in order to maintain justice and gender
equality in Indian society.
References
1 Cambridge Dictionary, “Maintenance” (English meaning - Cambridge Dictionary)
<https://dictionary.cambridge.org/dictionary/english/maintenance> accessed April 18, 2025.
2 FLAVIA AGNES, “Conjugality, Property, Morality and Maintenance” (2009) 44 Economic and Political
Weekly 58.
3 HT News Desk, “Capable Women Shouldn’t Seek Interim Alimony, Law Doesn’t Support Idleness: Delhi
High Court” Hindustan Times (March 20, 2025)
<https://www.hindustantimes.com/india-news/maintenance-law-meant-to-promote-equality-among-spouses-
not-idleness-delhi-hc-101742452648861.html> accessed April 18, 2025.
4 Hindu Marriage Act 1955, s 24
5 Ibid.
6 Hindu Adoption and Maintenance Act 1956, s 18
8 Protection of Women from Domestic Violence Act 2005, s 20
10 Anil v. Sunita, 2016 SCC OnLine MP 6368 (India).
11 Smt. Ritu @ Ridhima & Anr. V. Sandeep Singh Sangwan, 2022 LiveLaw (PH) 44 (India).
12 ET Online, “Wife Cannot Seek Alimony to Equalise Husband’s Current Wealth: Supreme Court” Economic
Times (December 20, 2024)
<https://economictimes.indiatimes.com/news/india/wife-cannot-seek-alimony-to-equalise-husbands-current-
wealth-supreme-court/articleshow/116495145.cms?from=mdr> accessed April 19, 2025.
13 Anjani Kant, “RIGHT OF MAINTENANCE TO INDIAN WOMEN” (1996) 38 Journal of the Indian
Law Institute 392.
14 Flavia Agnes, “Maintenance for Women Rhetoric of Equality” (1992) 27 Economic and Political Weekly
2233.
15 Badshah v Urmila Badshah Godse (2014) 1 SCC 188 (SC, India).
16 India Today News Desk, “Maintenance from Second Husband a Right despite No Divorce from First: Top
Court” India Today (February 5, 2025) <https://www.indiatoday.in/india/law- news/story/woman-
maintenance-second-husband-legal-divorce-first-husband-supreme-court-2675278-2025-02-05> accessed
April 19, 2025.
17 Niharika Ghosh v. Shankar Ghosh, 2023 SCC OnLine Del 5624 (India)
246 Invisible to Invincible : Narratives of Gender Justice

18 Vidya, “Chahal Complied with Divorce Consent Terms: High Court on Rs 4.75 Crore Alimony” India
Today (March 19, 2025)
<https://www.indiatoday.in/sports/cricket/story/yuzvendra-chahal-dhanashree-verma-divorce-case-bombay-
high-court-alimony-2695756-2025-03-19> accessed April 19, 2025.
19 Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 (India)
20 Vivek Bhatia v Smt. Anju Bhatia, 2017 SCC Online Utt 1303 (India).
21 V.M. Arbat v. K.R. Sawai, 2 SCC 218, (1997) (India).
22 Chanmuniya v Virendra Kumar Singh Kushwaha, MANU/SC/0807/2010
23 Smt. Ritu @ Ridhima & Anr. V. Sandeep Singh Sangwan, 2022 LiveLaw (PH) 44 (India).
24 Disha Sivakumar, “Maintenance Laws in India and Gender Inequality” (International Journal of Law
Management & Humanities, November 21, 2023)
<https://ijlmh.com/paper/maintenance-laws-in-india-and-gender-inequality/> accessed April 19, 2025.
25 Mamta Jaiswal v. Rajesh Jaiswal, 2000 SCC OnLine MP 580 (India).
26 Times Of India, “No Maintenance for Educated Wife, HC Advises Her to Work” Times Of India (March
20, 2025) <https://timesofindia. indiatimes.com/city/delhi/no-maintenance-for-educated-wife-hc-
advises-her-to-work/articleshow/119267229.cms> accessed April 19, 2025.
27 Team @Law Times Journal, “Maintenance: A Gender-Neutral Law?” (Law Times Journal, July 24, 2019)
<https://lawtimesjournal.in/ maintenance-a-gender-neutral-law/> accessed April 19, 2025.
28 Lawyer Monthly, “Understanding Spousal Support in Different Countries” Lawyer Monthly
(February 5, 2024) <https://www.lawyer-monthly.com/2024/02/understanding-spousal-support-in-
different- countries/> accessed April 19, 2025.
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 Invisible to Invincible : Narratives of Gender Justice 247

Matrimonial Safeguards Across Borders : A Comparative

Legal Discourse on Prenuptial Agreements in India and
the USA
Vanshika Yadav
B.A. L.L.B (Hons) 2023-2028, Bennett University
Sneha Kumari
B.A. L.L.B (Hons) 2023-2028, Bennett University
Abstract
The prenuptial agreements are defined as the contracts which are entered into by
couples before marriage in order to outline the divisions of assets and financial
responsibilities in the event of divorce, separation, or death, such agreements have
garnered attention in the domain of family law. The United States has developed a
structural and enforceable system for prenuptial agreements whereas India’s legislative
and judicial environment remains hesitant, stating such agreements to be contrary to the
sanctity of marriage. This paper explores their historical evolution, legal frameworks as
well as the socio- legal implications within the distinct jurisdictions of India and the United
States.
This research work aims to examine the definition of prenuptial agreements by underlining
their role to be instrumental to financial and emotional security while also tracing the
global origin and development of such agreements and talks about their significance in
contemporary matrimonial disputes. It explains the essential elements for a prenup to be
enforceable such as mutual consent, fairness and absence of coercion while talking about
the common problems and issues that are faced in situations where a prenup is
enforceable. The paper also evaluates the advantages as well as the disadvantages of
prenuptial agreements alongside the socio-legal concerns such as gender equity.
It explores the details of the legislations in United States that have accepted and solidified
the existence of such agreements, such as Uniform Premarital Agreement Act (UPAA) of
1983, while also discussing various precedents that support the same. It gives a
special focus to the distinctive trajectories which are witnessed in India with reference
to USA, recognizing the diverse social, cultural and traditional values and norms in both
the nations. The comparative analysis also brings out the differences in judicial treatment,
acknowledgment, legislative impact and validity of prenuptial agreements on divorce
proceedings.
The paper concludes while discussing the role of societal approval and laws in
ascertaining the efficacy of prenuptial agreements. It measures the advantages and
disadvantages to decide whether India ought to remain committed to its cultural values
248 Invisible to Invincible : Narratives of Gender Justice

and roots or should adopt a more structured approach by taking inspiration from the US
model that balances contractual freedom with equitable justice in matrimonial dissolution.
Keywords: Prenuptial Agreements, Comparative analysis, Enforceability, Statutory
Framework, Legal Modernization

Introduction
Prenuptial agreements which are commonly referred to as “prenups”, are the
agreements which are entered into by couples before the solemnization of marriage
in order to outline the distribution of property, spousal support obligations and
financial responsibilities in the event of divorce or death. The main aim of such
agreements is to reduce uncertainty and litigation costs in the events of marital
breakdown by stating the terms of asset division and maintenance in advance.
In today’s time which is dominated by increasing divorce rates, dual-career
households, and significant premarital resources, prenuptial agreements have
gained huge importance in the domain of family law. Such agreements not only
assure safeguard to personal fortune but also encourage transparency and mutual
understanding between partners. A comparative observation between countries like
India and the USA in the matter of prenuptial agreements presents diversified legal
philosophies. In India, where marriage is considered as sacrosanct whereas in USA
it is merely considered a social union or a civil contract between the two sexes.
Therefore, it is very important to understand these differences in order to present a
solution to couples navigating complex matrimonial disputes by focusing on the
historical background and evolution of such agreements, essential elements, legal
framework, enforceability standards, socio-legal implications, and practical
challenges.
In the USA prenuptial agreements have legal recognition and are legally binding,
whereas India’s socio-legal scenario is indefinite, which shows tension between
contractual freedom, public policy and traditional matrimonial norms. Therefore,
this provides a space to necessitate reforms to infuse traditional values with modern
matrimonial safeguards.
Historical Background and Evolution of Prenuptial Agreements
a) Global origin and Development

Prenuptial agreements finds their traces back to the 20 th century. One of the first
known prenups is over 2000 years old. But the actual concept of prenuptial
agreements finds its roots in the ancient Hebrew marriage contracts of Jews called a
 Invisible to Invincible : Narratives of Gender Justice 249

ketubah. These contracts specified the rights of bride to her spouse’s property in
case of death or divorce. Around 456 B.C. in Ancient Egypt, both women and men
had equal legal and property rights that were reflected in their marital contracts. In
the medieval Europe, dowries and succession arrangement in the marital contracts
among the nobility to protect the interest of both families reflected a type of prenup
agreement. As common law flourished in England, the English courts started
acknowledging ante-nuptial settlements that further evolved into modern prenups in
the 19th and 20th centuries with the rise of no- fault divorce laws. The philosophical
basis changed from feudal obligations to contractual freedom and autonomy of
property.
b) Evolution in India

In India, marriage is regulated by personal laws of various religions based on their

religious scriptures. Traditional thought treats marriage as a sacrament and not a
contract excluding formal marriage contract but the contemporary world views
marriage as both a sacramental union and also a contact. With the evolution in
world, the laws are also changing, like the recognition of women’s exclusive right
over her stridhan which is also considered women’s exclusive property under the
Hindu Succession Act1 and the Protection of Women from Domestic Violence Act2.
Muslim marriage which are governed by Muslim Personal Law has a similar type
of situation like the prenups in which both the parties decide at the time of marriage
on the amount of Dower/Mehr which will be given to wife in various mentioned
circumstances under the Shariat Law. However, these are not the same as prenups
but have a similar kind of implication. Prenuptial agreements fulfill every essential
of a valid contract under section 10 of Indian Contract Act 18723, but still the courts
do not recognize them as a valid contract and decline such agreements on the basis
of it violating public policy under section 23 of Indian Contract Act 1872 4 and
making it void. Currently in India, there is no law governing pre-nuptial
agreements and such agreements are in general not accepted by the
people because of the sacramental nature of marriages as marriages are seemed as a
belief created by god in the heaven and divorce are considered as a big thing.
c) Evolution in the USA

The approach of prenuptial agreements in USA evolved from common law to a

codified framework. American courts enforced ante-nuptial settlements on
equitable grounds early in the country’s history. Earlier such agreements used to be
a rather rare occurrence but today these agreements are much more common in the
250 Invisible to Invincible : Narratives of Gender Justice

USA. The Uniform Law Commission created the Uniform Premarital Agreement
Act5 (UPAA) of 1983 which set standard rules for a legally valid prenuptial
agreement: it must be in writing, the parties must agree voluntarily, the agreement
must be signed before marriage, and a marriage must occur, full disclosure of all
finances, and terms must be fair and not against public policy. By 2014, 28 states
and the District of Columbia enacted the UPAA or its revision, the Uniform
Premarital and Marital Agreements Act6 (UPMAA), but each states has included its
own modifications to the UPAA. The American model reflects a balance between
contractual freedom and protective fairness analyses.
A two-pronged test was established by the Wisconsin Supreme Court in the case of
Button v. Button7, for the enforceability of prenuptial agreements, the parties to the
agreement must enter voluntarily with full disclosure of all finances and an
opportunity to consult independent counsel. Furthermore, the agreement must not
be unconscionable (i.e., one-sided) at the time of execution and enforcement.
Therefore, this case established that prenups need to fulfil procedural and
substantive fairness criteria and must balance contractual freedom with equity.
Legal Framework Governing Prenuptial Agreements
a) Legal Framework in India

In India, marriages are governed by personal uncodified laws of different religion

like the Hindu Marriage Act of 19558 for Hindus, Muslim Personal law (Shariat)
Application Act of 19379 for Muslims, Christian Marriage Act of 187210 for
Christians, Parsi Marriage and Divorce Act of 193611 for Parsis and Special
Marriage Act of 195412 for marriage between parties from different religion. These
Acts explicitly talk about the essentials for a valid marriage but none recognize
prenuptial agreements, it is only the Indian Divorce Act of 186913 applicable only
to Christians that allows courts to consider prenuptial agreements while deciding
separation of spouses. As there is no act governing prenuptial agreements in India,
therefore, leaving them subject to general contract law under the Indian contract
Act, 187214. Due to the contractual nature of prenuptial agreements and the absence
of any specific regulatory provision under the personal laws governing such
agreements, the prenuptial agreements could arguably be governed by the
provisions of Indian Contract Act, 187215. The courts have generally declared
prenuptial agreements as void on account of being against public policy under sec
23 of the Indian Contract Act16. This decision is driven by the perception that
prenuptial agreements sought to promote separation or divorce which is against the
 Invisible to Invincible : Narratives of Gender Justice 251

objectives of the personal laws as marriages among Hindus are treated as a

religious bond rather than a contract.
The courts in India always apply the principles of contract law while dealing with
prenups but frequently invalidate pre-nuptial agreements invoking public policy.
According to Indian Contract Act17, the essentials for a valid contract are
offer, acceptance, consideration, free consent, capacity to enter into a contract-
which are all fulfilled by prenuptial agreements but prenups are held to be against
public policy under sec 23 of the Indian Contract Act18 which makes it unlawful
and void.
In India, Hindu marriages are considered as a sacred union and not a commercial
contract and courts emphasize on this social purpose of marriage thereby viewing
prenups as undermining dharma, societal stability and invalidating prenups as
against public policy and Hindu law provisions. Whereas Muslim marriages are
viewed as civil contracts, and courts have been relatively more accepting of
prenuptial agreements as long as they do not violate Muslim personal laws. But the
overall status of prenuptial agreements is ambiguous in India because of lack of any
specific legislation governing prenuptial agreements. In the legal sphere, sec 40 of
the Divorce Act19, 1869, which is applicable to the dissolution of Christian
marriages, actually stipulates that district courts may look into the existence of
prenuptial agreements and refer to conditions mentioned therein while granting a
decree on settlement of property in the event of divorce.
According to a legal maxim pacta sunt servanda which means “agreements must
be kept”. It states that once an agreement is made, it must be honored and fulfilled
in good faith. But the courts in India often deviate from this principle while
deciding on prenuptial agreements while prioritizing public policy, equity, and
marital sanctity. Like in the case of Sunita Devendra Deshpande v.
Sita Deshpande20, the Bombay High court struck down a prenup on the reasoning
that marriage is not a contract but a sacrament and public policy demands
protection of vulnerable spouses. The court refused to enforce a prenup calling it
against public policy.
b) Legal Framework in the USA

Prenuptial agreements in the USA are governed by Uniform Premarital Agreement

Act21 (UPAA), 1983. In 2012, Uniform Premarital Agreement Act22 (UPAA) was
updated and called the Uniform Premarital and Marital Agreement Act23
252 Invisible to Invincible : Narratives of Gender Justice

(UPMAA). The act mentions key provisions required for the enforcement of
prenups.
The legal framework regarding prenuptial agreements is extremely developed and
systematic in United States. All the states of the country consider these contracts to
be valid and allow their enforceability. Such an acceptance originates from the
nation’s tradition of respecting contract and providing freedom and autonomy to
adults pertaining to their financial affairs. The creation of Uniform Premarital
Agreement Act has laid the foundation of prenuptial agreements in America. This
legislation has been adopted by 26 states and it aims to bring consistency among
such agreements which were initially state specific. The UPAA has established
certain requirements to consider a prenuptial agreement valid along with giving the
flexibility to states to add additional factors.
The states which have not adopted the UPAA either rely on the common law
principles or have formulated their own statutes regarding premarital agreements,
despite this diversity, they are considered valid throughout the nation. The general
key requirements which are important to consider prenuptial agreements to be
enforceable primarily includes a full and fair disclosure of the financial status of the
parties which includes their income, assets and liabilities. It is essential as this
transparency provides protection against concealment of facts and fraud in
situations where one person enters the agreement without being completely aware
of the other spouse’s true financial position.
Moreover, an agreement voluntarily must be entered without undue influence,
coercion or duress. It is the duty of the court to examine and ensure that neither
party was pressured into entering into the agreement. Multiple states encourage the
parties and give them the opportunity to consult with independent legal counsel to
check that the agreement was made willingly and knowingly. The agreement
should be executed at least several weeks before the marriage to prevent the claims
where one party states that they were made to sign the agreement due to emotional
pressure. Lastly, the terms of the contract cannot violate fundamental public
policies especially regarding child support. USA’s approach comprises of both
rights and cautions while trying to ensure that there is no unfair use of the statutes.
The acceptance of prenups in the country display how the family law systems can
coexist with contractual autonomy.
 Invisible to Invincible : Narratives of Gender Justice 253

Key Elements and Validity of Prenuptial Agreements

In India, although the prenuptial agreements are not legally recognized under any
specific legislations but their validity is assessed through the provisions of Indian
Contract Act, 1872. Mutual consent is one of the most important conditions. The
parties to the agreement should do so voluntarily, knowingly, and without
coercion in any manner. Consent driven by duress, misrepresentation, or fraud
would invalidate the contract, making it void or voidable under section 1324 and
1425 of the Indian Contract Act.
Clarity of terms is another crucial ingredient. The agreement clearly needs to set
out the nature and quantity of assets, liabilities, spousal maintenance, and all other
essential criteria.
Uncertainty or vagueness of words will result in judicial invalidation, as courts
favor certainty in marital contracts. The principle of absence of coercion is at
the heart of the legitimacy of prenups. In the arena of family and trust law Indian
judiciary have cited many foreign influential doctrines that have shaped such laws.
The doctrine warns against any undue influence which can be present in a
fiduciary or emotionally superior relationship like an imminent marriage.
Lastly, the contract has to comply with public policy requirements. According to
section 23 of the Indian Contract Act26, any contract whose object or consideration
is unlawful or against public policy is void. Indian judiciary often invalidate
prenuptial agreement clauses that try to remove or reduce spousal maintenance or
restrict court’s power to decide on maintenance or child custody. Such clauses in
prenups are seen as against the moral and social fabric of Indian family law and
courts believe marriage is not just a contract but a social duty, so spouses cannot
sign away basic responsibilities and therefore, invalidate such agreements. In the
case of Tekait Mon Mohini Jemadai v. Basanta Kumar Singh27, the Calcutta High
Court held a prenuptial agreement to be void on the grounds of public policy
where it was stipulated by such agreement that the husband would never remove
his wife from her mother’s home and would always obey the commands of the
wife’s mother.
A prenuptial agreement for payment of a specific sum of money to the wife in the
event of her deciding to depart from her husband for any reason whatsoever was
held to be against public policy by the Madras High Court in Krishna Aiyar
v. Balammal28. Also, the Bombay High Court in Bai Fatma v. Alimahomed Aiyeb 29,
held that a prenuptial agreement providing for maintenance to wife in case of future
254 Invisible to Invincible : Narratives of Gender Justice

separation, even though made by a Mahommedan couple, was contrary to public

policy as the agreement promoted separation as well as stipulated for it.
Simultaneously, it must be noted that in Appibai v. Khimji Cooverji30, a prenuptial
agreement requiring the couple to reside in Bombay after marriage was not
considered to be against public policy, as it did not subject either of the spouses to a
restrictive burden to live in Bombay for all time.
In the leading case of ONGC Ltd. v. Saw Pipes Ltd.31, the Supreme Court of India
noted that there is no clear definition of ‘public policy’ since it changes from
“generation to generation and from time to time” and as such, the concept of
‘public policy’ is vague and its “narrow or wider meaning” depends on the context
in which it is used. Looking to the West, a benchmark judgment of the Supreme
Court of the United Kingdom in Radmacher v. Granatino32 (‘Radmacher’) revisited
the ‘public policy’ stance on prenuptial and postnuptial agreements, and held that
prenuptial agreements do not conflict with the ‘public policy’ provided they are
entered into jointly and voluntarily and should thus be upheld unless it would lead
to unfairness to either of the parties. Sadly, the situation in India regarding the
enforceability of prenuptial agreements, as evidenced by the foregoing discussion,
is not so clearly defined.
There have been several other cases with different grounds to declare the prenuptial
agreements as invalid. In the case of Sheonarain v. Paigi33, the Court declared the
wife’s argument that her husband had violated the prenuptial agreement as he
refused to live with her mother to be “absurd” which reinforced the idea that marital
duty supersedes the contractual agreements. In Ahmad Kasim Molla v. Khatun
Bibi34, the kabinnama which was promised to the wife after she left due to
mistreatments, was not valid as it did not mention the post- divorce settlement and
the husband was only held liable for the iddat maintenance.
However, there have been a few instances where the prenuptial agreements have
been held valid on the reasonable grounds. The Calcutta High Court had upheld, in
the case of Sandhya Chatterjee v. Salil Chandra Chatterjee35, the prenuptial
agreement by stating that the parties have a freedom to contract and voluntary
agreements between such competent parties should be respected unless they are
harmful.
The courts have had a more favourable stance in Muslim marriages and cases
owing to the recognition of the contractual nature of the Muslim marriages. In
Muhammad Muin-Ud-Din v. Musammat Jamal Fatima36, the High Court of
Allahabad upheld the prenuptial agreement which required the husband to pay
 Invisible to Invincible : Narratives of Gender Justice 255

additional maintenance apart for the dower in case of marital discord, this affirmed
that the parties could agree to certain financial terms which are beyond the standard
obligation under Islam unless they violate the core principles of the Muslim law.
Similarly, in the case of Buffatan Bibi v. Sheikh Abdul Salim37, the court validated
a marriage contract which allowed the wife to divorce if the husband fails to
maintain her for six months.
Prenuptial agreements in the USA are regulated mainly at the state level, with most
states following the Uniform Premarital Agreement Act38 (UPAA), 1983 or the
Uniform Premarital and Marital Agreements Act39 (UPMAA). One of the essential
requirements for enforceability is voluntary execution which requires both the
parties to sign the agreement voluntarily without any coercion, threats, or undue
influence. Courts often examine whether a fair chance of deliberation was given or
not and whether any advantage was taken because of power imbalance between
spouses.
Just as important is the need for disclosure of all finances. Both spouses must
provide each other with a true and comprehensive schedule of their respective
assets, liabilities, income, and expectations. Non-disclosure— intentionally or
negligently—can result in invalidity. A prenup must also have fair and equitable
terms, both at the time of signing and enforcement. Most states use a “two- tiered”
fairness test: substantive fairness is evaluated upon execution of the contract, while
procedural fairness is examined upon enforcement. This ensures that an agreement
that was fair at the beginning would not be unconscionable under changed
circumstances.
In states like California, the help of independent legal counsel is highly advised and
sometimes mandatory. According to section 1615 of California Family Code40, a
party who lacked independent legal representation must satisfy higher standards to
establish that the agreement was entered voluntarily. Independent legal counsel
guarantees free and fair consent without any unfair advantage taken by either party
and minimizes the risk of procedural unfairness, strengthening the overall integrity
of the agreement.
Advantages and Disadvantages of Prenuptial Agreements
Prenuptial agreements provide a wide range of advantages that make them a useful
tool in modern matrimonial law. The first advantage is asset protection. Prenups are
proven to be a safeguard for premarital assets, business interests, and family
inheritances from being divided upon in matters of divorce. This is advantageous in
256 Invisible to Invincible : Narratives of Gender Justice

high-net-worth marriages or where one party brings a much greater amount of

wealth into the marriage. These agreements promote financial transparency
between spouses, by ensuring full disclosure of income, liabilities, and assets. By
doing so, it is likely to enhance trust and promote a better understanding of one
another’s financial needs and obligations.
Another advantage is conflict reduction. In a prenuptial agreement, the terms and
conditions of asset division are already pre-decided, which decreases the lengthy
and emotionally draining court battles. Because of prenups the judicial process of
separation becomes shorter and less expensive. Prenuptial agreements give
freedom to spouses who bargain their financial terms based on their individual
needs and preferences. In United States where personal freedom and contractual
liberty are emphasized, which therefore, reinforces the legitimacy of prenups as
pragmatic legal tools.
However, along with advantages, prenuptial agreements have certain
disadvantages. One of the major disadvantages is the risk of creating trust issues.
For a few couples, negotiation of the terms of separation prior to their marriage
might seem cynical or imply a lack of confidence in the duration of their
relationship. This might be emotionally distressing or create conflict over the
course of their marriage. Secondly, power imbalances between the partners can
give rise to uneven terms, especially if one party is substantially wealthier or
legally knowledgeable. Without adequate legal advice or transparency, the
vulnerable side may be bullied into consenting to unequal terms.
Finally, prenups struggle to keep up with unpredictable circumstances. Major life
situations like disease, the birth of children, or significant economic change render
former even arrangements unreasonable or out-of-date. Courts may be constrained
by rigid provisions that fail to meet the contemporary realities. Lastly, in certain
jurisdictions where strict application of prenuptial provisions is the standard,
judges have little room to make flexible decisions. This can result in unfair
outcomes for exceptional cases, most of all where the agreement has not developed
with the marriage. For these purposes, critics opine that though prenuptial
agreements guarantee legal certainty, they must always be followed with fairness
review provisions and the scope of postnuptial amendment.
Socio-Legal and Public Policy Concerns
The socio-legal position regarding the prenuptial agreements is shaped by tensions
that exist between factors such as constitutional values, religious ideologies as well
 Invisible to Invincible : Narratives of Gender Justice 257

as public policy. Although, many countries have recognised prenuptial agreements

to be a significant tool to layout the financial and custodial rights within the
marriage, the legal landscape in India remains quite hesitant. The concern and
justification of public policy is used to nullify such agreements as the idea of
marriage is a sacred bond under Hinduism and courts have, on numerous occasions,
ruled that such agreements promote separation and also contradict personal laws.
This ground is used to state that prenuptial agreements are void under section 23 of
the Indian Contract Act, 1872 as they are against public policy as well as personal
laws as they facilitate and presume of marital breakdown.
The term public policy is evolving in nature and its interpretation must adhere socio
economic transformation that take place in a country over a period of time. India has
transformed pertaining to its notion of marriage in multiple forms and this can be
seen with the legal sanction that has been provided regarding divorce, a notion
which was absent in the personal laws. The rise of awareness, education and
financial freedom has led to a transformed society which recognises mutual
autonomy. The ground of public policy often neglects the voices of the actual
parties and stakeholders that is, the prospective spouses who might consider the
prenuptial agreements to be an empowering tool rather than a document that
destroys the sanctity of marriage.
Such justifications on the grounds of personal laws are also deemed to be selective
in nature as they disregard the example of Muslim marriages which often perceive
marriages as a civil contract comprising of a nikahnama. This inconsistent and
fragmented approach disregards other personal laws which is required to balance
cultural values within the nation. Merely recognising the contractual dimension of
marriage does not undermine its sacramental aspects. Legal recognition of
prenuptial agreements calls for transparency, equitable sharing of responsibilities
and negotiation and can be used to mitigate conflicts, provide financial clarity and
protect the rights of individuals.
Challenges
Despite its structured framework in the USA, the prenuptial agreements come with
their own sets of limitations. These contracts commonly benefit the spouse who has
better financial assets a bargaining power. In the case of re Marriage of Bonds41,
the court upheld the validity of the agreement in which the wife had limited
proficiency in English, had fewer financial assets and no legal representation as it
satisfied the legal prerequisites of validity. There is also a challenge regarding the
258 Invisible to Invincible : Narratives of Gender Justice

determination of whether the agreement was truly voluntary. While the courts
consider the probability of fraud or duress, they often fail to look into the social
and emotional pressures surrounding marriages. In Simeone v. Simeone42, where the
wife could not completely prove the fact that she was coerced by the legal
attorney of her husband into signing the agreement, the court upheld its validity.
This points towards the issue of unequal power dynamics that might exist between
the parties which can influence these agreements.
California’s Family Code, Section 1615 requires the need to examine other factors
other than financial assets which include assessing whether the parties have
independent counsel and have had adequate time to consider and understand the
nuances of the agreement. These enhancements aimed to create a better
understanding of the terms of the agreement while preserving the principle of
contractual freedom.
In India, as discussed before, the primary challenge stems from the critique that the
entire concept of prenuptial agreement is antithetical to the idea of lifelong
commitment. The introduction of these agreements questions the sanctity and
permanence of marital bond. The existence of such agreements point towards the
expectation of divorce which opposes the notion that marriage is unbreakable and
comprises of social commitment and obligations. The Indian judiciary often
explains the need to promote cohabitation and reconciliation between the parties
and these agreements might discourage the parties from resolving any marital
disputes.
Another significant challenge which arises is similar to that of the United states that
is, the potential misuse and manipulation during the premarital stage. A party might
exploit the emotional vulnerability, trust and attachment of the other party for their
own gain. They might induce the party to agree to their preferable financial terms
under the pretext of love and attachment. In a country like India where marriage is
often tied to societal pressures and family expectations, people might give in to the
terms of these contracts under the fear of conflict and societal image. This
emotional influence makes it hard to prove coercion by giving a concrete legal
evidence as under the eyes of law, the consent was free.
There is also a debate regarding the possible exploitation of vulnerable women due
to these agreements. Even in today’s world, there are certain instances regarding the
limited agency of women in decision making due to the patriarchal structure. The
woman might be coerced into accepting the terms of the agreement which will strip
them of their marital and other legal rights especially the ones pertaining to
 Invisible to Invincible : Narratives of Gender Justice 259

maintenance, alimony and custody of children. This might also lead to the inclusion
of certain clauses regarding dowry under the veil of “gifts”.
The concern of public policy forms a ground on which courts have resisted to
validate prenuptial agreements. Even in situations where such agreements were
considered to be valid under the Indian Contract Act,1872, they could still be
declared void if they were seen to be void on the ground of being contrary to public
policy as per the provisions of Section 23 of the Act. This has remained a
significant hurdle to the legal recognition. Such an argument is important as courts
may still decide to refuse and reject the validity of the agreements on the grounds
of public policy despite them being valid in principle.
Recommendations
In order to assess the status and the need for recognition of the prenuptial
agreements, one must take into account the evolving nature of the society. While
religious traditions have been given importance, the law in India has acknowledged
the contractual elements of a marriage. While the Muslim law and the Christian
law had been recognising marriage of a civil contract along with understanding its
religious significance, under the Hindu law marriage is no longer seen solely as a
sacrament but has also been perceived to contain contractual elements. This can be
seen by analysing the laws regarding property division, divorce and maintenance.
The argument of prenuptial agreements being a threat to marital stability do not
acknowledge that in the countries where they are accepted, they have been used as
tools to promote transparency and financial clarity between the spouses and ensure
that amicable settlements can be processed smoothly.
The concern of misuse should not deter the authorities from enacting legislations
regarding the prenuptial agreements as it is not practical to expect zero misuse of
the provisions. One also needs to acknowledge and understand that the Indian
Contract Act already provides mechanisms to protect the parties who are made to
consent to agreements under fraud, misrepresentation and undue influence. The
courts have the power to analyse and scrutinise whether these agreements are fair
and reject them if they deem fit specially in cases involving waiver of maintenance
that would lead to unfairness and the problem of emotional exploitation can be
addressed via legal safeguards and judicial discretion.
To deal with the challenges involving exploitation of women, the courts should
ensure that the statutory safeguards that have already been provided to women
260 Invisible to Invincible : Narratives of Gender Justice

should not be violated by the terms of these agreements, especially in the cases
where the wife has significantly less amount of assets to sustain herself as per
standard of living. This can be done to ensure that such agreements cannot
be used as a tool of oppression.
Conclusion
A comparative analysis between the two countries exhibits the difference in the
traditional as well as legal frameworks. Within this discourse on these agreements,
there lies a fundamental question as to whether law can or should remain
indifferent to the practical realities of the marriages in this modern world.
Considering marriage to be mere of contractual and financial transactions would
definitely undermine its historical, cultural and traditional roots but there should be
a systematic framework which inculcates both the aspects of marriage.
Multiple statutes such as the Hindu Marriage Act43 and the Hindu Adoption and
Maintenance Act44 have already questioned the irrevocable nature of marriage
which the traditions postulate. This shows that the law does not stick to rigid
notions of sanctity without recognising the social realities that exists in today’s
world. Permanence cannot be ensured simply by ignoring the possibility of
separation and these agreements allow the parties to freely discuss crucial questions
specially the ones pertaining to financial clarity and the adult parties should have
the option to enter into such agreements.
India should not strictly follow the American model but should integrate the global
legislations and interpretations by keeping in mind the cultural sensitivity in the
country. These agreements can be declared as voidable, valid or void as per the
discretion of the judiciary as the courts can play a protective role to ensure
fairness and to prevent deprivation of rights of individuals due
to the misuse of these agreements. The law as well as the concept of public policy
cannot remain static while the society is continuously evolving.
India also has a chance to take a look at the precedents and the reception of these
agreements in other countries to determine and formulate a statutory framework
which already provides a way to address the shortcomings and challenges of these
agreements. These agreements do not simply accept the possibility of failure of
marriage but in fact, prepare the parties for many probable outcomes.
 Invisible to Invincible : Narratives of Gender Justice 261

References
1 The Hindu Succession Act, India (1956)
2 The Protection of Women from Domestic Violence Act, India (2005)
3 The Indian Contract Act, s. 10 (India, 1872)
4 The Indian Contract Act, s. 23 (India, 1872)
5 Uniform Premarital Agreement Act, Uniform Law Commission (1983)
6 Uniform Premarital and Marital Agreements Act, Uniform Law Commission (2012)
7 Button v. Button, 131 Wis. 2d 84 (1986)
8 The Hindu Marriage Act, India (1955)
9 The Muslim Personal law (Shariat) Application Act, India (1937)
10 The Christian Marriage Act, India (1872)
11 The Parsi Marriage and Divorce Act, India (1936)
12 The Special Marriage Act, India (1954)
13 The Indian Divorce Act, India (1869)
14 The Indian Contract Act, (India, 1872)
15 Ibid
16 The Indian Contract Act, s. 23 (India, 1872)
17 The Indian Contract Act, (India, 1872)
18 Ibid
19 The Indian Divorce Act, s. 40, India (1869)
20 Sunita Devendra Deshpande v. Sita Deshpande
21 Uniform Premarital Agreement Act, Uniform Law Commission (1983)
22 Ibid
23 Uniform Premarital and Marital Agreements Act, Uniform Law Commission (2012)
24 The Indian Contract Act, s. 13 (India, 1872)
25 The Indian Contract Act, s. 14 (India, 1872)
26 The Indian Contract Act, s. 23 (India, 1872)
27 Khatun Bibi v. Rajjab, 1926 SCC OnLine All 134 : AIR 1926 All 615
28 Krishna Aiyar v. Balammal, ILR (1911) 34 Mad 398
29 Bai Fatma v. Alimahomed Aiyeb, ILR (1913) 37 Bom 280 : (1912) 14 Bom LR 1178
30 Appibai v. Khimji Cooverji, 1934 SCC OnLine Bom 62 : AIR 1936 Bom 138
31 ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705
32 Radmacher v. Granatino, (2010) UKSC 42
33 Sheonarain v Paigi (1885) ILR 8 All 78
34 Ahmad Kasim Molla v Khatun Bibi AIR 1933 Cal 27
262 Invisible to Invincible : Narratives of Gender Justice

35 Sandhya Chatterjee v Salil Chandra Chatterjee AIR 1980 Cal 244

36 Muhammad Muin-Ud-Din v Musammat Jamal Fatima (1921) ILR 43 All 650
37 Buffatan Bibi v Sheikh Abdul Salim AIR 1950 Cal 304
38 Uniform Premarital Agreement Act, Uniform Law Commission (1983)
39 Uniform Premarital and Marital Agreements Act, Uniform Law Commission (2012)
40 California Family Code, s. 1615, (California, 1994)
41 In re Marriage of Bonds 5 P.3d 815 (Cal 2000)
42 Simeone v Simeone 581 A.2d 162 (Pa 1990)
43 The Hindu Marriage Act 1955 (India)
44 The Hindu Adoption and Maintenance Act 1956 (India)


 Invisible to Invincible : Narratives of Gender Justice 263

Beyond Binaries: Gender, Sex, and the Fight for

Human Rights
Tracey Sehgal
BBALLB (Hons.)
Co-Author – Priyanshu Singh
BALLB (Hons.) Bennett University, Greater Noida

Abstract
India’s evolving human rights background locates the gratitude and defence of gender-
diverse identities in the primary position, stimulating the country’s legal framework’s
traditionally in- built gender binary. Non-binary and gender-diverse individuals as they
endure to suffer significant legal and social hurdles instead of constitutional agreements of
equality, non- discrimination, and the right to life and dignity. While Indian law is making
progress while concerning about inclusivity, this paper critically examines how it still
operates broadly within a binary format that fails to do so entirely. National Legal
Services Authority v. Union of India & Ors., (2014) 5 SCC 438 is the landmark judgment
that marked a turning point in India’s gender rights movement. It recognised the self-
sufficiency of gender identity as a fundamental right and identified the rights of
transgender individuals. The case of Navtej Singh Johar v. Union of India (2018) 10 SCC 1
is another judgment that made a crucial initiative toward eliminating legal steeplechases
for the LGBTQ+ community. However, legislative methods like the Transgender Persons
(Protection of Rights) Act, 2019, have been criticized for their inadequate identification of
non-binary identities and the non-existence of robust enforcement mechanisms to address
discrimination in key areas like employment, healthcare, and family law, despite these
progressive rulings.
Global legal principles, for instance, the Yogyakarta Principles, which support gender
identity and expression as vital elements of fundamental human rights, are used to further
position India’s framework for gender rights inside the broader global human rights
discussion. Institutional discrimination, legal ambiguities, and policy shortcomings stretch
to prevent the complete grasp of gender-diverse individuals’ rights in India, despite the
presence of judicial activism and growing awareness.
Gender, elsewhere, the binary theoretical criteria must be covered through legislative
reforms, judicial reinterpretations, and administrative policy shifts, as discussed in the
paper. This research ultimately calls for a broad, all-encompassing, and enforceable legal
framework that assures dignity, equality, and justice for non-binary and gender-diverse
264 Invisible to Invincible : Narratives of Gender Justice

individuals in India. The connectedness of gender with broader socioeconomic and

legal structures is recognized.

Keywords: Gender Diverse, Legal Recognition, Human Rights, LGBTQ+ Rights, Gender-
Neutral Policies.
Introduction
Gender and sex are often blended, yet they are separate concepts; biological sex
refers to physiological appearances assigned at natal, while gender identity is an
individual’s natal sense of self, which may or may not associate with their
biological sex, and sexual orientation affects to one’s emotional or sexual
magnetism to others. Despite constitutional assurances of equality, non-
discrimination, and dignity, the Indian legal framework has traditionally failed to
identify individuals beyond the male-female binary, leaving non-binary and
transgender individuals susceptible to general segregation. However, the global
human rights crusade has made important strides in backing for gender diversity,
with the Yogyakarta Principles1 accenting the need for states to safeguard the legal
recognition of gender identities beyond the binary. India, too, has a long history of
gender diversity, with populations such as hijras being recognized in ancient texts,
hitherto colonial-era laws like Section 377 of the Indian Penal Code2 outlawed non-
heteronormative identities, further embedding social stigma and discrimination. In
recent years, judicial involvements, such as National Legal Services Authority v.
Union of India (2014)3 and Navtej Singh Johar v. Union of India (2018)4, have
marked significant progress in upholding gender rights, yet legislative gaps,
including the inadequacies of the Transgender Persons (Protection of Rights) Act,
20195, continue to hamper real inclusivity. This paper seeks to critically analyse the
legal and societal encounters across by non-binary individuals in India, evaluate the
value of judicial and legislative measures, and recommend required reforms to
craft a more inclusive and gender-sensitive legal framework associated with
international human rights principles.
1) Legal Definitions of Gender and Sex in India

In India, despite constitutional clarifications, the legal notions of gender and sex are
still typically binary. Laws have conventionally barred non-binary individuals;
nevertheless, the Constitution’s assurance of equality (Article 14), prohibition of
discrimination (Article 15), and upholding of dignity (Article 21)6.
Consensual same-sex corporations were official in Navtej Singh Johar v. Union of
India (2018)7, while the freedom to self-identify gender was accredited in National
 Invisible to Invincible : Narratives of Gender Justice 265

Legal Services Authority v. Union of India (2014)8. However, stringent

documentation standards imposed by the Transgender Persons (Protection of
Rights) Act, 20199, Highlight the stipulation of alterations to pledge gender
insertion.
1. Constitutional Framework
India’s constitutional framework delivers a robust groundwork for gender rights,
though it has functioned factually within a binary conception of gender10.
All people, irrespective of gender identification, are entitled to equal protection
under Article 14’s guarantee of equality before the law. Courts have construed
Article 15’s ban on sex discrimination to embrace gender identity and expression.
The rights to life and personal liberty, including sovereignty in gender
identification, privacy, and dignity, are protected under Article 21.
 Article 14 (Right to Equality): Ensures equality before
the law and equal protection, forming the basis for gender rights.
 Article 15 (Prohibition of Discrimination): Prohibits discrimination
on grounds of sex, which courts have interpreted to include gender
identity.
 Article 21 (Right to Life and Personal Liberty): Interpreted to encompass
dignity, privacy, and autonomy in gender identity.
2. Gender Binary and the Law

Due to India’s long-standing devotion to a stern gender binary that wholly

recognizes male and female identities, non-binary individuals are steadily negated
access to fundamental legal rights and protections. Voter IDs, passports, and
Aadhaar cards have customarily obligated applicants to opt between the genders
“male” and “female,” posing hindrances for those who do not fit within this
dichotomy11.
In a similar disposition, non-binary people dearth overt legal recognition in the
fields of marriage, adoption, and inheritance because these personal laws are
primarily structured on heterosexual, cisgender identities. Although the presence of
a third gender has been recognized by edicts such as National Legal Services
Authority v. Union of India (2014), legislative reforms are still unsatisfactory
because laws in India still depend on binary groupings, which perimeter the rights
and legal sovereignty of non- binary individuals.
266 Invisible to Invincible : Narratives of Gender Justice

3. Recognition of Transgender and Non-Binary Identities

Through court intrusion and legislative engagements, transgender and non-binary

individuals have acquired legal recognition in India. In the past, Indian laws were
based on a stringent gender binary that omitted any person who did not fit into the
male- female sort.
However, a radical revolution was brought about by the Supreme Court’s 2014
decision in National Legal Services Authority v. Union of India 12, which
documented the rights of transgender individuals, counting those who classify as
non-binary. The Court reiterated that gender identity is a basic element of individual
autonomy and pride under Articles 14, 15, and 21 13 of the Indian Constitution,
safeguarding their right to self- identification without the need for medical or
surgical procedures. To give legal recognition and fortifications against
discrimination, the Transgender Persons (Protection of Rights) Act, 2019 14 was
passed.
The Act has drawn a lot of criticism, nevertheless, because it dents the Nalsa-
established principle of self-identification by requiring transgender people to
request certification to have their gender legally acknowledged. Since the Act
habitually distillates on the rights of transgender people without proposing a legal
framework for those who do not identify within the binary or the “third gender”
categories, non-binary people are also still largely unheeded by Indian law.
By decriminalizing consensual same-sex alliances, the Supreme Court’s
ruling in Navtej Singh Johar v. Union of India (2018)15 reinforced the rights of
sexual minorities and gender equality. This decision underlined how the
constitutional protections of equality, privacy, and dignity protect sexual
orientation, gender identity, and personal identity. Noteworthy legal imparity still
exists in sectors like marriage, inheritance, adoption, and identification documents,
which still operate under a binary gender framework, notwithstanding these
advanced court rulings.
2) Existing Legal Framework for Gender and Sex Rights in India
 Transgender Persons (Protection of Rights) Act, 201916: This Act signified
a legislative attempt to recognise and guard transgender people’s rights in India.
It forbids discrimination in a variety of contexts, including public places, work,
healthcare, and education. It has, however, pencilled punitive criticism for
needing individuals to get a certificate from a District Magistrate to legally alter
their gender, so undercutting the Supreme Court’s recognition of the right to
self-identification in Nalsa v. Union of India (2014)17. In addition, the Act does
 Invisible to Invincible : Narratives of Gender Justice 267

not protect rights about marriage, inheritance, or adoption, and it is unclear how
non-binary identities are involved.
 Navtej Singh Johar v. Union of India (2018)18: In this momentous ruling, the
Supreme Court decriminalized endorsing adult same-sex relationships by
repealing Section 377 of the Indian Penal Code19.
 The verdict, which upheld sexual orientation as a fundamental element of
privacy, dignity, and equality under Articles 14, 15, and 21 of the Constitution,
was a substantial win for LGBTQ+ rights in India. The ruling established the
footing for broader acceptance of sexual and gender diversity, even though it
did not exclusively attend to gender identity.
 Surrogacy and Adoption Laws: India’s existing adoption and surrogacy
regulations are chiefly binary and heteronormative. Transgender and non-
binary people do not have a clear transmit to lawful parenthood under the
Juvenile Justice (Care and Protection of Children) Act of 2015 or the Surrogacy
(Regulation) Act of 202120. Non-binary people are fundamentally omitted under
these regulations, which frequently limit eligibility to married heterosexual
couples or single people21 within a precise age and gender range.
Assurance that family law systems are fair and comprehensive of all gender
identities, legislative deviations are essential.
3) The Role of the Judiciary in Expanding Gender Rights
• Judicial Activism and Constitutional Morality: Through the optical prism of
constitutional scruples, the Indian judiciary has been influential in escalating
the inking of gender rights.
 Shafin Jahan v. Asokan K.M. (2018)22: The Supreme Court upheld a
person’s right to excellent their spouse in this case, emphasising individual
freedom and self-determination as crucial elements of identity.
It restated the more conventional idea that personal pronouncements apropos
relationships and identity are protected by the Constitution, even if it was not
precisely about gender.
 Anuj Garg v. Hotel Association of India (2007)23: A bigoted clause in the
Punjab Excise Act that barred women from working in places that served
alcohol was overturned by the court. The ruling propagandised gender-neutral
laws that uphold equality and human agency while highlighting the meaning of
eschewing traditional notions of gender roles.
• Developing Gender Fluidity: Indian courts are becoming increasingly
conscious that gender is a continuum. They have underlined the inevitability of
268 Invisible to Invincible : Narratives of Gender Justice

legal recognition of gender diversity and have begun to discard strict male-
female24 binaries through numerous verdicts. The judiciary’s agreement of self-
identification, dignity, and the fluidity of gender is indicative of a transforming
method based on the equality, non- discrimination, and human dignity values
located in the constitution. To promote a comprehensive legal environment for
non-binary and gender-diverse individuals, this evolving body of jurisprudence
is vital.
4) Challenges Faced by Non-Binary and Gender-Diverse Individuals
• Social Stigma and Discrimination: In India, stigma and marginalization
against non- binary and gender-diverse individuals are still extensive. Exclusion
in significant domains like school, work, housing, and healthcare is an outcome
of entrenched gender norms and ignorance25. Due to their refusal to adapt to
binary gender norms, these individuals habitually cope with verbal abuse,
harassment, and even physical violence, which affects them to social isolation
and psychological suffering.
• Lack of Legal Protections:
 Employment Discrimination
Biased hiring practices, abjuration of promotions, and toxic work conditions are
just some examples of the workplace discrimination that non-binary individuals
habitually face.
This dilemma is made worse by the lack of clear anti-discrimination upholds for
gender-diverse individuals in employment regulations.
 Inadequate Access to Gender-Affirming Healthcare
Getting access to professional and considerate healthcare is still very grim.
Healthcare is unreachable because of bureaucratic hindrances, such as challenging
certification for gender identification26. The fact that various medical institutions
lack the competence crucial to administer gender-affirming therapies.
 Barriers in Education and Public Spaces
Students who classify as gender nonconforming face omission from facilities that
are gender-segregated, bullying, and a lack of administrative support, all of which
influence their academic performance.
The marginalization of non-binary individuals is further intensified by the
numerous instances of public infrastructure that accommodate them.
• Case Studies of Discrimination: In India, systemic discrimination against
gender- diverse individuals has been visible in several studies
 Invisible to Invincible : Narratives of Gender Justice 269

and publications by NGOs and 25 National Human Rights Commission,

Study on Transgender Rights and Social Inclusion in India (2018).
human rights27 organizations. Resilient legislative changes and comprehensive
public policies that concede and defend the rights of all gender identities28 are
desperately required, as these stories exhibit. Non-binary people will be barred
from meaningful engagement in society in the absence of resolute efforts.
5) Comparative Analysis with Global Standards
• International Human Rights Framework: A decisive international
framework outlining how existing human rights norms relate to concerns of
sexual orientation, the Yogyakarta Principles (2006) specify gender identity,
gender expression, and sex characteristics29 and the Yogyakarta Principles plus
10 (2017).
The complete gratification of human rights, such as the rights to equality, privacy,
dignity, education, health, and legal recognition, is guaranteed to all individuals,
irrespective of their gender identity or expression, according to these principles.
They appeal to states to rescind discriminatory laws and policies and
hassle the need for legal frameworks that nod to self-defined gender identity
without the necessity for medical procedures. Human rights organizations, courts,
and UN agencies30 are gradually citing the Yogyakarta Principles as benchmarks
for achieving gender inclusion on a worldwide scale.
• Best Practices: India may benefit enormously from the aggressive actions
taken by many nations to recognise and defend the rights of non-binary and
gender-diverse individuals:
 At both the federal and provincial levels, Canada has put gender-inclusive
policies into action. “Gender identity or expression” most protected reason
against discrimination under the Canadian Human Rights Act31. Canadians can
express recognition beyond the male-female binary by using an “X” gender
marker on their passports, immigration documents, and national identification
cards.
 Support transgender and non-binary individuals, New Zealand has created
comprehensive guidelines for various sectors, together with healthcare and
education. Non-binary gender markers are legalised in government-issued
documents, and disgrace has declined because of public awareness initiatives32.
 In 2012, Argentina33 legislated one of the most widespread gender identity laws
in the world. It provides people the freedom to change their legal gender only
based on how they see themselves, without the obligation for medical diagnosis,
270 Invisible to Invincible : Narratives of Gender Justice

surgery, or court approval. Within the public health system, it also ensures free
access to gender-affirming medical care.
These global models place a sturdy emphasis on inclusivity, autonomy, and dignity.
The demonstration is done on how progressive laws can stand in an atmosphere
that is sympathetic to non-binary and gender-diverse individuals in collaboration
with public policy and awareness. To comply with international human rights ethics
and assurance elementary equality for all, India would be required to implement
analogous policies, for instance, eliminating the need for medical
certification, forming gender-neutral legal frameworks, and strengthening anti-
discrimination safeguards.
6) Reforms and Recommendations
• Legislative Reforms: Imperative legislative adjustments are essential to ensure
a legally inclusive system. It is required to vary the Transgender Persons
(Protection of Rights) Act, 201934, to sustain the freedom to identify one’s
gender without requiring medical testing, screenings, or certifications.
This is consistent with the Supreme Court’s 2014 decision in NALSA v. Union of
India35, which upheld the right to self-identification as a basic one, for providing
people of various gender identities equitable approach to family rights and legal
recognition, India should also ratify gender-neutral legislation in crucial areas like
marriage, adoption, and inheritance. The binary and heteronormative frameworks
that presently govern personal laws would be destroyed as a outcome.
• Judicial Reforms: The encroachment of gender justice is aided by the
judiciary. To pledge that the rights of people who are recognised as gender
nonconforming are endorsed, courts ought to construe existing legislation
gradually.
Courts must acknowledge the mutable nature of gender and identity and surpass
orthodox norms by applying the notion of constitutional principles and ethics. To
reverse discriminatory practices and, when mandatory, close legislative gaps,
judicial activism must be promoted.
• Public Policy: Policies that are confirmatory and inclusive of gender minorities
must be executed by public entities. This consists of using positive action to
construct equal probabilities in housing, work, and education.
The government ought to ensure that gender-neutral identification documents, such
as voter IDs, passports, and Aadhaar cards, are allotted, providing citizens the
option to specify their gender as “X” or “Other”.
 Invisible to Invincible : Narratives of Gender Justice 271

To aid non-binary and transgender groups, particular welfare programs should be

applied, for instance, housing assistance, skill development courses, and healthcare
benefits36.
• Role of Education: The key to overcoming embedded communal bias is
sensitization. To promote tolerance and empathy, educational institutions
should implement diversity training, gender studies, and awareness initiatives at
all stages. It is vital to acknowledge syllabi to combat partialities and embody
gender diversity37. Anti-bullying policies must unambiguously address
harassment based on gender identity or expression, and faculty training
programs must combine modules on supervising gender diversity in the
classroom. When united, these adjustments would accessible to the door to a
further equitable and complete society where all and sundry can live in
freedom, equality, and dignity, regardless of gender identification38.
Conclusion
Substantial evolution has been made in recent years in India’s legal system to
endorse and acknowledging the rights of transgender and gender nonconforming
individuals and by interpretating Articles 14, Article 15, and Article 21 39 to
safeguard the principles of equality, non-discrimination, and dignity, influential
conclusions for instance National Legal Services Authority v. Union of India
(2014)40 and Navtej Singh Johar v. Union of India (2018)41 have recognised the
constitutional foundation for enclosure. Such verdicts object to long-standing biases
rooted in the legal and social fabric by identifying the liberty to self-identify one’s
gender and legalizing consenting same-sex relationships. Though these triumphs
are noteworthy, they are just the beginning of a longer path on the way to true
equality.
Nonetheless, these court rulings, the recent legal system still works along a strict
gender binary, normally eliminating those who do not fit into outdated male-female
classifications. Regardless of a step ahead in terms of legal recognition, the
Transgender Persons (Protection of Rights) Act, 201942, is, however, problematic
for the reason that it relies on bureaucratic procedures and have a need of medical
certification, which runs counter to the Supreme Court’s documented outlook of
sovereignty and self-identification. In addition, non-binary and gender- diverse
individuals43 continue to carry on facing significant obstacles to accessing or being
included in other vital legal areas, together with marriage44, adoption, inheritance,
and healthcare. Social stigma, ignorance, and institutional bigotry in both public
and private areas all contribute to these vetoes.
272 Invisible to Invincible : Narratives of Gender Justice

Employing the theory of constitutional morality and delivering a progressive

interpretation of constitutional norms, the court has contributed to achieving gender
justice. But the margin between official acknowledgment and experienced
authenticity cannot be bridged unaided by courts. Illustrating influence from global
human rights outlines such as the Yogyakarta Principles45, which promote inclusive
and non-discriminatory guidelines for LGBTQ+ individuals, a united and rights-
based legislative approach is necessary. Assenting welfare programs, self-
identification laws, and gender-neutral legislation are instances from
nations like Canada46, Argentina47, and New Zealand 48 that might lead India’s reform
strategy. Legislative reforms must provide self-identification as the utmost priority,
concede non-binary identities in very legal acts, and bid equal access to civil rights
for all people, regardless of gender identity, to destroy the gender binary and
publicise justice and equality.
Eventually, attaining the aim of a fair and inclusive India would require a shift from
figurative acknowledgment to concrete equality. To achieve this, the legislature, the
judiciary, the executive branch, civil society, and the general public must operate
together to ratify comprehensive laws, put rights-based policies into place, and
adopt a culture that advocates the dignity of every citizen, irrespective of where
they fall on the gender spectrum. India’s constitutional assurance of equality,
justice, liberty, and fraternity for all and sundry can only be comprehended at that
point.
References :
1 Yogyakarta Principles (2006).
2 The Indian Penal Code 1860, s 377.
3 National Legal Services Authority v Union of India (2014) 5 SCC 438.
4 Navtej Singh Johar v Union of India (2018) 10 SCC 1.
5 The Transgender Persons (Protection of Rights) Act 2019.
6 Constitution of India, arts 14, 15, 21.
7 Navtej Singh Johar v Union of India (2018) 10 SCC 1.
8 National Legal Services Authority v Union of India (2014) 5 SCC 438.
9 The Transgender Persons (Protection of Rights) Act 2019.
10 Bakshi PM, The Constitution of India (Universal Law Publishing, 2020).
11 Roy S, Beyond the Binary: A Study of Trans and Non-Binary Rights in India (Cambridge University
Press, 2021).
12 National Legal Services Authority v Union of India (2014) 5 SCC 438.
13 Constitution of India, arts 14, 15, 21.
14 The Transgender Persons (Protection of Rights) Act 2019
15 Navtej Singh Johar v Union of India (2018) 10 SCC 1.
16 The Transgender Persons (Protection of Rights) Act 2019.
17 National Legal Services Authority v Union of India (2014) 5 SCC 438.
 Invisible to Invincible : Narratives of Gender Justice 273

18 Navtej Singh Johar v Union of India (2018) 10 SCC 1.

19 Indian Penal Code 1860, s 377.
20 The Surrogacy (Regulation) Act 2021.
21 The Special Marriage Act 1954.
22 Shafin Jahan v Asokan KM (2018) 16 SCC 368.
23 Anuj Garg v Hotel Association of India (2008) 3 SCC 1.
24 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171.
26 Huma n Rights Watch, Dignity Debased: Forced Medi cal Examinations of Transgender
People i nIndia (2019).
27 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A).
28 Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979,
entered into force 3 September 1981) 1249 UNTS 13.
29 Yogyakarta Princ iples (2006).
30 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A).
31 Gender Identity Act 2017 (Canada) (Bill C-16).
32 Births, Deaths, Marriages, and Relationships Registration Act 2021 (New Zealand).
33 Gender Identity Law 2012 (Argentina).
34 The Transgender Persons (Protection of Rights) Act 2019.
35 National Legal Services Authority v Union of India (2014) 5 SCC 438.
36 United Nations Development Programme India, Hijras/Transgender Women in India: Rights and Social
Protection Policies (2018).
37 Smith, ‘Role of Education in Gender Rights’ (2025) 34(2) Journal of Human Rights Studies 45.
38 S Roy, Beyond the Binary: A Study of Trans and Non-Binary Rights in India (Cambridge University Press
2021).
39 Constitution of India, arts 14, 15, 21.
40 National Legal Services Authority v Union of India (2014) 5 SCC 438.
41 Navtej Singh Johar v Union of India (2018) 10 SCC 1.
42 The Transgender Persons (Protection of Rights) Act 2019.
43 S Roy, Beyond the Binary: A Study of Trans and Non-Binary Rights in India (Cambridge University Press
2021).
44 The Hindu Marriage Act 1955.
45 Yogyakarta Principles (2006).
46 Gender Identity Act 2017 (Canada) (Bill C-16).
47 Gender Identity Law 2012 (Argentina).
48 Births, Deaths, Marriages, and Relationships Registration Act 2021 (New Zealand).


274 Invisible to Invincible : Narratives of Gender Justice

From Barriers to Bridges: Disability Laws in India and

the U.S. Compared
Nibedita Tung
BBA LLB HONS. (2024-2029)
Co-Author- Lakshay Tyagi
BA LLB HONS. (2024-2029)
ABSTRACT
Differently abled individuals, primarily referred to as Persons with Disabilities (PWDs),
form a major portion of society and have encountered a variety of problems, requiring
powerful legal systems and schemes to empower and develop them. The researcher aims to
examine the existing legal systems as well as conduct a comparative analysis based on
provisions and schemes in India and the United States, e.g., coverage, effectiveness, and
implementation. The judicial climate for the PWDs has become very strongly intensified,
particularly since the Rights of Persons with Disabilities Act, 2016 (RPWD Act), which is
in accordance with the United Nations Convention on the Rights of Persons with
Disabilities (UNCRPD), leading to a widened definition of disability, rise in reservation
quotas, social inclusion, and accessibility focus. Expanding to other state schemes such as
the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act, 1999, providing financial and legal assistance
to those suffering from severe disabilities, and Divyangjan Swavalamban Yojana providing
concessional loans to PWDs to become self- employed or set up their own businesses.
Nevertheless, despite these provisions in law, there are still implementation challenges and
gaps in the accessibility of these social benefits.
On the contrary, America boasts a legal framework of rights and laws towards the PwDs,
notably the Americans with Disabilities Act (ADA), 1990, where accommodation and
accessibility for workers, schools, and public buildings are made obligatory. Secondly, the
Individuals with Disabilities Education Act (IDEA) ensures education at zero cost and
promotes equal justice towards disadvantaged students. The US model scores high on
the criterion of strong legal standards, effective public schooling, and the innovative use of
technology for accessibility.
The research work critically examines the rights and freedoms bestowed upon the
differently abled group of individuals, comparing the policies and rights provided in the
two said countries. In this context, the research also integrates a gender and
intersectionality lens, recognizing that women, transgender individuals, and persons
belonging to marginalized socio-economic or ethnic backgrounds face compounded forms
of discrimination within the disability rights framework. Issues such as gender-specific
violence, access to education and employment, healthcare needs, and social stigmatization
are intensified for women and non- binary persons with disabilities. Although the US has
 Invisible to Invincible : Narratives of Gender Justice 275

relatively effective rights protection mechanisms for PWDs, India’s legal system is
undergoing modifications but still contains gaps that produce additional hindrances,
especially for those at the intersections of disability, gender, and social disadvantage. The
research aims to highlight these intersectional challenges and bring to light various
practices and policy reforms necessary for the holistic upliftment of Persons with
Disabilities. By doing so, it seeks to contribute towards advancing global disability rights
and propose comprehensive recommendations for the empowerment of all differently
abled people.
Keywords: PWDs, schemes, legal framework, policies, recommendations, empowerment.
I. INTRODUCTION
Disability is not a condition of health but a socio-political, economic, and cultural
condition. For millions of People with Disabilities (PWDs) across the globe, it is
such a struggle against disablement of a physical kind and living versus mere
survival on sheer survival against an exploitative system to the extent of
unavailability to equal opportunity and at least the minimum right. There is law
because it is a tool of freedom and evidence of the conscience of society for
openness, access, and justice at some level where individuals with disability have
been compelled.
America and India are naturally democracies of a different constitutional ideology
and government but both nations do have fascinating differences and similarities
when it comes to how the two hitherto have dealt with disability rights. India has
improved much with its plans on innovation like the Rights of Persons with
Disabilities Act, 2016 (RPwD Act) but there is lagging in enforcement within India.
Social stigma, infrastructural loopholes, and red tape water down such acts'
revolutionary bite. The United States, for instance, has Disability Rights codified in
symbolic Americans with Disabilities Act (ADA) of 1990 and Individuals with
Disabilities Education Act (IDEA) and decades of legislated disability rights as
civil rights under the principles of reasonable accommodation and non-
discrimination. Even such a system created by law, though, is riddled with
loopholes to application, technology-created access barriers, and deeply ingrained
attitudinal biases.
The model of disability law for India is the transition from the welfare model to the
rights model. RPwD Act 2016, after being enacted in the framework of the United
Nations Convention on the Rights of Persons with Disabilities (UNCRPD)
framework, was a paradigm change from locating disability within the paradigm of
dignity, participation, and equity. It added twenty-one disabilities, the term
"benchmark disability" defined and quotas in work grades and education suggested.
276 Invisible to Invincible : Narratives of Gender Justice

Constitutional laws like the National Trust Act, 1999 and welfare schemes like the
Divyangjan Swavalamban Yojana seek to turn such rights into schemes of fact of
welfare. Re-making law falls short of what a re- making of reality can achieve.
Enactment is also uneven, mainly rural India, and PWDs are losers once more
because of poverty, illiteracy, and stigmatization. The sole exception being that
America's model of disability was a consequence of an activist civil rights
movement, and the ADA is revolutionary law.
It protects employment, public accommodations, transportation, and telecom. IDEA
also protects education rights by Individualized Education Programs (IEPs) and
Free Appropriate Public Education (FAPE) to the person with disability. They are
enforced by a robust enforcement agency such as the Equal Employment
Opportunity Commission (EEOC) and Department of Justice. However, flaws
persist—denial of justice is reserved only for disability with minority, access by
technology is still an issue, and the nation is not even making an effort to ratify the
UNCRPD. Research work available is comparative study of US and Indian policy
and legal environment for integration and PWDs rights.
A crucial dimension that must be emphasized is gender and intersectionality within
the disability rights framework. Women and girls with disabilities face a double
burden of discrimination, experiencing both gender-based and disability-based
biases that limit access to education, healthcare, employment, and political
participation. LGBTQ+ persons with disabilities encounter similar layers of
marginalization. In India, while the RPwD Act mentions gender, there remains a
lack of gender-specific provisions and safeguards in practical implementation. In
the United States, while anti-discrimination protections theoretically apply,
systemic issues like racial inequities and gender violence against disabled
individuals persist. Recognizing these intersecting vulnerabilities is essential to
ensure that legal reforms are not gender-blind and can truly achieve inclusivity for
all PWDs, regardless of their intersecting identities.
To refer to the law, the milestone and achievement cases, the study compares the
power and vulnerability of the two systems. It tries to illustrate the manner in which
India can adapt America's enforcement culture and institutional integrity without
being context- insensitive for the sake of justification that requires efforts to be
localized in law. Besides, it discusses how new India's desire—all in the sense of
diversity of socio-economic realities and bottom-up base creation inclusive—can
take lessons from the global world of disability law. Finally, this paper also hopes
that linking legislative intent to impact is not a question of legal reform but of
attitudes shift, technology transition, and celebrity stakeholder campaign. Through
 Invisible to Invincible : Narratives of Gender Justice 277

the fusion of two legal cultures, studies here are focused on creating an accessible,
available, and equitable world for people with disabilities.
II. LEGAL FRAMEWORKS FOR DISABILITY RIGHTS IN INDIA
A- Background on disability rights and legal frameworks
Ahead of time, disability was largely seen through a medical or charity lens,
creating a sense of vulnerability and marginality among disabled. Support primarily
came from religious institutions, families and community-based aid and contrarily
state interventions were minimal and their absence of legal recognition of the rights
of the persons with disabilities (PwDs) resulted in their marginalization from
mainstream society. The first major step was the enactment of Rehabilitation
Council of India (RCI)
Act in 19921, main focus being on regulating and monitoring the training of
rehabilitation professionals and personnels working with PwDs.
Followed by Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 19952, being India’s first comprehensive legislation,
recognizing the rights and entitlements of person with disabilities (PwDs). This act
was enforced as a response to India’s participation in UNGA’s proclamation on the
full participation and equality of people with disabilities in the Asian and Pacific
Region.3 It recognized 7 categories of disabilities alongside providing equal
opportunities for children with disabilities to get free education up to the age of 18
in schools. It provided 3% reservation in government jobs, directed the employers
to make reasonable accommodations in recruitment and working conditions and
also mandated the creation of special employment exchanges for PwDs. The issue
with this act was that the same was focused in welfare and charity, lacking
enforcement mechanisms and penalties for non- compliance, thereby undermining
the legal aspects of right and empowerment of the concerned people.
In 2007, India ratified the United Nations Convention on the Rights of Persons with
Disabilities (UNCRPD)4, a commitment to transform legal reforms at domestic
level. Replacing the 1995 Act, Rights of Persons with Disabilities Act, 2016
(RPwD Act)5 was enacted, having a reforming approach. It expanded the list of
recognized disabilities provided under the Act of 1995, from 7 to 21 and
highlighted the principle of equality, dignity and non-discrimination by mandating
the provisions of accessibility, free education and reservation.
Supporting the RPwD Act, National Trust Act, 1999 and Mental Healthcare Act,
2017 helped in enforcing the rights for the concerned people. Various government
schemes such as Sugamya Bharat Abhiyan, and Unique Disability ID (UDID),
278 Invisible to Invincible : Narratives of Gender Justice

SIPDA6 etc. assists to the benefits provided. Today’s India reflects a significant
shift towards positioning person with disabilities (PwDs) as rights holders
subjected to a virtuous life.
B- Rights of Persons with Disabilities Act, 2016 (RPwD Act)
In 2006, United Nations Convention on the Rights of Persons with Disabilities
(UNCRPD)7 became the first comprehensive human rights treaty of the 21st century
to explicitly protect the rights and dignity of PwDs. Making a shift from charity
issue to a social model of disability, the convention guarantees rights and freedoms
to all concerned people, setting a global standard to promote respect and dignity. It
obligates signatory countries to ratify the convention and reform their domestic
laws, leading to
the Rights of Persons with Disabilities Act, 2016 (RPwD Act), being enacted in
India. Herein, the expanded definition of disability includes various conditions such
as Autism Spectrum Disorder, Thalassemia, Dwarfism, Muscular Dystrophy,
Specific Learning Disabilities. The inclusion of Acid Attack Victims under this Act
serves as an exemplar of the effectivity of the same. The Act also introduces the
concept of “benchmark disability,” defined as a disability of 40% or more, to
determine eligibility for certain benefits and reservations.8
The Act guarantees a range of diverse rights, regulations and entitlements for PwDs
like that of right to equality, against discrimination and access to justice. The Act
emphasizes inclusive education, stipulating that children with benchmark
disabilities between the ages of 6 and 18 have the right to free education in
neighborhood schools. Furthermore, it increases reservations for PwDs in
government jobs from 3% to 4% and in higher education institutions from 3% to
5%, aiming to enhance their participation in public life. 9
Statutory bodies like Centre and State Advisory boards with Chief Commissioners
were established to ensure effectively monitoring and implementation of the Act,
addressing grievances and promoting awareness. Penalties like fines and
imprisonment for offences against PwDs are also included under this act.
Chapter VII of the Act which includes Section 40-46, primarily addresses the
implementation of accessibility standards. Focusing on creating accessible
environments, including buildings, transportation systems, communication
technologies, educational institutions with inclusive pedagogy and learning
materials, employment. The Act sets timelines for implementing accessibility
standards to facilitate the inclusion of PwDs in the social structure.10
 Invisible to Invincible : Narratives of Gender Justice 279

This Act also highlights the concept of legal capacity and guardianship under
Section 13 and Section 14 respectively. Section 13 (b) affirms that “The appropriate
Government shall ensure that the persons with disabilities enjoy legal capacity on
an equal basis with others in all aspects of life and have the right to equal
recognition everywhere as any other person before the law.”11
Section 14 talks about ‘limited guardianship’ which includes appointing a guardian
for assistance in specific decision making for a limited period of time along with
consultation with the concerned person.
C- National Trust for the Welfare of Persons with Autism, Cerebral Palsy,
Mental Retardation and Multiple Disabilities Act, 1999
The National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act, 1999 (commonly referred to as the
National Trust Act, 1999) stands as a pivotal piece of legislation in India's
journey toward inclusive welfare for persons with disabilities (PwDs).12 This Act
emphasizes the empowerment, support and recognition of individuals with specific
development disabilities. The inception of the National Trust Act was influenced by
global movements advocating for the rights of persons with disabilities, notably the
Asia- Pacific Decade of Disabled Persons (1993–2002).13 The Act’s primary
objectives include mechanism for appointing legal guardians for PwDs for
protecting their rights, measures to promote independent living of PwDs and to
create a national body to implement and oversee the measures.
National Trust was constituted under Section 3 of the Act as a statutory body under
the Ministry of Social Justice and Empowerment,14 responsible for the promoting
the welfare of PwDs, policy formulation, resource allocation and monitoring and
evaluation. Apart from this, the Act contributes to the provisions of legal
guardianship by establishing Local Level Committees (LLCs), which are tasked
with appointing and monitoring guardianship as well as provide support to the
families and this decentralization ensures community level decision making, taking
into account all possible circumstances and needs.
Various schemes have been launched under the National Trust Act, 1999 aimed
towards the betterment of the quality of life of the concerned people.
• Gharaunda: Scheme for providing housing for promoting independent living of
PwDs.
• Niramaya: Health insurance scheme for affordable coverage of medical
expenses.
280 Invisible to Invincible : Narratives of Gender Justice

• Sahyogi: A caregiving training program aimed towards developing a skilled

workforce for the assistance of PwDs.
D- Divyangjan Swavalamban Yojana (DSY)
This initiative by the Government of India focuses on providing financial assistance
and self- employment ventures for empowerment of PwDs. This scheme is
implemented through the National Handicapped Finance and Development
Corporation (NHFDC) under the Department of Empowerment of Persons with
Disabilities (DEPwD)15
The primary objective of DSY is to provide concessional loans to PwDs for
initiating or expanding self-employment ventures across various sectors, including
agriculture, manufacturing, service, and trading. The scheme also encompasses
financial assistance for education, skill development, and procurement of assistive
devices, thereby addressing multiple facets of empowerment for PwDs16 alongside
targeting individuals who are both in need and capable of utilizing the financial
assistance effectively.
Eligible beneficiaries can avail a loan up to Rs 50 lakh and a rebate of 1% in
interest is provided to women with disabilities and to PwDs other than those with
orthopedic impairments for self-employment loans up to Rs 50,000. The
mechanism operates through a network of agencies, responsible for processing
applications, sanctioning loans, and ensuring proper utilization of funds.
It incorporates a wide range of employment activities like setting small businesses,
agricultural units, industrial units and also offers complementary initiatives like
educational loans, microfinance schemes and skill development programs creating
a comprehensive support for PwDs.
E- Challenges in Implementation
The implementation of theses progressive legislative frameworks has encountered
significant challenges, which can be broadly categorized into accessibility issues,
social stigma and discrimination, and bureaucratic hurdles. Each of these have
impacted the realization of the rights and entitlements of persons with disabilities
(PwDs).
1) ACCESSIBILITY ISSUES
Regardless of legislative mandates and initiatives like Accessible India Campaign
(AIC), physical accessibility remains a significant hurdle for persons with
disabilities (PwDs). The Accessible India Campaign, launched to address these
issues, has seen limited success due to inadequate enforcement and monitoring
 Invisible to Invincible : Narratives of Gender Justice 281

mechanisms17. Only 3% of public buildings are accessible to persons with

disabilities (PwDs), according to data derived from the Census of India and other
national audits.18 As of now 48% of government buildings and 8% of public buses
have been made accessible according to the report provided by the provided by the
data of ministry of Social Justice and Empowerment Ministry on Accessible India
campaign in Rajya Sabha. 19
Especially the educational institutions requiring attention as less than 1% of Indian
educational institutions are fully accessible, and only 40% of schools have ramps,
while just 17% have accessible toilets. The same undermines the objective of both
RPwD Act and the Right to Education Act. Healthcare sector reflects similar gaps.
Even the Primary Health Centers (PHCs) does not have accessible toilets,
examination tables for person with disabilities, thereby, compromising basic health
services.20
In rural areas, the situation is more dire.21 People face exclusion from basic
facilities like that of transportation and healthcare, highlighting the intersection of
disability with social stigma. Alongside, women with disabilities (WWDs) face
compounded challenges in accessibility. For instance, only 27% of schools in India
have toilets that are friendly to children with special needs, disproportionately
affecting girls with disabilities who may drop out due to inadequate sanitation
facilities22. Moreover, assistive devices are often designed without considering the
specific needs of WWDs, limiting their mobility and independence.23
2) SOCIAL STIGMA
Social attitudes towards PwDs are rooted in misconceptions and prejudice. They
are often subjected to discrimination in education, healthcare and employment. An
intersectional study by the Centre for Law and Policy Research (CLPR) highlights
that 67% of Dalit persons with disabilities face difficulties in accessing school
toilets, 52% are unemployed, and over 70% experience challenges accessing
government offices and public transport.24
Women with disabilities often experience dual discrimination based on both gender
and disability.25 They are more likely to face violence, including sexual abuse, and
are often excluded from education and employment opportunities. Cultural norms
and safety concerns further restrict their mobility and access to public spaces.26
Mental disabilities are strongly stigmatized. People with psychological disabilities
are subjected to social exclusion, assaults and denial of basic rights. The fluctuating
nature of mental health conditions and societal myths contribute to their
marginalization.27
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3) BUREAUCRATIC HURDLES
Apart from physical and social barrier, bureaucratic insufficiencies obstruct the
implementation of disability laws and schemes. Lack of trained personnels for
guardianship, judicial and administrative authorities, hamper the implementation of
schemes.
Absence of reliable data and complex paperwork also make it difficult to meet the
needs and availing benefits. Rural and poor PwDs are deprived of their rights
because of these bureaucratic systems, illiteracy and lack of sufficient means.
Furthermore, there is a lack of coordination among various government
departments, resulting in fragmented service delivery. The absence of a robust
grievance redressal mechanism exacerbates the issue, leaving many PwDs without
recourse when their rights are violated.28
Women with disabilities often face additional bureaucratic challenges, such as
difficulties in obtaining disability certificates due to mobility constraints and lack
of awareness. They may also encounter gender biases during assessments and in
interactions with officials, further hindering their access to entitlements and
services.29
III. LEGAL FRAMEWORKS FOR DISABILITY RIGHTS IN UNITED
STATES
A. Americans with Disabilities Act (ADA), 1990
1- Overview and Legislative Evolution:
The ADA of 1990, as amended in 2008, does not allow people with disabilities to
be discriminated against in everyday life.30 Comprehensively drawing from the
Civil Rights Act of 1964, it promises equal access of people with disabilities to
employment, government services, transportation, and public accommodations. The
ADA Amendments Act of 2008 (ADAAA) expanded the definition of disability to
counteract limiting Supreme Court rulings (Sutton v. United Airlines, 199931;
Toyota v. Williams, 2002 32) so that Congress's original intent for broad protection
could be secured.33
2- Accommodations at Work and Public Accessibility:
Employment (Title I): Employers must make "reasonable accommodations" except
where making them would cause "undue hardship. 58% of accommodations cost
nothing, and the median cost of those that do involve spending is a mere $500. 34
Public Access (Titles II & III): Titles II and III require public building sand private
businesses that are open to the public to offer architectural and communication
 Invisible to Invincible : Narratives of Gender Justice 283

access. A 2021 DOJ settlement with Rite Aid35 underscored the need for effective
communication with deaf or hard-of-hearing customers.
B. Individuals with Disabilities Education Act (IDEA)
1- Historical Context and Core Goals:
IDEA was originally enacted in 1975 as the Education for All Handicapped
Children Act, opening the door to education for over a million children who were
previously excluded. IDEA was reauthorised and renamed in 1990 and has been
reauthorized several times since.36
IDEA ensures children with disabilities a Free Appropriate Public Education
(FAPE) in the Least Restrictive Environment (LRE) and an Individualised
Education Program (IEP).
2- Key Provisions:
FAPE ensures a tailored education at no cost. In Board of Education v. Rowley
(1982), the Supreme Court established that schools are not required to maximise
the potential of a child but must provide "some educational benefit."37
LRE demands inclusion in peers without disability to the maximum degree. As per
a 2016 meta-analysis, inclusion classroom students performed socially and
academically better38. IEP: A legally binding document written by a team of
educators, specialists, and the child's family. It records educational objectives,
services, accommodations, and methods for monitoring progress.
C. Effectiveness of U.S. Disability Laws
1- Legal and Policy Achievements
• Physical Accessibility: The ADA gave rise to widespread structural
adaptations, including curb ramps and accessible restrooms.
• Protection for Employment: 21.3% of those with disabilities worked in
2022, as opposed to 19.1% in 2021.39
• Capacity Access for Education: During the 2021–2022 school year, 7.3
million students enrolled in special education under IDEA40.
2- Technological Advances Assistive technology, as mandated by both ADA
and IDEA, has transformed accessibility:
• JAWS and NVDA screen readers for the blind
• Speech-to-text computer programs for cognitive/physical impairment
284 Invisible to Invincible : Narratives of Gender Justice

• Augmentative and Alternative Communication (AAC) devices for non-

verbal individuals
They are typically incorporated into IEPs or work accommodations and see
more usage especially since post-COVID.
3- Ongoing Challenges
• Enforcement Discrepancies: The vast majority of online services remain
ADA non-compliant. A 2021 Centre for American Progress report indicated
public websites generally only pass basic accessibility audits.41The
improvements provided may not fully address the unique needs of women
with disabilities, who often face additional barriers due to gendered
expectations and caregiving responsibilities.
• IDEA Quality Differences: IDEA delivery varies across states. The
Andrew F.
v. Douglas County (2017) case law decision declared that IEPs must create
"appropriately ambitious"42 objectives, increasing expectations on FAPE.
During the 2021-2022 school year, 7.3 million students were enrolled in special
education under IDEA. However, Black girls with disabilities face
disproportionate rates of suspension and expulsion, often due to behavioural
misunderstandings rooted in racial and gender biases.43
• Tasks Inequalities: People with disability are twice as likely to have an
unemployment rate44 than non-disabled individuals (BLS, 2023), with
persistent pay differences and inaccessible work practices. Disabled women,
particularly those from racial and ethnic minorities, experience compounded
disadvantages in employment, including lower wages and limited career
advancement opportunities.45
D. International Comparisons
The U.S., even though progressive, has not signed up to the UN Convention on
the Rights of Persons with Disabilities (CRPD)46. Canada and Sweden both
embarked on national strategies for accessibility as well as centralised models of
services, while the U.S. is greatly decentralised in terms of enforcement and
litigation.
E. Conclusion and Future Directions
The ADA and IDEA transformed the landscape of disability rights in the U.S. by
imbuing laws with visions of inclusion, accessibility, and equality. However, the
full realisation is contingent upon:
 Invisible to Invincible : Narratives of Gender Justice 285

• Tighter enforcement
• Greater digital accessibility
• Adequate funding for special education
• Employer training on accommodations
• Ratification of international human rights frameworks
• Integration of gender and intersectionality considerations
As the world evolves, so too must our commitment to the full inclusion of
individuals with disabilities—not for reasons of legality, but as a matter of moral
obligation.
IV. COMPARATIVE ANALYSIS OF INDIA AND U.S. DISABILITY
LAWS
A. Coverage and Inclusivity
1. Scope of Disabilities Recognised India:
India's principal legislation covering the rights of persons with disabilities (PWDs)
is the Rights of Persons with Disabilities Act, 2016 (RPWD Act), which replaced
the earlier Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995. The 2016 Act was enacted as part of India's accession
to the United Nations Convention on the Rights of Persons with Disabilities
(UNCRPD), which it signed in 2007.
The RPWD Act recognises 21 categories of disabilities, substantially more than the
7 disabilities recognised under the previous law. These include blindness, low
vision, leprosy-cured persons, hearing impairment, locomotor disability, mental
illness, autism spectrum disorder, cerebral palsy, muscular dystrophy, and multiple
disabilities.47
They also have "benchmark disabilities," or disabilities whose minimum severity
would be 40%, as established by a medical professional.
While the RPWD Act recognises a wide array of disabilities, it is critical to
understand how gender and intersectional identities—such as caste, class, and
socio-economic status—affect access to legal protections. Women with disabilities,
especially those from marginalized communities like Dalits or indigenous
populations, often face dual or compounded discrimination, limiting their ability to
access healthcare, education, and employment opportunities. This intersectionality
is largely unaddressed within the broader legislative framework and requires more
inclusive policy adaptations.
286 Invisible to Invincible : Narratives of Gender Justice

United States:
The United States of America has an established and effective legal system with the
Americans with Disabilities Act (ADA), 1990, as amended by the ADA
Amendments Act (ADAAA), 2008.
The ADA provides a broad definition of disability as a physical or mental
impairment that substantially affects one or more major life activities, a record of
such impairment, or perception of such an impairment.48
The ADA does not have a rigid list of conditions, allowing flexibility and wider
protection through judicial interpretation and progressive medical advances.
The ADA provides protections across many types of disabilities, but there are
growing calls to address how disability intersects with race, gender, and sexual
orientation. For instance, women of color with disabilities face significant barriers
in both healthcare and employment due to compounded racial and gender-based
discrimination. Moreover, LGBTQ individuals with disabilities often face unique
challenges in both accessing healthcare and legal protection, which necessitates a
more intersectional approach to disability rights.
2. Social and Economic Benefits for PWDs India:
The RPWD Act provides for 4% reservation in government service and 5% in
institutions of higher learning for PWDs. Provisions include financial help, free
schooling till 18 years in government schools and programmes such as Deendayal
Disabled Rehabilitation Scheme (DDRS) and ADIP Scheme for the aid of
appliances.49
Income tax rebates, traveling allowance concessions, and pension programs are also
available under various state schemes for PWDs. Federal programs under the
administration of the Social Security Administration provide protection through
Social Security Disability Insurance (SSDI) and Supplemental Security Income
(SSI).50
These benefits are often inaccessible to women with disabilities, especially in rural
areas, where patriarchal norms limit women's mobility and participation in public
life. For example, women from lower socio-economic classes or those in rural
settings may face added challenges in accessing these benefits due to lack of
awareness, logistical hurdles, or cultural barriers. The compounded impact of
disability and gender requires targeted policy measures to ensure accessibility and
support.
 Invisible to Invincible : Narratives of Gender Justice 287

United States:
The ADA assures that employment, education, and public services shall be free of
discrimination. Medical needs are covered by Medicaid and Medicare.
Tax relief is through the deduction of work-related accommodations and certain
impairment-related expenses.51
In the U.S., access to benefits like Medicaid and Medicare may be more difficult
for women of color with disabilities, particularly those in lower income brackets.
Structural racism and gender discrimination can limit their ability to benefit from
these services fully. Additionally, individuals with disabilities who also belong to
the LGBTQ+ community face significant barriers in accessing healthcare, housing,
and employment, as healthcare providers and employers may not be equipped or
culturally competent to address both the disability and LGBTQ+ identity of these
individuals.
B. Implementation and Enforcement
1- Government and Institutional Support India:
The Chief Commissioner for Persons with Disabilities (CCPD) and State
Commissioners oversee the implementation of the RPWD Act.
There is usually a lack of coordination and inadequate staffing, resulting in poor
enforcement.52
The National Institutes under the Department of Empowerment of Persons with
Disabilities also offer rehabilitation, skill development, and education. The lack of
effective enforcement disproportionately affects women and marginalized
communities, who may already face systemic discrimination. Rural women
with disabilities, in particular, may struggle to access institutional support
due to geographic isolation, lower literacy rates, and patriarchal structures that
limit their autonomy. There needs to be a concerted effort to ensure that the
institutions responsible for enforcement are equipped to address these gendered and
intersectional issues.
United States:
The Equal Employment Opportunity Commission (EEOC) administers ADA
provisions in employment. The Department of Justice (DOJ) is responsible for
enforcing ADA compliance in public accommodations, transportation, and
government services. The U.S. has a strong grievance redressal mechanism and
specialised courts are authorised to adjudicate ADA-related cases.53 While the
288 Invisible to Invincible : Narratives of Gender Justice

U.S. has a robust enforcement mechanism, gendered and racial biases persist
within the system. Black women, Indigenous women, and women of color
with disabilities face discrimination not only based on disability but also due
to racial and gender prejudices. These biases often affect their ability to report
violations and receive adequate recourse through legal systems.
2- Accessibility in Education, Employment, and Public Spaces India:
The RPWD Act requires universal access to all public buildings, transport systems,
and services. But reality is a slow implementation.
Initiatives such as the Accessible India Campaign (Sugamya Bharat Abhiyan) have
the goal of increasing accessibility of infrastructure but are confronted with
resource and implementation issues. 54
Universities and schools do not usually have proper facilities, and employers
hesitate to hire due to stigma and lack of awareness.
Women with disabilities, particularly those from lower socio-economic
backgrounds, often face heightened discrimination in educational and employment
settings. Gender biases around the role of women in society contribute to fewer
educational and job opportunities for women with disabilities, even when laws
provide for access. Additionally, caste-based discrimination within the Indian
context often exacerbates the barriers faced by Dalit women with disabilities,
hindering their access to services and protections under the RPWD Act.
United States:
The ADA requires strict building accessibility standards (ADA Standards for
Accessible Design), transportation, and digital information. Reasonable
accommodations such as auxiliary aids and services must be provided by
educational institutions. Reasonable accommodations must be made by the
workplace unless it results in undue hardship, which results in a more diverse
workforce55 [29 C.F.R. § 1630].
Despite the advancements under the ADA, Black and Latina women with
disabilities often face challenges in educational and workplace settings that their
white counterparts do not. They are more likely to face employment discrimination,
lower wages, and a lack of access to necessary accommodations. Women with
disabilities in minority communities also often face cultural barriers that prevent
them from accessing educational resources or advocating for their rights
effectively.
 Invisible to Invincible : Narratives of Gender Justice 289

C. Challenges and Gaps

1. India's Ongoing Legal Modifications vs. U.S.'s Established Framework India:
India's disability rights regime is fairly recent and developing. There are constant
legal amendments being introduced to accommodate UNCRPD obligations.
Implementation is frequently piecemeal, and there is limited awareness regarding
rights among PWDs.
The federal setup results in varied policy implementation among states.56 Disabled
women, especially those in rural areas or belonging to lower caste communities,
face challenges in accessing the rights outlined in the RPWD Act. Intersectional
barriers such as societal norms and systemic discrimination contribute to their
marginalization, making it difficult for them to navigate the bureaucratic hurdles
associated with accessing services and protections.
United States:
The ADA has been effective for more than three decades and is regarded as an
exemplary law throughout the world. Courts have played their part in expanding
the meaning of "disability," increasing the scope of the law.
Despite this, loopholes in the law and resistance from employers continue,
especially where mental illness or non-apparent disabilities are involved.57 In
the U.S., while the ADA has been groundbreaking, the experiences of disabled
individuals of color, particularly Black and Indigenous women, are not fully
addressed. The law's broad application often fails to consider how race, gender,
and socio-economic status intersect with disability, leading to unequal access to
resources and accommodations.
2. Problems in Policy Implementation and Social Acceptance India:
Social stigma continues to be a major hurdle despite legal safeguards. Insufficient
collection of data, trained personnel, and physical facilities restrict the pragmatic
effect of legislation. Intersecting forms of discrimination, particularly women,
rural, and economically weaker segments, are often faced by PWDs.58
Gendered social norms often position women with disabilities as less valuable,
leading to neglect in education, healthcare, and employment. Additionally, rural
and economically marginalized women face compounded barriers due to poverty,
illiteracy, and cultural biases, which reduce their ability to access legal protections
and services designed to support them.
290 Invisible to Invincible : Narratives of Gender Justice

United States:
Despite improved infrastructure and services, attitudinal barriers continue to impact
full participation of PWDs. Enforcement may be slow, particularly for systemic
breaches in education and housing. Disparities continue among racial and ethnic
minorities with disabilities.59
In the U.S., individuals with disabilities from marginalized racial and ethnic
groups, particularly women, continue to experience discrimination that is
exacerbated by both their disability and their racial or ethnic identity. The
intersection of these identities often leads to systemic inequalities in healthcare,
education, and employment, and these challenges are often compounded by
insufficient legal support or advocacy.
V. RECOMMENDATIONS FOR POLICY AND LEGAL REFORMS
While India's Rights of Persons with Disabilities Act, 2016 provides a modern legal
structure, considerable reform must be made towards improved implementation,
accessibility, institutional capacity, and technology assimilation. Drawing lessons
from the U.S. legal system and customising it to the specific socio-economic setup
in India is crucial in light of providing level rights and opportunities to Persons
with Disabilities (PWDs).
A. Consolidation of Implementation in India – Strengthened Enforcement
Mechanisms
1- Establishing Dedicated Disability Courts or Tribunals
India lacks expert judicial forums to speedily settle disputes of disabilities.
Establishing speedy disability tribunals, as recommended by the National Centre
for Promotion of Employment for Disabled People (NCPEDP), can significantly
enhance mechanisms of redressing grievances.60 On the other hand, the American
system has administrative courts such as the Equal Employment Opportunity
Commission (EEOC) and ADA claims enforceable in the courts, where timely
interventions are available.61 The absence of dedicated judicial bodies in India was
evident in Disabled Rights Group v Union of India62, where the Supreme Court had
to direct timely rule framing and implementation of reservations under the RPWD
Act. This highlights the need for structured forums for disability-related litigation.
2- Empowering State Disability Commissioners
Most Indian State Disability Commissioners are not autonomous, do not have staff,
and are not funded. A more robust mandate in terms of independent funding and
 Invisible to Invincible : Narratives of Gender Justice 291

investigative powers would increase scrutiny, as emphasised by Human Rights

Watch reports.63
Special attention must be given to appointing commissioners who represent
women, transgender persons, and other marginalised gender identities among
PWDs to ensure intersectional perspectives in enforcement.
3- Mandatory Annual Access Audits
Implementing third-party access audits for government and private institutions
would ensure compliance with Section 44 of the RPWD Act, which mandates
access audits. The same must be published in order to improve transparency and
accountability.
4- Strengthening Local Governance
Involving Panchayati Raj institutions and urban local bodies in monitoring
disability rights would enable decentralised enforcement, which is crucial in India's
diverse and largely rural setting. Localised training schemes for elected members
and frontline staff can be initiated through the Ministry of Panchayati Raj.
Training must explicitly address intersectional vulnerabilities, for example, the
compounded discrimination faced by rural disabled women and Dalit disabled
persons.
B. Expanding Accessibility and Support Infrastructures
1- Restating and Regulating Accessibility Specifications
The India Harmonised Guidelines and Standards for Universal Accessibility of
2021 should be mandated compulsorily for every government infrastructure project.
The same needs to be brought into force also in the digital space to inspect
compliance with the WCAG 2.1 guidelines.64
2- Strengthening Inclusive Education
The Right of Children to Free and Compulsory Education (RTE) Act, 2009, needs
to be harmonised with the RPWD Act to ensure inclusive education from early
school levels. Special educators trained, Individualised Education Programs (IEPs),
and curricular adjustments— like the U.S. Individuals with Disabilities Education
Act (IDEA)—need to be mainstreamed.65 India can draw inspiration from the U.S.
Supreme Court’s landmark judgment in Endrew F. v Douglas County School
District66, which raised the national standard for Individualized Education
Programs (IEPs), affirming that education must enable “appropriate progress”
based on the child’s circumstances. Special focus must be laid on girls with
292 Invisible to Invincible : Narratives of Gender Justice

disabilities, who face higher drop-out rates due to social and infrastructural barriers,
as highlighted in UNESCO’s 2019 State of the Education Report for India67.
3- Employment Opportunities Strengthening
• Facilitate private sector PWD employment through provision of tax deductions,
such as is the case with the U.S. Work Opportunity Tax Credit (WOTC).
• Expand skill building under the Skill India Mission, including specialised
training programs for the disabled population.68
Programs must acknowledge gender gaps—disabled women face significantly
lower employment rates, as reflected in UNESCAP data. Tailored skilling modules
should be designed specifically for disabled women and transgender persons.
4- Strong Social Security Programs A countrywide disability pension plan for all
PWDs below the poverty line, with direct benefit transfer and Aadhaar-linked
validation, would reduce leakages. Odisha and Tamil Nadu have these pensions
to provide, but there must be a national program.
The design must ensure that pensions are equitably accessible across genders,
recognising that disabled women often have less access to social protection
mechanisms due to gendered economic dependencies.
C. Learning from the U.S. Model while Addressing India's Unique Socio-
Economic Challenges
1- Localised and Decentralised Approaches
As a contrast to the centralised ADA model in the United States, India needs
community-based rehabilitation (CBR) programs, especially in tribal and rural
areas where state capacity is weak. WHO favours CBR as a bottom-up approach
specially tailored for low-resource settings.69 The U.S. Supreme Court in Olmstead
v L.C70. held that unjustified institutionalization of persons with disabilities violates
the ADA and mandated community-based care when appropriate. India’s rural
settings may benefit from a similar CBR-driven policy structure.
2- Public-Private Partnerships (PPPs)
PPP models can be used by the government for:
• Setting up rehabilitation centres.
• Running assistive technology labs.
• Telemedicine to PWDs in rural areas.
 Invisible to Invincible : Narratives of Gender Justice 293

Successful PPP models like Arvind Eye Care System demonstrates capable
delivery of services in health domains of interest to PWDs.
Private initiatives should also specifically include women and LGBTQ+
persons with disabilities in design and implementation, ensuring no exclusionary
biases.
3- Awareness and Anti-Stigma Campaigns One of the largest obstacles remains
the social stigma of disability. Media campaigns modelled after the U.S. "Think
Beyond the Label" can normalise disability as the new normal in schools,
workplaces, and communities. In India, efforts like #AccessibilityMatters need
more government support and mainstream media coverage. In Jeeja Ghosh v Union
of India71, the Supreme Court condemned the insensitivity of airline staff towards a
passenger with cerebral palsy and directed better sensitization training across
services, paving the way for institutional reforms in public-facing sectors.
Special intersectional media efforts are needed that highlight narratives of women,
transgender persons, Dalits, and Adivasis with disabilities to foster inclusive
representation.
4- Cultural and Linguistic Adaptation All programs for the disabled must be
linguistically accessible—presented in local languages and accessible modes
(Braille, ISL, audio). This is particularly relevant given the linguistic diversity of
India, unlike the monolingual setup of the U.S.
D. Technology Innovations and Advancements towards Improved Inclusivity
1- Mandates for Digital Accessibility
Make it mandatory for government and private websites to follow WCAG 2.1
guidelines. Indian government websites are accessible to just 5% based on 2023
audits conducted by BarrierBreak Technologies. U.S. Section 508 of the
Rehabilitation Act provides a good model for digital accessibility.72
Gender-responsive digital content must be ensured to make online platforms
accessible and sensitive to different identity needs.
2- Encouraging Development of Assistive Tech
Start an Assistive Tech Innovation Mission under Atal Innovation Mission to
provide funding for low-cost, India-specific assistive devices. Have disability-
friendly apps on government platforms such as DigiLocker and Umang. A
compelling comparison can be made with Tennessee v Lane73, where denial of
court access to a wheelchair user due to lack of ramps was held to violate the ADA.
294 Invisible to Invincible : Narratives of Gender Justice

This case reinforces the affirmative obligation to ensure digital and physical
accessibility in all public services.
3- Personalisation with AI Invest in AI software for education and health that
personalises content for cognitive or speech-related disabilities. Such tools are
already being tested by U.S. companies—India can make them local with open-
source platforms such as Bhashini AI under Digital India.
AI tools must be developed with intersectional data sets to avoid biases and ensure
inclusivity across gender, caste, and regional lines.
4- Public Transport Technology with Accessibility Invent real-time transport
applications that give wheelchair availability, tactile route information, and audio
announcements like New York's MTA accessibility system.
CONCLUSION
The comparative study of the disability legislation of India and the United States
reveals a continuum of the weaknesses and strengths, and possible lessons to be
learnt across borders. India’s RPwD Act, 2016 is a progressive intention according
to international standards, but its implementation is hindered by the lack of
institutional coordination, awareness, trained officers, and infrastructural issues. As
contrasted with that, the US system, as led by ADA and IDEA, marks the final
outcome of nearly five decades of legislative development achieved by court
activism and grass-root activity to work for systemic breakthroughs in the field of
PWDs’ accessibility and rights safeguarding.
But there is a flaw in every system. The United States still struggles with the
unevenness of enforcement, lack of computer access, and unequal cross-state
delivery of services. India has yet to deal with antiquated implementation and
stigma, especially in rural and socio-economically disadvantaged sections.
Surprising most is the eye-opener that it is not laws alone that solve the issue but
good institutions, civic engagement, decentralization of delivery, and
technologically enabled innovation are also needed.
Further complicating the landscape are the dimensions of gender and
intersectionality. Research highlights that women and girls with disabilities face
dual discrimination, both on account of gender and disability. In India, according to
a UN Women report (2021), women with disabilities experience greater barriers in
education, employment, and access to healthcare than men with disabilities.
Similarly, the United States’ disability rights movement has increasingly
recognized through frameworks like the Americans with Disabilities Act
Amendments Act (ADAAA) and advocacy from organizations such as the National
 Invisible to Invincible : Narratives of Gender Justice 295

Council on Independent Living (NCIL) that intersectional identities—such as race,

gender, and economic status—compound the marginalization of persons with
disabilities. Discrimination is often layered, for instance, among indigenous
communities, racial minorities, LGBTQIA+ persons, and low-income groups who
have disabilities. Thus, any reform must take into account these overlapping
vulnerabilities.
India stands to gain a lot from the application of some parts of the American
model— largely in special education (IEPs), service delivery at the local level,
assistive technology, and employment incentives—and customizing them to its
federal and multicultural environment. Actions like the establishment of disability
tribunals, regular access audit, community-based rehabilitation schemes, and
public-private partnerships are among the next crucial steps.
Third, the research calls for a human rights-based, inclusive, and localized model of
disability rights. Empowerment of the PWDs through the intersection of legal
protection, social welfare, and awareness-raising is not only mandated by the
Constitution but is a moral imperative of an inclusive society. This empowerment
must consciously address the needs of marginalized subgroups, especially women
and gender minorities with disabilities, to ensure that inclusion is substantive and
not merely symbolic. Compliance in law as an end is not the target, but the creation
of a culture of dignity, possibility, and inclusive participation for all individuals
without regard to capability.
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
300 Invisible to Invincible : Narratives of Gender Justice

Child Swapping at Birth: Legal Ramifications and

Parental Entitlements in Family Law
Rupanjana Sardar
Vishesh Guha Majumder
Abstract
Involuntarily or willfully switching of children at birth represents quite an uncommon but
profoundly haunting affair, with far-reaching legal, ethical, and psychological
ramifications. This paper considers these legal ramifications and the question of parental
rights regarding involuntary or voluntary child swapping in family law contexts. This
quandary arises when either due to negligent acts of the hospital or intentional actions
undertaken by someone within the context of parental alienation through their own
purposes/actions, a child is growing with non-biological parents, giving rise to custody
battles and psychological trauma, whereas accountability of the hospital comes into play.
The judiciary wrestles with balancing biological ties against psychological ones, and due
to the absence of unilateral application of any legal principles in all jurisdictions
worldwide, such situations become tough to sort out. The dilemmas emerge primarily in
cases where custodial and biological parents are in conflict over custody rights to the
child, countered by institutional failures that include medical negligence or at least lack
of effective hospital procedures. The families of the respective biological parents, their
extended families, custodial parents, and children suffer considerable emotional trauma,
with societal norms and cultural pressures impacting the decisions of the court. For
instance, in South Africa, court decisions have held that children ought to remain with
their psychological caregivers with attachment safety and the best interest of the child in
mind. Though, the cases highlight the unavailability of redress for the affected parties and
institutions to hold hospitals accountable. In analyzing the situation, a general proposed
response to combat such challenges has been suggested. It looks at the family legal orders
in various countries like the United States, India, and South Africa, and at international
levels like the UN Convention of the Rights of the Child. The analysis emphasizes the
necessity for policy reform, such as imposing statutory requirements on DNA testing
performed upon hospital discharge, deploying electronic tagging systems to minimize
cases of mistaken identity, and cracking down hard on medical negligence. It further
demands psychological counselling programs to mitigate emotional trauma to the affected
families.
Keywords: Child Swapping, Institutional Responsibility, Psychological caregivers, Non-
biological parents.
1. Introduction
The child-swapping phenomenon at birth presents legal, ethical, and psychological
concerns, irrespective of whether the act is accidental or intentional. Institutional
 Invisible to Invincible : Narratives of Gender Justice 301

shortcomings, including poor protocols in hospitals, aggravate the problem.

Hospitals may be sued civilly for damages regarding costs of raising the child or
emotional distress, in addition to any criminal charges brought for negligence or for
being implicated in trafficking. The psychological impact stretches to the very
core of these institutions—biological parents experience identity crises, custodial
parents suffer psychological trauma at the prospect of separation, and children
are left with a barrage of confusion and trust issues.
1.1 Background Of The Study
As there is neither worldwide data on child swapping at birth nor a condition that
would capture nearly all possible instances due to underreporting and dissimilarity
in reporting, certain incidences in South Africa and India have pointed out major
loopholes in systems of patient identification aimed at preventing further
occurrences. In the 2015 case in South Africa, two babies were swapped at a
hospital in Johannesburg,1 and this was only discovered 18 years later through
DNA testing, which has pointed to systemic lapses.
Research is focused on the legal framework concerning child swapping, as it affects
the impact of legal rights on parents, including their rights to custody and
compensation. The study thus expands into the area of hospital liability and breach
of medical duties, with illustrative examples such as Manohar v. Apollo Hospital
(2018)2 of India where negligence resulted in a fine of 10 lakh. Some of the
preventive measures suggested are mandatory DNA profiling, biometric tagging,
and reformulation of policies. This study, through legal analysis, empirical data,
and ethical considerations, will broaden the canvas of family law, legal practice,
and child welfare policies, seeking some coordinated legislation that takes priority
over children's best interests and institutional accountability.
Definition of Child Swapping at Birth
There is child swapping at birth, or baby swapping, etc., which refers to the
unintentional or deliberate exchange of newborn infants within a health care
institution, whereby the non- biological parents unknowingly raise a child to
whom they are not genetically related. This may arise due to a host of reasons,
such as medical neglect, poor identification procedures, or criminal reckless intent,
as in cases of human trafficking or illegal adoptions. The term embodies the
situations where the biological link between a child and their assumed parents is
broken, hence creating legal and ethical quandaries over parental rights, the identity
of the child, and their psychological experience.3
302 Invisible to Invincible : Narratives of Gender Justice

Hospital errors leading to a baby swap

Since such situations tend to be highly sensitive and are subject to great variation in
standards of care from one country to another, accurate statistics on infant
switching due to hospital errors are quite difficult to come by. Despite this,
statistical evidence and court cases exist to show that such incidents are not
completely isolated occurrences, albeit rare ones. While no center exists for
reporting in the United States, rare incidents are truly coming to light; these
highlight the potential for errors in even the best-regulated health care systems.
In regions where less stringent health care oversight exists, the issue may be a lot
more present. A study conducted in India found many cases where the lack of
patient identification protocols led to newborn mix-ups, especially in overcrowded
public hospitals.4 In South Africa, cases of mislabeling or human error causing
baby swaps have similarly been reported. While there are no concrete statistics
indicating the scale of this problem, these individual examples have highlighted
systemic weaknesses in patient safety.
Legal Gaps: No universal approach to child swapping cases across
jurisdictions
From the perspective of child swapping, India has a gaping lacuna in law, as there
is no provision for a specific legislation which would deal with it at all levels of the
judiciary. Family law in India is personalistic, based on religious and customary
laws of the Hindus and the Muslims, which has made the effort to frame a uniform
legal framework for these cases nearly impossible. Many issues remain unresolved
owing to imported notions regarding the rights and responsibilities of biological
and non-biological parents in situations associated with child swapping.
As is almost always the case in custody disputes, the Guardians and Wards Act of
1890 will be invoked even though it prioritizes the child's welfare without
providing a specific way in which child swapping cases might be handled and
considered by the relevant judicial forum. Since the discretion is extremely wide,
there can be different outcomes depending on the interpretations by different judges
regarding the specific facts of each case. Furthermore, there are no protocols
imposed by hospitals for checking this out against child swapping; this is, of
course, referring to a huge systemic failure, which shows that patients' safety is not
ensured. Victims of child swapping, therefore, find themselves under an ocean of
legal uncertainty in India, and they are usually unable to get remedies against their
detractors.
 Invisible to Invincible : Narratives of Gender Justice 303

Institutional Failures: Hospitals failing in due diligence

Failure to meet due diligence standards in hospitals is a significant cause of child
swapping in India. For example, it involves a lack of proper hospital patient
identification. There is insufficient training for the staff and poor verification
systems. Such lapses are particularly possible in overcrowded public hospitals with
limited resources. The absence of prescribed, standard-identifying processes of
newborns, such as through electronic tagging or biometric identity verification,
further challenges the situation wherein babies get mixed up.
1.2 Research Questions
What are the legal remedies available for victims of child swapping?
India has rules posing a very complicated legal situation of considerable emotional
importance and larger social ramifications, whether accidental or deliberate, for
the act of child swapping.
Civil Remedies
Biological parents can file a suit against the hospital or whoever else was involved
in the swap for damages, claiming negligence or breach of duty of care. In
negligence cases, hospitals may have liability in tort under the Consumer Protection
Act of 2019, as health services are covered under its ambit. A conspicuous case is
in Manohar v. Apollo Hospital (2018)5, wherein a Hyderabad couple filed a lawsuit
against a hospital for having their child exchanged due to a procedural lapse, and
they finally succeeded in securing compensation for emotional trauma.
Custody disputes arising out of child swapping are dealt with under the respective
applicable personal laws, namely, either the Hindu Minority and Guardianship Act,
1956, or the Guardians and Wards Act, 1890, according to the religion of the
parties involved. The courts thus place the welfare of the child at the forefront of
all considerations, weighing the biological link to the child against the emotional
link developed with the non-biological parents. In Swapna Ghosh v. State of West
Bengal (2020)6A Calcutta High Court allowed the biological parents to take
custody of the child after the DNA test certified that a swap had taken place;
however, the foster parents were granted visitation rights, displaying a more
nuanced approach.
Criminal Remedies
If child swapping consists of an intentional activity like trafficking or the sale of
human beings, criminal remedies come into play. The Bharatiya Nyaya Sanhita,
2023 (BNS), imposes severe punishments under Section 137 (2) (kidnapping) and
304 Invisible to Invincible : Narratives of Gender Justice

143 (trafficking), in keeping with which imprisonment can extend to seven years.
The Juvenile Justice (Care and Protection of Children) Act, 2015, guarantees the
rights of the child, and rehabilitation is to be ensured if trafficking is proven.
Important in this context is a case from Tamil Nadu in 2019, where a member of
the hospital staff was convicted for organizing a racket for selling babies in
violation of the BNS and sentenced to 10 years.
Constitutional and Human Rights Protections
According to the Constitution and Human Rights law, victims are entitled to
redress. Right to life and personal liberty, as well as the right to identity and family,
have been given constitutional protection under Article 21 of the Indian
Constitution, as endorsed in Laxmi Kant Pandey v. Union of India (1984).7 Thus,
the right of a child to know his biological origin is part of India's obligations under
the UN Convention on the Rights of the Child (CRC). Public interest litigations
(PILs) can force reforms of systemic compulsions, such as mandatory DNA testing
at birth, even though no uniform policy seems to exist.8
Challenges and Gaps
The challenges and gaps setting the framework for legal recourse in India are found
in such obnoxious settings as disparate hospital protocols, delays in the processes
of the courts, and the nonexistence of specific legislation governing child
swapping. Thus, the victims are left with the wish that, on a case-by-case basis,
judicial discretion will favor them, as in the 2022 Kerala hospital swap case,
whereby compensation was granted but no staff was criminally charged due to
lack of evidence.
How do courts resolve custodial disputes in these cases?
The courts in India start with the principle of welfare of the child above all other
considerations while resolving custody issues incidental to cases of child swap, as
provided under the Guardians and Wards Act of 1890 and personal laws such as the
Hindu Minority and Guardianship Act, 1956. The judges will weigh biological
links against emotional attachments with non-biological parents who had got an
opportunity to rear the child. In the case of Swapna Ghosh v. State of West Bengal
(2020), the custody was awarded to the biological parents after confirming the
DNA test of a swap in a hospital by the Calcutta High Court. Visitation was
granted to the foster parents, with the stability of attachment being emphasized. In
the same vein, yet another case in Kerala in 2022 led the High Court to favor the
biological parents, but the Hell allowed the gradual transition owing to the child's
age and bonding. The Supreme Court in Gaurav Nagpal v. Sumedha Nagpal
 Invisible to Invincible : Narratives of Gender Justice 305

(2009)9 held that a child's best interest overrides the claims of his or her parents,
and this principle features prominently in disputes arising out of swapping. Courts
may also order psychological tests regarding trauma, as was seen in the case of
Hyderabad in 2018.10 What stands out is that the outcomes are variable due to
judicial discretion and the absence of a uniform statute holding a balance between
legal parenthood and emotional actuality.
What penalties exist for hospitals and medical staff responsible?
In regard to Indian law, the penal provisions against hospitals and medical staff for
swapping children at birth differ concerning whether the act is negligent or
intentional. In civil law, hospitals can be held liable for medical negligence under
the Consumer Protection Act, 2019, and therefore, a victim can sue the hospital for
compensation for emotional and economic loss. For example, in the case of
Manohar v. Apollo Hospital (2018), it involved a Hyderabad hospital that had to
pay 10 lakh for swapping due to procedural lapses. According to the Indian
Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002,
disciplinary action may be taken against an employee, including suspension from
his license, when found negligent.
The Bharatiya Nyaya Sanhita, 2023 (BNS) would apply to criminal liability cases
from July 2024. Section 143 which replaces IPC Section 370, prescribes 7 to 10
years of imprisonment and fines for swaps, which are regarded as trafficking. Such
a scenario can be well interpreted from a 2019 case wherein a nurse was sentenced
to 10 years behind bars for running a child- selling racket in Tamil Nadu.11 Section
137(2) substitution to IPC Section 363 relates to up to 7 years of imprisonment for
an act of kidnapping. States have the power to impose either a heavy fine or loss of
accreditation for hospitals on grounds under state health regulations, but variances
exist in implementation. On one such act in 2022 in Kerala12There was financial
compensation by the hospital, but it escaped penal measures in the criminal courts
due to a lack of evidence. Stronger punitive measures are still largely inconsistent
in the absence of specific legislation.
What legal reforms can be proposed to prevent child swapping?
In India, child swapping at birth, whether accidental or intentional, is a serious legal
and ethical issue. Often, the parental quarrels, psychological trauma, and
institutional liability associated with these cases are regrettable. Legal reforms are
proposed in order to avoid such incidents:
1. Compulsory DNA Testing at Birth
A law mandating DNA testing before discharge from the hospital, acts as a
306 Invisible to Invincible : Narratives of Gender Justice

deterrent to child- swapping. Many nations have adopted this practice to prevent
mix-ups. The legal regime can include DNA testing as a necessary procedure in the
Registration of Births and Deaths Act, 1969.
2. Biometric and Electronic Tagging System
There must be a legal requirement in hospitals to carry out biometric identification
by fingerprint or retina scanning of newborns and electronic tagging of those
newborns against the mother. The Clinical Establishments (Registration and
Regulation) Act, 2010, can be amended by the government to include electronic
tracking compliance as a requirement for licensing.
3. Tougher Punishment for Medical Negligence
At the present time, victims can seek compensation for medical negligence under
the Consumer Protection Act, 2019. However, there is a need for specific
provisions concerning liability on the part of hospitals in cases of child-swapping.
Amendments in the IPC and regulations from the Medical Council of India should
create penal liability for hospitals found guilty of negligence that leads to baby
swap incidents.
4. Compensation for Affected Families
An affected family should be provided a temporary relief fund for the victims of
child- swapping through the concerned authorities under the Ministry of Health and
Family Welfare. This will ensure support for the victims without litigation delay.
5. Specialized Family Courts for Expedited Custody Cases
Confrontations can be emotionally and financially draining. The Family Courts Act,
1984, must be amended to cater to special family court procedures for the quick
and efficient resolution of custody disputes of swapped babies, with the child's
interest foremost.
6. Intentional Child Swapping to be Made Criminal
The IPC should lay down specific provisions that make child-swapping criminal for
the purposes of trafficking or illicit adoption. Inclusion of such a provision will
either be in Section 370 (trafficking of persons) or in a provision concerning "child
identity fraud," since that can bring stricter legal implications.
7. Awareness Programs to Inform Parents
Hospitals must fulfil a legal obligation to inform parents about their rights and
preventive measures against child-swapping. Awareness programs should form a
 Invisible to Invincible : Narratives of Gender Justice 307

part of the maternal healthcare services operated by the National Health Mission
(NHM).
1.3 Significance Of The Study
This study contributes to family law, legal practice, and child welfare policies by
analyzing the legal, psychological, and institutional implications of child swapping
cases in India. It provides insights into custody disputes, hospital liability, and the
necessity for legal reforms, such as mandatory DNA testing and stricter hospital
accountability measures. Judicial precedents highlight conflicts between biological
and psychological parenthood, necessitating clear legal standards. Addressing these
gaps strengthens child protection laws and ensures fair parental rights
determinations, aligning with the best interests of the child principle under Indian
family law and international conventions.13
2. Legal Frameworks Governing Child Swapping at Birth
2.1 Domestic and International Legal Frameworks
As far as India goes, the domestic legal framework dealing with the phenomenon of
child swapping at birth is a tangled mess of civil, criminal, and family laws. It is
clear from that fact that a situation like this isn't easy. Civil remedies fall mainly
under the Consumer Protection Act, 2019: healthcare counts as a service, and
hence, victims have the right to file complaints in courts against the negligent
hospitals. For example, in Manohar v. Apollo Hospital (2018), a couple from
Hyderabad was able to get compensation after a hospital mixed up their newborn
with that of another couple due to lax protocols. Tort law further aids litigation for
emotional distress and economic harms, though the actual money awarded thereon
is subject to the discretion of the courts in most states.
Now, criminal liability under Bharatiya Nyaya Sanhita, 2023 (BNS) comes into
effect from July 2024. According to Section 137(2) (replacing IPC Section 363),
maximum imprisonment is seven years for kidnapping and, in case of negligent
change over by removing a child from lawful guardianship. Section 143
(substituting IPC Section 370) provides for 7-10 years of imprisonment along with
fines for trafficking on intention, as in a 2019 baby-selling case in Tamil Nadu in
which four members among the staff of a hospital were penalized. Family law, viz.
Hindu Minority and Guardianship Act, 1956, or Guardians and Wards Act, 1890,
solves custody issues based upon the welfare of the child vis-a-vis biological and
emotional attachments, like in Swapna Ghosh v. State of West Bengal (2020). India
lacks a comprehensive legislation on child swapping, and hence, courts are taking
308 Invisible to Invincible : Narratives of Gender Justice

different interpretations in delivering judgments, warranting the need for

legislative intervention.
Child swapping cases in India have international legal frameworks due to treaties
and conventions of which India is a signatory, and India needs to speak on child
rights and parental responsibilities. The UN Convention on the Rights of the Child,
ratified by India in 1992, under Article 8, guarantees to the child a right to retain
identity, including nationality, name, and family relations, which has been reflected
in Laxmi Kant Pandey v. Union of India (1984) wherein the Supreme Court related
rights of identity with adoption and police trafficking, these titles being applicable
in swap cases. The Article 3 (best interests of child) of the CRC directs the Indian
courts in custody disputes; it is well seen in a 2022 Kerala swap case where a
child's stability takes precedence.
2.1.1 Family Law in Various Jurisdictions
United States: Case Law Between Biological and Non-Biological Parental
Rights
Family law in the U.S. addresses child swapping through case law, balancing
biological and non-biological parental rights. Generally, courts will think of the
“best interests of the child,” such as in Michael H. v. Gerald D. (1989)14, wherein
the Supreme Court afforded non- biological father rights over a biological one
because of established familial ties. Swapping examples include the case from 1998
about a mix-up in a hospital in Virginia. The courts usually award custody to
biological parents but provide nonbiological parents with visitation rights, bearing
in mind emotional ties. This approach works its indirect way into other jurisdictions
such as India via judicial precedents, even though it is more inclined to statutory
law. While the US practice relies more on DNA evidence and psychological
assessments, it could be s model for India, where similar case lacks a uniform
pattern as in the 2022 Kerala case.
United Kingdom: Custody Judgments on Children and Laws on Welfare
After the Children Act of 1989, the United Kingdom followed up on children's
rights in child swap disputes. In Re B (A Child) (2009)15The House of Lords used
welfare checklists prioritizing the child's stability with non-biological parents above
biological claims. In a 2015 case in a hospital, the court had regard to the biological
parents after confirming through DNA analysis, but with the gradual transfer to
lessen trauma. That sophisticated approach stands in stark contrast to the blunt,
general personal laws that India uses today, but it says much about such cases as
Swapna Ghosh v. State of West Bengal (2020), in which visitation was matched
 Invisible to Invincible : Narratives of Gender Justice 309

with competing interests. This kind of structured welfare thinking may help give
India a less ad hoc way of handling judicial outcomes.
India: The Legal Provisions under Hindu and Muslim Personal Laws
Now, the specific provision of family law concerning child swapping within India
has personal status. It governs in Hinduism under the Hindu Minority and
Guardianship Act, 1956, primarily in direct relation to the children's welfare inside
custody disputes, as in Swapna Ghosh v. State of West Bengal (2020), under which
the biological parents regained control over the child subsequently to the swap. For
Muslims, it is additionally competent for the Guardians and Wards Act, 1890,
alongside the Sharia principles concerning the child's best interest. A typical
Hyderabad case of 2018 said courts could give damages and custody to biological
parents under tort law. It reflects considering such negligence liability. While in
similar personal laws somewhere else usually it is usually bleak, India's fragmented
personal laws become different judgments for baby swapping cases and thus also
show how to require reconstructions in this area.
2.1.2 International Human Rights and Child Rights Laws
 UN Convention on the Rights of the Child (CRC): The Right to
Identity and Family
The CRC is an exhaustive body of laws and principles to which India became a
party in 1992 and which, therefore, provides important protection in cases of child
swapping. By virtue of Article 8, all children have the right to preserve their
identity, including family relations, where such identities potentially come into
conflict with hospital mistakes or trafficking activities. In Laxmi Kant Pandey v.
Union of India (1984), the Supreme Court of India stated that the exercise of
identity rights must be discerned against the welfare of the child in adoption and
trafficking situations, a tenet extendable to swaps. Article 3 (best interests of the
child) provides another set of guiding principles in custodial challenges, with the
2022 Kerala swap case highlighting the precedence given by courts to stability in
the face of biological claims. Thus, while India remains a party to the CRC, the
status of implementation reveals deficiencies, namely that identity verification
should be made virtually mandatory at birth, with an urgent need for reforms to
match international standards.
 Hague Convention on Parental Responsibility: Applicable Clauses in
International Custody Disputes
Although it has not been ratified by India, the Hague Convention on Parental
Responsibility and Protection of Children was adopted in 1996, thus providing a
310 Invisible to Invincible : Narratives of Gender Justice

set of international standards that pertain to resolving international custody disputes

in cross-border cases of child swapping. Both Articles 8 and 11 of the Convention
focus on jurisdiction as well as urgent protective measures, thus ensuring respect
for parental rights across different national laws within their context. In the Indian
setting, where swaps like the 2019 Tamil Nadu trafficking case had foreign
elements involved, it can be considered somewhat of an indirect reference to such
principles. The Convention's emphasis on cooperation would benefit Indian
families in the rare international swap cases, while not ratifying it limits its
enforceability. Swapna Ghosh v. State of West Bengal in 2020 is a domestic
context in which such balancing of rights was done; thus, if India ratifies the
Convention, such benefits may accrue.
 European Court of Human Rights Cases: Parental and Child Rights
Decisions in Affiliation Disputes
Although the European Court of Human Rights was never binding on India, it
would still provide interesting precedents for child swapping disputes. Paradiso and
Campanelli v. Italy is the case where the ECHR said that states are supposed to
balance biological and social parenthood and give precedence to child welfare over
the strict biology principle echoed in India, too-in Gaurav Nagpal v. Sumedha
Nagpal (2009). Mandet v. France16 was a 2015 case which upheld the right to
identity for the child as per Article 8 of the European Convention that has drawn a
resemblance between the global discourse on swaps and the ones that discussed
swap cases in Indian courts, especially in the 2018 Hyderabad swap case. The
subtleties of the ECHR would perhaps be of reference in much of the Indian
jurisprudence, but the availability of emotional and cultural factors along with
Indian law and social acceptance would make a much more exhaustive
understanding as compared to the ECHR's more straightforward jurisprudence.
2.2 Definition of Parenthood in Law
In the legal sense, parenthood, especially in regard to child swapping at births in the
Indian milieu, is a many-faceted word covering biological, legal, and social aspects.
Such multivalence comes to the fore when hospital errors or deliberate misdoings
interfere with the natural nexus between parents and children: this is well-
established in many cases in India. Indian law does not provide one definition of
parenthood but rather derives meaning from statutory provisions, judicial
precedents, and personal laws, often joined together to respond in a unique way to
the special set of problems posed by baby swaps.
 Invisible to Invincible : Narratives of Gender Justice 311

2.2.1 Biological vs. Legal Parenthood

In India, biological and legal parenthood forms a critical distinction under the
context of child swapping situations, as hospital error or intentionality may sever
such natural parent-child relationships. Biological parenthood is the definition of
being genetically linked, which is given as part of the Article 21 right to identity in
Till One Visits an Original Kerala Laxmi Kant Pandey v. Union of India (1984).
This is important as it relates to evidence, often DNA evidence, brought by
biological parents who discovered that they were denied their rights to a swapped
child, as happened in Swapna Ghosh v. State of West Bengal (2020). The Supreme
Court noted in Gaurav Nagpal v. Sumedha Nagpal (2009) that the welfare of the
child would trump biological rights and affect the ruling in swap cases. In one of
the 2018 Hyderabad cases, Manohar v. Apollo Hospital, they said that it was
enough ground for the non-biological parents for an emotional degree of
significance, despite the success of the biological parents in getting compensation.
Further, paternal and maternal rights complicate the already complex disputes;
Hindu law has fathers as the natural guardians, yet most courts take a stand in favor
of maternal care for minor children, as it happened in the 2022 Kerala swap case.
The ambiguity paints quite a picture of India's fragmented legal jurisdiction- one
without a clear view of either whole or sole parenthood, as it concerns these
scenarios.
3. Legal Ramifications of Child Swapping at Birth
3.1 Civil Liabilities
Injurious and some-too-deep-for-words civil liabilities arise in India for a child
being swapped at birth, either due to negligence on the part of the hospital or by
intentional wrongdoing. This section discusses viable civil options for such
incidents, mainly covering claims for damages and parental identity theft. A
country where personal law as well as judicial precedents characterize family
disputes makes civil recourse an indispensable option for aggrieved persons.
Hospitals, which are legally found culpable, will have to compensate their victims
for any financial losses and emotional trauma stemming from these acts.
3.1.1 Compensation for Damages
In India, civil penalties for birth swapping typically include compensation for
damages that will cover the immense amount of anguish and pain inflicted upon the
families affected. Under the 2019 Consumer Protection Act, medical services are a
consumer service and therefore, victims can sue the hospital for negligence.17 In the
case of Manohar v. Apollo Hospital (2018), a couple from Hyderabad was
312 Invisible to Invincible : Narratives of Gender Justice

compensated with 10 lakh for the swapping of their newborn due to improper
protocols followed by the hospital in raising the child, providing for psychological
therapy as well as legal fees. Emotional distress may also be maintained as a
tort, in honour of time-honoured standards in a sense of debt. It has long been
affirmed that hospitals owe a duty of care and breach thereof calls for
compensation, the principle having been reiterated in the swap context in many
cases by the Supreme Court in Spring Meadows Hospital v. Harjol Ahluwalia
(1998)18, where compensation was granted.
3.1.2 Parental Identity Theft Claims
In India, claims for parental identity theft arise when child swapping is
accompanied by wilful deception, a far rarer but serious civil liability. A party
intentionally misrepresents parentage through either voluntary swaps configured for
trafficking or revenge. Mixed parentage, through such scenarios, falls outside
negligence. Identity theft claims, under Indian law, can be sustained as tortious
deceit or fraud, which would reward for emotional suffering and pecuniary loss.
The relevant section in the Indian Contract Act, 1872 that defines fraud is Section
17, which again opens the gates of civil suit if swaps were made or orchestrated in
association with the names of hospital personnel or third parties, such as in the case
of Tamil Nadu baby selling in 2019. In this case, the colluding hospital employee
effected the swap, while criminal liability was primarily engaged under the
Bharatiya Nyaya Sanhita, 2023 (Section 143)19Civil damages of 8 lakh were
awarded to the biological parents for identity theft.
A few more consequences related to impersonation arise. In the case of Swapna
Ghosh v. State of West Bengal (2020), though the swap was casual, the court held
that civil liability would come into play where evidence could establish intent and,
thus, restitution of usurped parental rights might be a possibility. The Consumer
Protection Act, 2019, applies to cases like failing hospitals to verify identities,
such as in Manohar v. Apollo Hospital (2018), where there was no intent. These
claims of emotional distress, finding an avenue of expression owing to the
separation of a biological child from custody, create a parallel with the set of values
articulated in Rudal Shah v. State of Bihar. However, proving intent is still an uphill
battle, and most claims with an unintentional swap nature face limitations.
3.2 Criminal Liabilities
3.2.1 Hospital Negligence and Malpractice
In India, the negligence and malpractice of hospitals against child swapping trigger
criminal liability in cases where neglect is beyond mere civil negligence, into
 Invisible to Invincible : Narratives of Gender Justice 313

culpable acts. The Bharatiya Nyaya Sanhita, 2023, effective from July 2024, lists
levels of liabilities. Section 304 applies where negligence is such that it causes hurt
and therefore attracts imprisonment up to 10 years, though it rarely finds
application with regard to swap cases, and may amount to culpable homicide not
amounting to murder. Much more common is Section 336: "act endangering life or
personal safety," attracting a penalty of up to three months in prison or a fine for
acts done in gross negligence. Potential applicability here includes a recent 2018
case, Manohar v. Apollo Hospital, where procedural failures resulted in the swap,
for which there could be punishment. Criminal intent, however, requires evidence
of deliberate misconduct, elevating the charges to fraud or kidnapping at
Sections 420 or 137(2), respectively.
This includes penalties like fines on the hospital, cancellation of the license, and
professional misconduct charges. Under the Indian Medical Council (Professional
Conduct, Etiquette and Ethics) Regulations, 2002, the Medical Council of India
(now National Medical Commission) takes over the power to suspend or revoke
licenses of errant staff, as in the case of a Delhi nurse in 2015 with respect to the
swap. Heavy penalties are imposed on a hospital under the health regulations of the
respective states. For instance, in a 2022 case of a swap in Kerala, the hospital paid
5 lakh, and similar criminal charges in this case were dropped due to a lack of
intent.
3.2.2 Human Trafficking Laws in Intentional Swaps
Under the Bharatiya Nyaya Sanhita, 2023 (BNS), intentional baby-swapping, often
linked to human trafficking, is punishable with severe penalties. Section 143, which
replaces IPC Section 370, talks about trafficking and lays down penalties of
rigorous imprisonment of not less than seven years and possibly extendable to ten
years, along with a fine, for syndicates involved in baby-selling, while aggravated
trafficking pertaining to minors and exploitation attracts punishment by life
sentences. This is concurrently supported by the Juvenile Justice (Care and
Protection of Children) Act, 2015 20, mandating governance and rehabilitation of
children, as was applied in the 2019 Tamil Nadu case in which a hospital employee
was convicted for swapping and selling a child and sentenced to 10 years.
Swapping is also covered under Section 137(2) (replacing IPC Section 363),
presenting a maximum punishment of up to 7 years of imprisonment for
kidnapping. Nevertheless, trafficking allegations take precedence in most cases of
intentional swapping.
314 Invisible to Invincible : Narratives of Gender Justice

4. Parental Entitlements and Psychological Impacts: Introduction

In this section, custody rights, struggle in courts, and their psychological
ramifications have been drawn from cases such as Swapna Ghosh v. State of West
Bengal (2020), in which competing claims were being weighed in the courts
against the trauma they carry along with them. The swapping of infants at birth in
India raises lots of problems regarding parental rights and the psychological
repercussions for biological and non-biological parents and the child. This goes on
to examine the judicial and psychological dimensions with rigour.
4.1 Custody Rights and Legal Disputes
Child swapping cases in India require custody rights to be decided on a legal
framework that aims to synergize the conflicting interests of biological and non-
biological parents while prioritizing the child's welfare. Such a stance has
originated out of the Guardians and Wards Act, 1890, and the personal laws
according to the Hindu Minority and Guardianship Act, 195621As all such courts
have decided cases arising from hospital errors or intentional errors in various
proceedings spanning the length of the country. In Gaurav Nagpal v. Sumedha
Nagpal (2009), the Supreme Court emphasized that the welfare of the child is the
paramount consideration to be followed in cases surrounding swapping. This was
very much evident in Swapna Ghosh v. State of West Bengal (2020), where DNA
testing implicated the biological parents and thus awarded them with custody of the
child, while lifetime visitation was granted to the non-biological parents who had
been accompanying the child for years.
Several factors will be taken into consideration, including whether biological ties
matter in law since they give rights of identity under Article 21 of the Constitution,
as were reinforced in Laxmi Kant Pandey v. Union of India (1984). Yet non-
biology-related parents would have emotional ties heavily competing against such
rights, especially once deep attachment has formed concerning the particular child.
The 2022 Kerala swap incident favoured the biological parents while gradually
transferring the custody of the child to them in phases to safeguard the child's
stability with non-biological caregivers during the transition. The attachment aspect
is further reinforced by the UN Convention on the Rights of the Child (CRC) in
respect of custodial rights as well, Article 3 emphasizes that a child's best interest is
the paramount consideration, while Article 9 looks at the preservation of family
relationships.
Thus, judicial discretion is critical in cases of child-swapping because there is no
specific statute to regulate this area. In this case also, however, in the 2018
Hyderabad Manohar v. Apollo Hospital case, the court weighed the child's age as
 Invisible to Invincible : Narratives of Gender Justice 315

per psychological reports while keeping the option open regarding the biological
parents because of the importance of non- biological parents as well. Custody in the
Tamil Nadu trafficking case (2019) was bestowed upon biological parents after the
disbandment of a trafficking syndicate, highlighting the precedence of legal
parenthood over unconstitutional arrangements. Although the approach is highly
nuanced, such glaring inconsistencies compel the adoption of uniform guidelines
that can effectively resolve custody matters in child-swapping disputes in India.
 Factors courts consider in custody disputes:
Parental claims are often overshadowed by the child's welfare and attachment
stability in custody disputes so created by child swapping in India. The Guardians
and Wards Act 1890 requires courts to consider the overall welfare of the child
foremost22 as directed by the Supreme Court in Gaurav Nagpal v. Sumedha Nagpal
(2009), in which health, education, and emotional security are counted. In Swapna
Ghosh v. State of West Bengal (2020), the Calcutta High Court tilted towards
offering visitation to the non-biological parents in order to fulfill the child's best
interest while still allowing children to be transferred into the custody of their
biological parents. This demonstrates a judicial commitment to minimizing
disturbance, especially in cases of accidental swap.
Attachment stability gives a greater emphasis on the child's psychological tie with
caregivers, informed by developmental psychology. An example from the year
2022 regarding the change of custody was where the Kerala High Court ordered a
phased shift of custody toward biological parents after a period of six years with
non-biological parents, justifying this by referring to attachment theory to avoid
trauma. The same psychological tests were conducted, as seen in the Manohar v.
Apollo Hospital case decided in Hyderabad, where psychological tests determined
how the child saw his parent-child relation and were considered by the bench to
influence a fair judgment. In fact, it was backed by Article 3 of the CRC, which
asks so much about decisions being made to protect the mental health of children.
Such deliberate exchanges have to do with the welfare regarding immediate
restoration, as with the 2019 Tamil Nadu trafficking case, since safety takes
precedence over the disturbed bonds. Age and adaptability also come into
consideration; younger children more easily transition, as in a 2015 Delhi case,
while established bonds of older children weigh heavier. The judicial discretion is
quite flexible, indeed, but not uniform since the end results rely heavily on the
available evidence quality and expert ratio. This emphasizes the need for
standardized protocols that would ensure ongoing attention to child welfare and
attachment stability in all custody decisions in swap cases in India.
316 Invisible to Invincible : Narratives of Gender Justice

4.2 Psychological and Emotional Effects:

Child swapping at birth in India is essentially psychological and emotional trauma
for biological parents and non-biological parents, and for the child, which makes
legal and family settlements quite difficult. This section discusses these aspects that
impact some cases present one referring to Manohar v_a Apollo Hospital (2018)-in
which emotional distress was considered to enhance final outcomes, thus,
highlighting the human cost. It discusses identity, bonding, and trauma for all the
affected parties.
4.2.1 Effect on Biological Parents
Biological parents in India suffering due to child swapping experience intense
psychological and emotional effects, such as identity crisis and emotional trauma,
in addition to difficulty in attachment with their reclaimed child. In the case of
Swapna Ghosh v. State of West Bengal (2020), for instance, these emotions
shattered the perspective of parenthood, often leading to a mourning for lost years
of parenthood and an entire identity crisis because of biological links.
4.2.2 Impact on Non-Biological Parents (Fostered the Child Unknowingly)
India will subject non-biological parents who unknowingly have been raising a
swapped child to severe emotional trauma from worrying separation, and legal
proceedings for retaining their parental rights. In Swapna Ghosh v. State of West
Bengal (2020), the agony in the hearts of truly non-biological parents came after
years of nurturing when custody was handed over to the biological parents, who
were granted visitation rights only.
4.2.3 Psychological Effects on the Child
Children suffering from Indian child swaps include identity confusion, post-
traumatic stress disorder, poor well-being, and trust issues in caregivers. In Swapna
Ghosh v. State of West Bengal (2020), it was further stated that the child, who was
swapped at birth, would have faced identity confusion upon learning that his
biological parents were different from those who raised him. The crisis turns more
acute at adolescence.
5. Preventive Measures and Policy Recommendations
Ill-bred child swapping in hospitals, either intentional or otherwise, is an extremely
agonizing issue. It becomes a harsh necessity for stronger preventive measures and
policy interventions. Moreover, to mitigate any such occurrence, a medical
institution should adopt advanced technological recommendation systems, impose
strict hospital protocols, and ensure legal accountability. Preventive strategies
 Invisible to Invincible : Narratives of Gender Justice 317

should set forth priorities such as adopting modern identification systems coupled
with stringent verification procedures backed by legal mandates for compliance.
This section highlights the importance of medical institutions in averting child
swapping and the best practices in hospitals, for instance, between hospitals
through electronic baby tagging, biometric systems, and double verification by
independent hospital personnel.
5.1 Role of Medical Institutions in Preventing Child Swapping
As already stated, appropriate responsibility for correctly identifying and handing
over newborns shall never be conferred upon the hospital staff of the institution.
This kind of responsibility must include some high-tech systems, strict verification
protocols, and training programs for staff to mitigate potential errors. Allegations of
child swapping in India expose gaping holes within hospital procedures and
warrant immediate attention towards transforming the existing systems. Hospitals
should, as a matter of course, strictly follow prescribed procedures, conduct
periodical audits, and establish accountability systems in order to prevent these
types of breaches.
5.1.1 Hospital Best Practices
Electronic Baby Tagging and Biometric Systems
Among the most effective preventive measures against child swapping is the
establishment of electronic baby tagging and biometric systems. Hospitals in many
countries of the developed world have such a system for the proper matching of
babies to mothers. Unfortunately, such systems are very few in India, resulting in
very avoidable child swapping cases.
Electronic baby tagging involves the immediate attachment of a tamper-proof,
identifiable tag immediately after birth. This encrypted identification could link a
baby to his/her mother, permitting quick detection of unauthorized exchange. In
addition to this, hospitals should use biometric systems, such as a fusion of
fingerprint or retinal scans, to further attach newborns to their parents. Biometrics
provide a more reliable alternative to traditional wristbands that may be tampered
with or misplaced.
Legal and Policy recommends the following: Hospital Protocol Guidelines,
2022.
 Mandatory Use of Electronic Identification Systems: The Indian government
should enforce regulations for obligatory electronic baby tagging and
biometric identity systems in all hospitals.
318 Invisible to Invincible : Narratives of Gender Justice

 Strict Hospital Protocol and Audits: Strictly point out needful audits to
ensure compliance in hospitals on identification protocols, thus imposing
strict penalties for lapses.
 Parental verification training programming: Build the knowledge of
medical personnel on identification procedures to reduce errors and encourage
accountability.
 Legal Implications for Medical Negligence: Stringent penalties should be
imposed on hospitals found guilty of negligence leading to child swapping.
 Reach Out Awareness Campaigns: Education of parents about the necessity
of newborn identification verification can avoid cases of child swapping.23
5.2 Legal and Policy Reforms
Mandatory DNA Testing Before Hospital Discharge
Mandatory DNA testing should be introduced for newborns in all Indian hospitals
before discharge, in order to avoid any chance of child-swapping. DNA testing is
absolute proof of biological relationships and it acts as a deterrent against a mix-up.
In Kumari Priya v. State of Bihar, the Supreme Court of India laid down the
principle that DNA testing is absolutely reliable in resolving the identity of
children. Making DNA testing mandatory will preclude wrongful exchanges owing
to negligence.
5.3 Raising Public Awareness Parental Education on Hospital Protocols
One of the most important avenues for preventing the swapping of newborns is
educating parents about the protocols of the hospital. Awareness programs must
inform the parents about the regulations of identification, the significance of
electronic tagging, and their rightful legal prevails in case of negligence. Hospitals
must issue brochures of educational content on the subject of child swapping and
organize educational sessions for expectant parents.
Legal Aid Services for Victims
Most families that have been affected by child swapping find themselves in arduous
legal battles, which compound their emotional agony. The creation of legal aid
services for baby- swapping cases could be of great assistance. Legal aid clinics, in
partnership with the state legal services authority, would ensure that victims are
provided legal representation without the attendant financial burden.
If medical institutions abide by the best principles and policies recommended here,
they would cut down on instances of child swapping and build suitable confidence
 Invisible to Invincible : Narratives of Gender Justice 319

in hospital protocols among parents. The identification protocols would therefore

have to be strictly followed, and the technological resources available would give
their persons due protection to both parents and children.
6. Conclusion:
6.1 Legal Consequences, Custody Challenges, and Hospital Liability in Baby
Swap Cases in India
In India, baby-swapping, whether intentional or unintentional, is considered to have
serious legal consequences, particularly in the domain of family law. There is no
specific legislation on baby switching; hence, courts have to rely on already-
existing laws like the Hindu Minority and Guardianship Act of 1956 and the
Guardians and Wards Act of 1890 to resolve custody disputes. Typical legal
consequences involve parentage, where judges are placed on the horns of a
dilemma because on one side stands biological relationship, and on the other,
emotional bonding with custodial parents. For example, in the case before the
Kerala High Court in 2018, Akhila v. State of Kerala24An incident of a hospital's
mixing up babies caused a long custody battle that culminated in the court's
decision favoring the child's psychological bond with the non-biological parents
over the DNA proof, citing "best interests of the child".
6.2 Implications for Family Law and Society in the Context of Baby
Swapping in India
The Indian baby-swapping incidents reveal glaring shortcomings in family law and
social structures, requiring unequivocal accountability from the medical and legal
professions. The emotional and social trauma these cases entail for the families
involved-that is, the biological parents, custodial parents, and the child-demand a
cry for reform. Courts regularly cite the "best interests of the child" doctrine, as in
the 2020 Bombay High Court case Sunita v. Maharashtra General Hospital25, with
the swapped child remaining with the custodial parents despite claims from the
biological parents: this trend highlights a societal preference for psychological
stability over genetic attachments, leaving biological parents high and dry without
any recourse in law, thus showcasing the inconsistency in family law.
This synchronization of the law could, however, create an opportunity to de-link
custody decisions from accountability of the hospitals. One way to do this could be
through some tagging system, as already proposed, or perhaps by DNA tests carried
out upon birth, whenever medical scams may occur to promote the well-being of
the child and reduce disruptions of societal order.
320 Invisible to Invincible : Narratives of Gender Justice

6.3 Recommendations for Future Research

Thus, the future study of baby swapping in India should target the aspects of
comparative legal analysis and psychological study to tackle this very complex and
multidisciplinary issue. The present case would cite the Supreme Court case of
Manju v. State of Rajasthan26 in 2015, which shows that case law in India relied
more on existing guardianship laws compared to South Africa, which has codified
child welfare policies.
Psychological impact studies are equally important. Developmental literature
indicates that children brought up with transferred identities contests, such as the
case of Kerala Akhila v. State of Kerala, may experience identity crises, suffering
psychological attachment, or trauma upon discovery. Aimed to understand the
long-term effects on mental health, family behavior, and social integration, which is
not currently covered in much literature.
Moreover, further research can study whether such measures as DNA testing in a
resource- constrained health system in India would be apt to implement. Pilot urban
hospitals or hotspots can yield pointers on efficacy and cost for using such evidence
to inform policy.
References :
1 BBC; South African mother's baby swap anguish (2015)
2 Manohar v. Apollo Hospital, Hyderabad Consumer Forum, 2018.
3 UN Convention on the Rights of the Child (CRC), Article 8.
4 Study on Hospital Errors in India.
5 Manohar v. Apollo Hospital, Hyderabad Consumer Forum, 2018.
6 Swapna Ghosh v. State of West Bengal, Calcutta High Court, 2020.
7 Laxmi Kant Pandey v. Union of India, AIR 1984 SC 469.
8 Juvenile Justice (Care and Protection of Children) Act, 2015.
9 Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.
10 Manohar v. Apollo Hospital, Hyderabad Consumer Forum, 2018.
11 S. Fatima v. State of Tamil Nadu (2019); Madras High Court.
12 Shamnad P.K. v. The Appropriate Authority Under Transplantation of Human Organs Act (2022)
13 UN Convention on the Rights of the Child, Article 7 (1989).
14 Michael H. v. Gerald D., 491 U.S. 110 (1989).
15 Re B (A Child), [2009] UKHL 47.
16 Mandet v. France, ECHR, Application No. 30955/12, 2015.
17 Consumer Protection Act, 2019, § 2(42), which defines healthcare as a "service," making hospitals liable for
deficiencies under consumer law. See also § 83, which allows compensation claims for negligence in
service delivery.
18 Spring Meadows Hospital v. Harjol Ahluwalia, (1998) 4 SCC 39.
19 Bharatiya Nyaya Sanhita, 2023, § 143, which penalizes acts of negligence causing death, including medical
negligence contributing to wrongful child-swapping cases.
 Invisible to Invincible : Narratives of Gender Justice 321

20 Juvenile Justice (Care and Protection of Children) Act, 2015, § 2(14) (definition of a "child in need of care
and protection").
21 The Hindu Minority and Guardianship Act, 1956, § 6 (designation of biological parents as natural
guardians).
22 The Guardians and Wards Act, 1890, § 17 (welfare of the minor as a paramount consideration).
23 Hospital Protocol Guidelines, 2022. (National Health Mission)
24 Akhila v. State of Kerala, Kerala High Court (2018).
25 Sunita v. Maharashtra General Hospital, Bombay High Court (2020).
26 Manju v. State of Rajasthan, Supreme Court of India (2015).


322 Invisible to Invincible : Narratives of Gender Justice

Irretrievable Breakdown of Marriage and the Hindu

Marriage Act, 1955
Nikita Tayal
Student Bennett University
ABSTRACT
Irretrievable breakdown of marriage refers to the situation whereby the married
relationship has been so damaged that there is a complete inability to make-up or
restore, which is why The marriage is effectively over. This ground of divorce is generally
accepted and recognized in many jurisdictions across the world; its absence within the
Hindu Marriage Act, 1955 stands out. This paper critically examines whether bringing
into the Hindu Marriage Act the irretrievable breakdown of marriage is consistent with
the Act's provisions and the overarching family law ecosystem in India.
In introduction, the paper presents a look at the Hindu Marriage Act, especially Section
13, which deals with the existing grounds for divorce like cruelty, adultery, desertion, etc.
The paper assesses those grounds. It highlights judicial practices about them and the
dilemmas confronted by the courts in dealing with cases where marriages have been
irretrievably broken down but not according to the letter of the Act. By examining
landmark cases and other judicial interpretations of Section 13, the paper contends that
these practices have proved inadequate to afford timely and proper remedies to persons
affected by marital breakdowns.
The paper then examines the social, cultural, and legal implications of recognizing
irretrievable breakdown as a divorce ground in India. The paper discusses the issue of
possible misuse of the ground for divorce, especially in a far-reaching country of different
cultural norms, and the potential impact on family situations, especially issues concerning
child welfare, alimony, and property settlement.
The paper makes recommendations on legislative reform, arguing that even though the
introduction of irretrievable breakdown of marriage as a ground of divorce would bring in
modernization to Indian family law, there should be safeguards to preclude its misuse and
protect equitable distribution in divorce proceedings. The paper emphasizes the need for a
balanced approach involving both individual autonomy and societal values, thus setting up
a path for establishing a more responsive and just legal framework for the dissolution of
marriages in India.
INTRODUCTION
The irretrievable end of marriage would mean that the bond of matrimony has
broken down irreparably and beyond evidence leaving no possible patch work of
reconciliation or restoration. It is alluded to as the legal ground for divorce in
various parts of the world such as the United Kingdom, the United States, and
 Invisible to Invincible : Narratives of Gender Justice 323

Australia, under whose laws a marriage may be dissolved if one of the partners
proves that the marriage had indeed ended irretrievably. The very essence of such
a concept is to make the process of divorce simpler in the sense that it realizes that
an individual cannot be pushed in a marriage which does not have any remittance
for repair for the betterment of the individual as well as for the institution called
marriage.
The Hindu Marriage Act, 1955, governs marriage, divorce, and related matters for
Hindus in India. The Act provides for certain grounds for divorce under Section 13,
such as cruelty, adultery, desertion, and conversion among many others. However,
it does not recognize at all "irretrievable breakdown of marriage" as the ground and
so offers no legal remedy to the people living an irretrievably broken marriage if
they cannot find application of other grounds. Therefore, there has been a great
deal of discussion in legal circles about making this idea a part of the Indian law.
Very much related to this is the analysis as to whether including irretrievable
breakdown of marriage as a ground for divorce will be in consonance with the
Hindu Marriage Act. It is important to determine this because these changes bring
divorce laws into the modern context in India. Among the changing social
dynamics that are driving more and more families to different reconstructions and
possibly high divorce rates are factors like current societal changes over time; thus,
it makes it even more imperative to analyze whether the current legislative
framework finds itself fulfilling the needs of many unworkable married
individuals. The introduction of the doctrine could save time and emotional trauma
in divorce proceedings and follow a more pragmatic and humane path to an end of
marriage.
To study critically the dimensions of marriage irretrievably breaking down to the
Hindu Marriage Act, 1955 1, by analyzing existing provisions, judicial
interpretations, and case law, that is the intent of this paper. It will also compare the
legal frameworks of other jurisdictions which have included this ground for divorce
into their laws and evaluate the sociocultural and legal implications of such a
change in India.
RESEARCH METHODOLOGY
The study adopts a doctrinal legal methodology to evaluate whether the concept
of irretrievable breakdown of marriage is congruous with the provisions of the
Hindu Marriage Act, 1955. This involves an extensive investigation into Section
13 of the Act, which prescribes the grounds for divorce and identifies the
shortfalls in meeting cases of irretrievable breakdown of marriage. Cases of
324 Invisible to Invincible : Narratives of Gender Justice

interest such as Sarla Mudgal v. Union of India (1995) and K. K. Verma v. Union
of India (2000) will specifically be looked into in order to get an understanding of
how the courts have interpreted grounds for divorce as given today in cases where
the marriage has broken down with no attributable fault. Also, the research
examines how other jurisdictions, such as the U.S., the U.K., and Canada, have
dealt with irretrievable breakdown of marriage by using those jurisdictions as
avenues and understanding the benefits that may be derived as well as the
challenges of copying similar provisions for India2. Thus, by employing legal-
analyzation, case-law study, and comparative research methodology, it aims at
looking at whether such provision of ground would reflect better the reality of
contemporary marriage in India.
CONCEPT OF IRRETRIEVABLE BREAKDOWN OF MARRIAGE
An irretrievable breakdown of marriage refers to a situation where a marriage
degenerates to such an extent that it cannot be repaired and between the parties
any reconciliation is no longer possible. Such failures in marriage are regarded as
fundamentally failing and do not allow further continuance of the marital
relationship. This concept came into being with the idea that it is contrary to the
interests of justice as well as to the good of society to force people to live within
the bounds of marriage when the emotional, psychological, and/or physical bonds
between them have been irrevocably severed. Thus divorce based on irretrievable
breakdown of marriage gives the individual an avenue for disengagement from a
relationship that has already collapsed.
Historical Context and How It Has Evolved in Various Legal Systems
The notion of irretrievable breakdown of marriage came to prominence in the
middle of the 20th century, particularly in the various discussions surrounding the
modernization of divorce laws. Traditionally, obtaining a divorce in a lot of
jurisdictions was very difficult and it was only granted for a narrow category of
grounds such as adultery or cruelty. The reform movement of divorce laws started
off within the United Kingdom, with the Divorce Reform Act of 19693 enforcing
irretrievable breakdown as a ground for divorce, thereby making the dissolution of
marriage less dependent on fault and more concerned with the practical realities
of the relationship's failure.
In the United States, the introduction of "no-fault divorce" laws during the late
1960s and early 1970s-recognizing the irretrievable breakdown of marriage as one
of the legitimate grounds for divorce-was particularly noteworthy in California
whereby the Family Law Act 1969 4 was adopted. This initiative intended to subdue
the hostility of the divorce proceedings while making divorce accessible and
 Invisible to Invincible : Narratives of Gender Justice 325

equitable to the parties concerned. In a similar fashion, the Australian Family Law
Act 19755 was based on the irretrievable breakdown of marriage, shifting away
from the fault-based system.6
Why It Is Considered a Valid Ground for Divorce in Many Countries?
The inclusion of irretrievable breakdown as a ground for divorce has gained a wide
reception throughout different legal orders due to its acceptance of the evolution in
attitude toward marriage as a modern institution and the values associated with it in
society. Unlike the fault divorce system, which commonly, requires blame to be
assigned on the other spouse by the party seeking dissolution of the marriage, the
irretrievable breakdown method relies on practical considerations for the
dissolution of the marriage. It understands that marriages go wrong for a plethora
of reasons, not just because of one party's wrongdoing. Thus, this ground lends
itself to a less antagonistic and damaging resolution of divorce proceedings,
allowing the parties to heal and begin moving toward their futures without others
disillusioning themselves in prolonged and damaging legal entanglements.7
From another angle, the irretrievable breakdown of marriage has been espoused as
a valid ground for divorce in keeping with contemporary social values and attitudes
about personal freedom and autonomy, which stipulates that an individual should
not be forced to exist in an unhappy or dysfunctional marriage.
PROVISIONS OF THE HINDU MARRIAGE ACT, 1955
The Hindu Marriage Act, 19558, controls all the legal matters concerning a Hindu's
marriage and divorce mostly in the territory of India. Section 13 of this Act
provides grounds whereby either party can petition for a divorce. All these are
fault-based grounds where the conduct or action of one spouse amounts to just
cause for the dissolution of the marriage. The Act recognizes several other types of
specific grounds like adultery, cruelty, desertion, conversion to another faith,
mental illness, and so on. Among other things, Section 13 provides that either
spouse can seek divorce on the following grounds:
 Adultery (Section 13(1)(i)): A spouse may seek a divorce if the other has
committed adultery.
 Cruelty (Section 13(1)(ii)): A spouse may petition for divorce if the other
has treated him or her with cruelty.
 Desertion (Section 13(1)(iv)): A divorce can be granted to one spouse if he
or she is continuing from the other for a period of not less than two
consecutive years.
326 Invisible to Invincible : Narratives of Gender Justice

 Conversion to another religion (Section 13(1)(ii)): If one spouse accepts

another faith from Hinduism, the other spouse may file for a divorce.
 Mental illness (Section 13(1)(iii)): If one spouse suffers from mental
problems that make the marriage insupportable, the other spouse can apply
for a divorce.
These grounds focus on faults-based criteria, wherein the petitioner must prove to
have miscarried on the part of the other spouse to better dissolve the marriage.
In this regard, the consideration of the Common Grounds for Divorce looks at
Adultery, Cruelty, Desertion, etc. These are all the grounds for divorce included in
section 13 hence has been the subject of much judicial construction as well as
application in India.
 Adultery: Under section 13(1) and (i), adultery is an act of divorce; still, to
be proved by the petitioner it is needed that the respondent is keeping
voluntary sexual relationships with someone other than the wife or husband.
As in N. G. Dastane v. S. Dastane9 , the Supreme Court of India provided
that a petitioner need prove not only the physical infidelity but the
commission of sexual intercourse outside the marriage itself is ordinarily
deemed sufficient to bring the case of adultery under section 13.
 Cruelty: The ground of cruelty as per Section 13(1)(ii) states that one
spouse must be able to prove that the other spouse's behaviour has created a
reasonable apprehension of harm, either physical or mental, to the other
spouse. Thus, in V. Bhagat v. D. Bhagat10, the Supreme Court sufficient
placed cruelty in terms of not only physical harm but also mental and
emotional abuse by one spouse towards the other.
 Desertion: It states that desertion is leaving without cause one spouse for
another of a minimum period of about two years continuously. The case
thus clarifies the ratio of the joined matter, which is S. N. V. S. R. R. R. v.
S. S. R11 , in that the deserted partner should not have consented to the
desertion and that there is no reasonable cause for leaving.
Burden-proof becomes very heavy for the petitioner, but these are very important
factors according to which marriages are to be dissolved.
Limitations of the Current Provisions in Addressing Cases of Irretrievable
Breakdown
An intrinsic limitation in the Hindu Marriage Act of 1955 is that it leans heavily on
the ground of fault for the dissolution of marriages. While the current provisions
 Invisible to Invincible : Narratives of Gender Justice 327

do offer grounds for dissolution, they fall short in addressing a situation where a
marriage can be said to have broken down irretrievably but has no identifiable
"fault." This lacuna in the law is particularly salient when neither party is at fault
but the marriage has simply ceased to work.
A law without the provision for irretrievably breaking down a marriage essentially
puts individuals under pressure to remain in an unhappy marriage simply because
they could not prove one of the statutory grounds. In Sarla Mudgal v. Union of
India12, the Supreme Court spoke of the urgent need to reform divorce law,
pointing out the difficulty of bringing the concept of irretrievable breakdown into
the existing legal pattern.
Further, fault-based grounds can add to the misery, making it even more
challenging for people to seek divorce. Consider an abusive marriage from which a
spouse lacks any evidence to prove cruelty or desertion but cannot continue to live
under that situation.
Therefore the law in these cases does not offer relief timely or fairly whenever a
marriage has already broken down but not through any easily assignable fault.
If one really considers the position of the Hindu Marriage Act, 1955, then the Act
provides for which an escaped marriage can be declared to be dissolved; however,
no provision is available whenever the breakdown of marriage comes to the state of
no return, where substantially no one is at fault. This shortcoming has led to
demands for the introduction of irretrievable breakdown of marriage as one of the
statutory grounds for divorce in India.
JUDICIAL INTERPRETATION AND CASE LAW
Landmark Judgments Where Courts Had to Apply the Existing Grounds for
Divorce Despite the Marriage Being Irreparably Broken
The Hindu Marriage Act of 1955 does not recognize "irretrievable breakdown of
marriage" as a ground for divorce, but there are various judicial pronouncements
pronouncing and dilating upon the breakdown of a marriage beyond repair. The
courts have relied on the grounds for divorce under Section 13, but acknowledged
that in many cases where the marriage has reached a point of no return, it would
therefore seem useless to try and reconcile.
In K. K. Verma v. Union of India13, the Supreme Court observed the rising
instances of divorce and the consequent needs for reform in the law with reference
to the equally growing social reality of irretrievably broken marriages. While the
actual merits of this case were not concerned with the principle of irretrievable
328 Invisible to Invincible : Narratives of Gender Justice

breakdown of marriage, it did hold that the present grounds for divorce might
really be inadequate for addressing the practical situation of some relationships
that had broken down beyond repair. This was to spur further discussion on
whether the law should be amended to recognize irretrievable breakdown as an
independent ground for divorce.
S. P. Gupta v. Union of India14 was another case where the Court validated the need
for transformation of the laws to suit adaptation to changing times in society with
the indirect reference to a modern approach to divorce law. Although an
appointment case, it referred to changes in society which ought to be catered for by
law and that it is surely conceivable to extend this consideration to family law,
particularly in regard to divorce. The judgments that followed echoed this view to
the extent of indirectly advocating legal recognition of the irretrievable breakdown
of marriage to keep pace with the changing lifestyles of family life in India.
DISCUSSION ON JUDICIAL ACTIVISM AND ITS ROLE IN SHAPING
THE INTERPRETATION OF THE LAW
Judicial activism has played a pivotal role in shaping the interpretation and
evolution of divorce law in India, particularly in cases that involve the
irretrievable breakdown of marriage. The Indian judiciary, particularly the Supreme
Court, has been proactive in interpreting the existing legal framework in ways that
adapt to changing social realities, even in the absence of legislative reform.
In V. Bhagat v. D. Bhagat15, the Supreme Court extended the interpretation of
cruelty to include mental and emotional abuse, recognizing that the absence of
physical violence did not mean a marriage was not unbearable. This broadened
interpretation helped address cases where the marriage had broken down, but there
was no physical cruelty. Similarly, in K. K. Verma v. Union of India (2000), the
Court signalled the need for legal reform to address the issue of irretrievable
breakdown of marriage, showcasing judicial recognition that existing provisions
were inadequate for modern marital disputes.
The role of judicial activism in India can also be seen in its willingness to interpret
the law flexibly in cases where marriages have irretrievably broken down but do
not fall squarely within the existing grounds for divorce. This activism is crucial, as
it ensures that the legal system remains responsive to the needs of individuals who
are caught in situations where their marriages are beyond repair but cannot prove
fault under current statutory grounds.16
Moreover, the judicial interpretation of laws related to divorce has influenced
discussions on the necessity of legislative reform. The courts have repeatedly
 Invisible to Invincible : Narratives of Gender Justice 329

suggested that the legal framework governing divorce needs to evolve in line with
changing social conditions.
Judicial activism has, therefore, not only influenced the interpretation of the law but
has also been a catalyst for broader calls for reform, particularly the inclusion of
irretrievable breakdown of marriage as an explicit ground for divorce.
ARGUMENTS FOR AND AGAINST INCLUDING IRRETRIEVABLE
BREAKDOWN IN THE HINDU MARRIAGE ACT
Arguments Supporting Proponents
1. Speedy Divorce Process
Perhaps the most valid of the proponents' arguments for including irretrievable
breakdown of marriage among the grounds for divorce is that it would facilitate
speedy divorce. The grounds presently available under the Hindu Marriage Act,
1955, although fault-based, typically result in prolonged and acrimonious
divorce proceedings. For instance, any allegation of cruelty or adultery requires a
long inquiry and trial; the result is another round of emotional trauma for the
parties. By introducing irretrievable breakdown into this ground, it will enable the
courts to straighten out processes and offer a faster, simpler, and better legal
remedy for the people whose marriage has achieved an irreversible collapse. Thus,
it can actually lessen the adversarial nature of divorce and let people move on with
their lives.
2. Protection Against Lifelong Unhappy Marriages
Yet another argument is that it would be possible to protect the lives of
individuals in unhappy and unfulfilling marriages by irretrievable breakdown being
so made as a ground for divorce. In cases where both spouses agree that their
marriage failed, or no longer has any possibility of being reconciled, the law should
provide an avenue for divorce without fault on one of the parties. Not making a
person prove fault in that kind of situation would keep people from being
enmeshed in toxic relationships harmful to their mental and emotional well-
being. To rip a marriage open because it is not mendable should give people a
chance to start fresh and keep from a family-nurtured harmful environment.
3. Modernizing Family Law
The proponents say that family law, much like other areas of the law, must
reflect the changing social realities in India. The notion that marriage is a lifelong,
sacrosanct bond is being questioned, especially in a society with ever-fluid
relationships and family borders. The entry of irretrievable breakup into the
grounds of divorce reflects contemporary attitudes toward marriage, which
330 Invisible to Invincible : Narratives of Gender Justice

prioritize individual happiness and autonomy above traditional notions of marital

permanence. And it will also make law Indian with respect to the world because
many countries have already allowed this ground within the fold of divorce on the
practical basis of applying it to modern relationships.
Arguments of the Opponents
1. Easy Divorce from the Perspective of the Opponents
Opponents argue that if irretrievable breakdown of marriage were recognized as a
ground for divorce, it would have made divorce too easy for people who want to do
it." They argue that couples, burdened with temporary dissatisfaction or
differences, would rush into divorce themselves without properly sitting down to
resolve their differences. They further fear that divorce without fault will trivialize
the institution of marriage itself by allowing couples to easily run away once
marital difficulties arise.
2. Erosion of the Sanctity of Marriage
Another major concern is the erosion of the sanctity of marriage. Marriage is
accepted as holy, eternal, and permanent, especially in Hindu law. The very
introduction of the concept of "irretrievable breakdown of marriage" as a ground
for divorce would severely undermine that traditional perception, signifying that
marriage is nothing more than a contract that can be terminated at will. The same
critics suggest that this will be detrimental to the dignity of the institution of
marriage, which will thereby put society in a state of dilemma between seeing
marriage as a 'grounded' nature on contract or as sacred.
3. Lack of Societal Readiness
Opponents argue that Indian society is therefore not yet ready for this reform.
Traditional values still maintain considerable weight in India, and the introduction
of the irretrievable breakdown of marriage could have unforeseen consequences.
These consequences would be felt particularly in rural and less educated areas;
here, people may not fully comprehend the implications of this change and use its
rationale to dissolve marriages without considering its implications. Even societal
pressure to keep a marriage-from granting divorce in inter- generational unions-
might come in the way with recognizing irretrievable breakdown.
CONCLUSION
Hence, the inclusion of "irretrievable breakdown of marriage" as a ground for
divorce under the Hindu Marriage Act, 1955, acknowledges the importance of
practicality combined with humanity in dealing with the realities of modern
marriage. Supporters would argue, however, that it enables the expeditious disposal
 Invisible to Invincible : Narratives of Gender Justice 331

of divorce proceedings so as to enhance the protection of happiness for persons

from the tyranny of interminable unhappy marital relations, whereas detractors
argue that the same would disintegrate the very sanctity of marriage and put a
premium on hasty divorces. Nonetheless, in the midst of legitimate concern, the
sacrifice of sanctity in public should therefore be recognized in the judicial
interpretation. Stipulating mediation or counselling alongside legislative
amendments for recognizing this ground could enable a middle path between
modern dynamics and the values of society, thus developing a family law in India
that is more just and responsive.
The argument that detractors raise is valid; it does seem that, on the whole,
weakening marriage as an institution can potentially foster a culture of impulsive
separations and thus work against the traditional values that consider marriage a
lifelong commitment. Those against it warn of the danger of turning the serious
covenant of marriage into a contract that can be dissolved at will.
Yet, in this very interplay between safeguarding the sanctity of marriage and
recognizing altered social realities, it becomes necessary for the judiciary and the
legislature to work together towards a more moderate solution. With the
acceptance of irretrievable breakdown as a legitimate ground for divorce-perhaps
with procedural safeguards-India may find itself moving towards a more
progressive and humane jurisdiction for family law; one that does affirm justice, in
the letter and spirit, in favour of the dignity of the person, the psychological welfare
of the individual, and the relativity of human relationships.
References :
1 Hindu Marriage Act, 1955 (India), Section 13
2 J. D. M. Derrett, Introduction to Modern Hindu Law (4th edn, Oxford University Press 1999
3 Divorce Reform Act 1969 (UK), Section 1
4 Family Law Act 1969 (California), Section 4000
5 Family Law Act 1975 (Australia), Section 48
6 White v. White [2000] 1 AC 596 (House of Lords)
7 M. G. Bridge, The Family in Law (Oxford University Press 2008)
8 Hindu Marriage Act, 1955 (India), Section 13
9 N. G. Dastane v. S. Dastane (1975) 2 SCC 326 (Supreme Court of India)
10 V. Bhagat v. D. Bhagat (1994) 1 SCC 337 (Supreme Court of India)
11 S. N. V. S. R. R. v. S. S. R. (1975) 3 SCC 126 (Supreme Court of India)
12 Sarla Mudgal v. Union of India (1995) 3 SCC 635 (Supreme Court of India)
13 K. K. Verma v. Union of India (2000) 6 SCC 672 (Supreme Court of India)
14 S. P. Gupta v. Union of India (1981) 1 SCC 87 (Supreme Court of India)
15 V. Bhagat v. D. Bhagat (1994) 1 SCC 337
16 M. P. Jain, Indian Constitutional Law (7th edn, LexisNexis 2014)


332 Invisible to Invincible : Narratives of Gender Justice

Al, Gender, and Design Justice in the Gender Panopticon

Ashutosh Mishra
Designation- Ph.D. Scholar, Bennett University Greater Noida (India)
Co-author - Arma Malik
Designation- Ph.D. Scholar, Bennett University Greater Noida (India)
Abstract
This article contends that we are living in a contradictory historical moment when it comes
to the intersection of gender and technology, especially as it relates to the LGBTQ+
(lesbian, gay, bisexual, transgender, and queer) communities. It bases this claim on
recent research from data scientists and technologists. The law is becoming more and
more transparent about gender identities and fluidity. Still, at the same time, there is an
increasing reliance on surveillance technologies that are utterly incapable of going beyond
the binary distinction between male and female. In the modern era, when we are subject
to an unprecedented level of surveillance both gender-related and not these technological
limitations become even more problematic. The outcome erases nonbinary and
transgender populations and fails to integrate LGBTQ+ communities when a binary
system of gender combines with the binary nature of code. We contend in this article that,
based on knowledge from a broad range of studies on artificial intelligence technologies
such as facial recognition, automated body scanners, and social media content filtering—
we must confront the fact that the relationship between gender and Al is far more
nuanced than the law currently acknowledges. Technology companies, as well as various
courts, colleges, and workplaces, need to recognize that the binary assumptions
surrounding male and female identity are out of date for some people and frequently do not
adequately represent the complexity of LGBTQ+ identity formation today. How technology
can and should react to this complexity is the question that legislators and legal experts
should be asking. In the last sections, we address some of the legal ramifications of these
surveillance technologies, examining both the law and technological design, and we move
on to normative options to foster greater gender self-determination and equality.
Key Words – AI, Gender Justice, LGBTQ, Scientists and Technologists.
Introduction: The Intersection of Gender and Technology
Under the "Gender Panopticon" framework, the convergence of AI, gender, &
design justice offers important insights into how design procedures can support or
undermine existing inequities. Gheaus draws attention to the fact that hospital
rationing by "ordeals" can have varying negative effects on women, highlighting
the necessity of design that encourages gender equality by considering the varied
effects on different groups of women.1 To reduce the dangers and negative effects
associated with systemic inequalities, Costanza-Chock develops this idea by
 Invisible to Invincible : Narratives of Gender Justice 333

defining design justice as a critical strategy that tackles the matrix of domination
and advocates for equitable involvement in design processes. By depicting a
panopticon that imposes control and monitoring over women's lives, Clarke's story
highlights the gendered nature of governmental interventions and emphasizes the
need for design techniques that challenge such repressive frameworks.2 All this
research supports a design justice paradigm that actively recognizes and challenges
the gendered power and control dynamics present in society systems. 3 The study
examines the intricate connection between gender and technology, paying special
attention to LGBTQ+ groups. It draws attention to a paradoxical situation in which
judicial systems are depending increasingly on surveillance technology that
supports a binary understanding of gender while also growing more accepting of a
range of gender identities. The authors contend that nonbinary and transgender
people are effectively erased from the public eye by modern technology like facial
recognition & automated body scanners. Considering the changing notion of
gender, the study urges a revaluation of how legislation and technology may adjust,
highlighting the importance of design justice that upholds equality and individual
autonomy. The authors hope to clarify the shortcomings of current technology and
suggest normative options for a future that is more equitable by examining several
studies. The writers present an overview of the present historical moment involving
gender, technology, and LGBTQ+ populations. They hope to shine a light on the
shortcomings of current technologies and offer normative alternatives for a more
equitable future through their analysis of numerous research.
Sexuality, gender, and sex theories
In discipline and punishing, Foucault offers a critical assessment of the power
structures in Western nations during the 1970s as well as a genealogy of criminal
punishment. Foucault's main claim is that the contemporary jail is a prime example
of disciplinary power since it entails ongoing surveillance and how inmates
internalize its rules and the surveillance process itself, turning disorderly inmates
into compliant and ordered individuals. Despite having their roots in jails in the
early nineteenth century, discipline eventually permeated other establishments like
schools and eventually the public, creating the so-called "great carceral network."
Nevertheless, Foucault ends by challenging this interpretation of the rehabilitative
jail, contending that rather than normalizing inmates, prisons create a class of
criminals. It is discovered that the purported normalizing effects provided by
disciplinary imprisonment are a smoke screen used by prisons to identify inmates
as unique, inevitably fail to address them, and because of this failure, justify the
stronger and more comprehensive use of disciplinary authority. The first part of
The History and Sexual and Foucault's essay on Herculine Barbin addresses sex
334 Invisible to Invincible : Narratives of Gender Justice

and sexuality-related topics. Within The History for Sexuality, Foucault (1990)
contends that our conceptions of sex and sexuality are artificial, having been
created by systems of truth and authority. Foucault rejects the notion that there are
biological distinctions between males and females before this realization. Rather,
Foucault claims that the idea of sex—a "fictitious unity" of anatomy and
sensations—was created by discourses on sexuality. Foucault disavows the notion
that authority suppresses sexuality since, since the 19th century, sexuality has been
a privileged arena for the disclosure of personal truths, especially in the context of
Catholic confessional practices. Rather, he contends that medical discourse and the
need for discussion about it shape sexuality as well as sexuality is a component
of larger power structures he refers to as "bio-politics."
The Machine Learning of Gender
We are automatically given an identity from the moment of our birth that
corresponds with the sex a doctor determines for us—that is, male or female. Even
though most people think that chromosomes—XX for girls and XY for males—
determine sex, XY is typically assigned at birth by a doctor based on a visual
examination of the baby's genitalia. 4 Corrective surgery may be used on people
who do not fit under these visual boundaries to ensure that their bodies meet
expectations of what is male as well as what is female, frequently by a
physician's overwhelming willpower. Courts and administrative organizations
require bodies to be identified as male or female and to be classed and labeled as
such, as Chinyere Ezie notes. Historically, the way our sex classification systems
have worked has been as a systemic imperative: we are repeatedly required to
identify the gender that the state has assigned us, regardless of whether people
agree with the assignment, or the categorization process itself. Furthermore, the
state's complex system of sex categorization is frequently applied to a variety of
documents, including birth certificates, driver's licenses, passports, and additional
identity-related records, as well as federal data collection. It has been utilized,
among other things, to impose laws prohibiting same-sex marriage, bar women
from serving in military combat, and manage institutional systems involving sex
segregation acts.5
Gender Discrimination (GD), Artificial intelligence (AL), and Artificial
Intelligence (AI)
The increasing use of machine learning (MI) in daily life is essential to changing
the way we live and work as the globe continues to change.6 Artificial intelligence
is automating and replacing more occupations.7 However, the nature of the work
and the tasks carried out determine whether occupations are replaced or not. Since
 Invisible to Invincible : Narratives of Gender Justice 335

low-skill employment may be programmed and applied, low-skill positions like

office, administrative support, and sales are more likely to be replaced by AI.
Workers in these positions may be moved to handle other jobs that could be
completed from home, or if they are sufficiently skilled, they could be promoted.
Any form of organization may experience this kind of substitution and
replacement. The field of education is one of them. AI can serve as a Decision
Assistance System, for instance, by making creative recommendations on ways
to improve the efficacy of e-learning. Additionally, AI might be used to create a
system for intelligent tutoring that offers users individualized experiences. 8 Is the
work environment affected in any other ways as the number of jobs gradually
declines and AI replaces human labor? The topic of gender equality and
discrimination is one of the problems associated with employment. Even though
gender equality is a universally recognized fundamental right and value, sex-based
discrimination is still a problem in modern society. AI generates potential but also
presents challenges for non-discrimination and gender equality. Given the
confluence of numerous digital technologies and their impact on both our personal
and professional lives, we must consider the relationship between AI & gender
equality.9 Machine learning, which teaches a machine to learn on its own, has
developed because of artificial intelligence. Data from earlier operations that
completed similar tasks or data from the Internet are provided to facilitate the
"teaching" process. The machine will pick up a task according to the method it was
trained; if it was purposefully or accidentally programmed to, say, favor a
particular race or gender over another for employment, it will act accordingly. Due
to its training, the computer will inherit a bias. Kate Crawford's statement, "Like all
technologies preceding it, machine learning will reflect the principles of its
creators," succinctly summed up the root cause of gender prejudice in AI.10 In
light of this, it may be necessary to address the following query: how can
executives make sure that AI prevents gender prejudice in their companies?
Learning gender-based correlations have been reviewed in machine learning to
combat bias against women, and algorithms have been changed to eliminate
prejudices. Since men make up the bulk of AI engineers, machine learning will
function more like a domineering male figure. Women's chances of being
employed or promoted may be impacted by the lack of gender diversity in AI-
related employment, which may be seen in the tools developed. To prevent this
kind of discrimination, it is crucial to support women as they pursue careers in
machine learning and artificial intelligence.11 Furthermore, companies ought to
consider this reorganization of jobs ahead of time to prevent a sudden
deterioration of the gender balance inside the company due to a wave of layoffs
336 Invisible to Invincible : Narratives of Gender Justice

brought on by technological advancement. The digital revolution is also included

as one of the significant changes that have occurred since 1995 in the UN Secretary
General's evaluation and appraisal of the Beijing Declaration and the Platform for
Action implementation, which was completed in December 2019. It acknowledges
the significant impact that technology advancements— such as artificial
intelligence, automation, and robotics—have on women's rights and gender
equality across the board. The decades of studies about the connection between
views on gender and language, however, are not given much thought. Gender
theory, specifically feminist linguistic theory, should be taken into consideration
when approaching machine learning from textual data as this could help to
prevent gender bias from being learned and save the need to change the
algorithms.12 By connecting AI to deployment, it is anticipated that AI would
lessen gender discrimination in workplaces, more research by connecting AI to
deployment, is anticipated that AI will lessen gender discrimination in workplaces;
however, further research is required to support this theory.
Gender equality and artificial intelligence are two topics that still require a great
deal of work. Over time, new best practices may emerge, and some old ones for
handling opportunities and challenges may become obsolete. As a result, even if
some best practices may be customized for a particular member state's setting,
member states should routinely share these best practices to encourage others.13
Examining the Gender Panopticon
Reina Gossett, Eric Stanley, and Johanna Burton observed in their critically
acclaimed volume Trap Door the irony of the current situation—that while we live
in a transgender- positive world, we are also persistently violent against transgender
people.14 As they put it: Transgender and gender nonconforming people, especially
those who are economically disadvantaged and/or people of color—the very people
who through their lives and labor establish the groundwork for the movement—
finally receive little help or protection from the promised “positive representation."
regarding the depiction of this visible moment. Although transgender persons
frequently have access to a multitude of "doors" leading to visibility, materials, and
acknowledgment, there are also a multitude of "traps" since accommodating forces
only function to the extent that they reproduce (or neglect to question) preexisting
power structures. Using the idea of a door that locks as a metaphor, we would argue
that privacy also functions as a kind of protective trap door, offering little in the
way of improved quality of life. of the LGBTQ+ community and doesn't truly
address the gender panopticism that controls everyone. The panopticon of gender,
as this article has indicated, impacts everyone; it suggests and upholds a uniformity
 Invisible to Invincible : Narratives of Gender Justice 337

and limited to the gender roles that dictate our collective existence.15 But the
LGBTQ+ group is the one that is most severely impacted, with transgender and
nonbinary people being among the most severely impacted.
1. The Panopticism of Gender
Although there is a lot of research on the panopticon—and a range of
panopticons—in the literature on surveillance. This article has suggested that the
convergence of technology for surveillance with social media, AI, biometric
surveillance, and other technologies has resulted in a world known as the gender
panopticon, where opportunities for observation and classification have been
established. monitoring of gender starts with a centralized governmental entity and
transforms into a decentralized system among private entities, and then
participates in the monitoring, classifying, and organizing. Once more, the
panopticon's powers are tracked by this change from public to private observation.
Yet the possibility of censorship, erasure, including self-censorship is also
associated with classification mechanisms. Thus, the biggest price of panopticism
is associated with How continuous monitoring encourages self-censorship and
grouping. It's also critical to understand how panopticism varies from conventional
methods of control and discipline. The initial intention of the panopticon, as
acknowledged by Foucault and others, was not to establish a society in which
people were constantly observed and subjugated.16
2. Gender Panopticism's Negative Effects
We list at least three distinct kinds of harm brought about by gender panopticism in
this article.17 Subjective harm is one kind of harm that results from uninvited
surveillance and can range from minor discomfort when a security camera is
present to far more severe harm like severe pain and misery. Think about the
reports that the hashtag #travelingwhiletrans is generating. Travelers who identify
as transgender or nonbinary have higher expectations regarding search, sorting, and
monitoring than other travelers. Furthermore, as the panopticon foresaw, the sheer
perception of observation—that is, a simple fear of surveillance—can be sufficient
in this instance to cause actual injury. Actual observation is not necessary for actual
harm to occur. What consequences result from automated misrecognition
techniques? The harm caused by over- or underrepresentation, which implies the
erasure or discrimination of trans and nonbinary individuals, is one of the resulting
costs.18 Stereotype replication is a different type of injury. Deviant, incorrectly
classified, or outlier data are the reasons behind their exclusion from the dataset.
Additionally, even though they may not fit into either category, individuals who
are included are portrayed as cisgender or as belonging to the binary. Differentials
338 Invisible to Invincible : Narratives of Gender Justice

in the quality of services are the subject of another type of injury. Entire
communities are deprived of the same possibilities and responsibilities as everyone
else when they vanish from datasets. Because of this, many trans people carefully
control how they appear on social media, as the panopticon mandates. Concern for
their online persona goes beyond how they express their gender externally.
nonetheless, to the material created by nonbinary or transgender people and to their
correspondence via the internet. Many nonbinary or transgender people express a
requirement to continuously control their internet presence and their daily activities
to prevent harassment, indicating worries about their security on a physical level.
Scholar Alice Marwick claims that because young people, women, and LGBTQ+
people are more likely than other groups to be victims of online harassment, these
groups frequently self-censor their information, which results in a lesser volume of
content created by these groups. Furthermore, most white guys who develop
online systems along with social media platforms do not create social media that
safeguards against online abuse since they do not experience harassment in the
same way.19
3. Is There Enough Privacy?
Naturally, it is significant to highlight that the near-total lack of an exhaustive set of
privacy protection norms in federal law has contributed to the heightened
conditions of monitoring and misrecognition. Our comprehension of privacy and
inherent entitlements is primarily derived from case law, making it both confusing
and vague, therefore, making it challenging to apply in a particular situation.
confronted by people who are in front of monitoring equipment. Like this, the
article raises issues with various forms of privacy invasion as well as various
forms of surveillance Physical search, biometric monitoring, and intrusion
concerns all center on the idea of bodily privacy, which is somewhat connected to
informational privacy. On the other hand, social media raises serious questions
regarding the privacy of information (and has little to do with private bodily areas).
However, it could be appealing to design a strong privacy safeguard for nonbinary
and transgender people. But there are a few drawbacks to this tactic. As we go into
greater detail below, first, Gender self- determination is not usually associated with
stronger privacy, and the idea of gender self- determination, whenever it occurs in
case law frequently operates under a gender binary paradigm. While that was are a
select few states that have chosen to use nonbinary categorization. are scarce in
comparison to the array of methods via which how the federal system functions and
enforces a binary structure. Second, when it comes to data privacy, we observe
similar flaws, most notably that the law's ability to stop technology's encroaching
power to control both our public and private lives is constrained. Face recognition
 Invisible to Invincible : Narratives of Gender Justice 339

has been outlawed in certain cities, such as Oakland.20 There are few legal
protections, which hinders many other legal possibilities for protection. Naturally,
there are privacy concerns with biometric data. quite well-documented. Regulations
controlling the gathering, storing, and application of biometric data have also been
passed by numerous governments data.21
Conclusion
The study delves into the correlation between gender and imprisonment,
specifically examining how confinement might serve to scrutinize masculinity and
homosocial environments, instead of exclusively emphasizing the experiences of
women in confinement. By stressing that rigid notions of masculinity also imprison
males, it challenges the standard feminist paradigm that sees gender as a prison
solely for women. The work refers to Judith Butler's notion that gender defines
performance, proposing that people become imprisoned by the constant need to
affirm their gender identity. The idea of "real" masculinity, as Pierre Bourdieu
defines it, is explored. It suggests that achieving masculinity is a never-ending task
that keeps people stuck in an endless process of gender signifying. Overall, the
paper makes the case for a more expansive interpretation of gender confinement,
highlighting how cultural norms and expectations impact the identities of both men
and women. In conclusion, the intersection of AI, gender, and design justice within
the context of the "Gender Panopticon" underscores the critical need for ethical,
inclusive, and intersectional AI development. As AI technologies increasingly
influence societal norms and power dynamics, these systems must be designed
with an awareness of the unique challenges faced by marginalized groups. By
cantering design justice principles and prioritizing the inclusion of diverse
perspectives, particularly those of women and gender minorities, AI can move
beyond reinforcing existing inequalities and instead serve as a tool for social
transformation. The future of AI lies in its potential to dismantle oppressive
structures, ensuring that technological advancements contribute to a more just and
equitable society for all.
References :
1 Becky Clarke & Leah Leah, The Panopticon Looms: A Gendered Narrative of the Interlocking Powers of
Welfare Intervention and Criminalization, Child & Fam. Soc. Work (2023), https://doi.org/ 10.1111
/cfs.13076.
2 Caitlin Leach, Design Justice for Design Bioethics, 21 AM. J. BIOETHICS 1 (2021),
https://doi.org/10.1080/15265161.2021.1915419.
3 Anca Gheaus, Ordeals, Women and Gender Justice, 37 ECON. & PHIL. 1 (2021), https://doi.org/10.1017/
S0266267120000280.
4 C. Ezie, Deconstructing the Body: Transgender and Intersex Identities and Sex Discrimination—The Need
for Strict Scrutiny, 20 COLUM. J. GENDER & L. 141 (2011).
340 Invisible to Invincible : Narratives of Gender Justice

5 Lars Z. Mackenzie, The Afterlife of Data: Identity, Surveillance, and Capitalism in Trans Credit
Reporting, 4 Transgender Stud. Q. 45, 46 (2017).
6 Jason Furman & Robert Seamans, AI and the Economy, 19 Innov. Policy & Econ. 161, 161-91 (2019).
7 Aaron Smith & Janna Anderson, AI, Robotics, and the Future of Jobs, Pew Res. Ctr., 6, 51 (2014).
8 Samer S. Abu-Naser, Abdelmalek Almasri, Yousef S. Abu Sultan & Issam S. Zaqout, A Prototype
Decision Support System for Optimizing the Effectiveness of eLearning in Educational Institutions (2011).
9 Jerry Kaplan, Artificial Intelligence: What Everyone Needs to Know (2016).
10 Kate Crawford, *Artificial Intelligence’s White Guy Problem*, N.Y. Times (June 25, 2016).
11 Niki Kilbertus et al., Avoiding Discrimination Through Causal Reasoning, arXiv Preprint
arXiv:1706.02744 (2017).
12 Susan Leavy, Gender Bias in Artificial Intelligence: The Need for Diversity and Gender Theory in
Machine Learning, in Proceedings of the 1st International Workshop on Gender Equality in Software
Engineering 14-16 (2018).
13 Advisory Committee on Equal Opportunities for Women and Men, Opinion on Artificial Intelligence –
Opportunities and Challenges for Gender Equality, No. March (2020).
14 Reina Gossett, Eric A. Stanley & Johanna Burton, Known Unknowns: An Introduction to Trap Door, in Trap
Door: Trans Cultural Production and the Politics of Visibility xv (Reina Gossett, Eric A. Stanley &
Johanna Burton eds., 2017).
15 See generally Sonia K. Katyal, The Numerus Clausus of Sex, 84 U. Chi. L. Rev. 389 (2017).
16 Michel Foucault, Panopticism From Discipline & Punish: The Birth of the Prison, Race/Ethnicity:
Multidisciplinary Global Contexts, Autumn 2008, at 1.
17 M. Ryan Calo, *The Boundaries of Privacy Harm*, 86 Ind. L.J. 1131, 1142–43 (2011).
18 Yang Trista Cao & Hal Daumé III, *Toward Gender-Inclusive Coreference Resolution*, in *Proceedings
of the 58th Annual Meeting of the Association for Computational Linguistics* 4568, 4570 (2020).
19 Alice Marwick, A New Study Suggests Online Harassment Is Pressuring Women and Minorities to Self-
Censor, Quartz (Nov. 24, 2016), https://qz.com/844319/a-new-study-suggests-online-harassment-is-
pressuring- women-and-minorities-to-self-censor [https://perma.cc/DC77-G6J4].
20 Sarah Ravani, Oakland Bans Use of Facial Recognition Technology, Citing Bias Concerns, S.F. Chron.
(July 17, 2019, 8:33 AM), https://www.sfchronicle.com/bayarea/article/Oakland-bans-use-of-facial-
recognition- 14101253.php [https://perma.cc/6RTJ-2GN4].
21 Jason B. Binimow, Annotation, State Statutes Regulating Collection or Disclosure of Consumer Biometric
or Genetic Information, 41 A.L.R. 7th Art. 4 (2019).