Towards Gender-Neutrality in Indian Family and Criminal Laws: A Constitutional and Comparative Critique

Written by: Tejas Dattatray Patil, LL.M., Department of Law, Chhatrapati Shivaji Maharaj University, Navi Mumbai

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Supervisor: Dr. PANKAJ DWIVEDI– Department of Law, Chhatrapati Shivaji Maharaj University, Navi Mumbai.

Abstract

This article critically evaluates the gendered architecture of Indian family and criminal laws, arguing that many statutory provisions and their interpretations exhibit a patriarchal bias, contravening the constitutional guarantees of equality under Articles 14, 15, and 21 of the Constitution of India.[1] The study adopts a doctrinal and comparative legal methodology to assess the evolution, impact, and judicial interpretation of gendered laws in India, and proposes a roadmap toward inclusive, gender-neutral reforms. Historically, Indian legal frameworks have institutionalized gender norms influenced by religious doctrines and colonial codification.[2] Despite post-independence reforms, personal laws governing marriage, divorce, inheritance, and guardianship across religious communities continue to reflect systemic biases, particularly disadvantaging men and queer individuals.[3] For instance, Section 125 of the Code of Criminal Procedure[4] and provisions under the Hindu Marriage Act, 1955[5]are critiqued for assuming male obligation and female dependency. In criminal law, provisions like Section 375 of the Indian Penal Code and the Protection of Women from Domestic Violence Act, 2005, adopt a gender-specific victim-perpetrator binary that excludes male and LGBTQ+ survivors. Judicial trends reveal a fragmented approach—while progressive verdicts such as NALSA v. Union of India and Navtej Singh Johar v. Union of India embrace gender identity rights, others like Arnesh Kumar v. State of Bihar reflect ambivalence in safeguarding against misuse and ensuring equitable access to justice.

 Keywords: gender bias, criminal justice, Indian law, constitutional equality, legal reform

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Volume 1 | Issue 5

[1] India Const. arts. 14, 15, 21.

[2] Ratna Kapur, Gender, Sovereignty and the Rise of a Sexual Security Regime in International Law and Postcolonial India, 14 Melbourne J. Int'l L. 317 (2013).

[3] Flavia Agnes, Family Law: Volume I: Family Law and Constitutional Claims (OUP 2011).

[4] Code of Criminal Procedure, 1973, § 125, No. 2, Acts of Parliament, 1974 (India).

[5] Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955 (India)on