Discrimination goes beyond men versus women and minority versus majority, it could be women versus women as well based on their marital status. Often, this form of discrimination is subsumed by broader gender discrimination and doesn’t get the necessary recognition.
In any civilised society, male chauvinism cannot legally have any space. But it’s especially true for India where the Constitution has provisions for affirmative action in favour of women. Therefore, it must be reiterated that there cannot be any unjustified or arbitrary categorisation that seeks to discriminate against women. But given the equality principle enshrined in our Constitution, it is also equally true that anyone’s marital status cannot make them eligible for any special right.
Often such discrimination takes place in the form of protection, which is illusionary. So, what counts as marital status discrimination? And is it illegal to discriminate against individuals based on their marital status?
This form of discrimination involves denying certain employment benefits to an unmarried employee or firing an employee for some reason or the other once they get married. It could affect personal liberty or professional life. Both kinds of discrimination are not allowed being in violation of Article 21 of the Indian Constitution, which guarantees personal liberty, in addition to other fundamental rights protected under Articles 14, 15 and many other legal provisions.
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Air India Vs Nargesh Meerza
On 28 August 1981, a three-judge bench of the Supreme Court dealt with the issue of gender discrimination, which had the element of discrimination on the basis of marital status as well as reproductive rights. The important issues raised in the petition were whether the retirement of an air hostess in an event of marriage within four years of her service, first pregnancy, or her reaching the age of 35 — whichever occurs earlier — was unconstitutional or not.
The Air India Vs Nargesh Meerza case challenged certain discriminatory clauses of the Air India Employees Service Regulations. In a landmark judgement, the Supreme Court ruled the discriminatory clauses pertaining to retirement and pregnancy unconstitutional and ordered for them to be struck down with immediate effect.
It is sad that the 1981 judgment became merely a pronouncement on gender rights and could not become an eye-opener for lawmakers and persuaded enough to eliminate discrimination on the basis of marital status. Considering society of that era, it can be seen as natural because gender equality was still not ensured as the rights of women. We have come a long way from the 1980s and the scope of gender rights has increased significantly.
Through various enactments and interpretations by the Supreme Court in many judgments, the legal status of women’s rights has significantly improved and the same has been extended to ensure the rights of unmarried women as well. Currently, single women have got the same rights as married women in case of adoption, succession, and maternity benefits. It is remarkable that women have got equal decision-making autonomy to make significant choices regarding their own welfare.
Single mother, courts, society
A recent judgment of the Supreme Court regarding the reproductive autonomy of unmarried women in the X Vs The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr., has again reminded us that the struggle to ensure equal rights for women is not over. It highlights the fact that there are areas where laws are either not made or if made, do not factor women. Since it still has the element of mischief, the court has to plug the gap while giving purposive interpretation to the provisions of the law to ensure that women are not discriminated against on the basis of their marital status.
The struggle of women for equal rights as men is not only for materialist things, it is also for getting recognised as an individual, who can make choices for themselves. The judgment has ensured that there is no scope of discriminating against a woman on the basis of marital status. It has made it loud and clear that the Constitution respects individual choices and the same is available to everyone equally. Although one of the grounds taken by the petitioner, in this case, demonstrates our choices get influenced by societal notions. The petitioner doesn’t want to continue with the foetus in a society where becoming a single mother is tough. The petitioner had several reasons to make that choice and her choice was upheld by the court. But society also needs to accept that being a single mother is an equally respectable choice, the same as not opting to become one.
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Another area in which marital status discrimination has been prevalent is the law in compassionate appointments. The judiciary has been interpreting various statutes to eliminate such discriminations. But we continue to read judgments that show that the legislature is yet to get sensitised and make laws to ensure freedom of choice for women. Many judgments about the eligibility for compassionate appointment under various laws still demonstrate marital status discrimination, where married sons are considered eligible but not married daughters. Such laws show gender discrimination also in addition to discriminating against women on the basis of their marital status because similarly placed married men are eligible whereas married women are ineligible for the same. Hence, this is one area, where both stages of discrimination can still be seen. Purposive interpretation of all such laws is one way to solve the problem but that cannot ensure uniform application unless such discriminatory laws get amended.
Various high courts and states have suitably amended their laws to do away with the non-eligibility of unmarried daughters in compassionate appointments, but it is yet to become uniform.
Beyond compassionate appointments, there are several other laws applicable on personal life as well as laws at workplaces where equality still needs to be ensured. Only when it’s done can we look forward to a society where everyone can live as an independent individual.
The author is Advocate-on-Record in the Supreme Court of India, and former assistant professor, National Law School of India University (NLSIU), Bangalore. She tweets @Swarupama. Views are personal.
(Edited by Ratan Priya)