NEW DELHI — When Gita Hariharan's son was a year old, she went to the bank to open an account to save for his education. Yet she was jolted to find that, without her husband's approval, she'd forfeit the funds to him if the couple ever broke up.
Later, Mrs. Hariharan was shocked again when a federal bank would not let her independently buy Indian bonds for the boy. Legally, she was not considered a natural guardian of her child - so long as his father was alive. Under a set of traditional and largely unchallenged Hindu family laws, the husband is the sole guardian of his children.
To this educated and cosmopolitan working mother, the contradictions of the existing law seemed too great. Hariharan went to court.
"In this society you are made to feel you aren't really a woman unless you are a mother," says Hariharan, a novelist. "Yet then when it comes to the question of guardianship of your children, you are not recognized. It is absurd."
However, in an important victory for mothers here, on Feb. 18 the country's highest court agreed with Hariharan. The Indian Supreme Court in New Delhi affirmed that moms have a similar status to dads under Indian law. The mother "would undoubtedly be the natural guardian," according to the Indian Constitution, wrote Indian Chief Justice A.S. Anand, in a ruling that affects all Indian women, well over half of the country's 990 million people.
A limited effect on other issues
Given the broad range of women's rights issues pending in South Asia - which include a lack of property rights, or acknowledged problems arising from traditions like dowry debts where a bride can be physically harmed if she does not pay her husband enough money - the high court ruling is not a major landmark that will set all women's claims aright.
But the ruling will provide significant relief to mothers who are in abusive or exploitative marriages, and who are afraid to leave their husbands for fear they will lose access to their children, legal activists say. They also say it begins to address a whole network of traditional Hindu family laws and traditions that date back centuries giving males and husbands an inordinate amount of power inside the family.
"Until now, women in bad marriages have had to trade off all their other rights, including alimony, to get the kids," states Indira Jaisingh, a women's rights lawyer who argued Hariharan's case. "It is a common practice of emotional blackmail by the husband. But that will not be so easy now."
As a precedent in future cases, says Ms. Jaisingh, the ruling can be used by wives to claim, for example, part of the matrimonial home. At present, the ownership of the home is almost always in the name of the husband - an obvious disadvantage to the wife in a fragile marriage. It may also open another sensitive and testy legal legacy from the past: While the mother has not been the guardian of children born within a marriage, the mother is considered the legal guardian of children that are illegitimate.
Stopping short of other Hindu laws
Yet if the new law opens a door to further equality between the sexes in India, human rights activists here lament that the high court stopped short of actually striking down the Hindu laws that undergird gender inequality in the family.
Hariharan's lawyers tried to nullify two major pieces of legislation enacted by the Indian Parliament 43 years ago that govern marriage, minority rights, and guardianship.
During the period prior to and just after Indian independence in 1947, under the leadership of Prime Minister Jawaharlal Nehru, Indian constitutional law underwent what was then considered a progressive reform. The numerous disparate traditions and practices that existed throughout Hindu India were brought together, codified, and partly harmonized with a more modern constitutional tradition articulated by the ruling British.
Yet as noted by Jayanthi Natarajan, a female member of the Indian Upper House of Parliament, the Nehru reform "never intended to upset or substantially alter the power structure of the family." Women were to be given equal protection under the law, but only in the traditional role of wife and mother, and never on an equal footing with husbands or fathers.
For example, legally, crimes of rape and adultery are considered crimes against the husband if the woman is married. In cases of adultery brought by a husband, the wife is not allowed to speak in court. Property rights remain mainly with males in the family. Also, husbands are still considered "guardians" of their wives.
Even in the Hariharan ruling, the mother is not accorded absolute equal status with the husband. She is given the status of natural guardian in cases where the father is absent, delinquent, or abusive, and where she can argue her custody is in the best interest of the child.
Yet even the reforms of Prime Minister Nehru have not weathered the social and legal developments of the past 40 years, particularly the claims made by women in the West who have fought in courts and legislatures for equal status.
India is still struggling with orthodox personal laws. Hindus, Muslims, and Christians each have their own special laws that govern family relations and religious practices. Hindus make up 82 percent of India's population.
Impact in villages?
It is unclear how deeply the Supreme Court ruling on behalf of mothers will seep into a society where most women live at subsistence levels in villages governed by patriarchal sentiments. India in general is going through a period of increased religious conservatism typified by the Hindu traditional family-values platform of the ruling nationalist party. The minister of education this fall tried to ban the wearing of dresses that show schoolgirls' legs, and to require home economics for girls. The proposal was narrowly defeated and was later withdrawn, but the aim to place young girls in traditional roles persists.
To women like Hariharan, it is an open question as to whether the assumptions of gender equality they grew up with in post-independence India are not being rolled back.
Indian civil rights advocates take heart in a small but savvy generation of highly educated female college students who will not accept second-class status. They point also to a speedy ruling by the Indian Supreme Court in the Hariharan case, and the fact that even the opposing lawyer representing the federal bank agreed that the law needed to be changed.