When Bharat Mata Seeks Justice

When Bharat Mata Seeks Justice: A Feminist Legal Analysis of Gender Justice,#

Judicial Overload, Public Trust and Institutional Reform in India#

I. Introduction: Bharat Mata and the Soul of Feminist India#

India is Bharat Mata - a nation imagined and revered as feminine. From the Vedic concept of Shakti to the Rajmata Jijabai Bhosale who instilled in Chhatrapati Shivaji Maharaj the values of justice, courage, and independence; from Ahilyabai Holkar, the philosopher-queen of Malwa who governed with compassion and rebuilt sacred sites across the subcontinent, to Rani Lakshmibai who gave her life resisting colonial domination - India's very identity as a civilisation has been shaped by the strength, dignity, and moral authority of its women. Savitribai Phule co-founded the first school for girls in 1848 and endured social hostility to assert that education was a right for every person regardless of gender. Pandita Ramabai Sarasvati challenged religious orthodoxies and devoted her life to the emancipation of widows. Sarojini Naidu, Annie Besant, and Captain Lakshmi Sahgal stood at the forefront of India's struggle for freedom and self-determination, demonstrating that Indian womanhood was defined not by passivity or subordination, but by leadership, courage, and unwavering commitment to national service. To dishonour the principle of gender justice is, therefore, to dishonour Bharat Mata herself.

This essay is a defence of feminism. We argue that feminism - rooted in equality, dignity, and justice - demands both robust legal protection for genuine victims and honest engagement with accountability, procedural fairness, and institutional reform. These are not contradictory demands. They are the same demand, understood in its full depth.

II. The Necessity of Women-Protective Legislation: Data and Reality#

Women-protective laws in India were enacted in response to documented, persistent, and in many cases lethal injustice. According to NCRB data, India reported 4,48,211 cases of crimes against women in 2023, compared to 4,45,256 in 2022. Crimes against women have consistently constituted approximately one-tenth of all IPC-registered crimes across the period 2017 to 2023. In 2022, the NCRB recorded 6,450 dowry deaths-a toll that claimed the lives of approximately 17 to 18 women daily as a consequence of dowry-related harassment. A 2023 study found that nearly three in five married women who registered domestic violence complaints also reported concurrent dowry harassment. These are not abstract statistics. They represent lives destroyed within domestic spaces where women historically had limited legal protection and few effective remedies.

The Supreme Court's 1997 judgment in Vishaka v. State of Rajasthan recognised that workplace sexual harassment violated women's fundamental rights under Articles 14, 15, and 21 of the Constitution, and laid down guidelines that remained the primary legal framework on this issue until the enactment of the POSH Act in 2013. The Domestic Violence Act of 2005 provided civil remedies, including residence rights and interim maintenance, to women who had previously been left without effective redress. These legislative achievements were earned through decades of feminist advocacy and must be unconditionally affirmed.

III. The Dual-Angle Reality: Genuine Suffering and Documented Concerns#

A rigorous feminist analysis must be capable of holding two realities simultaneously. The first is that genuine violence against women remains widespread, often underreported, and structurally entrenched. The second is that certain legal provisions, intended as shields for the vulnerable, have in documented cases been deployed as instruments of coercion.

On Section 498A of the Indian Penal Code - which criminalises cruelty by a husband or his relatives - NCRB 2023 data record 1,33,676 cases registered nationally under this provision, making it the single largest category of crimes against women and accounting for nearly 30% of all such cases that year. Despite this volume, acquittal rates remain strikingly high: in Karnataka alone, NCRB 2023 court disposal data revealed that close to 92% of all disposed cases of crimes against women ended in acquittals. Researchers at the Citizens for Justice and Peace have correctly cautioned that high acquittal rates do not automatically establish false complaints; they may equally reflect poor investigation, out-of-court settlements under social pressure, witness reluctance, and the inherent evidentiary difficulty of proving crimes that occur behind closed doors. These are valid observations that the essay fully acknowledges.

However, the Supreme Court of India itself, in the landmark judgment of Arnesh Kumar v. State of Bihar (2014), acknowledged that Section 498A had acquired "a doubtful position of pride amongst the dowry-related provisions" and observed that these provisions offered "the best ways to any wife to harass her husband and his relatives." The Court issued binding guidelines directing that arrests in cases punishable with up to seven years' imprisonment should not be made automatically, and that police must record specific reasons justifying the necessity of arrest.

What is particularly significant, and what the present essay examines as an analytical proposition, is the documented observation that these very guidelines were strategically appropriated. Police officers learned that rather than abandoning arrest, they needed only to record a reason - and "jewellery yet to be recovered from the husband" became the standard justification. The procedural reform, intended to protect individual liberty, was absorbed into the same coercive machinery it sought to restrain. This is not an argument against the guidelines; it is an argument for stronger, more structural institutional reform.

IV. Section 377, the Navtej Singh Johar Judgment and Matrimonial Weaponisation#

In Navtej Singh Johar v. Union of India (2018), a five-judge constitutional bench of the Supreme Court partially struck down Section 377 of the Indian Penal Code, decriminalising consensual sexual conduct between adults and affirming that sexual orientation is intrinsic to personal identity and dignity under Articles 14, 15, 19, and 21 of the Constitution. While the judgment was delivered in the name of individual rights, its consequences for married women have been deeply contested and warrant careful feminist analysis from both sides - particularly since it has been argued that the judgment, in protecting those whose conduct conflicts with India's cherished cultural and social traditions, simultaneously stripped married women of a critical legal protection they previously possessed.

The case for concern is serious. Prior to Navtej Singh Johar, Section 377 served, in practice, as one of the only available legal instruments through which married women could seek redress for non-consensual unnatural sexual acts committed by their husbands - acts that remained entirely beyond the reach of Section 375 IPC by virtue of the marital rape exception enshrined in Exception 2 thereto. The Navtej Singh Johar judgment, by holding that all sexual acts between consenting adults are constitutionally protected, effectively absorbed unnatural acts within the framework of Section 375, thereby extending the marital rape exception to cover them as well. Legal scholars writing in Live Law observed in 2019 that this rendered married women legally defenceless against non-consensual oral or anal intercourse by their husbands, since the marital exception now applied with equal force. The Chhattisgarh High Court subsequently extended marital rape immunity explicitly to Section 377, and the omission of Section 377 entirely from the Bharatiya Nyaya Sanhita, 2023 further removed a protective recourse that married women had previously been able to invoke. The Himachal Pradesh High Court, however, took a contrary view in May 2025, holding that the marital rape exception under Section 375 does not automatically extend to Section 377, and that non-consensual unnatural sexual acts within marriage remain punishable - a position that remains unresolved at the national level.

On the other side, it is analytically relevant that Section 377 was also strategically weaponised in matrimonial disputes. Unlike Section 498A, which carries a maximum punishment of three years, Section 377 prescribed punishment extending to ten years. Legal practitioners have documented that allegations of unnatural sexual conduct were routinely appended to matrimonial complaints because they required no medical corroboration at the investigation stage and exerted disproportionate coercive pressure upon the accused and his family. The Delhi High Court in 2025 held that Section 377 cannot be invoked against a husband for acts within marriage without an explicit allegation of non-consent. The Madhya Pradesh High Court similarly quashed Section 377 proceedings in a matrimonial case, finding the FIR to be motivated by matrimonial discord rather than genuine grievance.

We submit that both consequences are real. The feminist response must demand a coherent legislative solution: the criminalisation of marital rape under a standalone provision applicable to all non-consensual sexual acts within marriage, regardless of their nature. However, such legislation must be accompanied by robust procedural safeguards - mandatory preliminary inquiry before registration of complaint, compulsory medical examination of the complainant at the earliest stage, and a strict requirement of medical corroboration at the investigation stage before any arrest is effected. These safeguards do not weaken protection for genuine victims; they ensure that the legal process retains its integrity, that innocent persons are not subjected to coercive prosecution, and that the credibility of complaints filed under such a sensitive provision is established on a sound evidentiary foundation from the outset.

V. Judicial Overload: The Institutional Cost of Inefficiency#

As of May 2026, over 49.33 million cases are pending before Indian courts at all levels. The World Justice Project's Rule of Law Index 2025 ranked India at 114 out of 143 countries in civil justice, and 89 out of 143 countries in the criminal justice. Family courts, which handle matrimonial disputes including contested divorces, maintenance applications, custody battles, domestic violence complaints, and criminal cases running in parallel across multiple forums, are under particular strain. In Tamil Nadu, approximately 30% of all subordinate court cases involve divorce and inheritance matters.

Feminist analysis cannot be indifferent to this crisis. When courts are overwhelmed, it is genuine victims - women seeking urgent protection orders, survivors of violence needing immediate maintenance relief, children needing custody determinations - who wait the longest. Judicial efficiency and gender justice are not competing values; they are complementary ones. A family court that can adjudicate a domestic violence application within weeks protects women more effectively than one that defers the same application for years.

Section 9 of the Family Courts Act, 1984, mandates that family courts endeavour to assist parties in reaching settlement. Section 89 of the Code of Civil Procedure authorises referral to alternative dispute resolution. Mediation, when conducted with appropriate safeguards ensuring that women are not coerced into surrendering substantive rights, reduces court burden and preserves resources for cases that genuinely require adjudication. In a 2023 Delhi Family Court case, a disputed divorce was resolved through court-annexed mediation in four months rather than a projected three-year trial - producing a settlement that addressed child visitation, alimony, and mutual consent with fairness to both parties.

VI. The Quasi-Prenuptial Agreement: A Feminist Case#

Formal prenuptial agreements are currently held to be unenforceable in India, as courts have treated them as contrary to the sacramental conception of marriage under personal law. However, a Mumbai Family Court in 2023 held that while prenuptial agreements cannot be enforced as binding contracts, they may be considered as evidence to understand the intentions of the parties at the time of entering the marriage. A Delhi Family Court in the same year went further, recommending that such agreements be made compulsory.

We argue that feminists should support the development of quasi-prenuptial documentation - sworn affidavits prepared before marriage that record the actual state of affairs between the parties: the nature of gifts exchanged, financial contributions, property owned by each spouse, and the income and assets of both parties. This is not a mechanism to deprive genuine victims of their legal rights. Courts will always retain the power to grant maintenance, residence protection, and other remedies irrespective of any prenuptial document. What such documentation achieves is: first, it creates a factual baseline that makes fabricated narratives harder to sustain; second, it promotes financial transparency and honest pre-marital communication between partners; third, it serves as a deterrent against the weaponisation of legal processes, without diminishing protection for genuine cases.

A legal framework that treats both parties in a matrimonial dispute as capable of honesty and accountability is more consistent with feminist principles of equality and dignity than one that structurally assumes the narrative of one party must prevail over the other regardless of evidence. True feminism does not require unfairness to be legitimate. It requires justice.

VII. Institutional Reform: A Feminist Manifesto#

The path forward requires coordinated reform across multiple dimensions. First, police accountability in matrimonial cases must be strengthened through independent oversight mechanisms - the CAW Cell mediation process must be genuinely neutral, legally supervised, and transparent, with both parties permitted legal representation. Second, investigation standards must be improved: forensic capability, sensitivity training, and mandatory preliminary scrutiny before arrest in domestic offence cases protect innocent persons without diminishing protection for genuine victims. Third, legal literacy programmes must reach women in rural and economically marginalised communities, ensuring that the laws enacted for their protection are accessible to those who need them most, not merely available as instruments to those with access to sophisticated legal counsel. Fourth, mediation infrastructure in family courts must be expanded with gender-sensitive protocols ensuring that women participants are not pressured into unfair settlements.

Rights and responsibilities must develop together. Accountability is not the enemy of protection. It is its guardian.

VIII. Conclusion: Preserving the Inheritance of Bharat Mata#

Feminism in India carries a lineage more ancient and more profound than any legal provision. It carries the memory of Jijabai Bhosale, whose vision, resilience, and leadership helped lay the foundations of Swarajya in an age when political authority was overwhelmingly dominated by men; of Ahilyabai Holkar who built temples, fed armies, and administered justice while the world assumed women incapable of governance; of Savitribai Phule walking through streets where others threw dung, because she believed that every girl deserved to learn to read. It carries the memory of Pandita Ramabai who said that the only way to liberate women was to educate them, and of Rani Lakshmibai who proved that the courage to resist oppression recognises no gender boundary.

This is the inheritance that gender justice in India is called to protect and extend. It is an inheritance not of grievance, but of aspiration - the aspiration that every person, regardless of gender, caste, or circumstance, shall be treated with fairness, dignity, and the full protection of just institutions.

That inheritance is served not by blind loyalty to any particular legal provision, but by unwavering commitment to the values those provisions were enacted to realise. Where institutional processes are fair, transparent, and accountable, genuine victims are protected and false narratives are resisted. Where they are neither, both justice and feminism suffer.

India is Bharat Mata. Let her justice be worthy of her name.

Jai Hind. Bharat Mata Ki Jai.

Bibliography#

A. Cases#

Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 (India).

Gorakhnaath Sharma v. State of Chhattisgarh, 2025 CGHC 7365 (India).

Manish Sahu v. State of Madhya Pradesh, 2024 SCC OnLine MP 2603 (India).

Navtej Singh Johar & Ors. v. Union of India, (2018) 10 SCC 1 (India).

Vishaka v. State of Rajasthan, (1997) 6 SCC 241 (India).

X v. State (NCT of Delhi), 2025 SCC OnLine Del 3493 (India).

B. Statutes and Legislative Materials#

Bharatiya Nyaya Sanhita, No. 45 of 2023 (India).

Code of Civil Procedure, No. 5 of 1908 (India).

Family Courts Act, No. 66 of 1984 (India).

Indian Penal Code, No. 45 of 1860 (India).

Protection of Women from Domestic Violence Act, No. 43 of 2005 (India).

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, No. 14 of 2013 (India).

C. Reports and Institutional Sources#

National Judicial Data Grid, Department of Justice, Government of India.

ResearchSquare, Temporal Trends and Regional Variation in Major Crimes Against Women in India: Evidence from NCRB Data, 2017–2023 (2026).

World Justice Project, WJP Rule of Law Index 2025.

D. Articles, Commentaries and Online Sources#

Abhishek Gandhi, Role of Mediation and Lok Adalat in Divorce Proceedings (2025).

Aggarwala, Amish, 7 Things Men Should Know Before Getting Married (2024).

Citizens for Justice and Peace, Section 498A: Misuse or Inappropriate Application? (2025).

Deccan Herald, Karnataka Sees Surge in Crimes Against Women but 92% Cases End in Acquittal: NCRB (2025).

India Data Map, Pending Court Cases in India: 2025 Overview (2026).

Live Law, Can the Marital Rape Exception Immunize a Husband Under Section 377? (2026).

Live Law, Unnatural Sex With Wife a Punishable Offence, Marital Rape Exception Doesn't Apply to Section 377 IPC (2025).

National Herald India, NCRB 2023 Report: Rise in Crimes Against Women, Cybercrime, Farmer Suicides (2025).

New Indian Express, Uttar Pradesh, Bihar Report Highest Number of Dowry Death Cases (2026).

NLIU Law Review, The Last Remnant of Section 377: Marital Offence of Sodomy.

Prenup India, Prenups in India: Legal? Valid? (2025).

S.S. Rana & Co., Validity of Prenuptial Agreements in India (2023).

The News Minute, More Than 6,000 Dowry Death Cases Registered in 2022: NCRB Data (2023).

The Week, India Records Close 4.5 Lakh Crimes Against Women in 2023 (2025).