The first simple query related to the status of
women revolves around the issue whether women are the subject or the object in
relation to law and society. Absolutely, on the ground of being human, women are
supposed to be the subject of law but the practice prefers to treat women as
objects. Though the time has changed and the context has changed but still the
residual of the male culture of law is seen or reflected in various legislation. For instance, an update of the study on discriminatory laws
relating to women conducted by FWLD (Women law and development forum) in 2009
identified 103 provisions and 92 schedules in various Acts and regulations
which continue to discriminate against women both in letter and in effect.[1]
Referring to Betty Friedan’s work The Feminine Mystique, she argued that
the society does not permit women to accept or gratify their basic need to grow
and fulfil their potentialities as human beings. She called the Suburban
American Home “a comfortable concentration camp” because it restricted women’s
lives so severely. Likewise, The pain of being the object of property that
women experienced is hardly described in the words.
For instance, Illinois Supreme Court denied a licence
to practice law to Myra Bradwell in 1969 stating that at common law, married
women were said to be under "coverture" or under the protection of
their husbands.[2]
Likewise, according to Usha Ramanathan, women in law are portrayed in mostly
three categories: wife, non-wife and criminal.[3]
Therefore, the concept of reasonable woman standard has been mooted by feminist
writers and that is in the centre stage for the modern times.
In this light, the crater between Reasonable man and
reasonable women is vivid. The concept of reasonable man was created for
justicing convenience and judges, attempting to unravel the mysteries of human
conduct, intent and motive, have for years turned to the reasonable man for
guidance. [4] The phrase ‘reasonable women’ was never
articulated then. The basic reason could be that legislators kept women, minors
and the mentally incapable together and emphasized over the proprietorship of
man over woman. For instance, The law
indeed moves around reasonable man, most often criticized as being male
cultured and women around the world have found themselves and their experiences
and perceptions largely excluded from the purview of the law. Additionally, the
legal language marginalized women by saying that "he" includes
"she".[5] The
legal language and reasoning has always been gendered, informed by men's
experiences and derived from the powerful social position of men, relative to
women.[6]
Now, it is time to challenge the traditional view that ‘The law's cognition of
women is refracted through the male eye rather than through women's experiences
and definitions.’[7]
Therefore, there should be the concept to reasonable women taken into
consideration for justicing convenience and ‘remedying the wrong done to
women.’
[1] Sapana Pradhan Malla and Ayasha
Sen, "Engendering the Nepalese Constitution: A Women Perspective", Nepal Bar Council Law Journal 2008, p.
95.
[2] Frances Olsen, "From False
Paternalism to False Equality: Judicial Assaults on Feminist Community,
Illinois 1869-1895", (Feminist
Theory Within the Law), Frances E. Olsen (ed.)), Dartmouth, Aldershot,
England, 1995, pp.416-438
[3]
Usha. Ramanathan, “Reasonable Man, Reasonable Woman and Reasonable
Expectations”, (Engendering Law: Essays
in honor of Lotika Sarkar, A Dhanda and A. Parashar (eds.)), Eastern Book
Co., Lucknow, 1999, pp. 33-71.
[5] S.P. Sathe, "Gender,
Constitution and the Court", (Engendering
Law: Essays in honor of Lotika Sarkar, A Dhanda and A. Parashar (eds.)),
Eastern Book Co., Lucknow, 1999, p. 117.
[6] M.D.A. Freemen (ed.), Lloyd's Introduction to Jurisprudence,
Sweet & Maxwell, London, (6th edn.), 1996, p.1035
[7] Id, at 1035
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