In a 2023 custody dispute before the Delhi High Court, a mother’s ‘independent lifestyle’ and irregular working hours were used to question her suitability as a primary caregiver by the opposing counsel. She worked, and an attempt was made to punish her for it.
However, such sexist attacks on women are not isolated instances in Indian courts; they are enabled by a legal system that has already decided what a ‘good’ mother should look like. While in the case at hand, the court refused to entertain this sexist reasoning, the fact that a woman’s career can be weaponised to question her suitability as a parent reflects a broader pattern in judicial reasoning and logic.
Indian legal discourse does not merely reflect gender norms, but in many instances, it actively manufactures them.
Indian courts often do more than just settle disputes between individuals. Especially in cases of abortion, custody, maintenance, and other family law matters, they frequently adjudicate the character of women. The standard against which women are often measured is one that the law itself produced: upper-caste, maternal, sexually restrained, and subservient. Indian legal discourse does not merely reflect gender norms, but in many instances, it actively manufactures them.
Producing the ideal legal woman
There is a version of womanhood that Indian courts find legible. She is morally restrained, innately maternal, socially respectable, and upper-caste. Women who arrive in court as mothers, wives, or daughters or perform femininity and distress within sanctioned limits, are more likely to be treated as subjects worthy of justice. Women who don’t fit that mould often find the law looking straight through them, as if they are present but not fully recognisable.
The woman keeps being positioned as a reproductive subject whose autonomy needs careful judicial management, rather than as an individual whose right to her own body is absolute and acceptable.
Shulamith Firestone’s argument in The Dialectic of Sex gives insights into this. Firestone’s claim that women’s oppression is reproduced through the legal and social enforcement of reproductive roles maps quite closely onto how Indian courts evaluate women’s worth. What’s striking, though, is how this logic appears even in judgments that seem progressive on the surface.
Take Suchita Srivastava v. Chandigarh Administration. The Supreme Court recognised a woman’s right to reproductive autonomy, which was a significant step. But if you read the judgment closely, there is a hesitation lingering beneath it. The woman keeps being positioned as a reproductive subject whose autonomy needs careful judicial management, rather than as an individual whose right to her own body is absolute and acceptable. The expansion of rights and the reinforcement of the notion of the ‘good’ woman sit side by side. The tension is not hidden. It’s right there in the reasoning.
Candace West and Don H. Zimmerman’s theory of ‘doing gender’ helps make sense of this. Gender isn’t a fixed identity. It is something performed, something demanded. Courts ask women to perform their gender by being the dutiful wife, the self-sacrificing mother, or the passive victim. They then evaluate their worth as individuals, guardians, victims, and so on, based on how closely they adhere to this patriarchally sanctioned performance.
And this ideal legal woman is also, crucially, caste-coded. Sharmila Rege’s Dalit feminist standpoint makes this difficult to ignore. What courts tend to recognise as worthy femininity is upper-caste femininity. This is marked by perceived ‘moral purity’, social respectability, the exercise of restraint, and a controlled manner of expressing grief. Dalit women do not fit this template, and the law’s relationship with them reflects that.
The ideal legal woman is not universal. She is Savarna. And this excludes, quite systematically, those women whose oppression is most structurally embedded.
They appear in legal proceedings as hyper-visible victims of violence but as near-invisible subjects with agency. Their suffering is either amplified or normalised, sometimes both at once. The ideal legal woman is not universal. She is Savarna. And this excludes, quite systematically, those women whose oppression is most structurally embedded.
Disciplining desire and rewarding motherhood
The law does not just shape identity; it also disciplines desire. This isn’t abstract; it shows up in custody hearings, in maintenance decisions, in the language judges use when they try to decide what counts as a ‘legitimate’ relationship. Firestone’s analysis of love in The Dialectic of Sex explains this mechanism well. Under conditions of structural inequality, what appears as romantic freedom is often a site of regulation. The anxiety around women’s autonomous desire is equally visible in judicial responses to intercaste relationships.
In Shakti Vahini v. Union of India, the Supreme Court condemned honour-based violence and affirmed one’s right to choose a partner. Yet the bench kept returning to whether the woman had acted of her own ‘free will’?. A question that courts apply with a scrutiny rarely directed at any man. Courts frequently treat cases where women pursue relationships across caste boundaries as requiring special explanation. They are questioned to find evidence of manipulation or diminished rational capacity, particularly when partners belong to marginalised communities.
Motherhood, in contrast, is considered the epitome of womanhood, but only when performed within approved caste-class structures. Women who conform to the script of the sacrificial, suffering mother tend to receive legal sympathy and institutional support. However, those who work irregular hours, live independently, or express their sexuality outside marriage often find themselves disqualified from such support, not by any explicit legal rule but by implicit moral judgment. The 2023 Delhi High Court case is representative of a broader judicial culture in which women’s professional independence is decried through the language of caregiving and maternal adequacy.
On the other hand, drawing on Sharmila Rege’s insights, one can see that when Dalit women speak of love, their choices are often treated with suspicion or scandal. And when they speak of violence, their experiences are more likely to be dismissed as inevitable. Even their motherhood does not evoke the same degree of empathy that courts tend to extend to Savarna mothers.
As Sharmila Rege’s critique shows, the apparent neutrality of legal language often masks structural violence as procedural fairness.
This uneven recognition is not incidental. As Sharmila Rege’s critique shows, the apparent neutrality of legal language often masks structural violence as procedural fairness. Dalit women’s expressions of love, care, and grief are often not legible to legal institutions because the law has already decided what legitimate feeling looks like and whose body is capable of producing it.
Turning back to Firestone’s argument also reveals how naturalisation of the maternal role sustains women’s economic subordination. By treating motherhood as both a duty and a qualification for legal recognition, the state ensures women’s continued participation in unpaid care work. The law does not invent this arrangement, but it certainly maintains it. Deviation from the maternal script becomes costly in very concrete ways: In custody outcomes, in maintenance calculations, and in how much moral credibility a woman is granted.
Toward a feminist praxis of disobedience
If the law has historically demanded a specific idealised woman, one who is ‘chaste’, sacrificial, and caste-compliant, then feminist engagement cannot stop at merely seeking inclusion on those terms because that would be insufficient. The question isn’t just how women are seen by the law, but what the law repeatedly fails or refuses to see. This refusal is not incidental. It is integral to how the system is organised.
The question isn’t just how women are seen by the law, but what the law repeatedly fails or refuses to see. This refusal is not incidental. It is integral to how the system is organised.
Caste, as Sharmila Rege reminds us, is not something that can be added to feminist analysis later. It shapes the very idea of who counts as a woman worth recognising. Legal gains, in divorce, custody, and abortion, do matter. But they do not reach everyone in the same way; they leave gaps. And these gaps are patterned. What does justice look like for a Dalit woman whose choices are already treated with suspicion? What does care mean in a system where loving ‘wrongly’ can render you unintelligible?
Firestone argued that biology becomes destiny when social arrangements make it so. In the legal context, this is visible not just in questions of maternity, but in how motherhood becomes a condition for recognition itself, something that has to be demonstrated, performed, and evaluated. Moving beyond this does not require abandoning the category of ‘woman’. But it does require broadening the narrow view of it that courts take and continue to reward.
Refusing the frame and rewriting the script
Indian legal discourse, far from functioning as a neutral arbiter of rights, tends to operate as an ideological apparatus without coercive force that disciplines femininity through sanctifying a particular form of womanhood and legitimising caste-coded moral hierarchies. Firestone’s analysis, West and Zimmerman’s formulation of gender as performance, and Rege’s Dalit feminist standpoint together illuminate structural violence that is frequently masked as legal protection in modern courtrooms.
Indian legal discourse, far from functioning as a neutral arbiter of rights, tends to operate as an ideological apparatus without coercive force that disciplines femininity through sanctifying a particular form of womanhood and legitimising caste-coded moral hierarchies.
The ideal woman is not a cultural artefact that the law reflects. She is a legal artefact the law produces through custody decisions, maintenance hearings and welfare schemes that reward certain sorts of performances of womanhood while rendering others illegible. The law offers recognition but often only to those who comply with hegemonic codes of gender, caste, and sexuality. It listens selectively and empathises conditionally.
As Foucault reminds us, ‘Where there is power, there is resistance.’ That resistance does not have to remain theoretical. It can enter the courtroom, the welfare office, and everyday life.
Our task then is not to become legible within the law but to challenge the very terms of this legibility. We must centre the experiences of those that the law tends to forget, be it Dalit women, single mothers, queer caregivers, or those who refuse its moral scripts. This can serve as the starting point from which a more adequate theory can be built. As Foucault reminds us, ‘Where there is power, there is resistance.’ That resistance does not have to remain theoretical. It can enter the courtroom, the welfare office, and everyday life.
A legal system that demands moral proof before extending rights is not neutral. What the system does instead is gatekeep. And a system which gatekeeps is not transformed by asking it to be more accessible; it is challenged by refusing to stand at the gate at all. What is required, then, is not compliance but willingness. A willingness to question, to resist, and to reimagine the frameworks through which justice itself is defined.
References
Firestone, S. (1970). The Dialectic of Sex: The Case for Feminist Revolution. William Morrow and Company.
Foucault, M. (1991). Governmentality. In G. Burchell, C. Gordon, & P. Miller (Eds.), The Foucault Effect: Studies in Governmentality (pp. 87–104). University of Chicago Press.
Foucault, M. (2002). The Subject and Power. In J. D. Faubion (Ed.), Power: Essential Works of Foucault, 1954–1984, Volume 3 (pp. 326–348). Penguin Books.
Rege, S. (1998). Dalit Women Talk Differently: A Critique of ‘Difference’ and Towards a Dalit Feminist Standpoint Position. Economic and Political Weekly, 33(44), WS39–WS46.
Rege, S. (2006). Feminist Pedagogy and Sociology for Emancipation in India. Sociological Bulletin, 55(1), 33–55.
Rege, S. (2013). Against the Madness of Manu: B. R. Ambedkar’s Writings on Brahmanical Patriarchy. Navayana.
About the author(s)
Muskan is an MA Sociology candidate at South Asian University, New Delhi, researching caste, gender, and state power. Her dissertation examines how Dalit women are rendered visible in state databases but erased in policy discourse. She is published in Asia in Global Affairs and is a Research Intern at the think tank.
