The July 10 judgement awarding alimony to a divorced Muslim woman immediately drew parallels with the Shah Bano case of 1985, in which the Supreme Court had delivered a similar verdict. But while the Congress regime at the time overturned the court’s decision, the Bharatiya Janata Party that heads the current ruling coalition has welcomed the recent verdict. Women’s rights are least likely to have been on either party’s agenda.

The Congress took steps to neutralise the Shah Bano decision because it drew the anger of some orthodox Muslims – not without reason, given the discontent in the All India Muslim Personal Law Board to the July 10 decision. The BJP, on the other hand, wants to introduce a uniform civil code, insisting that only Muslim family law is discriminatory towards women. That is false.

Family laws or personal laws are rules that govern marriage, birth, inheritance, child custody and rights and obligations of spouses. Whether family laws are formulated based on religion or by a secular state, they have, historically, tended to be discriminatory in favour of men.

As this 2012 World Bank report, based on a study of family law in 70 countries, notes, sharia laws were codified in Egypt around the same time that the secular Swiss Civil Code and the Turkish Code were formulated. But the legal status of women differed little across these laws.

The world over, few attempts at reforming family laws have been successful. This is not surprising because the family – and, consequently, family law – emphasises male domination, a social order that not many would want to upset.

What makes the family so potent for women’s unequal status? Feminists have convincingly argued that sex and power are the two central cogs in the wheel of patriarchy, the system by which men exercise power over women. One of the ways to do this is by controlling women’s sexuality. This is central to family law, which regulates how, when, and with whom women bear children.

But this does not address the core issue of patriarchy: why do men desire power over women or want control over their sexuality? To get to the root of patriarchy and effectively resolve inequality between the sexes, it is important to explain the motivations behind seeking power and control.

The answer can be found dating back to thousands of years of human history through the research of anthropologists and evolutionary biologists.

Subordination in family laws

The evidence about family law being titled in favour of men is clear. Legal scholar Catharine MacKinnon finds that Indian jurisprudence has always been discerning with matters related to equality between men and women, for example, its sexual harassment rulings (such as the Vishakha judgement of 1997), yet drags its feet on family law.

For example, Christian personal law, until 2001, had different rules of divorce for men and women – men needed only one valid reason for divorce, women needed more; Muslim personal law grants male heirs twice the share of female heirs and permits only the male to be polygamous; under the Hindu Succession Act, 1956, the property of a woman who dies without making a will goes to her children and husband and, in their absence, to the heirs of the husband (not her parents).

Like in India, most legal traditions have granted husbands greater – if not exclusive – control over common property during (and often after) marriage and limited women’s ability to seek independent work. Alimony would often be the only source of sustenance for a woman who was forbidden to work or had no control over her own wages. Adultery has routinely been considered a much greater crime for women than for men and marital rape is regularly not considered to be a crime, including in India.

Evolutionary biology

But to address the question with which we started: why do men desire power over women or want control over their sexuality?

A comparison of non-human primates with humans is the first point of explanation. Anthropologist Barbara Smuts, for example, demonstrated that compared to males of other primate species, human males are more dominant and patriarchal. This has nothing to do with men being stronger than women or that women are constrained by reproduction: the difference lies in how males and females evolved to form coalitions within their own groups – “coalitional psychology”, as primatologist Richard Wrangham calls it.

Wrangham’s research shows that unlike non-human primates (such as apes) that are led by an alpha male, human males began to work in coalitions that sought to prevent a single tyrannical male from taking over the group. After years of evolution, it is not the alpha male who rules among men, but the “alpha alliance” comprising, usually, senior men who cooperate to successfully support each other’s dominance over the rest of the group.

However, male coalitions posed a threat, as Wrangham notes: disputed paternity. What if paternity was shared among multiple males? The concept of long-term bonds, or what we know of today as marriage, was likely a means to mitigate the paternity problem. Marriage allowed men status, undisputed paternity and, in turn, the right to coerce female sexuality.

For women, it meant an increase in female-female competition, seeking mates with greater status and resources and ability to protect them from other men, creating a perpetual cycle of patriarchy sustained by both men and women.

One social consequence of these alpha alliances, says Wrangham, was the need to create institutions that privileged men, as a group, over everyone else. This was the birth of patriarchy as an institution. Law and religion typify the alpha alliance. These are the institutions at the centre of family law.

Of course, human behaviour doesn’t always conform to institutional diktat; many men are egalitarian and many women often resist sexual coercion. After significant feminist and reformatory movements, several countries have long progressed towards sex-equal family laws since their inception, including Switzerland, Morocco, Turkey and Botswana.

Yet, family law, throughout history, has placed the burden of morality on women. Regulating women’s sexuality remains crucial to maintaining this social order. Only by understanding both the means and the motivation to do so can we accelerate greater equality between the sexes.

Raheel Dhattiwala is a sociologist. She is an honorary member of the South Asia Institute, University of Heidelberg.