Flavia Agnes – Articles

Consent and controversy

The Protection of Children from Sexual Offences Bill passed by the Rajya Sabha will
criminalise sexual activity between consenting adolescents

There is a need to revamp the criminal provisions governing sexual crimes, which were
framed in 1860 as part of the Indian Penal Code. Rape was defined in narrow terms, and
other sexual crimes paled into oblivion and were termed as either "unnatural sex" or
"violating modesty". This raised two questions — first, when does a girl child acquire
"modesty" that can be "violated"? The second question concerned the sexual abuse of
boys, particularly in cases of paedophilia, as the term "unnatural sex" placed both sexual
assault and consensual same-sex relationships on the same scale.

The anti-rape campaign launched in the early 1980s after the adverse ruling in the
Mathura rape case brought in some changes in rape laws, but these were directed
towards prescribing a stringent punishment as a deterrent and did not question the
framing of rape in patriarchal terminology. Since the 1990s, there have been demands
for a gender-neutral rape law to bring within its purview sexual violation of boys and
non-penetrative sexual abuse of girls. Various drafts prepared and circulated over the
last 20 years lay dormant.

The age of consent for sexual intercourse has always been contested. In 1860, 10 years
was the stipulated minimum age. But the furore caused by the death of an 11-year-old
girl at the hands of her 35-year-old husband through forcible penetration led to the
raising of the age of consent to 12 years in 1892. Later, during the nationalist
movement, when women's groups entered the political arena, they highlighted the
adverse effects of early pregnancy upon women's health, and demanded that the age of
consent to marriage and sexual intercourse be raised to 14 years. Then, the age was
raised to 15 years in 1949, and later to 16 years. Consensual intercourse with a girl
under this age was construed as "statutory rape". But the provision made a concession
to the husband, who was permitted to have sex with his wife if she was above the age of
15. This dichotomy and confusion persists, as the age of marriage under the Hindu
Marriage Act and the Child Marriage Restraint Act is 18 years. The proposed bill aims to
resolve this confusion by stipulating a uniform age for marriage as well as sex, and
inadvertently contributes to a puritanical notion that marriage and sex are synonymous.

What will the impact of criminalising sexual activity between underage, consenting
adolescents be? To understand this, we must examine a phenomenon known as
"elopement marriages" — marriages contracted without the consent of the respective
parents. The issue brings to the fore ways in which multiple social subordinations —
caste, region, religion — intersect with patriarchy to hone in on the sexual choices of
defiant young women within established social mores. The situation becomes precarious
when an upper-caste girl elopes with a lower-caste boy, or when a Hindu girl falls in love
with a Muslim boy. In a strictly stratified society, ridden with prejudices against lower
castes and minorities, a young couple who dares to cross the boundaries is severely
punished.

It is necessary to examine how "age" is pitted against "agency" in the context of

elopement marriages. It appears that choice, or desire, as expressed by a woman, is
somehow intrinsically illicit when it is against parental diktat and caste or community
norms, and therefore needs to be contained and controlled. Girls who exercise active
agency to defy convention pose a threat to the established social order, and are confined
by reframing consent itself. Here, "consent" gets embedded in assumptions about
rational choice and parental authority, rather than choices made by women.

More problematic is the way in which discourses within progressive movements engage
with notions of age, agency and consent when there is a rupture between these terms.
Within this complex social reality, how do we view the demand by some groups to
declare all child marriages as void ab initio? These groups have been critical of the court
verdicts that upheld the validity of marriages of minor girls below the age of 18 in cases
of rape and kidnapping brought to court by parents of the eloped girl. In this context,
these groups demanded that the age of marriage and age of consent to sexual
intercourse be made synonymous.

It is critical that the government's move to bring in much-needed reforms within the law
of sexual crimes is more nuanced and sensitive to the needs of the child and child-adult.
The campaign was initiated to bring to the fore cases of incest and abuse of young
children by those in authority over them. Rather than giving a boost to moral policing by
parents and community leaders, what is required through these reforms is to stipulate
procedural guidelines that would protect a child during investigations and trial. The need
is to evolve protocols that are binding on the judiciary and other stakeholders, rather
than criminalising sexual activity among this vulnerable group. It is hoped that the
reforms will not again be shelved and placed in cold storage because of the avoidable
controversy that has been foregrounded.

The writer is a lawyer and director of Majlis in Mumbai

===

The bill comprehensively deals with sexual assault on children. The age of
consent issue shouldn't distract us from that

Pinki Virani

Mea culpa. My doing. As also that of a male judge and school principal. A female doctor
and college professor. NGOs like ex-cop Amod Kanth's, aiding marginalised children.
States as distinct as those in the south and the Northeast, and people with varying
incomes, have wound up as the coalition that shot down a contentious clause. The
clause we killed was a part of the otherwise landmark law-in-the-making, the Protection
of Children from Sexual Offences Bill 2011. And why have we been such clause-slayers?

Because when government agrees to make a new law, it cannot, within the same law,
not provide equal protection to all affected by the law. It was a violation of the rights of
five crore children in one specific age band under the Constitution. The clause also
created two surreal loopholes in the guise of "consent".

First, it gave legal protection to potential offenders; an invitation to criminally minded

adults to break the law by raping a child between 16 and 18 years of age. The onus of
proving it a crime would have been on the child.

Second, it criminalised sexual experimentation among those aged between 16 and 18.
This age band falls within the Juvenile Justice Act. To place them under a new law, one
meant to punish majors and protect minors, is to take away their rights under the old
one, which avoids legal applications on sex between minors unless there is a complaint.

The Protection of Children from Sexual Offences Bill is India's first legislation to protect
children sexually from predatory adults. Children are defined as minors, understood as
being between newly born and 17 years, 11 months and 29 days. It includes those yet to
be born, since the bill, when it becomes law, will protect every child-citizen of India
hereafter. Adults or majors are understood as ranging from 18 to 108-plus. The 18- year
cut-off establishes the difference between minors and majors. To reduce or increase the
cut-off would require Parliament to pass a separate law. It cannot come under the ambit
of this bill.

To date, there is no law in India to provide justice to those under 18 being raped and
molested by paedophiles, at home or outside. Twenty five per cent of our boys and 40
per cent of our girls below 18 are sexually abused. Half of this is perpetrated by adults
who are in positions of trust, across class and caste lines. (Bitter Chocolate statistics
from 2000; a 2007 government study has higher figures.) The cases that are reported —
most are not — have been tried in open adult courts with adult laws and calendars. This
bill stipulates the setting up of special courts and a time-frame.

I was asked if the new law will "punish innocent love". He is 19, his girlfriend 17, they
engage in "thoda bahut" and "may marry or may not" after she turns 18, he 21. He
makes a valid point about the almost overlap of the minor and major ages. I reply, "Your
case won't reach a court unless she makes a complaint to a police station. Should she
complain, it would go to a special court where, presumably, a judge will already have
been sensitised to such situations." The male young adult nods, he has understood that
with rights, sexual or otherwise, come responsibilities. That no matter what the cut-off
age, there will always be an almost-overlap.

The bill comprehensively deals with different aspects of how an entire childhood can be
raped. It goes beyond penile-penetration to encompass fingers and objects. It is gender-
neutral for children and adults. The key elements are: penetrative sexual assault;
aggravated penetrative sexual assault; sexual assault; aggravated sexual assault; sexual
harassment; the use of a child for pornographic purposes; the storage of pornographic
materials involving a child; and the abetment of offences.

Some words paraphrased from the excised clause: "Provided that when such penetrative
sexual assault is committed against a child between 16 to 18 years, it shall be
considered whether the consent for such an act has been obtained against the will of the
child." "Consent" means "the unequivocal voluntary agreement when the person has, by
words, gestures or any form of non-verbal communication, communicated willingness to
participate in the act." "Unequivocal voluntary agreement" meant "willingness given for
specific and be limited to the express act consented to under this section".

This clause was only applicable to two aspects of the bill, penetrative sexual assault and
sexual assault. Which meant that, while the clause stood, it was a crime to sexually
harass a child when she or he was 18 but a child could be two years younger when a
worse sexual crime was committed upon him or her and that would be "okay" because
the child's "consent" would be sought.

We adults, who believe in explaining boundaries to children so that they grow into
accountable citizens, have stood strong for the passage of this law. We recognise the
country's committed key bureaucrats as the spine of this bill. On May 10, the Rajya
Sabha passed the bill. It takes a lot of elders working together to protect a child. Next,
it's the Lok Sabha's turn.

The writer is a National Award winner for her work on the protection of children from
sexual abuse

===

We have to break the silence: Flavia Agnes

Social activist and noted lawyer Flavia Agnes is a woman of substance. For the first time,
Agnes has started to do research work on the issues of domestic violence. Agnes, who
has already faced the ordeal, has become the voice of domestic violence victims. Agnes,
who paved her way through great struggles, shares her thorny journey of her life with
‘Sakhi’.

“For the first time when he said, I will beat you so I think he’s kidding. Because nobody
told me like this so far. But when he really beat me, I deeply shocked. Second time he
beat me with hanger. Even, that time I thought it was not true. Third time he beat me
with belt. My nose bone broke. I was in deep mental agony. This is what marriage
means?”

These sentences have been taken from the autobiography of Flavia Agnis’s ‘My Story-
Our Story’. Its Hindi translated version of ‘Parwaaz’ was also appreciated by women
readers.

The only person, who did research on the domestic violence issue, this Mumbai lawyer
Falavia Agnis, is now fighting for women’s rights. But there was a time when she herself
was surrounded by darkness. What to do?

Where to go with three childrens? These questions were always bugging her head. In
1984, for the first time she dared to pen down about herself. After reading her
autobiography, when we met her in Delhi, we saw different facets of this troublesome
lady.

I was beaten like hell

“I never thought that I will make revolution in the society. I was only trying to protect my
children and save my marriage. I was beaten like hell and I was troublesome lady who
lost her all hopes.”

“My parents were in Yemen and I grew up in my aunt’s house. I went to my mom after
my father’s death. But that time South Yemen was totally disturbed due to their political
turmoil. We returned to India and settled in Mangalore. I got married in 1967. I was in my
20’s. My husband was 12 years older than me and he was on the top post in a company.
During our honeymoon he said “Bring all the jewellery you had before our marriage”. He
twisted my hand while I was replying.

My asthma problem created new issue

I had an asthma problem. I didn’t inform my husband about this. But this weakness of
mine created another problem in marriage life. After two months of my marriage I got
pregnant. But he used to beat me even in my pregnancy. I totally felt dejected. Besides
this, when I would go for party he used to say that cover the wound mark under your
saari. He always used to ask me about the daily expenses. After seeing my condition, my
mother told me to not go back to him but I knew the condition of my mother that how
much she was in trouble due to family crisis.

Towards self-assurance

When I lost the hope for my married life, I decided to start living for my children’s
betterment. I started learning cookery- bakery and gardening. Even sometimes he used
to apologize whatever he did to me.

Meanwhile, I successfully cleared bank entrance test. But my husband didn’t let me go
for an interview. He never gave me a single penny for medical treatment and my
approach towards self-reliance irritated him. I started to give tuition to the children at
home. My children grew up and sometimes they took my side. Even I lost my mental
stability due to regular physical and mental humiliation. I used to visit church and I would
get some mental peace there. During teaching I got to know that I am not only one who
has been suffering from this problem there are many more like this. That time I have
decided to take some action against this.

In search of real identity

In the church mass prayer I met a girl who was talking about Jesus Christ’s life and I was
overwhelmed with that girl’s thought. She told me about some women’s organization.
Hence, my new journey of life began. I wanted to come out from my humiliated life. But
this was happened with the help of better education and work.

While working for organization, I got a project whose subject was the ‘beating of wives in
Mumbai’. The institute also gave me a temporary job. When I was heading to my office
first day, my husband tried to stop me and when I opposed, he threw a typewriter on me;
my head got injured. I had to leave for my home immediately.

Hence, the real struggle began. I faced so many problems regarding accommodation,
children’s issue and my personal problem. But my kids stood by me as my strength. We
created a women’s centre. I completed my graduation followed by higher studies. I used
to move court and sometimes even decision didn’t come in my favour.

Time is significantly changed

Time has changed a lot. Now the girls are not ready to tolerate any kind of violence. If
parents can support married children, then situation can be quite simple. Now, my
husband is no more. My children are happy in their own life. I am providing legal services
to the women and kids through my legal-cultural institution ‘Manjlis’. The institution also
runs many training programs. I want to take every women problem in limelight and to
fight for those things till my last breath.

Pick a strong step

I want to say to the women that no matter what condition you are facing, never give up.
However, sometimes the situations become worst. Share your problems with family,
relatives or any other organization. Do not think that it is a personal issue. Loneliness
scares you and it tends to failure, don’t think of that. Initially, you find it is hard but
slowly and steadily things go smoother with times. One thing is more important, without
coming out from your comfort zone it can’t possible. Our protection is in our hands. It is
possible by our own mind and heart. Just keep faith on it and move forward.

Forget sensitisation, at least do your duty

THE BRUTAL gangrape and murder of a 23-year-old woman in New Delhi appears to
have opened up newer portals for discussion, not just on sex crimes but more generally,
the space our society gives to women. A preference for sons, sex discrimination in our
homes, glorification of sexual harassment by heroes in Bollywood, the erotica of item
numbers pandering to the male gaze, the need for sex education in our schools and
gender sensitisation for police, have all become topics of conversations in our drawing
rooms. The space provided by the news media to these issues in the past few weeks is
unprecedented.

The reverberation of the protests in Delhi will surely be felt across the country for a long
time, heralding good tidings and hopefully change the patriarchal mindsets of our
legislators, bureaucrats, law enforcement agencies and the society at large, eventually
leading to a reduction in crimes against women, and will not lapse into mere rhetoric in
the months to come.

One such rhetoric often used by state agencies and civil society partners alike is ‘gender
sensitisation’. This demand was first raised by women’s groups in the 1980s after the ill-
famed and sexist Supreme Court ruling in the Mathura rape case in which some cops had
raped a minor tribal girl in a police station. The apex court had acquitted the policemen
on the ground that there were no marks of injuries on the victim’s body and that since
she was not a woman of good character she could not have been raped. Subsequent
protests resulted in bringing about some changes in the archaic rape laws. But as
allegations of insensitivity to victims reporting rape continued, ‘gender sensitisation’
became the buzzword.

After the 1995 World Conference on Women in Beijing, the pressure on state agencies to
conduct such trainings increased and it was made mandatory to incorporate gender
sensitisation in all administrative, police and judicial training institutes and budgets were
earmarked for this purpose. ‘Gender experts’ were invited to conduct these trainings.
But since then huge resources have gone down the drain with officials none the wiser, or
rather, none the more sensitised. No one seems to have conducted a public audit of the
correlation between the money spent and the impact the trainings have had upon the
participants in changing their attitude towards women while performing their official
duties. That part remains distinct and separate from the trainings with the trainers
having no access to assess this.

There is hardly any women’s rights NGO worth its salt that has not been involved in
“police trainings”. And yet, we are confronted, year after year, with the same rhetoric
that the police are not gender sensitised and there is need for further sensitisation; the
underlying presumption being, a ‘gender sensitised’ police officer will act differently
when dealing with issues of crimes against women such as rape, domestic violence,
dowry murder, sex trafficking, etc. Yet we have no studies or even experiential
anecdotes to measure the impact of the training on individual officers. How were they
performing their duties prior to the training and what change was brought about after
the training?
Perhaps the problem lies in the manner in which the trainings are conducted with no
understanding of the role, functioning, processes and dynamics that operate within a
police station. Usually, the seminars are lectures on the status of women in society,
difference between sex and gender or social construction of gender, the increasing rate
of crimes against women in society, etc. Sometimes, there are interactive games or
quizzes. If the workshop is of longer duration, there are roleplays or group exercises.
These usually turn out to be light-hearted entertainment. There are no expectations of
any outcome, accountability or impact assessment. Gender training seems to be an item
in the laundry list that has to be ticked off.

At times, the lectures delivered by external experts contradict with the messages
delivered by other internal trainers who are high-ranking officers and command respect
from the trainees, and ultimately, it is the superior’s words that the trainee will abide by.
The trainees either tolerate or are downright disdainful of the message delivered by the
external expert or, at best, consider it as a ‘general knowledge’ lecture. If the officers are
senior in rank and the external expert a young NGO worker, he/she becomes the butt of
ridicule. If the NGO expert is older, and can hold his/her position, then the sessions
become confrontational and the purpose of the training is lost.

In one such training for mid-career officers, when the acquittal in the Banwari Devi
gangrape and the adverse comments made by the presiding judge were being presented
by a trainer, one of the participant confronted her and challenged her version and
informed the group that since the case was filed 5-6 days after the incident, and since
there were contradictions between the FIR and deposition in court, there was no
question of any conviction. He knew the facts of the case better than the trainer as he
was the Superintendent of Police of the district at that time, he told the group.

IT IS time we moved away from such meaningless exercises to the more serious task of
framing protocols that are binding. Several protocols and guidelines already exist, which
are issued from time to time, but there are inconsistencies or ambiguities that are
confusing. And more often than not, once issued, they are forgotten and no one takes
them seriously and there is no monitoring whether they are being followed. What is
worse, no officer or training institute seems to be having a complete compilation of the
guidelines on specific issues, e.g. protocols on Bancrimes against women, for ready
reference. It becomes a Herculean task to obtain copies as no one ever takes them
seriously and they remain ornamental pieces of official files to be tucked away.

There is hardly any women’s rights NGO worth its salt that has not been
involved in ‘police trainings’

But this is not how the police machinery treats serious issues such as threats of terrorist
attacks. One can see this in the manner in which each constable, male and female, has
been trained in recent years to conduct body checks and baggage scans at each
government office since the 26/11 Mumbai terror attacks. The message has clearly gone
down, the protocols are followed, and there is a constant check on how the officers are
performing their duties. There may be a few lapses but at least they are brought to light
and action is taken against errant police officers.

It is this type of diligence that we need within the police force for gender issues. A clear
guideline of dos and don’ts that are readily available. The need is to first compile the
existing guidelines, scan them for inconsistencies, streamline them and identify gaps.
Once the process is complete, the highest authority must accept it as part of the
standard operating procedure.

They also need to be publicised so that the public at large is aware as to what to expect
from a police officer on duty. Only with binding and transparent procedures, the fear of
the public that the police is prone to corruption or political influence will diminish. The
police stations should be open to periodic external audit as to whether the protocols are
being adhered to. And any officer who fails to follow the protocol should be reprimanded.
We don’t need ‘sensitised’ cops. We need officers who perform their duties towards
women with due diligence and respect, at all times, protecting the dignity of women as
mandated by our Constitution.

==

What fits the bill — a hope or a mirage?

The communal violence Bill is an act of faith — an affirmation by vulnerable groups for
protection against targeted violence by politically and economically powerful sectarian
groups. Understandably, it has been dubbed as ‘anti-majority’ by the BJP and has been
criticised as a kneejerk response to the Gujarat violence of 2002-03. There is also a fear
that it may alter the federal structure and adversely impact the autonomy of the states.
But protection of minorities and vulnerable groups like tribals and Dalits is well within the
Constitutional scheme. Hence, any provision to protect the secular fabric of the nation
and the right of vulnerable groups to live in peace and harmony cannot be dubbed as an
‘anti-majority’ measure.

Successive governments have set up various commissions to secure this objective —

commissions for minorities, for preventing atrocities against SC/STs, for protecting
human rights and women’s rights. But most of them have been toothless and have failed
to prevent violence and protect the vulnerable groups from systematic and targeted
violence. While Gujarat provides one example, the violence unleashed against Christian
tribals in Kandhamal, Odisha, is another example. The continuous violence against tribals
in the Northeast by armed forces, and against Dalits by upper castes in almost every
state cannot be ignored. The history of post-independence India is strewn with numerous
cases where the ruling governments and the commissions constituted by it have failed in
their duty to protect these groups.

A Bill that gives the vulnerable recourse to justice cannot be termed political
opportunism

But faith is integral to human nature. Every violation rekindles a renewed hope for a just
society. Hence the present Bill introduces a new concept of a national and state
‘authority’ with certain recommendatory powers and powers of action if the ruling
government fails to act. It renders culpable the government functionaries for dereliction
of duty by introducing the notion of ‘command responsibility’. This is a new concept for
India, borrowed from other international instruments. It makes public officials who enjoy
immunity, accountable. Reparations and witness protection have been clearly set out
and include rescue, relief, compensation, restitution and rehabilitation of targeted victim
populations.

The BJP’S response has also been short-sighted. By accusing the UPA government of
drafting the Bill in the context of Gujarat, it has failed to take into account the political
reality of any democracy: that the balance of power changes every five years. So a
response in the current context may not be appropriate to assess the long-term benefits
of the Bill.

The ‘National Authority’ is a civilian institution, appointed by the President with the
consensus of the ruling and opposition parties. The majority of its members will be drawn
from vulnerable and targeted groups that will help to repose faith in this institution. A Bill
such as this, which makes a vulnerable segment within a political group feel as though
they have an independent recourse to justice and reparation, cannot be brushed aside
as ‘political opportunism’.

But despite its innovative provisions, will it actually deliver? Cynicism prevails even
among those who have participated in the drafting process. The Act will function only to
the extent that there is a political will to do so. Without it, it will be reduced to a paper
tiger and a drain on the exchequer as it would require a huge financial commitment to
make it functional, to create the necessary infrastructure at the Centre, state and district
levels and a parallel process away from all existing government and statutory bodies. It
also takes on several functions that are at present carried out by state functionaries and
might thus absolve them of any liability and responsibility of initiating criminal
prosecutions and carrying out rescue and rehabilitations. So let’s wish that the hope
does not turn into a mirage!

===

New family laws are divorced from reality

IT APPEARS that “family laws” have suddenly become extremely topical, claiming front-
page space in the print media and catching eyeballs in the electronic media. Things
seem to be moving in so many different directions.

The first is the Centre’s move to make divorces easy — to strip the process off the need
to “wash dirty linen in public”. This is touted as “good for women”, but only if she is
financially independent and wants to free herself of a husband who is too busy with his
work to pay any attention to her. But not for a dependent homemaker wife in a 20-year-
old marriage where the husband has decided to “move on” because he has found a
young, attractive companion. So, is easy divorce good or bad for women? The answer
cannot be a simple ‘yes’ or ‘no’. Much depends upon which woman, which husband and
which marriage. For a rural woman whose husband has moved to the city and can now
file for divorce on a plea of three months’ separation, divorce would spell doom and
destitution.

It is a small consolation that the Centre is also planning for a division of property. After
burning its fingers in 2010 when it tried to introduce the principle of easy divorce without
economic protection, it has made some cosmetic changes to the old draft. But men’s
rights groups are already crying foul and screaming misuse. Surprisingly, there was
never a “misuse” plea from these groups when statistics indicated that abandoned
women and their kids form the largest component of the “poorest of the poor”, or when
women, after years of marriage, were abandoned and driven to penury. But these groups
need not worry. Since the Bill has no provision to protect a woman’s right to the
matrimonial property during the subsistence of marriage, with the aid of an efficient
lawyer, the property can be transferred prior to filing a petition for divorce, leaving very
little for a fair distribution at the time of divorce.
My guess is that if claims of property division are linked to “easy divorces”, cases will
linger in courts for years to determine what constitutes “matrimonial property”, and the
principles to be invoked for its division. If the Bill fails to provide the guidelines, the
litigants will have to sweat it out in trial courts and be at the mercy of their lawyers until
guidelines are evolved by the higher courts.

The HC ruling has placed marriage back within the age-old sphere of sexual
contract

At another level, the Maharashtra Matrimonial Property (Rights of Women Upon

Marriage) Bill, 2012, which deals with the concept of joint matrimonial property during
the subsistence of marriage and lays out guidelines for division at the time of divorce,
has run into trouble. It is in the eye of the storm as some Islamic scholars and members
of the Muslim Personal Law Board have expressed concern that such a Bill may violate
the principles within the Sharia regarding rights of Muslim women upon divorce. The
challenge here is to reconcile the principles of the Sharia with the provisions of the Bill
and leave no scope for creating an avoidable controversy.

In the midst of all these concerns regarding economic rights, the recent Delhi High Court
ruling has placed marriage back within the age-old sphere of sexual contract, skirting the
entire debate that hinges upon viewing marriage as an economic contract. If the woman
is a mere “dead wood” during sexual intercourse and refuses the man frequent sexual
access, which he is entitled to under the contract of marriage, the court has held that the
husband is entitled to divorce, which will set him free to get another wife. But it would be
prudent for the man to ensure that this time the woman is inclined towards frequent
sexual access or he will be in trouble again.

While conceding that the spouses have a right to exclusive and frequent sexual access
to each other, I wonder where this debate leaves us in the context of the demand to
recognise marital rape. While many countries have already introduced this provision,
India lags far behind. Similar rulings only serve to push the debate even further by
making a husband’s demands for sex as the central core of the marriage, and make it
obligatory for a woman to concede to her husband’s demand even against her own will
or get out of the marriage.

===

To let a humming bird die

DOES THE right to life include the right to die? In a path-breaking judgment delivered on
7 March, the Supreme Court seems to have answered this question in the affirmative, at
least partially. The two-judge Bench of Justice Markandey Katju and Justice Gyan Sudha
Misra has upheld a person’s right to die.

However, the ruling has cautiously restrained the right of family members, doctors and
friends to make this choice on behalf of a terminally ill patient and has directed that the
permission can be granted by high courts on a case-to-case basis after examining the
facts and circumstances.

The ruling was delivered on a petition filed by author Pinky Virani as the ‘next friend’ of
Aruna Shanbaug, the nurse at KEM Hospital who was subjected to brutal sexual violence
by a ward boy. He had strangled her with a dog chain and sodomised her 38 years ago,
while she was in the prime of her youth, causing irreparable brain damage.

The court declared that Virani — who had written a book on Aruna’s life — cannot be
deemed as her ‘next friend’ and hence did not have the locus to plead on her behalf for
her death. This power to petition vests squarely with the medical and nursing staff of
KEM Hospital, who have been caring for Aruna all these years with utmost dedication.
Despite being bed-ridden for nearly four decades, there are no bedsores on Aruna’s
body, a silent testimony to the affectionate care she receives at the hospital. At the
appropriate time, it is they who will have the right to plead for mercy killing on her
behalf, the court said.

Though the writ petition could have been dismissed at the preliminary stage as no
ground of violation of a fundamental right was made out, the Supreme Court opted to
examine the issue at length due to the growing societal concern over euthanasia and set
certain guidelines for future cases. But while doing so, it placed the issue squarely in the
domain of the legislature and urged the government to enact a suitable legislation after
a wider debate. This is a positive move and it is for this reason that the ruling must be
applauded.

While rejecting the petition for mercy killing, the court made a distinction between
‘passive’ and ‘active’ euthanasia and held that while passive euthanasia is permissible,
active euthanasia is prohibited. The court reasoned that if the person is allowed to die by
not administering life-saving drugs or support systems, it can be deemed to be passive
euthanasia. But administering lethal drugs that would induce death would be active
euthanasia.

While the right to life is a basic and fundamental right, the right to life with dignity and
also correspondingly, death with dignity, is also an equally valued fundamental right that
the court seems to have upheld in this ruling. The ruling affirmed that the right to life
includes the right to live with human dignity, and in the case of a dying person, who is
terminally ill or in a permanent vegetative state, (s)he may be permitted to terminate it
by a premature extinction of his (her) life, and it is not a crime.

The fear of misuse by greedy relatives of a terminally ill person who might
resort to this remedy is real

This statement will have far reaching implications and will bring some respite to families
lacking financial resources to meet the prohibitive costs of privatised medical care and
save the terminally ill from a tortuous and lingering death.

Unless the State provides free medical aid to the poor and marginalised, mere moral
pontification from the pulpit about the divinity enshrined in the right to life is of little
solace to the families of terminally ill people. The fear of misuse by greedy relatives who
might resort to this remedy and withdraw life-saving support, or the manner in which this
provision can be against women by their husbands is real.

The guidelines or a case-to-case approach is necessary and appropriate to separate the

grain from the chaff.

===
Home is Where the Hurt is

Around March 8, celebrated as International Women's Day the world over, it has become
a habit to focus on "women's empowerment". For us in India, it is a mixed bag. We have
a woman holding the highest office. The head of the ruling coalition as well as the leader
of the opposition are women, and four Indian states have women chief ministers. One-
third reservation for women in local bodies has brought a large number of women from
economically and socially disadvantaged communities into the political arena.

But on the flip side, the gender gap continues to be dismal. Despite the overall economic
growth, India is ranked 112 out of a total of 134 countries in the Global Gender Gap
Index for 2010, while countries such as China have made considerable progress. The
overall score was partially bolstered by relatively good performances on political
empowerment — it ranked 25th, but it fell behind in economic participation and
opportunity (125th), educational attainment (116th), and health and survival (128th).
The declining sex ratio, dowry-related murders, suicides by women and increasing
number of rapes in the country have earned us the disgraceful reputation of being one of
the most dangerous countries for women to live.

The sex ratio for children in the age group of 0-6 years has come down to 914 girls per
1,000 boys. For Mumbai, it is even worse with 892 girls. In 2009, around 8,363 women
were killed for dowry in India, the largest number in South Asia. The actual number of
women who died in their marital homes far exceeded the official records.

The recently-enacted Protection of Women from Domestic Violence Act, 2005, held great
promise. Defining domestic violence in the widest of the terms to include physical,
emotional, economic and sexual violence, the Act had promise of safety, security, shelter
and economic independence. (One of its most important safeguards was its insistence on
a woman's right to reside in her marital home, even if she was not a co-owner.) But the
promise that the state will provide the infrastructure for easy access through simple
procedures — appointing protection officers who would support the woman, file the
Domestic Incidence Report on her behalf and also help her with the legal process — has
remained unfulfilled. Some states like Maharashtra have only given additional charge to
tehsildars and child probation officers who are not equipped to do this work. No money is
paid to NGOs designated as service providers and no public hospitals have been
designated under the Act to give immediate support to victims of violence. As a result,
only a few women are able to approach the court: most women in Maharashtra are
represented by private lawyers who charge exorbitant fees. Just recently, a magistrate
court in Mumbai refused to grant interim maintenance to a Muslim woman under the Act
on the basis that she declined the husband's offer of reconciliation, despite evidence
being produced of the long history of physical cruelty.

The wide scope of the Act has been systematically curtailed by rulings of the higher
courts. In an adverse ruling in 2007, the Supreme Court held that a woman does not
have a right of residence in the premises owned by her in-laws. This ruling declined to
give credence to the cultural norm where the married son is expected to live with his
parents and marriage alliances are made by elders in the family depending on the
economic status of the "family" rather than the groom. In yet another scathing
judgement in 2010, the Supreme Court addressed women in live-in relationships as
"mistresses" and "keeps" and denied them maintenance. So instead of widening the
scope, the judiciary has attempted to constrain the scope of this Act.
Another ruling of the Bombay High Court, delivered recently, curtailed the right of
married daughters in their parental homes. The judge commented: "When a daughter
gets married and leaves the house of the father to reside with her husband, she ceases
to be a member of the family of father... After marriage when she goes to the house of
the parents, legally she is only a guest in the house." This strengthened the traditional
notion that the daughter is "paraya dhan". It is this cultural framework that provides the
basis for sex-selective abortions in the country.

Nevertheless, reforms within family laws have consistently attempted to grant women
right of inheritance and residence in their parental home. For instance, the amendment
to the Hindu Succession Act in 2005 rendered the Hindu woman an equal sharer in the
ancestral property of her father and awarded her a right by birth similar to that of her
brother. The amendment also removed the earlier restraint upon a married woman's
right of residence in her parental property. Similarly, the Protection of Women from
Domestic Violence Act, 2005, secured the right of women to reside in their parental
home. Both provisions aim to secure for married women a legal option which will make
them less vulnerable in their matrimonial home.

The Bombay HC judgement seems to be oblivious of these progressive and pro-women

legal trends. It will serve to undo the gains of these reforms and push women to the
brink when they are subjected to humiliation and abuse in their matrimonial home.

The blame for this dismal state must squarely be laid at the doorstep of parental
families. It is they who do not want to give birth to daughters, want to marry off their
daughters at a young age and deny them the chance of getting professional education. It
is they who do not wish to give property rights to their daughters and prevent them from
returning to the natal family even when they face acute problems in their marital homes.
It is they who prevent girls from choosing their own life partners in the name of family
honour. Unless we focus on this problem, statistics on violence against women will
continue to be dismal.

Flavia Agnes is a women's rights lawyer and director of the Mumbai-based organisation
Majlis, which offers legal assistance to women

===

Shah Bano to Shabana Bano

After the furore created by the Supreme Court ruling in 1985 which upheld the rights of
divorced Muslim women for maintenance under Section 125 of the Criminal Procedure
Code (CrPC), and the subsequent enactment of the Muslim Women's Act of 1986, the
idea gained ground that a divorced Muslim woman's rights had been extinguished. The
popular notion which prevailed at the time, that a Muslim woman is stripped of all rights
against her husband beyond the iddat period (three months after the divorce), continues
despite several rulings to the contrary. This is because the myriad and unpredictable
ways in which the economic rights of Muslim women were reaffirmed during the last
quarter-century have not received the attention that they deserved.

The latest in this series is the Supreme Court verdict pronounced by Justices Deepak
Verma and Sudarshan Reddy on 4th December, 2009. Shabana Bano approached the
court for maintenance of Rs 3000 per month; her plea was that when she was pregnant,
her husband left her in her natal home with a warning that she would not be allowed to
return after her delivery unless his demands for dowry were met. Hence she was
constrained to file a petition for maintenance under Section 125 in the family court at
Gwalior. Since the husband pleaded that he had divorced Shabana and hence he is not
entitled to pay her maintenance, the court awarded her Rs 2000 per month for the four
months between her petition and her divorce. The MP high court dismissed her appeal. It
is against this background that the SC upheld her rights.

The gains of this ruling are twofold: it upheld the rights of divorced Muslim women for
maintenance under Section 125 and it also upheld the jurisdiction of family courts over
maintenance issues of divorced Muslim women. Where social legislations enacted to
secure the rights of needy women are concerned, the Supreme Court commented that
adherence to rigid rules of procedure and evidence should be avoided. The judges relied
upon two earlier rulings: the historic constitutional bench ruling in Daniel Latifi in 2001
and the more recent Iqbal Bano in 2007.

The Daniel Latifi ruling upheld the divorced Muslim woman's right to a fair and
reasonable settlement as per Islamic principles — which would entitle her to claim a
lump sum at the time of her divorce. After this ruling, every Muslim woman became
entitled to a lump sum at her divorce. The judgment in turn validated several rulings of
various high courts which awarded lump sum amounts ranging from Rs 50,000 to Rs
5,00,000 to divorced Muslim women in the intervening years — after MWA was enacted
in 1986, till the verdict was pronounced in 2001.

It also relied upon the Iqbal Bano ruling of 2007, which held that proceedings under
Section 125 are civil in nature. Hence even after the divorce, the woman would be
entitled to claim maintenance under Section 125, considering the beneficial nature of the
legislation.

Reading these three Supreme Court rulings together, one can surmise the following:
first, a divorced Muslim woman's right to maintenance (or economic settlement) from her
husband is not extinguished upon divorce; second, she has dual claims — under Section
125 for recurring main-tenance, or for a lump sum settlement under MWA. Third, while
the jurisdiction for MWA is in magistrates' courts, where family courts have been set up,
divorced Muslim women are entitled to claim maintenance in family courts.

While these are significant rulings capable of a far-reaching

impact, unless they are used in trial court litigation and are used to change social norms
within communities they will remain merely ornamental snippets in law journals. Unless
all those who are committed or are statutorily bound to protect the rights of Muslim
women — lawyers, women's groups and social workers — are aware of these gains, the
judicial pronouncements will cease to have an impact upon their lives, as was the case
with Shabana Bano.

Rather ironically, Shabana was married in 2001, after the Daniel Latifi ruling. She had
filed for maintenance in March 2004. But sadly, both the family court of Gwalior and the
high court did not apply the principles laid down in Daniel Latifi to her case. This resulted
in grave economic hardship, and delay in accessing her basic right of maintenance. If
ignorance of law is no defence for an ordinary citizen against commitment of a crime,
ignorance of accurate legal provisions protecting the rights of the vulnerable and
marginalised cannot be a defence for lawyers, judges and conciliators who are duty
bound to protect their rights.
Twice shy

The recent Bombay High Court ruling delivered by Justice A.S. Oka brings to an end the
prolonged ordeal suffered by a simple village woman, Suman Satav. The ruling upheld
her right to maintenance to a paltry sum of Rs 500/- under Section 125 of the Criminal
Procedure Code (Cr.PC). Though the sum may be paltry, it bestows on the woman, and
thousands of others like her, dignity and status in a society where marriage continues to
have a high premium for women, particularly in rural areas. Suman's ordeal had started
way back in 1991 when she was assaulted and thrown out of the matrimonial home
along with her minor daughter, then aged four. The magistrate's court and the sessions
court had denied her maintenance, upholding her husband Nivruti's contention that since
he was already married, there cannot be a valid marriage between himself and Suman.
However, since paternity was not denied, the daughter was awarded Rs 200/- per month
as maintenance which was enhanced to Rs 400/- by the sessions court.

Nivruti's contentions are not unique. Denying marriage on the ground of bigamy is a
common ploy adopted by husbands to avoid maintenance to their women with whom
they have cohabited for a prolonged period. In this context, the landmark ruling in Badri
Prasad vs. Dy Director of Consolidation, in 1978, had laid down that prolonged
cohabitation between a man or a woman leads to a presumption of marriage under
Section 114 of the Evidence Act.

Though Justice Oka's judgement is highly valuable, it is not a precedent for the Bombay
High Court. It follows the tradition set by Justice Kania, way back in 1976 in Govindrao
vs. Anandibai (AIR 1976 Bom 433), which had ruled that since the Hindu Marriage Act is
a beneficial legislation, it would not be right to adopt a narrow approach and deprive a
large number of women their rights of maintenance. This could not have been the
intention of the legislature. Had the lower courts followed this ruling, Suman would not
have been spared this ordeal. Justice Oka relied upon another judgement of the Supreme
Court which had also upheld a similar position, Dwarika Prasad Satpathy v Bidyut Praya
Dixit (AIR 1999 SC 3348) and had laid down that strict proof of a valid marriage is not
necessary while deciding the issue of maintenance in summary proceedings under
Section 125 of the Cr.PC.

Another important ruling on this issue was delivered by the Supreme Court in 2004 in
Rameshchandra Daga vs. Rameshwari Daga, where the right of another woman in a
similar situation was upheld. Here the apex court had accepted that Hindu marriages
have continued to be bigamous despite the enactment of the Hindu Marriage Act in
1955. The court had commented that though such marriages are illegal as per the
provisions of the Act, they are not 'immoral' and hence a financially dependent woman
cannot be denied maintenance on this ground. But a contrary and regressive view was
expressed by another bench of the Supreme Court in 2005, in Savitaben Somabhai
Bhatiya vs. State of Gujarat (AIR 2005 SC 1809) which denied the woman maintenance
on the ground that it is inconsequential that the man was treating the woman as his
wife. The court commented, "However desirable it may be to take note of the plight of
the unfortunate woman, the legislative intent being clearly reflected in Section125 of the
Cr.PC, there is no scope for enlarging it by introducing any artificial definition to include a
woman not lawfully married in the expression 'wife'." Fortunately for women, Justice Oka
did not endorse this view though this case was cited in support of the husband's claim.

Perhaps I need to clearly state my position here, lest I be quoted out of context. I am not
endorsing bigamy, but rather, making out a case in defence of women who are caught in
this web of deceit by husbands who take advantage of the vulnerability of women and
then try to escape from the financial liability by using provisions of an Act which was
meant to be beneficial to Hindu women. Only under the Hindu law is it possible to
blatantly plead an illegal act and gain financial advantage without any criminal
culpability. This occurs so routinely that the apex court in Vimala vs. Veeraswamy, had
laid down that when a man pleads an earlier marriage, he would have to strictly prove
the same. In the present case, the husband could not prove that he was married earlier
in 1978, prior to his marriage with Suman in 1980. But the bigamy was an admitted fact,
since the wife herself pleaded that in 1982 he had married again. But he continued to
cohabit with her and produced children at regular intervals. The two earlier ones had
expired and only the daughter born in 1987 has survived.

These facts highlights another reality of Hindu women's lives. Though women do have a
right of divorce, most women in rural areas accept their husbands' bigamous marriages
and continue to reside with them despite domestic violence, so long as the husbands
continue to cohabit with them and maintain them. Only when they are thrown out, they
approach the courts for their basic right of survival. It is here that the trial courts have to
be aware that they have a constitutional duty to uphold women's right to dignity and
survival.

==

Flavia Agnes on Muslim Personal Law Reforms. Interview by Yoginder Sikand,

Flavia Agnes is a leading feminist scholar, women’s rights lawyer and social activist
based in Mumbai. She has written and worked extensively on Muslim women’s issues,
communalism and religion-based personal laws in India. In this interview with Yoginder
Sikand, she talks about her work.

Q: Could you tell us something about your own background?

A: I’ll skip all the details about my childhood and I’ll start by saying that I lived as a
housewife for 13 long years in a very violent marriage. I could stand it no longer and then
went through a very painful separation. It was because of the trauma that I went through
that I came in touch with women’s groups in and around Mumbai, through which I
discovered that my trauma was actually shared by numerous other women as well. So, it
was my struggles with my marriage that led me to get involved with women’s
organizations struggling for the rights of women.

After my separation I had to struggle to stand on my own feet, and so I decided to do my

graduation, after which I did a degree in law and then went to the National Law School,
Bangalore, where I did an M.Phil. For my thesis, which was later published by Oxford
University Press, I worked on law and gender equality, looking at the politics of personal
laws in different religious communities, examining, in particular, what these mean for
women. I discovered that women, in all communities, are seen as the primary bearers of
community identity, and this is reflected in the ways the different personal laws are
constructed. There are, from the woman’s point of view, good and bad things in each of
these laws, and none of them can be said to be perfect. And another thing I looked at
was how politics are played out on women’s bodies, how state policies are often sought
to be justified by evoking women’s issues. This happened in the British colonial period,
for instance, where colonialism was sought to be justified as a ‘civilising’ mission,
‘delivering’ Hindu and Muslim women from ‘subjugation’. Claiming to ‘defend’ women is
still routinely justified to defend imperialistic projects, as, for instance, in the case of the
American invasion and bombing of Afghanistan, where they claimed that they were doing
so to ‘liberate’ Afghan women from Taliban rule.

Q: You have been a prominent critique of what you see as the insensitivity of many
‘secular’ feminists to the particular issues of religious minorities. What exactly is your
stand on this?

A: Yes, there is this sort of bias among many women who call themselves ‘secular
feminists’. Often such biases are unacknowledged and sometimes are not even
consciously held. Let me explain this by giving you my own personal example. I was a
church going Catholic but I gave up all that and I joined the feminist movement that
defined itself as ‘secular’. These women wanted to be known simply as ‘women’ and
claimed that they had transcended community boundaries and so on. But soon it dawned
on me that many ‘secular’ feminists were really not as ‘secular’ as they claimed. Most of
them were Hindus, or of Hindu background. And so some of them would talk about how
Christian and Muslim personal laws were flawed and discriminatory towards women, but
they would never talk about aspects of Hindu personal law that discriminate against
Hindu women.

That’s when I began to feel the need to engage in this whole discourse on personal laws,
to see what exactly the different personal laws actually mean for women, both in theory
and in practice in the ways that they are interpreted by the courts.

So, this is how I came to feel the need to challenge the communalism that exists in
significant sections of the women’s movement that defines itself as ‘secular’. A turning
point was the 1991 women’s studies conference held at the Jadavpur University,
Calcutta. I was invited to speak on Christian law, and what it means to be a Christian
feminist. I was shocked! I mean, I had been working all along as a ‘secular’ feminist, and
just because I have a ‘Christian’ name and because I happen to have been born in a
Christian family I was branded as a ‘Christian’ and invited to speak in that capacity. Why
were the other women at the conference not similarly labeled as ‘Hindu’ feminists, I
asked the audience, unable to control my anger. This showed, I said, the deep-rooted
communalism within some sections of the feminist movement, where activists from
Hindu families are simply ‘feminists’ with no qualifying label, while those from Muslim or
Christian or other non-Hindu backgrounds come to be identified with the extra tag of
‘Muslim’ or ‘Christian’ or whatever. And this is sought to be defended with the same logic
that the Hindutva-wadis use—that Hinduism is not really ‘religion’ but ‘culture’. So, then
it becomes ‘culture’, and, therefore, excusable, if a feminist from a Hindu family keeps
an idol of Krishna in her house or celebrates Diwali. She is still considered to be ‘secular’.
But if a feminist from a Christian family keeps a picture of Christ or celebrates Christmas,
she is said to be a ‘Christian feminist’, and so she is not really secular enough! So, the
assumption is that a ‘Hindu’ feminist is by definition secular, since Hinduism and ‘culture’
are synonymous, while a Muslim or Christian feminist has to constantly struggle to
‘prove’ that they are ‘secular’ and not ‘communal’ by denying their religion. In other
words, it often boils down to the claim that, for some it’s okay for a ‘Hindu’ feminist to
practice her religion in some way but the same is not true for a ‘Muslim’ or a ‘Christian’
feminist.
Q: What was the reaction of the audience to your speech?

A: Pandemonium! A lot of heated discussion and debates. I was accused by some

feminists of dividing the feminist movement on communal lines. My critics claimed that
all women are actually one and to raise such sensitive issues would break the
movement. My answer was that I wasn’t dividing the movement. Rather, the organizers
of the panel themselves had done so by, in a sense, labeling me as a ‘Christian’ activist. I
asked them why some ‘secular’ feminists keep harping about the legal injustices that
Muslim and Christian women are subjected to because of their personal laws but remain
silent on similar aspects of Hindu law. As you can imagine, many women criticized me,
but several others appreciated the point I was making.

Q: What is your position on a Uniform Civil Code?

A: I am opposed to a uniform civil code. Who are we to decide what is best for other
women? At best I think we can have an optional civil code, but it should not be made
compulsory for all. That’s precisely what the Hinduvta lobby wants. In the name of a
Uniform Civil Code it wants to impose Hindu law on everybody, and this is just another
way of bringing other communities into the Hindu fold or to deny their separate cultural
identities. Another problem with this argument is that it totally ignores the patriarchal
provisions in Hindu personal law.

I think we need to think of devising ways of reconciling gender justice with legal
recognition of the identities of multiple cultural groups. So, instead of a Uniform Civil
Code, I think we need to work towards separate gender-just personal laws for the
different communities. I think that, especially after the Shah Bano controversy and then
the destruction of the Babri Masjid and the violence that followed, many women’s groups
in India are veering round to this position, aware that supporting a Uniform Civil Code at
this juncture would only play into the hands of the Hindutva-wadis. These gender-just
personal laws have to emerge from the grassroots in a gradual manner in order to gain
the acceptance of the different communities. They cannot be forcibly imposed or
legislated from above. And as these different gender-just personal laws for the different
communities evolve slowly it will lead to uniform principles, although not uniform laws.

Q: How did you get involved in activist work among Muslim women?

A: I studied Muslim personal law in the course of my thesis work, and then came the
massive pogroms directed against Muslims in Mumbai in the wake of the destruction of
the Babri Masjid. By this time we—some friends and I—had set up our own NGO, called
Majlis, which was working among women in Mumbai, including Muslim women. I deposed
before the Srikrishna Commission investigating the pogrom. After that, I began writing on
Muslim personal law issues, and some of these were later published as articles in journals
and as booklets. Through my writings I tried to critique the notion of Muslim laws as
being necessarily and wholly anti-women, looking at the various ways in which these
laws could be interpreted, and also the fact that in some respects these laws are more
favorable to women than Hindu laws are. I also tried to critique various judgments that
began appearing at this time that were clearly anti-Muslim. Particularly after the Shah
Bano controversy there was an outburst of anti-Muslim sentiment, including in the
women’s movement, with numerous ‘secular’ feminists claiming that Islam and gender
justice were totally irreconcilable. In my own small way I tried to counter these
stereotypes. For instance, I tried to show that the Muslim Women’s Maintenance Act,
which Parliament passed in the wake of the Shah Bano controversy, is actually an
improvement on the earlier position.

Numerous judgments have interpreted the act to provide lifelong maintenance for
divorced women lifetime, in accordance with the Qur’anic injunction to treat divorced
women justly and fairly and to give them a reasonable maintenance. So, this supposedly
retrograde law is actually helping Muslim women, but why, I keep asking, do many
‘secular’ feminists ignore this? Is it because of some deep-rooted anti-Muslim prejudice?

In the course of my work I came into contact with Muslim groups in Mumbai, including
with people associated with the All-India Muslim Personal Law Board, giving them inputs
on issues related to legal matters, including, but not only, on gender-related questions. I
also worked with some Board members and Muslim social activists to draft a model
marital contract or nikah namah.

Q: Who all were involved in drafting this nikah namah? What provisions does it contain
that can protect the wife from arbitrary divorce or from her husband taking a second
wife?

A: Our nikah namah was a joint effort by a group of women, including Uzma Naheed, one
of the few women members of the Board, Nasreen Fazalbhoy of the Mumbai University,
Niloofer Akhtar, an advocate, and myself, in consultation with two ‘ulama. It clearly lays
down the dower or mehr promised to or received by the bride, the rules for arbitration in
case of divorce, the possibility of delegated divorce, and the conditions under which a
man may take a second wife. Personally, I wasn’t happy at all with the last thing, but
some others in the drafting team said we should put it in. But we’ve tried to restrict
polygamy by insisting that a second marriage should be allowed ‘only for valid reasons’,
‘as per the stipulations of shari‘ah’ and only after making ‘adequate arrangements’ for
the wife’s maintenance and residence. Our nikah namah specifies that the husband shall
not force the wife to share her matrimonial residence with the second or subsequent
wife, and will not ‘in any way alter the prevailing status of the wife to her disadvantage’.
He must also ‘treat her with the same degree of respect and economic security’ as the
wife from the second or subsequent marriage. Further, in case he contracts a second
marriage without informing his first wife, the latter will have the right to demand a
separate residence and maintenance and also the right to delegated divorce. The
husband, in this case, might also be liable to pay a fine.

On the issue of divorce it lays down that if the husband resorts to triple talaq in one
sitting without first resorting to arbitration, he will have to pay his wife all that he owes
her, in addition to a fine. The normal course should be to first go through arbitration
proceedings, with two arbitrators, one from each side. In case the differences between
the spouses are irreconcilable, the arbitrators will help the spouses arrive at a settlement
before the dissolution of the marriage on maintenance during the ‘iddat period, payment
of outstanding mehr dues, return of gifts given at the time of the marriage or
subsequently, fair and reasonable provision, children’s custody, access and maintenance
and division and transfer of joint and separate moveable and immoveable property.

Q: What do you feel about the splits in the Board? What implications do you think this
might have for Muslim women?

A: I think this is a very welcome development. It clearly challenges the notion of the
Board being the final arbiter of Islamic law, a claim that the Board has repeatedly been
making ever since it was established in 1972. The fact of the matter is that, legally
speaking, it is not the Board but the courts that are the final authority in this matter. The
courts, and not any extra-legal entity, have the final authority to interpret Islamic law, no
matter what the ‘ulama and the Board may claim. Not many people know this. They think
that the Board is the final authority in these matters, and the pin all their hopes for legal
reform and progressive interpretation of Muslim personal law on the Board. But, as I have
tried to show in my writings, this stems from a fundamental misunderstanding. It is the
courts that have the final authority in this regard. So, a Muslim woman is not bound to
first go to the Board for any issue. She can go straight to the courts. Even if she does go
to the Board, she need not accept the decision of the Board on any matter and she has
the right to go to the courts, for the courts alone, and not the Board or the ‘ulama, have
the final say in interpreting Muslim personal law. And, further, as I have been stressing in
my writings, of late the courts have passed several pro-women judgments based on that
authority. Thus, for instance, in various recent judgments the courts have ruled that a
Muslim man does not have the power to arbitrarily divorce his wife. The man must supply
the courts with reasonable and adequate reasons for divorce. The couple must first go
through proper arbitration proceedings and fulfill the conditions specified in the Qur’an,
otherwise the courts will not accept the legality of the divorce.

Q: So, you feel that the splits have actually strengthened the courts in their capacity of
being the ultimate interpreters of Muslim personal law?

A: Exactly, and this is a very welcome development. Earlier, there was a sort of sanctity
attached to the Board, and the courts felt that they needed to take the Board’s opinion
into account in making decisions. Judges may have been apprehensive that if they
interpreted Muslim personal law in a certain way the Board would protest. They may
have felt that they needed to respect the views of the Board, which claimed to represent
all the different Muslim sects. But now that there are several Muslim personal law boards,
each claiming to authoritatively interpret the shari‘ah, obviously the courts can now say
that the Board does not have a monopoly, and hence can argue that what the original
Board or any of the splinter groups say cannot be said to be the final word on the
shari‘ah since they cannot agree among themselves as to what the shari‘ah says on a
particular matter! The ability of the courts to interpret Muslim personal law will also be
strengthened now because earlier the Board, claiming to represent all the Muslim sects,
had a certain political clout, which, following the splits, has been considerably curtailed.

The splits in the Board have also brought to light the sectarian differences within the
larger Muslim community, clearly indicating the differences in the ways in which the
different Islamic sects interpret the shari‘ah. So, it shows how the shari‘ah is not a
monolith, and that Muslims are almost as internally diverse as are other communities,
such as the Hindus and Christians.

Q: The ‘ulama claim that, as scholars of Islamic law, they have the ultimate authority to
interpret Muslim personal law. In their writings, some ‘ulama even claim that non-Muslim
judges in secular courts, such as in India, do not, or at least should not, have the right to
interpret the shari‘ah. So, what exactly is the legal position on this?

A: The ‘ulama may say what they like, but the fact of the matter is that, according to
Indian law, it is the courts that have the ultimate authority to interpret Muslim personal
law. The judges of the courts may, of course, be of any religious background, not
necessarily Muslim. So, a maulana may say that if a Muslim man pronounces talaq three
times in one he has divorced his wife, and might claim that this is in accordance with the
shari‘ah. But the courts need not accept that. They might say that this is insufficient for a
divorce, and that the couple must first go through arbitration proceedings and so on. The
judgments of the courts, and not the views of any maulana or of the Board, will be
accepted as final and binding.

Q: In order to circumvent the authority of the courts to interpret Muslim personal law,
and also to ensure cheaper and faster justice, some ‘ulama and Islamist organizations
are now talking about setting up a chain of shari‘ah courts or dar ul-qazas to deal with
family-related issues. What are your opinions on this?

A: Some dar ul-qazas have been set up in recent years in different parts of the country,
but no comprehensive study has been made to examine how they actually function and
whether they actually do provide justice to women. It certainly is a way to have disputes
judged in far less time and at considerably less cost than through the courts. I fear,
however, that the qazis in these courts have been reared in a very sternly patriarchal
tradition and that, therefore, they may not be sensitive to women’s concerns and may
not be willing to interpret Muslim law in a gender-sensitive way. I think one way to help
remedy the situation is to have more Muslim women scholars who are well-versed in the
nitty-gritty of Muslim jurisprudence and can interpret it in a women-friendly way. In any
case, it is important to reiterate here that the decisions of these dar ul qazas have no
legal standing as far as the courts are concerned, and that litigants can always approach
the courts if they do not agree with the judgments of the qazis.

Going gently into that good night

In a path-breaking ruling delivered earlier this week, the Supreme Court conceded that
the right to live with dignity includes, within its scope, the right to die with dignity. In the
process of examining the right of Aruna Shanbaug, a staff nurse of KEM hospital who has
been in a coma since 1973, the two-judge bench of Justice Markandey Katju and Justice
Gyan Sudha Misra declared that suicide is not a crime, and advised the government to
consider the deletion of Section 309 of the Indian Penal Code, which penalises a person
who has survived an unsuccessful suicide attempt. In clear terms, the court has
conceded that no one can be forced to live against one's wishes.

While rejecting the petition for mercy killing filed on Aruna's behalf by writer Pinki Virani,
as her "next friend", the court made an important distinction between "passive" and
"active" euthanasia and held that passive euthanasia is permissible while active
euthanasia is prohibited.

Explaining this concept further, the court commented that if the person is allowed to die
by not administering life-saving drugs or some other type of mechanical or technical
support, it can be deemed to be passive euthanasia. But administering lethal drugs that
would induce death would be active euthanasia. Upholding a person's right to refuse
treatment, the court validated the principle of self-determination or informed consent to
passive euthanasia. The court clarified further that informed consent can be given in
advance, through the concept of a "living will" made at an earlier point of time while the
person is in full control of all faculties, an idea which is more common in countries like
Canada.

The court explained that in passive euthanasia, the question is not whether it is in the
best interest of the patient that s/he should die. Rather, the question is whether it is in
the best interest of the patient that her life should be prolonged by the continuance of
life-support treatment. This opinion must be formed by a responsible and competent
body of medical persons in charge of the patient. However, fearing misuse, the Supreme
Court has restrained the right of family members, doctors and "next friend" to make the
choice of passive euthanasia on behalf of a terminally ill patient, and has directed that
the permission must be sought from the high court in its capacity as parens patriae
(guardian of an incompetent person) on a case-to-case basis, examining the facts and
circumstances of each case.

The fear of misuse by greedy relatives who might resort to this remedy and withdraw
life-saving support, or the anxiety that this provision might aid husbands to cut short the
medical treatment of their wives suffering from curable ailments, is real. Hence the case-
to-case approach is necessary and appropriate to separate the grain from the chaff.

While being sensitive to the needs of the terminally ill, why did the court reject Virani's
petition filed on behalf of Aruna on a note of compassion, to bring to an end her
suffering? Aruna has been in a vegetative state since the day she was brutally
sodomised and strangled 38 years ago, causing irreparable brain damage.

The court held that though the efforts of Virani, who had written a book on Aruna's
suffering, needed to be applauded, she could not be deemed the "next friend" and hence
did not have locus standi to plead on her behalf for her death. This power to petition for
her death, the court declared, vests squarely with the medical and nursing staff of KEM
hospital, who have been caring for Aruna through these years with utmost dedication; at
the appropriate time, it is they who will have the right to plead for mercy killing on her
behalf. Through this, the court elevated the status of the primary caregiver as "next
friend", vested with powers of decision-making on behalf of their ward of life-and-death
magnitude. This is in recognition of the selfless service the hospital provided Aruna, even
while her own biological family abandoned her.

Though the writ petition could have been dismissed at the preliminary stage, as no
ground of violation of a fundamental right was made out, the Supreme Court opted to
examine the issue at length due to the growing societal concern over euthanasia and set
certain guidelines for future cases. The judgment will have far-reaching implications and
will bring some respite to families who do care for their loved ones but lack the crucial
financial resources to meet the prohibitive costs of privatised medical care, and save the
terminally ill from a tortuous and lingering death. Unless the state provides free medical
aid to the poor and marginalised, mere moral pontification about the divinity enshrined
in the right to life is of little solace to the families of terminally ill people.

The writer is a women's rights lawyer

What’s yours should remain yours

The joint select committee of Parliament, in its 45th report submitted to the Rajya Sabha
earlier this month, has urged the government to consider the introduction of the
principle of "division of matrimonial property" into our matrimonial statutes. This is a sort
of victory for women's organisations who have long been campaigning for this right. This
is the first time such a recommendation finds a place in official discourse, and marks a
new beginning.

The recommendation was made while examining the feasibility of introducing the
provision of irretrievable breakdown of marriage (IBM) into our marriage laws. It is
indeed surprising to note that while the Law Commission in its various reports had
recommended that IBM should be introduced as a ground for divorce, it had failed to
recommend that such a provision should be accompanied by a provision for division of
matrimonial property. The basis for the recommendation was that several Western
countries have incorporated such a provision into their matrimonial statute. But the
short-sighted recommendation had failed to examine the provision in Western countries
in its totality. Every country that has introduced this provision has also simultaneously
incorporated the principle of division of matrimonial property. It was obvious that without
such a provision, the introduction of IBM would cause grave hardships to both home-
maker wives as well as to women shouldering the double burden of wage employment
and home-making.

Alarmed at the government's intention to introduce a bill on IBM, women's organisations

urged the law minister to consider including the provision of division of property at the
time of divorce into this bill. So after its introduction on August 2, 2010, the bill was
referred to the joint select committee of Parliament, whose recommendations now come
as welcome respite.

Under the legal regime of separation of property, the property acquired by the husband
is deemed to be exclusively his. And so, divorce renders most women destitute, devoid
of shelter, economic security and property rights. While superficially, the notion that
each person is entitled to their own property appears to be a just and equitable one, as
we probe deeper into the ascribed gender roles within marriage, it becomes problematic.
Our society views men as the primary breadwinners of the family. In order to facilitate
this process, a woman is expected to sacrifice her career and dedicate herself totally to
the task of caring for him. In this process, she is also expected to take on the task of
home-making, child-bearing, child-rearing and caring for the sick. Even if she is required
or permitted to work, in most situations, it would only be to augment the family income.
Her earnings are treated as the family's supplementary income. The contribution of the
home-maker spouse has no economic value. In a recent ruling, Arun Kumar Agarwal vs
National Insurance Company (AIR 2010 SC 3426), the Supreme Court criticised the 2001
census enumeration which categorised 367 million home-makers as "non-workers" along
with beggars, prisoners and prostitutes.

Though the matrimonial property gets accumulated through the active contribution of
the home-maker wife, the husband exercises exclusive ownership rights over it. So when
a marriage breaks down, most women are rendered destitute. A woman's right is
confined to a monthly maintenance dole. If the woman has an independent source of
income, she is denied even this meagre amount. During divorce proceedings, substantial
sums can be secured to the wife only through negotiations during court proceedings in
the event that the husband a hasty divorce. The introduction of this ground will take
away the bargaining power that women have during divorce proceedings filed by their
husbands and will render their situation even worse. It is in this context that the 1995
ruling in Ramesh Chander vs Savitri, (1995 (2) SCC 7) is an important marker. The
Supreme Court directed the husband to transfer the house owned by him to the wife at
the time of awarding a decree of divorce on the ground that the marriage has broken
down irretrievably.

It is hoped that the government will now give serious consideration to the
recommendations made by the joint select committee and draft a law that will ensure
property division at the time of divorce. This is a challenging task as principles evolved in
Western countries may not apply to conditions prevalent in India, for two reasons. First,
the matrimonial home is not a nuclear household. In most cases it comprises of a family
home that is owned by the parents-in-law. Secondly, the prevalence of a large amount of
unaccounted money in our economy makes determination of wealth a difficult task at
the time of divorce.

===

The mother, the child and the marriage

Are children of invalid marriages entitled to property rights? This is a difficult question
with which our courts are constantly bogged down. In 1955, when Hindu marriages were
rendered monogamous, a whole range of women and children who were out of the pale
of strict monogamy were denied their rights to maintenance and succession and were
rendered destitute. However, a slender ray of hope prevailed for illegitimate children,
under Section 125 of the Criminal Procedure Code, where they could claim a meagre
amount of maintenance. Women in bigamous marriages could also be granted
maintenance under this provision by interpreting this socially beneficial legislation in a
sensitive manner, and by expanding the boundaries of law. Various high courts and the
Supreme Court in a number of rulings had held that strict proof of a valid marriage is not
necessary while awarding maintenance to destitute women.

For instance, in Rameshchandra Daga vs Rameshwari Daga the Supreme Court, while
awarding maintenance to a woman whose husband had challenged the validity of their
marriage, conceded that despite codification and introduction of monogamy, the ground
reality had not changed much; Hindu marriages, like Muslim marriages, had continued to
be bigamous. The court had further commented that though such marriages are illegal
as per the provisions of the codified Hindu law, they are not "immoral" and hence a
financially dependent woman cannot be denied maintenance on this ground.

But two subsequent rulings, Savitaben Somabhai Bhatiya vs State of Gujarat and more
recently, D. Velusamy vs D.Patchaiammal denied women in bigamous marriages
maintenance under this beneficial provision. The later ruling which referred to women in
such relationships as "mistresses" and "concubines" created a controversy. But a final
ruling on this issue is still awaited as another bench of the Supreme Court comprising of
Justice G.S. Singhvi and A.K. Ganguly referred the matter to a larger bench in
Chanmuniya vs Virendra Kumar Singh Kushwaha. This ruling has recommended that a
broad and expansive interpretation should be given to the term "wife" to include those
cases where a man and woman have been living together as husband and wife for a
reasonably long period of time, and strict proof of marriage should not be a pre-condition
for maintenance — so as to fulfill the true spirit and essence of the beneficial provision of
maintenance under Section 125. Ironically, this positive ruling did not receive much
attention.

While the controversy over whether a second wife is entitled to maintenance rages on,
the law has been more favourable to children of such marriages. In 1976, through an
amendment to the Hindu Marriage Act, children born in marriages that were void were
held to be "legitimate" and were granted the right of maintenance and inheritance. But
discrimination against them continued. The Supreme Court ruling in Jinia Keotin vs
Kumar Sitaram Manjhi and Bharatha Matha vs R. Vijaya Renganathan gave a constrained
view and had held that a child born in a void marriage was not entitled to claim rights in
ancestral property.

Hence it is refreshing to note that the recent ruling in Revanasiddappa vs Mallikarjun,

delivered on March 31 by Justice G.S. Singhvi and A.K. Ganguly, dissented from the
above two rulings, and has upheld the rights of the child of a void marriage to the
ancestral property of the father. While referring the issue to a larger bench in the context
of the contradictory positions between the earlier rulings and the present one, the bench
held: "The Court cannot interpret a socially beneficial legislation on the basis as if the
words therein are cast in stone. Such legislation must be given a purposive interpretation
to further and not to frustrate the eminently desirable social purpose of removing the
stigma on such children."

The Court relied upon Article 39(f) of the Constitution, which mandates that all children
must be given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and must be protected against moral and material
abandonment.

While this is a positive interpretation, a ruling of the Supreme Court in 1961, in Singhai
Ajit Kumar vs Ujayarsingh provides us with an even wider scope for property rights of
illegitimate children. This ruling has held that even under the shastric law, an illegitimate
son of a "mistress" or "concubine" is entitled to the rights of survivorship as he becomes
a coparcener along with the legitimate son — and, hence, is entitled to enforce a
partition after the father's death. It is in this context that judgements such as D.
Velusamy (cited above) which, at one level, use the terms of Brahminical Hindu law,
referring to women as "mistresses" and "concubines", but at the same time deny them
the protection awarded to them under the shastric law by using a Western model of
monogamy, need to be condemned as regressive and backward looking.

===

Her own mistress

Rohit Shekhar's success in proving his paternity against the denials of his influential
politician-father signals new hope for many women and their children, dubbed
"illegitimate". As Shekhar said, "There are no illegitimate children, only illegitimate
fathers". Using their positions of power, these men sexually exploit women in vulnerable
situations, then take the moral high ground and feign innocence. The law has always
leaned in favour of these men, to the cost of the women involved.

Shekhar's victory poses a challenge to the "presumption" of legitimacy under Section

112 of the Indian Evidence Act, 1872. This section aimed to prevent the fathers from
routinely denying paternity by levelling baseless allegations of adultery against their
wives when they filed proceedings for maintenance. According to this presumption, a
child born during the course of a marriage is presumed to be born of the marital union
between his mother and her husband. It would need clinching evidence of non-access to
absolve the legal father of his liability of maintaining his wife and child. Trial courts
routinely deny women and their children rights against the biological father — the child
was born during the course of the marriage between the woman and her former husband
— and refuse to pass orders for a paternity test. The ruling in the N.D. Tiwari case has
placed their claims on more solid ground. It will help them litigate their claims, which
were denied on the grounds of morality.

The core question in the entire controversy is the nature of Hindu marriages, rendered
monogamous in 1955 by the Hindu Marriage Act. Prior to it, women in long-term
relationships were accepted as wives and could claim their rights both under the Smriti
law (applicable to higher castes) and customary laws governing the lower castes. By a
stroke of the pen, women in non-monogamous relationships were turned into
"mistresses", "concubines" and "keeps", devoid of legal rights. This was in contrast to
the Muslim law, which grants rights to wives in polygamous relationships. So precarious
is the right of the Hindu woman that it is not unusual for two women to come to blows
during litigation to claim the "sacred" space of a Hindu wife.

In a landmark ruling in 2004, in the case of Rameshchandra Rampratapji Daga vs

Rameshwari Rameshchandra Daga,the Supreme Court upheld the maintenance claims of
a woman whose husband had challenged the validity of their marriage and the
legitimacy of her daughter on the grounds that the woman's previous marriage had not
been dissolved. The Supreme Court upheld the woman's rights and chastised the
husband for denying paternity. It accepted that Hindu marriages, like Muslim marriages,
had been bigamous till 1955. There was a tacit acceptance that the ground reality had
not changed much since then. Although such marriages are illegal according to the
statutory provisions of the codified Hindu law, the Supreme Court ruled that they are not
"immoral", so a financially dependent woman could not be denied maintenance on this
ground.

After the recent Rohit Shekhar case, things seem to have improved slightly for women
who have a child out of wedlock. They will now be able to claim maintenance by proving
the paternity of their child. But consider women like Anita Advani. She claimed a live-in
relationship with the superstar, Rajesh Khanna, whose legal marriage to Dimple Kapadia
had remained intact despite long years of separation. Legal paper could be invoked to
deny the woman, who claimed to have lived in with the actor for 10 years, the right to
participate in his funeral rites.

The Domestic Violence Act, 2005, had sought to enhance the dignity and rights of such
women by using a new term in our statutes: "relationships in the nature of marriage".
Everyone believed this would transform the concubines of yesteryear into modern "live-
in partners". But in 2010, Justice Markandey Katju stuck a fatal blow to these hopes
through his ruling in D. Velusamy vs D. Patchaiammal, where the woman was denied
maintenance. Women in marriage-like relationships with married men were termed
"mistresses" and "keeps", devoid of rights. It undid years of effort by several judges who
had provided a positve interpretation of the provision of maintenance under Section 125
of the Criminal Procedure Code.

The notion of monogamy, which some judges have been upholding at the cost of
vulnerable women, has never been part of the Hindu social ethos. It is not just the Rajesh
Khanna-Anita Advani case that reflects this. There are many instances concerning lesser
mortals — ordinary women who believed men in positions of power only to be discarded
and humiliated. Gradually, their stories are coming out of the shadows — cases involving
politicians, police officers, government officials and rich industrialists. Our courts will be
forced to re-examine the decaying institution called the "monogamous" Hindu marriage
while safeguarding the fundamental rights of women and their children, especially the
constitutional guarantee to life. This includes the right to live with dignity, enshrined in
Article 21 of the Constitution.

===

Limited vindication of the rights of women

The proposed amendments to marriage laws lack the detail to guarantee women their
full due

The cabinet's decision to clear a bill providing for amendment to marriage laws has
evoked mixed reactions within women's organisations. While the introduction of the
notion of matrimonial property within Indian family laws is a welcome move, the manner
in which it is being done seems hasty and without due consideration of its
implementability. There is a feeling among these groups that a move such as this, which
has wide repercussions for women's economic rights, warrants a wider debate.

The questions foremost in the minds of activists are — how will the provisions for quick
divorces affect rural women for whom marriage symbolises social status and divorce
spells doom and destitution? Also, what will be the guidelines for distributing property,
when the concept is new and hitherto unknown to Indian family law jurisprudence? Will
the inherent gender biases that predominate court proceedings overshadow fair
distribution? More importantly, if a husband, prior to filing the divorce petition, transfers
his property to his relatives or squanders away his wealth, what will be left for fair
distribution at the time of divorce? Such trends are being adopted to defeat women's
claims to meagre maintenance. Will the new amendment provide further boost to such
tendencies?

It must be admitted that the present bill is an improvement on the earlier one of 2010,
which was introduced in Parliament with the sole intention of introducing the principle of
"irretrievable breakdown of marriage" into the Indian family laws. Due to opposition from
various women's groups, as well as the National Commission for Women, it was referred
to the joint select committee. The select committee, in its 45th report, urged the
government to consider the introduction of the principle of "division of matrimonial
property". This was a victory of sorts for the groups that have been campaigning for this
right, as it was the first time such a recommendation was ever made official. Earlier, the
recommendations of the law commission, as well as some Supreme Court rulings, while
advocating for the introduction of the principle of "breakdown of marriage" had ignored
the fact that marriage is not just an emotional relationship, but also an economic
partnership in which the wife contributes both in economic and non-economic terms.
Though matrimonial property gets accumulated through the active contribution of the
homemaker wife, the husband exercises exclusive control over it. Hence, when a
marriage breaks down, most women are rendered destitute.

Unfortunately, from March 2011 to March 2012, the recommendations of the select
committee lay dormant and no public debate was initiated by relevant ministries, such
as the Ministry of Women and Child Development and the law ministry, or even the
National Commission for Women. But in the meantime, the Maharashtra State Women's
Commission, under directions from the state women and child development ministry,
drafted a bill titled Matrimonial Property (Rights of Women Upon Marriage) Bill, 2012.
The bill introduced the notion of jointness of property upon marriage and made the
property divisible at the time of divorce, following the principles of Goan civil law. It
provided for a 50 per cent distribution of property at the time of divorce, with discretion
to the court to vary from the 50 per cent principle upon certain contingencies such as
disabilities, lack of earning capacity and individual property of the spouses, which is out
of the purview of the common pool of "matrimonial property". The division is based on
the principle of equity, not just a blind notion of equality, which would empower the trial
court to examine the economic situation of both spouses before dividing the property.

The bill was secular in character, and was made applicable to all marriages irrespective
of religious affiliations. Though some questions have been raised about whether the bill
would impinge upon personal laws and violate sharia principles of economic settlements
at the time of divorce, at least the bill was moving towards a wider public debate and
towards building a consensus among various stakeholders.

It is in this context that the Centre's move to amend the Hindu and Special Marriage laws
lacks clarity, transparency and is also extremely narrow in its scope, as it leaves out all
women from minority communities and restricts their right to claim property division at
the time of divorce. The Centre has not given any scope for either women's groups or
other stakeholders to participate in a public debate on an issue of grave importance to
safeguarding women's economic rights and preventing destitution. Once again, this
appears to be a hurried attempt to introduce a bill on irretrievable breakdown of
marriage, with some cosmetic changes to the earlier draft. This is extremely disturbing.

The other two provisions listed for amendment dwarf in comparison, as they are not
intended to bring in any path-breaking innovations to matrimonial law. For instance, the
discretion of the courts to reduce the mandatory waiting period of six months has
already been introduced by judge-made laws and trial courts, on a case to case basis,
have been using their discretion regarding it. The provision of placing adopted children's
rights in custody battles on par with biological children is also insignificant, as this has
never been a contested question warranting judicial or legislative attention. Adopted
children are treated on par with biological children, not just on issues of custody but also
on issues of property inheritance. The only issue that requires in-depth debate is
property division, as clear stipulations have to be laid down regarding what constitutes
matrimonial property, what category of property is to be kept out of the common pool,
and rules of disposal during the subsistence of marriage and at the time of its
dissolution. Without such stipulations, the proposed amendments may lead to even
greater level of destitution among divorced women.

===

Always the wife’s burden

The Bombay high court missed an opportunity to make history by striking down the
archaic provision of adultery which is punishable under Section 497 of the IPC. The writ
petition was filed by a person facing trial in a criminal court on a complaint filed by the
husband for having sexual relations with his wife. It seemed that the husband had
engaged the services of a detective agency to track down the wife's movements.

The argument of the petitioner was that the section violates his fundamental right to
have relations with a person of his choice, particularly since same-sex relationships have
been decriminalised and since the Domestic Violence Act 2005 awards recognition to
"living-in" relationships. Hence the archaic law has ceased to have any relevance in the
contemporary context.

This argument did not cut ice with the bench comprising of Justices B.H. Mariapalle and
U.D. Salvi who strongly felt that Section 497 is essential to preserve the sanctity of the
institution of marriage. The court was of the view that in order to have sex with a person
of one's choice, it is imperative for the married spouse to first excuse herself from the
contract of marriage.

But while upholding this premise, the bench failed to take note of the sexist premise on
which the provision is based — that it views women as essentially the property of their
husbands, a notion prevalent in the bygone era of Victorian England. Consequent-ly,
having sexual relations with her violates the husband's property rights which warrants a
criminal punishment. Within this formulation, a man indulging in extra-marital sex with
an unmarried woman does not warrant a similar punishment as it does not hurt the
sentiments of a male-dominated society. The wife of such a man has no remedy in
criminal law, as it appears that the sanctity of marriage is not violated by such lapses on
the part of men, within a society premised on a patriarchal value system!

Ironically, while this petition was being heard in the Bombay high court, the adjacent
Sessions Court appears to have been gripped with a similar concern. Since the famous
Nanavati trial of 1959, where the husband was given a lesser punishment for killing the
wife's lover, on the ground that it was a crime of passion caused by "grave and sudden
provocation", this ground has been invoked to protect the husband's prerogative which
is a mere extension of the prerogative granted to him under Section 497. The Maria
Susairaj-Emile Jerome murder trial also resonated with a similar concern, where this
privilege was extended to a murderer who was not yet the husband but the woman was
betrothed to him.

There have been challenges to Section 497 on the ground that it discriminates against
men as it does not punish women engaged in extra-marital affairs. But within the
patriarchal scheme, women are viewed as mere chattels and passive objects of men's
sexual pleasure and not active partners in crime. The Constitutional Bench of the
Supreme Court in 1954 in Yousuf Abdul Aziz vs State of Bombay (AIR 1954 SC 321)
upheld this notion using the constitutional mandate of Article 15(3) which provides for
special protection to women. In 1985, in Sowmitri Vishnu vs Union of India (AIR 1985 SC
1618), it was contended that Section 497 is a flagrant instance of "gender
discrimination" and "male chauvinism", as it recognises only the husband of the
adulteress as an aggrieved party but does not confer similar rights upon the wife of the
adulterer. But the Supreme Court, once again, upheld its validity.

There have been recommendations by the Law Commission, the National Commission for
Women and the Malimath Committee to make this section gender neutral and bring
women within its purview. The high court, during the hearing of the present petition, also
seemed to echo a similar sentiment. But this premise seems to be equally problematic
as it will continue to criminalise sexual acts between consenting adults, which is
essentially a matrimonial fault, like several other matrimonial faults in our statute books
such as desertion, cruelty, unsoundness of mind, etc. The only solution is to give
women's adultery the same status as other matrimonial faults, including men's adultery,
and not to privilege it by awarding it the status of a "crime" on the pretext of "preserving
the sanctity of marriage".
===

Bringing home the child

The new guidelines for adoption of children, framed by the ministry of women and child
development, under the Juvenile Justice (Care and Protection) Act 2000, will soon be
implemented through a gazette notification. The comprehensive scheme, to be
implemented by the Central Adoption Resource Authority (CARA), will supersede the
guidelines for in-country adoption issued in 2004 and inter-country adoption in 2006,
which were popularly referred to as CARA guidelines.

The new guidelines seem to address three dominant concerns — safety of the child
through stringent post-adoption stipulations; an expeditious adoption process; and
curbing of adoption rackets that have flourished in the past two decades. There have
been instances, though few, of agencies luring poor parents to sell their infants, picking
up abandoned babies, or kidnapping children to sell them to foreigners. These raised an
important issue for the Indian state, especially after the courts expressed great concern
in this regard.

The most important aspect the guidelines seem to tackle is adoption rackets, by bringing
all adoption under a centralised scheme. The guidelines make it mandatory for Child
Welfare Committees (CWC) in each district to verify the whereabouts of each child
before it is placed for adoption and put an end all kinds of donations from prospective
adoptive parents and foreign agencies to an adoption centre. Under the centralised
system, applications for all in-country adoption will be received by CARA and forwarded
to an agency where children are available for adoption. All agencies are required to
register at the Central Adoption Resource Information and Guidance System and
stringent procedures are stipulated for their functioning. There will be periodic
inspections and even a procedure for de-recognition.

These look good on paper, but in a system plagued with malpractice, where police
officials and CWC members themselves have colluded with racketeers, these guidelines
do not inspire much hope. It is anyone's guess how these guidelines will help to improve
the situation on the ground.

The second aspect of the proposed rules is to cut the red tape and expedite adoption
process by eliminating the requirement of certain clearances. Permanent recognition of
foreign adoption agencies, authorised by CARA for sponsoring applications of prospective
NRI, OCI, PIO and foreign adoptive parents, and Indian agencies is meant to minimise
undue delay and ensure smooth functioning of the adoption process. A special process is
also laid down for adoption of children with special needs.

The third important aspect is to provide safeguards through stringent post-adoption

follow-up procedures. All in-country adoptions will be followed up for two years. All inter-
country adoptions will proceed only after a final decree under the Juvenile Justice (Care
and Protection) Act to ensure citizenship of the adopted child. Adoptions will be made
only to counties that are signatories to the Hague convention. This will ensure that the
country of adoption is bound by the rules of the convention to provide due protection to
the child. Only Indian nationals in non-Hague ratified countries will be permitted to
adopt. In order to promote bonding between the child and adoptive parents, a provision
has been made for pre-adoption foster care to provide early deinstitutionalisation of the
child.
In view of the problem of repatriation of an adopted child, an issue pending before the
Bombay High Court, in all cases of inter-country adoption, the adoptive parents will be
required to make the provision of $5,000 in the name of the repatriated child.

The ratio of in-country and inter-country adoption, which was 50:50, will now be changed
to 80:20, and more Indian couples will be encouraged to adopt. However, stipulations on
the eligibility of an adoptive parent seem to be regressive. A couple in a live-in
relationship are not entitled to adopt. A couple should be in a "stable" marriage for at
least two years prior to adoption. A person below 25 years and beyond 50 years cannot
adopt a child under three years, and the aggregate age of the parents should not be
more than 90 years. For adopting a child above three years, the age bar is extended to
55 years and the aggregate age to 105 years.

A single person is entitled to adopt, but the age bar gets more constricted — between 30
and 45 for adopting a child under three, and is extended to 50 years if the child is above
three years. A single male cannot adopt a girl child. The presence of a female member is
a precautionary measure. While gays and lesbians cannot adopt as a couple, they may
be eligible as single persons. But if a preliminary enquiry reveals the gay or live-in status
of the person, there is a possibility that it may cause a moral dilemma to the authorities.

With surrogacy gaining popularity and India becoming a cheap hub for childless and gay
couples, there is a possibility that couples wishing to have a child may opt for surrogacy
since there are no guidelines for the mother or the child. And this may render adoption a
thing of the past.

===

The Supreme Court, the Media and the Uniform Civil Code Debate

I. Introduction:

Periodical pronouncements by the Supreme Court, urging the state to enact a Uniform
Civil Code (UCC) have received wide media publicity. The myriad opinions expressed in
support of the UCC are governed by three distinct undertones i.e. gender equality,
national integration and concepts of modernity imbedded within notions of middle class
morality.

The gender concerns project the demand for an all-encompassing and uniform code as a
magic wand which will ameliorate the woes and sufferings of Indian women in general
and Muslim women in particular. This concern places gender as a neutral terrain,
distanced from contemporary political processes. From this point of view, the agency for
change within communities becomes highly suspect. Minority women are projected as
lacking a voice and as an agency either in their own communities or through the process
of litigation to claim their rights within existing structures or to bring in changes which
are egalitarian and gender-just. It projects the state intervention in the form of an
enactment of a uniform code as the only option to bestow gender justice upon minority
women.

At another level, for the liberal, modern, English educated, Middle classes (both from the
majority and minority communities), the demand is laden with a moral undertone of
abolishing polygamy and other `barbaric' customs of the minorities and extending to
them the egalitarian code of the `enlightened majority.' This position relies upon the
western model of nation-state and liberal democracy and scorns simultaneous sexual
relationships in the nature of polygamous marriages in the name of modernity but at the
same time, endorses sequential plurality of sexual relationships (through frequent
divorces), and also the more recent trends of informal cohabitations which have gained
legitimacy in the west.

Within a communally vitiated political climate, the demand also voices concerns of
`national integration' and `communal harmony' and projects Muslims as the `other' both
of Hindus and the nation. At times the distinction between these two terms collapses and
they become interchangeable.

It is indeed a matter of grave concern that this position, advocated by the Hindu right
wing, received a boost through judgements pronounced by the Supreme Court of a
secular state, and more often than not by the presiding Chief Justice, carrying either
veiled or direct inferences which were often totally out of context to the issues litigated
before it. It is interesting to note that no matter what the core issue litigated before the
apex court, the comments regarding the enactment of a UCC are always made in
reference to ‘national integration’ and with either a veiled or direct insinuation against
Muslim law. Thus fiction is that Hindus are governed by secular, egalitarian and a
gender just family code and it was high time that this code was extended to Muslims to
usher in modernity and gender-equality among them. This posture of the apex court
gets affirmed when we examine the constitutional challenges to archaic provisions under
the Hindu law. For instance, in 1984, the Delhi High Court affirmed an archaic provision
of restitution of conjugal rights under Hindu Marriage Law which was challenged on the
basis that it violates the provision of equality under Art.14 and freedom under Art. 21.
Here, not only was there no mention of a UCC and ‘national integration’ but the court
went further and ruled: “Introduction of constitutional law in the home is most
inappropriate. It is like pushing a bull into a china shop. It will prove to be a ruthless
destroyer of the marriage institution and all that it stands for. In the privacy of the home
and married life, neither Art. 21 nor Art. 14 have any place.”E1 Later in the same year,
the Supreme Court affirmed this decision in Saroj RaniE2 and overruled the Andhra
Pradesh ruling which had struck down this provision as unconstitutional.E3

While the blame for igniting the controversy must lie primarily with the Supreme Court,
the blame for repeatedly fanning it and keeping the issue alive in popular parlance lies
with the media as this controversy makes a ‘good copy.’ While the ShahbanoE4
judgement provided the first impetus for highlighting the polarized opinions into
mutually exclusive segments - the one in support of a UCC as modern, secular, rational
and gender just, and those opposing it as fundamentalist, orthodox, male chauvinist,
communal and obscurantist, it has continued to frame the issue within these binaries
even when the lines between these two sections have become blurred. In the two
decades since the Shahbano ruling the ground realities have changed considerably. The
demolition of the Babri Masjid, the rise of the Hindu right-wing, the attacks on Christian
and Muslim communities and more particularly the gruesome sexual violence upon
Muslim women during the recent Gujarat carnage, the altered situation of Muslim
women’s economic rights after the Supreme Court ruling in the Daniel LatifiE5 case -
have all been factors that have necessitated a re-examination of the earlier call for a
UCC, ostensibly to secure the rights of minority women. Many progressive groups and
some women’s organizations no longer support this demand. Even the Muslim
intelligentsia which during the Shahbano controversy spoke out in favour of a UCC has
changed its position in the context of a threatened Muslim identity. What is even more
relevant is that the Bharatiya Janata Party (BJP), the dominant segment of the ruling
National Democratic Alliance (NDA) coalition itself has not fore-grounded the debate
during the last five years that it has been in power. Though this was one of the its major
election planks (along with the building of the Mandir at Ayodhya and abolition of Article
370 of the Constitution – a cultural thrishul - the three pronged attack against Muslims),
one doubts whether it will demand that this be included as the NDA election
manifesto as it goes to the polls later this year. It is more likely that in the interest of
electoral gains, the BJP may even abandon the Hindutva agenda itself and will mount its
campaign upon issues of governance!

Despite this, the polarization in the media continues and the same old controversy gets
whipped up again and again and is savoured with relish by the English speaking urban,
liberal, middle-class. And this class, which is otherwise indifferent to political processes
of the country, becomes the ardent defender of the demand for the UCC. Every time
the Supreme Court makes a comment, what one sees in the media are images of purdah
clad Muslim women and opinions of Muslim religious leaders opposing the demand.
Many times in the media reporting, the core issues litigated before the Supreme Court
are blurred and the call for a UCC is projected as a pronouncement against the Muslim
minority.

My concern in this essay is to examine the core issues litigated before the court in each
of these cases, their co-relationship to the demand for a UCC and the subsequent media
projection of the cases which rendered the rulings as anti-Muslim pronouncements. The
first and as yet the most widely acclaimed among these is the ShahbanoE6 judgement
pronounced in 1985, by a Constitutional Bench headed by the then Chief Justice, Y. V.
Chandrachud; the second, the Sarla MudgalE7 judgement pronounced in 1995 by the
Division Bench headed by Justice Kuldip Singh and the most recent, by a Division Bench
headed by Chief Justice V. N. Khare in the John Vallamattom’s case pronounced in
2003. The judgements are analysed not only within their legal entirety, but also in their
social, political and economic ramifications to gender equality and minority identity.

II. John Vellamathom Judgement on Testamentary Disposition for Charitable

Purposes by Christians:

Let me begin this exploration with the most recent and least known Supreme Court
pronouncement. On 21st August, 2003, the Chief Justice of India, Justice V.N. Khare gave
a call for the enactment of the UCC. The remarks for enacting the UCC were part of a
ruling which held S.118 of the Indian Succession Act as unconstitutional and
discriminatory. Who had filed this Writ Petition, what was the core issue before the court,
whether it had any link to gender justice or national integration became immaterial in
the wake of the renewed fervour to highlight the UCC debate. The newspapers and
magazines solicited comments from two mutually exclusive groups - spokespersons of
the Muslim religious leadership and women’s rights activists. But before jumping into
the bandwagon of UCC, few journalists and ‘experts’ paused to shed some light on the
co-relationship between the Supreme Court verdict, gender justice, national integration
and the Uniform Civil Code.

The Petitioner, a Roman Catholic priest had challenged S 118 of the Indian Succession
Act which is reproduced below: "Bequest to Religious or Charitable uses - No man
having a nephew or niece or any nearer relative shall have power to bequeath any
property to religious or charitable uses, except by a will executed not less than twelve
months before his death, and deposited within six months from its execution in some
place provided by law for the safe custody of the will of living persons."

The underlying principle contained in Section 118 of the Act indisputably was to prevent
persons from making ill-considered death-bed bequest under religious influence. This
section had its roots in an ancient British statute of 1735 known as 'Charitable Uses Act,
1735' and was enacted to prevent persons from making ill-considered death-bed
bequests under religious influence, at a time when the Church regulated all land
transactions and wielded great influence upon its flock. Through this stipulated act, the
British Crown sought to curtail and regulate the power of the Church over its flock. In
1888 the earlier statute was repealed and this provision was included in another statute
titled, Mortmain and Charitable Uses Act, 1888. Ultimately, since the statute had lost its
relevance (basically, since the Church had ceased to exercise such power over its
people) the British Parliament, by an Act known as Charities Act, 1960 repealed this
provision.

Interestingly, despite the severe restrictions against bequests of land for religious-
charitable purposes, the Mortmain statute had exempted gifts of land of any quantity for
public parks, museums, universities, colleges or to any local authority etc. The Indian
Legislature, while enacting the Indian Succession Act, 1925, advertently or inadvertently,
omitted to include these exemptions and hence S.118 of the Indian Succession Act was
even more restrictive of personal freedoms than the parent statute.

Such archaic remnants of the English principles are found in almost all Indian (or for that
matter, South Asian) statutes. The Indian Contract Act, the Indian Penal Code, the
Transfer of Property Act and many other statutes contain a generous sampling of
irrational, outdated and sexist provisions which have been retained even after they have
been either struck down or amended in the country of its origin. The exemption in favour
of marital rapeE8 and the sexist provision of adulteryE9 under the IPC, the out-dated and
sexist provisions of public morality under the Indian Contract ActE10 which prohibits
ante-natal contractual agreements regarding settlements in favour of women in the
eventuality of a divorce etc., are merely the tip of the iceberg. Some of these have been
upheld despite litigations challenging the constitutional validity of these stipulationsE11
or have been retained even after the relevant section has been amended.E12

The Petitioner, John Vellamathom, a Roman Catholic priest, through the present petition,
challenged the violation of personal freedoms on the ground that since the original
statute upon which this stipulation was based had been repealed in England, there could
not be any reasonable justification for retaining the same in the Indian statute. Since the
Division Bench of the Kerala High Court had already struck down this discriminative
provision in 1998,E13 the task before the Supreme Court was a simple and easy one.

Answering the short question before it, regarding the Constitutional validity of S.118 of
the Indian Succession Act, the Supreme Court ruled:

A charitable disposition of property for the benefit of the public in the advancement of
religion, knowledge, commerce, health, safety, or any other object beneficial to the
mankind has specifically been acknowledged not only in different religious texts but also
in different statutes. Charitable purpose includes relief to poor, education, medical
relief, advancement of objects of public utility, etc. Charitable purposes are
philanthropic and since a person's freedom to dispose of property for such purposes has
nothing to do with religious influence, the impugned provision treating bequests for both
religious and charitable purposes is discriminatory and violative of Article 14 of the
Constitution. Assuming that the purpose of Section 118 of the Act is to prevent bequest
of property under religious influence, there is no justification in restricting testamentary
disposition of property for charitable purpose. Once it is held that the underlying purpose
for enacting the said provision was merely to thwart influence exercised by people
professing religion resulting in death-bed disposition, having regard to the fact that such
a contingency has adequately been taken care in other provisions under the Act, the
purpose and object of the Act must be held to be non-existent.

Based on this reasoning, the Supreme Court struck down S. 118 of the Indian Succession
Act as being unreasonable, arbitrary and discriminatory and, therefore, violative of
Article 14 of the Constitution. While striking down the provision, the Court also relied
upon the Declaration on the Right to Development adopted by the World Conference on
Human Rights of which India is a signatory and on Article 18 of the United Nations
Covenant on Civil and Political Rights, 1966 which provides as follows:

Everyone shall have the right to freedom of thought, conscience and religion. This right
shall include freedom to have or adopt a religion or belief of his choice, and freedom,
either individually or in community with others and in public or private, to manifest his
religion or belief or belief in worship, observance, practice and teaching. Freedom to
manifest ones own religion or beliefs may be subject only to such limitations as are
prescribed by law and are necessary to protect public safety, order, health, or morals or
the fundamental rights and freedom of others.

As one can observe from these discussions, the question before the court was not of
gender justice or national integration, but that of personal freedom of a Christian Priest.
Contrary to popular belief, through this Petition, the Petitioner-Priest sought to protect
his right of religious freedom and the right to follow the dictates of one’s religion. While
defending cultural plurality of belief, worship and practice by invoking the United Nations
Covenant on Civil and Political Rights, 1966, the court ruled in favour of religious
minorities, by upholding their right of religious-charitable bequests. The court held that
violation of this right amount to discrimination under Article 14 of the Constitution.

And yet, this judgement became popularly known as the one in favour of the Hindu-right-
wing’s anti-minority demand for a UCC. How did this happen? The blame lies not just
with the courts and the media but also with the Petitioner-Priest. In order to strengthen
his case, the Petitioner advanced a rather unwarranted argument that it is an essential
and integral part of Christian Faith to contribute for religious and charitable purpose, and
the stipulation under S.118 violates the right to freedom of conscience guaranteed under
Articles 25 and 26 of the Constitution of India.

It is in this context that the court explained:

Article 25 provides freedom of 'profession' meaning thereby the right of the believer to
state his creed in public and freedom of practice meaning his right to give it expression
in forms of private and public worships. A disposition towards making gift for charitable
or religious purpose may be a pious act of a person but the same cannot be said to be an
integral part of any religion. It is not the case of the petitioners that the religion of
Christianity commands gift for charitable or religious purpose compulsory or the same is
regarded as such by the community following Christianity. Disposition of property for
religious and charitable purpose is recommended in all the religions, but the same
cannot be said to be an integral part of it. If a person professing Christian religion does
not show any inclination of disposition towards charitable or religious purposes, he does
not cease to be a Christian. Even certain practices adopted by the persons professing a
particular religion may not have anything to do with the religion itself. Article 25 merely
protects the freedom to practice rituals and ceremonies etc., which are only the integral
parts of the religion. Article 25 of the Constitution of India will, therefore, not have any
application in the instant case.

Had the Petitioner not pressed the argument of violation of rights under Article 25 and
26 of the Constitution, he would still have won the case and secured his rights (and that
of others in his community) of testamentary bequests for religious-charitable purposes.
At the other end, even if the issue had been raised, the Court could have answered the
issue in the negative and the matter would have ended there. But out of the blue, Chief
Justice Khare went on to add a comment, totally out of context to the core issue before
him in the following words:

Before I part with the case, I would like to state that Article 44 provides that the State
shall endeavour to secure for the citizens a uniform civil code throughout the territory of
India. The aforesaid provision is based on the premise that there is no necessary
connection between religious and personal law in a civilized society. Article 25 of the
Constitution confers freedom of conscience and free profession, practice and
propagation of religion. The aforesaid two provisions viz. Articles 25 and 44 show that
the former guarantees religious freedom whereas the latter divests religion from social
relations and personal law. It is no matter of doubt that marriage, succession and the like
matters of a secular character cannot be brought within the guarantee enshrined under
Articles 25 and 26 of the Constitution. It is a matter of regret that Article 44 of the
Constitution has not been given effect to. Parliament is still to take step in for framing a
common civil code in the country. A common civil code will help the cause of national
integration by removing the contradictions based on ideologies.

The link between the Christian priest’s personal freedom to make a bequest of religious-
charitable nature and the issue of national integration through the enactment of a UCC
was not explained and a reader was left guessing. But this comment provided the fuel
for the media to interpret the judgment as one of anti-minority and pro-UCC rather than
a judgement in defense of personal freedoms and cultural plurality. And ironically, the
next day and through the weeks that followed, the news papers were flooded with
reports and editorials on UCC with quotes from Muslim religious leadership and Muslim
intelligentsia on one end and women’s rights activists at the other, while the judgment
itself was of relevance neither to the Muslim identity nor women’s rights.

III. The Sarla MudgalE14 Judgement on Conversion and Bigamy

The second significant judgement on this issue is the Supreme Court verdict on
conversion and bigamy by Hindu men in the Sarla Mudgal case. Here again, neither
Muslim law nor rights of Muslim women were the core issues before the court. The court
was examining the validity of a Hindu marriage contracted between a Hindu man and a
Hindu woman, and the subsequent marriage, by this man to a subsequent woman, also a
Hindu, contracted after a fraudulent conversion to Islam. But the parties to both
marriages continued to be Hindus and practiced Hindu religion and rites. It was not the
claim of any of them that they are now Muslims. So in a nutshell, the court was
examining the rights of two Hindu wives of a bigamous Hindu husband. There was no
Muslim before the court and the gender inequality within Muslim law was not an issue.
But unfortunately, the judgement and the media publicity that followed focused
primarily the issue of UCC in the context of nation, national integration and minority
identity.

And yet, in the much publicised judgement delivered by Justice Kuldip Singh, the Court
commented:

Since Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the
cause of the national unity and integration, some other communities would not, though
the Constitution enjoins the establishment of a common civil code for the whole of
India. .... Those who preferred to remain in India after the partition, fully knew that the
Indian leaders did not believe in two-nation or three-nation theory and that in the Indian
Republic there was to be only one Nation, the Indian Nation and no community could
claim to remain a separate entity on the basis of religion. In this view of the matter no
community can oppose the introduction of common civil code for all citizens in the
territory of India.

The obvious reference to Partition and to the choice to remain in India is targeted
towards the Muslim minority as Parsis and Christians did not have any choice in the
matter. The discourse of choosing to remain in India after Partition has long been a
warning to Indian Muslims from the Hindu Right. The reference to civilized and human in
relation to the UCC suggests that those who oppose the code (read Muslims) are barbaric
and uncivilized. The comments also seem to suggest that a secular and gender just
family law governs Hindus and that Muslims as a community are the uncivilized enemy
to national integrity because they follow their own personal law.

Kapur and CossmanE15 have argued that the language of the judgement in deflecting
attention away from the continuing religious and discriminatory aspects of Hindu
personal law and in attacking the Muslim community is disturbingly similar to the
political rhetoric of the Hindu Right. In this view, all religious communities must be
treated the same and it is the dominant Hindu community which is to be the norm
against which equality is judged.

But the norm of monogamy of the Hindu society, which was the issue under scrutiny
before the apex court, escaped all public debate. The spotlight was turned on polygamy
of Muslim men and the plight of Muslim women and solution offered to liberate Muslim
women was the immediate enforcement of a UCC. There was also a hint that the
uniform code would render Hindu marriages more stable by curbing the bigamous
tendencies of Hindu men. A reading of the judgement seemed to indicate that the only
breach of monogamy among Hindus was by conversion to Islam. To quote from the
judgement, ".... there is an open inducement to a Hindu husband, who wants to enter
into a second marriage to become a Muslim..."

The norm of Hindu monogamy presumed by the judgement needs further scrutiny.
Monogamy was introduced among the Hindus through the Hindu Marriage Act in 1955.
Prior to this, Hindu men were absolved of the criminal consequences of bigamy under
S.494 of IPC. After 1955, a Hindu wife could divorce her husband on the ground of
bigamy and also prosecute him under the penal law.

The right to dissolve the marriage on the ground of bigamy is also available, to a Muslim
wife under the Dissolution of Muslim Marriages Act. The additional relief that the Hindu
wife can avail of is criminal prosecution for bigamy. But since only the first wife can
initiate prosecution, a popular notion prevails that a Hindu husband can remarry with the
consent of his wife and at a practical level, this notion is not far from the truth. So
although on paper the position of a Hindu wife appeared slightly better than a Muslim
wife, in respect of her husband's bigamy, the statistics of bigamous marriages among
Hindus and Muslims are comparable. By declaring that the earlier marriage was valid,
the only legal remedy (apart from a petition for divorce on the ground of bigamy) that
the litigating women were entitled is a prosecution for bigamy.

It is in this context that judicial attitude towards bigamy by Hindu men has to be posed
as the central issue. The judgement seemed to indicate that the judiciary has dealt
severely with all breaches of monogamy among the Hindus and the only loophole
through which a husband can escape is conversion. But an examination of the decisions
of the Supreme Court and the various High Courts reveal that bigamy of the Hindu male
persists despite statutory restrains and judicial attitude has been extremely lax towards
Hindu bigamy.

Ten years after the provision of monogamy was introduced, the Supreme Court dealt
with the case of Bhaurao Lokhande.E16 The lower courts convicted the errant husband.
But the apex court acquitted the husband on the ground that essential ceremonies for a
valid Hindu marriage i.e., vivaha homa and saptapadi (invocation before the sacred fire
and seven steps round it) had not been performed in the second marriage. The court
ruled that the bare fact of a man and a woman living as husband and wife does not give
them the status of husband and wife unless valid ceremonies of a marriage have been
performed and hence such cohabitation would not warrant conviction under S.494 of IPC.

The Supreme Court followed this principle in 1966 in Kanwal RamE17 and in 1971 in
Priya Bala.E18 While acquitting the errant husbands, the Supreme Court reaffirmed that
proof of essential ceremonies is a precondition for conviction. The court further ruled
that this condition must be met even when the husband and the second wife admit the
marriage or the fact of cohabitation.

In the intervening period of 30 years from Bhaurao in 1965 to Sarla Mudgal in 1995, the
various High Courts not only followed the trend set by the Supreme Court, but in their
zeal advanced the logic to absurd ends, stumping out all hopes of justice and fairness in
criminal prosecutions. Ceremonies performed in a temple, registration with the caste
panchayats or temple authorities or even with a civil registrar fell short of the degree of
clinching proof, which the first wife was expected to produce. The paternity of the child
of a second marriage if proved could only lead to its bastardisation and not proof of
bigamy by its father. The complainant wife could also lay herself open to the risk of
invalidating her existing marriage.E19

In all these decisions, the court ignored the reality of a pluralistic Hindu society and
thrust upon it an absurd notion of uniformity. The second marriages of lower castes
were judged by the yardstick which can only be applied to marriages of upper caste
virgin brides. The lower castes did not follow the Brahminical rituals and also permitted
divorce and remarriage prior to the Hindu Marriage Act and followed distinct ceremonies
to distinguish the first and the second marriage. Hence a remarriage of a lower caste
person could never meet the high judicial standards set by the courts in co-ordination
with the provisions of the Hindu Marriage Act.

A discernible pattern emerging from prosecution for bigamy is conviction by the lower
judiciary and leniency by the apex court. The higher judiciary rescued the errant
husbands by applying the standards of Brahminical rituals of homa, saptapadi and
kanyadan. The complexities of bigamous Hindu marriages and the afflictions of both the
first and the second wife were addressed neither by the courts nor by the media while
the focus continued to remain on Muslim bigamy. The Supreme Court declined to
address the issue of various fraudulent means which the husbands' adopt to escape the
stipulation of monogamy under the Hindu Marriage Act and restricted itself to a
pronouncement on unpatriotic approach of the Muslim community in holding on to their
own personal law.

IV. Shahbano JudgementE20 and Rights of Divorced Muslim Woman:

The earliest among the three judgements discussed in this essay, was delivered by a
Constitutional Bench headed by the then Chief Justice Y.V. Chandrachud in 1985 in the
Shahbano case. This judgement set the tone for communalization of the demand for an
UCC and for projecting the Muslim law as backward and anti-women. Until then, and
more particularly in the fifties when the debate around the Hindu Code Bill was raging, it
was the Hindu law that was projected as ‘archaic and anti-women’ and in comparison,
the laws of the minorities were far more progressive and modern.

The ruling is significant also because, among the three rulings on UCC, this alone had a
Muslim woman at its centre and hence the controversy it created surpassed the others.
In fact the media debates following the subsequent ruling were only churning up the old
hash and remarketing it as new debates. The facts of the case are now history and
hence do not merit an elaborate discussion at this juncture. For the purpose of this
essay, it would suffice to mention that the Supreme Court elected to comment upon
Islam and the Muslim Personal Law while deciding the right of maintenance under a
secular and uniform statute, for the first time since independence. But this was not the
first instance of the apex court upholding the right of a Muslim woman for maintenance
under S.125 Cr.PC. Two significant decisions of the Supreme Court delivered by Justice
Krishna Iyer in 1979E21 and 1980E22 had placed the divorced Muslim woman's right of
maintenance under this provision upon a secure footing without arousing a political
controversy. These decisions examined the right of Muslim woman from the context of
social justice.

The unwarranted comments and the uncalled for call, for a UCC, while debating the
rights under a secular statute in the Shahabano rulling evoked a communal backlash.
Relenting to the pressure exerted by the Muslim orthodoxy, the government introduced
the Muslim Women's Bill that sought to exclude divorced Muslim women from the
purview of S.125 Cr.PC. This move by the ruling Congress Party headed by Rajiv Gandhi,
came to be projected as the most glaring instance of the defeat of the principle of
gender justice for the Indian women as well as the defeat of secular principles within the
Indian polity.

This move met with severe opposition from secular and women’s rights groups. As the
debate progressed, the media projected two insular and mutually exclusive positions i.e.
those who opposed the Bill and supported the demand for a UCC as modern, secular
and rational, while those in the opposing side as fundamentalist, orthodox, male
chauvinist, communal and obscurantist. To be progressive, modern and secular was also
to be nationalist and conversely the opposing faction could be labeled as anti-national.
As the controversy escalated, the Muslim was defined as the other, both of the nation
and of the Hindus. Muslims, in turn could be mobilised to view this as yet another threat
to their tenuous security. The rigid approach of the Muslim leadership provided further
fuel to the Hindu right wing forces in their anti-Muslim propaganda. The Muslim
intelligentsia distanced itself from the opinion of the Muslim religious leadership and
approached the government with a petition supporting the judgement and opposed the
proposed Bill.

Ironically, the fury which was whipped up, seemed to be divorced from the core
component of the controversy, a paltry sum of Rs.179.20 p.m. far too inadequate to save
the 73 year old ex-wife of a successful Kanpur-based lawyer, from vagrancy and
penury. The raging controversy and the communal turn of events finally led Shah Bano
herself to make a public declaration renouncing her claim; strengthening the popular
misconception that Islam subverts economic rights of women. If this entitlement was
against her religion, she declared, she would rather be a devout Muslim than claim her
right of maintenance. A sad comment indeed, warranting reflection from campaigners on
both sides of the divide.

The statute, passed under a party whip, led to a further strengthening of the Muslim
appeasement theory in judicial discourse and in popular media at one end and
crystalised the anti-UCC position among Muslim religious leadership at the other. Once
the Act came into effect, the protesting groups were left with no option, but to appeal to
the judicial sensitivity, to set right the wrongs caused to Muslim women by the
legislature.

The hurriedly drafted and hastily enacted statute was full of contradictions and
loopholes. But despite its limitations, the Act was of immense historical significance, as
the first attempt of independent India, to codify the Muslim Personal Law. But the
positions across the divide were so rigid by then that they left no space to contemplate
upon this milestone in the history of personal laws in India. It is when the dust raised by
the controversy settled down that one could examine the relevance of this statute titled,
Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWA for short) to the
divorced Muslim woman. But since it was enacted amidst protests from women’s rights
groups and progressive social organisations, it was viewed with suspicion and foreboding
by these sections. Hence the first response of the protesting groups was to challenge its
Constitutionality, rather than examine its viability.

While the writ petitions were pending in the Supreme Court, the Act gradually unfolded
itself in the lower courts. Appeals from the decisions of various High Courts gradually
started accumulating, along with the original writ petitions. What was intriguing was that
while groups filed the writ petitions agitating for women’s rights, the appeals were from
husbands aggrieved by the verdicts of various High Courts. Since the Act was passed
amidst protests from rights lobbies, writ petitions challenging its Constitutionality by
these segments seemed to be in order. But difficult to rationalise were the appeals,
which were filed by husbands, that started accumulating from the rulings of various High
Courts.

If indeed the Act was depriving women of their pre-existing rights and was enabling
husbands to wriggle out of their economic liability towards their ex-wives, why were the
husbands finding themselves aggrieved by the orders passed under a blatantly anti-
women statute? Lurking beneath this observation was a faint suspicion that perhaps the
ways in which the Act was unfolding itself in the lower courts, was indicative of a
different reality, defying the premonitions. This fascinating phenomenon provided the
first indication that perhaps the ill-famed Act could be invoked to secure the rights of
divorced Muslim women. Hence, it became expedient to examine whether the new Act
provided Muslim women with a more viable and feasible alternative to the prevailing
remedy under S.125 Cr.P.C. by invoking Islamic principles of a ‘fair and reasonable
settlement’.

A seemingly innocuous clause, which had missed the attention of protesters and
defenders alike, had been invoked by a section of the lower judiciary, to pronounce
judgements, which provided greater scope for protection against destitution. Section 3
(1) (a) of the Act stipulated that a divorced Muslim woman is entitled to - a reasonable
and fair provision and maintenance to be made and paid to her within the iddat period
by her former husband. This clause, along with the preamble - An Act to protect the
rights of Muslim women who have been divorced by, or have obtained divorce from their
husbands ….”, had been invoked by the judiciary in defense of Muslim women’s rights.

Though initially just a trickle, the judgements were a pointer towards a possibility. They
affirmed that the new Act was to protect the rights of divorced Muslim women and not
deprive them of their rights. They further stressed that any ambiguity within clause (1)
(a) of Section 3, must be interpreted in such a manner as to reconcile with the
proclamation contained in the title of the Act. Banishing divorced women to a life of
destitution would not amount to protecting their rights as stipulated by the statute, they
declared.

Suddenly, the lump-sum provisions for future security, which the courts were awarding
within the framework of Islamic principles, seemed to be a better safeguard against
destitution, than the meager sums which women were entitled to under S.125 Cr.PC
through a monthly recurring entitlement. A reading of the judgements indicates that the
Act had rid itself of the agenda of alleviating vagrancy and destitution among divorced
women and had extended itself to the claims of women from a higher social strata, than
merely those who live below the poverty line. The statute enacted in haste, at the
insistence of the conservative leadership, seemed to have boomeranged.

In a significant number of cases, a concerned and sensitive judiciary, carved out a space
for the protection of women’s rights from what appeared to be an erroneously
conceived, badly formulated and blatantly discriminatory statute, without invoking a
political backlash. Endorsing the spirit of Islam and the shariah and reflecting the
sensitivity of the Prophet, who is hailed as the greatest champion of women’s rights the
world has ever seen, the courts read into the statute, notions of justice and equity. Doing
precisely what the Act in its title proclaimed, i.e. protection of rights of divorced Muslim
women, the judiciary turned what had initially appeared to be a misnomer and a
mockery into a factual reality and ushered in a silent revolution in the realm of Muslim
woman’s rights. It would indeed have been tragic if these concerted efforts were
invalidated through a single stroke of pen from the apex court.

The most significant issue which emerged out of the enactment, revolved around the
stipulation of ‘a fair and reasonable provision’. Drawing on the Islamic concept of
mataaoon bil ma’aroofe (fair and reasonable provision), several High Courts opened a
new portal for the protection of divorced Muslim women. The remedy, which the courts
so carefully crafted out of the controversial legislation, in fact, seems to provide a better
safeguard, than the earlier anti-vagrancy provision under S.125 Cr.PC.

The first significant judgement on this issue was pronounced by Justice M. B. Shah, then
presiding over the Gujarat High Court, on 18th February, 1988.E23 But even before this,
the dice was cast in women’s favour, by a woman judicial magistrate in Lucknow on 6th
January, 1988. The woman concerned, Fathima Sardar, was awarded Rs. 85,000/- as
maintenance during iddat period, mehr entitlement and fair and reasonable provision.
Following the judgement of the Gujrat High Court, the Kerela High Court upheld this view
in two significant rulings.E24 These judgements were pronounced in the months of July
and August, 1988 respectively. In another unreported judgement, the Kerala High Court
upheld the woman’s right to Rs.3,00,000/- as fair and reasonable provision and also
awarded Rs.7,500/- as maintenance during the iddat period.E25 Soon several High
Courts followed suit.

In the years that followed, the full benches of Punjab and Haryana and Bombay, the
division benches of Bombay, Kerala, Madras and Calcutta and single judges of several
other High Courts upheld this view. The courts ruled that even when a wife has some
source of income the right under S.3 of the MWA is not extinguished.

But the controversy regarding the Constitutional validity of the Act prevailed and not
just the media, but also secular and progressive groups and women’s rights lobbies
continued to drum the same old tune that the Act has deprived divorced Muslim women
of their crucial rights. Also certain High Courts had given a contrary ruling and rights of
Muslim women varied depending upon the High Courts under whose jurisdiction they
happen to reside. Finally, the entire controversy was laid to rest and uniformity was
assured through a ruling of the apex court pronounced on 28th September 2001. A
five judge bench headed by Justice G. B. Pattanaik unanimously declared that the Act is
Constitutionally valid and upheld the positive interpretations given by various trial courts
in respect of fair and reasonable settlement for a life time!

V. Muslim Women, Dominant Ideologies and the Media:

Law is not merely a statute, but its essence lies in the manner in which it is unfolded in
law courts. The empty words of a statute come to life in the trial courts where they are
contested, interpreted and validated. Right from 1988, the courts have engineered
women’s rights through innovative interpretations, ushering in a new set of rights within
the established principles of Muslim law. The lower judiciary gave a clear verdict in
favour of a ‘fair and reasonable provision’ for the divorced Muslim woman. Several
judges in trial courts declared that `provision’ contemplates `future needs’ and that the
Parliament has replaced one set of obligations of a Muslim husband with another. The
claim under the MWA does not operate through a rider of sexual purity or post divorce
chastity, unlike S.125 of Cr.PC the original provision under which Shahbano was awarded
maintenance. The judicial pronouncements delivered divorced Muslim women from
the cumbersome burden of recurring monthly dues, which hinged upon post-divorce
chastity. The historic ruling of the Constitutional Bench in Daniel Latifi case finally put
its seal of approval on the interpretations given by the lower judiciary.

But rather unfortunately, within the communally vitiated atmosphere, the advances
made by divorced Muslim women under the provisions of the MWA have been
invisibilised and glossed over by the media. During the Shahbano controversy, the
denial of rights of a meagre maintenance dole was lamented by all and sundry, not
withstanding the fact that the maintenance awarded to the wife of an advocate with a
flourishing practice was just Rs.25/- in the first instance and Rs.179/- in appeal. So
long as the debate could be used as a stick to beat the community with, these minor
details didn’t seem to matter. What did matter is the fact that a communal campaign
could be mounted upon a patriarchal paradigm and thereby legitimised.
The demand for a UCC was couched as a ‘liberal and modernizing mission.’ The irony lay
in the fact that the groundwork for mounting this campaign was laid by the women’s
movement, with genuine gender concerns, but firmly located within the cultural ethos of
the mainstream. Within this framework, a similar appeasement of Hindus, by
strengthening coparcenaries by various legislative measures, could be deliberately
ignored. The ‘modernizing mission’ is an important tool for establishing racial and
communal superiority and is used constantly by dominant classes and hegemonic
cultures.

During the colonial rule, the introduction of the Anglo-Saxon legal structure was seen by
the British administrators as an important forte of its civilizing mission. Through this
structure, it was projected that the Hindu society could rid itself of its barbarism and
enter an era of ‘civilisation.’ An image of the cruel and superstitious native who needed
Christian salvation was deliberately constructed by the Evangelists.

Lata Mani, in her path-breaking work on the colonial Sati discourse comments:

Tradition was not the ground on which the status of women was being contested. Rather
the reverse was true - women in fact became the site on which tradition was debated
and reformulated. What was at stake was not women but tradition. Women were
neither subject, nor object but the ground …E26

In another context, while discussing the discourse around Rukhmabai case on the
colonial legal remedy of restitution of conjugal rights (decided by the Bombay High Court
in 1884), Sudhir Chandra argues that it was not simply a ‘civil war’ involving different
groups within the Indian society but within the colonial ambience, a war between the
rulers and the ruled in which the two sought to distinguish their respective institutions,
ideals and values with regard to women, marriage and family in order to claim
superiority over the other. The issue of law and justice, which figured prominently in the
ensuing controversy, deepened the civilizational encounter between the ruled and the
rulers.E27

This discursive practice of using women’s rights and status in society as the ground on
which tradition is reformulated was also deployed by the nationalist project to
emancipate India from colonial rule. As was the case in the nineteenth century, tradition
became the site for the elaboration of state power and in this instance, the power of the
national state.

The conflicts and contests between the orthodox/reactionary, the imperialist, and the
reformist helped to carve out a new woman for the new nation. As Partha ChatterjeeE28
points out that the distinctiveness of the national culture and tradition was built around
the conceptualization of a new form of femininity. This process inaugurated a new
patriarchy to which the new woman was subjected. It explicitly distinguished itself from
the patriarchy of indigenous tradition. The new woman, the ‘bhadramahila’, respectable
woman was contrasted with the characteristic of the ‘common’ woman who was coarse,
vulgar, loud and quarrelsome, sexually promiscuous and subjected to brutal physical
oppression by males. Since the reform of women’s lives came to symbolize national
sovereignty and the project of reform addressed the lives of Hindu middle class women,
this demographic section came effectively to constitute the ‘nation’.

Chatterjee also shows that the nationalist resolution of the women’s question, built on a
system of dichotomies of the inner/outer, spiritual/ material, feminine/ masculine, gave
birth to a national state and a notion of rights and citizenship which was exclusive in that
it applied to the new middle class. The project of reform, which located the state in the
nationalist resolution of the women’s question, excluded those sections of the middle
class which felt themselves culturally left out of the specific process of formation of the
‘nation’. Indian Muslims, for example, were left out of this hegemonic cultural construct
of the nation. The hegemonic ‘national culture’ that was built through the above process
also excluded vast masses of people who could never be culturally integrated with this
concept.E29

One needs to examine the invisibilising of the Muslim woman’s struggle within the
cultural construct of hegemonic claims. The communal fervour could be sustained only
by denying the fact that the Act provided for an alternate remedy, far superior to the
one that had been denied to Muslim women under S.125 CrPC; by negating the fact
that since 1988, the Act was being positively interpreted by various High Courts in the
country by awarding substantial amounts as ‘settlements,’ by glossing over an
important development in the realm of family law, that of determination of economic
entitlements upon divorce, rather than the prevailing right of recurring maintenance.
So even while homes of poor Muslim women were looted, gutted and razed to the ground
in various communal riots which broke out in the country, while teenage sons of Muslim
women were killed at point blank ranges in police firings, while Muslim women were
raped under flood lights in post Babri Masjid riots, the mainstream continued to lament
over Muslim appeasement and denial of maintenance to ‘poor Muslim women / the
Shahbanos’.

One could overlook even this. Perhaps there was a justification. Denial of maintenance
by husbands was perhaps as loathsome as rape of women in communal riots. In the
ultimate analysis, it was the ‘poor Muslim woman’ who suffered. So far so good. But
how can one logically explain the recurring motif of ‘Muslim appeasement’ even after the
Supreme Court decision in Daniel LatifiE30 case, when the controversy was finally laid to
rest by upholding the constitutional validity of the Act and simultaneously securing for
the Muslim women, maintenance rights which in actual terms are superior to the rights
bestowed upon a Hindu woman?

And yet, the rhetoric continues. And is used yet again, in defence of the Gujarat carnage.
‘They had it coming … they have been ‘appeased’ beyond tolerance. Why should they
demand a separate law in a secular country? Why should they be allowed to marry four
times? Why are Hindus alone bound by an obligation of maintenance?’ What is startling
is that the grievances are mouthed not only by Hindu extremists but also by centrists,
the liberals, the people who inhabit my social space, the urban, cosmopolitan, middle
class. Within the cultural ethos of the mainstream, an injustice to a Muslim wife gets
magically transformed into a Hindu injury which could be invoked to justify communal
carnage. Without this tacit approval by the middle class, the recent Gujarat carnage
could never have spread so wide nor so deep.

The rhetoric conveniently overlooks the fact that abandonment and destitution of wives
is as rampant among Hindus; that the matrimonial faults of adultery and bigamy are
evenly distributed across communities and that Hindus, Christians and Parsees, with
equal zeal, guard the patriarchal prerogatives within their respective personal laws.
Further, that around 80% of all women burnt in their matrimonial homes are urban
middle class Hindus! That patriarchal prerogatives cannot be abandoned even when a
law is being codified is something we have learnt in the process of Hindu law reforms.
Even when codification is sought in the name of either ‘uniformity’, ‘national integration’
or as a ‘civilising mission’ these prerogatives will be retained. The saving of Hindu
undivided family (HUF) property under the Hindu Succession Act is a glaring example of
this. The Hindu urban and rural propertied class and family business establishments
have gained the maximum concessions of tax benefits due to this. Any move to abolish
this even under the guise of a UCC will be opposed vehemently by this class, as it will
upset their apple cart. For them, the UCC debate is confined to abolishing the ‘barbaric’
Muslim culture of polygamy and to liberate the Shahbanos, while simultaneously turning
a blind eye to the sexual promiscuity and multiple sexual relations among them. The
women bound in these relations can easily be discarded as ‘concubines’, ‘mistresses’ or
partners of contractual agreements, maitreyee karars (this is the modern term for these
alliances) lacking legal validity and devoid of any rights, as one experiences during
contested claims of maintenance by these women.

The symbolism becomes even more stark, when one is confronted with the gruesome
sexual violations of women during the recent carnage in Gujarat in 2002. While
exploring possible legal portals to place these blood curdling barbarities, one hits a dead
end at each turn. As one hears the narratives of young women, running helter-skelter,
slipping, falling and becoming preys to the marauding mobs, their violated and mutilated
bodies being thrown into open fires, the question keeps haunting: where and how does
one pin the culpability?

When violence of this scale supersedes the confines of criminal jurisprudence which is
bound by conventions of proof and evidence, medical examinations and forensic reports,
when criminal prosecution itself is a closed-end process in the hands of the state
machinery, what legal measures can be invoked to bring justice to the dead and the
surviving? It is then that the covenants of equality and equal protection mock you in the
face. At the other end there is a danger that these violations do not form part of
‘official records’ they can be conveniently negated as baseless allegations or normalised
as routine occurrences.

Viewed within this background, the struggles of individual divorced Muslim women who
defied their culture and tradition and dictates of patriarchy have to be acknowledged as
acts of assertion. But the struggle has not been easy. Divorced Muslim women had to
fight every inch of the way for their rights, from the trial courts in small district towns
right up to the Supreme Court. Their crucial right of survival hinged upon interpretations
and explanations of simple words like `within/for’ `and/or’ `maintenance/provision,’
disjunctures and conjectures of words and phrases. The ambiguities which surfaced due
to callous drafting, posed hurdles to women in their struggle to claim their rights. The
Act provided ample scope to husbands to exploit the situation which led to protracted
litigation beneficial to husbands and a nightmare to women. But women withstood the
ordeal with courage and determination, with patience and perseverance and overcame
the seemingly unsurmountable hurdles. Through this labourious process, the criteria for
the civil right of divorce settlement has been taken out of the earlier legal premises such
as `inablity to maintain,’ `prevention of vagrancy’ `a dole to hold together body and
soul.’ After a decade and a half, the end result of this persistent struggle are clearly
discernible.

In the final battle in the Supreme Court, both sides, the women’s rights groups who had
challenged the constitutionality of the Act as well as the Muslim religious leadership who
had pressed for their claim that the Muslim woman’s entitlement ought to be limited to
three months of Iddat period lost out. Who emerged victorious was the divorced Muslim
woman who had waged a relentless battle to defend her rights. It’s the media took note
of this silent revolution waged by individual Muslim women and acknowledge the fact of
their agency in bringing about changes within their personal laws.

===

Consent, Age and Agency: reflections on the recent Delhi High Court
judgement on minors and marriage

I am responding to the sense of despair expressed by some women’s groups and more
specifically to the press conference called by Bharatiya Muslim Mahila Andolan (BMMA)
to condemn the judgment of the Delhi High Court which permitted a minor (almost 16-
year old) girl to marry the man of her choice rather than restore her back to her parental
authority. In their campaign for codification of Muslim law, BMMA has asked for laying
down 18 as the minimum age of marriage for girls (and 21 for boys), the underlying
presumption being that all underage marriages must be declared as void.

Before we come up with a knee jerk response to the hype created by the media and bite
the bait, we need to have greater clarity on whose side we (feminists) are batting in this
confrontation between parental authority and the active agency expressed by a
teenaged girl. Also I wish to raise a connecting question — if the Muslim law was codified
and minimum age for marriage was stipulated, as has been done under the Hindu
Marriage Act, would the High Court have responded differently? Would the judges have
sent the girl back to her parental custody? And the last question – could that have been
construed as a ‘progressive ruling’ by us, those claiming to be “feminists”?

Rather than speculations, it would be more prudent to make out my case by citing
judgements of various High Courts pronounced in the last decade. The facts of these
cases were similar to the one that is being sort to be condemned: A young girl had
eloped with a boy of her choice. The parents of the girl had filed a case of rape /
kidnapping or a habeas corpus case against the boy and had him arrested merely on the
basis that the girl was below the “age of consent” or “age of marriage” as the case may
be. When the girl was produced in court, she defied parental authority and deposed that
she had voluntarily eloped with the boy and had married him. Upholding her wishes, the
courts permitted the girl to accompany her husband / lover, rather than restore her
custody back to her parents. The only difference – the parties were Hindus and not
Muslims as in the present case. Here is a glimpse of some of these rulings:

In Jiten Bouri v State of West Bengal, [II (2003) DMC 774] Cal, the Calcutta High Court
while permitting the minor girl to join her husband, declared as follows: “Although the
girl has not attained majority yet she has reached age of discretion to understand her
own welfare which is a paramount consideration for grant of her custody. She may not
have attained marriageable age as per the provision of S.5 (3) of the Hindu Marriage Act
but marriage in contravention of age can neither be void nor voidable … The girl has
insisted that she wants to join her husband and does not wish to return to her father’s
place.”

In Makemalla Sailoo v Superintendent of Police Nalgonda District , [II (2006) DMC 4 AP],
the Andhra Pradesh High Court held that although child marriage is an offence under the
Child Marriage Restraint Act, such marriages are not void as per the provisions of both,
the Child Marriage Restraint Act as well as the Hindu Marriage Act.
In Manish Singh v. State, NCT Delh [I (2006) DMC 1], the Delhi High Court held that
marriages solemnized in contravention of the age are not void. The court commented: “If
a girl of around 17 years runs away from her parents’ house to save herself from their
onslaught and joins her lover or runs away with him, it is no offence either on the part of
the girl or on the part of the boy.” The girl had deposed that she had married out of her
own will and was desirous of living with her husband. The court ruled that once a girl or a
boy attains the age of discretion and chooses a life partner, the marriage cannot be
nullified on the ground of minority and that it is not an offence if a minor girl elopes and
gets married against the wishes of her parents.

In Sunil Kumar v. State, NCT Delhi [I (2007) DMC 786] wherein the father had confined
the girl illegally, it was held: “If a girl of around 17 years runs away from her parents’
house to save herself from their onslaught and joins her lover or runs away with him, it is
no offence either on the part of the girl or on the part of the boy.” The girl was not
willing to return to her parents, who were not amenable to any reconciliation and wished
to sever all relationship with her. The minor girl was permitted to live with her husband.

In Kokkula Suresh v. State of Andhra Pradesh [I (2009) DMC 646], the High Court
reaffirmed that the marriage of a minor girl below18 years is not a nullity under the
Hindu Marriage Act and the father cannot claim her custody.

In Ashok Kumar v. State [I (2009) DMC 120], the Punjab and Haryana High Court
commented that couples performing love marriage are chased by police and the
relatives, often accompanied by musclemen and cases of rape and abduction are
registered against the boy. At times the couple faces the threat of being killed and such
killings are termed as ‘honor killings’.

All these marriages were termed as “elopement marriages” and hence we need to
examine this term which is used for marriages contracted without the consent of the
girl’s parents. At times the girls are below the permissible age of marriage, and at other,
they are projected as minors by their parents in order to invoke the state power by using
the provisions of the Child Marriage Restraint Act (CMRA). The discussion on elopement
marriages bring to the fore ways in which multiple social subordinations—caste,
community, region, religion—intersect with patriarchy in order to hone in the sexual
choices of defiant young women within established social mores. Women who exercise
active agency to defy convention pose a threat to the established social order and hence
are confined by reframing consent itself. In this discourse, “consent” assumes a
different dimension and gets embedded in assumptions about rational choice and
parental authority, rather than choices made by women themselves.

Hence judgements such as the one discussed above as well as the judgement which is
sought to be condemned, which restrain the police from performing arbitrary actions
such as forcing women into the protective custody of the state or confining them back to
parental authority, serve as a benchmark for a liberal interpretation of constitutional
safeguards of personal liberty and individual freedom.

The provisions of the seemingly progressive CMRA come to the aid of parents to tame
“defiant” young women, prevent voluntary marriages and augment patriarchal power
than to pose a challenge to it. When child marriages are performed by families and
communities, the provisions of this statute are seldom invoked. Many a times a girl who
is restored to parental custody is married off, while is still a minor, against her wishes, to
the man of the parent’s choice. The patriarchal bastions are too strong and well fortified
for a modernist feminist discourse to enter and change social mores through legal
dictates. The only sphere in which these provisions come into play is during
“elopement” marriages. They bring into sharp focus the vagaries of the term, “consent”.
For the family and state authorities, lack of age becomes synonymous with lack of
agency to express sexual desire and bodily pleasure.

While this is problematic, even more problematic is the way in which a certain kind of
feminist discourse engages with notions of age, agency and consent when there is a
rupture between these terms. This raises some discomforting challenges to the feminist
movement. Hence we need to address the following questions:

Firstly, is it possible to place “consent” on a superior plane when there is a disjuncture

between “age” and “consent” invoking the notion of “agency” which gets operational
during elopement marriages? Secondly, does the response of a conservative institution
such as the judiciary tends to be more nuanced and pro-women than the feminist
demand for declaring all such marriages as void when such marriages contravene the
stipulation of age despite a visible display of consent and agency? And thirdly, will
invoking the Islamic notion of “age of discretion” rather than merely “age of majority” or
“age of marriage” aid the defiant young women who challenge patriarchal authority,
while exercising unconventional sexual choices?

When we examine the agency which a young girl expresses in an elopement marriage,
the legal provision becomes a weapon to control sexuality and curb marriages of choice.
Even though the criminal provisions regarding kidnapping and statutory rape appear to
be protecting minor girls, these provisions are aimed at augmenting the patriarchal
parental power over the minor girl. There are no exceptions in the laws on abduction and
kidnapping that allow a minor to opt out of guardianship, or to leave her parental home
on grounds of domestic violence, child sexual abuse or abuse of parental authority. The
use (and abuse) of police power, at the instance of parents with regard to marriages of
choice, works in direct contrast to women’s autonomy, agency and free will.

At times, judges, with a concern for social justice, have resolved the issue by resorting to
basic principles of human rights in order to save the minor girls from the wrath of their
parents and from institutionalization in state-run protective homes. The only way they
could do so was by upholding the validity of these marriages by bestowing on the minor
girls an agency (by invoking the premise of ‘age of discretion’) and by distancing the
notion of “age” from “consent” or “agency”.

On examining these judgments through the prism of women’s rights, could these judicial
interventions in aid of minor girls be termed as “regressive” and the demand by
women’s groups to declare these marriages as null and void be termed “progressive”?
Could the curbing of the freedom of these minor girls to express their sexual choices by
their natal families with the aid of the mighty power of the state within a sexually
repressive society be termed as a progressive intervention and a challenge to
patriarchy? The recent legislation passed by the Parliament on Child Sexual Assault,
raising the age of consent to sexual intercourse from 16 to 18 will further deteriorate
the situation and render young girls (and boys) even more vulnerable to parental and
state power when they express their sexuality and make unconventional sexual choices
and result in even higher level of “moral policing” by the state.
Invoking the notion of “age of discretion” which the courts had done even while
validating marriages of minor Hindu girls who had eloped, did not evoke a similar
controversy as is being done at present. Ironically, this is being done now only because
the parties concerned are Muslims. It appears that the judge erred in applying a concept
of Islamic law to Muslims but not while applying it to non-Muslims. The extremely
provocative manner in which this judgement has been projected by the media, warrants
that we do not respond in an expected knee jerk manner and lend fuel to the age old
right wing demand for the enforcement of a uniform civil code. At such moments, it is
important for us to be clear on whose side we are batting.

Perhaps bringing Mathura back into this debate will help to clear the muddy waters.
Mathura, a young 16 year old, illiterate, tribal girl, who had eloped, was brought to the
police station on a complaint filed by her brother. After interrogation, she was raped by
policemen on duty. The controversial Supreme Court ruling which acquitted the
policemen on the premise that she was a woman of lose moral character became the
catalyst for the women’s movement in India in the late seventies. For many of us,
Mathura continues to be the touch stone for testing our feminist sensibilities. This helps
me to make my point that we need to be sensitive to the multiple levels of
vulnerabilities that teen aged girls who elope with their boyfriends or make other
unconventional sexual choices suffer as they negotiate multiple levels of
marginalizations.

Here the voice of the feminist movement must lend credence to the claims of the weak
against the might of status quo-ist institutional authorities. The agency exercised by a
young teen aged girl and her voice of protest against the dictates of patriarchy needs
articulation and support. The claims of feminist jurisprudence must essentially lie within
this complex tapestry.

Before concluding, lest I am misunderstood, let me clarify that I am not advocating that
all 15 year olds must drop out of school, elope with their boyfriends and marry them and
then they will live “happily ever after” as per the popular Hindi movie formula. All that I
am saying is that the Child Marriage Restraint Act which was enacted in1929 has not
worked as it is almost impossible to penetrate the family, caste and community bastion
and prevent child marriages as is perceived by some feminist groups. In today’s society,
child marriage has become a class issue as opposed to the manner in which it was used
in the nineteenth century reformist debates within the context of Brahminical patriarchy.
We have seen the age of marriage gradually rising when living standards rise and
families have more options for education and skill training of their daughters.

The fear of leaving a young girl unattended at home who may become a victim of rape
drives most poor families to marry their daughters young and hone in their sexuality so
that they do not to have to endure the stigma of rape and marrying off a sullied and non-
virgin daughter. We need to work towards creating more secure and women friendly
societies where daughters can be raised with love, care and affection so that teen
marriage is not the only choice for them. At another level, there need to be more open
spaces within families to discuss sex and sexual choices and challenge the premium
placed on chastity and virginity within arranged marriages. Only when the sexually
repressive atmosphere within which we raise our children changes will the girls and
boys not feel the need to elope and marry in order to give into their natural sexual
instincts and will be in a position to make more responsible sexual and life choices.
===

No Shortcuts on Rape - Make the Legal System Work

Now that the gang rape victim christened as “Nirbhaya”, “Braveheart”, “India’s
Daughter”, etc, by the media, has finally been laid to rest, despite the Delhi
administration’s best efforts to prolong her ordeal until the protestors at India Gate were
worn out, perhaps it is time to address deeper concerns that surround the issue of rape
in public discourse.

Though many of us would like to change the terminology from “rape victim” to “rape
survivor”, unfortunately that cannot be done in her case since she did not “survive”. The
brutal injuries inflicted on her body during the gang rape took her life. One is therefore
constrained to label her a “victim” despite her heroic struggle.

Had she survived (as many of us wished she had) she could have been the mascot for
the movement against violence perpetrated on women. She might have come out in the
open in the wake of the massive support she received across the nation, and by this very
act made a strong statement to the world at large that a rape victim does not have to
survive like a zinda laash (a living corpse), a title awarded to rape survivors by our
parliamentarians. Her fight for justice would have become a beacon of hope for many
others. Her struggle for justice may even have helped to lessen the stigma attached to
the term “rape” itself in public discourse and her struggle might have inspired many
youngsters to come out and report incidents of sexual assault. But that was not to be.
This mantle has now fallen upon the protestors and the political leaders who collectively
mourn her death.

Not a ‘Living Corpse’

Rather sadly, the wishes of those demanding the death penalty to avenge her rape seem
to have been fulfilled, without any major changes taking place in the rape law, since it
has become a case of “rape and murder” and the “rarest of rare” maxim can be applied
to it. But if the death penalty is all that we are seeking, then her heroic struggle would be
in vain. Her death is not something to be proud of, because death is not what she wished
for. In the few moments in which she could express her wishes after the traumatic
incident, she had clearly indicated that she wanted to live. Live life fully, not as a mere
shadow of her earlier self, like a “living corpse” – complete her training, earn and support
her family. I hope after this, all of us will refrain from referring to a survivor as zinda
laash or describe rape as a “state worse than death”. With death one reaches the point
of no return, but as long as there is life, there is hope. An incident of rape, not even a
brutal gang rape, ought not to have snuffed out the hope of a 23-year-old, eager to scale
new heights. One can only hope that this is one lesson the nation has learnt through this
episode.

The nationwide protest which this incident helped to ignite and the clarion call for
reforms in the rape law are positive signs. But for the sake of easy and quick solutions,
hopefully the discourse will not flatten out the complexities involved in issues concerning
violence against women and will help us to seek answers to complex questions which do
not get resolved through retributive justice measures such as the death penalty, public
hanging, castration or instant “justice”. We need to keep reminding ourselves that the
girl died due to the brutal attack on her with iron rods which damaged her intestines and
led to the poisoning of all her vital organs. Nothing can be more brutal than this. When
we describe rape as “worse than death”, we need to remind ourselves that insertion of
objects such as wooden splinters, iron rods, glass bottles, knives and swords into the
vagina causes far more serious damage to the female anatomy, but unfortunately it does
not warrant the same kind of punishment as rape since it is not perceived as a “state
worse than death”. In cases of brutal sexual assault on children one can observe this
type of violence. One can also notice this kind of mutilation of the female body during
caste and communal violence such as that during Partition, the Gujarat carnage and
atrocities on dalits (like the Khairlanji rape and murders in Maharashtra). Therefore, we
need to move away from the patriarchal premise of vaginal purity while we are
addressing issues of sexual assaults and stop awarding a special status for peno-vaginal
penetration as compared to other types of violations.

Vaginal penetration is only one of the many ways in which women are chastised and
humiliated. Acid attacks, slashing of the face, stripping and parading, dragging women to
the ground and kicking them on their abdomen, etc, are some of the other violent ways
in which women are shown their place in public. Even while the protests were going on in
most of the major cities, a young student in a local college in Mumbai stabbed his ex-girl
friend several times and then stabbed himself. While the boy died instantly, the girl
succumbed to her injuries after a few days. This violence is no less gruesome than an
incident of gang rape.

Routineness of Violence

If women’s lives are endangered in so many different ways, then castration of the rapists
cannot give us the answers that we are seeking as it reinforces the same old value
system that continues to view rape as a state “worse than death”. It is too short-sighted
and serves only to lay the emphasis back on the patriarchal premise of the sanctimony
attached to vaginal purity and does not help us to move forward. We would then be
forced to move on to other barbaric and medieval forms of retributive justice like cutting
off the hands of all those who indulge in heinous acts of violence against women. This
demand obscures the routineness of the violence that takes place in our society, in our
homes, in our private spaces and makes it seem like a rare aberration.

One wonders whether the protests would have been on this scale if they had not raped
her but only assaulted her and her male companion with iron rods. Is it the titillating
aspects attached to a gruesome gang rape that arouses feelings of grief and vengeance?
The brutal manner in which the girl was attacked is indicative of a deep-rooted hatred
towards women, particularly towards those women who dare to cross the boundaries.
They are seen as “free for all” or rather, everyone thinks that they are the custodians of
women’s morality and that they have a right to “teach them a lesson”.

In some recent cases of gang rape the girl was out with a male companion. Is the
outrage against her an indication of the societal desire to curb any expression of sexual
freedom among young, unmarried girls? Recently, in Bengaluru, a law student of the
prestigious National Law University was gang raped when she was in a lonely spot with a
male companion. The doctors who examined her were more concerned about the
elasticity of her vagina than finding forensic evidence of the gruesome crime. In 2010, a
young 16-year-old Hindu girl travelling in a bus with her Muslim friend on the outskirts of
Mangalore was dragged out of the bus by members of an extremist Hindu
fundamentalist outfit and taken to a police station. A case of rape was foisted against her
friend. Her father was called to the police station and was humiliated. That night the girl
committed suicide.

It is these incidents that make us wonder whether the gang rape in Delhi is meant to be
a message to all youngsters not just to not venture out in the dark but to not venture out
with male companions. It is the same message that the parents and the community give
their daughters. It is the same message that the moral brigade has been communicating
through the raids on young couples in Mumbai under the direction of Maharashtra’s
Home Minister R R Patil, who has now recommended the death penalty in rape cases.
Perhaps he and most protesters out on the streets in India today are unaware that
around one-third of all rape cases are filed by parents against the boy concerned when
their daughter exercises her sexual choice and elopes. Such cases will only increase in
the years to come as the recent enactment of the Protection of Children from Sexual
Abuse Act has raised the statutory age for consent to sexual intercourse from 16 to 18
years and all youngsters who are sexually active are prone to harassment through
collusion of the family and the state. These types of cases have led to the use of phrases
like “genuine cases” and “false cases” among the police, prosecutors and judges. The
recent Act has also shifted the burden of proof to the accused which is an extremely
dangerous proposition in the context of human rights and rights of the accused within
the criminal justice system.

Male Role Models

There is another question which is worrisome. Is it possible to examine this issue only
within the framework of men versus women or, more particularly, middle-class women
versus lower-class men? The girl was not alone, she was travelling with a male
companion. He, too, was beaten and thrown out. If he had lost his intestines in the
scuffle that followed, what would the public response be? What about the death of a
young 19-year-old boy of Mumbai who lost his life while protesting the lewd comments
being passed against a girl from his housing society? Should not his murder be avenged
by awarding the death penalty to the accused? In another well-publicised incident that
took place about a year ago in Mumbai, two young men, Keanan and Reuben, were
brutally and fatally attacked when they protested against the sexual harassment of some
girls in their group. Why is the loss of their lives less gruesome a crime? These men were
also role models to be emulated by the youth of today. We desperately need such
bravehearts who will stand up for women’s dignity in public places because in most
cases the public just looks on while the girl is molested, stripped, raped and dragged
naked in full public view. So it is not just women, but also men who defend women, who
are subjected to brutal attacks.

Wrong Popular Perceptions

Despite all the positive impact of the campaign revolving it, the Delhi gang rape incident
does not foreground the different types of violations that take place in our society.
Rather, it reinforces the popular perception that rape takes place in lonely places, late at
night, by strangers and that rapists are brutes or psychopaths who deserve to be
hanged. But most rapes take place in the privacy of our homes, in our schools. Rapes by
family members are seldom reported. They come to light only when the girl is found to
be pregnant and by then it is far too late to have an abortion. The girl is then sent to a
government run shelter home where she languishes while her child is put up for
adoption. The risk of sexual abuse is even greater in these homes as some recent
incidents that have been reported in the media indicate.

In a case decided by the sessions court in Mumbai last month, the father had been
raping his daughter for two years. When the child confided in her mother and the mother
confronted her husband, she was silenced by threats of desertion. It was only when the
maternal uncle was alerted that the complaint was registered. The case resulted in
conviction only because the uncle testified, but the mother refused to come to court and
depose. In yet another case of a father raping his daughter, the mother attempted to
register a case thrice and each time was sent back as the police refused to record her
statement. Finally, the case could be registered only after the intervention of a local
social worker. What should be the punishment for fathers who violate the most
sacrosanct fiduciary relationship of trust and sexually violate their helpless daughters?
And what should be the punishment for those who through their silence or negligence
abet the crime?

The infamous ruling of the Supreme Court (SC) in the Mathura rape case in the late
1970s became the catalyst for a nationwide anti-rape movement. The SC had acquitted
two policemen who had raped a 16-year-old illiterate tribal girl inside the police station
while on duty on the ground that since there were no injuries on her body she might
have consented to the sex. Further, the Court contended, since the girl had eloped with
her boyfriend and was not a virgin, she could not have been raped. The campaign that
followed resulted in bringing some changes in the archaic laws; the most significant
being the mandatory minimum punishment of seven years which could extend to life
imprisonment. It was perceived that it would have a deterrent value. But when we
examine the graph of reported cases since 1983 (when the amendment was introduced)
there is a steady increase in reported cases. It is obvious that the amendment has failed
to act as a deterrent. Worse still, conviction rates are so low as to be negligible. Even in
these cases, the trial courts seldom award the statutory seven years and give as low as
three years or at times, just six months. Even these result in acquittals at the appeal
stage.

The conviction in the well-publicised Shiny Ahuja rape case in Mumbai is not the norm,
but an exception. In this case despite the complainant’s retraction, the trial court
convicted the accused based on forensic evidence. There was a contradiction. While the
actor denied that there was ever any sexual intercourse between him and his domestic
help, his defence in court was that it was consensual. The judgment was condemned by
Mumbai’s socialites. A systematic media campaign was launched to clean up the actor’s
public image. And it is highly plausible that the conviction will be set aside in the appeal
which is pending before the high court. Three other high profile rape cases in Mumbai –
one involving the son of an industrialist who was charged with raping a 52-year-old
divorcee in his car in his factory compound in the early hours of the morning and in
which the victim suffered a fracture of her wrist while resisting, the gang rape of a
student of a prestigious social work college in Mumbai and the rape of a 12-year-old
ragpicker by a policeman – all resulted in acquittals, either in the trial courts or in the
appeal courts.

The retraction in the Shiny Ahuja case brings to the fore the important issue of witness
protection and compensation for the victim. Cases are “settled” before the victim can
depose, by the relatives at times with active intervention of the police, sometimes even
with the knowledge of the court. We do not have any mechanism to protect a poor victim
and other witnesses against the onslaught of a powerful rapist from the time the
complaint is filed till the time of deposition in a trial court which may take about a year
or two at best. There are many constraints that work against a girl from deposing in the
court which calls for a strong witness protection programme in order to ensure
convictions.

Fear of ‘False Cases’

The trauma of rape and the stigma caused by it usually forces poor families who file
complaints of rape to change residences to protect their wards from the stigma of rape.
In most cases, the abuse is detected only when these young girls in their early teens are
taken to the hospital to investigate delayed periods. The families are so poor that they
cannot provide even the basic care to their child. They need financial aid and state
support to overcome the trauma, the stigma and the adverse consequences of rape. But
each time the issue of compensation is raised, the bogey of “false cases” is
foregrounded to throttle the demand.

In Maharashtra, district boards were set up two years ago under the district collector
with high level officials of the home, health, law and judiciary and women and child
welfare departments’ along with non-governmental organisation (NGO) representatives
to scrutinise applications for compensation, and the police were mandated to send in
copies of the FIR along with medical reports. An amount of Rs 2 lakh was stipulated out
of which Rs 20,000 is to be disbursed initially and the balance after the girl deposes in
court and an amount set aside for medical aid, trauma counselling or skill training. But
despite the grand “centrally sponsored scheme”, the central funds have not reached the
state government and the victims wait in vain. This amounts to taking the most gullible
and most victimised for a ride. No one wants to act because of the all pervasive fear of
“false complaints”. One shudders to think how the family of the Delhi gang rape victim
would have dealt with the medical bills if the case did not turn out to be a high profile
one and the state administration had not been forced to step in as a face-saving
measure. But then, is it wrong to expect this kind of state support to all survivors of
sexual abuse?

The fear of “false complaints” is all pervasive within our legal system right from the time
a victim tries to register the complaint to the time of the trial. All stakeholders: the
police, the medical officers who examine the victim, the public prosecutors who are
meant to defend her, the defence lawyers who are out to tarnish her reputation and the
presiding judge who is supposed to be the neutral arbiter are plagued with this and
constantly look for evidence of falsity on the part of the victim. If this is the present
reality, one can just imagine what will happen if the punishment is raised to a minimum
of life imprisonment and maximum of death penalty. Then even the few convictions
which the judges award today will not take place, and every accused will be given the
“benefit of doubt”.

Accountable to Women

Instead, what we need is a criminal justice system that works with responsibility,
protocols for all stakeholders which are binding and most important, a periodic audit that
ensure that the protocols are followed. This tedious process cannot be replaced by
sensational measures such as death penalty and castration which may momentarily
satiate the public thirst for blood, but will fail to have any deterrent impact at the ground
level. What we need most of all is a clarion call to make our legal system accountable to
the female citizenry in small but meaningful ways.

===

Contesting Rights Over Children

The recent Supreme Court judgement delivered on February 2, 1999 declaring the
mother as a natural guardian of her children is hailed as a path breaking one in the
realm of Indian family law. (See, Geeta Hariharan vs. Reserve Bank of India, 99(2) SCC,
p.228) Many have interpreted it to mean that women will no longer be haunted by the
fear of losing custody in matrimonial disputes, as now they are elevated to the status
of ?natural guardians?.

In my view, this is rather an exaggerated rating of the judgement. The issue of custody
had already been decided in women?s favour in many earlier decisions. In the present
case, the apex court did not address this issue. The question before the court was a
limited one, whether mothers could also be deemed as natural guardians during the
lifetime of their husbands. Section 6(a) of the Hindu Guardianship and Minority Act, 1956
(HGMA) stipulated that the father is the natural guardian of the minor and ?after him?
the mother. The court reinterpreted the words ?after him? to read ?in his absence? in
order to arrive at a harmonious interpretation of the constitutional mandate of gender
equality.

The court spelt out certain situations - (a) when the father is indifferent towards the child
(b) if the child is in the exclusive custody of the mother (c) due to physical or mental
incapacity the father is incapable of acting as the guardian (d) when it is decided
mutually between the parents that the mother will act as the guardian where - the
mother could be deemed as the natural guardian even during the life time of the father.
A point to note is that only when the father has abdicated his responsibility or by consent
agreed to elevate the mother to the status of a natural guardian would the judgement
come into effect. But in keenly contested custody battles, this judgment will not be
relevant.

The perceived revolutionary impact of the judgement even on this limited question gets
diminished in the context of an earlier decision delivered in 1970 (Jijabai Gajre vs.
Pathankhan). The principle that a separated wife can be deemed as the ?natural
guardian? of her children had already been upheld in this case. An agreement entered
into by the mother who had raised her daughter single handed had been validated on
the premise that when the father is absent, the mother is deemed as the ?natural
guardian?.

Several misconceptions govern issues of custody in matrimonial disputes. This article is

an attempt to clear some of them. Guardianship implies the proprietorial rights, and
custody implies the responsibility of raising a child. While there was a leaning towards
the father in issues of proprietorial rights, the mother?s role as caretaker of her children
had been granted due recognition for well over a century.

To give a brief sketch of the history, the concepts of custody and guardianship in HGMA
are derived from the Guardians and Wards Act of 1890 (GWA), which in turn was based
on English family law. Soon after divorce was granted statutory recognition in England, in
the mid-nineteenth century, separated and divorced wives challenged the ?natural
guardianship? of their husbands. It is in this context that the principle that the ?best
interest of the child is paramount? started gaining recognition. By mid-twentieth century,
the principle became one of the primary pillars of the family law in England. Even a wife
who had committed a matrimonial ?fault? could be awarded custody of the child. The
courts held that the aim of matrimonial litigation is not to punish the guilty but only to
ensure the welfare of the child.

"It is impossible to rule that just because a woman had once committed adultery she was
not a fit person to look after her child.? ...?If the welfare of children requires, even an
immoral mother can be given custody," the English courts proclaimed.

The Guardians & Wards Act, 1890, one of the first Indian statutes to address this issue,
incorporated the tension then prevailing in England. While S.19 stipulated that father is
the natural guardian of the minor, S.17 prescribed that the welfare of the child is
paramount. Despite the wide variations regarding parental right of custody in the diverse
personal laws, courts in India have taken recourse to the principle, ?best interest of the
minor? to award custody to the mother. The best interest maxim overrides the
stipulations in different personal laws and is applied universally in all custody litigations.

?To deprive a child of tender age of its mother?s love and care would not be in the best
interest of the child? has been the well established legal doctrine. This concept was
awarded statutory recognition under S.6 (a) of HGMA, which prescribed that the custody
of a child below five years should ordinarily be with the mother. But this doctrine cannot
be extended to imply that once the child is older, the custody will automatically revert to
the father, without ascertaining the wishes of the child. Courts do not view the child as
an object to be tossed around between the warring parents. Since the child remains
unrepresented in matrimonial disputes, it is the duty of the court to ensure that the
child?s interests are not harmed or negated. Hence women?s anxiety that once the son
enters his teens or the daughter reaches puberty, s/he will be snatched away and placed
in the father?s care, against the child?s wishes, are generally baseless.

But the ?best interest of the child? doctrine is more complex than it appears on the face
of it. When the father is wealthy and the mother has no independent source of income,
where would the `best interest? of the child lie? Way back in 1920, in two significant
cases, the courts ruled that just because a mother does not have the same financial
resources, it does not mean that she should be denied custody of the minor children. The
later decisions have reaffirmed this premise.

While non-working mothers are haunted by the fear of lack of monetary resources,
working mothers are faced with another set of tensions. Would a woman who has paid
employment and spends most of her waking hours outside of the home be a better
caretaker? Right up to the eighties, the issue remained unresolved. But more recently, it
has been held that a mother cannot be denied custody on the basis that she is gainfully
employed, and now this reasoning has become an established principle. However, it is
rather wishful to presume that the Indian courts would grant custody to a woman who is
living in adultery. The decisions on this issue are ambiguous.

So while the courts had gradually changed the parameters of awarding custody from ?
natural guardian? to ?best interest of the child?, the social institutions lagged far behind,
causing endless hardships to women. One institution that consistently humiliated single
mothers is the school system. Usually divorce brings about a change of residence for
women, and consequently change of school for their children. Women were constantly
pressured to obtain their absentee husband?s signatures on school leaving certificates.
Banks and passport authorities also remained conservative in their approach and
revered the role of the father as the natural guardian. They viewed him as the only
parent equipped with the ability and social responsibility to act on behalf of minors. It is
in this area that the Supreme Court judgment has brought about a significant change
and sent out clear signals that decisions made by the mother are equally valid.

A contest over child custody surfaces most often in situations of matrimonial dispute. So
long as the spouses are engaged in a harmonious relationship, evidently the question of
seeking custody does not arise. In divorce proceedings, the most acrimonious battles
revolve around child custody.

In view of the legal trends cited above, can it be presumed that all mothers will be
awarded custody and all fathers automatically lose custody battles? This presumption is
far from the reality. The only governing principle is ?best interest of the child? and the
parent seeking custody would have to satisfy the courts on this issue. In modern day
battles, neither the father as the traditional `natural guardian? nor the mother as the ?
biologically equipped parent? are automatically awarded custody. A legal battle has to
be strategised and carried out in civil or family courts. If the child is of tender years, the
task is slightly easier. But to secure custody of older, school- going children is more
difficult.

To answer the question as to who will be awarded custody, the structure and procedures
of a civil court have to be kept in view. These become far more relevant than
proclamations from the higher judiciary or rights under different personal law. Each case
will be decided on its own merit. In most cases, the question of rights gets reduced to
evolving an effective legal strategy.

To give an example, Maria had been thrown out of the house, without her two daughters,
aged four and one. By the time she approached us, six months had lapsed since the
event. She wanted custody of the younger daughter. In order to ensure the custody, we
advised her to go to the house and pick up the child with the help of a social agency at a
most opportune moment. The strategy succeeded. Within two days, the husband moved
the court for custody but so did Maria.

The cases were grouped together. On the first day itself an order was passed that
neither parent will disturb the custody of the other child. The husband?s advocate
flaunted hospital papers of an earlier mental depression suffered by Maria to make her
look like an unfit mother. But, this did not influence the judge. After some time, we
moved for access of the older child over weekends and holidays, which was granted.
Similar access was not granted to the younger child as we argued that at this stage the
child is too young. The case came up for final hearing after three years. By this time
there was nothing further to do except retain custody with the respective parent. The
issue of mental depression had become redundant by then. The court also granted the
mother a lump sum maintenance. The custody battle may have been extremely
traumatic if the child was not with her during this period.

If the mother has left the matrimonial home without the child and not taken any steps to
claim the custody of the child for several months, by the time she stakes her claim for
custody, the child would have comfortably settled down and the mother may have
become only a faint memory. In such a situation, it is highly unlikely that she will be
awarded custody. The mother will have to prove gross neglect on the part of father,
which is difficult if the child is well settled and happy.

At best the mother will be granted right of access or visitation rights. Even this becomes
problematic, because by then the child would be tutored against the mother.
Ascertaining the wishes of the child also becomes meaningless as children usually reflect
the opinions of the elders towards an absentee parent. It is very easy to convince a
teenager that her mother is a woman of loose character and has abandoned her for
selfish reasons.

So despite the positive decisions discussed above, one principle alone will ensure that
women are awarded custody that is, to leave the home with the children or in any case
to reclaim physical custody with the help of a social agency, the police, or even at their
own initiative, before starting the legal battle. Usually women are apprehensive that they
may be charged with kidnapping. But it is highly unlikely that a biological parent will be
charged with this offence unless, of course, the child comes to harm. If, at the time of
taking the custody of the child, a letter is filed with the local police to this effect, it will
avert any further complications.

The next step is to approach the court and obtain an immediate ad-interim order of
custody (temporary custody while the case is being decided) and an injunction
restraining the husband from taking away the child. This relatively simple step more or
less seals the fate of the matter as in Maria?s case. Knowing the slow pace of our civil
courts, it will be at least six months to one year before even an interim application for
custody comes up for hearing. By then the child would have been admitted into a new
school and would have become accustomed to the new environment. Rarely would a
court grant custody to the father, if the child is well settled with the mother. The same
principle also applies to a child who is left with the father.

Once a legal battle commences, the simple principle followed by the courts is to award
interim custody to the parent who already has the physical custody, and award visitation
rights to the other parent. This is usually over weekends and school vacations so that
studies are not disrupted. Courts tend to believe that the welfare of the child lies in
maintaining relationships with both parents.

The routine manner in which access is often granted to fathers becomes a cause of panic
to most women. While they struggle to make ends meet raising their children against
great odds, the fathers can easily win them over by showering them with gifts. While the
mothers have the responsibility, the fathers are left with the pleasant task of occasional
recreation with the child. Many also fear that the children can be swayed over with the
dazzle of money and higher social status. There are no answers to this dilemma. The
children too grasp the changed power balance between the parents. They realise that
they are important players in the new scheme. Some make use of it, some reconcile to
the new equation, and a few get charred in the process.

At times when the tension becomes unbearable, women succumb and give up custody
rather than face the daily emotional turmoil for themselves and their children. This is a
difficult choice, as women?s identify in general, and single women?s in particular,
revolves around ?motherhood?. Single women have already abdicated two of the most
widely accepted feminine roles, of wife and housewife. All they are left with is the last
vestige of femininity in their role as mothers. Abdicating this amounts to self-negation
and may even become a social stigma.

But those of us who run counselling centres, need to re-examine our own traditional
notions of motherhood. Do women opt for custody due to social pressures and
internalisation of gender roles? In most cases, husbands are left free of all
responsibilities. Even meagre maintenance orders to ensure financial support for women
cannot be enforced. Divorce ends up in the feminisation of poverty. Many women are left
to struggle for basic survival in abject poverty. In many situations, the natal family views
them with scorn. There is no space for women, leave alone their children.

In such situations, the children and women themselves may be better off if the husbands
are left with the responsibility of raising the children. This strategy will work only if
women are assured of regular access to their children in order to oversee their well
being. A vigilant legal strategy is required to ensure this. In the event that the child is
found neglected it would be possible to reclaim custody later. But in the present
situation, the strategy is worth a try.

===

Hypocritical morality

Is the morality of bar dancing judged objectively, using criteria that are applied to other
professions too? Or is this simply a political tussle that is conveniently couched in the
language of morals? Flavia Agnes recounts the developments and events leading up to
the ban in Maharashtra.

On July 21, 2005, the Bill to ban the dance bars in Maharashtra was passed unanimously
at the end of a 'marathon debate'. It was a sad day for some of us paltry group of women
activists, who had supported the bar dancers and opposed the ban. We were far
outnumbered by the pro-ban group, the 'Dance Bar Virodhi Manch' who had submitted
150,000 signatures to the Maharashtra state assembly insisting on the closure of dance
bars. The ban came into effect from August 15.

We were sad, not because we were outnumbered, not even because the Bill was passed
unanimously, but because of the manner in which an important issue relating to women
was discussed, the comments that were passed on the floor of the House, by our elected
representatives, who are under the constitutional mandate to protect the dignity of
women! Subsequently, we have heard rumours that some of these comments have been
withdrawn and will not be reflected in the reported proceedings. But this cannot obviate
the fact that this is the way our elected representatives think about women.

One of the comments was aimed at us. 'These women who are opposing the ban, we will
make their mothers dance ... .' (The comments have to be translated into Marathi to
gauge its impact.) During the campaign we had been asked, 'Will you send your
daughter to dance in a bar?' But on the floor of the House, the situation had regressed,
from our daughters to our mothers! They sniggered: "Isha Koppikar ... she is an atom
bomb, atom bomb ... " This evoked great deal of laughter and cheer ... "The dancers
wear only 20 per cent clothes" ... More laughter and cheering ... "These women who
dance naked (nanga nach), they don't deserve any sympathy". A round of applause.
An esteemed member narrated an incident of his friend's daughter who had committed
suicide because she did not get a job. He said it was more dignified to commit suicide
than dance in bars. And the House applauded! The message for women is clear: If you
happen to be born in a poor family, you are better off dead! Yet another congratulated
the Deputy Home Minister for taking this bold and revolutionary step, but this was not
enough. He urged that "hotels with three stars ... five stars, disco dancing ... belly
dancing ... all that is vulgar ... every thing should be banned, except Bharatnatyam and
Kathak."

Legislators opined that western, English and Tamil films are all obscene. But they did
not say a word about Hindi and Marathi films presumably because these belong to
"amchi Mumbai".

Then another esteemed member declared, 'We are not Taliban, but somewhere we
have to put a stop. The moral policing we do, it is a good thing, but it is not enough ...
we need to do even more of this moral policing.' Suddenly the term 'moral policing' had
been turned into a hallowed phrase!

These comments were not from the ruling party members who had tabled the Bill. They
were from the Opposition. Their traditional role is to criticize a bill, to puncture holes in it,
to present a counter viewpoint. But on that day, the House was united across party lines
and all were playing to the gallery with their moral oneupmanship. Even the Shiv Sena
whose party high command is linked to a couple of dance bars in the city, supported the
ban. And the Marxists were at one with the Shiv Sainiks. The speech by the CPI(M)
member was more scathing than the rest. The women members, though a small
minority, happily cheered the barrage against bar dancers.

The 'morality' issue had won. The 'livelihood' issue had lost.

How the state will effect this ban, when through its own admission out of around 1300
dance bars only 307 are legal and authorized, is something we will have to wait and
watch.

Liquor and entertainment

The bar dancer is a part of the city's thriving nightlife. Bombay never sleeps. The city is
hailed as the crowning glory of the nation's entertainment industry. From the time when
the East India Company developed Mumbai as a port and built a fort in the seventeenth
century, Bombay has been a city of migrants. Migrants come to the city in search of
livelihoods and with the workers have come the entertainers.

The traders, the sailors, the dockworkers, the construction labourers and the mill hands -
all needed to be 'entertained'. So the government marked areas for entertainment called
'play houses' which are referred to in the local parlance even today as 'pilay house'
areas. Folk theatre, dance and music performances and, later, silent movie theatres all
grew around the 'play houses' and so did the sex trade. Hence Kamathipura - a name
which denoted the dwelling place of a community of construction labourers, the Kamtis
of Andhra Pradesh, later came to signal the sex trade or 'red light' district of the old
Bombay city. Within the red light district there were also places for performance of
traditional and classical dance and music, and the mujra houses.
The city of migrants - predominantly male migrants - also needed cheap eating-places.
To cater to their needs initially there were Irani restaurants, Chilia (Muslim) restaurants
and later South Indian (Udupi) joints and Punjabi dhabas.

The prevalence of dance bars is linked not only to the restaurant industry and the
entertainment business, but also to the state policy on the sale of liquor. After
Independence, during the fifties, when Morarji Desai was Chief Minister, the State of
Bombay was under prohibition and restaurants could not serve liquor. But after
Maharashtra severed its links with the Gujarat side of the erstwhile Bombay Presidency,
the newly formed state reviewed its liquor policy and the prohibition era was
transformed into the 'permit' era. A place where beer was served was called a 'permit
room'. Only a person who had obtained a 'permit' could sit in a permit room and drink
beer.

But gradually, the term 'permit room' lost its meaning and the government went all out
to promote liquor sale in hotels and restaurants. It was during this period, sometime in
the seventies, that permit rooms and beer bars started introducing innovative devices to
beat their competitors - live orchestra, mimicry and 'ladies service bars' where women
from the red light district were employed as waitresses.

The licenses to hold performances were issued under Rules for Licensing and Controlling
Places of Public Amusement (other than Cinemas) and Performances for Public
Amusement including Melas and Thamashas, 1960. But soon the low quality orchestra
and gazal singing lost its sheen. Some bars then introduced live dance performances to
recorded music or live orchestras. Around this time, Hindi films also started introducing
sexy 'item numbers' and the dancers in the bars imitated these item numbers during
their performances.

The Government also issued licenses for performance of 'cabaret shows'. A place that
was notorious for its lewd and obscene cabaret performances is 'Blue Nile' which was
constantly raided and was entangled in lengthy litigation. It was this litigation that forced
the High Court to examine the notion of obscenity under S.294 of the Indian Penal Code
(IPC), an issue I will deal with more elaborately later in this essay.

Soon the sale of liquor and consequently the profit margins of the owners recorded an
upward trend. This encouraged the owners of other Irani 'permit room' restaurants,
South Indian eateries and Punjabi dhabas to convert their places into dance bars.
Coincidentally, during the same period, the mujra culture in Mumbai was facing loss of
patronage and was on the decline. As the waitresses in the 'ladies service bars' during
this early period were from Kamathipura, which also housed the mujras, this new
demand for bar dancers reached these traditional dancers and many sought jobs in
dance bars. Even for daughters of sex workers, this was a step forward - from brothel
prostitution to dance bars.

Soon the phenomenon of 'dance bars' spread from South Bombay to Central Bombay, to
the Western and Central suburbs, to the satellite cities of New Bombay and Panvel, and
from there, along the arterial roads, to other smaller cities and towns of Maharashtra.
From a mere 24 dance bars in 1985-86, the number increased tenfolds within a decade
to around 210. The next decade 1995-2005 witnessed yet another phenomenal increase.
As per a rough estimate, presently there are around 1300 dance bars in Maharashtra.
As the demand grew, women from traditional dancing / performance communities of
different parts of India, who were facing a decline in patronage of their age-old
profession, flocked to Mumbai (and later to the smaller cities) to work in dance bars.
These women from traditional communities have been victims of the conflicting
forces of modernization. Women are the primary breadwinners in these
communities. But after the Zamindari system introduced
by the British was abolished, they lost their zamindar patrons and were reduced to
penury. Even the few developmental schemes and welfare policies of the government
bypassed many of these communities. From their villages, many moved to cities, towns
and along national highways in search of a livelihood. The dance bars provided women
from these communities an opportunity to adapt their strategies to suit the demands of
the new economy.

Apart from these traditional dancing communities, women from other poor communities
also began to seek work in these bars as dancers. These women are mainly daughters of
mill workers. With the sole earner having lost his job after the closure of the textile mills,
young girls with more supple bodies and the sex appeal of their youth entered the job
market to support their families. Similarly endowed women who had worked as domestic
maids, or in other exploitative conditions as piece-rate workers, or as door to door sales
girls, as well as women workers who had been retrenched from factories and industrial
units, also found work in dance bars.

State revenues and raids

In short, the dance bars opened up a new avenue of employment to women from the
marginalized sections. It is the paucity of jobs in other sectors, and the boost given by
the Maharashtra government to the active promotion of liquor sales that led to the
proliferation of dance bars. The maximum proliferation occurred during the Shiv Sena-
BJP rule in the nineties.

While the business of dance bars flourished in the State, the State administration did not
frame any rules to regulate the performances until 2001. The bar owners functioned
under regular licenses issued to restaurants and bars. They paid Rs.55,000 per month for
the various permits and licenses to the Muncipal Corporation. They also paid an annual
excise fee of Rs.80,000. In addition the bar owners also pay Rs.30, 000 per month to the
Collector by way of "entertainment fee". But the maximum gain to the State Government
was the 20 per cent sale tax on liquor. As the liquor sales increased, so did the profits of
the bar owners and the revenue for the state.

The official charge for police protection was a mere Rs. 25 per night and the stipulated
period for closing the bars was 12.30 am. But in this Hafta Raj most bars remained open
till the wee hours of morning. Only when the haftas (bribes) did not reach the officials in
time the bars would be raided. The grounds for raiding the bars were:

• the owner had violated the license terms by keeping the place open beyond 12.30
am;
• the dance bar cause "annoyance" through obscene and vulgar display under S.294
of the IPC; and
• they caused a public nuisance under the Bombay Police Act.
After a raid licenses were sometimes either suspended or revoked. But the bar owners
say that the government always came to their rescue. They could approach the Home
Department for cancellation of the suspension orders issued by the police or for getting
the revoked licenses re-issued. All this for a fee!

But something went wrong in late 1998. Suddenly, when Gopinath Munde of the BJP was
the Deputy Chief Minister (DCM), 19 bars were raided in a single night. The State
Government also declared a hike of 300 percent in the annual excise fee, lifting it from
Rs. 80, 000 to 2,40,000. It was at this point that the bar owners decided to organize
themselves. Around 400 bar owners responded to a call given by one Manjeet Singh
Sethi; later they formed an association called, 'Fight for the Rights of Bar Owners
Association' which organised an impressive rally on February 19, 1999.

In order to work out a compromise, the Association approached the then Commissioner
of Police from the ruling Congress Party, assured him of their cooperation, and sought his
intervention to end the Hafta Raj. They claim that they had evolved an internal
monitoring mechanism to ensure that all bars abide by the stipulated time for closing
down. But the local police stations were most unhappy at their potential loss of bribes.
They tried to break the unity among the members of the Association. For example, when
the Bar Owners Association tried to take action against those of their members who
violated the agreed upon rules, the police came to their rescue. The police benefited
when bar owners violated the rules and consequently pay regular haftas. Over a period
the regular haftas paid by each bar owner to the police increased and just before the
recent ban, each bar owner was allegedly paying Rs.75,000 per month by way of bribes
to the Deputy Police Commissioner (DCP) of their zone. Some of this money then trickles
down the police ladder from the DCP to the lowest ranking constable in predetermined
proportions.

Under Congress rule

The BJP-Sena alliance lost the 1999 Assembly elections and there was a change of
regime. The Association started fresh negotiations with the ruling Congress- NCP. They
greased the palms of high ranking politicians to allow them to officially stay open more
hours, from 12.30 am to 3.30 a.m. so that there would be no need to pay regular haftas
for this particular violation. After much negotiation, on January 3, 2001, the first ever
regulation regarding dance bars came through a government notification. The bars were
granted permission to keep their places open till 1.30 a.m. But somewhere the
negotiations backfired, or perhaps the right palms were not sufficiently greased. The
government decided to increase the police protection charges from Rs.25 to Rs.1500 per
day per dance floor. The angry bar owners held rallies and approached the courts. Due
to court intervention, the hiked fees were brought down to Rs.500 per night.

Bar owners claim that the police raids increased after a Nationalist Congress Party (NCP)
security guard outside a bar beat up a worker in the late hours in the month of February,
2004. Following this, 52 bars were raided in February, and 62 in March 2004. The bar
owners alleged that the raids are politically motivated and were connected to the
forthcoming State Assembly elections. The ruling Congress Party denied these charges
and accused the bar owners of indulging in trafficking of minors. The bar owners
approached the High Courts, and several FIRs filed by the police were quashed. Again on
July 30, bars were raided. This time, the bar owners filed a Writ Petition in the Bombay
High Court and sought protection against constant police harassment. They also
organized a huge rally at Azad Maidan on August 20, 2004. An important feature of this
rally was the emergence of the Bar Girls' Union on the political scenario.

Bar girls claim attention

The mushrooming of an entire industry called the 'dance bars' had escaped the notice of
the women's movement in the city despite the fact that several groups and NGOs had
been working on issues such as domestic violence, dowry harassment, rape and sexual
harassment. Everyone in Mumbai is aware that there are some exclusive 'ladies bars',
but usually women, especially those unaccompanied by men, are stopped at the
entrance. Occasionally, when a bar dancer was raped and/or murdered, women's groups
had participated in protest rallies organized by local community based groups, more as
an issue of violence against women than as a specific engagement with the day to day
problems of bar dancers.

The August 20 rally in which thousands of bar dancers had participated received wide
media publicity. The newspapers reported that there are about 75,000 bar girls. On the
day of the rally, a television channel had invited me to give my reaction to the protest by
bar dancers. I had welcomed it as a positive step. That was my first interaction with the
issue of bar dancers. Soon thereafter, Ms. Varsha Kale, the President of the Bar Girls
Union approached me and requested me to represent them through an 'Intervener
Application' in the Writ Petition filed by the bar owners. Varsha is not a bar dancer, she
belonged to a women's group in Dombvili (in the Central suburbs of Mumbai).

Since the issue was new and out of the purview of the regular matrimonial litigation with
which our organization, Majlis, is involved, we were confused. Varsha explained to us
that while for the bar owners it was a question of business losses, for the bar girls it was
an issue of human dignity and right to livelihood. When the bars are raided, it is the girls
who are arrested, but the owners are let off. During the raids the police molest them,
tear their clothes, and abuse them in filthy language. At times, the girls are retained in
the police station for the whole night and subjected to further indignities. But in the
litigation, their concerns were not reflected. It is essential that they be heard and they
become part of the negotiations with the State regarding the code of conduct to be
followed during the raids.

As far as the abuse of power by the police was concerned, we were clear. But what about
the vulgar and obscene display of the female body for the pleasure of drunken male
customers, which was promoted by the bar owners with the sole intention of jacking up
their profits? It is here that we lacked clarity. I had been part of the women's movement
that has protested against fashion parades and beauty contests and semi-nude depiction
of women in Hindi films. But my colleagues, Veena Gowda and Shreemoyee Nandini -
both young, dynamic, women's rights lawyers, belonged to a later generation which had
come to terms with fashion parades, female sexuality and erotica.

Differing feminist perceptions

Finally after much discussion, we decided to take on the challenge and represent the Bar
Girls' Union in the litigation. We invited some of the girls who had been molested to meet
with us. Around 35 to 40 girls turned up. We talked to them at length. I also decided to
visit some bars. Though I was uncomfortable in an environment of palpable sexual
under-currents, I felt that the difference between a bar and a brothel is significant. An
NGO, Prerana, which works on anti-trafficking issues, had filed an intervenor application,
alleging the contrary - that bars are in fact brothels and that they are dens of prostitution
where minors are trafficked. While the police had raided the bars on the ground of
obscenity, the Prerana intervention added a new twist to the litigation because they
submitted that regular police raids are essential for controlling trafficking and for
rescuing minors. The fact that the police had not abided by the strict guidelines in anti-
trafficking laws and had molested the women did not seem to matter to them.

Opposing a fellow organisation with which I had a long association was extremely
uncomfortable. Prerana had been working with sex workers and had started an
innovative project of night crèches for children of sex workers in Kamathipura way back
in 1986-87. I had been involved with several para-legal workshops organized by Prerana
for sex workers. During these workshops the main concerns for the sex workers were
police harassment and arbitrary arrests. I viewed my intervention on behalf of bar girls
as an extension of the work I had done with Prerana, but Prerana members felt
otherwise. At times, after the court proceedings, we ended up being extremely
confrontational and emotionally charged, with Prerana representatives accusing us of
legitimizing trafficking by bar owners and us retaliating by accusing them of acting at the
behest of the police.

Under garb of morality

From September 2004 to March 2005, the case went through the usual delays. In March,
when the case came up for arguments, the lawyer for the bar owners produced an
affidavit by the complainant, upon whose complaint the police had conducted the raids.
The same person had filed the complaint against nine bars in one night. The police
officials themselves admitted that he was a 'professional' pancha (police witness). The
second person who had filed the complaint was a petty criminal. In the affidavit
produced by the bar owners, the professional pancha stated that he was not present at
any of the bars against whom he had filed the complaints and the complaints were filed
at the behest of the police.

This rocked the boat for the police and invited the wrath of the judges against them.
They were asked to file an affidavit explaining this new development. This turned out to
be the last day of the court hearing. Before the next date, the DCM R. R. Patil had
already announced the ban. So in view of this, according to the police prosecutor, the
case had become infructuous.

Rather ironically, just around the time when the DCM's announcement regarding the
dance bar ban was making headlines, the Nagpur Bench of the Bombay High Court gave
a ruling on the issue of obscenity in dance bars. While according to the Home Minister
the dances in bars are obscene and have a morally corrupting influence on society, the
High Court held that dances in bars do not come within the ambit of S.294 of the IPC.

The police had conducted raids on a dance bar in Nagpur and initiated criminal
proceedings against the owners as well as the dancers on grounds of obscenity and
immorality. The bar owners had approached the High Court for quashing the proceedings
on the ground that the raids were conducted with a malafide intention by two IPS officers
who had a grudge against them. In his affidavit filed before the High Court, the Joint
Commissioner of Police, Nagpur stated as follows: "It is found that certain girls were
dancing on the floor and were making indecent gestures. The girls were mingling with
the customers, touching their bodies, and the customers were paying money to them."

On April 4, 2005, Justice A. H. Joshi presiding over the Nagpur Bench of the Bombay High
Court quashed the criminal proceedings initiated by the Police on the ground that the
case made out by the police does not attract the ingredients of Section 294 of the IPC.
Section 294 is attracted only when annoyance is caused to another, due to obscene acts
in a public place. The Court held that the affidavit filed by the Joint Commissioner of
Police did not reveal that annoyance was caused to him personally or to any other viewer
due to the alleged obscene dancing.

This ruling followed several earlier decisions by the Bombay High Court, which had
addressed the issue of obscenity in dance bars. One of the earliest rulings on this issue is
by Justice Vaidhya in the State of Maharashtra v Joyce Zee alias Temiko in 1978 where
the court examined whether cabaret shows constitute obscenity. The police had
conducted raids in Blue Nile and had filed a case against a Chinese cabaret artist,
Temiko, on grounds of obscenity.

While dismissing the appeal filed by the State, the Bombay High Court held as follows:
"An adult person, who pays and attends a cabaret show in a hotel runs the risk of being
annoyed by the obscenity ... " Interestingly, prior to the raid, the policemen had sat
through the performance and enjoyed the same. Only when the show was complete did
they venture to arrest the dancer. The Court posed a relevant question - when and how
was annoyance caused to the police, who had gone in to witness a cabaret performance?
Regarding notions of morality and obscenity, the judge commented: "A cabaret
performance may or may not be obscene according to the time, place, circumstances
and the age, tastes and attitude of the people before whom such a dance is performed."

Ban on dance bars

The DCM's statement announcing the ban was followed by unprecedented media glare,
and we found ourselves in the centre of the controversy as lawyers representing the Bar
Girls' Union. The controversy had all the right ingredients - titillating sexuality, a hint of
the underworld, a faintly visible crack in the ruling Congress-NCP alliance, and polarized
positions among social activists.

The controversy was not of our own making but we could not retract now. We threw in
our lot with that of the Bar Girls' Union. The bar girls petitioned to the Chief Minister, the
National and State Women's Commissions, Commissions for ST, SC and Backward
Castes, the Human Rights Commissions, and the Governor, S.M Krishna. We even met
Sonia Gandhi, the Congress President and sought her intervention. Other women's
groups joined in and issued a statement opposing the ban.

Opposition to dance bars

An equal or even greater number of NGOs and social activists issued statements
supporting the ban. The child-rights and anti-trafficking groups led by Prerana issued a
congratulatory message to the DCM and claimed that they had won. Then women
members of the NCP came on the street brandishing the banner of depraved morality.
The Socialists and Gandhians joined them with endorsements from stalwarts like Mrinal
Gore and Ahilya Rangnekar to aid them. These statements had the blessings of a retired
High Court judge - Justice Dharmadhikari. Paid advertisements appeared in newspapers
and signature campaigns were held at railway stations. 'Sweety and Savithri - who will
you choose?' goaded the leaflets distributed door to door, along with the morning
newspaper. The term 'Savithri', denoted the traditional pativrata, an ideal for Indian
womanhood, while 'Sweety' denoted the woman of easy virtue, the wrecker of middle
class homes.

Interestingly, the Gandhians seem to be only against the dancers and not against the
bars that have proliferated. Nor have they done much to oppose the liquor policy of the
State, which had encouraged bar dancing. The antitrafficking groups who had been
working in the red light districts had not succeeded in making a dent in child trafficking
in brothels that continue to thrive. But in this controversy, brothel prostitution and
trafficking of minors has been relegated to the sidelines. The sex worker is viewed with
more compassion than the bar dancer, who may or may not resort to sex work.

Targeting the vulnerable

The bar dancer is being made out to be the cause of all social evils and depravity. Even
the blame for the Telgi scam is laid at her door; the news story that Telgi spent 93 lakhs
on a bar dancer in one night is cited as an example of their pernicious influence. The
criminal means through which Telgi amassed wealth fades into oblivion in the fury of the
controversy. Is it her earning capacity, the legitimacy awarded to her profession, and the
higher status she enjoys in comparison to a sex worker that invite the fury from the
middle class Maharashtrian moralists?

While the ban will affect the bar dancer from the ordinary dhabas run by Punjabis and
Sardars and the South Indian eateries run by the Shetty community, it will not affect the
higher classes of dancers who perform in hotels which hold three or more "stars", or
clubs and gymkhanas. Can the State impose arbitrary and varying standards of
vulgarity, indecency and obscenity for different sections of society or classes of people?
If an 'item number' of a Hindi film can be screened in public theatres, then an imitation
of the same cannot be termed as 'vulgar'. The bar dancers imitate what they see in
Indian films, television serials, fashion shows and advertisements. All these industries
have used women's bodies for commercial gain. There is sexual exploitation of women
in these and many other industries. But no one has ever suggested that you close down
these industries because there is sexual exploitation of women!

The ban will not affect the bars. The profit margins may go down for a while, but soon
other devices will be found to promote liquor sale. Bars employ women as waitresses
and the proposed ban will not affect this category. Waitresses mingle with the
customers more than the dancers who are confined to the dance floor. If the anti-
trafficking laws have not been successful in preventing trafficking, how will ban on bar
dancing prevent trafficking? And if certain bars were functioning as brothels, why were
the licenses issued to them not revoked?

Physician heal thyself

While the hue and cry about the morality of dance bars was raging, in Sangli district, the
home constituency of the Deputy Chief Minister (DCM), a dance performance titled
'Temptation' by Isha Kopikar, the hot selling 'item girl' of Bollywood, was being organized
to raise money for the Police Welfare Fund. The bar girls flocked to Sangli to hold a
protest march. This received even more publicity than the performance by Isha Kopikar
who, due to the adverse publicity, was compelled to dress modestly and could not
perform in her usual flamboyant style. The disappointed public felt it was more value for
their money to see the protest of the bar girls than to witness a lack luster performance
by the 'item girl'. And the bar girls raised a pertinent question, whether different rules of
morality apply to the police and the Home Minister.

Another controversy surfaced when the late Sunil Dutt, the popular and highly respected
Congress MP from Mumbai, as well as Govinda, the newer entrant to politics and also a
Congress MP from North-West Mumbai, issued statements opposing the ban. Govinda
himself hails from a performer community. And Sunil Dutt had responded as a performer.
Justice H. Suresh, a retired Bombay High Court judge and well-known defender of human
rights also opposed the ban.

All this has been heady news for the television channels and the tabloids. 'Dance Bars to
Sex Bars' blared a recent tabloid headline, which splashed photographs allegedly taken
from a hidden camera. The report stated that desperate dancers without work are now
resorting to oral sex in sleazy bars in the outskirts of Mumbai to earn money. Another
report stated that the mujra places, which had earlier closed down, have received a
boost. The worst was the news story of a young journalist who visited the DCM, claiming
to be a bar dancer, photographer in toe, with the intention of trapping him in a
compromising position. But the plot boomeranged and the journalist and the
photographer were arrested. Later the DCM issued a statement that the girl was a mere
pawn used by the editor and the same thing happens to the bar dancers. One wonders
whether he will now ban women from working as journalists in newspapers because
there is likelihood of exploitation!

So, all in all, during the last few months, the city is abuzz with never a dull moment.

A peep into reality

Since most activists on both sides of the divide had never visited a bar, to dispel some of
the prevailing myths, some women's groups were keen to conduct a study. The Women's
Studies Centre of the S.N.D.T. University, Mumbai, also got involved. Through the
intervention of the Bar Girls' Union, the bar owners were contacted and the dance bar
doors were opened to the research team. Time was running out as the cabinet had
cleared the Ordinance and had sent it to the Governor for approval.

The research team acted quickly and interviewed 153 dancers from 15 randomly
selected bars across the city. The bars had been selected keeping in view the cultural
and socio-economic diversity of the city. The women were
interviewed within the bars, during their rest intervals. This methodology also
provided an opportunity to observe the working conditions and extent of
sexual exploitation within the bars.

The Governor did not sign the Ordinance on the expected date and the time factor
swung in favour of the anti-ban lobby. On June 13, 2005, the Research Unit of S.N.D.T.
and women's groups held a press conference and released a preliminary report. The
study helped to bring into question many of the popular myths regarding bar dancers.
Contrary to the official statement that more than 75 percent of the dancers are
Bangladeshis and constitute a security risk, the sample study revealed that only 2 of the
153 girls who were interviewed were outsiders - they were Nepalis. Around 20 percent of
the women were either from Mumbai or came from poverty stricken districts of
Maharashtra. 50 percent of the women who were interviewed were from backward
castes, marginalized communities and notified tribes of Madhya Pradesh, Uttar Pradesh
and Rajasthan - Bedia, Chari, Rajnat, Dhanawat, etc. The literacy levels were low - 50
percent were illiterate and only 25 percent had studied beyond the primary level. They
had no training in any other skills.

In 60 percent of the cases women were the sole breadwinners of their families. Their
average monthly income ranged from Rs.5000 to Rs.35,000. None of them owned
property or even a dwelling house. They lived in rented tenements. Out of their earnings,
they spent a sizeable amount on costumes, makeup, travel and rent. The rest was spent
on children's education, for the marriage expenses of their sisters, and for medical
expenses of ailing parents. Most sent some money back to their families in their villages.
All the mothers chased a dream - to send their children to English medium schools.

Though the sample size is small, the random survey served to refute the premise that
bars are in fact brothels where minors are trafficked. The average age of the women who
were interviewed was 21 - 25. But 55 percent of the women had entered the bars when
they were minors, between the ages of 15-18. This is not surprising as most girls from
disadvantaged socio-economic groups either enter the job market or are married off by
this age. The dancers came to the bars through contacts with other women from their
community or friends who were working in bars. They were in the profession out of
choice, though some admitted that they did not enjoy dancing.

Extracts from the Amendments to the Bombay Police Act, 1951 to ban Dance
bars

AND WHEREAS the Government has received several complaints regarding the manner
of holding such dance performances ;

AND WHEREAS the Government considers that such performance of dances in eating
houses, permit rooms or beer bars are derogatory to the dignity of women and are
likely to deprave, corrupt or injure the public morality or morals;

AND WHEREAS the Government considers it expedient to prohibit such holding of

performance of dances in eating houses, permit rooms or beer bars;

AND WHEREAS the Government considers it expedient to further amend the Bombay
Police Act 1951, for the purposes aforesaid ; it is hereby enacted in the Fifty sixth Year
of the Republic of India as follows :-

Sec 1 This Act may be called the Bombay Police (Amendment) Act, 2005

Sec 2 : After Section 33 of the Bombay Police Act, 1951, the following sections shall be
inserted, namely :
 Section 33A

(1)(a) holding of a performance of dance of any kind or type in an eating house, permit
room or beer bar is prohibited

(1)(b) all performance licences issued under the aforesaid rules by Commissioner of
Police District Magistrate or any other officer, as the case may be (being the Licensing
Authority) to hold dance performance of any kind or type in an eating house, permit
room or beer bar shall stand cancelled

(2) Punishment for violaton imprisonment for a term not exceeding three years or with
fine upto to Rs.2 lakhs or both. Not less than three months and fine not less than
Rs.50,000/-

Section 33B

Nothing in section 33A shall apply to the holding of a dance performance in a drama
theatre, cinema theatre and auditorium or sport club or gymkhana where entry is
restricted to its members only or a three starred or above hotel or in any other
establishment or class of establishment, which having regarding to (a) the tourism
activities in the State or (b) cultural activities, the State Government may by special or
general order, specify in this behalf.

The dancers stated that they had a greater security in the bars due to the support
network among the dancers as well as the protection provided by the owners. Usually
each bar had 30-60 dancers. The drivers of taxis and auto rickshaws that were used to
take them to work and back were regulars and hence they did not feel insecure while
travelling home late at night. The only thing they feared was the police raid and the
sexual exploitation by the guardians of the law!

The positive outcome of the entire controversy and the media glare has brought the bar
girl out of her closeted existence. It has made the bars more transparent and accessible
for women activists and researchers. But several lurking doubts continue to haunt me.

Due to the ban the lot of the bar owners and the bar girls has been thrown together by
the political developments and there is no other choice for both but to struggle for their
survival together. Today the interests of bar girls and the bar owners are common. But
what will happen tomorrow if the Bar Girls' Union takes up questions which are
uncomfortable for the bar owners? Can the Union operate without the support and
approval of bar owners? Does it have the strength to negotiate better working conditions
for the bar dancer?

And what about the women's groups who are opposing the ban? Has our intervention
strengthened the bar owners and wrapped them with a cloak of legitimacy? Initially
women's groups resisted, but it had become obvious that if the women's groups wanted
to play any role at all, they would have to deal with the bar owners. This realization
dawned on the anti-ban groups very late. Only within an atmosphere of mutual trust was
it possible to enter the bars and conduct the study.
Personally, the entire experience has helped me to gain greater insights into the lives of
women who live at the margins and form the underbelly of the city's nightlife. It has also
helped me to question my own notions of morality and to encounter the sleazy world of
sexual erotica. I have become astutely aware of the realities of a bar dancer and the
various levels of power politics that is played out upon her body.

But what have been the gains for the bar dancer? Were the underground existence and
the invisibility within which she negotiated her sexuality, morality, and economics more
comfortable to her? Has the exposure made her even more vulnerable than the condition
she was living in, before all of us entered her life? I do not know.