Day 19: Sexuality and
the Judiciary of India
Reading through a report titled “Contentious Marriage,
Eloping Couples,” by Prem Chowdry, I came across incredibly interesting
arguments that outlined the intersection of sexuality and the Indian judiciary,
as cases of runaway couples and honor killings were brought to court. As I
mentioned in a previous post, honor killings were often the result of runaway
marriages where couples in love eloped, to the dissatisfaction of their parents
and families, and when found, the couple were killed for bringing dishonor to their
families. The report I read outlined the aftermath of the runaway marriages and
how it brought about a gendered judiciary.
The aftermath of the runaway marriages usually involved an
investigation as to the couple’s whereabouts. Because the neighborhoods and
villages in parts of India are highly close-knit communities, news of what the
couple has done is sure to spread throughout the village, and the bride’s
family’s reputation is threatened because the woman disregarded her parent’s
wishes, and acted against patriarchal control. After all, the right to marry
the woman is not seen as her own, but rather one belonging to her male
guardian. In order to re-establish male honor, the runaway woman must be
retrieved. So the girl’s family files a report with the police, claiming their
daughter was kidnapped and raped. When the couple is ultimately found, the
husband is arrested and imprisoned and the wife is returned to her family, who
forces her to indict her husband by admitting that he kidnapped and raped her.
The main problem arises when the girl’s age is questioned.
According to Indian law, a female must be 16 years old to engage in consensual
sex (15 years old if she is a married woman), and a male must be 18 years old.
However, until one is 18 years old, one is considered a minor. So it is
possible that a girl between the ages of 16 and 18 could legally consent to
sexual relations with her husband, but could not have legally consented to
marriage, due to the fact that she is still a minor. This causes a problem
because the court therefore views sexual relations in a “runaway marriage” as
“illicit”, and a stigma of being a promiscuous woman is then associated with
the woman in question. The fact of the marriage is not even given consideration
because legally, she could not have consented to it.
Because there is a general lack of records regarding births
and no concern in recording births in India, a girl’s age can’t be proved
conclusively. Therefore, the court relies on a bone X-ray examination, known as
an ossification test to give an approximation of age, but this test is not
definitive, and provides a range of ages rather than a precise age. So in many
cases, though she may not be a minor, the girl’s parents will claim in court
that she is a minor to make the marriage invalid.
Now once these cases of proposed kidnapping and rape go to
court, the courts rule that the man accused was “facilitating in the
fulfillment of the intention of the girl,”
implicitly stating her intent to have sex with her lover. In one case in
Mumbai, the judge even explicitly stated that the man was in the company of the
woman “in order to satisfy her sexual lust.” The fact that her “intent” was to
get married to the man was ignored because as a minor, she could only consent to
sexual relations, not marriage. The courts’ stand is that sex is only
legitimate if the couple is married, and the only marriage the courts recognize
are ones in which the girl’s guardian gave his approval and blessings. The
irony is that if the girl’s parents agreed to the marriage, the fact that she
is underage wouldn’t even be an issue and her sexuality would be accepted as
legitimate. There is obvious gender discrimination in the courts’ logic because
the charge of illegality is only initiated when the girl marries out of choice
but not when her guardian makes it for her, even when she is a minor.
The only way for the girl to escape the stigma of being a
promiscuous woman is to make allegations of rape, kidnapping, abduction, etc.
against the man. The woman’s sexuality is controlled by patriarchal society and
tied to her family’s honor. The man is viewed as fulfilling the wishes of a
promiscuous woman – she is responsible for his behavior. As Chowdry states,
“The judicial eye is gendered” in this way because “sex for an unmarried woman
is severely condemned but for an unmarried man it is not a matter to condemn…he
is [viewed as] a victim of the woman’s lust. Such an attitude only naturalizes
a man’s sexuality and accepts it as part of his masculinity. This gendered
approach produces [inequality] at the judicial level. It also severely negates
consensual sex for a woman, which is legally recognized for her…above 16 [years
of age].”
In lower courts, the man is usually convicted, which serves as
a face-saver for the girl’s family and reassertion of the “male guardian’s
right of ownership of the woman.” However, the sentences is usually reduced on
appeal or reversed by the High Court. The judgments put blame on women for
“enticing the man,” but still punish the man. The whole process “makes the
woman a possession [of her male guardian] and the man a criminal.”
After her family retrieves the woman, she is either quickly
and quietly married off, or killed. If she is married off, it is usually to
someone who is not viewed as an ideal mate, such as a widower, an older man, a
man with children, or a married man. Sometimes, when the family cannot marry
her off, the girl is killed because that is seen as the only “honorable”
option, as the stigma can only be removed by killing her. If she were to
remarry into a lower status family, it would only reduce the status of her
parents. There were so many cases where girls were killed by their families, at
times in front of neighbors or the entire village, but nobody tried to help
them or even reported the crimes. The culprits get away with murder. The police
barely investigate, accepting the families’ reports that the girls committed
suicide.
Chowdry states, “The rights of women are totally negated,
going against the concept of equity and justice…the court passively accepts and
actively promotes the regulation of a woman’s sexuality rather than challenging
it in accordance with her legal rights, thereby reiterating that the male
guardian has the right to settle and give her in marriage to a partner of his
choice…Judges deliver moral judgments rather than legal ones.” State agencies
and judiciaries “legitimize the stereotype of a woman who has brought shame and
dishonor upon her family, community and society.”
Though most of these cases are “settled” (through violence
or otherwise), there is still some hope. In 2006, a Supreme Court judgment
stated inter-caste and inter-community marriage in India are in “national
interest,” “instructed the administration and police throughout the country to
protect such couples from harassment and violence, and declared all opposition
to such marriages to be against the law, and hence punishable.” Since then,
some change has been made. Shelters are slowly opening up to provide shelter
and protection to runaway couples. A change in culture is necessary though;
without it, gender discrimination will only persist.
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