प्रेम एक क्रांति है, प्रेम मुक्ति है

 प्रेम एक क्रांति है, प्रेम मुक्ति है

अधिवक्ता डॉ. शालू निगम

 2 सितंबर 2023

प्रेम की व्याख्या दार्शनिकों द्वारा विभिन्न रूपों में की गई है

प्रेम को कवियों द्वारा रूमानी रूप दिया गया है, जिनकी अपनी-अपनी कथा है

फिल्मों में प्यार को सीमित आयामों में चित्रित किया जाता है

प्रेम को टेलीविजन ने सीमित विवरण में सीमित कर दिया है

लालची बाजार ताकतों द्वारा अपने निहित स्वार्थ के लिए जानकारी में हेराफेरी और तोड़-मरोड़ कर पेश करने के लिए प्रेम का अपहरण कर लिया गया है

सत्ता के भूखे राजनेताओं द्वारा प्रेम को सतही सम्मान, संकीर्ण राष्ट्रवाद और देशभक्ति के बंडलों तक सीमित कर दिया गया है

प्रेम जाति, क्षेत्र और धर्म की संकीर्ण अवधारणा और पितृसत्तात्मक धारणाओं से विभाजित है

लेकिन इस सारी उथल-पुथल के बीच, जिस तरह से मैंने समझा, प्यार एक विद्रोह है,

प्रेम एक क्रांति है; प्रेम मुक्ति है

प्रेम विद्रोह है, जो व्यक्तिवादी अभिव्यक्ति या भावनाओं तक सीमित नहीं है।

प्रेम को लाभ-हानि के हिसाब-किताब तक सीमित नहीं रखा जा सकता

प्रेम विवेक को जागृत करता है और व्यक्ति को अहंकारी लेन-देन से परे सोचने में सक्षम बनाता है।

प्रेम कोई सर्वोच्चता, पूर्वाग्रह, अंधविश्वास या पूर्वधारणा नहीं है

लेकिन प्रेम एक शक्तिशाली अभिव्यक्ति है जो ऐसे सभी भ्रमों को चुनौती देती है

प्रेम एक अभिव्यक्ति है जो क्षेत्र, जाति, वर्ग या धर्म की सीमाओं से परे है

प्रेम का मतलब मंदिरों में परमात्मा की तलाश करना नहीं है; यह प्रकृति और उसकी सभी रचनाओं की प्रशंसा करने के बारे में है

प्रेम प्रकृति के साथ सामंजस्य है, और विलुप्त होने के कगार पर मौजूद सभी प्राकृतिक प्रजातियों का संरक्षण है

प्रेम जीवन की तर्कसंगतता, बुद्धिमत्ता और उत्सव है।

प्रेम न्याय की तलाश है, प्रेम स्वतंत्रता और आत्मनिर्णय के बारे में है

सामान्य समय में,

प्यार एक माँ की धैर्य है जो अपनी बेटी को सपने देखना और सदियों पुरानी परंपराओं को तोड़ना सिखाती है

प्रेम एक पिता का अपनी बेटी को उसकी आकांक्षाओं को पूरा करने में समर्थन देने का कार्य है।

प्रेम एक प्रेमी का विद्रोह है जो सभी रूढ़िवादी परंपराओं को तोड़ना  है

प्रेम सभी रूढ़िवादी पारंपरिक भ्रमों को तोड़ने के बारे में है

प्रेम नागरिक के विद्रोह में है, अपने अधिकारों और उचित समाधानों की मांग करना  है

प्रेम उस कार्यकर्ता की दहाड़ है जो शोषण के विरुद्ध आंदोलन करना है

प्रेम सीमित परंपराओं की संकीर्ण दीवारों को तोड़ना  है

प्रेम गरीबी, भुखमरी, ज्यादती और असंयम को खत्म करने की मांग करना   है।

अँधेरे समय में,

प्रेम सभी अन्यायपूर्ण संस्थाओं को मोड़ना  रहा है, ढालना  और बदलना है

प्रेम सभी प्रकार के भेदभाव को चुनौती देना  है

दमन के समय में, प्रेम क्रांति की शिक्षाशास्त्र है

प्रेम सत्ता में बैठे लोगों के झूठ को उजागर कर रहा है; यह अन्याय और उत्पीड़न के खिलाफ मजबूती से खड़े होना  है

प्रेम क्रूरता, हिंसा और दमन के इतिहास का दस्तावेजीकरण करना  है

प्रेम सभी प्रकार की पराधीनता के विरुद्ध बोलना  है

नफरत के दौर में,

प्रेम बहादुरी है और सच को दृढ़ विश्वास के साथ कहने का साहस है

प्रेम अत्याचार और वर्चस्व की वास्तविकताओं के विरुद्ध गवाही देना  है

प्रेम का अर्थ है न्याय की तलाश करना, ग़लतियों को सही करना और संविधान की भावना को पुनः प्राप्त करना

सभी अराजक और बेतुकी स्थितियों के बीच प्यार आशा की एक चमक है।

निरंकुशता और प्रभुत्व के समय में प्रेम धैर्य और लचीलापन है

प्रेम स्त्री-द्वेष, लिंगवाद, घृणा और घृणा का प्रतिकार करना है

प्रेम सभी भयानक घृणा और विभाजन के विरुद्ध खड़ा होना है

संक्षेप में।

प्रेम एकजुटता है, सामूहिकता है, मानवीय मूल्यों, दया और करुणा पर आधारित एक वैकल्पिक दुनिया की कल्पना करना है।

प्रेम निराशा और अवसाद के समय में कविताएँ और कहानियाँ लिखना है

प्रेम प्रतिरोध और प्रतिस्पर्धा के गीत गाना  है

प्रेम शांति, न्याय, जुनून और सहयोग का उत्सव है

प्रेम भावी पीढ़ियों के लिए एक बेहतर दुनिया का निर्माण करना है

प्रेम एक ऐसी दुनिया की कल्पना करना है जो विश्वासघात, क्रूरता और दमन से मुक्त हो

प्यार एक ऐसी दुनिया का सपना देखना है जहां मानवता के खिलाफ अपराध के लिए कोई जगह नहीं है, कोई सतही अलगाव नहीं है

प्रेम एक क्रांति है; प्रेम मुक्ति है

 Fighting for Freedom Every Day

Shalu Nigam

15 August 2023

Politically, India gained independence on 15th August 1947, however, for those on the margins, freedom is not a one-time event, They are struggling hard and fighting for every inch of space and for freedom on a daily basis at every possible space - public or private. 

Freedom implies a different sense to different people. For the elite and the privileged, freedom may be a one-day celebration. However, for a woman or a child in a violent relationship, a poor trapped in the vicious circle of poverty, a bonded laborer enslaved by the chains of bondage, or a young girl stuck in a trafficking channel, freedom may be desperately seeking liberation every moment. And there are a million men, women, and children who are entrapped in a similar situation. 

The freedom struggle in India has seen a lot of bloodshed and sacrifice by millions. However, several scholars have noted that once India attained independence, it is the powerful and elite Indians who replaced their colonial masters. The situation of the poor and marginalized, therefore, remained the same. 

Those on the margins, therefore, are still struggling every moment of their lives to attain freedom or Azadi - freedom from starvation, freedom from poverty, freedom from illiteracy and ignorance, freedom to study, freedom from patriarchy, freedom from everyday violence and fear of violence, freedom from casteism, freedom from fascism, freedom from majoritarianism, freedom from capitalism, freedom to dream and aspire, freedom to enjoy life. 

 The Founding Mothers: 15 Women Architects of the Indian Constitution

2016

The current question of women’s autonomy and rights in India is rooted in the nineteenth century when the quest for independence of the country from British rule was going on and the issues of women’s rights gained a central position in debates on social reforms. Although, at that point in time, the notion of gender justice or gender equality had not gained ground, yet, the social reformers were of the view that something needs to be done about improving the situation of women. Women then were construed as members of the community rather than individuals on their own and therefore, the notion of women’s entitlements was interpreted within the context of the religious, personal, and customary law sphere which never treated women as independent entities. The official colonial and post-colonial discourses in pre-independent India were initiated by male reformers who articulated their thoughts on the abolition of Sati or on the age of consent. The amendments of personal laws were not women-friendly or provided for equality of sexes, rather these were based on orthodox opinions as evident from debates surrounding the Age of Consent Bill, Indian Divorce Act, Indian Succession Act of 1865, Hindu women’s Right to Property Act 1937 or the Hindu women right to Divorce Bill, 1939. Even during the debates on fundamental rights in the Constituent Assembly, men argued that ‘sex’ should not be mentioned as a ground of discrimination. But it was the women members who insisted that where fundamental rights were concerned the term man could not stand in for both male and female. However, in spite of the fact that equality on the basis of sex was mentioned in the Constitution, it could not contextualize women as independent beings and visualize them as members of the community.

The women, though few, raised women’s concerns and voiced women’s questions in the debates in pre-independent India within the given social context; and therefore the Constitution of India when finalized does reflect all of these concerns. These Constituent Assembly debates shaped the process of state formation and also guided the attitude toward women’s questions. This book looks at those women who raised their voices, pushed the concerns for inclusion, and highlighted the women’s concerns when the Constitution was being made. These and many other women played a significant role in the making of the Constitution. Yet, their works remain in the shadow, their faces invisible, their voices hidden and their courage unsung. They were the crucial architects of the Indian Republic who made substantial leaps in the history of India. Here we have made an attempt to look at their life, their views, their thoughts and the issues that they raised, which played a significant role in shaping the document called Constitution. We, therefore, call them the founding Mothers of the Constitution who brought in specific women-related concerns in contrast to the Fathers of the Constitution who sometimes favoured women’s questions, sometimes rejected women’s notions or sometimes overlooked women’s concerns. These women chose an unconventional path and voiced their thoughts in an arena dominated by men, and made their mark while writing the destiny of the Indian Republic.

 Dowry involves a triad of oppression

“Dahej naari jaati ka apmaan hai”

"Dowry is an insult to females.”

(A slogan raised against the immoral practice of dowry in post-independent India)

Cameron (2014) categorised the financially abusive partners into three categories: controllers, exploiters, and schemers. According to this study, the controllers use a peculiar combination of abusive behaviour to exert control, the exploiters use various forms of abuse to exploit partners for their own financial needs, and the schemers systematically strategize to steal the women’s money. The despicable goal of the schemers is to shamelessly exploit the relationship and to wrongfully take women’s assets. Using this critical approach to analyse the cases relating to dowry abuse depicts that those who demand dowry are schemers who systematically and brazenly strategize to control not only the women’s assets but also the money that belongs to her natal family. As a controller, the abuser threatens the woman and inflicts senseless violence on her, if the dowry demands remain unfulfilled, he murders her or tortures her to compel her to commit suicide. As an exploiter, the abuser ruthlessly exploits the marital relationship to make arbitrary, irrational demands, to extract resources and wealth.

A critical analysis of several of the reported cases of dowry shows that it is not merely a custom consisting of a simple exchange of gifts; it is a predatory practice that consists of a broader form of violence, which is physical, economic, mental, emotional, and verbal, where the abuser intentionally exploits the element of emotional intimacy and the woman’s economic dependency in the relationship using his position of authority and while taking advantage of a woman’s situation of vulnerability. This acute form of economic abuse inextricably involves a perilous set of oppressive elements, including

1) compulsive persistence, coercive, arbitrary, and irrational demands that are made continuously over an incessant period starting from before the marriage, during the marriage, or even years after the marriage is performed;

2) pressurizing and coercing a woman and her natal family in various ways, including physical, emotional, or mental torture of a woman for consumer goods or cash or other material benefits,

3) killing a woman, treacherously murdering her, or burning her alive, or she is mentally tortured to such an extent that her circumstances become unbearable, she feels helpless, and she is compelled to commit suicide.

All these conspicuous elements may work together or singly, but the purpose is to compel women and their families to arrange for money, cash, valuables, or tangible goods. Arbitrary dowry demands, coercion, and violence are distinct elements that are not yet recognized legally in India. The legal system has grimly failed to recognize that the dowry demands or violence is not a one-time action, but it involves extorting money from the bride and her family by ruthlessly exploiting, torturing, subjugating, and oppressing women in the privacy of the home for years after marriage.

Making compulsive, arbitrary demands for the dowry from a bride is illegitimate, undesirable, immoral, and unethical, as are coercion and violence. The laws and policies on the dowry need to take these various complicated factors into account. The law has failed dismally to deter the attitude of entitlement among men who perhaps opine that it is their privilege that they can extort anything, anytime, from the family of the bride because of the marital relationship, ignoring the fact that marriage in no way entitles one to extract money or exploit women. The state hardly acts efficiently to curb this terrible crime; rather, the police and the courts, in several cases, as the bastion of male dominance, have propagated male chauvinism.

For instance, Mohinder Kaur, a teacher, set herself and her three children ablaze at her matrimonial home on 7.6.1983. Married seven to eight years ago, she was harassed for the dowry. She wrote a letter to the Deputy Superintendent of Police complaining of ill-treatment and persistently sought police protection. Her manipulative husband frustrated her frantic efforts to seek a transfer from the school where she was working. As per the prosecution, her mother-in-law and sister-in-law instigated her husband and conspired to brutally kill her by sprinkling alcohol, but their sinister plan misfired. Being fed up, Mohinder Kaur wrote a letter to her mother, sharing her unbearable agony, and committed suicide the next day. Her mother lodged an FIR. The trial court convicted her husband, mother-in-law, and sister-in-law, but the High Court acquitted them on the ground that the prosecution could not prove that they aided and abetted her to commit suicide. The Supreme Court in State of Punjab v Iqbal Singh, while taking into account her ill-treatment and the atmosphere of terror created for her, restored the conviction of her husband but acquitted his sister. The legal system insisted on technicalities and the prosecution’s ability to produce convincing evidence, and not on the fact that Mohinder Kaur was continuously and brutally tortured to such an appalling extent that she could not see any other way around but to commit suicide along with her three children.

In Arvind Singh v. State of Bihar the daughter of Phulmati was horribly burned alive. The deceased, before her death, disclosed that her husband and other family members forcibly poured kerosene and set her on fire. The helpless girl was cruelly tortured because she was `ugly looking,’ and the pent-up demands for a dowry of Rs 10,000 and a gold ring could not be fulfilled. The apex court dwelled on the ghastly forms of burn injuries, the technicalities of a dying declaration, the nonexamination of the investigating officer and other evidence, and set aside the imprisonment under Sections 302 or 304B and 498A on the ground that no dowry demands were made prior to the date of the occurrence of the crime. Those who viciously murdered Phulmati’s daughter with impunity burned her, and then refused to take her charred body to the hospital were simply not deterred by the rule of law. The perpetrators somehow knew that the oppressive system upheld the mindset that burning women alive for the dowry is not considered a deadly crime and that they could effortlessly be set free. Perhaps, it is much easier to hopelessly entangle justice in the complicated web of technicalities, nitty gritty, and legal procedures in cases where women are victims.

Harjinder Kaur committed suicide on 7.2.1998 by ingesting aluminium phosphate because she was brutally tortured for not fulfilling the urgent demand for a motorcycle and a fridge (Sher Singh v State of Haryana). Her violent husband bitterly contested that she was hot-tempered,  desperately wanted him to shave his hair, and inevitably forced him to leave separately from his parents. The session judge convicted her husband and in-laws under Sections 304B and 498A IPC. The High Court, on appeal, acquitted all others except her husband on the technical ground that the prosecution calamitously failed to establish their role.

The Supreme Court acquitted the husband and noted, “What motivated or compelled her to take this extreme and horrific step will remain a mystery, as we are not satisfied that the prosecution has proved or even shown that she was treated with such cruelty, connected with dowry demands, as led her to commit suicide”. The court could not consider the fact that, for a motorcycle and a fridge, an unfortunate woman was barbarically tortured to such an extent that she committed suicide while she was pregnant.

The courts in several cases have emphasized the dereliction of the duty on the part of the prosecution or the negligence by the investigation officers to acquit the accused persons while overlooking the fact that justice is indignantly denied to the tragic victims because of the overall sloppiness by the law enforcement system in its entirety. And while doing so, the courts omit to perform an active role by directing the state to impart training to the officers and the staff to avoid any further such neglect on their part. The courts remain silent in situations where the rights of the victims are at stake.

Chinu Rani married Arjun Acharjee on 13.3.1994, and after their marriage, her husband and father-in-law severely tortured her physically and mentally for Rs 5000 in unpaid dowry out of the demand to pay Rs 20,000 (Nirode Ranjan Acharjee v State of Tripura). She wrote a letter to her father on 18.5.1994 requesting him to meet the pending demand. She tragically died on 30.6.1994. The post-mortem report noted that she died of insecticide poisoning. The trial court acquitted both the husband of the deceased and her father-in-law of the charges under Sections 304B and 306 IPC and convicted her husband only under Section 498A. On appeal, the High Court discarded the critical testimony of her parents, sister, and friend, where they testified that the deceased had told them that she had been subjected to harassment for nonpayment of the dowry, as hearsay evidence. The court also rejected the letter written by her as evidence, wilfully ignoring the dreadful agony the deceased underwent within a short period of her marriage. She died merely because her parents could not pay the money as promised at the time of marriage.

Mamta got married on 21.10.2001. She had a two-year-old daughter when she was found dead on 23.01.2005 (Rohit v State of Delhi). Her parents allege that her husband used to brutally torture her for the dowry and that they gave him cash many times. A day before she committed suicide, her husband sternly demanded Rs. 5000 in cash and a generator for his business. The case was registered under Section 304B and 34 IPC. However, the trial court acquitted the accused on the ground that the allegations were vague, general, and inconsistent, and no cruelty was committed by the accused. On appeal, the High Court maintained the acquittal on the ground that no proximate demand was made at the time when the deceased committed suicide while disbelieving the convincing testimonies of the witnesses. No one is held accountable for Mamta’s suicide.

Case after case demonstrates how crooked men have coerced, exploited, and murdered women for extorting the dowry. In all such cases, violent men have improperly used the devious mechanism of violence to pressurize, and torture women for months or years, and then murdered them for money or goods. Yet, the courts have upheld the patriarchal assumptions while acquitting the accused. Women have died in compelling circumstances. The testimony of witnesses and other material evidence indicates that women have been brutally murdered or were forcefully compelled to commit suicide because of unreasonable motives or coercive demands. Yet, the perpetrators of dowry violence are released on flimsy and technical grounds.

The courts frequently overlook the material evidence while disdainfully pointing out the faults of women as wives. The oppressive elements such as coercion, exploitation, extortion, or irrational, arbitrary demands are not taken into account while adjudicating the matters. Women are cruelly tortured and brutally murdered for the voracious ravenousness of soulless men, women are subjugated and oppressed by their families, and yet, are denied justice by the patriarchal state.

The United Nations Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power, clarifies that it is the duty of the state to ensure that the victims of crime should be treated with compassion, respect, and dignity and the judicial and administrative mechanisms should ensure that victims are not denied access to justice. However, in the situation of dowry violence, it appears that victims are deprived of justice and all the provisions and the norms mentioned in the said international instruments are flouted. The courts are seemingly unwilling to consider the varied elements of the triad of oppression deployed against women for the purpose of extracting dowry from them. The rights of women as human beings are still not upheld despite the promises and pledges made at the national or international level.

Excerpt from Dowry is a Serious Economic Violence: Rethinking Dowry Law in India, 2023, Amazon p. 104-106

 Excerpt from my book 

Dowry is a Serious Economic Violence: Rethinking Dowry Law in India 

(2023)

Amazon

Centuries ago, when Karl Marx wrote exhaustively about the callous exploitation of workers by the capitalist class, he may not have imagined how in South Asia, women as brides would be treated as commodities, pitilessly exploited, and violently murdered in their own homes by their abusive husbands for extorting wealth. As the ruthless oppression of the toiling masses could not be prevented by laws or policies, the merciless torture and murder of women could not be regulated despite establishing a legal mechanism in place. Over the decades, predatory capitalism has irrevocably acquired an altered form, and the free-market approach has devised a new mechanism of manipulation (Faber D, 2018). Similarly, the viciousness of the neoliberal forces, clubbed with patriarchy, feudalism, conservatism, rampant materialism, and excessive consumption propelled by extensive consumerism, is aggravating the desire among men and their families to accumulate quick wealth using marriage as a tool to extract resources from women and their families. The bourgeoisie-proletariat categorization, in the situation of dowry practice, is expanded to include the classification of savagely privileged men versus women – rich or poor, and in urban or rural areas. Women from all backgrounds dreadfully suffer for the material gains of men and their families in a harsh and hostile environment fuelled by the neoliberal, Brahmanical capitalist patriarchy.

 

She is a girl; she has a right to survive with dignity

Shalu Nigam 

21 June 2022

She is not a commodity to be traded 

Hope that the moment you downgraded her could be faded 

She is not an object of your desire

She has dreams of her own to aspire

She is not a burden to be discarded 

She is a human to be accepted 

She is not a property to be owned 

She could imagine a world of her own

She is not a source of your free labor

Respect her rights and her worth, she is stronger

Because she is a girl, a woman 

She needs no permission

Her body her life and her future belong to her

Don't bring in your stereotypes, traditions or your repressive culture 

Your world is brutal and discriminatory 

But she dreams of a world that rests on equality

Where everyone has a right to survive with dignity

 

How the Malimath Committee Denied Women Their Rights?

Section 498A IPC was inserted in the Indian Penal Code in 1983 and provides to protect women from cruelty in their matrimonial homes. The Malimath Committee Report (2003), twenty years after the enactment of Section 498A, noted,

“In a less tolerant, impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for maintenance adding fuel to the fire if the husband cannot pay. She may change her mind and get into the mood to forget and forgive. The husband may realize the mistakes committed and come forward to turn a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make amends by withdrawing the complaint, she cannot do so as the offence is non-compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family…This section, therefore, helps neither the wife nor the husband. The offence is non-bailable and non-compoundable making an innocent person undergo stigmatization and hardship. Heartless provisions that make the offence non-bailable and non-compoundable operate against reconciliations. It is, therefore, necessary to make this offence (a) bailable and (b) compoundable to give a chance to the spouses to come together” (p. 191).

 

The Committee, while making such observations, expressed its apprehensions about the ability of the criminal justice system to provide justice. However, the committee has failed to recognize that

First, cruelty under 498A is listed as a cognizable, non-bailable, and non-compoundable crime and has to be dealt with accordingly. The criminal justice system, while dealing with each case, is expected to take abundant precautions in ascertaining the guilt of the accused person; therefore, to suggest that this offence be diluted implies distrusting the judiciary and labelling the trial courts as inefficient to effectively adjudicate the culpability of the parties.

Second, the context of the relationship between the perpetrator and the victim does not make domestic violence a lesser crime. Rather, the severity of the crime is adverse in situations where the batterer is in the position to exert financial, emotional, and social control over the victim because of the relationship, and the victim is financially dependent on the perpetrator.

Third, salvaging a violent marriage is not a viable option when a man is abusive, as he destroys the family through his violent actions. Families cannot be built on the edifice of bruised and battered bodies or scarred minds.

Fourth, the bitterness in a relationship already starts once a wife is being abused; therefore, suggestions should have focused on altering the men’s violent behaviour.

Fifth, the policemen are not overzealous in arresting the accused. Rather, studies have shown that women undergo hassles in filing the FIR. Also, at every step of the trial, mediation is enforced vehemently to compel women to reconcile.

Sixth, making the offence compoundable will not serve the purpose, as neither will it deter the perpetrator nor will it help to salvage the relationship. Experiences show that violence escalates in situations when women are pushed back into abusive situations without the guarantee of safety.

Last, the committee has failed to raise concerns relating to provisions of shelter homes, medical, or legal aid, or other facilities for the battered women, as its only apprehension was to save the family. This indicates its biased approach.

Despite its pitfalls, this erroneous approach sets precedents, is being repeated multiple times, and has major implications for diluting the procedures and provisions relating to criminal law. Over the years, the state has followed the recommendations blindly without testing the validity of claims or referring to the existing research to suggest changes. 

For more details, please see my book

Domestic Violence Law in India: Myth and Misogyny (2021), Routledge

 How the courts failed gender justice 

The Basic Premise Behind Domestic Violence Remains Unchallenged

Domestic Violence in India is premised on several notions such as 

1) The marital relationship is hierarchical and inegalitarian. Women are accorded a low status within a marriage and the family whereas a man is considered a master of the household 

2) The husband and his family have the authority to beat the wife besides demanding dowry. Chastisement is a prerogative granted to a husband who can commit violence against a wife in the guise of love and discipline. 

3) A violent husband is not made accountable even if he brutally murders the woman. The law grants immunity to violent husbands even if the husband is a drunkard, vile, or criminal.  

4) The family is a private realm and no one and not even the law should interfere with the privacy of such an institution. Domestic harmony is prioritized over violence against women. 

5) The doctrine of marital unity as propounded by Blackstone persists which prevents law framers and implementers to see complainant wives as separate persons or a citizen demanding protection under the law. 

6) Courts are expected to uphold constitutional values instead they are enforcing the family ideology 

7) The law has been used symbolically and superficially to address violence issues but no steps have been taken to address the root cause, for instance, the dowry law has failed to eliminate dowry or address dowry-related violence 

8) The legal discourse focused on blaming the victim, stigmatizing her, and penalizing women for not `adjusting’ within families  

9) Due to the backlash, the focus is shifting away from reality from `bad men’ who are battering or burning their wives to `bad or terrible women’ who are misusing the law. 

Most of these premises are never questioned even in a court of law. The law does not utilize the principles of rationality while adjudicating the claims of battered or murdered wives. It legitimizes and reiterates social inequalities within the institution of marriage.

 A few attempts have been made to change the approach and the attitude of law implementers to see women as partners and citizens with equal rights. Legal reforms could not make a dent in the construction of women’s `natural’ position within the existing power structure that creates the everyday reality of their life within and outside the family. Additionally, the justice system is a part and parcel of a larger patriarchal society where the system is corrupt and inefficient. Courts used both the logic relating to chastisement prerogative and marital privacy while prosecuting men in cases of wife beating. Language of hierarchy, love, and discipline is used to protect violent men and the tropes of both hierarchy and interiority are used to cover bias in the hierarchical marriage arrangements. The regime of immunity is utilized to justify brutal violence while utilizing the dimensions of feelings and domestic space.  

 

The Justice System Has Failed to Meet the Changing Needs of the Society

Analysis of spates of judgments shows that women are being tortured, brutalized, burned alive, murdered, or forced to commit suicide yet, tragically, the current judicial discourse focuses on misuse or abuse of law by women. The cases relating to dowry deaths, murders of wives, the suicide of women in marriage, and domestic violence, found little space either in the media. No sensitivity is being displayed when a wife dies rather such cases are being normalized and trivialized and what is prioritized is fake concerns raised by fragile masculinity, probably because women’s concerns are no longer deemed relevant by the patriarchal society. Dowry deaths have been highlighted during the decade of the 80s and the laws have been reformed then, however, no monitoring or follow-up has been done to ensure that the system of dowry coercion is eliminated. Similarly, domestic violence cases are being reported in increasing numbers, yet no accountability has been fixed to ensure that actions could be taken to monitor the situation. The system has not devised ways to monitor the situation if the police are following the procedures or conducting the investigation seriously.  The criminal justice system has failed to respond to the changing situation. Similarly, civil law ignores the realities of women’s lives. Perhaps, the state is not willing to accept the agency of women challenging and defying patriarchal norms. Yet, with the existence of a strong constitutional paradigm besides advancement in terms of education, awareness, and enhanced aspirations, women are challenging the conventional stereotype and are defying age-old norms. However, once women enter the courtrooms, they face similar patriarchal restrictions which they have been dealing with outside the court spaces. The courts and investigative agencies dominated by men have failed to transform at the same pace and this lag in expectations of women and working of state is creating complications. The need, therefore, is to renovate the mindset and attitude of the state toward women’s concerns.

Excerpt from my book Women and Domestic Violence Law in India: A Quest for Justice (2019) Routledge

 

 Marriage is tragically not construed as companionship by the Indian state and society

“A wife should be an administrator in purpose, a slave in duty, Lakshmi in appearance, Earth in patience, Mother in love, Prostitute in bed”, wrote the Kerala judge while quoting a Sanskrit shloka to interpret the duties of a woman in a matrimonial relationship. (2018)

Thus, as per the court, a wife should be capable of adopting multiple roles. She must be perfect in work and appearance, should be caring and loving, and yet must work as a slave. The role of a wife is painted with high expectations, whereas no such roles are prescribed for husbands by the court. As per this notion, a woman can attain salvation only if she obeys her husband because, for her, her husband is a lord and a master beyond which she cannot have a separate existence. The traditional conservative notions about the ‘good woman’ who is obedient, compliant, docile, and does not question the norms are still prevalent within and outside the courtrooms and prevent many women from seeking justice using the legal system.  In fact, the conventional stereotype of an ‘ideal uncomplaining wife’ is reinforced by the judicial system that reiterates that a devoted and loyal wife will suffer torture silently. The paternalistic attitude that operates within and outside the courtrooms hinders many women from negotiating for their rights or obtaining justice. In fact, marriage is construed as a sacred relationship and not a tie that is based on companionship. As per this approach, it is dharma or the duty of the wife to look after her family subserviently without question. Marriage is considered to be a pious ‘ Dharmic ’ institution that is ‘made in heaven but broken on earth’. Much emphasis is laid on the performance of ceremonies such as the Saptapadi as per the rituals to accentuate the sacramental nature of the relationship that involves a union of souls that extends not only to one but to seven lives. 

Since the colonial era, the courts have been relying on ancient Hindu texts as coded in Vedas and Smritis. Many of these texts have been interpreted as putting the wife on a lower level, considering a woman to be a dasi or a slave. The intersection of caste and gender hierarchies is reproduced to arrive at the interpretation of ancient religious literature while construing rights and wrongs within marriage, rather than the constitutional values or legal norms. For instance, the Bombay High Court adduced that as per Shastras , in an anuloma marriage, marriage between a man from a higher caste to a lower-caste woman is valid, and children born out of such a tie are legitimate. However, the children born out of a relationship between Shudra men and a Brahmin mistress or a pratiloma marriage, which is declared invalid under the Hindu law, are not dasiputra and therefore cannot claim inheritance in their father’s property. While using the Brahmanical texts, gender and caste parameters are utilized to deprive a Brahmin woman and her children of their rights and penalize her for marrying a lower-caste man. This trend of interpreting rights in marriage narrowly continued in independent India. Contrary to the constitutional values of equality, justice, and liberty, such orthodox ideas and stereotypes are being embedded in personal laws morally, religiously, and socially and are evident in the spate of rulings and verdicts pronounced by the courts. 

Excerpt from my Book Women and Domestic Violence Law in India: A Quest for Justice, (2019) Routledge

 

Family courts uphold family ideologies, not gender justice

During the 1980s, the demands were made by the women's movement to establish family courts, and the Family Court Act was enacted in 1984. The law provides for specialized forums to deal with ‘matrimonial conflicts’ and not domestic violence. These are designed to adjudicate matters such as divorce, custody suits, maintenance, restitution of conjugal rights, and connected issues. The goal is to make the courts accessible and less intimidating for women through dispensing with lawyers, legalistic jargon, strict rules of procedure, and standards of evidence.

These courts depicted mediation as an alternative to the patriarchy-inspired adversary system. This is preferred by many because of its reputation for providing a better hearing. Yet this system could not aid in reducing violence or enabling justice for women. Studies have shown that the family courts are not free from difficulties like backlogs, the exploitative commercial approach of lawyers, long, drawn-out battles, multiple court proceedings, and the insensitive approach of officials.

Family courts were created to avoid cumbersome litigation and replace it with samjhauta, or ‘brokering compromises’, to achieve efficiency and to shed the burden of the law. These courts mandatorily offer coercive persuasions to forcefully push women back to the violent families, to ‘adjust’, to ‘compromise’ to ‘preserve marriage’, even if it endangers their life and limb. An idea that is constantly being pushed is that the family is equipped to protect women while underplaying violence in it. Perhaps it is easier and more economical to compel women rather than question a man’s violent behavior. What is erroneously strengthened is the belief that women prefer to stay within abusive households, and therefore, through ‘forced compromises’, they are compelled to accept the violent situation without any guarantee of their safety or security. No options are offered outside the domain of the ‘sacrosanct’ family. The rhetoric of ‘counselling’, ‘mediation’ or ‘settlement’ reiterates the regressive family ideology rather than protecting women from violence or providing psycho-social support to victims. The focus on settling ‘family disputes’ could not deal with the serious violence women face. Family courts negate women’s experience of violence rather than providing justice. Theoretically, an adversary system is replaced to resolve matters expeditiously and harmoniously, but in reality, the criminal justice system is twisted to adjust to the tenor of the patriarchy.

The alternative dispute resolution system diluted the seriousness of domestic violence in various ways. The language itself deliberately lessens the gravity of an offense committed within the chardiwari of the household. The term ‘dispute’ entails that two parties are equal, as compared to the term ‘violence’ which implies an abuse of power. The concept of parity among parties on unequal footing is introduced silently by the slyness of the patriarchal forces. No attempts have been made to question the inequality in the relationship. This misconceived approach overlooks the fact that conciliation as a technique poses grave problems, as it overlooks the concept of power within the relation. It expands the state’s control over individual behavior within families, and more specifically, it is at times being used to cement the norms of a ‘good wife’, ‘good mother’, or a ‘bad woman’. Further, denial of anger and the command to forget the past and live in the present generate dissatisfaction and give rise to a feeling of injustice. The law has reinforced patriarchal oppression while discriminating against women.

Mediation avoids questions relating to power, property, and violence within a relationship. The use of coercion in a situation where two parties are not on par creates problems rather than resolving issues. This process of ‘coercive harmony’, as explained by Laura Nader, destroys rights by limiting discussion of the past. It prohibits anger, curtails freedom, eliminates choices, and removes protection of the law. It ignores a ‘victim’ status and compels a woman to compromise her health, life, or limb. Mediation within marriage does not address the structure of power located within the relationship and ignores the fact that parties in conflict in no way operate within the universe of ‘balanced bargaining equity’. It does not satisfy the survivor’s need for justice. Rather, it normalizes and trivializes the violence in everyday lives and compels survivors to curtail their emotions and hide the resentments that arise when they face abuse. During the process of mediation, a woman is vulnerable to threats and harassment and is under extreme stress and pressure, yet the reconciliation procedure does not consider these facts. Mediation overlooks legal entitlements and ends up denying justice to women who have less bargaining power and cannot negotiate.

Another choice offered is ‘settlement’, where a victim is left with no other alternative but to fend for herself and her children instead of a meager amount of money, if any, offered by the violent husband, or she may stay at her maika or remarry. Therefore, these so-called ‘women-friendly’ adjudication spaces failed to address the concerns of the victims of violence. In other words, these courts are ‘family-centric’ rather than ‘victim- or survivor-centric’.

This approach rejects the notion of making survivors economically self-sufficient or offering options to lend socio-economic support to victims. The patriarchal imagination failed to provide distributive justice or material relief and support to the abused wives through a single-window mechanism, despite the knowledge that a comprehensive rehabilitative package is essential to remedy the situation of violence. The bold notion of challenging male dominance while improving the status of women or providing innovative solutions aiding survivors has not been imagined as an alternative by the state or society.

For more details, see my book Women and Domestic Violence Law in India: A Quest for Justice, 2019, Routledge

p 59-60

At Gandhi Peace Foundation

 Memories 

June 2017 at Gandhi Peace Foundation, Delhi 

with PUCL Interns 

Human Rights are not abstract concepts. For the subjugated, the language of rights is essential for articulating everyday oppression, including the denial of basic entitlements such as education, health care, housing, employment opportunities, erosion of livelihoods, land alienation, displacement, and all forms of violence.

Against this complex hierarchy of unspeakable suffering, the rights discourse holds the state accountable and compels it to recognize the rights of the marginalized for meaningful survival.

MN Roy Memorial Lecture 2017 on Free Speech, Nationalism and Sedition

 

12 May 2017 

Speaker: Hon'ble Justice Ajit Prakash Shah

Chair: Hon'ble Justice Jasti Chelameswar 

"There is a spiritual affinity between international Fascism and parochial and revivalist nationalism. That spiritual affinity persuades the average Indian nationalist to believe that the victory of Fascism will not in any way be prejudicial for India’s aspiration to freedom."

MN Roy, 1941

https://www.academia.edu/125515563/MN_Roy_Speech_on_Freedom_and_Fascism_with_background_note

"A nationalism with a revivalist programme cannot naturally appreciate the value of human progress made in the epoch of modern civilization. As a matter of fact, to derive the achievements of modern civilization has been the characteristic feature of orthodox Indian nationalism."

MN Roy, 1941

https://www.academia.edu/125515563/MN_Roy_Speech_on_Freedom_and_Fascism_with_background_note

The text of the speech is available here http://sacw.net/article13222.html 

The Founding Mothers: 15 Women Architects of Indian Constitution

 The Book Release event that took place on March 8, 2016

Justice Kurien Joseph 

Professor Mridula Mukherjee

Professor Bulbul Sharma

Pamela Philipose 

Dr MP Raju

Shabnam Hashmi

Sr Mary Scaria

Shalu Nigam 

The Founding Mothers: 15 Women Architects of the Indian Constitution

 THE FOUNDING MOTHERS: 15 Women Architects of the Indian Constitution

2016

A Book 

by Sr Mary Scaria and Shalu Nigam 

Media House Delhi 

When the mainstream discourse has forgotten the women who played a significant role in the making of the Indian Constitution, this book was the first of its kind to put together brief profiles of those 15 women who drafted the Constitution. These women include 

Ammu Swaminathan

Annie Mascarene.

Begum Aizaz Rasul

Dakshayani Velayudhan

Durgabai Deshmukh.

Hansa Mehta

Kamala Chaudhri

Leela Roy

Malati Devi Choudhury

Purnima Banerjee

Rajkumari Amrit Kaur

Renuka Ray

Sarojini Naidu

Sucheta Kripalani.

Vijayalakshmi Pandit.

These women played a significant role in the freedom struggle. Many have dedicated their lives despite facing misogyny. Though one of the critiques being raised is that many of them are from the elite classes, they played a pivotal role in crafting women's rights as equal citizens. When a section of the orthodox nationalists sees women as mothers, wives, and daughters, it is the progressive discourse that demands women's equal rights.