In a recent conversation about female sexuality, someone brought up the inevitable topic of discussion (more of a debate, really). The ‘institution of marriage’. Marriage is a particularly sensitive topic in any Indian household, deeply engraved in people’s minds as the end goal for every girl (and most boys) from an early age. Most, if not all Indian parents bring up their daughters instilling virtues and skillsets that will help them find the most resourceful husband for her, when the time is right, which is usually followed by her graduation in urban cities and influenced by various other parameters in rural India. Even today in 2019, families in India (majorly rural) practice child marriage in appalling numbers. I admit that the reason for this practice isn’t patriarchy in isolation; it is an amalgamation of poverty, lack of education, lack of political intervention/knowledge/agenda.
We hear stories of young girls being married off at an incomprehensible age due to either immense poverty and lack of resources for her survival or sometimes because of the ill health or demise of the boy’s mother. In such cases, it’s because the girl is required to take over (from the mother-in-law) the responsibility of unpaid labour ‘naturally’ assigned to women. At this tender age, when the girl should be developing her personality, discovering her interests, and exploring her individuality, she is forced to cook, clean, and nurture an entire family. This is considered a healthy way of life!
Even though various legal activists and lawmakers themselves have taken steps to undo this status quo. With The prohibition of child marriage act, 2006, the 2005 amendment to the Hindu succession act, The protection of women from domestic violence act 2005, demolishing Section 497 and 498, decriminalising adultery and of course the much talked about Section 377 which was like many other social constructs introduced as a part of colonisation. Even though these laws are made and amended on paper, the actual implementation at the grass root level seems to be a different affair all-together (pun intended).
Let’s consider a few instances. While marriage is a milestone for boys, it is the end of the road for most girls. Since the 2005 amendment to the Hindu Succession Act did very little to change the mindset of people, the concentration of property and resources continue to lie with the son. As a result, even today, most women are left without owned resources required for her independent survival. This, as it has for centuries, strengthens the subconscious wiring in women to compete for the most resourceful man, who would then provide for her survival and needs.
Even though the girl child’s education through various methods of promotion has considerably increased, the career of the educated girl continues to lie at the mercy of her husband and his family.
Further, a woman is legally not required to change her name after marriage; she can choose to carry her father’s name just as men have been required to do for centuries. However, the son continues to be regarded as the legal heir and the rightful carrier of the family name.
At large women continue to be treated as the responsibility and property of a man, first her father then her husband, to be followed by the son.
Recently, I was made aware of an event which was yet another example of how legal reforms seem to have a limited social and cultural effect. This particular event took place in a developed urban city in India, only a few weeks ago. A fact which, while shocking to me, seemed to be a matter of pride, something to brag about for the men telling the story. A few weeks ago, one of these men had caught his wife cheating on him.
Until September 2018, under Section 497 & 498 adultery was considered a criminal offence. However, both the parties involved in an extramarital affair were not deemed criminals; it was the man (adulterer) who would be punished.
Under Section 497, concerning adultery, the law reads:
“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall [not] be punishable as an abettor.”
Under Section 498, the law defines adultery as: “Enticing or taking away or detaining with criminal intent a married woman.”
It further reads:
“Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
These passages strip a woman of her sexual autonomy. Hence marriage is but a contract under which a woman’s sexuality is legally handed over to her husband. As such, a woman is deemed incapable, or more so left incapable, of making any decisions regarding her sexuality, without the consent (read: permission) of her husband. Another example of this is evident in cases of marital rape. Further, the man involved in the extramarital affair has deemed a criminal because he would have taken from another man his ‘property’ without that man’s consent. Here the fact that the adulterer is in-fact involved in a consensual relationship with the woman has no regard. They are reiterating that it isn’t the women’s consent that matters but the permission of her husband, making her, her body, and her sexuality the husband’s ‘property’.
Don’t get me wrong. I am not advocating for adultery here. Merely stating the fact that adultery is only social or even moral misconduct, definitely not criminal, like say rape (even if it is within the legal binds of marriage). Further, the adulterer’s sex and gender should not influence the discernment.
Let’s not forget that monogamy was a social construct with the agenda to suppress female sexuality and autonomy, more importantly, a means to ascertain paternity. Having prevailed as a part of civilisation, today monogamy should have the same connotation for every party involved in the relationship, irrespective of their sex.
Justice D. Y. Chandrachud stated, while striking down section 497. that “[T]he penal provision on adultery curtails the sexual autonomy of a woman on the assumption that once she gets married, she contracts away her sexual agency.” He further added, “Sexual relations by a man with another man’s wife is therefore considered as theft of the husband’s property. Ensuring a man’s control over the sexuality of his wife was the true purpose of Section 497, In depriving the woman of that ability and recognising it in the man alone, Section 497 fails to meet the essence of substantive equality in its application to marriage.”
Even though Section 497 and 498 of the Indian Penal Code was demolished and adultery was decriminalised in a rather scandalous and highly debated case, the mindset and culture which encourages the wife to be treated as the husband’s property have not been altered even a little bit. In line with this thought process, when the man in question caught his wife cheating on him, instead of confronting her and dealing with the situation in a manner that we might expect a person with a broken heart or broken trust to deal with, he did what a man with a hurt ego would do. He used his political powers to kidnap the adulterer. The adulterer had, in the man’s opinion, wronged ‘him’ by taking, without his consent, his property (the wife). The adulterer was then brutally beaten up and left on the roadside to fight for his life. At the same time, instead of divorce, let alone reason or maybe even counselling, he chose to exert his given power over his wife and cut her off and kept her locked away from any resources, both financial and social. It’s a given, I take, that keeping with social norms, she has no resources, either natal or self-earned. Not to mention that this action in itself is an additional legal violation.
The Domestic Violence Act 2005 includes the following:
“Definition of domestic violence. For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it (a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or (c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or (d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Explanation I.”verbal and emotional abuse” includes- (a) insults, ridicule, humiliation, name calling and insults or ridicule especially concerning not having a child or a male child; and (b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested. (iv) “economic abuse” includes- (a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance; (b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and (c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.”
Women, as a result of centuries worth of patriarchal wiring, have learned what now seems like innate subordination and shame for their own sexuality. Due to this carefully constructed and consistently reinforced phenomenon, most women would refrain from seeking legal protection in place of social status, respect and acceptance as a “Good Woman”.
A series of such events take place daily across the country. While legal reform is a crucial step towards a better tomorrow, in isolation it isn’t enough to undo a cultural system that has not only sustained but, in fact, strengthened over time. Basic education at various levels and constant dialogue through media and every available platform might be the required additional tools to bring about the needed social and cultural reform.