Flavia Agnes Articles Consent and controversy The Protection of Children from Sexual Offences Bill passed by the

e 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 genderneutral 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 hes 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 Agniss My StoryOur 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 womens 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 aunts house. I went to my mom after my fathers 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 20s. 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 didnt 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 childrens 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 didnt 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 Christs life and I was overwhelmed with that girls thought. She told me about some womens 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, childrens issue and my personal problem. But my kids stood by me as my strength. We created a womens centre. I completed my graduation followed by higher studies. I used to move court and sometimes even decision didnt 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, dont 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 cant 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 womens groups in the 1980s after the illfamed 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 victims 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 womens 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 superiors 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 womens 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 donts 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 dont 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 womens 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 BJPS 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 lets 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 frontpage 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 Centres 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-yearold 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 mens 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 womans 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 husbands demands for sex as the central core of the marriage, and make it obligatory for a woman to concede to her husbands 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 persons 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 Arunas 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 Arunas 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. Onethird 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, womens rights lawyer and social activist based in Mumbai. She has written and worked extensively on Muslim womens 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: Ill skip all the details about my childhood and Ill 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 womens 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 womens 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 womans 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 womens bodies, how state policies are often sought to be justified by evoking womens 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. Thats 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 womens movement that defines itself as secular. A turning point was the 1991 womens 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 usethat 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 its 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 wasnt 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. Thats 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 womens 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 wesome friends and Ihad 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 womens 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 Womens 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 Quranic 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 wasnt happy at all with the last thing, but some others in the drafting team said we should put it in. But weve tried to restrict polygamy by insisting that a second marriage should be allowed only for valid reasons, as per the stipulations of shariah and only after making adequate arrangements for the wifes 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, childrens 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 Quran, 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 Boards 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 shariah, 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 shariah since they cannot agree among themselves as to what the shariah 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 shariah. So, it shows how the shariah 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 shariah. 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 shariah. 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 shariah 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 womens 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 caseto-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 Whats 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 homemaker 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 "livein 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 wifes 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 intercountry 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 womens 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 womens 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 Vallamattoms 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 womens 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 religiouscharitable 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 ones 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-rightwings 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 priests personal freedom to make a bequest of religiouscharitable 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 womens rights activists at the other, while the judgment itself was of relevance neither to the Muslim identity nor womens 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 identity.

the issue of UCC in the context of nation, national integration and minority

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 womens 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 womens 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 womens 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 antiwomen 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 womens 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 womens 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 womens 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 womans 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 maaroofe (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 womens 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 womans 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 womens 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 womens 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 didnt 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 womens 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 womens 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 womens 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 womens 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 womens 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 womans 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 womens 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 womans 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. Its 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 womens 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 16year 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 fathers 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 girls 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 subordinationscaste, community, region, religionintersect 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 parents 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 womens 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 womens rights, could these judicial interventions in aid of minor girls be termed as regressive and the demand by womens 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 womens 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 todays 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 nonvirgin 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, Indias Daughter, etc, by the media, has finally been laid to rest, despite the Delhi administrations 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 womens 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 womens 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 Maharashtras 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 womens 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 complainants 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 Mumbais socialites. A systematic media campaign was launched to clean up the actors 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 SenaBJP 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 antitrafficking 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 crches 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 antitrafficking 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 selected bars across the city. The bars had been selected and socio-economic diversity of the city. The women were interviewed within the bars, during their rest intervals. provided an opportunity to observe the working sexual exploitation within the bars. dancers from 15 randomly keeping in view the cultural This methodology also conditions and extent of

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.