The price women pay

In 1889, a Bengali child bride named Phulmani died following brutal conjugal intercourse. It was argued that the incident was in fact not rape because Hari Maiti, her husband, was simply exercising his marital right. Phulmani was a little over 10 years at the time of her death. In 1890, the case went to trial in the Calcutta Sessions Court, but Maiti was acquitted of rape on the grounds that Phulmani was above the age of consent, fixed at 10 at that time through the Criminal Law Amendment Act of 1860. Following the testimony of Phulmani’s mother that her daughter’s bedding and bed clothes were covered in blood, Maiti was convicted under Section 338 of the Indian Penal Code for “causing grievous hurt by act endangering life or personal safety of others.” He was sentenced to one year of rigorous imprisonment.

The incident brought about several reactionary legislative responses and triggered nationwide debates around a host of social issues including child marriage, age of consent and marital rape. Among other things (and in the aftermath of the Sati abolition in 1829), it reinforced colonial stereotypes of the perceived barbarity of Indians.

Owing largely to public outrage and the efforts of social reformers such as Behramji Malabari, the direct result of the Phulmani case was the revision in the age of consent provisions. In 1891, a bill was presented by Lord Lansdowne, the then Viceroy of India. It sought to amend Section 375 of the penal code and increase the age of consent to 12 years. This bill was passed on March 29, 1891, and criminalised sex with a girl under 12 even within matrimony. Later, in independent India, agitations by women’s groups brought about the revision of the age of consent from 12 to 15 in 1949; this was subsequently revised to 16 in 1982.

In the recent past, 123 years after the death of Phulmani, the gruesome gang rape of Jyoti Singh Pandey (dubbed by the media as ‘Nirbhaya’) brought about a series of legislative reforms pertaining to sexual assaults of an extreme nature, through the Criminal Law (Amendment) Act of 2013. While there have been many other legal interventions in the period between the two incidents, it was Phulmani’s death that first stirred the national conscience on the age of consent and child marriage, and it was Pandey’s death that brought in a host of necessary and significant legislative changes. The most significant of them all was the broadening of the definition of rape to include insertion of foreign objects (such as iron rods) into the vagina, mouth, urethra or anus of woman. Prior to this amendment, the hetero-patriarchal gaze of the law viewed rape rather simplistically as only forced peno-vaginal penetrative intercourse. Consequently, several perpetrators of rape were “let off” on lesser charges of sexual assault despite causing injury to women. The amendment also increased the age of consent from 16 to 18 years.

Every law aimed at ensuring the safety and bodily integrity of women has come at the cost of extreme and devastating consequences to their personhood and rights. The first-ever legislative guidelines to safeguard women from sexual harassment at the workplace came in the aftermath of the horrific gang rape of Bhanwari Devi, a grassroots- level social worker employed as part of the Women’s Development Project run by the Rajasthan government. She was gang-raped by upper-caste men in Bhateri, Rajasthan, when she, as part of her work, went to prevent a child marriage. Vishaka, an NGO in the region, took up Devi’s case and filed a public interest litigation in the Supreme Court soon after the perpetrators were acquitted by a lower court. The litigation sought justice for Devi and raised questions on sexual harassment at the workplace. In 1997, the apex court passed a milestone judgement and issued the guidelines that came to be known as The Vishaka Guidelines; these were procedural codes that legally bound employers to put in place processes and checks to deal with complaints of sexual harassment at the workplace. The Vishaka Guidelines consolidated the notion of sexual harassment and provided an umbrella term for women to talk about a range of experiences that amounted to sexual harassment. The Prevention of Sexual Harassment at the Workplace Act came into force in 2013 and superseded the Vishaka Guidelines. Yet, for women working in the informal sector, the situation is grim as they remain largely unprotected. However, until Devi’s rape shook the national consciousness, the simple question of whether an employer had an obligation to provide a safe working environment for women employees had remained unasked.

Another rape, this time of a young tribal girl Mathura in police custody, was key to making custodial rape a criminal offence, which until then was subsumed under the grey constabulary prison practice. The first nationwide legal response to sex-selective abortions came in with the Pre-natal Diagnostic Techniques Act (PNDT) in 1994. It was further amended into the Pre-Conception and Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse), or PCPNDT Act in 2004. When Nobel laureate Amartya Sen coined the term “missing girls”, it not only denoted sex-selective abortions but also infanticide and abandonment leading to the death of a girl child. These legislative protections came at the cost of millions of girl children, both born and unborn.

By the time the Prevention of Witch Practices Act, 1999 was enacted in undivided Bihar, and subsequent enactments of various acts and bills were made in Assam and Chhattisgarh, and the recent Prevention of Witch-Hunting Bill introduced in the Lok Sabha in 2016, a number of women had been labelled witches, tortured, humiliated, stripped, burnt, tied to trees and murdered. While marital rape is a criminal offence in a little over 50 countries including Nepal, the Indian judiciary refuses to criminalise the offence, citing the sanctity of marriage and the family. That the State is unable to grasp that it is the sexual abuse of a battered wife that destroys the sanctity of marriage and the familial unit (and not her silence) is lamentable.

Laws prohibiting dowry, child marriage, child sexual abuse and rape, affirmative laws that protect women from domestic violence, harassment and torture as well as those that remove impediments to women’s right to own property, right to vote and other non-discriminatory practices in both private and public spheres have all come only after women had paid a considerable price. The recent debates around the abolishment of instant triple talaq and subsequent discussion surrounding its criminalisation have come at the cost of abandonment and destitution of thousands of Muslim women. It must be rightly recognised that the credit for the abolition of the instant triple talaq goes to the unrelenting efforts of Muslim women’s collectives across the country — their steadfast activism and engagement with the legal ecosystem and the All India Muslim Personal Law Board. Bebaak Collective, a Mumbai-based women’s group, opposes the criminalisation of triple talaq on the grounds that violations around marriage and divorce must be treated as civil offences.

The law is considered a site for emancipation and protection. While whatever protection exists is the result of years of feminist struggle and birthed by the anguish of women’s lived experiences of assault and violence, the emancipatory nature of law needs questioning. More often than not, the law reinforces patriarchal notions of virtue, rather than ensuring gender justice. While a rape survivor’s sexual history is turned into a spectacle, the rapist is easily able to plead his case as a consensual relationship-turned-sour. And the courts comply — they infer consent and interpret vindictiveness all too often. While a court rules that a man may divorce a woman if she seeks to separate him from his parents, it is but customary for a woman to be separated from her parents. For a woman, marriage is migration and displacement that comes with critical consequences if she refuses to comply.

Rakhmabai’s case was the first to bring to the forefront deliberation around restitution of conjugal rights. In 1885, Rakhmabai, who was married to Dadaji Bhikaji in infancy, refused to join him at her marital home after puberty, citing incompatibility. Bhikaji brought against her a petition for restitution of conjugal rights and, while the verdict initially went in her favour, he won the case on appeal. When Rakhmabai still refused to join him, she was threatened with imprisonment. Staunchly, she stated that she would much rather go to prison than live with her husband, irking conservative Hindu nationalists including Bal Gangadhar Tilak. As an educated young woman, Rakhmabai wrote many columns under the name ‘A Hindu Lady’ in the leading dailies of that time, including TheTimes of India . She wrote about the ill-treatment meted out to women in the Hindu fold including the plight of child brides and child widows, causing Tilak to respond in derision that a ‘Hindu Lady coming to the front in a manly way to take up the cudgels on behalf of the oppressed and down trodden half of the Hindu community’ (published in Tilak’s Mahratta circa 1885).

One of the many compulsions that lie within the complex project of nationalism is the society’s need to reproduce its own culture to bring about a continuity of cultural experience. Women’s contribution to this cultural experience is not a small one. However, when it comes to women, even 133 years after Rakhmabai, a woman’s right to life and dignity, guaranteed by Article 21 of the Constitution, is encroached upon by religion-infused moral notions of “cultural hygiene that women and only women must preserve”.

Wanting to, and not wanting to cohabit with a spouse brings about the ire of nationalists, courts and governments; which is why a very dangerous form of religions nationalism enables the State and legislation to prevent the cohabitation of Hadiya with her husband Shafin Jahan.

Lavanya Shanbhogue Arvind is a feminist research scholar at the Tata Institute of Social Sciences, Mumbai, and the author of The Heavens We Chase

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