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Women and Law

A Study of Dowry Laws in India

PALLAVI BORGOHAIN

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Contents

Acknowledgement

1. 

Introduction: Law and its Inherent Contradictions: 1-25

2. 

Women and Law in India: Issues and Debates: 26-52

3.  The Institutionalization of Dowry and its Modern Manifestations:

53-76

4. 

Dowry, Women‘s Movement, and the Response of the State:

77- 99

Conclusion: 100-104

Bibliography: 105- 123

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ACKNOWLEDGEMENT

In the beginning I would like to acknowledge the innumerable unknown

women, seeing whose hardships, I got introduced to the pursuit of my life, i.e. to

understand the lives of women and to try and bring change in their lives through my

work.

 Next, I would like to thank my Supervisor, Prof Anupama Roy, for the constant

support that she has extended during the course of writing this book, which is a part

of my M Phil dissertation. I consider myself fortunate to have a supervisor who took

interest in my work and gave me the best possible suggestions available.

I would also like to thank the faculty of Centre for Political Studies and theJNU library for its richness. A thank is also due to the University Grants Commission

for granting me Junior Research Fellowship.

I owe thanks to my students at Ramjas College for their interest in the

classroom lectures which make the teaching and learning process much more

interesting than it is usually perceived to be. I reserve my gratitude for all the

colleagues of Political Science department at Ramjas for the long hours of debates

and discussions.

I want to thank my parents, Ma and Baba, for being there when I needed them

the most. When they read this, they might not even understand which phase I am

talking about, but then I think this is where the beauty of it lies. Thanks to them for

respecting my decisions in life. It means a lot when you are a woman.

Finally it is Sri Ram who made me see the beauty of life, who gave wings to

my desires, who made me believe that all bad things come to an end and then a new

life begins, who believes that I am the best. I dedicate this work to him with all my

love.

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CHAPTER ONE

INTRODUCTION: LAW AND ITS INHERENT CONTRADICTIONS

Since the economic developments of the 1990‘s which led to the opening of the

domestic market to the world market there has been a constant debate in India

regarding the power of the state. The debate revolves around whether under the new

circumstances the state has assumed more power and thereby more importance or has

it lost some of its traditional powers as its sovereignty is undermined in the era of

globalization and NGOisation. In relation to the question of women therefore there

can be two different conclusions that can be drawn from the two above mentioned

circumstances. In the former case it becomes necessary for the women‘s movement to

look up to the state for the redressal of their grievances, reinforcing thereby the power of the state to intervene and resolve matters of social and political concern. On

the other hand, the women‘s movement may not seek to buttress the powers of the

state to intervene, and also do not expect substantial gains from the state in terms of

achieving gender justice. The legitimacy and the authority that the state as an

institution commands has been vital in its invocation as an agency to give recognition

to the demands of women since the British rule to the more recent times. During the

 pre independence period it was the colonial state and the law makers to whom the

question of women‘s rights was addressed by a fraction of modernist as against the

reformist and the revivalist fractions who were against state intervention and against

outsider intervention in the sphere of home respectively. These strands will be taken

up in detail in the second chapter. However; what I want to bring to notice here is the

 paradox of the state being a patriarchal structure, and simultaneously integral in

women‘s struggle against the patriarchal society. It is in this context that a study on

the importance of the interaction between women and law assumes significance.

In this work I attempt to understand the different meanings and dimensions that

this interaction between women and law assumes. I am in particular looking at the

women‘s movement‘s engagement with the state over the issue of dowry while my

general interest lies in understanding the dynamics of women‘s engagement with law. 

The dowry laws have been taken up in order to understand the agency less position of

women in the Indian society due to the twin customs of dowry giving as well as

disinheritance of the daughters in the family property.

 Noting the centrality of the state, it is required to understand that why it isimportant to take one of its branches i.e. the legislature as one of the central theme of

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this work. In order to understand this we first have to identify the language of law.

The law has a particular legal language — of prescription and command — through

which it communicates with its people. The legal language speaks in terms of the

right and wrong. It is this language of rights that is important for women to give their

claims legal validity. Supposing that women are able to define their claims in terms

of legal rights, even then is it a sufficient condition to bring about empowerment and

 justice to them? As already mentioned, any negotiation with the law implies

negotiation with the state. So we can from here make a deduction that while engaging

with the law we are also simultaneously engaging ourselves with the state. Also, this

is a political discourse, so the state becomes particularly important. It‘s a work on

women and law and we shall use the arguments of legal theorists but it remains a

work within the discipline of politics.I propose to study this engagement between the state, women and law in my

work. Having said this, we understand that among other things the modern liberal

democratic state legitimizes itself as being the protector of the interest of all sections

of society. The liberal democratic state is seen as considerate to the needs and

aspirations of various groups including the minorities. Needless to say therefore that

when the redressal of issues relating to women is raised the liberal democratic state

time and again intervenes and tries to resolve them through new laws or sometimes

 by amending older ones. However there is a widely held criticism coming from the

gender perspective that the steps taken by the state are more often than not

 protectionist in their nature rather than having any empowering element in them.

It is in this context that there arise certain questions which need some sort of

renewed reflection. Mentioned below are some basic interrelated questions which

will be addressed in this dissertation. The state, in some ways, can be said to be

making certain laws of protective discriminations to maintain itself as the most

important arbiter of social justice. Can that be understood in an impartial manner or is

that a reaffirmation of the patriarchal functioning of the state? What is the way for

women to achieve some substantial change? Can the state be dismissed as just giving

occasional incentives and an approach which goes beyond the state is needed? Or

else the three branches of government working in tandem (with the implementation

of laws not neglected) can be a more viable road to women‘s emancipation? Can laws

merely be dismissed as having rhetorical purpose (assuming they are not being

implemented)?

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As can be seen from the title of the study, the work deals with these above

mentioned questions in the Indian context. However in order to understand the

engagement between women and law, it is important that we place the debates in the

Indian context, within the larger framework of feminist perspectives on the theme. It

is with this purpose that in the introduction I have looked into the works of some of

the western feminists, in order to understand the complexities of the concepts in both

the western and the Indian debates on the association between the law and the state.

In order to understand the interaction that is happening between women and

the law it is important that we look at how the state is understood and seen by

women. There are various strands of feminisms giving different understandings of the

state i.e., liberal, Marxist, radical, and socialist. In this introductory chapter I shall

discuss the differences among the different feminisms in their understanding of thestate. Such an exploration is important in order to understand if at all there is any

 benefit accruing out of engaging ourselves with the state and the law or is it a futile

endeavor taken up in the absence of other alternative. I shall be referring to this as the

‗in and out‘ dichotomy of the state. The ‗in‘ position refers to the liberal f eminist

notion of the state which believes in usurping more and more amount of state power.

On the contrary the ‗out‘ position is held by the radical feminist notion of the state

which sees it as essentially patriarchal.

After discussing the different feminist theories of the state we shall go on to

discuss about law and women in particular. It is in this section that we shall try to

identify certain problematic domains in the feminist engagement with the state which

means that there are certain difficulties which women at an individual level or at a

group level face while negotiating with the law in the legal language. We will get

 back to discussing it in more detail in the latter part of the chapter. In the mean time

we shall look into the politics of the liberal, Marxist, radical, and the socialist strands

of feminism.

LIBERAL FEMINIST POLITICS

In order to understand the liberal feminist politics it is important that we have

an understanding of the main tenets of liberalism as an ideology. The ideology of

liberalism is based on the distinction between the private and the public. It holds that

the state interference is important but only in those matters which are seen as fallingunder the realm of the public. They believe that there should be no state interference

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in the matters concerning the personal life of an individual. It is one of those aspects

of liberal feminism which is largely criticized. To state further, liberalism as an

ideology believes in the intrinsic human capacity to reason and also in the dignity and

the worth of every individual being. Alison M. Jaggar (1983) in one of her pioneering

works ‗Feminist Politics and Human Nature‘ gives a detailed reading of the feminist

 politics of the various ideologies. It is this particular work of hers on which I have

relied the maximum in drawing out an understanding of the feminist politics done by

the liberals, Marxist, radicals and the socialists. I have also looked at other authors

writing on the subject in order to give an understanding of the above mentioned

subject of feminist politics.

Knowing the basic characteristics of the liberal ideology, we now move on to

understand the reasons given by the liberal feminists behind women‘s oppression.Liberal feminist see that women are oppressed not because they lack any of the

inherent faculties of a human being but because they are women. They suffer

disadvantages and disabilities as a group and not as individuals. Liberal feminists

argue that on top of the legislature discriminating between the two sexes it is the

society and the customs of the society that discriminates in the most vociferous

manner. The affect of the social prejudices on women can be seen in those instances

where a woman is assumed to be naturally less fit or unfit for certain kinds of jobs or

 professions, thereby suggesting that they are more fit to conduct certain other kinds

of jobs for which they are deemed to be naturally suited. It is this kind of an

assumption with which the liberal feminists object to, since they see it as the reason

 behind women‘s concentration in the unpaid household labor. They argue that such

kind of an ascribed sexual division of labor will not allow the women to exercise

their human capacity to reason.

Regarding the sexual division of labor and the distinction between the public

and the private, Barbara Arneil (1999) says that the feminist criticism is labeled

against the tradition of the Western political thought in which the thinkers‘ right from

the ancient Greek Philosophy like Plato and Aristotle to the early modern ones like

Hobbes and Locke have all contemplated about the „polis‟  and the ‗civil society‘ with

regard to its distinction from the „oikos‟  (the nearest English word can be household)

and the family respectively. The feminist argue that the equality among all the

individuals about which thinkers like Hobbes, Locke and Rousseau talk about in their

‗state of nature‘ is not carried forward or is discontinued in the ‗civil society‘. Thewomen are invariably relegated to the personal realm of the household based on their

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understanding of the biological distinction between men and women. This is seen as

rendering the men and women naturally fit for their roles in the public and the private

spheres respectively (ibid, 1999).

It is the biologically defined distinct sex roles for men and women that are seen

as the cause behind the confinement of women in the sphere of the household and the

men in the sphere of politics. The feminist criticize the lesser value attached to the

work done by the women. Arneil in her work also highlights some of the recent

feminist criticisms which are labeled against the earlier feminist criticisms of the

Western politics in terms of the fact that they are only effective to the extent that they

take up the cause of the subjugation only of English middle- class wives, thereby

creating a void for the understanding of the subjugation faced by women other than

wives having different situatedness such as class and race. The kind of the sexualdivision of labor happening was considered essential for the enjoyment of ‗ good life‟  

and not just ‗mere life‟.  The former is associated with the fulfillment of political

responsibilities and the higher values of life while the later with a family life

involving the reproductive and procreatory elements of natural life (ibid, 1999).

Jaggar (1983) points out that the kind of works done by women according to

the liberal feminists does not give them a high earning and therefore women are

generally as a category placed under a state of dependency. Women according to

them are occupied either entirely in their household work or are engaged in low

 paying jobs. It is this poverty or economic disability which makes women unequal to

men since they are not in a position to exercise their formal or legal rights (Jaggar,

1983, 173-177).

The point of economic dependency and women‘s subordination and therefore

the need to get out of it can be understood from what Betty Friedan had said in the

late twentieth century in her work „The Feminine Mystique‟. 

For women to have full identity and freedom, they must

have economic independence...

Equality and human dignity are not possible for women

if they are not able to earn...Only economic independence can

free a woman to marry for love, not for status or financial

support, or to leave a loveless, intolerable, humiliating marriage,

or to eat, dress, rest, and move if she plans not to marry (Friedan,

1974, 370- 371).

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Friedan (1974) in her work talks about a problem which was gripping the

housewives of America in the middle of the twentieth century which she points out as

‗having no name‘ (reference). She argues that it is the mystique which surrounds the

feminine qualities of a woman which has pushed her to the brink of feeling ‗identity

less‘. The mysticism surrounding the feminine qualities is so deeply entranced that

initially women find nothing strange in accepting the traditional roles prescribed for

them, however with time they start experiencing a kind of void in their lives. As a

solution to this Friedan suggest women to take up well paying professional jobs. The

issue that one can raise with this is the stripping of significance of the household work

done by women and thereby rendering it meaningless for the individual fulfillment.

Friedan believes that only when a woman has a well paying job can she enjoy her role

as a happy and contended housewife and a woman (ibid, 1974).The segregation of women mostly in the realm of unpaid household work or

less paid work of public nature eventually came to be seen not only as unjust but also

as ineffective use of the societal resource by refusing to let women contribute

effectively to it and also by overlooking at their inherent human qualities for doing

 jobs of higher value. This is a point which both liberal thinker J. S. Mill and liberal

feminist Mary Wollstonecraft makes. Their argument becomes clearer when we read

the extract quoted below.

Is there so great a superfluity of men fit for high duties,

that society can afford to reject the service of any competent

 person? Are we so certain of always finding a man made to our

hands for any duty or function of social importance which falls

vacant, that we lose nothing by putting a ban upon one-half of

mankind, and refusing before hand to make their faculties

available, however diminished they may be?... To ordain that any

kind of persons shall not be physicians, or shall not be advocates,

or shall not be members of parliament, is to injure not them only,

 but all who employ physicians or advocates, or elect members of

 parliament, and who are deprived of the stimulating effect of

greater competition on the exertions of the competitors, as well as

restricted to a narrower range of individual choice (Mill, 1970,

1983-1984 quoted in Jaggar, 1983, 178).

Besides all of these the liberal feminists also view sexual standards asoppressive for women. They construe the restrictions on contraception, sex education

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and same sex activity to be affecting women in a much more negative manner than

they (these restrictions) do so in the case of men. It is because of the fact that it is only

a woman who is biologically able to bear a child that also the social responsibility of

rearing the child falls upon her. Regarding the sexual standards and the liberal

feminists interpretation of it, Jaggar (1983) points out that the criticisms which the

liberal feminists direct towards this is not in terms of moral underpinning but strictly

in terms of its public nature, i.e. how the sexual standards regulate the public life of a

woman. This according to Jaggar (1983) is because of the liberal understanding of

human nature which is based on normative dualism. Jaggar further states that this

dualism is expressed in the use of one‘s reason as an intrinsic characteristic of human

 being. It is due to this that they don‘t  attach any normative hierarchisation to any

 particular sexual behavior over the other. Jaggar (1983), points out that Liberalfeminist therefore have a different stand on pornography and prostitution which are

generally known to be devaluing a woman. The liberal ideology of freedom of

expression and non interference in the private sphere makes it difficult for them to

criticize pornography unless it is proven that such an association is leading to the

violation of women‘s rights. This is precisely because they lack political grounds for

doing so. When it comes to the question of prostitution they treat it as any other

 profession wherein you sell your body or sex just like any other ability. This is

 because the liberals do not conceive one‘s body to be an essential part of one self  

(ibid, 1983, 179-180).

The talk of the distinction between the private and the public and subsequently

the non interference in the personal sphere by the state in order to exercise equality is

seen with skepticism by scholars like Martha C. Nussbaum (2002). Nussbaum in her

work makes a comparison between the American and the Indian case wherein sex

equality demands are made in terms of privacy rights. She argues about the

differences in the U.S and the Indian constitutions, wherein unlike the former the

latter provides substantive equality provisions in the constitution. She further

identifies the difficulties associated with making equality claims based on the notion

of privacy which is criticized by feminists on four grounds.

One such criticism is that the understanding surrounding the concept of privacy

is not clear and thereby it is in need of further specification. This problem is seen as

having repercussions for the feminist case. Nussbaum (2002) points out that this will

 be because of the fact that in the absence of any clear understanding of the concept of

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 privacy, the judgments would be based on arbitrary will reflecting the current societal

trend which in most of the time shall be against women (ibid, 2002, 254).

Secondly, Nussbaum (2002) brings into discussion here the criticism labeled

against the use of privacy concept by feminists like Catherine Mackinnon, where

Mackinnon argues that when we understand privacy in terms of Millean distinction

 between ‗self regarding‘ and ‗other regarding‘ actions, it poses great difficulty in

 bringing the ‗other regarding actions‘ under the state scrutiny. The feminist criticisms

are directed against the fact that the distinction drawn between the private and the

 public sphere makes it very difficult to bring issues of private violence into the public

sphere. Mackinnon, according to Nussbaum (2002) argues that the private sphere is

 protecting male‘s privacy and not female‘s. It is this distinction between the private

and the public that helps in making marital rape and domestic violence appear as personal matters of the family, which is not to be trespassed by the state. Nussbaum

locates this particular criticism in the Indian context by taking the example of the

 provision of the ‗restitution of conjugal rights‘ in case of married couples. By citing

the case of T. Sareetha vs. T. Venkata Subbaiah  she tries to explain the point made

above regarding the difficulty of asserting sex equality in terms of right to privacy

claim (ibid, 2002).

In the above case an actress from Madras, Sareetha, was sued by her husband

Venkata Subbaiah for the restitution of conjugal rights. Seeing Sareetha flourishing he

wanted to get back to her or else wanted to obtain a profitable financial settlement.

However, the Andhra Pradesh High Court Judge Choudhury ruled that it the clause of

restitution violated Article 21 of the Fundamental Rights of the Indian Constitution.

Justice Choudhury held that it violated the right to ‗life and liberty‘ under the Article

21 and also that it violated the guarantee of equal protection under the Article 14 of

the Indian Constitution (ibid, 2002, 260).

 Nussbaum (2002) argues that the recourse to the privacy argument in the above

case by Justice Choudhury acts only in a negative manner for women. It is Nussbaum

says because of the fact that the traditional concept of ‗marital privacy‘ works against

women‘s liberty and bodily integrity (ibid, 2002, 262).

Thirdly Nussbaum argues that the private public distinction is not in

accordance with the Millean separation between the ‗self regarding actions‘ and the

‗other regarding actions‘. She gives a number of examples to illustrate her point;

however I shall be discussing only one of them. She gives an example distinguishingthe kind of protection which is given to a high- class call girl who works in good

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hotels or personal residences contrary to the protection less environment for a call girl

soliciting on the streets. She also says ―again, public, nude dancing before a

consenting and eager audience is likely to be unprotected, whereas the same dance

 performed in the home will be protected‖ (ibid, 2002, 267).

Finally she tries to make a case against using the right to privacy as a ―gap

filling concept‖, whereas there are other important concept such as liberty on which

the sex equality cases can be situated and the demands drawn from (ibid, 2002, 254-

274).

There are certain solutions prescribed by the liberal feminists in order to bring

gender justice. Since they believe that the private sphere to which women remain

confined to be one of the basic factors behind women‘s oppression therefore they see

that more and more incorporation of women in the public sphere as an effectivesolution to it. They speak in terms of bringing women in.

Liberal feminists cites the existence of sex biased laws also as a reason for the

secondary position of women, thereby the liberal feminists want the repealing of all

the sex biased laws which ascribes different rights and benefits to individuals

depending upon their sexes. In the Indian context, till the year 2005, Hindu women

did not have legal property rights to her   parental and ancestral property; however with

the amendments in the Hindu Succession Act in the year 2005, things have been

 better on the legal front. This should however not be seen as giving any substantial

 property rights to the women in the real circumstances, wherein the old prejudices

against daughters getting property still prevails. Besides this the personal laws of all

the religions dealing with the issues of marriage, divorce, custody, inheritance etc are

highly against the women of their respective religions. Also the criminal laws dealing

with rape, sexual harassment are infamous for further victimization of the victims in

the hostile atmosphere of the court rooms where takes place the judicial

interpretations of it. Liberal feminists want the state to make laws without being

influenced by the societal gender differences. They believe that when there shall be

sex blindness in making and delivering of laws by the state, then there will be gender

 justice.

Jaggar (1983), points out that the continuation of discrimination against women

even after legislations being present due to the prevalence of the informal and

customary discriminations have forced the contemporary liberal feminists to rethink

about the stand assumed by the traditional liberal feminists that formal legislationswere enough to bring about equality between men and women. The contemporary

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liberal feminists realize that it is important to demand that state has to make

arrangements to compensate women for what they have lost historically. The liberal

feminist have now adopted the language of ‗affirmative action‘ for women instead of

sex blindness during the formulation of laws. By affirmative action they mean to say

that in every organization there has to be special preference shown and given to

women in order to compensate her for all sorts of past biological and social handicaps

(Jaggar, 1983, 182-183).

It can be understood that in the view of liberal feminists the state does hold a

very important place. They look up to the state for correcting the wrongs imposed on

women even though they are aware of the issues involved in doing so. They are still

 persistent on their view that the states by taking the required measures bring about

equality between man and woman.Contrary to the liberal belief of seeing the state as the neutral arbiter of

different interests of man and woman, Marxist see it as a capitalist state, representing

the interests of only the propertied few. The priority that Marxists attach to the notion

of property and economy leads them to make a primarily economic interpretation of

the condition of women. The Marxist feminists understanding of women‘s

subordination is as follows.

MARXIST FEMINIST POLITICS 

Marxism believes that the present society is a capitalist society, which is

divided into two parts, one having control over the means of production and other

who uses these means of production to make goods and services. The former is

known as the capitalist class and the latter is known as the proletariat. The relation

 between these two is understood by Marxists as one of exploitation. Marxists believe

in the notion of ‗alienation‘, i.e. it is a process which a worker in the capitalist society

undergoes in which, as a result of the manner in which production is organized, the

worker experiences detachment or alienation from the product and services that he

 produces. Besides this a worker also feels alienated from other co-workers as well as

alienation from himself. Marxism (narrowly or conventionally) can be seen as a

theory which is based on an analysis of the economic relations in the society. As a

consequence of it their understanding about women‘s oppression is also based on the

economic relations surrounding the life of a woman.

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This section attempts to highlight the main reasons given by the Marxists

 behind the oppression of a woman. Marxists believe that women suffer sex specific

oppression in addition to experiencing alienation as a wage laborer. This is because of

the fact that under the capitalist scheme of division of labor, a woman is pushed to the

domestic sphere of the house. Marxists point out at the fact that the household labor

of a woman is a form of unpaid labor. When it comes to the domestic labor of a

woman, Marxists are generally seen to be reflecting on the dilemma of whether to

consider the household labor of a woman as productive or unproductive. According to

Jaggar (1983) Marx and Engels use the word productive in two senses, one of which

can be said to be broader and the other can be said to be narrower. The broader

meaning implies labor directed towards the satisfaction of human needs. On the other

hand the narrower implication of it stands for the production of the surplus value.Thus according to Jaggar it can be concluded that the household work of a woman is

important in the broader sense of the term that it produces consumption market for the

capitalists (ibid, 1983, 216-217).

The Marxists caution us from assuming that since there are not many women

under the wage labor and that they don‘t suffer alienation like men under capitalism,

that they are not oppressed. In fact they are oppressed in a very different manner.

According to this, women are oppressed at the hands of their husbands. The lack of

economic independence in the case of women condemns them to life of servitude and

oppression in the hands of their husbands. This state of dependency is seen as the

main reason behind women getting married for economic security rather than for

love. Though the economic dependence of women is seen as a reason for their

subjugation even in the liberal feminist ideology; however, the analysis of the reasons

 behind them are distinct in both the case. Since it is the men or the husbands who

control the economy of the household, therefore they are also able to control the

sexuality of their wives. This explanation will become clearer by reading this.

In both cases this marriage of convenience turns often

enough into the crassest prostitution- sometimes of both partners,

 but far more commonly of the woman, who only differs from the

ordinary courtesan in that it she does not let out her body on

 piecework as a wage worker, but sells it once and for all into

slavery (Engels quoted in Jaggar, 1983, 219).

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According to Jaggar (1983) there are also some severe physical manifestations

of this violence upon women which assumes the form of wife battery. This means the

use of physical force by husbands on their wives. Marxists understanding of the limits

 placed on women over their sexuality also has a direct link with the interests of the

capitalists. They see that the restrictions placed upon women in the matters of

abortion, contraception etc are also the capitalist design of maintaining and

 propagating the nuclear family. It is the nuclear family which helps in maintaining a

high demand for the consumer goods. Further it also acts as a reservoir for army

during periods of labor crisis (Jaggar, 1983, 221-224).

Marxists solution for all the oppressions in the society lies in the dislocation of

 power from the hands of the capitalists into the hands of the workers. It is of

consequence to note that the Marxists refuse to accept that the real oppressor ofwoman is the man. In fact they see men and women both being oppressed under the

system of capitalism. Men, they believe are acting only as the tool of the capitalists.

According to Kantola (2006) the Marxists see the state as essentially a

capitalist entity fulfilling the needs of only the propertied few. Therefore they stress

on the need for unity among men and women as workers to fight against capitalism in

order to eradicate all kinds of discriminations. Marxist feminists believe that it is the

state which helps in reproduction and the maintenance of the familial ideologies

through the welfare measures of the state, and therefore admits to the fact that without

the effective unity between men and women, overthrowing capitalism is not possible

(Kantola, 2006, 8).

Marxist feminist Alexandra Kollontai, in her work „Communism and the

 Family‟   talks about the importance of men and women coming together in order to

struggle against the capitalist state and then establish a communist state bereft of all

the class inequalities prevalent in the capitalist state. It is in the communist state that

she sees the full development of men, women and children. There will be no

dominion relationship in the institution of marriage, since women no longer shall be

dependent upon their husbands but on their own labor. Thus marriage shall turn into a

sublime union of two souls in love. Also it will be the state that shall be responsible

for the education, feeding and other needs of the child. Kollontai says it is the

‗communist fatherland‘ that will take all the responsibilities of a child. The state will

also take care of the household labor, which in the communist state shall be looked

after by special category of working women. The communist state is also seen as an

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answer to the problem of prostitution, which they believe will disappear with the

dismantling of the capitalist state. 

Unlike the liberal understanding which sees the state as a neutral arbiter of

diverging interests, the Marxists understand the state not under the same light of

 benevolence. There vision lies in the ‗withering away‘ (Jaggar, 1983, 224) of the state

in order to bring about equality. Here we have two different approaches towards doing

feminist politics, one in which the state holds significance in a positive manner and

the other in which the state is bereft of any genuine concern for the oppressed and

therefore needs to be removed. Moving ahead, let us look into the radical feminist

understanding of women‘s oppression and the way they understand the state.

RADICAL FEMINIST POLITICS

The patriarchal ideology that‘s pervasive in the society is seen as the reason

 behind women‘s subjugation by the Radical feminists.  They believe that it is the

system of patriarchy which defines women strictly in terms of their biological

functions like child bearing and in terms of their sexuality, i.e. as sexual slaves that

 provides the legitimacy for subjugating women. Against the liberal feminist

distinction between the personal and the political, radical feminists believe in the

saying ‗personal is political‘. 

Radical feminist Carol Pateman (1988), in her work ‗Sexual Contract‘ talks

about the presence of a sexual contract prior to the establishment of a social contract.

The former contract takes place between the husband and wife, whereby the wives

agrees to lifelong sexual subordination at the hands of their husbands. She argues that

the social contract establishes political authority in the public sphere and the sexual

contract underlining it establishes conjugal authority in the family (ibid, 1988).

Like the liberal and the Marxist feminism, Radical feminism also believes that

the sexuality of a woman is controlled. However they differ in the analysis of its

causes. Radical feminists argue that motherhood under patriarchal ideology is forced

upon the women. It is the patriarchal ideology which does not give moral and societal

sanction to any sexual act other than the heterosexual one. The analysis given by

radical feminists about forced motherhood helps in highlighting the dual character of

a woman‘s existence as a mother. Contrary to the ideology of individualism which is

valued in the current society, mothers are expected to be sacrificing in their nature.They are expected to be taking care of the family in a self les manner. Radical

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feminists also see sexual slavery as one of the reasons behind the oppression of

women. Under the system of patriarchy they believe that women are understood as

sexual objects for the pleasure of men. The worth of a woman gets defined according

to her conformity with the sexual standards of the society set by men. They view all

forms of sexual encounters as sexual slavery. The norm of heterosexuality which is

sanctioned by the patriarchal society is understood to be affecting women in a

negative way. It is the patriarchy which creates categories such as honor, virginity,

chastity etc that leads to the repression of the sexuality of a woman.

Radical feminists understand rape as a political act upon women. Radical

feminists Susan Brownmiller (1975) talks about rape in terms of the property right

exercised upon women by men. They see women as the property of men after

recognizing their ability to rape. Rape is a weapon which is used for conditioningwomen since very old times. Rape of a woman is seen as a violation of a man‘s

 property rights which makes a counter attack on the enemy‘s women inevitable.

Brownmiller sees rape as a political act of domination of women by men. She points

out that though overt form of encouragement for rape may be absent in the society

 but, the pervasive male ideology in the society gives sanction to it in a covert manner.

As a solution she argues that the male ideology should be challenged by way of

usurping the legal machinery. There has to be equal male and female in all the aspects

of legal process right from the enactment to its enforcement. There has to be a

rejection of the male culture (ibid, 1975).

They are aware of the fact that there are also instances in which a male is also

raped, however it is important to understand here according to the radical feminists is

the fact that the raped man is seen as a woman.

Brownmiller (1975) on the question of prostitution opine that the radical

feminists see it as a sexual act which is forced upon a woman. They understand it as

the patriarchal society‘s way of fulfilling the sexual drive of their male members.

Unlike the liberal feminists‘ interpretation of prostitution just as any other job carried

 by a woman out of her choice provided she was given with other alternatives, the

radical refuse to see it as an act out of free choice. They see it essentially as forced

under the patriarchal society. Radical feminists also condemn against pornography

 because they view it as a sexist propaganda, where a woman is portrayed as a sexual

object for men‘s consumption. They also see pornography as a reason behind the

increase in the rape culture (ibid, 1975).

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Jaggar (1983) points out that the radical feminist see the adaption of alternative

sexuality as a solution to the current problems of patriarchy which subjugates women

 by forcing motherhood and sexual slavery upon them. They understand the normative

heterosexual relationship between men and women as the reason behind the

oppression of women; hence they urge women to take up alternative sexuality instead

of the normative one in order to break free from it. It is here that the radical feminists

encourage women to be lesbians (Jaggar, 1983, 271-275).

When it comes to the state, the radical feminists understand it primarily as an

institution identifying itself with the masculine ideology to put it simply as a

 patriarchal state. They do not see the state as having any element connoting equality

of man and woman. Regarding this radical feminist Mackinnon says

The state is male in the feminist sense: the law sees andtreats women the way men see and treat women. The liberal state

coercively and authoritatively constitutes the social order in the

interest of men as a gender- through its legitimating norms,

forms, relations to society, and substantive policies (Mackinnon,

1989, 161-62).

Their disillusionment with the patriarchal state is the reason why they want

women to build an alternative women culture. It means that there will be a wide

variety of alternative institutions which shall function only for the benefit of women.

Some of them will be total communities, and on the other hand the other institutions

will be radical in the sense that they would fulfill particular needs of women. This is

how the radical feminists believe that the institution of patriarchy can be challenged.

It is seen that both capitalism and patriarchy are seen as independent reasons

 behind the oppression of women, however the socialist feminists have combined both

the forms of oppression and see them together as oppressive for women. Socialist

feminist politics is discussed below.

SOCIALIST FEMINIST POLITICS 

The socialist feminists focus on the dual system of oppression for women. They

view both capitalism and patriarchy as repressive for women. Socialist feminists

develop the Marxist notion of alienation with radical feminist insight of sexuality in

it. They believe that the women undergo special sexual form of alienation. Women aregenerally expected to be presentable to men. Jaggar (1983) notes that socialist

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feminist see men rather than women controlling the expressions of women‘s sexuality.

The way in which a worker is alienated from his work by the capitalist, in the same

manner a woman is alienated from her sexuality by a man. Women do not have right

over their body in the same manner as the laborer does not have right over his product

(ibid, 1983, 309).

They believe in the abolition of both class and gender discrimination in order to

end women‘s oppression. Socialist feminists focus on getting reproductive freedom

for women, which would mean the availability of all the material conditions required

for it. Their demand for reproductive freedom only for women and not for men is

 based on the fact that it is a woman who is biologically capable of bearing a child and

also it is again a woman on whom the societal pressure of rearing the child rests. The

socialist feminists also see such reproductive freedom as a kind of sexual freedom.Socialist Feminist Linda Gordon (1979) argues that in order for women to be

sexually free they have to first have reproductive freedom. It is based on the

understanding that the reproductive functions of women have been used as a pretext

for banning women from exercising sexual freedom and also led to the imposition of

the norms of monogamy. Further women were also curtailed from having access to

 birth control means. Hence it becomes important that women should acquire

reproductive freedom in order to gain sexual freedom (ibid, 1979, 107- 136).

Socialist feminists also points out to the gender specific discrimination that a

female wage worker suffers on top of the discrimination suffered as a genderless

wage worker. They see that being a female is a reason enough to be receiving unequal

wages with their male colleague as well as to be absorbed only in lowly paying jobs

in the public sphere. This is due to the commonsensical notion that only a man is the

wage earner of a family and not the woman. With regard to the character of the

organizations endorsed by the socialist feminists, they opine that it should be both

socialist and feminist in nature. The objective of these organizations is to raise

awareness about the ways in which the working class men perpetuate patriarchy. They

do so by refusing to incorporate affirmative action, through rape, women battery and

other forms of sexual harassment.

The different qualifications of the state coming from the above strands are

 based on their understanding of women as a category in itself and therefore they see

them to be experiencing the same kinds of oppression. In this work I shall study what

role the state has been able to play in the lives of the Indian women through its lawmaking body.

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The work highlights the different dimensions of Indian women‘s movements

engagement with the law during the late 1970‘s to the 1990‘s. The Towards Equality 

report published by the Committee on the Status of Women in the year 1974

highlighted the deplorable condition of Indian women. It came in the wake of the

 political turmoil that engulfed the entire nation during the period of emergency in the

year 1975. It is precisely this phase starting from the post emergency period till the

1990‘s that is taken up for study in this work. The women‘s movement fighting for the

upliftment of the conditions of women, had to face certain concerns from various

sections of women who were till then lying on the periphery of women‘s politics. It is

this dimension that shall be introduced in the coming section.

IDENTIFYING THE SUBJECT OF FEMINISM

This work tries to emphasize the importance of acknowledging the differences

in the situatedness of women, while understanding the difficulties it poses for the

feminists to design an undifferentiated category of their subject, i.e., women. The

dissertation attempts to highlight the disillusionment that would be identified with the

women‘s movement if it refuses to see the particularities present among the universal.

The work discusses the consequences of realizing the reality of the impracticality and

also the impossibility of formulating a universal category of women. This assertion

made by women is based on the lived realities of their lives wherein they are located

at different locals of existences and survival. The women‘s movement in India during

the 1980‘s is known to be the second phase or the new women‘s movement because

of the kinds of issues raised by them during this period. It was during this period that

the ideological veil protecting the private sphere of the lives of its subjects was

removed and the private realm was brought out in the public realm for negotiation

with the state apparatuses.

There are scholars who see the feminist effort to bring out the politics within

the Indian family as a western phenomenon. As a response to such criticisms,

Geetanjali Gangoli (2007) in her work argues about the differences between the

Indian feminist movement and the western feminist movement. She points out at the

distinction that against the ―separatist politics‖ done by the western feminists, their

Indian counterpart have actively kept themselves involved in various other social

movements (ibid, 2007, 128-129).

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The women‘s movement during this new phase started realizing that it was

 becoming increasingly difficult for them to represent a homogenized, monolithic

category of women without taking into account the internal complexities involved in

the particular situatedness of these different women. The women‘s movement was

criticized by feminist representing the dalit women, minority women and also the

disabled women.

Gopal Guru (1995) highlights the dalit feminist‘s assertions that the kind of

oppression experienced by a dalit woman is different from the oppression experienced

 by a non dalit woman. It is brought into the notice of the mainstream women‘s

movement that the dalit women face double oppression, one at a general level and the

other at a more particular level, wherein they are oppressed by their own caste men

(ibid, 1995).A feminist writing from the disabled women‘s perspective Anita Ghai (2002)

illuminates on the darkness that surrounds the issues related to disabled women. Ghai

argues that the women‘s movements as well as the disability movements have not

taken up the issues of disabled women in an adequate manner.

Gangoli (2007) points out that it is important to comprehend the kind of

intimidation a woman belonging to a minority community such as the Islamic

community would feel under the wake of the rising communal politics during the late

1980‘s and early 1990‘s (ibid, 2007, 111). It is in this context that the feminists

 belonging to the women‘s movement started reflecting upon their demand for a

Uniform Civil Code (UCC).

The elusiveness of a unified category of women was also seen during the

debates on the women‘s reservation in the parliament. Nivedita Menon (2004)

highlights feminists and caste based arguments in support and against women‘s

reservation. It is the caste based arguments against the reservation which says that

women are not a homogeneous category and is a differentiated category in itself, each

experiencing different levels of oppressions based on their particular situatedness.

Till now we have been looking at the differentiation between women in the

domestic setting and accordingly being concerned about its universalizing tendency.

However, it is also important for us to distinguish ourselves from how we are

 perceived by the western feminists.

Chandra Talpade Mohanty (1991) in her significant work, ‗Under Western

Eyes‘ critiques the Western feminist understanding of the third world feminism. In herwork she talks about the colonization process that is at play in order to usurp the

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understanding of a situation offered by the others in order to give one‘s own

understanding as the ultimate one. This colonizing capacity is exercised by the

Western feminists while giving an understanding of the third world feminists.

Mohanty contends that the Western feminist writings ―discursively colonies the

material and historical heterogeneities of the lives of women in the third world,

thereby producing/ re- presenting a composite, singular ―third  world woman‖- an

image which appears arbitrarily constructed, but nevertheless carries with it the

authorizing signature of Western humanist discourse‖ (ibid, 1991, 383). 

Together with bringing out the complexities of the category of women this

work also attempts to understand the usefulness of the feminist engagement with the

state. Engagement with the state here implies the women‘s movement‘s negotiation

with the legislature, executive and the judiciary. The law in this study assumes addedsignificance due to the language in which it communicates with its subjects. Any

claim without the legal acknowledgement becomes futile; however is it enough to

have legal rights in order to lay claims on it, particularly when the claimant is a

woman?

Therefore this study attempts to understand the contours involved in the

interaction between women and law. Feminist writings on law have highlighted a

number of issues involved in it. The dissertation highlights the various kinds of

experiences that feminist activists, lawyers, academic have had in their involvement

with the law. Such experiences range from complete disillusionment with the

capacities of law to trusting them with their ability to formal recognition to the needs

of a woman. There is also a growing realization among the Indian women‘s

movement that greater numbers of laws increase the state power (Agnes, 1992).

As an introduction to understanding the particularities of women‘s movements

engagement with the law, I would like to point to certain observable general

tendencies which emerge out in the course of studying law under the gender

 perspective. I have tried to identify three such important tendencies and put it in a

concise manner as a part of the introduction. These tendencies get reflected

throughout the dissertation while discussing the potential of law as reforming agent or

not. The three tendencies are discussed below.

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PROBLEM OF BINARISATION 

The practice of binarization in the legal language often works against women.

Binarization is an act of disintegration of a particular matter (tangible or intangible)

and then segregating them into different oppositional compartments.  The gender

discrimination which is pervasive in the society is precisely because of this

 binarization which was done by the society between men and women. The process of

 binarization creates two extremes in the beginning and end of a continuum.

According to Carol Smart (1989) binary system of logic refers to oppositional

thinking. Smart points out that, these oppositional categories however do not have the

same value. The values attached to the oppositional categories are also set in

oppositional terms. That means that one of the two categories will be having highervalue compared to the value of the other category. Smart argues that the categories

having subordinate value are the one‘s which are associated with the women. She

argues that the logic of binaries can be linked to the laws ‗claim to truth‘ (ibid, 1989,

33).

This argument of Smart (1989) is an extension of her understanding of the

 power of law. She argues that the  juridico legal power of law has been continuously

increasing, despite Foucault‘s argument that the power of the law would start

diminishing with the increase in the regulatory power of the psychological discourses.

Smart does not accept Foucault‘s view that in the present context what is important is

to understand the mechanisms of power and not who holds the power; therefore she

argues that law has only gained importance and power by being able to extend its

sovereignty over areas constructed by the human sciences (ibid, 1989, 4-26).

Smart (1989) argues that the binaries which the law creates are used by it in

their application. One of the two categories is taken as the right, good and also as the

norm. On the other hand the other category is understood as wrong, bad and also the

deviant. This is how the law exercises its claim to truth. Smart takes the example of

rape trial where in women‘s sexuality is measured with reference to the male

sexuality which is phallocentric in character. There is a total disqualification of

women‘s sexuality (ibid, 1989, 26-49).

Coming into the Indian context the issue of law creating binary categories is

also argued by Nivedita Menon (2004). She argues that, the law creates binaries and

then through legal means rigidifies them by the process of codification. This wouldmean that law helps in creating binary opposites which renders women‘s experience

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as sterile. It is because of this that she argues for a sustained radical movement in

order to bring about transformation in the prevalent patriarchal commonsensical

notion. Understanding the transformatory elements present in the law she does not

suggest giving up on it, she nevertheless believes that law should only be considered

as one of the many transformatory agencies and that it should not be allowed to usurp

the more important task of radical politics.

Can it than be concluded that the binaries designed by law are working towards

rigidifying the already existing patriarchal norms in order to maintain the status quo

or should it be perceived as a limitation on part of legal language in itself which is

 beyond recovery and hence should be abandoned by the women‘s movement.

The next problem with the language of law is the sameness/difference dilemma,

which is discussed below.

SAMENESS/ DIFFERENCE DILEMMA 

The sameness/ difference dilemma is about the difficulty identified by the

feminists in asserting any one of the legal approach to be more beneficial for women.

Catherine Mackinnon (1987) looks at this dilemma as a doctrine. Mackinnon (1987)

says that women have two approaches under this doctrine, one is to be considered

same as men and the other is to be considered different from men. She points out that

women can opt for the first one in which men and women are treated as same and this

approach is the generally prevalent one amongst the liberal feminists who look up to

the state as a neutral institution. They believe gender neutral legislations will go a

long way in bringing in gender justice. This is considered to be a gender neutral and

also is understood as having a single standard. On the other hand Mackinnon says

women can also go for the alternative available, which is about women being

considered as different from men. This is considered to be protectionist in its

approach and also having double standards. Mackinnon points at the fact that under

the sameness approach women generally tend to lose to the demands made by men in

terms of gender neutrality, citing as an example, the laws dealing with custody and

alimony. She says that she does not want to say which a better option is. In fact

Mackinnon argues here that whatever the approach be, the concept which underlies

the two is the notion of difference, since both the sameness and difference doctrines

are obsessed with it. This Mackinnon calls the difference approach (ibid, 1987, 32-34). 

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Regarding the resort to treating men and women as same in those instances

when they are same and treating them differently when they are different is seen with

skepticism by Mackinnon (1987). She believes that it is only going to help men to get

 both. Men will be treated as same when they need it and shall be treated differently

when they don‘t need it (ibid, 1987, 39). Mackinnon at this moment ta lks about an

alternative approach which is called the dominant approach. This approach is seen by

her as having the characteristics of dissidence in it. This approach says Mackinnon

shall not be involved in formulating laws however it shall be behind questioning and

critiquing reality. She argues that this approach shall be more substantive in nature

and more jurisprudential than formulaic. Mackinnon says that it is because of these

characteristics of this approach that it is not considered seriously by the mainstream

discourse as an approach to the doctrine (ibid, 1987, 40).Indian feminist lawyers Ratna Kapur and Brenda Cossman (1996), who discuss

this dilemma in the Indian context as the reason behind the failure of law to deliver

 justice, see the solution to it lying in the ‗substantive equality approach‘ of the law.

Under this system the law attempts to bring in equality which is substantive in nature.

Contrary to Mackinnon‘s argument, Kapur and Cossman believe that the law at times

has to take recourse to sameness approach and at other times it has to take on the task

of correcting things through its difference approach. This approach believes in the

equal outcome of law and not on the equal treatment under the law (ibid, 1996).

It is difficult to understand the language adapted by law. There have already

 been two examples of it; however the difficulty does not end here. It is also extended

to the concept of rights under the law. Very often under the legal field one set of rights

are pitted against another set of counter rights thereby reducing the legitimacy of any

one particular rights claim. The condition is discussed in the following section.

RIGHTS ISSUES

Carol Smart (1989) identifies certain difficulties associated with the rights

claim. Smart gives a detailed understanding about the concept of rights. According to

her, law is important for women because it can no longer deny them the privileges

which are legally enjoyed by men. Legal rights which were the most important part of

feminist politics in the eighteenth century were based on the notion of equality;

however the same reliance on the law is seen as problematic by the modern feminism.She points that the language of rights was both empowering and limiting at the same

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time. Empowering, since it could be evoked by anybody and limiting, since it made

the law as the centre of many political campaigns. Smart identifies certain problems

associated with rights. Firstly she argues that rights have the capacity to ‗oversimplify

complex power relations‘ (ibid, 1989, 144). This happens due to the understanding

that getting rights does away with the unequal power relations. Secondly rights can be

countered by competing rights. Thirdly, though rights are formed in order to correct

social wrong, yet they are more focused on individuals. Lastly she says that the rights

may be appropriated by the powerful ones (ibid, 1989, 144-145).

When the second issue of rights being countered by competing rights is taken

up in the Indian context, one will be able to identify number of instances where the

rights claim of women are countered and rendered meaningless by the competing

claims made by men based on the specificities of their community situatedness. Onevery obvious instance of this would be the rights of a woman as an individual getting

countered by the right to the freedom of religion in the Indian context. India being a

secular democratic country allows its people the freedom of religion, and thereby it

has left certain aspects of the lives of people to the personal jurisdiction of the

respective religion. As a consequence of it most of the issues related to women come

under the personal law of the religions in which the state has no jurisdiction.

Therefore the oppression of women in the name of religion can be said to be

sanctioned by the law.

The discussion on the dowry laws in this work will highlight at the fact that

during the debates on the Dowry Prohibition Act of 1961 the practice of dowry was

seen under the light of a men‘s right towards the discretion of his property as against

the women‘s right to not be commodified. The Act did not prohibit the transaction of

dowry but only objected to it when it was demanded. Women‘s right to parental

 property stands refuted on the ground that dowry has been paid. The dowry giving act

is up to the discretion of the parents of both the groom and the bride, but it is

effectively used as a way of disinheriting daughters in India.

The pro-choice/ pro-life debate around abortion laws is also an instance where

rights are countered by competing rights. Here the feminist demand of giving women

the right to make choice between giving birth to a child or not is pitted against the

 pro- life arguments made by the fraction demanding the fetal right to life.

The limits of rights can also be understood in its ineffectiveness in improving

the situation of women as a group. There is no denying of the fact there are definitelycases where a women have been given justice, however it has to be understood that

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this is possible only when the particular woman has proved herself to be conforming

to the dominant patriarchal norms of the society. If the woman claimant is seen as

conforming herself to the superior binaries of the law, that she is given legal relief.

I shall endeavor through this work to carry on with the discussion that has been

initiated in this introductory chapter over the mentioned themes revolving around

women and law.

OUTLINE OF THE STUDY 

This work has been designed in the manner of four chapters. After discussing

about the law and its inherent contradictions in this chapter we move to the second

chapter which is titled ‗Women and Law in India: Issues and Debates‘ . Here, I havetried to identify certain issues within the Indian feminist politics since the 1980‘s.

Understanding the debates around those issues and the legislations behind them

remain my focus throughout the chapter. Since it is not possible to take up all the

issues, I have looked at only those issues which correspond with the study that I take

up in the subsequent chapters.

In the third chapter I try to narrow down the focus of the study and for that I

choose to study the institution of dowry. The chapter can be seen as an illustration of

the act of formulating binaries by the law, which is how the practice of dowry came to

 be institutionalized. My emphasis on the legal reasons behind dowry‘s pervasive

character should not be seen as an attempt to sideline the societal reasons and other

reasons behind it. However it has to be understood that the aim of the study stands to

identify the relationship between the systems of dowry and the law. I also discuss in

this chapter the characteristic changes that the practice of dowry has undergone in the

modern consumerist context. The chapter has  been titled ‗The Institutionalization of

Dowry and Its Modern Manifestations‘. 

The fourth chapter is called ‗Dowry, Women‘s Movement and The Response of

the State‘. Here, I attempt to capture the trajectory of the women‘s movement in India

and see how it made the state to intervene in the struggle against dowry. The chapter

seeks to understand and evaluate the response of the Indian state.

I have tried to do a secondary literature review of the feminist writings on law

in order to comprehend the scope and limitations of law through the gender

 perspective. In order to understand the interplay between the state, law and women, Ihave looked at the Lok Sabha debates on the Dowry Prohibition Act 1961, which is

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considered to have failed to meet the objectives of the Act. With this introductory

chapter, we move on to the rest of the chapters of this study in order to understand the

feminist engagement with the state and the law.

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CHAPTER TWO

WOMEN AND LAW IN INDIA: ISSUES AND DEBATES

INTRODUCTION

When we talk of using law as an instrument to correct the wrongs imposed

upon women, we are in turn and crucially so engaging in a dialogue with the state. It

is a duty of the state to provide protection to the weaker sections of the society.

Taking this as a cue, this chapter tries to assess the impact that law has had on the

lives of women in India. Does law really contain any emancipatory promise for

women or is it simply acting as a guard of the patriarchal principles of the society?Does it help in subverting the dominant patriarchal ideologies or does it help in

recovering and reinforcing them? For the purpose of discussing these questions,

which makes us aware of the dilemma of how an analytical study of the relationship

 between women and law should be designed, this chapter has been divided into seven

sections. The first section will talk about the women‘s issues coming into the public

sphere during the early nineteenth century and thereafter. It shall also look into

certain aspects of both the colonial and the postcolonial state in order to look into the

 possible similarities and dissimilarities between the two. The chapter attempts to lay

the foundation for a discussion to take place on the various issues mentioned above

under the light of the constant friction that is taking place between the constitutional

safeguards and the hegemonic patriarchal ideology dominating all the spheres of

human life. The latter  — draws on for its legitimacy, not just the religious scriptures,

 but frequently now, — also from the domain of Science and scientific knowledge. The

remaining sections will try to evaluate the extent of the impact of this friction on the

lives of the Indian women by examining the various issues affecting a woman‘s life

such as the personal laws, violence of a sexual nature, reservations for women, the

question of the Uniform Civil Code and also the kinds of double subjugation faced by

dalit women and the specially abled women. In this chapter I would argue that in the

interaction that is taking place between the legal and the feminist discourse, the voice

of the feminists time and again gets marginalized due to the reaffirmation and the

recreation of the dichotomy between the private and the public by the discourse on

law.

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With this argument in mind, we will in the last section try to engage ourselves

with the different views given by women activists, lawyers and academicians who

have studied law and try to figure out if any of these stands prevail over the rest in

 bettering the position of Indian women.

Anupama Roy (2005) points at the Constitutional guarantees of equality before

law for each citizen irrespective of their race, sex, caste, religion etc which is

contained in articles 14 and 15 of the Fundamental Rights of the Indian citizen. It

further reserves the right of the state to make special provision for the weaker

sections of the society like children, women, scheduled castes and scheduled tribes.

These rights and protections, however comes in contestation when we look into the

rights that are guaranteed to the religious communities under the articles 25 to 30

(Roy, 2005, 197-198). It is this context that it becomes necessary for us to look intothe way how various religious communities view their women. Is it possible for

women to procure real equality under those situations in which the abstract individual

rights are pitted against the religious community rights? Religions, as we see in daily

life tend to accord women with the respectable position of mother of the present and

the future generations. However a closer look at it will confirm a picture which is

otherwise.

V. Geetha (2009) highlights that there is a common thread running through all

the religions and that is, that they accord inferior status on the women of their

respective religions. She points at how Hinduism sees women as sinful creatures

since the dawn of creation in which fire, snakes and poison are rolled into one. This is

 precisely the reason why Manu suggests the superior creatures, men to assert

themselves on these secondary sinful creatures by controlling them. The Greeks who

worshipped both gods and goddesses applied the same notions of hierarchy in

allotting women secondary status with respect to men. It is hard to believe that

someone as great as the philosopher Aristotle would consider women to be naturally

inferior to men and consider them unfit for political recognition in the nature of

citizenship. The same is true in case of Christianity, which believes that it was man

(Adam) whom god first created using clay and woman (Eve) it is believed was

created using Adam‘s bone and therefore women came after men. Since they owe

their existence to men, they are secondary to and inferior to men. V.Geetha (2009)

also points out that the Islamic religion is no different in this matter. Islam too like

Hinduism believes in the notion of impurity of a woman‘s body. It is only the notionof worshipping women as mothers that has come to be accepted widely as a valued

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identity, thereby subsuming all other identities and roles essayed by a woman. It is

ironical to admit that these kinds of justifications for according secondary position to

women is not just restricted within the discourse of religion, in fact it has also found

an undue place in the commonly held neutral and objective discourse of science.

Geetha (2009) says that, today scientific reasons are cited validating grounds of

discrimination between men and women. Male and female hormones, sperms and

eggs are pitted against each other in order to prove male superiority and thereby

 promote gender inequalities under the veil of sexual differences. V. Geetha‘s (2009)

account of religious and scientific explanations of women‘s subjugation helps us

show that contrary to the belief that gender difference is an eternal and transcendental

truth, it is actually a phenomenon which is historically located (ibid, 2009).

It is true that women in the earlier times had generally conformed to thesenotions of inferiority and impurity but it did started getting challenged in due course

of time. The East India Company which after the 1857 mutiny started ruling and

administering the Indian subcontinent started attacking the Indians for their barbaric

 practices such as Sati against women. It was countered by the Indians in the name of

cultural difference as well as its superiority over the western civilization. However in

the nineteenth century the ‗Women‘s Question‘ had become one of the prime

concerns and there were different kinds of resolutions put forward. It is in this context

that the distinction between and the private and the public became all the more

obvious. In fact Partha Chatterjee (1989) argues that the women‘s question by the end

of the nineteenth century started fading away because of the dichotomy that was

 being drawn out between the outer and the inner sphere, the world and the home; the

 public and the private. There were explanations given by the revivalist that they did

not have to bring in any change to better the position of women, it was just that they

had to re invoke and regenerate the rich tradition of the Indian past which according

to them accorded a very high status to the women. There was also a reformist stand

which sought to bring reformation and improve the lives of the Indian women but

they did not expect any kind of interference from the colonial state. They wanted to

 bring reforms on their own terms. On the contrary the modernist strand sought the

colonial state‘s intervention in bringing legislations concerning women in order to

correct their situation (ibid, 1989).

Having said this, we must be able to look into the internalities of these stands

which are brought out by Sudipta Kaviraj (2005) in ―Enchantment of the State‖.According to Kaviraj the second strand is the most interesting one as it throws upon

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us the weight of the ambivalence of their claim i.e., whether they were against the

interference by the colonial state or the concept of the state in general. He sees the

first kind of argument in line with the Nehruvian notion of the nationalist state and

the second one in line with the Gandhian notion of stateless society. It is also

important to problematise the modernist stand. For Kaviraj the modern reformers saw

the colonial state as a medium of bringing in the change that they have wanted to

 bring in but were not able to because of the opposition by the fundamentalist section

of the Indian society. In this sense the proponents of this faction saw in the colonial

state a way to realize their political aspirations.

We can see how the centrality of the issue has shifted from that of the women

to the concept of colonial state in particular and the state in general. May I here point

out that this might also be seen as a cause of the gradual fading of the women‘squestion from therefore front?

According to Radha Kumar (1993) though the early nineteenth century had

 brought in the women‘s question but it was nevertheless taken up by the men. It was

only in the early twentieth century that autonomous women‘s organization started

developing and by the mid thirties and forties fully fledged ‗women‘s activism‘ was

constructed (ibid. 1993).

Radha Kumar (1993) in her work tries to highlight the nature of the women‘s

movement during the mid-nineteenth and early twentieth century. The early part of

the movement acknowledged that there were differences between men and women

and that these differences made them different but it was however not accepted that

these were the reasons for their subjugation. It is much later that these differences

were recognized as constraining for women and were therefore sought to be removed.

According to Kumar (1993), during this period emphasis was given on the ‗maternal‘

instincts and functions of a woman. The women in the first half of the twentieth

century started to be constructed as mother figure. In the last quarters of the twentieth

century, the women‘s movement started identifying the sexual division of labor as an

impediment on the way of enjoying a status equal to that of men. There was also the

realization of the fact that it was too simplistic an assumption that -―woman‖ is a

homogeneous category. The differences among and between women belonging to

different cultural, historical and political situatedness began to emerge. Movements

which started making demands based on needs had travelled a path over two hundred

and more years to make demands based on rights. The period of the nineteen eightiessaw the rise of demands by the women‘s movement‘s asserting their claims over the

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right of their body. They had huge problem with lending the women as a terrain for

contestation between the state and the community. According to Radha Kumar the

trajectory of the women‘s movement‘s engagement has travelled from the mid-

nineteenth century‘s preoccupation with the process of codification to the early

twentieth centur y women‘s movement‘s engagement with codification as well as its

implementation (ibid, 1993, 5). Kumar (1993) says that in order to understand the

extent of women‘s participation in the freedom struggle movement we should see

how the national movement led by Gandhi was feminized. The feminization of the

freedom movement can be seen in the instances where charkha (spinning), making

salt (an ingredient found in kitchen, which was a women‘s sphere) were used to

invoke nationalist sentiments (ibid. 1993).

The colonial state and the postcolonial state show certain signs of continuationas well certain signs of rupture. Upendra Baxi (2000) argues that colonialism and

constitutionalism were strangers to each other. He calls it a modern superstition to

 believe that constitutional forms and ideals constitute a legacy of the past colonial

rule. However, there is another argument from Sudipta Kaviraj (2003), regarding the

nature of the postcolonial state. Postcolonial state not just in the narrow sense

referring to the state that came into existence after the exit of the colonial state, but

more in terms of the fact that certain features in the present state exists only because

of the past colonial rule. He argues that the current nature of the society which is state

centric is not just a continuation but also an extension of the colonial state

apparatuses. It was a transfer of power from the colonial administration to the Indian

elite.

After realizing the changes in terms of the issues raised by the women‘s

movement in the post independence period, it becomes important to study them in

order to understand their emancipatory and egalitarian potentials. This is what leads

us to the coming section where we will take up the issue of personal laws and see if

law has in any form been able to deliver justice to women or whether it has acted as a

device of reinforcing the norms of the public and the private.

PERSONAL LAWS

The decision of the Indian Constitution against establishing any one religion as

the state religion and against any kind of state separateness from the religions to be practiced in its territory (Mahajan, 2008) has had serious implications on the lives of

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the women. On the one hand the state gave women equal citizenship rights with the

Indian men while on the other hand it reserved the right of the various religions to

 practice their religious customs by granting them right to religious freedom under the

articles 25 to 30 enshrined in the Fundamental Rights in the Indian Constitution. This

kind of dual membership has in most cases acted against women. Those institutions

and issues which have a direct impact upon the women are under the Constitutional

scheme of things left under the domain of the religious freedom. Therefore marriage,

divorce, maintenance, guardianship, inheritance and adoption come under the ambit

of personal laws which are different for different religions.

The Constitution which says that the different religions existing together will

have an equal right to practice and profess their religion meant that the state would

make special provisions in order to give the minority communities equal right tostate‘s resources in practicing and professing their religion. It can be said that it was

 based on the idea that the state treated religion as any other associations present in a

state. Keeping all these things in mind Gurpreet Mahajan (2008) argues that by

making the public resources available to various religious communities the state has

 been acting arbitrarily. It has left the state with a lot of scope for patronizing a

 particular community over others according to the need of the hour, without even any

other body reviewing it. This leads to a lot of apprehension about the path that India

has taken to bring and maintain equality between all the groups and communities

(Mahajan, 2008, 297-310).

 Now, let us look into the lives of women situated in the maze of these

contested notions of state and religious membership. The one, who tries to see the

institution of marriage which comes under the personal law, will definitely come

across various restrictions that these laws put on women. It is the woman who