Session #5: Saturday, 10 January, 14:15 - 16.00 (CSLG)
Panel coordinator(s): Uma Chakravarti, Feminist Historian (umafam@gmail.com )
Chair/discussant: Uma Chakravarti, Feminist Historian (umafam@gmail.com )
Panel description
Panelists, paper titles, and abstracts
This panel will bring together activists and scholars who have engaged with concepts of domestic and custodial violence in order to examine how claims to citizenship are structured in the domestic realm. The circulation of the category of honour crimes has produced disturbing efforts: while the judiciary has placed ‘honour crimes’ outside the framework of national patriarchies, police sociology has used the category to sexualise ‘children’s’ bodies in India by treating women as ‘minors’ requiring the protection of guardians—parents, or the state as ‘in loco parentis’, supposedly acting on their behalf, in recovering women who have made marriages of choice. The panel will subject the opacity of the category of honour crimes to critical scrutiny. Taking a cue from Pakistani feminists whose slogan ‘there is no honour in honour crimes’ offers a critique to the naming of such forms of violence against women; we start with the premise that the naming of ‘honour crimes’ is an ethnographic category that circulates among perpetrators, witnesses and victims. It is a category that is translated into the law against those subjects who reject specific patriarchal forms of governance by the family, community or caste. The criminalising of choice marriages provides a route to disciplining and punishing those who transgress such forms of governance in South Asia. The threat of detention and custodial violence, which marks the alliance between policing practices of the family and the state, remain central to our analysis of the normalisation of the politics of honour by drawing attention to the politics of naming violence against women through using the categories of honour. The panel brings to our attention the fact that while thinking of how to re-name the ethnographic category of honour crimes we must remember that the category always brings together custodial violence with domestic violence, and therefore must be seen together. We bring together a set of papers that converse with comparative legal traditions in South Asia.
From the late 1990s, policy initiatives to secure the rights of individuals threatened with forced marriage were undertaken in a number of European jurisdictions. In Britain, several significant judgments on issues of consent in the context of marriage were also handed down at this time. All of these measures focused on forced marriages occurring within the south asian diaspora within the UK, and increasingly framed the issue as a 'crime of honour' rather than as a form of domestic violence, thus enabling a perspective which in turn highlighted concerns regarding the practice as being relevant only to particular communities and cultures In contrast the large body of case law developed over a century in South Asia addressing the issue of marriages of choice, or the thwarting of such choices, while ostensibly concerned with powers to safeguard liberty in the context of detention and incarceration, implicitly and in many cases expressly, draws on notions of 'honour' in refusing to safeguard women's rights to liberty, personal security and expression. This paper will examine key judgments from Europe and South Asia to identify how issues of forced marriage/choice marriage have been addressed and how the notion of 'honour' has been interpreted.
In the early years of the Indian Constitution, the courts were presented with a challenge to the ‘rescue and restoration’ of women. Women who were found on the wrong side of the border were being tracked down, rescued and housed in camps while arrangements were made for their repatriation to the country where their fathers, husbands and sons had chosen to stay so that they could be restored to their families. Three persons were so recovered from the custody of Ajaib Singh in the Punjab. Ajaib Singh protested and approached the High Court to have the women, including a 12 year old girl, returned to him. He banked on the Constitution to suggest that the act of keeping the women in camps after taking them away from him rendered the exercise illegal and unconstitutional. The High Court held in his favour, and the State of Punjab held in his favour which could have meant that the state relinquish their hold over the women and return them to Ajaib Singh. The State appealed this decision in the Supreme Court. The Supreme Court found a way out for the state by making a distinction between arrest and detention (which requires their production before a magistrate within 24 hours) and the act of keeping the women in camps after the rescue. This was among the early ways in which women met the Constitution, even if by proxy. So one question got answered as the court thought fit. But what about the many that didn’t? At a time when both countries were expressing moral outrage and a sullying of honour because their women had, surely, been abducted and detained, what gave Ajaib Singh the confidence that he could use the courts to have the women returned to him? What are the questions that beg to be asked? This was also a time when women who had crossed the border to Pakistan were being denied a right to return despite their men being in India. What, if anything, may this prompt us to ask about the times, perceptions of the autonomy of women, the construction of citizenship?
Over the past decade AALI, has intervened (both in and outside the court) in various cases where women face violence for exercising their choice in a sexual relationship. Regardless of the different socio-economic and religious background of survivors, granting impunity to the perpetrators in the name of “culture” and “honour” has been a common factor underpinning such cases. While engaging with the individual instances of violations of the right to choice we have also cross-referenced these experiences with the substance, structure and culture of the legal system. Such juxtapositioning has reaffirmed the critical role of ‘custodian’ played by the state, community and family to control women’s sexuality. Denying women agency as an individual, in the name of “honour” or “ethnic purity” the state and non-state actors collude together resulting in women’s involuntarily detention in the "protective custody" of their families (both marital and natal) and the state.
This can also perhaps be related to the stands taken routinely by state and community in cases of domestic violence, wherein despite a survivor’s complaint about the abuse, she is consistently either counselled or practically forced to return to the perpetrator as he is considered to be her “legal guardian”. The common practice of the filing of false kidnapping cases against the boy and his family in situations where the girl leaves her natal family to marry/live with the man of her own choice is another example of intermingling of the “custodian” ideology with the criminal justice system. Further analysis of cases reveal how the legal system is used and operated by contesting parties to deny women’s right to choice and decision making in a sexual relationship. This also includes usage of Habeas Corpus – the writ used to command production of a body from extra-legal or illegal custody. In the majority of right to choice cases the writ, which is also understood as the liberating writ1, is filed by fathers and husbands to assert their contesting claims on women. A close look at such cases filed in the Supreme Court and selected high Courts indicate that in most of the cases the girl’s custody was treated as lying with the father or with the state, i.e. in vulnerable or adversarial custody. Control over women’s sexuality, is extended not merely on she is entering, or during a sexual relationship, but also is critical in the processes working towards dissolution of her marriage. It is not only the operation of legal system which impinges upon women’s right to sexual autonomy, but there are provision like Section 497 of the Indian Penal Code (criminalizing adultery only when it is committed by a married woman) and Section 198, Criminal Procedure Code (allowing the husband, who is called the ‘aggrieved person’, to prosecute the man who has had adulterous sexual intercourse with his wife) that reinstates men’s claim over women’s bodies. Our experience confirms the larger patriarchal social consensus at work whereby, acting as custodian of woman’s sexuality and reproduction, the family, the community and the state come together to oppressively control women, and violate their right to choice in entering or terminating a sexual relationship.
This paper seeks to examine the ideas of “rights” invoked by love-marriage couples as well as those who oppose such marriages. If we are to take seriously the academic rhetoric of viewing rights ethnographically, then the rights of couples (to marry as they choose) are as significant and meaningful as the rights of families who oppose them as well as the rights of communities to police their marital boundaries by enforcing cultural codes. In this paper I want to explore how we might think through these issues in such a way that allows us to recognise the important political work that rights discourses “do”, whilst at the same time thinking about how love-marriage couples themselves view marriage as a “right”.
The idea that rights are ideologically and spatially circumscribed by the law and legal institutions has long been disputed amongst others, by anthropologists. Indeed, this paper problematises the very idea of viewing marriage as a legally constituted event, despite the fact that love-marriage couples regularly avail of the legal system to legitimate their union. In fact, the ethnographic evidence points in the other direction. That is to say that the rights that come about as a result of the love-marriage are almost an inadvertent outcome. What is far more significant is the sense of marriage as a threshold for their moral and social selfhood. So for instance, one of my informants described her escape from her family in Delhi and the way in which the decision about marriage evolved: “I was too scared to go back home. He [her boyfriend] said, O.K. don’t worry, let’s go. At night, I caught the train from Nizammudin with him. They holded [sic] me outside the station and they went searching all around the station ki koi sardarji na ho [that there were no Sikhs / members of her community inside]. We went to Hyderabad. He had his own rented room so we went there. So we stayed and we felt: Ab kya karna hai? Shadi tho karni hi hai. [Now what shall we do – we are going to have to marry.] So he approached one of his friends for the Arya Samaj thing” [an Arya Samaj shadi or marriage that is subsequently registered in court under the Hindu Marriage Act, 1955].
If rights are an inadvertent outcome, we can see from the above that it might be argued that the shadi or marriage is itself an inadvertent outcome of other more pressing concerns. The mainstream view is that “these sorts of marriages” (“love-marriages”) are the outcome of “love” / pyar / ishq - and for those that are uncompromising in their robust defence of “Indian morals”, they are at bare bones, about lust. In this paper I am going to argue that if we were to view love-marriage ethnographically, we would see that it is actually often an outcome of violence. Love-marriage couples in Delhi routinely experience violence which takes account of the full spectrum of threats of verbal and physical abuse to actual physical and psychological torment. There is often a tremendous effort prior to the marriage to “absorb” this violence in the hope that it will bring about reconciliation with the famil(ies). This paper will seek to understand the significance of domestic and state violence for our understanding of love-marriage and the rights they confer upon such relationships.