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Women and Law

A Study of Dowry Laws in India

PALLAVI BORGOHAIN

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, Womens Movement, and the Response of the State:


77- 99
Conclusion: 100-104
Bibliography: 105- 123

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 the
JNU 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.

CHAPTER ONE
INTRODUCTION: LAW AND ITS INHERENT CONTRADICTIONS
Since the economic developments of the 1990s 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 womens 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 womens 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 womens 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
womens 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
womens movements engagement with the state over the issue of dowry while my
general interest lies in understanding the dynamics of womens 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 is
important 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 languageof prescription and commandthrough
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. Its 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 womens emancipation? Can laws
merely be dismissed as having rhetorical purpose (assuming they are not being
implemented)?

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 the
state. 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 feminist
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 falling
under 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 womens 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 womens 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. The
women 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 sexual
division 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 womens 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).

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 as
oppressive 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 ones reason as an intrinsic characteristic of human
being. It is due to this that they dont attach any normative hierarchisation to any
particular sexual behavior over the other. Jaggar (1983), points out that Liberal
feminist 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 womens 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 ones 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

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 males privacy and not females. 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
womens 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 distinguishing
the 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, 254274).
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 womens oppression therefore they see
that more and more incorporation of women in the public sphere as an effective
solution 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 legislations
were 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 womens
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 womens 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 dont 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 of
woman 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 womens oppression and the way they understand the state.
RADICAL FEMINIST POLITICS
The patriarchal ideology thats pervasive in the society is seen as the reason
behind womens 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 womans 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
13

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 conditioning
women since very old times. Rape of a woman is seen as a violation of a mans
property rights which makes a counter attack on the enemys 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 societys 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 mens consumption. They also see pornography as a reason behind the
increase in the rape culture (ibid, 1975).

14

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 and
treats 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 are
generally expected to be presentable to men. Jaggar (1983) notes that socialist
15

feminist see men rather than women controlling the expressions of womens 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 womens 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 law
making body.
16

The work highlights the different dimensions of Indian womens movements


engagement with the law during the late 1970s to the 1990s. 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
1990s that is taken up for study in this work. The womens 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 womens 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
womens 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 womens movement in India during
the 1980s is known to be the second phase or the new womens 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).

17

The womens 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 womens movement was
criticized by feminist representing the dalit women, minority women and also the
disabled women.
Gopal Guru (1995) highlights the dalit feminists 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 womens
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 womens perspective Anita Ghai (2002)
illuminates on the darkness that surrounds the issues related to disabled women. Ghai
argues that the womens 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
1980s and early 1990s (ibid, 2007, 111). It is in this context that the feminists
belonging to the womens 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 womens reservation in the parliament. Nivedita Menon (2004)
highlights feminists and caste based arguments in support and against womens
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 her
work she talks about the colonization process that is at play in order to usurp the
18

understanding of a situation offered by the others in order to give ones 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 womens movements negotiation
with the legislature, executive and the judiciary. The law in this study assumes added
significance 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 womens
movement that greater numbers of laws increase the state power (Agnes, 1992).
As an introduction to understanding the particularities of womens 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.

19

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 higher
value compared to the value of the other category. Smart argues that the categories
having subordinate value are the ones 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 Foucaults 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 Foucaults 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 womens sexuality is measured with reference to the male
sexuality which is phallocentric in character. There is a total disqualification of
womens 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 would
mean that law helps in creating binary opposites which renders womens experience
20

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 womens 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, 3234).
21

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 dont need it (ibid, 1987, 39). Mackinnon at this moment talks 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 Mackinnons 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
22

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. One
very 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 mens right towards the discretion of his property as against
the womens right to not be commodified. The Act did not prohibit the transaction of
dowry but only objected to it when it was demanded. Womens 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 definitely
cases where a women have been given justice, however it has to be understood that
23

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 have
tried to identify certain issues within the Indian feminist politics since the 1980s.
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 dowrys 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, Womens Movement and The Response of
the State. Here, I attempt to capture the trajectory of the womens 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, I
have looked at the Lok Sabha debates on the Dowry Prohibition Act 1961, which is
24

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.

25

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 womens 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 latterdraws 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 womans 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.

26

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 into
the 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 Adams 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 womans body. It is only the notion
of worshipping women as mothers that has come to be accepted widely as a valued
27

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. Geethas (2009)
account of religious and scientific explanations of womens 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 these
notions 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 Womens 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 womens 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 states 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
28

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 womens
question from therefore front?
According to Radha Kumar (1993) though the early nineteenth century had
brought in the womens question but it was nevertheless taken up by the men. It was
only in the early twentieth century that autonomous womens organization started
developing and by the mid thirties and forties fully fledged womens activism was
constructed (ibid. 1993).
Radha Kumar (1993) in her work tries to highlight the nature of the womens
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 womens 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 eighties
saw the rise of demands by the womens movements asserting their claims over the
29

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 womens movements engagement has travelled from the midnineteenth centurys preoccupation with the process of codification to the early
twentieth century womens movements engagement with codification as well as its
implementation (ibid, 1993, 5). Kumar (1993) says that in order to understand the
extent of womens 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 womens sphere) were used to
invoke nationalist sentiments (ibid. 1993).
The colonial state and the postcolonial state show certain signs of continuation
as 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 womens
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
30

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 to
states 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 is
individually loaded with the feelings of contentment and guilt at having either
successfully managed the married life or having ended it up before death and in the
first life itself respectively. All the major religions practiced and propagated in this
country revere the institution of marriage attaching utmost sacredness to it and
therefore each of these religions has their own views about it. While the Hindus view
it as a Sanskara and a Contract, Muslims as a Contractual Union, the Christians
consider it as an Indissoluble Sacrament (Agnes, 2011).
When we take into consideration the passing of the Hindu Code Bill both
amidst widespread protests and support, we see that there were a number of
codifications taking place with an attempt to reform the Hindu Laws, which now
31

made polygamy an offence. It further made marriage a dissoluble contract between


the consenting parties and it also extended the right to remarry to both men and
women. The Hindu Succession Act 1956 gave daughters the right to inherit their
fathers self acquired property thereby raising their position to the rank of class 1 heir.
For the first time wives, mothers and wives of pre-deceased son, grandson and great
grandson were made class 1 heir (Agnes, 2011, 19). There exist now a set of laws to
protect the interest of the women belonging to the Hindu religion. However as will be
seen in the coming pages, it is definitely not prudent to see these laws in an uncritical
fashion. The codification brought in great amount of protest from the conservative
sections of the Hindu society calling it discriminatory that only the Hindu religion
has been targeted by the state for intervention through statutory law, and the minority
religions have been favored, by being left to regulate themselves according to their
own customary practices. The rights of the Muslim men who were allowed to marry
for four times, had the right to unilaterally give divorce to their wives by pronouncing
triple talaq, and did not have to pay maintenance to their estranged wives after the
mandatory payment during the three months of the iddat period and after clearing the
payment of the Mehr (an amount which is settled at the time of marriage), were often
cited as having been left untouched. The Muslim woman on the other hand has a right
to inherit property but it does not give her the status of a sharer, it in fact gives her the
status of residuary inheritors. Again when we take up the laws regulating the lives of
the Christian men and women we see how regressive these laws are for the Christian
women. The Christians, governed by the Indian Divorce Act 1869, which made it
literally impossible for a Christian woman to get divorce from her husband. Section
10 of the Act requires the wife to prove cruelty and desertion in addition to the
grounds of adultery against the husband while the husband can easily get divorce on
the ground of adultery. It was until 2001, that the Christian couples who wanted to
get divorce amicably had to re-register their marriage under the Special Marriages
Act and then file a joint petition to get mutual divorce. However the Indian Divorce
Act was later amended and was made the Divorce Act which provided cruelty,
desertion and adultery as independent grounds for divorce to both Christian men and
women. In the matters of property the Christians were governed by the Indian
Succession Act 1925 which according to one of its provision allowed for the
existence of other Christian laws like the Travancore Succession Act 1916 and the
Cochin Christian Succession Act 1922. The Travancore Succession Act 1916 gave a
daughter one fourth of the sons share or Rs 5000, whichever was less and the Cochin
32

Christian Succession Act 1922 gave daughter one third of the sons share or Rs 5000,
whichever was less. The Travancore Succession Act however was struck down in the
Mary Roy case in the year 1986 (Agnes, 2011).
The codification of the Hindu laws which took place during the 1950s was
done in order to improve the position of the Hindu women. But did it really contain
such a benign element in it? Archana Parashar (1992) sees this process of codification
as an attempt by the government to homogenize the pluralistic Hindu society and it
seemed possible only through codification which would unite the Hindu nation. Is
this argument not similar to the arguments put forward by a strand of opinion which
opposes the Uniform Civil Code? We shall come back to it in the section where we
discuss the Uniform Civil Code. The new laws have been criticized by feminist
activists, lawyers, academicians in their own specific manner, but what is still
common among all the criticisms is that they hold that laws have not been interpreted
in a manner which is not patriarchal and hence are biased.
The distinction between the private and the public which is one of the core
elements of the liberal ideology tries to fix the extent to which the state should be
involved in ones life. This distinction believes that the states regulation is sought
and permitted only in the public sphere whereas the private sphere is to remain
unregulated by the state. The majority of the issues concerning women however
emerge from this sphere. The Marxist theory believes that womens suppression has
occurred due to the relegation of their work inside the house thereby rendering it
unworthy of recognition. Hence this theory believes that for women to enjoy status
equal to that of men they shall have to join the workforce and wage a struggle against
capitalism, which is seen as one of the major reasons behind making womens work
unproductive. The liberal feminists argue that it is precisely this distinction between
the private and the public that has made it difficult for the state to intervene in the
private sphere of the family and bring about equality and justice in it. There is a
Sexual Contract underlying the Social Contract which actually makes it
impossible for women to come into the public sphere and assert themselves as equal
with men (Pateman, 1998).
Can it than be said that the laws which have been codified will necessarily be
containing discriminatory and patriarchal elements and instead of bringing in any real
equality, is it actually just reaffirming the dominant ideologies? When we take up the
issue of monogamous marriages we actually find that there are various cases in which
the Hindu womens claim for maintenance on the grounds that their husbands have
33

remarried are not upheld because of the lack of evidence to prove their husbands
second marriage which are many a times conducted according to customary rituals.
This is precisely because the courts accept the standard form of marriage which
makes it mandatory for the vivaha homa and saptapadi to take place, deriving it
from the upper caste Brahmanical norms. Such a regulation in fact places women in a
far worst situation in which they run the risk of losing their married status, and be
degenerated into the level of ones keep and prostitute. In fact according to Flavia
Agnes (1995) this has deprived women in polygamous marriages the safeguards
which were there prior to the amendment, when polygamous marriage had legal
recognition.
Let us now take the instance of divorce in case of Muslim women, which
makes it really difficult for the women to survive economically and not fall into
destitution. The dichotomy between the private and public gets reflected in a clear
manner in the controversy around the Shah Bano case in 1985. It finally led to the
decision that divorced Muslim women cannot make use of the Section 125 of the
Cr.P.C. This was the result of the tussle that happened because the Supreme Court
tried to intervene into a matter (divorce) which is within the purview of the personal
laws governing the Muslim religion. However this case is not an ordinary case in
some other sense as well, which we shall take up in the section in which we discuss
the Uniform Civil Code.
The cases pertaining to the custody and guardianship tells us how the state and
its legal machinery accords a secondary status upon women, by considering the father
of the child as the natural guardian, and mother as the custodian up till a certain
young age of the child. After which the court gives custody to the parent whom it
deems fit, keeping in consideration the overall development of the child. Here too the
father has greater chances of winning the legal battle because of his generally better
financial position. The Hindu Minority and Guardianship Act of 1956, which give
Hindu women the status of the legal guardian comes with a clause attached to it, and
that isthat the mother is the natural guardian but only after the father. So we can
see it clearly that the laws are actually in line with the dominant patriarchal
ideologies.
According to Nandita Gandhi and Nandita Shah (1992) the maintenance claims
which are made by women based on legal grounds actually gets thwarted on the same
legal grounds due to various technical errors. Firstly, how does the court and law
arrive at an adequate amount? How is the quantum of maintenance to be arrived?
34

Secondly, the husband generally evades paying maintenance after some time. The
case against the non-payment of maintenance would again be a long drawn one
involving great deal of expenses. The wife becomes helpless in such a situation.
Thirdly, the husband can create technical loopholes by disclaiming a legal marriage
and hence free himself from paying any maintenance (ibid, 1992, 238).
Take into consideration the condition of women who are divorced without any
adequate maintenance and are also not able to get a share of their parental and
ancestral property. Though the Hindu Succession Act 2005 have been made, which
gives equal share of property to both sons and daughters, but when we look at the
actual scenario, it is only a small section of women who are enjoying the benefit of
such legislation. In fact there are various peasant communities where the women are
not allowed to enjoy property rights. According to Prem Choudhury (1989) the
refusal to give any control over property and thereby economy is one of the major
reasons behind gross violation of womens rights in these societies (ibid, 1989). Bina
Agarwal (1996) makes suggestion about joint pattas in the name of village women,
in order to give them some kind of ownership right and an amount of economic
independence. The case of Muslim women who gets half the share of their brothers
is justified in the name of Muslim mens responsibility to pay Mehr and maintenance
of the children, but what about protecting the rights of the Women who get divorced
and have no resource at her disposal?
The Indian Constitutional guarantee to the people of their religious freedom
has actually become an impediment in assuring the womens status as an equal
citizen in the country. The limits of the state in interfering with the religious practices
have left the lives of women in great difficulty, under the patriarchal and dominant
religious ideologies determining and governing their lives. It is important for us to
understand that the allegations and accusation of discrimination and subjugation
which the minority communities make against other communities are the same
allegations which some members within their own community make against them. It
is generally the women who have to face such internal discriminations. Since there
are not adequate safeguards for women within the personal laws, therefore it makes it
relatively easier for men to commit crimes against women which are mostly sexual in
nature. These forms of violence deny women the autonomy of their body. The binary
between the public and the private sphere has given these forms of violence a
personal character which makes it even more difficult for the woman to get justice in
the public sphere through the legal machinery. In the coming section, we shall see
35

some forms of violence that are committed against women. Due to the limited scope
of the chapter we will be taking up only some selected forms of violence such as
rape, domestic violence, and Sexual harassment at the workplace while keeping in
mind that all the other forms of violence are equally serious and therefore warrants
some meaningful discussion.
VIOLENCE AGAINST WOMEN
There are laws against rape and domestic violence, guidelines to prevent sexual
harassment at the workplace, but do they actually work? According to Menon (2004)
the discourse about rape which is produced by the feminist and legal practices, is
based on two assumptions. The first assumption is that the law needs to be made
more reflective of the womens experience and once this is achieved, it will be able to
deliver justice to the women by attacking the misogynistic values of our culture and
the second assumption is that the body is natural and sex exists prior to all other
discourses (ibid, 2004, 106-107). She argues that the law works by fixing meanings
and creating uniform categories which makes it difficult for the law to understand and
reflect on womens experience which is shaped by interplay of various factors. It is
therefore possible that the womens experience may get rendered as sterile in the face
of rigid codification that is done under the law (ibid, 2004, 107).
The narrowness of the definition of rape has been troubling the feminists for a
long time now. The legal machinery recognizes only successful penile penetration as
rape. All other forms of penetration done by finger or other objects like bottle, stick,
and rod, etc., are not considered to be rape. When one looks at the debates during the
early 1980s in the Lok Sabha, around the demand for changes in the rape laws which
got a momentary push due to the unacceptable verdict of the Supreme Court in the
Mathura rape case, one will be able to chart out three fundamental issues around
which the debates revolved. The three issues can be classified as the following: the
raped women as the stigmatized creature as against the normal women, the chaste or
the real woman as against the unchaste or the unreal women and the married woman
against the unmarried woman (Gangoli, 1996, 336; Baxi, 2000, 1197).
Such a distinction made by legal discourse actually makes the idea of a
womans autonomy over her body redundant in the language of law and thereby
reduces the chances of any kind of progressive judgments based on the dismantling
of the existing structures of power. At best the decisions are based on the notion of
36

the importance attached to the idea of purity, chastity and virginity in the lives of the
Indian women. The ineffectiveness of the laws in the lives of women can be said to
be because of its myopic vision of justice. It works under the strict binaries of either
abstract equality between men and women, or by making protective discrimination
favoring women. The second recourse is laden with the weight of protecting the
women due to its paternalistic character. This is the sameness/difference dilemma
which is riddled in the legal machinery. It is in this context that the notion of
substantive equality proposed by Ratna Kapur and Brenda Cossman (1996) comes
up. This approach believes not in the equal treatment under the law but on the
equality of outcome. In order to achieve equality in the outcome, the law has to at
times take recourse to sameness approach and at times has to take corrective
approach in order to correct the disadvantages (ibid, 1996, 303-306).
Feminists like Catherine Mackinnon and Flavia Agnes express their
apprehensions regarding rape laws. Mackinnon (1987), in fact suggests that rape
should be made a civil offence, and not a criminal offence, thereby leaving the legal
procedures under individual control and not under the control of the state. The
changes brought in after the amendments have led to fewer convictions according to
Flavia Agnes (1992). Agnes cites the Immoral Traffic (Prevention) Act 1956 which
allows the police to pick any women out in the night for questioning. She points out
that the purpose of the amendments has been to make the punishment stringent
without however emphasizing on the surety of conviction. Also important is the fact
that changes made has been done in tune with the patriarchal set up of the state. She
believes that by making newer and more laws we are actually letting the state usurp a
great deal of power (Mackinnon, 1987; Agnes, 1992). With regard to the rape laws,
the demand for placing the onus of the burden of proof on the accused has only been
accepted in the case of custodial rape. The Section 228A which penalizes the
publication of materials related to rape trials was actually based on the concept of
conserving the chastity of women, as a result leading to the censorship of the press,
which can be used as medium to keep people vigilant against the arbitrariness of the
state (Baxi, 2000, 1196-1200, Flavia Agnes, 1992).
On 23rd December 2012, a three member committee was set up which was
headed by the former Chief Justice of the Supreme Court, J.S Verma in order to make
recommendations for changes in the criminal law dealing with the sexual assault of
women. It was set up after the horrifying incident of the rape of a physiotherapy
student, who has been given a fictional name Nirbhaya by the Indian media in order
37

to maintain the victims anonymity. The incident took place on 16 th December 2012
in a moving bus in which she was accompanied by a male friend of hers. When the
friend protested he was beaten till the time he lost his consciousness, and the girl was
by then being gang raped by one juvenile and the rest three to four adults. She was
not just raped; in fact her vagina and other internal organs were ruptured when her
tormentors inserted heavy iron objects into her vagina. They, later on dumped both
the victims on the roadways in a complete naked state. Nirbhaya lost the battle for her
life soon after that. Following this episode there was widespread protest in the capital
and also other parts of the nation against the ineffectiveness of the state and the law
when it comes to the sexual assault cases. The committee made suggestions that the
gradations of the sexual crimes be retained according to the 1860 IPC. The committee
suggested that rape be maintained as a separate crime and also it suggested
broadening the definition of rape to include all sorts of non consenting penetrative
sexual acts. The committee made suggestions that non consenting sexual encounters
within a marriage be considered as marital rape which is not considered so as yet
(PRS Legislative research, 2013). The demand made by the committee regarding
marital rape has been made by feminists time and again but to no avail. The Indian
state and the legislature seem to have aversion towards the concept of marital rape
due to the patriarchal ideology. The committee also made recommendations for
reform in the polices attitude towards the victims of sexual crimes. It tells about
making the police sensitive towards the victim by proper training. Further it
suggested thatthe victims should be able to file FIRs online. If any person from
the public comes to the victims rescue, she should not be treated as wrong doer.
Further it states that the police stations should install CCTVs. The committee also
suggests increasing police patrolling (ibid, 2013). The rejection of the state to
acknowledge rape within marriage only reaffirms the point made by Agnes that the
state does not intend to destabilize the patriarchal norms of the society. It does not
want to meddle with the established status quo of the society.
The norms of femininity and masculinity are so much a part of the
commonsensical notion (V.Geetha, 2009) that even a slight deviation from those
norms would be taken as an act of nonconformity and resistance which needs to be
fixed and straightened. According to Pratiksha Baxi (2000) these kinds of
assumptions were evident in debates around the amendment of the rape laws where
great amount of reflections took place on the credibility of the accusations made by a
victim. Opinions and assumptions ranged from accepting that no real woman would
38

falsely accuse anybody of rape for the fear of being stigmatized, to concerns about
certain immoral women belonging to the lower castes and class with loose morals
falsely implicating men belonging to respectable positions. The second concern was
one of the reasons why there was a refusal to legislate on power rapes which was a
motion moved by Geeta Mukherjee (Baxi, 2000). The refusal to acknowledge marital
rape by the law helps in reaffirming the conviction among the feminists that law
instead of acting as a neutral arbiter, is actually acting as the agent of the patriarchal
society by making its women confirm to the dominant norms regulating their lives or
else face the music. Refusal or the attitude of unwillingness on the part of law to see
rape as a kind of structural violence upon women by men (Baxi,2000) and a kind of
physical violence comprehensible within legal discourse, goes on according to
Menon (2004) to further mystify sexuality as the truest deepest expression of the
self (ibid, 2004, 141).
Violence against women does not end here. According to the National Crime
Records Bureau (2011), crime against women during the year 2011 increased by 7.1
percent over the year 2010 and 23.4 percent over the year 2007. The NCRB says that
there has been an increase of 27.7 percent of cases under the Dowry Prohibition Act
in the year 2011 compared to the previous year. It also says that there has been an
increase of 2.7 percent of cases under the Section 302 and 304B of IPC which deals
with the cases of dowry deaths. Further there has been an increase of 9.2 percent in
the rape cases in the year 2011 as compared to the year 2010. However we must keep
in mind that these figures only tell about those cases which were reported. There are
number of incidences which go unreported due the fear of stigmatization and
humiliation driven by the patriarchal ideology (NCRB, 2011, downloaded from
ncrb.nic.in on 08.05.2013).
The refusal by the state to enact laws protecting women from marital rape has
only given men the freedom to commit severe crimes against women within the
confines of the four walls of the house. During the 1980s when there was wide
spread protest against dowry and rape, it was believed that the violence perpetrated
on women were because of dowry and that if dowry was curbed the problem of
domestic violence would be solved. Section 498 of the IPC which protected women
against domestic violence could not be used by women in a more meaningful way
because of the narrow scope of the section which linked domestic violence with
dowry and also gave the degree of injuries which would be considered severe (Agnes,
1998). These kinds of legislations lay bare the double standard that the legal
39

discourse assumes. It shows how the state confirms to the patriarchal norms and not
just this, it in fact codifies these norms by according to them legitimacy under the
legal discourse. The fact that it decides to ignore the various forms of domestic
violence, for instance mental cruelty, verbal abuse, physical torture not necessarily
deriving out of dowry related issues, once again confirms the myopic vision of the
legal discourse. Gradually with increasing visibility of the issue, the Protection of
Women from Domestic Violence Act, 2005 (PWDV Act) was passed to protect the
interests of women in domestic relationship with male members. The Act covers only
women who include sister, daughter, mother, wife, second wife of bigamous
marriages and also women in live in relationships which were like marriages. The
term domestic violence includes physical abuse, sexual abuse, verbal and emotional
abuse and economic abuse. The Act fails to have any significant impact upon
womens lives because of the prevalent patriarchal norms of the society, which sees
domestic violence as natural. There is a societal sanction behind domestic violence
like wife beating, verbal abuse etc which makes it difficult for the women to register
complaints at the police station. In fact the police at times try to act as marriage
counselor, convincing the woman to go back and not break the matrimonial house.
There also has to be enough physical evidence of the domestic violence in order to
make the case. Without any thorough going transformation in the societal ideologies
based on familial norms, any real positive change in the lives of women based simply
on the body of legislations seems a distant reality. Violence against and on women
cannot be adequately understood without taking into consideration the forms of
violence faced by women at their workplace.
The issue assumed centrality during 1997 following the judgment in the
Bhanwari Devi rape case in Rajasthan. The case involved a sathin Bhanwari Devi
who was gang raped in the year 1992, by men belonging to the upper caste, when as a
part of Womens Development Program she was trying to stop child marriages. While
a criminal case against the rape was being heard by the Rajasthan High Court, public
interest litigation in the Supreme Court by a group of womens organizations
demanded that it was the duty of the state to give protection to its employees and
provide them with a violence free work atmosphere. They demanded that such an
unsafe and violent work atmosphere for women was against the constitutional
provisions of equality and non discrimination. Thereafter the Supreme Court in the
year 1997 upheld the position that sexual harassment at workplace was against the
constitutional provisions and therefore laid down a guideline for addressal and
40

redressal of such offences. These guidelines are famously known as the Vishakha
guidelines (Menon, 2004).
The guidelines specify that it is the responsibility of the employers to provide a
safe working environment to their women employees. The guidelines make it the
responsibility of the organization to take the required actions for the redressal of any
sexual harassment complaint that comes into its notice. The guideline has also tried to
define acts of sexual harassment. The definition includes any physical contact and
advances, any form of request or demand for sexual favors, sexually colored remarks,
showing pornography and also any other unsolicited physical, verbal or non-verbal
conduct of sexual nature. The employers of either private or public sector has to
circulate the definition constituting an act of sexual harassment. The rules and
regulations which are specified as required in the public sector should also now
enumerate the guidelines prohibiting sexual harassment and also state the penalties
attached to it if found guilty. The guidelines specify that when there is a complaint of
sexual harassment then the employer has to take the required steps for its redressal
beginning with the setting up of a complaints committee. The committee should be
headed by a woman and not less than half of its members should be mandatorily
women. In order to be not intimidated by any top level officer, the committee is
required to involve a third party preferably an NGO or one which have knowledge
about the issue (Menon, 2004, 144-145).
Menon (2004) in her work shows us that apart from the problems of effective
and unbiased implementation of these guidelines there are four major issues to which
she tries to draw our attention. The first issue comes up at the time of actual
formulation of the codes. There are codes which are being formulated under the
guidelines in order to understand which of the acts constitute act of sexual
harassment and subsequently their redressal. According to Menon the problem is
brought into light by the Saheli Report of 1998 which problematise the distinction
between gender discrimination and sexual harassment. The first phrase refers to
the anti women discriminatory policies, but according to the Report there is a close
relationship between the two. It says that sexual harassment finds an easy ground
when gender discrimination is so rampant. However according to Menon (2004), it is
important to maintain this distinction because gender discrimination according to her
is too amorphous to be legally delimited and also because there are various situations
which women find intimidating and affecting their productivity in a negative manner,
however they do not qualify the criteria of sexual harassment. The second issue that
41

she raises is with regard to the setting up of the committee. The committee here refers
to the complaints committee which is supposed to be constituted in order to look into
the matter of sexual harassment and reach to a solution. According to Menon, the
problem arises while deciding whether the members should be elected or nominated.
Nomination may lead to people with power getting nominated, who may in turn
reflect the interests of those who are in power. However the problem with election is
that it might lead to such an individual coming into power who actually confirms
with the existing norms. The third concern is with regard to the point that the
responsibility of formulating codes and setting up of the committee is on the
employer. It becomes an issue of concern under those circumstances where there is
no proper trade unions to keep a watch on the rules. Lastly, she says that the
expectation of the local supporters of the complainant to take the internal political
struggles into concern also proves constraining (ibid, 2004, 148- 154).
We have seen that these are some of the vital issues to be confronted in order to
make the guidelines effective. Moreover there is an increase in the concern of the
feminists that the guidelines fail to take into account the female workers belonging to
the informal and unorganized sector of work. In a country like India, with widespread
poverty, it has become almost a rule for majority of the women to engage themselves
in the informal sector; therefore after omitting such an important section from within
its purview, the guidelines should not expect to gain much.
We understand that the three kinds of violence which we discussed in this
section are not just the only forms of violence. There is no doubt that there are other
forms of violence; such as child marriage, sex- selective abortions, leading to the
killing of female fetuses, and then there is the problem of dowry and dowry deaths
which have not been addressed here since we will be taking up these issues in the
next chapter in a detailed manner.
To take this discussion further we shall in the next section try to look into the
debates around the Uniform Civil Code. The code as envisaged in the Constitution of
India (Section 44 under the Directive Principles of the State policy) is expected to
legislate a law which will be uniform in its application throughout the territory of
India, across people belonging to different religions. However what is being debated
is that the presence of so many different religious minorities compels us to ponder
upon the nature of the code. Will it be able to reflect the interest of all the sections of
the society, or will it just lead to the codification of the norms of the majority

42

community, thereby forcing these communities to follow the new laws, which will
then lead to a kind of conformity and not uniformity.
UNIFORM CIVIL CODE: UNIFORMITY OR CONFORMITY?
The conflict between the individual rights and the community rights comes up
yet again with regard to the Uniform Civil Code. It was the All India Womens
Conference which for the first time articulated the demand for a Uniform Civil Code
(UCC), which is mentioned as a goal to be reached in the Directive Principle of the
state policy. The demand for a UCC is portrayed as a requirement for national
integrity, which according to the advocates of the UCC is under threat due to the
presence of plural systems of legality. This claim is criticized by the minority
communities, as they view it as an attempt to impinge on their religious freedom.
In this section, we shall look at the debates around UCC, which gained
important dimension during the mid 1980s. It is the Shahbano case which has
become a landmark reference point in the debates on the UCC. Shahbano was a
married Muslim woman for 43 years, after which her husband drove her out of her
house to bring another woman in. The husband for the first two years paid Rs 200 a
month as maintenance, but it stopped thereafter. It is than that Shahbano filed for
maintenance under Section 125 of the CCP. Her husband argued that he had divorced
her and has already paid Rs 3000 as Mehr and after the iddat period was not
compelled to maintain her. Shahbanos counsel argued that there was a third type of
payment i.e. the Mataa which was due to her. The Magistrate ordered that Rs 25 to be
paid and the M.P. High Court raised the amount to Rs 179.20, which was a
considerable amount taking note of her husbands monthly income of Rs 5000. By
then the case had entered the Supreme Court where Shahbanos counsel argued that
the provision of maintenance was considered as righteous in the Koran. Her counsel
Daniel Latifi cited two verses from the Koran defending his argument. Finally the
apex court upheld Shahbanos right to maintenance, citing three reasons for it. One
was that both the Muslim personal law as well as the Section 125 Cr.P.C upheld
Shahbanos right to maintenance. Secondly, it was held that Section 125 could not be
held down by the religious barriers. Thirdly, the judgment was critical of the ways in
which the Hindu and the Islamic religious scriptures treat women in an unjust
manner. The judgment was met with great amount of criticisms from the liberals,
feminists and secularists. The judgment was resented by the Muslim religious leaders
43

on the ground that it was an attack on their community. The liberals, feminists and the
secularists criticized it on the ground that it was not required for the judgment to be
critical of the religious personal law when the case was of secular, criminal nature.
Radha Kumar (1993), points out that the feminists further criticized it on the
ground that instead of making a general observation about the condition of women
under the personal laws it was directed against the Muslim personal law in particular.
The Muslim communalist fraction demanded the repeal of the judgment and also they
demanded exemption of the Muslim women from the Section 125. The Hindu
communalists used this as a pretext of calling the Muslims anti women and
barbaric. As a result in the year 1985 August, a bill was laid in the parliament
asking exclusion of the Muslim women from the protection of the Section 125 of
Cr.P.C. Full of communal overtones, the case finally led to the passing of the Muslim
Womens (Protection on Divorce) Act 1986 which now barred Muslim women from
claiming maintenance under Section 125 of the CCP (Kumar, 1993, 159-165).
Radha Kumar (1993) highlights that, it is not that there were no such similar
cases that had come up earlier criticizing the Muslim personal law as being unjust
and upholding of the section 125 of the Cr.P.C. However it is the time around which
this case came up that has lent it such significance. It occurred during the period of
political turmoil resulting due to the assassination of Indira Gandhi and also the rise
of Hindu fundamentalism during the Babri episode. It was against these backdrops
that the Muslim community feared about their religion being under threat and
therefore started making vociferous demand to pass the Muslim Womens Bill 1986.
They saw the grant of maintenance under section 125 of the Cr.P.C as a challenge and
an attempt to override the Muslim personal law.
The decision on the formation of UCC is stalled due to the new notions of
secularism that is being adopted by the Right wing parties. Ratna Kapur and Brenda
Cossman (1993) argues that the Right wing parties believe in formal equal treatment
towards all the religion, and it is on this ground, that they justify their opposition to
the grant of special status to the minority communities and the state of Jammu and
Kashmir under the articles 30 and 370 respectively (ibid, 1993, 37). The demand for
UCC which was made during the Shehnaz Sheikh and Mary Roys cases also receded
into the back when the entire Shah Bano controversy was taking place. Let us look at
both the cases in brief.
The first case is about the various difficulties faced by a Muslim woman
because of the practice of talaq. In the year 1983, Shehnaz Sheikh of 26 years
44

brought into light her plight as a subjugated Muslim married woman. She was
contemplating about ending her life, when she decided she could no longer live with
her husband. The husband as a result of it pronounced triple talaq. Her plight
increased when she realized that it was very difficult for her to prove the legality of
her divorce since she did not have a written talaqnama. Her husband even after
giving her divorce tried to control her life. He in order to evade paying Mehr could
claim that he had not divorced her. It was then that Shehnaz decided to file a civil
petition in the Supreme Court pleading that her right as an Indian was being violated
by the Muslim Personal law. Her action resulted in the anger of the fundamentalist
Muslims who even threatened to kill her. However support was lent to her by the
Forum Against Oppression of Women. Gradually with time her petition underwent
moderations. It now pleaded for the changes in the Muslim Personal Law keeping in
line with the Kuran and the Indian Constitution (Gandhi and Shah, 1992, 236-237).
The second case deals with the Succession Act of the Christians. The Indian
Succession Act 1925, allowed the existence of the Christian Acts like the Travancore
Christian Succession Act 1916, and also the Cochin Christian Succession Act. Under
the Travancore Christian Succession Act, the right of daughters was limited to onefourth of the share of the son or Rs 5000, whichever was less. Again under the
Cochin Christian Succession Act, the daughters were entitled to one third of the share
of the son or Rs 5000, whichever was less. Mary Roy who was a Syrian Christian
was denied adequate parental property by her brothers under the Travancore Christian
Succession Act. She was a divorced woman with two children to look after. Finally in
the year 1983 Mary Roy went to the Supreme Court contending that the Travancore
Christian Succession Act violated her constitutional right to equality (ibid, 1992, 245246).
According to Radha Kumar (1993) feminists agitating for Muslim Womens
right to maintenance, after the passing of the Muslim Womens Bill came to realize
how a community in danger resorts to fundamentalist assertion of the self.
According to Kumar, the Indian state chose to accommodate communalism by
giving out fundamentalist concessions to the minority community (ibid, 1993, 169).
Kumar through this statement tries to capture the feminist understanding of the Indian
politics at the time of Shahbanos case which took place during the period of
communal hostility between the two religions i.e., the Hindus and the Muslims. The
feminists analysis of the Indian States decision to enact the Muslim Womens Act
1986, was because of its reluctance to take action against the Ram Janmabhoomi
45

agitators who were Hindus, so it had to accommodate the communal sentiments by


giving them fundamentalist concessions in the form of the above mentioned Act
(ibid, 1993).
Under these situations where women are increasingly seen as constituting their
religious identity, and in turn the religious identity being constituted through its
women ( Kapur and Cossman, 1993); is it then the right moment to seek redressal of
the grievances of the women through the formulation of the UCC? The
fundamentalist attitude of the Hindu Right wing carrying on the notion of the Hindu
woman certainly creates apprehension in the minds of the women belonging to the
minority communities. It also puts the male members of those communities at unease
and makes them insecure as they see these actions as an act of curtailment of their
religious freedom. The Constitutional debate upon the issue of majoritarianism was
decided in favor of giving the minority communities with collective rights apart from
the individual rights that every individual would be entitled to. The fundamental right
to religious freedom was also highly debated in the first place in terms of whether it
would mean just the right to worship or will it mean the right to practice ones
religion. There was opposition to making practice of religion a fundamental right
based on the fact that several religions discriminated against women and the dalits.
Finally the decision was taken to make freedom of religious practice a Fundamental
Right. However this kind of a guarantee has been criticized by Shefali Jha (2008)
who points out to the fact that this right was incorporated in the name of secularism
but it nevertheless came with a price. She argues that they were given this right at the
cost of more effective form of political participation by denying them the right to
proportional representation.
This factor has grown to a large extent and now the minority communities are
in constant fear of being further marginalized. It is under all these compounding
factors that the Womens movements demanding the UCC have started to rethink
their stand. This according to Menon (1998) can be divided into five stands and they
are: a) compulsory egalitarian code governing all citizens b) reform within
communities with no state interventions c) reform within the personal laws as well as
legislation on areas outside the personal laws d) to make the egalitarian code optional
and finally, e) wherein all persons will be mandatorily covered under the egalitarian
laws however they will have the option of choosing between the two sets of law i.e.,
the personal and the egalitarian laws (ibid, 1998, 9).

46

However under the present circumstances of rising communal politics it is


difficult to say what kind of an end the UCC will see. It is also utterly difficult to say
whether it will lead to uniformity among the different religions or will it impose a
code based on majoritarianism, thereby forcing the minority communities to conform
to it.
The criticism that the invisibility of women in the public sphere is one of the
reason behind womens subjugation, and that one of the various ways suggested for
correcting this tendency is by bringing more women in the sphere of politics should
not be seen in isolation. Liberal feminists suggest that more and more women should
be brought in and that this would eventually lead to forming egalitarian laws
benefitting women. With some of these aims in mind there has been demand for
thirty three percent reservations for women in the parliament. However, there are also
oppositions labeled against it. In the following section we will see the various
grounds supporting and opposing the reservations.
RESERVATION FOR WOMEN
Article 15(3) of the constitution acknowledges the historical disadvantages that
women suffer and therefore enables the state to make special provisions for women.
This can be achieved through various affirmative actions. Giving reservations to
women in village panchayats and the municipalities under the 73 rd and the 74th
amendment act is a case in point. The amendments took place in the 1992 and made it
mandatory for the village panchayats and municipalities to reserve one third of the
seats for women.
The women representatives during the earlier debates around reservations for
women, thought it was unnecessary and that it would further underestimate the
women. The arguments which supported such a move were based on the facts that
parties informed by patriarchal ideologies were reluctant to sponsor women
candidates, that reservations would lead to greater amount of womens participation
and it was also believed that presence of more women in legislatures would change
the directions of debates and policies.
In relation to the issue of womens reservation Menon (2004) makes a
distinction between feminist arguments for and against reservations and caste based
arguments for and against reservations. She holds that feminists supporting
reservations base their argument on the basis that such a policy would help women to
47

get into politics and make pro women policies. There are also feminists who believe
that reservations would just be able to bring in those women who would be having
their political godfathers. In short it would lead to biwi-beti brigade in the parliament.
However on the other hand the castes based arguments for and against the reservation
policy are entirely different. The argument made against reservation is based on the
ground that it would lead to discrimination against women belonging to lower castesit is only the upper-caste women who would benefit from the reservations. The
support for the Bill, on the other hand, is based on the assumption that there should
be reservations within reservations promoting the interests of the women belonging
to the lower castes (ibid, 2004).
The caste based oppositions is based on the rejection of women as a
homogeneous category, and lends a very interesting insight to this issue. It highlights
the internal contradictions that are bound to come up if we go ahead with the Bill in
the current form. The argument given by the left leaning feminists that it is important
that the Bill gets passed in the first place and that the issue of further reservations can
be taken up subsequently demands a careful scrutiny. In the current atmosphere of
NGOisation and Globalization, it is probable that the women representatives get
institutionalized and lose their vision. In fact women even after getting reservations
will be part of the political parties and they will have to endorse the party ideology. In
fact solution of the three member constituency will also have their own specific
problems. The size of the constituency will make it difficult to identify cases of
corruption; it will lead to greater struggle between three representatives over the
resources thereby making real progress difficult. The rejection of women entering
into parliament by Madhu Kishwar (1996) based on the naive assumption that the
Indian tradition is women friendly in the sense that it is always ready to implement
progressive laws for the benefit of women. Menon (2004) criticizes Kishwar for
overlooking at the fact that these legislations are informed not by any amount of
genuine concern for women but are in fact used to codify, rigidify and thereby reestablish the prevalent patriarchal norms (ibid, 2004, 172-173). Keeping this entire
debate in mind is important for us to realize that it is very difficult for us to imagine
an all womens party in the absence of any substantive reservation policy for women.
Is it too difficult to contemplate an all women reactionary political party till any
substantive reservation policy comes up? It will try to be critical of the current
political scenario from outside the government. Some would like to read this as any
other opposition party; however this is not what it shall be. There will be no electoral
48

defeat for them as this party shall not contest in the elections. This has to be a serious
endeavor in order not to be assimilated by the state. It shall function as a
consciousness raising body about the politics done around women. It is definitely the
politics of presence that is being done as against the politics of ideas (Phillips
1995). Demands are being raised seeking political recognition for women as an
identity but is it a possible claim to make such a definite demarcation between the
two? Does it not connote talking of women in ideological terms which is distinct
from the male ideology? This is an issue that requires further probing. As we have
seen in the caste based arguments against reservations for women that women is not
a homogenous category a claim that is one of the biggest dilemma that confronts the
entire ideology of feminism, in the next section we will try to identify certain voices
which speaks against the homogenizing feminist ideology.
WE ARE DIFFERENT
The ambiguity around the term Women is seen as proving difficult for the
feminists to articulate demands and raise voices on behalf of women. The
manifestation of this problem can be seen in the debates around the UCC and the
Womens Reservation Bill. There was increased assertion that the experiences of
women vary according to their social, economical, physical and historical conditions.
The concept of universal sisterhood came under scanner by feminists representing
different belongingness. One such dissent has been from the dalit feminists. Gopal
Guru (1995) gives two reasons for the marginalization of issues concerning dalit
women. These he calls, the external and internal factors. The first one can be seen at
work when we see the dalit womens voices getting marginalized under the
homogenizing attitude of the non-dalit forces. They tend to homogenize the
difference of the non dalit forces. On the other hand the dalit women also have to face
marginalization due to the patriarchal attitude of the dalit men. They see it just as an
extension of the marginalization that the dalits are subjected to by the upper castes.
He believes that the particular social belongingness of an individual is crucial for the
authenticity and validity of their claims. It therefore makes less valid and less
authentic the non dalit voices representing dalit women. This is precisely the reason
why Guru believes that the dalit women should talk differently. However as a non
dalit feminist, Sharmila Rege (1998) is not at ease with Gurus assertion on the
ground that such kind of a different talking might just degenerate into the narrow
49

zone of identity politics. She displays faith in the transformation of the subjectivities,
which is why she says that there is a need to educate different womens organizations
about the dalit womens experience and their version of History in order not to be
isolated. This argument believes in the possibility that non dalit feminists may be
made into dalit feminists, thereby emphasizing not just solely on talking differently
but also on the need to educate the non dalit feminists of the experiences of the
marginalized dalit women.
It is true that such a division within feminism is making it difficult to locate the
subject of feminism itself, however in order to form a homogeneous identity of
women, how far should feminism try to find common grounds of subjugation of
women across different caste, class, religion etc? How far is complete transformation
of subjectivities possible? It is one thing to educate oneself about others experience
but another to make it a part of oneself by the process of transformation that Rege
talks about. Again the concern that she raises about dalit women talking differently is
undoubtedly important, but at the same time it is hardly a sufficient ground to reduce
the importance of the different voices of the dalit. Moreover it becomes difficult to
understand how the transformation and education of the non dalit women will happen
in the absence of a different talking by the dalit women. After talking about the issues
of dalit women, we now come to the issues of disabled women. The marginalization
of their voice has become one of the major concerns of the disabled women.
Anita Ghai (2002) in her work focuses on the marginalization of the disabled
women from both the womens movements as well as the disability movements
perspective. She argues that the experiences of disabled women are neither
adequately taken into consideration by the disability movement nor the womens
movement. The prevalent justification that is given by the womens movement for the
inadequate attention given to the issues of disabled women is that they were not an
active part of the womens movements. This kind of a justification does not go well
with Ghai as she believes that such kind of participation was not possible for disabled
women owing to the unavailability of the special faculties required by disabled
women for their public visibility. In fact one of the most important reasons for the
invisibility of disabled womens issue in India is that there are a lot of issues
concerning feminist movements in India and much less resources, hence womens
movements tend to take up issues which cater to generally large section of women.
In order to address the issues of disabled women, Anita Ghai (2002) suggests
that there should be an interaction between the feminist discourse and its practice
50

with the disabled women and the disability movement in order to develop an
inclusionary framework comprising disabled women in both theory and practice.
In this section we have seen the assertions made by these marginalized sections
that they experience the world differently and that is because the society and the
world views them differently by considering them as the other. This makes us see
how a patriarchal society constructs certain norms as ideal and any deviation from
these norms are considered as a distortion and thereby constructs them as the other
and tries to either marginalize them or homogenize them within the norms of the
ideal. In the case of dalit women, on the one hand it is the discourse of caste which
marginalizes them against the upper caste ideal women while on the other hand it is
the discourse on body that constructs the able body as the ideal norm and the body
with physical deformities as the deviation. Now the question is that will law come to
their rescue.
CONCLUDING REMARKS
It seems important to me to reinstate that the discourse on law has not been
able to challenge the dominant discourse of patriarchy. However it is important to
acknowledge that time and again it has made itself manifest in laws and judgments
which are seen as instances of justice for women. This assumption is however
criticized when it is brought into light that these judgments reinforce patriarchal lines.
The law in this sense becomes a subject of criticism by the feminists. According to
Menon (2004) the interactions between law and women have been viewed by
different feminists in different ways, which she tries to put in the following manner.
There are feminists like Nandita Gandhi, Nandita Shah, and Nandita Haskar who
claim that they are not under any illusion that law is genuinely emancipatory;
however they believe that it can nevertheless be used as an agent for bringing the
womens issues to the front, with a hope of getting short term legal remedies. On the
other hand we have a stand which believes that the increase in the number of laws is
actually giving the state unrestrained power against its citizens. Flavia Agnes, Madhu
Kishwar and Ruth Vanitas work reflect this argument.
According to Menon (2004), there is yet another line of criticism coming in
from feminists like Gail Omvedt, who believe that lobbying for laws by the urbanbased groups is wastage of energy. She believes in mass-based militant politics (ibid,
2004, 5-6). However we find that Madhu Kishwar (1996) nevertheless thinks that the
51

Indian culture is women friendly as it is always ready to make progressive laws for
women.
There is yet another argument which seems to me the most interesting one
which is made by Nivedita Menon (2004). She argues for radical politics in order to
reformulate meanings based on the feminist commonsense. To reach there she says
there is a need to work within communities to challenge the dominant, hegemonising
as well as homogenizing entities and develop an alternative to it. This according to
her needs to be carried on with other transformative strategies, of which law can be
one. However law should not be allowed to appropriate the former task of radical
politics.
One thing that I find striking in the argument by Menon is that it has the
potential of transforming the radical politics into a grass root level mobilization to
usher in changes from the below rather than aspiring to bring in changes from the
above by making more and more laws without any changes being made in the all
pervasive patriarchal ideology which subjugates and marginalizes women based on
the distinctions that they make between the public and the private, the market and the
household, the ideal and the distorted and finally as a consequence of all these
distinction, the distinction that they make between a man and a woman.
However I should make it clear that by no means am I seeing Menons
argument as a solution to the dilemmas that we have tried to discuss in this chapter. In
fact according to me the problems involved in the interaction between women and
law is not in a position where the application of any prescribed solution could work
without problematising the alternative that is being suggested.

52

CHAPTER THREE
THE INSTITUTIONALISATION OF DOWRY AND ITS
MODERN MANIFESTATIONS
In the earlier chapter we looked into the various issues confronting the
womens movements engagement with law. The womens movement was also traced
back to its pre independence period where-in the issues were mostly taken up by men
interested in bringing social reform (Kumar, 1993). However it is significant to note
here that it was not just the reformists who were taking up the womens question,
since there were others who were more keen about reviving the position of women in
India, which was based on the belief that the Indian tradition had a rich past
according great status to women, and also there was a strand which can be called the
modernists who sought colonial intervention for bringing in reforms regarding
women on modern lines through legislations. This kind of sharp distinctions,
according to Partha Chatterjee (1989) was due to the dichotomy between the public
and the private which was seen as the world and home distinction. As has been
already discussed in the previous chapter it was this distinction between the inner and
the outer sphere, the home and the world, that- resulted in the gradual fading of the
womens question towards the end of the nineteenth century. Having said so, we shall
have to bear in mind that there were various complexities and internalities involved
in such a separation between the three stands discussed above.
In this work I have taken up the issue of dowry in order to understand the
terms on which the womens movement has negotiated with the state. In the current
context of consumerism, the practice of dowry has assumed an altogether different
character. The increasing number of dowry deaths towards which the states attention
was drawn by the womens movement in the 1980s is a subject worth investigating.
Here we must note that the effectiveness of the already existing Dowry Prohibition
Act of 1962 can be said to be negligible. In such a situation it became imperative for
the womens movement of the 1980s to take up the issue of amendments to the Act
with great vigor. We shall discuss about the interaction between the womens group
and the state on the question of dowry law and its amendments in the coming chapter.
However in the present chapter it is the question of the proportion of the practice of
dowry that it has assumed, is what we are concerned with. We try first of all, to see
how the practice of dowry got entrenched and institutionalized in India.

53

Regarding the establishment of the practice of dowry, Ranjana Sheel (1999,


34-62) speaks of the process of its institutionalization. This chapter borrowing on a
great deal from Sheels work will discuss about the process of the institutionalization
of dowry. In addition to the process of institutionalization, I argue here that dowry
can also be seen as a 'condition for a valid marriage. Hence in this chapter we will
see dowry as being both institutionalized as well as a condition for marriage. I also
argue here that it is the institutionalization of marriage, in addition to the
institutionalization of dowry along with the lack of agency among women which is
one of the important factors behind their marginalization and their position as a
dependent until death. Be it the traditional and voluntary stridhan or the
contemporary and involuntary dowry, women are never the owner of these because
they dont have agency. In such a situation of powerlessness, even equal succession
rights are hardly able to show real results. Now to reiterate the central question of this
work- is progressive legislation enough to bring about social, economic and
ideological changes in a society? Will the state be able to deliver its stated objectives
of gender equality? What does it need to bring real empowerment and not mere
security and welfare for women?
The chapter attempts to understand these questions and dilemmas and therefore
accordingly it has been divided into six sections. In the first section we will try to
understand what dowry is. Starting with it we will then go on to understand the
underlying reasons behind its prevalence. Then second section will be a comparison
between stridhan and dowry. Are both the same? The third section will talk about the
ultimate importance of marriage as an institution in the life of a woman. Whether it is
stridhan or any other form of limited estate, it is only a married woman who is
entitled to it. We must here understand about the socio-cultural, political and
economic reasons behind the disinheritance of daughters though the law gives equal
property rights to both male and female child through the legal amendments to the
Hindu Succession Act in the year 2005. The fourth section will talk about the process
of institutionalization of dowry. It will also talk about how dowry went on to assume
the status of a condition for a marriage. The fifth section will take up the issue of
dowry in the contemporary context of consumerism. It will see if dowry is only a
Hindu phenomenon or does it exists among any other religions. In the sixth section
we will examine the relationship between women, land and dowry. And then we will
conclude.

54

With this introductory layout of the chapter, we shall now move on to its first
section, which is a note on dowry.
UNDERSTANDING DOWRY
The Dowry Prohibition Act of 1961 in its Clause 2 defined dowry as, any
property or valuable security given directly or indirectly, by any one party to a
marriage to the other party at or before or after the marriage as consideration for
marriage of the said parties. The definition further allows presentations of any
amount to be made in the form of cash, ornaments, clothes or any other articles which
shall not come under the ambit of the dowry law unless it is made as consideration
for the marriage of the said parties. The 1984 amendment in the 1961 Act made a
slight change in the definition by substituting the term as consideration for marriage
with the term in consideration for marriage. Such a change in the definition was
widely and uniformly criticized as being unclear and vague. According to Ranjana
Sheel (1999) this and various other equally unmindful changes brought about by the
amendment were being criticized by various womens movement as having defeated
the basic objective of the amendment and [ignored] the active and informed social
movement which has preceded the introduction and amendment before parliament
(Sheel, 1999, 182).
The problem with the definition is that the law does not see dowry as
inherently bad and devaluing for the women. What is bad and illegal is to demand
dowry. When we look into the definition of dowry we can see that it is defined in
terms of the goods allowed to be transferred to a girl essentially at the time of her
marriage. The emphasis is on retaining the legality of gift giving at the time of
marriage, which is perceived as a way of securing property rights for a woman. The
legality of the gift giving had to be maintained in order not to give the daughter legal
property rights. There was very less emphasis put on the conditionality aspect of
dowry. It was not seen as an essential condition for marriage. I have discussed this in
the third chapter while going through the Lok Sabha debates behind the Dowry
Prohibition Act in the year 1959. Even when it was seen as linked to the marriage the
law makers did not have problem in it, unless it was extorted out of the brides father.
They were of the opinion that dowry is a womans stridhan and it is therefore not
bad. It was such an understanding of dowry among the law makers that they went on
legalizing all kinds of transactions involving cash, ornaments and other goods; in
55

other word they gave legal sanction to dowry. The law does not set any upper limit
on the amount on the gifts, which goes on to facilitate the process of dowry demands
by making it possible for the givers and takers of dowry to hide it under the cover of
gifts.
What is to be noted is that such ineffectiveness of the law is because of the fact
that the law makers themselves hold the belief that dowry is a kind of stridhan that a
woman is entitled to. According to them it is only the present form of extortion that
the customary practice has assumed that it has become a problem. There are scholars
who see dowry as some kind of a pre-mortem inheritence (Goody and Tambiah,
1973). According to them dowry
connotes female property or female right to property which
is transferred at a womens marriage as a sort of pre-mortem
inheritance. Dowry also connotes, in complementary fashion that
property is transferred together with a daughter so that she is
enabled to enter into marriage. In other words, a daughter and her
dowry become vehicles for setting up relation of affinity between
the brides family and the husbands family (Goody and Tambiah,
1973, 64).
There is also another significant interpretation of dowry coming in from Indira
Rajaraman (1983) in her article titled Economics of Bride-price and Dowry.
Rajaramans (1993) interpretation is seen by Ranjana Sheel (1999, 24) as a purely
economic interpretation of the practice of dowry. Rajaramans work is seen as
polemical and ahistorical representation of dowry.
Rajaraman (1983, 275-279) explains dowry as a negative bride-price in the
organized sector. She sites womens lesser involvement in the economically
productive labor as a result of this shift from the bride-price to the dowry. She argues
that the shift from bride price to dowry has to be understood in terms of the valuation
of the constituent elements of the initial bride-price payment (1983, 276). Rajaraman
(1993) argues that it is only when the contribution of a woman is measured to be
below the cost of her subsistence that the concept of compensatory price reverses
from the initial bride price to the payment of dowry. She believes that there are two
kinds of factors effecting womens participation in the labor force, which are
exogenous and endogenous. Under the former, the decline might be the result of the
decline in the services provided by women. However in the later the reason behind
womens lesser participation is that it is because of the increasing prosperity among
56

the land owning communities, which buy the leisure of their women. There are
various criticisms which are labeled against Rajaramans argument on the ground that
it is bereft of the historical and socio-cultural underpinnings behind the shift from
bride-price to dowry (Sambrani and Sambrani, 1983 and Aziz, 1983). They have
criticized it on the grounds that it fails to explain the prevalence of dowry in those
cases where the woman is earning. Aziz (1983) could not find proper explanation
behind the uniformity of the dowry amount demanded. Sambrani and Sambrani
(1983) points out that Rajaraman did not take into account the contribution made by
women in the domestic sphere. However, Rajaraman in reply to all the criticisms
directed towards the arguments in her paper says that she is in no ways saying that the
rate of dowry demanded would be uniform among the organized and the unorganized
sectors. She argues that it is only in the unorganized sector that the demands would be
more or less uniform since the evaluation of the worth of womens contribution as
against the cost of her subsistence would be based on more or less the same indices
for the entire unorganized sector. She is definitely not saying the same thing for the
organized sector where-in she acknowledges the existence of bidding for the groom,
which will definitely result in different amount of dowry being asked accordingly. In
response to Sambrani and Sambranis doubts, Rajaraman says that she is definitely
taking into consideration the contribution made by women in the household, when she
talks about the evaluation which is being made with regard to the contribution versus
the cost of subsistence. Rajaraman argues that she has explained in her paper that a
shift from bride-price to dowry happens when the domestic contributions is valued
less.
Srinivas (1984), views that the increased leisure and the withdrawal of women
from work is because of the increased prosperity of the peasant classes. The peasant
turning into landowners with increased prosperity started keeping their women inside
their house trying to maintain the ideals observed by the Brahmin women. The logic
of negative bride-price is also not convincing since it is a fact that even working
women with high earnings are also required to carry a handsome dowry with them.
The practice of dowry is also seen as groom-price in the place of bride-price.
It is because of the fact that in order to get a decent groom, the girls parents have to
pay a huge amount of dowry. This is seen as bidding of grooms in the organized
sector wherein a person earning more and having good social status will be able to get
good dowry. However according to Indira Rajaraman (1983, 277) groom-price is not
the same as bride-price. On paying bride-price, one gets the ownership right over the
57

women but such is not the case with regard to the groom-price. There is no real
possession of the groom. According to her the debt that is taken to pay the bride-price
can be compensated by the labor of the women but the same cannot happen in the
case of groom-price.
Srinivas (1984) is giving more or less a generalized development which has
taken place with regard to dowry but when we look into Rajaramans work we find
that she is formulating her arguments based on more specific locations, such as the
distinction which she makes between the organized and the unorganized sectors of
labor. However, the discussions on dowry seem to be devoid of the political
dimension constituting it. The analysis of dowry in terms of its power dimension is
not much visible. The consequence of the lack of resource of women due to dowry
which reduces them to the level of a dependent and a subjugated human being is not
something which has been highlighted much in the discussion on dowry.
The discussion on Dowry can never be a simple one as it has been one of the
realities of a womans life. Dowry which has its origin in the kanyadana form of
Hindu marriage is seen as a bestowal of gifts (dana) along with the daughter by her
father at the time of her marriage infront of the vivaha homa. This kind of gifting to
the girl was known as her stridhan over which she had full right. The stridhan largely
consists of goods which are moveable in nature and does not include items which are
immovable in nature such as land, house etc. Though dowry existed even in earlier
times but it was largely voluntary in nature, however the present manifestation of
dowry is in the form of extortion and coercion (Sheel, 1999, 17).
This study does not see dowry as a voluntary transaction. Here it is important
for us to distinguish between the dowry as a payment and the dowry as a condition for
marriage. In the coming sections we will talk about the various forms of marriages
prescribed by Manu, in which it is clear that the form of marriage which involved
some kind of transaction, i.e., the Brahma form of marriage which was accorded the
highest sanctity. It is here that I would argue against the voluntary nature of the
system of dowry; however I am aware of the fact that with regard to the payment of
dowry there was no demands made.
In todays context dowry has assumed such magnitude that the amount of
violence associated with it is gruesome. Dowry death has increased in such a
proportion that it has finally become an issue for womens mobilization. According to
the National Crime Records Bureau (2011), there has been an increase of 27.7 percent
of cases under the Dowry Prohibition Act in the year 2011 compared to the previous
58

year. It also says that there has been an increase of 2.7 percent of cases under the
Section 302 and 304B of IPC which deals with the cases of dowry deaths (NCRB,
2011, downloaded from ncrb.nic.in on 08.05.2013).
To understand and find a solution for the problem of dowry we have to
understand how the practice has changed over the course of time. We have to study
the particular characteristics that it has assumed in the modern times. In order to learn
more about dowry we have to make a comparative study of it by locating it in the
ancient times and in the contemporary times. Hence in the next section we are going
to discuss the similarities and dissimilarities between stridhan and dowry. As against
the commonly held belief that dowry is essentially a Hindu phenomenon; we will see
if it exists in other religions. We shall also look at dowry under the contemporary
context of consumerism.
STRIDHAN AND DOWRY
According to Ranjana Sheel (1999) Stridhan is a concept which is said to be
linked to the dana and dakshina theory of marriage in the traditional society, about
which one can gather evidence from the Vedas and Smritis (Sheel, 1999, 19). This
theory is one among the various explanations given behind the practice of dowry. The
Hindu Brahmanical tradition accords great amount of sanctity and importance to the
acts of dana and dakshina. This in turn makes the act of giving away of a maiden in
marriage by her father as the highest act of religious sanctity. Therefore the
presentations accompanying a bride at the time of marriage known to be dakshina
sanctified the marriage and elevated the position of the brides family. In fact the
kanyadana (giving away of bride to the groom by the brides father) form of marriage
accompanied by dakshina (giving of material gifts to the daughter) was the most
favored and approved forms of marriage according to the Vedas and the Smritis (ibid,
19, 20). The amount of gifts accompanying the girl was largely voluntary in nature
and depended on the financial position of the brides family.
What came to be condemned was any sort of demands by either side in
consideration for marriage. Though the Vedas and the Smritis allowed for dowry they
had a huge contempt towards bride-price. To quote Manu
No father who knows (the law) must take even the smallest
gratuity for his daughter; for a man who, through avarice, takes a
gratuity, is a seller of his offspring (Buhler, 1886, III, 51).
59

Even when we accept that the practice of dowry is intrinsically linked to the
dana and dakshina theory and that it is given out of love for the girl by her father
and also to increase their social status, according to Ranjana Sheel it is difficult to
understand its imperativeness for the brides family (Sheel, 1999, 22). She also raises
some other important questions as to why does the grooms family not find
themselves under such pressure to increase their social status by giving gifts to the
girl. However, is the answer to it so difficult to understand? Is it not because of the
inferior status accorded to a woman?
Now if we take the present laws that have been enacted to curb the offence of
dowry, we see that though it makes giving, taking and abetting of dowry an offence,
at the same time it allows presents and gifts to be made at the time of marriage. The
problem arises when we have to demarcate between dowry and gifts (Gandhi and
Shah, 1992, 220).
The law maintains that since it is associated with a womens right to property
i.e., her stridhan, hence it is not advisable that giving of gifts all together should be
curtailed. It is under these considerations that the Dowry Prohibition Law permits one
to give and take gifts but not dowry. There were questions of putting a ceiling on the
marriage expenditure which took place but the law did not incorporate it making the
clause of the distinction between the gifts and dowry redundant. The debate behind
this clause shall be taken up in the next chapter where I look at the Lok Sabha debates
on the Dowry Prohibition Act.
Apart from looking at dowry as an extension of the dana and dakshina theory
there are other reasons given for such a phenomenon. According to M.N. Srinivas
(1984) hypergamous marriage, caste system and the kinship structure are behind the
spread of dowry. In addition to these factors he believed that forces let loose by
British rule such as monetization, education and the introduction of the organized
sector has helped in promoting it. To quote him
As stated earlier, modern dowry is entirely the product of
the forces let loose by British rule such as monetization,
education and the introduction of the organized sector. The
attempt to equate the huge sums of cash, jewellery, clothing,
furniture and gadgetry demanded of the brides kin by the
grooms, to dakshina is only an attempt to legitimize a modern
monstrosity by linking it up with an ancient and respected
custom, a common enough and hoary Indian device. What is
60

surprising is that this imposture has had so much success (ibid,


13).
According to him, Stridhan, and dowry cannot be equated with each other
because in dowry the transaction was from the brides side to the grooms side and not
just given to the bride.
When we look into the ownership rights of women over their stridhan,
postulated by Manu we can say that the right although was extensive it still was not
absolute. Manu and all other smritikars gave a wide range of categories comprising of
stridhan. According to Manu, whatever was given to a girl before the nuptial fire, on
the bridal procession, what was given in token of love and what was received from a
brother, a mother, or a father are considered the six fold separate property of a woman
(Buhler, 1886, IX, 194).
Yet another smritikar Katyayana defined stridhan as all property (movable or
unmovable) obtained by a woman, either as a maiden, or at marriage, or aftermarriage from her parents or from husband and his family (except immovable
property given by husband) is included within the scope of stridhan ( quoted in
Sheel, 1999, 49). However there were conditions attached to it. According to Manu, a
wife should always ask for her husbands permission before using her stridhana (
Buhler, 1886, IX, 199). Regarding the devolution of the stridhan, Manus prescription
was different for different forms of marriages. If a girl was wedded according to the
first four forms of dharmya marriage, then on her death her stridhan will be acquired
by her husband. This happens when a woman dies without any issue. On the contrary,
when a woman marries according to the rest four types of adharmya forms of
marriage, then the property of the woman reverts back to her parents.
Katyayana even while bringing a wide range of properties under the ambit of
stridhan, maintains an upper limit on the stridhan. He limits the stridhan up to two
thousand panas and unlimited ornaments. Even Arthashastra says the same (Sheel,
1999, 50).
Now as we make a comparative study of both dowry and stridhan as some kind
of womens property, there are certain commonalities that we come across. Firstly, let
us assume that both stridhan and dowry are voluntary gift giving processes, still it is
not clear that it belongs entirely to the woman with her exercising full rights over it
(including the right to alienate it). Secondly, both stridhan and dowry consist of
presents which are mostly of household utility. It helps only little in making a woman
economically independent outside the private sphere. On top of it, the ornaments
61

which constitute a major part of a womans property is generally kept for the coming
generations of female members in the family. They are mostly non- alienable in
nature. Thirdly, agricultural land and other kinds of unmovable property hardly find
any place in the stridhan or dowry (matrilineal societies are an exception to the rule).
These kinds of commonalities help us discern the fact that women are not
entitled to any real property rights. The practises of stridhan and dowry have always
been the relatively easier route taken to disown a woman in the first place and then
compensate it by giving her some amount of movable material goods. It is the antiwomen attitude of the patriarchal society which in order to keep women in a
continued state of dependency and helplessness, fail to recognize their rightful claims
over property. The practice of disinheriting a daughter even after the presence of law
to its contrary effect shows how inherent this anti-woman mentality is. Even when
stridhan and dowry are given to a daughter, maintaining the rhetoric that it is her
property right, still she does not have any absolute agency over it. The problem gets
compounded under the pattern of preferred and prevalent marriage forms of the Hindu
society. The practice of marrying off a daughter to faraway places makes her even
more vulnerable in a completely new and strange place. Moreover, whatsoever
property a woman enjoys, it is largely related to her marital status. Therefore it
becomes necessary for us to see the institution of marriage and what role it has to play
in a womans life.
WOMEN, MARRIAGE AND PROPERTY
The title of the section is an attempt to highlight the linear progression in the
life of a woman. The family and the society right from the beginning prepare a
woman for the ultimate reality of her life. Accordingly the concept of pativrata and
stridharma are instilled in them right from the beginning. Uma Chakravarty (1993)
explains this to be the result of the ideological domination of the upper caste
Brahmans. The Brahmanical scriptures and texts lend these kinds of domination and
subjugation all the required sanctions in a traditional society like India. Chakravarty
calls them master-stroke of Hindu-Aryan genius which naturalized these qualities
and thereby went on to establish patriarchy as an ideology. According to her pativrata
was the ideological purdah by which the hierarchical and inegalitarian social structure
was reproduced with the complicity of women (ibid, 583).

62

Since ancient times dowry has been associated with marriage. It is only when a
woman gets married that she is entitled to some amount of property out of love and
affection, in the name of stridhan. An unmarried daughter is not entitled to any
property, but is entitled to be maintained by the family property. Whatever limited
property right a woman enjoyed was directly linked to her marital status. The girls
share of property was to be used to conduct her marriage. The stridhan which is
considered to be a womans property is directly linked to her being married, or else a
woman cannot expect anything more than maintenance.
Now, when we situate ourselves in the contemporary times when there are laws
protecting womens inheritance rights it becomes difficult to comprehend why there
are not many cases of women inheriting property. Until the recent amendment to the
Hindu Succession Act in the year 2005, agricultural land came under the respective
state governments tenurial laws which made it impossible to inherit agricultural land.
It has also given woman the status of coparceners along with man in the Hindu
Unified Property. The irony however lies in the fact that it has not been able to make
any difference in the economic position of women.
According to Bina Agarwal (1998, 21-27), when we compare the inheritance
rights of daughters and of widows to the agricultural land in the rural India, it is seen
that the widows are in a favorable position than daughters. However, Agarwal (1998)
says that it shall be wrong to assume that the widows right was complete and not
limited. She highlights that this kind of preference towards widows is based on
various reasons. First of all, a widow is entitled to property (here agricultural land)
only till she remarries. Upon remarriage her property right is forfeited by her exhusbands family. Secondly, it is mostly the right to use the land and therefore it
denies them any right to sell, mortgage or alienate it in any other way. This kind of a
right can be said to be just a use right and not ownership right over it. They dont have
any right to alienate it by ways of selling, gifting etc. Thirdly, where there are no sons
and only daughters, there the widow and her daughters are entitled only to
maintenance and not any property. Lastly, the widows who get any share in the
property actually acts as a trustee till their sons grow and are old enough to take the
property under their control, ultimately making them property less once again. But on
the other hand the daughters are not given any land rights in spite of the constitutional
provisions due to various reasons. Agarwal (1998) gives the following reasons behind
it. Firstly, due to the prevalent ideological bias people are willing to spend more and
more on the marriage of their girls but refuse to give them any property in order not to
63

transfer their land into the hands of their daughters in-laws. Secondly, people believe
that increased division of the land would lead to greater fragmentation of land which
they are not willing to do.
It is important to highlight this reason. The daughters are denied their legal
share because this is seen as detrimental for the land holding. The commonly held
notion is that giving of lands to the daughters would lead to greater fragmentation of
land. They believe that smaller holdings of land would not serve any purpose.
However Bina Agarwal points at the fact that smaller size of land holding does not
affect in any ways the crop production. Thirdly, people believe that if women are
given a share in their parental property they will be the one inheriting twice; once
from their father and then from their husband. This is based on the assumption that a
woman receives her matrimonial property, therefore if she is also given a share in the
natal family it is she who will be inheriting twice. Fourthly, there are women
themselves who sign off their property in the names of their brother, institutionalized
by the patriarchal ideologies. Sisters claiming their share in the parental property is
seen to be an act in defiance with the familial norms of sacrifice, love and respect for
ones brother. Such an act is seen as divisive. Sometimes men even take recourse to
violence in order to intimidate women against acquiring property. Fifthly, where ever
the women have right to property it is either limited in nature or depend upon their
relationship with a male member of their family, more often their husbands or sons
(Agarwal, 1998, 21-32).
When we examine the difference in this kind of a preference we understand
that it is because of the fact that the property rights enjoyed by widows do not give
them any right to alienate it and therefore it remains very much a part of the family
property, however it is not the same in the case of daughters. Acknowledging property
rights of daughters would lead to the family land passing on to the hands of the son in
laws family.
Agarwal (1998) points that the kind of preferred marriage alliances involving
caste, clan and village exogamy also helps in depriving women from inheriting land
and other immovable properties. The Hindu traditions believes it to be a sin to even
drink water from a daughters family which makes it impossible for parents to
imagine themselves taking any kind of assistance from their daughters during their
bad times. Therefore they see no logic in parting with their property by giving
daughters any right to it from which they acquire no reciprocal monetary benefits. In

64

fact in those communities where they practice close kin marriages there the women
have always scored better in inheriting property (ibid, 1998).
Prem Choudhury (1989) highlights that there are parts of the country where
people follow the custom of leviratic unions. It means that when a woman becomes a
widow, she is forced to marry the younger brother of her husband, and where this is
not possible, it is the elder brother that she marries. In most cases the elder brother is
married with a living wife and children. This kind of a custom is observed in order to
keep the family property from slipping on to the family of the newly acquired
husband of the widow (ibid, 1989).
Agarwal (1998) argues that emphasizing only on the patriarchal attitudes of
family and the society, in preventing women from inheriting property, takes us away
from consideration of the important role that the state plays in not challenging these
norms, and in fact endorsing them. On its part, when there are any kind of land
redistribution project undertaken by the state it gives the ownership rights to the men.
It is based on redistributive justice and efficiency theory. It gives the land to the tiller
and attempts to prevent fragmentation of land (Agarwal, 1998, 16). The state
undertaking land reform measures, redistributive programs and land development
measures insists on allocating land to the head of the family and not any woman
member of the family. They somehow assume that the head of the family is and
should always be a male member (Agarwal, 1998, 34). Though this can be seen as a
general practice and not something which is laid down by the law, however do not
such general practices by the state go on to strengthen the socio- cultural, political and
economic bias against women strong.
Such kind of biased attitude in favor of men by the state only strengthens the
conviction among the feminists that despite the presence of progressive legislations,
the decisions made by the state are based on the deep rooted patriarchal structures.
The state and the law under their legislative and judiciary capacities only help in
reaffirming these binaries. The binaries that we are discussing are those that get
created based on the basis of the accepted efficiency of a man and the established
inefficiency of a woman. For instance, we can see how in the above mentioned
situation the state decides men to be more efficient and therefore natural owner of the
land in contrast to women who are considered just the opposite and thereby unfit to
own land. Since we are talking about the role played by the state in perpetuating the
inherent patriarchal biases against women, we must therefore understand that how

65

does it actually operates. What is the mechanism through which the state works
against its women?
In response to this question we can say that it is the state which is entrusted
with the responsibility of making laws in order to govern the people. The laws are
there to protect our rights and make us aware of our constitutional entitlements. The
laws also reflect the prevalent public opinion. It is this context which makes it
significant for us to understand the codification of law which took place during the
colonial rule. The kind of laws which were enacted by the colonial state was based on
various factors. After the sepoy mutinee of the 1857, the administration of India was
transferred to the British Crown from the hands of the East India Company. However
even before the transfer took place, that is during the rule of the East India Company
there were attempts made towards codifying the laws. The Indian subcontinent was
governed according to the various customary laws present at that time. The Mughal
rulers also gave recognition to the customary practices however reserving certain
exclusive rights upon themselves i.e., in cases of dissidence against the empire and
also in the fiscal matters (Kishwar, 1994, 2145). For the East India Company it
became increasingly difficult to rule under the prevalence of the great diversity
among the customary laws. They began to look out for sources similar to the canon
laws and it is in this context that they undertook the task of reading the ancient
shastras in order to frame uniform laws (ibid, 1994, 2145). According to Ranjana
Sheel (1999) it is the result of this process of codification by the British which went
on to institutionalize the practice of the dowry form of marriage. In the coming
section we shall see how dowry got institutionalized. Also we will look into certain
other instances in which the relatively pro women customs were overlooked at,
establishing the legality of those customs which generally devalued women.
INSTITUTIONALIZATION OF DOWRY
Sheel (1996) points out that the ancient Indian society was ruled according to
the code of Manu and the texts of Yagnavalkya, Narada and Brihaspati. These codes
were adapted later on by the Mitakshara and the Dayabhaga schools which were
applicable in the whole of India. Mitakshara was followed in most parts of India,
whereas Dayabhaga was more famous in the Bengal region (Sheel, 1999, 66).
Agarwal (1998) gives us the distinction between the two schools. These schools
were established around the twelfth century AD. Both the schools made their
66

prescriptions regarding the inheritance rights of man and woman. The Mitakshara
school made distinction between two forms of property, one is the joint family
property and the other is the separate property. The joint property included the
property acquired by father, paternal grand father, paternal great grand father and the
devolution could take place up to a depth of four generations. The devolution of the
property under Mitakshara system took place by way of survivorship. This system
meant that those coparceners who were living had an interest over the dead.
Mitakshara system did not allow women to become coparceners. Under this system a
man had absolute rights over his separate property. However, since women were not
made coparceners they were not entitled to any property rights under this system. The
rights of a daughter only included her right to be maintained till her marriage and the
bearing of her marriage expenditure. It gave widows very limited rights to property
which excluded any kind of alienating rights. There was however conditions attached
to such consideration which required the widow to remain chaste and not conduct
remarriage. Under this system daughters rights came after the rights of the widows.
On the contrary, under the Dayabhaga system the share of daughters and widows was
recognized. Also it made a person the absolute owner of all his property and had the
absolute right to dispose all his property. Though the rights of a widow and a daughter
did not change a lot under this system, however this system recognized their right as
heir and also it carried more avenues for them to inherit as it gave them right to
inherit all sorts of property, whether it be joint or separate (ibid, 1998, 8-10).
The British in order to make their rule more effective and smooth contemplated
about doing away with the inconvenience posed due to the high degree of fluidity in
the Indian customs and traditions. With the purpose of bringing in uniformity within
the Hindu family law they begun the study of Sanskrit language in order to translate
them into English. It was Warren Hastings and Sir William Jones who undertook this
task. The first text which they took for translation was the code of Manu. According
to Ranjana Sheel (1999) the British did not understand that it was not something
which existed like the Indian Penal Code, and that it did not have any modern legal
sanctions. The code was based on the beliefs of the writer, Manu. They were some of
the dictums which he prescribed for the people belonging to the upper caste
(Brahmans). Manu however did not refute the fact there existed conflicting customs
and traditions in the family and that they should be respected (ibid, 1999, 66-67).
According to the project, Sir Jones translated the Code of Manu in 1794. Then
came the translation of the commentaries of Vijnanesvaras Mitakshara and
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Jimutvahanas Dayabhaga by Colebrook in the year 1810. When we look at it in


hindsight, the act of codifying in itself was not much of an issue when compared with
the fact that it was only the ancient and predominantly Brahmanical scriptures that
were taken for translation. This was against the various other local customs and
tradition prevalent during that time. The lack of written documents validating the
claims of these local customs made it even more difficult to survive in front of these
Brahmanical scriptures (ibid, 1999).
The courts for the purpose of clearing their doubts also attached pundits to
them. These Pundits were Brahmans who naturally spoke in favor of their own
customs over the local customary practices wherever any such doubts existed. It is
important here to give some instances of codification wherein the progressive
customary laws were bypassed for the sake of regressive laws. Take for instance the
Hindu Womens Right to Property Act of 1937. According to Madhu Kishwar (1994)
the process of creating greater uniformity resulted in
annoying a number of communities who expressed the desire to
be exempted (Sikhs, Coorgs, Virashaivas, among others); it also
resulted in taking away superior rights that women had in certain
communities without seriously affecting the customary practices
among those communities which made women live insecure
lives. The process had already begun under the British. For
example, the Hindu Womens Right to Property Act (HWRPA),
1937, ostensibly passed to enhance womens rights, established
the Hindu widows limited estate in her husbands property (in
opposition to the original mitakshara law, as noted earlier). It
therefore also took away from the Jain widows the absolute
interest in property inherited from their husbands, including full
power of alienation in respect to such property which they
actually enjoyed till then under Jain Customary Law. Therefore
the reformed law worked to their detriment (ibid, 1994, 2151).
It is important to note here that the state apart from dismantling some of the
progressive customary laws also went on to allow the practice of some of the
regressive customary practices. One such practice is the Karewa form of marriage
about which we have already discussed in the previous section (Choudhury, 1989 and
Kishwar, 1994).

68

As pointed out by Kishwar (1994), it is significant to note that due to prevalent


norm of identifying Indian culture with the culture of the Northern India and also due
to the under representation of people belonging to North East along with a cavalier
attitude towards the south in general, which led to the neglect of the progressive
customs among the Khasi community, wherein the youngest daughter inherits the
parental home and also the rights of the Marumakkattayam women which allowed
rights of inheritance to daughters and also gave them inalienable right by birth in
inheritance of all forms of parental and ancestral property (ibid, 1994, 2151-2152).
Now when we take into consideration the institution of marriage, we shall see
how this kind of a codification affected it adversely. In the code of Manu, he
stipulates eight kinds of marriages, out of which first four are the approved forms of
marriage and the last four, are the ones which are not approved. The eight forms of
marriages are given below:
The gift of a daughter, after decking her (with costly garments) and honoring
(her by presents of jewels), to a man learned in the Veda and of good conduct, whom
(the father) himself invites, is called the Brahma rite (Buhler, 1886, III, 27).
The gift of a daughter who has been decked with ornaments, to a priest who
duly officiates at a sacrifice, during the course of its performance, they call the Daiva
rite (ibid, 1886, III, 28).
When (the father) gives away his daughter according to the rule, after receiving
from the bridegroom, for (the fulfillment of) the sacred law, a cow and a bull or two
pairs, that is named the Arsha rite (ibid, 1886, III, 29).
The gift of a daughter (by her father) after he has addressed (the couple) with
the text, May both of you perform together your duties, and has shown honor (to the
bridegroom), is called in the smriti the Pragapataya rite (ibid, 1886, III, 30).
When (the bridegroom) receives a maiden, after having given as much wealth
as he can afford, to the kinsmen and to the bride herself, according to his own will,
that is called the Asura rite (ibid, 1886, III, 31).
The voluntary union of a maiden and her lover one must know (to be) the
Gandharva rite, which springs from desire and has sexual intercourse for its purpose
(ibid, 1886, III, 32).
The forcible abduction of a maiden from her home, while she cries out and
weeps, after (her kinsmen) have been slain or wounded and (their houses) broken
open, is called the Rakshasa rite (ibid, 1886, III, 33).

69

When (a man) by stealth seduces a girl who is sleeping, intoxicated, or


disordered in intellect, that is the eight, the most base and sinful rite of the Pisakas
(ibid, 1886, III, 34).
According to Sheel (1999) in the colonial era, the court considered all
marriages to be under the Brahma form of marriage. The court to consider a marriage
as a Brahma marriage has to find evidence that there was no bride-price taken in that
marriage. However it did not consider a marriage to be Brahma marriage if there was
no gift giving at the time of kanyadana. Alongside this, it also started recognizing the
Brahma form of marriage as the most legal and standard form of marriage (Sheel,
1999).
Though the court accepted the presence of local customary marriage practices,
but for those practices to get legal sanction had to be proven to be of being ancient
origin and continuous and definite in nature (Agnes, 1995 and Sheel, 1999). These
kinds of requirements made it increasingly difficult for women to claim inheritance
rights and any other such rights because in most instances they failed to prove the
validity of their marriages. This proved to be against the interest of women because it
made it relatively easier for men to conduct secret marriages according to the local
customs and yet not maintain his multiple wives, because of the difficulty to prove the
legality of such marriages (Agnes, 1995).
Such kinds of complex situations along with the process of Sanskritization,
Hinduization helped in spreading the Brahma form of marriage associated with the
practice of dowry as the most legal and socially respectable form of marriage in the
society. The colonial court also linked dowry to the womens property right, thereby
making the practice legal. It interpreted gift giving at the time of marriage as kind of
inheritance right of a maiden daughter (Sheel, 1999, 74). The non-deliberative and unmindful implementation of the Brahmanical Shastric codes as law during the British
rule proved detrimental for the women as the many progressive customs which were
local and non-brahmanical in nature, were sacrificed for the sake of uniformity driven
and guided by their myopic vision of the diverse Indian society.
This kind of codification can be said to be not just the institutionalization of
dowry as given by Ranjana Sheel (1999), in fact we might as well see it as getting
transformed into a condition of marriage. It explains how dowry was at first made a
requirement to acknowledge a marriage as a Brahma marriage. Even if any other form
of marriage wanted to gain the status of a Brahma marriage, then all it had to do was
involve the transaction of dowry in it. Now we can see that, at first it was dowry
70

which was made a condition for a Brahma marriage, then it was the Brahma marriage
which was given the legal legitimacy by the law as the highest form of marriage,
which further went on to institutionalize the practice of dowry.
Can we interpret this kind of codification as the beginning of the binarising act
of the law in its process of codification? The dichotomy the colonial state drew
between the upper caste Brahmanical norms of marriage to be authentic and therefore
legal and the other customary local practices as unauthentic and thereby illegal, once
again exemplifies the limitation of the legal process, in which a situation, a case or an
individual has to be made to fall either under this category or that category.
The practice of dowry which was made as a condition as well as an institution,
for a marriage to take place finally led the practice to such a disastrous end that the
process which is understood as a voluntary act of love in the early times, went on to
become a legal requirement during the colonial times has culminated into a practice
of involuntary, coercive gift giving ritual. Dowry demands have assumed the
characteristics of ransom and blackmailing, failing which, it can even lead to the
death of a woman. It is when these kinds of instances of dowry deaths increased and
came into light that the womens movement took up this issue during the late 1970s
and early 1980s. During this time the womens movement took up issues which were
earlier said to be belonging to the personal realm. Hence, now there was a blurring of
this distinction between the private and the public. The personal is political can be
said to be the agenda of the womens movement in which the most personal aspects of
an institution such as marriage was brought the public light. Domestic violence,
dowry deaths which were earlier passed off as a familys internal matter were no
longer so. Rising crime statistics against women related to dowry violence has made it
imperative to see the institution of dowry in its modern manifestation. We shall
discuss about this in the coming section.
DOWRY AND ITS MODERN MANIFESTATIONS
On 1-2 September 2002 the All India Democratic Womens Association
(AIDWA), together with the Indian School for Womens Studies and Development,
organized a workshop to discuss the Expanding Dimensions of Dowry (Agnihotri,
2003, 308). The workshop was organized in order to discuss the findings of a survey
which had been conducted by AIDWA activists who were not trained in the research
methods in the conventional sense (ibid, 2003, 308). According to Indu Agnihotris71

(2003) report about the workshop, the findings of the survey indicates that in all the
states there was a steady and slow process of erosion of the varied patterns, and a
move towards a more homogeneous and monolithic model upon the customary
practices was taking place, thereby succeeding in bolstering capitalism on the basis
of a reconfigured patriarchy even as it reinforces retrogressive ideological beliefs
(ibid, 2003, 308).
Indu Agnihotri (2003) points out that the findings of the survey indicated
towards the emulation of the mainstream model of marriage which has led to the
booming of this dowry culture. Various regions such as Uttaranchal, Assam, Tripura
and Kerala which were dowry free states had now adopted the mainstream model of
dowry marriages. In fact Muslims, Adivasis and Dalits had also started practicing
dowry. The report also shed light on the dimension that dowry had assumed under the
impact of consumerism. Its impact can be ascertained by the fact that the lavishness
of marriage has become one of the ways of displaying ones social status. Agnihotri
(2003) further states that the idea of free market survives on the ideology of
competition which makes it one of the most prominent ways of laying stake on the
higher status in the society (ibid, 2003,313-316).
Agnihotri (2003) makes a point here that dowry could perhaps be seen as an
example of what Marx calls commodity fetishism. It refers to the commercialization
and commodification of social relations. She remarks that the kind of
commercialization which is taking place of the social relations within India can be
seen as an example of Marxs observation about capitalism, that is the establishment
of material relations between human beings and social relations between material
objects (ibid, 2003, 317).
The long fight against dowry during the 1980s and 1990s seem to be rendered
meaningless in the face of increasing number of marriages involving dowry
transaction. In the current context one does not have to ask for dowry explicitly, rather
the condition of dowry has assumed an implicit character in itself.
Now there is wish list made in order to demand dowry under the wake of the
consumeristic culture, an offshoot of the process of liberalization. The demands have
only seen an increase, which includes advanced technological gadgets, automobiles
etc (Jagori, 2009, 2).
According to Pranjali Bandhu (2011) dowry in the consumeristic culture where
there is rising inflation and inequality of income becomes a medium of bettering the

72

economic position. Dowry demands are often used to fulfill individual economic
endeavors such as setting up of business or expanding an already existing business.
One another glaring example of this culture of commodification of marriage
can be seen every day in the newspaper in the matrimonial advertisement section. The
requirements of a bride are specified in terms of her looks and also in terms of decent
marriage, meaning a good amount of dowry (ibid, 2011). It should however be noted
that apart from the above mentioned beauty criteria, there are specification regarding
the kind and the level of education they would want in their bride. Sometimes the
advertisements make a special mention of the fact that convent educated girls need
not apply. It is clear that such a clause is attached since it is a widely held belief that a
convent educated girl has a modern and radical outlook towards the life and hence
they would not fit in the docile and the domestic role of a housewife.
As has been already mentioned dowry system has also started to be followed by
Muslims and Christians, animistic and other tribal groups. Nehal Ashraf (1998)
highlights that dowry among Muslims have crept in because they have started vying
with their Hindu counterparts. The author says that the well-to-do Muslim families
have created a problem for the poorer section of the Muslim society by increasing the
rate day by day and that dowry payments have come to be associated with status
symbol. The author believes that the right to give tqlaq can be a reason behind the
rare occurrences of bride burning in Islam (ibid, 1998, 3310-3311).
Abdul Waheed (2009) in his work says that as against the prevalent assumption
Muslim women do suffer from dowry though the phenomenon of bride burning might
not be as wide spread as amongst the Hindus. This he attributes to the Indianness
among the Muslims in India. He believes that the customs and traditions of the
Muslims in India are more Indian and less Islamic. Islamic concept of jahez which
is derived from the Arabic word jahz signifies things which are given for a particular
purpose including brides trousseau, money and other valuable goods. Waheed says
that the dimension of Islamic dowry has changed under the influence of Muslim
nobility and feudal classes (ibid, 2009, 47-75).
Sabiha Hussain (2006) points out that there are various instances where Muslim
men divorce their wives for not bringing enough dowries. Muslim women after being
divorced seek maintenance which is in most cases denied to them by the Shariat
Courts. Such kind of discrepancies exists because of the patriarchal interpretations of
the Islamic texts by the conservative mullahs. It is in this context that a Muslim
Women Personal Law Board was set up in the year 2005. They formed it in order to
73

read, interpret and understand the laws through the gender perspective (Hussain,
2006, 1-40). The passing of the Muslim womens Act 1986 together with the
prevalence of dowry goes on to create an increasingly vulnerable situation for a
Muslim woman post her talaq. However there are some instances post 1986 when the
judges have taken a pro woman approach in securing them lump sum compensation
according to the Section 3(1) of the Act (Agnes, 2001, 3973-3976). This shows that a
sensitive and an informed attitude of the judiciary have to accompany the progressive
legislations in order to make the laws effective.
The spread of dowry in to those communities which earlier did not practice it
and also the rising cases of dowry deaths are generally seen as a consequence of the
process of modernization; however there is also one more phenomenon which is fast
acquiring pace, i.e. the practice of sex selective abortion, based on son-preference.
This phenomenon was first brought into notice in the Towards Equality report
submitted by the Committee on the Status of Women in India in the year 1974.
It is seen that there are increasing cases of abortion of the female fetus. The
parents resort to such measures in order not to be burdened with the cost of dowry.
There are also parents who say that it is better to kill the daughter before she is born
rather than let her die in her in-laws place due to lack of dowry. In fact dowry is one
of the main reasons behind a girl childs under nutrition and illiterate status. With
regard to sex selective abortion Kumkum Sangari (2012) says that it is based on the
calculations done in order to determine the profits of one form of property over the
other. She explains how a woman is seen in terms of property which is to be
controlled by the natal family till her marriage and upon marriage by her matrimonial
family. According to her sex selective abortion is not immediately lucrative for the
family however it is conducted in order to save itself from an imaginary future
monetary disadvantage that a woman would bring. It actually selects one form of
property (monetary) over the other (woman) form (ibid, 2012, 39-48).
The sex selective abortions of female child persist even though there are laws
to curb it. The first attempt to curb the practice was initiated by the state of
Maharashtra, which brought out the Maharashtra Regulation of the Use of Prenatal
Diagnostic Techniques Act of 1988. This was possible because of the struggle against
the practice of the pre-natal sex determination which was launched by the womens
movement along with the civil liberties and the health movements in the year 1984.
There was a coalition formed which was called the Forum Against Sex Determination
and Sex Preselection (FASDSP). The loopholes in the Maharashtra Act made it
74

ineffective. Then in the year 1991 the Pre- Natal Diagonistic Techniques (PNDT) Act
was introduced which was finally passed in the year 1994. Menon (2004) in her work
points out that the Act is there to prevent the detection of the sex of the foetus and not
the process of sex selective abortion as such. The Act further had the scope of
implicating the women in the sex selective abortion if the woman is held responsible.
Also the Act does not say anything about the non discloser of the identity of the child
to a non relative of the person concerned (ibid, 2004, 75-83). This Act was amended
in the year 2002 and was renamed as the Pre-conception and the Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Act. It is commonly known as the PC &
PNDT Act. This Act brought under its ambit the techniques of pre-conception sex
selection. It further prohibited any kind of advertisement about the availability of the
pre-natal determination of the sex of the child. It prohibits determination as well as
disclosure about it (Kumari, 2008, 87). Even though the law bans sex selective
abortions, it is largely prevalent because the legal loopholes make it possible. The
ineffectiveness of the laws combined with the male biased prejudices against females
fosters the act of female feticide.
The widespread notion of a womans lesser worth gets manifested daily in the
form of dowry deaths, domestic violence, sex selective abortion etc. The main
concern is that it is all happening in spite of laws being there. We shall carry forward
this question with us in the next chapter in which we will discuss about the womens
movements engagement with law in connection to the particular issue of dowry.
CONCLUDING REMARKS
In the above chapter we have discussed one very important aspect of the state,
i.e., law making. While learning about the process of institutionalization of dowry, we
saw that how the ideologies dominant at that time got precedence over the peripheral
ideological practices. Now, the issue is why is it that the law often than not gets
driven by the existing current of the society. In doing so it tends to prefer certain
ideologies, groups, castes, class, and gender over the other. We understand that the
law speaks in the language of right and wrong and this is one of the primary reasons
why an aggrieved party approaches the legal machinery. However it is ironical to note
that it is the same language of right and wrong which at times work against the
marginalized sections of the society. In this case we are talking about women as the
marginalized group. It is problematic when the state and its machinery attach
75

patriarchal prejudices to the meanings of the right and the wrong. The inability of the
law to rid itself of the binaries accompanied by their anti-women biases which leads
to the creation of laws which are detrimental to women or even when there are
progressive laws, the effectiveness during its delivery gets thwarted due to the process
of binarization.
In the next chapter we will see on what terms the womens movement interacts
with the state and its laws with regard to the issue of dowry. It will discuss the
challenges thrown at the state by the womens movement during the 1980s and 90s,
assuming an autonomous character at that particular point of time.

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CHAPTER FOUR
DOWRY, WOMENS MOVEMENT, AND THE RESPONSE OF THE
STATE
The late twentieth century saw the emergence of an upsurge against the system
of dowry. The uproar against it in the 1980s was the result of the increasing number
of dowry deaths coming into notice. It is not just the city of Delhi where protests
against dowry deaths happened, however protests in the other states could not spread
much unlike the movement in Delhi. However, it was due to the particular character
of the political field (Ray, 2000) in Delhi which gave the dowry movement the kind
of articulation that it needed. Raka Ray (2000) in her work argues that it is the
particular political field on which the success of a movement depends (ibid, 2000).
There was an immediate spark to the movement against dowry due to the death of
Tarvinder Kaur of Model Town (Delhi). The victim was doused in fire by her
mother-in-law and sister-in-law while she was watching TV. In spite of the victims
dying declaration against her in-laws, the police had registered a case of suicide
(Kishwar, 1984). As a consequence of this kind of attention given to the dowry deaths
people started coming out in large numbers with their own experiences of dowry
related marital violence.
The second or the new phase of womens movement started at the end of the
1970s and by the beginning of the 1980s, it started making claims for womens
equality directing their energy towards the state for ensuring it (Sheel, 1999, 104).
The term new here indicates to the newness of the issues during this period. The
womens movement started raising issues of violence against women during the latter
half of the twentieth century, which led to its recognition as the second phase of
feminism (Mazumdar, 1999, 12). The newness of the second phase has to be
understood keeping in mind the newer issues raised by the womens organization
during this time. The movement criticized the ineffective and impractical Dowry
Prohibition Act of 1961 as being a tokenism act on the part of the patriarchal state. As
a response to the widespread movement against dowry and the states ineffectiveness
in controlling dowry deaths, the state decided to amend the Dowry Prohibition Act of
1961. The Act was subsequently amended twice, once in 1984 and then once again in
the year 1986. The irony however lies in the fact that little has changed even after
that. The cases of atrocities linked with dowry, instead of decreasing keeps
increasing. The year 2005 also brought in equal inheritance rights for women along
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with men. The Hindu Succession Act 2005 giving property rights to the women along
with the Dowry Prohibition Act 1986 is still not able to curb the menace of dowry,
which is protected under the veil of custom. It is in this context that it becomes
important to take note of the laws dealing with the issue of dowry. In order to
understand the failure of the Dowry Prohibition Act 1961, we shall have to get behind
the scene to understand what the inherent objective was of the Act. How did it shape
up? Were there any disjunction between the avowed and the literal objectives? If yes,
then what were they? In order to address these dilemmas I have looked in to the Lok
Sabha debates (LSD from now on) behind the Dowry Prohibition Act 1961 which
were held in the year 1959. The Chapter has been divided into four sections. In the
first section we will as has already been mentioned, look into the LSD on the Act.
After drawing on the conclusions from the debates we shall move to the second
section of the chapter where we will take a look into the womens movements of the
1980s under the light of the politics happening during that period. Then we move to
our third section which will take up the tussle between the womens movement and
the state with regard to the issue of dowry. In the fourth section we will look into the
responses of the state towards the demands made by the womens movement. That
section will look into the presence of any kind of patriarchal elements in the states
response. Eventually in the conclusion we will try to look in general at the feminist
engagement with the law and the state.
In the coming section we shall look into the LSD on the Dowry Act. For the
purpose of finding answers to the above raised questions and for the sake of clarity of
the arguments, I have tried to compartmentalize them into specific issues and then
delve into the debates around it.
DEBATES IN THE LOK SABHA ON THE 1961 DOWRY ACT
The Bill after recommendation from the joint parliamentary committee came
back to the house for further discussions on it. There were different aspects of the Bill
which had to go through quite rigorous debate; however it was the definition of the
term dowry which took the largest share of it. There were remarkable differences of
opinion on the definition of dowry. Also significant was the uncertainty about the
nature of the offence and the penalty for it. In the subsequent paragraphs I shall try to
identify the relatively important issues of the Act and make an attempt to bring out
the most telling and remarkable features of the debate. I shall try to make the
78

arguments clearer by mentioning certain excerpts from the debate, as and where it is
required.
Debate over the definition of dowry:
To begin with, the ministers widely disagreed on the definition of dowry, so as
to what constitutes a dowry and what does not. Greater number of members agreed
on the fact that only that which is extorted out of a brides father is to be called dowry
otherwise not. In fact even if it was dowry and it was voluntary, the supporters did
not object to it as it was neither demanded nor extorted by the father. It was they
believed was the love for their daughter that a man should not be stopped from giving
gifts to the daughter. Hence according to this section gifts when not demanded should
not come under the dowry regulations and thereby should be treated as voluntary
gifts.
One Pandit Thakur Das Bhargava went to the extent of justifying dowry in the
name of article 19 of the Constitution, i.e., the right to property which no longer
stands now.
As a matter of fact, I may submit that it interferes with
article 19 of the constitution. Any person has got the right to
dispose of his property in any way he chooses; of course, I agree
that so far as he misuses that right in respect of extortion of
dowry, he should be prevented from doing so. To that extent, I
agree. You might enhance the punishment also in such a case
(LSD, 1959, XXXVI, 3453-3454).
It is important to point out here that more than dealing with the issue of dowry,
the intention of the ministers is to ascertain their right to the disposal of their property
and its safety. From the above excerpt it is quite clear that it is only when an
individuals discretionary right over his property is at jeopardy, that the members
would solicit the interference of the police and the state.
There was a section of parliamentarians who were completely in support of the
voluntary gifts given at the time of marriage. The Deputy Minister of law, Shri
Hajarnavis had said to this effect that
Voluntary gifts to any extent, in any form, are outside the
scope of the Bill. It is only when the money is extorted, or any
property is extorted as a consideration...that it comes within the
mischief of the Bill (ibid, 1959, 3447).

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While, there was a section which believed in the inherent negative


consequences of dowry nonetheless, it was again the demand or the extortion of
dowry which was seen as the real problem and not the system as such. There were
members who tried to highlight the complexities associated with dowry. They spoke
of the miseries of those women and their families whose marriage would get
cancelled at the last moment due to the non-fulfillment of their dowry demands. They
also brought into focus the growing form that the practice of dowry had assumed in
the wake of increasing monetization, education etc. In various instances the amount of
dowry demands get escalated keeping in consideration the grooms social and
economic value. Moreover it was seen as a social evil which could only be eradicated
by raising the consciousness of the people. The responsibility of the state to provide
protection to the victims of dowry system was now sought to be withdrawn and left at
the mercy of the good conscience of the masses.
The section who supported dowry based their arguments on the conviction that
dowry was a kind of inheritance right for a woman. Hence there was no harm in it,
unless of course it was taken out of a mode of extortion from those parents who were
not willing to give anything to their daughters. In the words of Srimati Ila
Palchoudhury from Nabadwip
Dowry as it existed in the past was not always an
unmitigated evil. It gave women some sort of provision in case of
her husbands death (LSD, XXXVI, 1959, 3437).
In the argument made by this particular member we can see that the womens
right to property is linked with her being married which we have already discussed in
the previous chapter. The then Law Minister A.K Sen spoke about his belief that
dowry was in fact a sure means to certain amount of property for a girl after marriage
in the face of the ineffective inheritance laws. To quote the Law Minister
In fact, that is the only way by which our women used to
acquire stridhan. Of course, the modern Hindu Succession Act
has given women the right to property, even though that right to
property may be defected by a will or by testamentary disposition
or non- testamentary disposition. Therefore, the surest way in
which women in olden days acquired some property of theirs was
what was given to them by parents and relations at the time of
marriage or before the nuptial fire or a little before that (ibid,
1959, 4010-4011).
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It is important to note that such regressive outlook of the Law Minister with
respect to womens property rights provides ample clarity to us about the seriousness
or not of the government about tackling the issue. The Ministers words cannot be
read as anything else apart from the legal sanction that is being given to the practice.
There were members who raised their apprehensions so as to why property in
any form should be linked with the institution of marriage. Why cant it take place
any other time during the life time of the girl? They also raised their skepticism
towards the distinction between the voluntary and involuntary nature of the dowry
payments. Srimati Parvathi Krishnan from Coimbatore (LSD, XXXVI, 1959, 36973700) spoke of the nave assumption that the law makers were making in considering
the two individuals in marriage i.e., the bride and the groom to be two independent
adults and mature enough to use their capacity of volition to deny the exchange of
dowry in a marriage. Another member from Gopalpara, Manjula Devi, stressed the
importance of demarcating between the voluntary and conditional gifts. Though this
member was in favor of making dowry demand a cognizable offence, yet she believed
in the indispensability of voluntary dowry payment in the life of a woman. It is only
the demand that is considered to be a social evil, otherwise it is an ancient custom
which does not require to be overthrown (ibid, 1959, 3701-3704). Finally, amidst the
entire contradictions clause 2 was passed with the approval of 183 members. The
definition of dowry now stands as any property given or agreed to be given by any
one party to a marriage to the other party at or before or after the marriage as
consideration for marriage of the said parties. The definition further allows
presentations of any amount to be made in the form of cash, ornaments, clothes or any
other articles which shall not come under the ambit of the dowry law unless it is made
as consideration for the marriage of the said parties. The Act however excluded the
Muslim women and the system of mahr from it as they believed that to them the
Muslim Personal Law (Shariat) applies. It is at this point that Srimati Renu
Chakravartty and some other members left the house as a sign of retaliation. As
against the number 183, it was only 40 members who opposed the definition of the
dowry in the manner it was passed. The difference in the number points to the fact
that how serious were the members about the issue of dowry (ibid, 1959, 4205-4209).
The kind of vagueness in the definition of dowry gets compounded when we
look into the debates around the issue of whether to make dowry a cognizable offence
or not in the section 8 of the Act.

81

Cognizable or Non Cognizable offence:


There were vehement opposition from majority of the parliamentarians against
making it a cognizable (those offences in which police can start investigation without
a formal complaint being made) offence. This kind of opposition was based on their
fear that it might destroy the sanctity of the institutions like marriage and family.
There were also apprehensions that it would lead to various false cases being filed and
therefore lead to harassment of respectable people in the society. With reference to the
former apprehension I quote Shrimati Ila Palchoudhuri
....My hon. Friend opposite has claimed that it should be a
cognizable offence. There I certainly disagree. Because, if it is
going to be a cognizable offence, if the police is going to be
allowed to come into every aspect of our private life, I think that
would be a sad day. No matter, even if it is the Sub- Inspector of
Police as was suggested by my friend opposite, that should never
be allowed, because, after all, it is a sacrament. It is a day of
rejoicing. If the police is going to poke its nose to find out if
anything is being done that is not in order, it would be absolute
harassment. This should never be agreed to, no matter whatever
arguments are put forward. I hope the Minister will take care that
he is not influenced to consider it a cognizable offence (LSD,
XXXVI, 1959, 3439).
I would like to point here to the strict division between the private and the
public sphere. The state we can see was strict in bifurcating between the two domains
as a consequence of which the domain of the private was kept out of the states
regulatory forces. However there was also a section which believed that in the
absence of the clause of cognisability the law would be futile. Members like Shri
Jadhav, Shri Brajraj Singh and Shri Subhiman Ghose argued in favor of making this
offence cognizable. Shri Brajraj Singh reasoned against the common assumption that
the police officers were corrupt and that they would harass people by saying that such
an acceptance on the part of the state shows its incompetence. It was pointed out that
such an excuse does not hold any ground. Shri Subhiman Ghose supported the
amendment moved by Shri Jadhav to make it a cognizable offence. In response to the
argument by the Law Minister that persons with courage of conviction would go to
the law court, he raised the question that why is it not that the Law Minister takes the
lead to set such an example. When the question of difficulty in finding witnesses by
82

the state was taken up by the Deputy Minister of Law Shri Hazarnavis, Ghose
redirected this question towards the Ministers himself by asking him on what basis
did he expect the public to get witnesses and also bear the expenses from their pocket,
when the state had already given up (LSD, XXXVI, 1959, 4241-4247)?
Finally the amendments suggesting making dowry a cognizable offence was
put to vote, which eventually got negative and the Deputy Minister of Law also sided
with the majority once again displaying their insensitivity and reluctance to consider
the issue of dowry seriously. The Deputy Minister gave a long excuse for not making
it a cognizable offence. He rejected it on the grounds of protecting the fundamental
tenet of our constitution which is the individuals right to privacy, individuals right to
liberty and individuals right to property. Therefore in an attempt to secure the
individuals liberty the Minister thought that the offence should not be made
cognizable giving wide power to the police. The clause 8 made the offences noncognizable, bailable ( In Bailable offences one is out on custody while the case goes
on, and it is binding upon the investigating officer to release the accused when he or
she produces the surety) and non-compoundable (Offences which cannot be
compromised by the parties to dispute without the permission of the court).
There was also a great amount of debate on the clause 7 which dealt with the
cognizance of the offence. There were several effective suggestions which came from
certain progressive members within the parliament. P. R Patel suggested that any
official found involved in the transaction of dowry was to be barred from holding his
office in order to stop his upward movement in the social ladder which resulted in the
furtherance of the practice of dowry (ibid, 1959, 4215). There was a suggestion from
Shri Nathwani to enlarge the scope of the court to take cognizance of the offence.
Borrowing from the section 190 of the Cr.P.C, he said that that there were other ways
apart from a formal complaint by an aggrieved party through which the court could
take cognizance of an offence. A person may not be bold enough to make a formal
complaint but may be public- spirited enough to go and furnish information to the
magistrate. However it was vehemently opposed by other members with the support
of the Law Minister A. K. Sen. Pandit Thakur Das Bhargavas amendment suggested
that the right to file a complaint should be upon government recognized social
organizations. This kind of a suggestion was grounded on the fear of people filing
false complaints out of selfish motives. The Law Minister A. K. Sen was of the view
that it is undemocratic to allow such secret complaints in a democratic country like
India (ibid, 1959, 4229-4240).
83

Let me point out here that, it seemed that while making this law the law
makers had faith in the inherent good qualities of individuals and that someday their
conscience would rise and that day the problem of dowry would get solved. However,
I fail to understand their reluctance in accepting the good intensions of the people
when it comes to making dowry a cognizable offence. Then they believe that people
would misuse it for their own benefit. What about the conscience of the people filing
false complaint?
Giving and taking of dowry both an offence:
The Clause 3 made the giving, abetting and taking of dowry an offence. There
were amendments proposed by Shri P. R. Patel, Pandit Thakur Das Bhargava, Shri
Bhakt Darshan, Shri Nathwani, Shri Manabendra Shah. Most of these amendments
stressed on making imprisonment conditional and not mandatory. Shri P. R. Patel
opposed the idea of bringing the giver of dowry under the ambit of law. He pointed
out at the fact in doing so it will be difficult to get evidence against the accused.
Further he also insisted that the punishment for dowry related offences should be the
imposing of fine and not jail term, as he believed that it was a social and not a
criminal offence. He was so concerned that if given jail term to the convicts of social
crime they would learn bad things from the criminals inside the jail. There was a
sense of hopelessness in him with regard to the legislature of the country. I quote him
As I said, no amount of legislation will cure this disease. It
will rather increase the tendency. So I submit that we better
punish such persons by a fine; let it be a heavy fine, but let not
those persons be sent to jail where they will not be reformed,
where they will rather learn some bad things from the criminals.
Therefore, sentencing people to imprisonment for the offence
would not be desirable in the interest of the society at large and
the country at large (LSD, XXXVI, 1959, 3742).
The other members mentioned above also focused on levying fine, which can
be heavy at times as the most suitable form of punishment. It was once again left to
the good conscience of the people that they would stop taking dowry. Therefore these
members wanted that the purpose of the Dowry Prohibition Act should be to build
public opinion against the practice of dowry. It was to bring dowry into public notice.
However doubts rose upon the affectivity of the law if the imprisonment clause
was not made mandatory and left at the discretion of the Magistrates to utter the
punishment in the form of either fine or both, depending upon the gravity of the
84

situation. Shri D. C. Sharma argued for retaining both imprisonment and fine as the
punishment for the offence. I quote him
...I should think this punishment of 6 months and also fine
should be kept as it is.
Sometimes public opinion dictates to us what kind of
legislation we should adopt. Sometimes our legislation has to
give direction to public opinion. I think this legislation is
fulfilling all the 3 purposes of social legislation. It is giving the
right kind of direction to public opinion. It is also honoring public
opinion. It is also trying to do something which is in the light of
public opinion which prevails. Therefore it should stand as it is. If
we try to take away anything from the scope of punishment in
terms of imprisonment or fine, I think we will be making the Bill
a toothless Bill and it will not be able to do anything (LSD,
XXXVI, 1959, 3746).
Finally, when the amendment to remove the compulsory nature of the
imprisonment was put for voting it was passed by 153 Ayes and only 22 Noes. Also
in the same manner when the amendment regarding whether to exclude the giving of
dowry from the purview of an offence was put for voting, there were 141 members
who voted against it and only 41 members who voted in favor of it.
There were other Clauses in the Act which I have not discussed here because of
the fact that there did not take place any substantial debate over those clauses. It was
only these few above mentioned issues over which the entire debate revolved.
Ranjana Sheel (1999) argues that during the debates around the bill some kind
of a pattern can be said to have evolved. On the one hand, some members were
completely against the system, whereas on the other hand the majority of them were
against the practice of dowry demands and not against dowry in itself. The section
which did not see dowry in itself as a problem based their argument on the belief that
dowry was a womans right to inheritance i.e., it was their stridhan. On the other
hand, those who viewed it differently based their argument on the fact that dowry had
become an illness affecting women and it needed to be cured. They argued for the
delinking of marriage with gift-giving in order to end womens exploitation. The
debates regarding the definition of dowry, the amount of punishment, and the question
of whether to consider it as a cognizable or non-cognizable offence etc shows that the
problem was not taken with the amount of seriousness which it demanded. The
85

provision of allowing gifts and disallowing dowry, treating it as a non cognizable


offence in order to prevent police entering every respectable house are just a few
instances of the case in point. (ibid, 1999, 165-67).
Agreeing with the pattern given by Ranjana Sheel (1999), I would however like
to point towards certain features of the Act which have eventually made it ineffective.
First, it was less or not concerned at all about the position of women due to the
prevalence of dowry. The legislators could not fathom the politics behind the practice.
The realization of the fact that dowry was something which robbed women of their
human, economic, social and political rights were not conceptually present in the
debates on the Act. The majority of the Parliamentarians were more concerned with
the extortion of money from the girls father. Second, it is to be noted that in spite of
the presence of the Hindu Succession Act 1956 the members during the debate
emphasized on dowry or stridhan as the only legitimate property that a woman is
entitled to. They somehow managed to sideline a daughters right over her parental
property. Thirdly, I would further push the argument made by Sheel that the kind of
definition, punishment and the non-cognisability of the offence shows that the
government was not serious about the issues. To make this point more clear I would
like to quote Shri Tyagi from Dehradun,
There are many more important problems before the nation
than dowry. I would, therefore, suggest that we finish it early
(LSD, XXXVI, 1959, 4233).
Fourth, throughout the process of making the law, there was an underlying
assumption among the members regarding the futility of the law. They refused to
accept the emancipatory and the deterrent element of the law. For them law was just a
tool to bring into light the problems of the society. In fact the Law Minister A. K. Sen
also expressed his belief that law alone will not be able to do anything unless
accompanied by social change. The fact that there should be social change cannot be
contested; however in its anticipation making toothless laws would only aggravate the
problem. In the end, I would say that anybody who goes through the debates behind
the Act shall notice that it was never about the position of women in the society that
was being talked about but was all about retaining the traditional practice of dowry
minus the extortion element which placed the man (the father of the bride) in a
economically disadvantageous position. The Act instead of curbing the offence went
on to legalize it.

86

WOMENS MOVEMENT IN THE 1980s


After discussing the debates behind the original Dowry Prohibition Act 1961,
we shall now look into the widespread discontentment among people against its
failure. However, before getting on to it, it is necessary to introduce ourselves to the
politics of the period of the 1980s and 1990s which is of great significance for
Indian politics as well as womens movement. It is during this period that there were
numerous movements taking place against the rising price, miseducation,
unemployment and corruption (Manimala, 2008, 46). It gave impetus for a total
revolution under the leadership of Jayprakash Narayan. The movement was led by
Chhatra Yuva Sangharsh Vahini formed in the year 1975 (ibid, 46). The growth of
educated unemployment, recurrent drought, chronic malnutrition etc in the city of
West Bengal led to the emergence of Naxalite movement in the late 1960s (Ray,
2000, 51). It was under all these circumstances that in the year 1975 a state of
emergency was declared. It was the realization of the gross violation of ones
political, economical and human rights that led to the rise of the womens movements
second or new phase in India. It was new with regard to the kind of issues that
were taken up at this time and also because these womens organizations were mostly
autonomous in their formation. There was a shift from womens issues being taken up
by the womens wing of an ideological party towards the formation of autonomous
womens organizations coming up. These new organizations refused to identify the
women specific issues with either the left organizations or the democratic rights
institutions (Roy, 2010, 412-413). The issues raised by these autonomous womens
organizations were based on the violence experienced by women. It was the politics
of the body that they were talking about now. Issues such as rape and dowry deaths
were brought into the public platform. The womens movement asserted that the
womens issues which were seen as personal were indeed political in its nature.
The womens movement also had to confront the challenge of not being able to
constitute one singular homogeneous identity of womanhood. There were assertions
from women located in different communal, castiest and bodily belongingness. The
Shah Bano Case of 1985 brought into open the role played by ones community in the
life of a woman. The progressive judgment given by the Supreme Court in this case
had to be reverted amidst wide protest by the fundamentalist section of the Muslim
community. Finally under the Rajiv Gandhi government the Muslim Womens Act
was passed in the year 1986, which withdrew the beneficiary status of a Muslim
87

woman under the Section 125 of the Criminal Procedure Court, which dealt with the
provision of maintenance (Kumar, 1993, 160-171). The development made the
womens organization reinterpret their stand on the Uniform Civil Code. Further there
were assertions made by the dalit feminists (Rege, 1998, 39-48) that the kind of
subjugation experienced by a dalit woman is different from the oppression of a
general woman. She argues about the need to familiarize the non-dalit feminists about
the history of dalit women which would lead to a transitional element resulting into
non dalit feminists also taking up the cause of dalit women. A dalit woman has come
to be accepted as doubly oppressed (Guru, 1995, 2548-2550). The womens
movement also became more reflexive with the struggles around making disability a
component of feminist politics (Ghai, 2002, 49-66). Disability feminists believed that
the question of the discrimination faced by disabled women was not taken up aptly
either by the disability movement or the womens movement. All these assertions
were enough for the movement to realize that the woman as a category was not a
homogeneous identity.
The womens movement was also a result of the dissatisfaction with the union
governments failure to address the issues of women, which they were assured of in
the pre independence era. During the colonial rule, the nationalist leaders took up the
womens question for different reasons. One of the reasons was that the leaders
greatly felt the need to protect its Indian tradition from the disturbing external
influences coming from the Western ideas. The nationalist leaders also wanted the
colonizers to realize that they were capable enough of bringing the changes required
in the lives of their women which belonged to the internal sphere of the country. The
method used by the social reformers during that period was to take recourse to
formulating new laws. However towards the end of the late nineteenth century the
womens question and their issues started fading by. The reason behind this as we
have already discussed in the previous chapter was due to the dichotomy that was
being drawn between the outer and inner sphere of the country. Gradually the leaders
decided that the womens question would be taken up once India gained
independence.
According to Mary E. John (2008) the womens movement during the 1970s
rose against the state when they realized that there were continuities in the colonial
and the national patriarchies in the sense that the age old laws of the nineteenth
century regarding rape were still in place, for instance. The womens movement
questioned the states power in delegitimizing the victimhood of a woman as and
88

when she did not confirm to those normative ideologies of a good woman (John,
2008, 263).
It was during the late nineteenth and the early twentieth century that saw the
emergence of autonomous womens organizations. They were largely organizations
consisting of greater number of women in contrast to the colonial times when
womens issues was mostly taken up by men. The womens movement during the
early nineteenth century mostly concerned itself with social reforms which eventually
changed its interest towards legislative developments for womens equality in the
early twentieth century. According to Ranjana Sheel (1999) the national social
reform movement and the womens movement in the late nineteenth and the early
twentieth centuries provided the backdrop for stirring for the upliftment of women
through laws against social evils and the empowerment of women through education.
This encouraged the entrance of women in public spheres and the rise of women
professionals and womens organizations all over India (Sheel, 1999, 115).
The womens movement has to be situated in the right context of its emergence.
It was in the year 1971 that the Government of India set up a Committee on the Status
of Women in India, which was given the task of reporting on the status of the Indian
women. The Towards Equality found out that with the exception of middle class
womens entry into the field of education, vast majority of women were in a pitiable
state after independence. The report was one of the crucial finding which led to the
establishment of womens studies in India (John, 2008, 3-4).
Mary E. John looks at the period of emergency under a quite different light.
She makes an argument that the state of emergency which was declared in 1975 in
order to curb the growing internal political challenges though on the one hand
showcased the repressive angle of the state, on the other hand, it allowed the Towards
Equality report to make its way to the United Nations international meet, with all its
negative finding in place (John, 2008, 4).
Regarding the issues raised in this phase of womens movement Nandita
Gandhi and Nandita Shah (1992) say that it was
also concerned with violence against women, although not
with the earlier issues of sati and ill- treatment of widows, but
with rape and wife battering; with marriage, but not widow or
child marriages, rather divorce, maintenance and child custody;
with legislative reform, not the enactment of more laws but in
amendments and with the implementation of the existing ones;
89

with education, not merely spreading educational facilities but


attacking sexist and stereotyped textbooks, with equality, not only
equal rights, but equal opportunities to work and with equal pay
(Gandhi and Shah, 1992, 21).
As has been already pointed out the womens movement of the 1980s is
generally referred to as the new or the second phase of the womens movement.
However there is also another terminology which is used to capture the transitional
element within the womens movement. It is known as waves of feminist
movements. Anupama Roy (2010) seems to be not as ease with such a metaphorical
comparison between the two phenomenons, i.e., of the wave in itself and the womens
movement. However, she acknowledges the significance of such an analogy for
indicating the oppositional politics that the movement represents (Roy, 2010, 410).
We have already seen that the laws dealing with rape were out dated and
needed changes in them. The Dowry Prohibition Act 1961 was however a more recent
legislation and in spite of that it failed. There were increasing incidences of dowry
related violence in the country. After discussing about the issues raised, the newness
of it and the autonomous character of the womens movements now we shall look into
how and what place did the issue of dowry occupy in it. How and on what terms did
the movement engage itself with the law and the state on the question of dowry?
WOMENS MOVEMENTS
AGAINST DOWRY

ENGAGEMENT

WITH

THE

LAW

It can be said that the issue of violence against women was the agenda of the
new womens movement. It was the verdict in the Mathura rape case, which was
followed by an open letter to the Chief Justice of India by four university teachers in
1979. They were Upendra Baxi, Vasudha Daghamwar, Raghunath Kelkar and Lotika
Sarkar (Mazumdar, 1999, 14). Mazumdar further states that it was only in the 1980s
that the womens movement woke up from its long slumber since independence (ibid,
5). Anupama Roy, contrary to the prevalent notion that the post independence era was
devoid of any real womens movement, believes that it is an error in considering so
since it was in the year 1954 that the National Federation of Indian Women got
established. It was the womens wing of the communist party of India (Roy, 2010,
412).

90

The disillusionment of the womens movement with the legal protection was
evident from the unprecedented uprising against dowry during the late 1970s and the
early 1980s. The serious loopholes in the legal system added injury to the assault.
The problem of dowry got aggravated to such a limit that dowry deaths came to
become an inevitable consequence for the woman upon failure to satisfy the greed of
the in-laws. Tales of horror, pain and betrayal written as letters at the deaths door
(Kishwar and Vanita, 1984) by women will make any human being to contemplate
and reflect upon the situation. As already mentioned in the beginning it was the death
of Tarvinder Kaur of Model town, Delhi which ignited the movement against dowry.
As against the prevalent notion during the Lok Sabha debates that the problem
of dowry would be solved by the realization of social conscience, the Towards
Equality report taken out by the CSWI mentioned that the failure of the Act came
from within itself, since the Act did not make the offence cognizable (Indrani
Mazumdar, 2006).
It was the Progressive Organization of Women in Hyderabad which first
protested against dowry in the year 1975. However it could not be developed into a
fully fledged movement. It was the Delhi episode which fuelled the agitation. Though
it was Mahila Dakshata Samiti which first took up the issue of dowry in Delhis
contemporary feminist movement, but it was Stri Sangharsh which campaigned
against dowry and made it a house hold name (Kumar, 1993, 117-120).
What these anti-dowry protests achieved was that they made it clear that the
death of a woman by fire is not always an obvious case of suicide or accidental death.
It was able in drawing the link between dowry demands and death of young brides by
burning. It highlighted the murderous angle involved in it. They protested against the
casual and defensive attitude of police. In most cases it was found that police refused
to record the dying declaration by the victim indicating the involvement of their inlaws. It was largely due to the corrupt attitude of the policemen as well as the
patriarchal mindset of these men who have very less regard for the life of a woman
and therefore they close the case by calling it a family matter. On various other
occasions the police have advised the feminists to use social pressure against dowry,
which they did. The womens movement organized protests outside the workplace
and the residences of the culprit. They used methods of social boycotting of the
accused and his family. People took pledges against giving and receiving of dowry.
The womens movements continued struggle bore some results when in the year
1983 the Criminal Law (second amendment) Act was passed which introduced
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Section 498-A to the Indian Penal Code. This provision made cruelty against wife a
cognizable offence and when proven will amount to three years of imprisonment and
a fine. Cruelty included both mental and physical harassment. Section 113-A of the
Evidence Act was amended in order to shift the onus of proof upon the accused from
the complainant in these cases. Also the Act amended Section 174 of the Cr.P.C,
which made the post mortem of a woman compulsory who died within seven years of
marriage (ibid, 1993, 122-125).
The protests by the womens organizations helped in highlighting the link
between the practice of dowry and womens subjugation as against the commonly
held belief that dowry consists of womens inheritance rights. It exposed its public
nature which had so far been hidden under the private realm of the home. In the
coming section we shall see how the movement against dowry compelled the state to
amend its dated and vague law on dowry. The section will discuss the DPA 1961 and
the subsequent amendments to it in the years 1984 and 1986. It will also look into the
debates preceding the making of the law in order to make a critical analysis of the
response of the state.
UNDERSTANDING THE RESPONSE OF THE STATE
The anti-dowry movement which criticized the state for its ineffectiveness on
the matter of dowry related violence made the state re-look at its existing laws and
make the required changes. The movement made their demands for equality upon the
state. The demands of the womens movement were fulfilled each time by making a
new law or amending the existing laws. The decade of 1980s is seen as a decade of
progressive legislation (Agnes, 1992) however these laws were unable to curb the
various forms of injustices done to women.
The DPA 1961 which was amended for the first time in the year 1984 changed
the definition of dowry from as consideration for the marriage into in connection
with the marriage. The act of dowry which was till now non-cognizable and bailable,
was made a cognizable offence, however it remained a bailable offence even after the
1984 amendment. Under the Section 3 of the Act, giving and taking of dowry was
made an offence with a minimum punishment of six months which could extend up to
two years and the fine was increased from Rs. 5000 to Rs. 10000, or the amount of
the dowry, whichever was more. Section 4 made dowry demand an offence with equal
amount of punishment as that of the one receiving or giving dowry. Section 6 said that
92

in case dowry is received by any person other than the bride then it has to be
transferred to her within three months, failing which a fine equivalent to dowry to be
levied on the person concerned. Further the Section 7 gives jurisdiction to the
magistrates to try dowry offences on their own or through police reports or on
complaint by any relative or social welfare institutes (Gandhi and Shah, 1992, 218220).
According to Nandita Gandhi and Nandita Shah, the new amendments reflected
mindless callousness and lack of political will towards the problem of dowry. They
raise doubts about the effectiveness of the law. It will be highly difficult to prove
which of the articles constitute customary gifts and which does not. Further unlikely
is the maintenance of the list of the gifts given to the bride and the groom. These are
some of those conditions which can easily be bypassed. Also making the acts of both
taking and giving dowry as an offence do not go down well with Gandhi and Shah.
By making the giver of dowry as guilty, who does the law assume to come and give
the evidence and against whom? According to Gandhi and Shah, the giver or the
brides family is always under pressure and therefore they are in a vulnerable position
(ibid, 1992, 220).
With the increasing amount of realization of the lacunae in the 1984
amendments, several women and civil rights organizations prepared a memorandum
highlighting it, which ultimately led to another amendment in the year 1986. There
was another change brought into the definition of dowry which now brought in to its
fold gifts given after the marriage or any time after the marriage. The minimum
punishment for taking and abetting dowry was increased to five years and the fine
was made Rs 15000. The amendment also shifted the burden of proof on the accused
and not the complainant. Dowry deaths found legal recognition. The amendments
have led to the reopening of cases which had been closed off as incidents of
accidental deaths (Sheel, 1999, 182-184).
The state has been prompt enough in making the amendments in the wake of
the movement against dowry. However when we see the debates which took place
before the enactment of the initial DPA of 1961, we will realize the extent of the
endorsement of the patriarchal ideology of the Indian society ascribing more
significance upon the male members of the family than the female members of the
family. Most of the members of the Parliament while discussing the various sections
of the dowry prohibition bill held the conviction that it was the dowry demand which

93

was problematic and not the custom of stridhan. However despite having knowledge
about the negative effects of the dowry nothing much could be done.
The assembly debates reiterated the commonly held belief that womans
property rights are intrinsically linked to her marriage. The social and the ideological
sanction behind the practice of stridhan makes it difficult for the law makers to see
dowry as a serious violation of a womans right to a life of dignity and equality. There
is no doubt that with the kind of continuous struggle that the womens movement
have been waging against the state, it has become considerably easier for these groups
to bring in progressive legislations, but the problem arises at the time of its delivery.
There are also instances when it is held that the women file false complaint
against her in-laws out of an intension to take revenge. It is one of the reasons given
behind the increase in the number of cases under the section 498A. However in the
words of Mazumdar (2006) the reason behind the increasing number of cases under
this particular section can be attributed to the fact of the brutalization of marital
relations that has accompanied the growth and expansion of dowry and the opening
up of the previously suppressed agency of women in resisting or opposing such
violence (Mazumdar, 2006).
It is true that amidst the widespread movement against the anomalies of the
Dowry Prohibition Act of 1961, there were amendments done by the state recognizing
the seriousness of the issue, however when we take a look into the cases where
individual women have shown courage enough to come to the court for the redressal
of their grievances, we see that the judiciary has not been sensitive enough to use
these laws for the benefit of these women. Such instances help in understanding that
the law and the state are still carrying with it the dichotomies of the ideal and the bad
woman; hence they are favorably biased towards the institution of the family (in this
case the marital family) and not towards the victim. In the next paragraph we will see
few judgments as an illustration of the above mentioned points.
Shalu Nigam (2006) in her work on interpretation of court cases regarding
dowry cites examples of cases where the women did not get justice because of the
ideological underpinnings of the court with regard to an ideal women and also in
some other cases wifes mental condition was cited as grounds for the acquittal of the
offender. Nigam also questions the possibility of treating a non-compoundable
offence as a compoundable offence. The court cases mentioned below are taken from
her work.

94

Ramesh Kumar Vs State of Chattisgarh (2001):


This case dealt with the abdication of the responsibility of the husband in his
wifes suicide on the ground that she must have committed suicide because of being
taken over by her guilt of not being able to stand up to the expectations and
requirement of an ideal life partner (emphasis mine). A woman is expected to fulfill
certain requirements as a wife, which if she does not gives the husband the authority
to hold her guilty. The Court remarked in this case
Presumably because of the disinclination on the part of
the accused to drop the deceased at her sisters residence the
deceased felt disappointed, frustrated and depressed. She was
overtaken by a feeling of shortcomings which she attributed to
herself. She was overcome by a forceful feeling generating within
her that in the assessment of her husband she did not deserve to
be his life-partner. The accused Ramesh may or must have told
the deceased that she was free to go anywhere she liked. May be
that was in a fit of anger contrary to his and immediate
convenience the deceased was empathic on being dropped at her
sisters residence to see her.....Unfortunately, the Trial Court missplet out the meaning of the expression attributed by the deceased
to her husband as suggesting that the accused had made her free
to commit suicide. Making the deceased free- to go wherever she
liked and to do whatever she wished, does not and cannot mean
even by stretching that the accused had made the deceased free
to commit suicide as held by the Trial Court and upheld by the
High Court (cited in Nigam, 2006).
Shanmughavelu Vs State (2004):
This is a case where the state of mind of the victim was used as a tool in
granting relief to the accused. The High Court of Madras stated that
there is no dispute that that the P. W. 1 (complainant wife)
and the accused (husband) are separated. Because of separation it
is quite natural that P. W. 1 has developed resentment. This is
more so when the accused is said to be living with another
woman (ibid, 2006).

95

Shyamlal Vs State of Haryana (1997) and Dinesh Seth Vs State (2003):


The similarity between both the cases is that in the two of them the accused
were acquitted from the charges under Section 304- B of IPC. The Courts in both the
cases opined that it was necessary to prove that there was cruelty inflicted on the
victim soon before the death (Nigam, 2006).
What we might as well conclude from these Court cases is that there is a lack
of gender sensitivity among the enforcing agencies of the state. It is disturbing to
notice that the implementations of these laws are deeply flawed due to the intrinsic
patriarchal assumptions in it.
The DPA coexists with the Hindu Succession Act; still we are grappling with
the issue of dowry. The presence of legal rights have not been able to bring in much
positive changes in the life of a woman, in the concluding section we shall consider
the conflicting nature of feminist engagement with law.
CONCLUSION
The importance of law lies in the fact that it provides us with the required
legitimacy to make our rights claims. When taken with respect to the feminist
struggle, the law at times acts as the propeller of change and at other time it is itself
subject to changes (Patel, 2006, 1255-56). It is not that the state has not responded to
the womens movement, it has brought in various legislations demanded by these
groups. However, the debates and the controversies around these laws depict the
gloomy picture around it. When the presence of dowry prohibition laws was not able
to show any results, it was then that Madhu Kishwar (1989, 587-588) called for the
rethinking of dowry boycotts (Kishwar, 1988). She argued that the powerless position
of women due to the lack of resources make it hard for them to resist a dowry
marriage. She also argued that without affective inheritance rights, refusing to accept
dowry would lead to even more pitiable condition of a woman. Hence she insisted
instead on making inheritance rights a reality. According to her effective inheritance
rights would help us do away with the problem of dowry. Kishwars (1988) stand was
greatly criticized by many other feminists who saw this as a pro-dowry stand by her.
There are feminists who believe that legislations are enough to bring in
changes, whereas on the other hand there are those feminists who raise their doubts
about the reformative capacity of the law. The point here is that the laws are not able
to change the mindsets of the people. Without a thorough going change in the societal
96

prejudices, these progressive laws cant expect to gain much. When we examine the
states attitude we see that even the law gives utmost importance to the sanctity and
piousness of the marriage and family as institutions. While implementing the laws the
attitude becomes all the more evident.
Though the DPA makes the taking and abetting of dowry an offence, but in
reality it is only the act of demanding dowry which is seen as an offence by the state.
The problem of dowry has only grown to an extent where the grooms family doesnt
need to make any explicit demand of dowry; they simply get it because of the virtue
of being the grooms family. The process of dowry is continuously devaluing the
position of women in the society.
The refusal by the state to acknowledge women as the head of the family while
carrying on state sponsored land redistribution and developmental activities, helps in
reaffirming and legalizing the private-public dichotomy by believing in the concept of
men as the bread earner and women as the home maker. These acts make it clear that
the state believes in the protectionist dimension of the patriarchal ideology, which
makes it unnecessary for women to acquire economic independence as they are
constantly subjected to dependence by the male members of the society. The
bureaucratic and administrative difficulty involved in the process of making an
independent land deal by a woman also speaks a lot about the attitude of the state. It
helps us understand how earnest they are in their endeavor to do away with the
problem of dowry by giving equal inheritance rights.
It is true that women have been continually denied their property rights in the
natal family, however when we read Srimati Basus work (2012) titled Beyond
Property Refusal we see that she has made an argument that women are themselves
opting for cultural property over material property. She argues that women decide on
these lines because they feel the loss of connection with their natal family as a kind of
alienation. According to these women the loss of familial ties is too big a loss
compared to the gain from getting property (Basu, 2012, 304-305). Basus work
induces us to rethink about the entire question of property rights.
It is true that we need laws in order to lay claim on our rights as well as to have
a sense of our responsibility. Legislating progressive laws is definitely significant,
however the problem arises when it comes to the level of implementation. I would
like to point out here that it is the process of implementation which should be getting
added significance post the formation of laws. It is in this context that the importance
of womens movement gets doubled. The law becomes meaningless and redundant
97

when the majority of masses are not aware of their rights. It should be an endeavor of
such organizations to educate people that the laws made for them are not against them
but for them. There has to be a tremendous grass root mobilization accompanying
these legislations in order to teach women to talk in the language of their rights.
However the success of such a movement will greatly depend upon the kind of
political field it is operating in. Raka Ray (2000) here argues that the issues raised, the
struggles involved and the kind of success that they meet with depends on the power
of the state vis- a- vis the other political players in the fields distribution of power
(ibid, 2000, 14).
To make laws more effective Reena Patel (2006, 1259) insists on legal
pluralism, which understands law as being multi-locational, with various centers of
power beyond the state to include the family and other social structures. As such, the
rules which bind individuals are not only codified law, but customary practices,
religious rules and other social norms (Patel, 2006, 1259). It would mean the
acknowledgement of the fact that there are various other factors which affect the
effectiveness of laws in the lives of women. From the above argument we understand
that the state while making laws have to take these factors into account.
While talking about laws we should also keep in mind the different local and
customary fora that Vasudha Nagaraj (2012) talks about which have come up as
alternate dispute settlement mechanism. These kinds of fora works for settling
disputes and in order to achieve its end it sometimes goes beyond the legal definition
of right and wrong. In most cases it tries to appease both the parties. According to
Nagaraj (2012) these fora many a times acts in the favor of women, wherein a woman
does not have to produce documentary and other kinds of proof each time unlike in
the formal courts. This is mostly because the arbitrators are generally aware of the
condition of the petitioners involved. She also makes an argument that the state and
the law is also trying to localize the formal law by decentralizing its operations (ibid,
2012, 201-216). However there is also a contrasting picture of these local fora coming
out in the work of Prem Choudhury (2008, 292-297) in which she highlights the
atrocities done by the khap panchayats in Haryana and also some other parts of North
India.
There is a need to emphasize on the empowerment aspect of the rights given to
the women, like the right to inherit property rather than the welfare perspective. This
is something that Indu Agnihotri (1996, 527) found was lacking in Bina Agarwals
(1994) work. Acknowledging the importance of the empowerment aspect is definitely
98

important, but it is not clear as to who is to be assigned with the task to the effect. We
shall be nave if we presume that the laws by themselves are enough to bring in
empowerment, but that does not however mean giving up on law. With the increasing
importance that the state has assumed in the contemporary times, rights based claims,
in order to be heard, have to be made according to legal language. However in order
to make the laws effective we have to involve ourselves in a continuous struggle
against the patriarchal ideological and societal forces hindering the development of
women.

99

CONCLUSION
Besides reiterating the main observations of this work, I would like to reflect
upon certain issues in the conclusion. This work began with an endeavor to capture
the interaction that is taking place between the feminist discourse and the legal
discourse. Feminist engagement with the state has however been a very old
association now, which we might like to point out began with the early suffragist
movement for women in the West. As we have already pointed out that the early
liberal feminist demands couched in the terms of equal legal rights can be understood
as a very crucial political development during that period, when there was a general
realization that the women were excluded from the realm of the political in the
Western political philosophy. However the continuation of carrying on with the
gender equality demands in the terms of legal rights was started to be questioned
during the second wave of feminism. Feminists belonging to the second wave
became increasingly critical of making legal demands.
Having said so, the state and the law continues to be one of the major fields in
which the demand for gender equality is raised time and again. The introductory
chapter of this dissertation tried to highlight the contradictions and issues which are
contained within the legal language. Those are the problems of binarization, the issue
of the sameness/difference doctrine and the problem of rights. As has been already
mentioned, such an interaction between the state and the women has become
inevitable due to the significance that the institution of state has assumed.
The interaction is required in order to establish the legality of the claims made
by the demanding party. In this case it is the women. Perhaps it is this awareness
among the womens movement in India that, despite being let down on earlier
occasions by the insensitivity of the different branches of the state, the movement still
clings on to the state for acknowledging their demands.
The second chapter which talks about the different issues and debates involved
in the Indian womens experience with law highlights how the problems identified
with the usage of the legal language effects this interaction. The irony of the Indian
situation is that as against the stipulated constitutional mandate of gender equality,
the constitution also allows the religious communities to govern their personal
matters in terms of their religious dictums. One major point which I have tried to
highlight continually in this work is the distinction between the personal and the
100

public sphere. It is this distinction between the private and the public, in which the
men belong to the public sphere and women belong to the private sphere, which is
seen as the reason behind the subjugation of women. Now when we go back to the
provision of freedom of religion enshrined in the constitution which allows the
establishment and the practice of personal laws of the respective religions, we can see
it is the women who are the worst hit. The Indian state maintains the position of non
interference in the personal laws. It therefore leaves the women out of legal
protection by the state. Feminists insist that it is one of the instances where the state
is strengthening the private public dichotomy. The chapter further explains the
difficulties associated with the enactment of the Uniform Civil Code in an
atmosphere of greater communalization of politics since the 1980s. Besides this the
chapter talks about the elusiveness of the category of women. It was during this
period that there was an increased realization that women belonging to different
situatedness experience subjugation in an entirely different manner.
This work in order to understand this interaction between the state and
womens movement took up the Dowry Prohibition Act 1961. The Lok Sabha debate
which preceded it was looked at. The debate reflected the dominant patriarchal
ideology of the law makers who believed that dowry was not to be considered as a
problem until it was extorted out of the brides father. The practice of dowry was
defended on the grounds of the right of an individual to dispose of his property under
Article 19 of the Indian constitution. Nowhere did the debate ever reflect any
discussion between the members about a daughters right to parental property, which
though limited in nature, had legal recognition. Womens right to property was
artificially linked to her married status in the form of dowry. As a result of the
loopholes in the Act, it failed to curb the practice of dowry.
This legal discrepancy resulted in the spread of the practice to such a level that
it increasingly started assuming a violent characteristic. There were increasing
numbers of dowry deaths happening all over the country. The incidences of dowry
indicate the subordinate status of women in the Indian society cutting across religious
and regional lines. In trying to understand the spread of the practice of dowry, I came
across works which link the institutionalization of dowry to the colonial states
codification programme.
The myopic vision of the law which hinders its view beyond the strict binaries
of the right and the wrong, the core and the periphery led to the codification of a form
of marriage which was essentially Brahmanical in nature and also one in which the
101

dowry transaction was must in order for the marriage so be solemnized. The law
overlooked at different pro-women customary forms of marriages which existed by
its side as less authentic and thereby less Indian. Years later when this decision gave
rise to the problem of dowry, once again the state tried to intervene on behalf of the
women but it failed them since it was not able to shed down its patriarchal biases.
It is said that the condition of women is deplorable since they dont have any
kind of economic freedom. They are dependent upon the male members of their natal
and marital family for their subsistence. The people taking dowry justify themselves
by saying that the bride is an additional burden in the family since she does not bring
any economic benefit with her. However this explanation fails to justify those
instances of dowry transactions where the bride is gainfully employed.
There have been laws giving inheritance rights to women even during the
1950s though it was very limited in its nature. It was then amended in the year 2005.
The Hindu Succession Act 2005, gives daughters equal share with the sons to their
parental and ancestral property. What I am trying to say here and also tried to say
elsewhere in this work is that there are no doubt laws there enshrining gender
equality, however when it comes to the condition of the women, little has improved.
Thus we get the answer to the question which was raised in this work that is
progressive legislations enough to bring about equality? The answer is I would say
no. Does the state carry any benign element of social change? This could also be
answered in negative.
Now the question is that when feminists and those others associated with the
womens movements understand that the state and its organs are not serving any real
substantive gender equality then why they keep coming back to it. Works on women
and law generally believe that the importance that the state has assumed in the
present context makes it more and more important field for asserting the gender
demands. They are not comfortable with the idea of abandoning the legal field. It is at
this point that the feminists need to be reflective about their strategies and their
actions.
By accepting the importance of the state in an uncritical fashion and as a result
directing our energies towards making it understand the feminist issues is highly
problematic. Before directing our demands at the state, it is important for the
womens movement to realize that the mere legislation can never be enough to bring
gender equality. The executive and the judiciary are two crucial branches on which a
lot depends. The patriarchal ideology is pervasive in all the three branches of the state
102

about which this work has discussed at length. Therefore it is important that before
making any further legal demands it is important that we contemplate over the fact
that any new law would further increase the power of law, thereby facilitating it with
increased scope for creating binaries in additional areas of our lives. Eventually it
would be detrimental for women, as it would qualify only certain women fit to be
given the legal protection and equality and others unfit. The law in this situation can
be said to be divisive in nature.
The legal protection which will be given to certain women will be based on the
patriarchal ideology of the society and this would in turn go on to rigidify the existing
binaries and also at times create newer ones and codify them. However it does not
mean that legal recognition is not important. Having said so, I would like to believe it
to be more beneficial at the individual level, wherein a woman due to the presence of
the laws can get herself justice, but it is not clear as to how is it going to benefit
women as a category.
Here I would like to reiterate the point that I had made earlier that Law in itself
is not sufficient for changes to usher in. At this instance I would like to extend
Menons (2004) argument that an uncritical use of law without any kind of an
emancipatory radical movement accompanying it, would be fruitless. Menon argues
that it is the commonsensical notion that has to be attacked in order to change the
power equations prevailing in the society. She insists that law should be used as one
of the reforming agencies; however it should not be allowed to take over the task of
radical politics.
It is important that we understand that the problems identified with the use of
the legal language is here to stay since this is precisely how the law works. It is the
limitation of the language of law. Thereby it becomes necessary that the womens
movement making legal demands realize that their demands for newer laws and the
amendments of the older ones has the power to only give it legal recognition. For the
laws to bring in gender equality, a lot will depend upon the rest two branches of the
state, i.e., the executive and the judiciary. Like the legislature, the judiciary and the
executive branch of the state are also laden with the male ideology. Hence it is
nothing but a kind of utopian state that we are in if we believe that law in itself will
be able to bring in gender equality. After all how can we expect an institution (the
state) which is essentially seen as patriarchal, to be genuinely interested in
challenging the existing status quo. Liberal feminists must see the limits of this
institution. It is important to understand that the state machinery is under the control
103

of the male members of the society. Hence there has to be reclamation of the state
power by the women of the society in order to challenge the male ideology
dominating it.
Here a question emerges in my mind. Are we not here committing the same
error of assuming the usurpation of state power by women to be sufficient for
bringing gender equality? It might be here worthwhile to remind ourselves of the fact
that patriarchy is an ideology which makes people accept their situation as given. It is
deeply entrenched in them. Men and women are conditioned to accept their superior
and inferior positions as natural order of the things. Therefore it is very important that
the society in general and the women in particular should be educated in made
conscious about the unnaturalness of the present situation. They have to be made
gender sensitive. Women should be given education in order to make them
independent. They need independence not just from the financial dependency, but
also from ideological dependency. There has to be constant endeavor to bring women
out of their state of acceptance to a state when they would question the prevailing
status quo of the society. They must understand and imbibe in themselves that the
mystique which surrounds the norms of femininity is for subjugating them. Efforts
have to be directed towards breaking this element of mysticism and the real condition
has to be understood. Law will help in giving it legal recognition as right or wrong,
thereby either validating or invalidating a claim. I would like to mention here that it is
time we should try to see beyond the state in getting sanctions on our right thoughts.
There has to be conviction in our thoughts and with this conviction we have to move
forward towards establishing them by dismantling the older, discriminating norms of
the society.

104

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