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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, Women‘s Movement, and the Response of the State:
77- 99
Conclusion: 100-104
Bibliography: 105- 123

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they might not even understand which phase I am talking about. I got introduced to the pursuit of my life. Next.ACKNOWLEDGEMENT In the beginning I would like to acknowledge the innumerable unknown women. Finally it is Sri Ram who made me see the beauty of life. which is a part of my M Phil dissertation. I want to thank my parents. Prof Anupama Roy. 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. who believes that I am the best. It means a lot when you are a woman. who gave wings to my desires. for being there when I needed them the most. A thank is also due to the University Grants Commission for granting me Junior Research Fellowship. When they read this. I reserve my gratitude for all the colleagues of Political Science department at Ramjas for the long hours of debates and discussions. seeing whose hardships. Ma and Baba. i. . I would also like to thank the faculty of Centre for Political Studies and the JNU library for its richness.e. to understand the lives of women and to try and bring change in their lives through my work. Thanks to them for respecting my decisions in life. but then I think this is where the beauty of it lies. I would like to thank my Supervisor. I consider myself fortunate to have a supervisor who took interest in my work and gave me the best possible suggestions available. who made me believe that all bad things come to an end and then a new life begins. I dedicate this work to him with all my love. for the constant support that she has extended during the course of writing this book.

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it is required to understand that why it is important to take one of its branches i. During the pre independence period it was the colonial state and the law makers to whom the question of women‘s rights was addressed by a fraction of modernist as against the reformist and the revivalist fractions who were against state intervention and against outsider intervention in the sphere of home respectively. I am in particular looking at the women‘s movement‘s engagement with the state over the issue of dowry while my general interest lies in understanding the dynamics of women‘s engagement with law. However. In this work I attempt to understand the different meanings and dimensions that this interaction between women and law assumes. In the former case it becomes necessary for the women‘s movement to look up to the state for the redressal of their grievances. On the other hand. the women‘s movement may not seek to buttress the powers of the state to intervene. It is in this context that a study on the importance of the interaction between women and law assumes significance. In relation to the question of women therefore there can be two different conclusions that can be drawn from the two above mentioned circumstances. 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. and also do not expect substantial gains from the state in terms of achieving gender justice. reinforcing thereby the power of the state to intervene and resolve matters of social and political concern. what I want to bring to notice here is the paradox of the state being a patriarchal structure. the legislature as one of the central theme of 1 . Noting the centrality of the state. and simultaneously integral in women‘s struggle against the patriarchal society. These strands will be taken up in detail in the second chapter.CHAPTER ONE INTRODUCTION: LAW AND ITS INHERENT CONTRADICTIONS Since the economic developments of the 1990‘s which led to the opening of the domestic market to the world market there has been a constant debate in India regarding the power of the state. The 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.e. 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.

I propose to study this engagement between 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. Can that be understood in an impartial manner or is that a reaffirmation of the patriarchal functioning of the state? What is the way for women to achieve some substantial change? Can the state be dismissed as just giving occasional incentives and an approach which goes beyond the state is needed? Or else the three branches of government working in tandem (with the implementation of laws not neglected) can be a more viable road to women‘s emancipation? Can laws merely be dismissed as having rhetorical purpose (assuming they are not being implemented)? 2 . It is this language of rights that is important for women to give their claims legal validity. any negotiation with the law implies negotiation with the state. In order to understand this we first have to identify the language of law.this work. women and law in my work. The law has a particular legal language—of prescription and command—through which it communicates with its people. Mentioned below are some basic interrelated questions which will be addressed in this dissertation. even then is it a sufficient condition to bring about empowerment and justice to them? As already mentioned. 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 legal language speaks in terms of the right and wrong. so the state becomes particularly important. It is in this context that there arise certain questions which need some sort of renewed reflection. The liberal democratic state is seen as considerate to the needs and aspirations of various groups including the minorities. this is a political discourse. It‘s a work on women and law and we shall use the arguments of legal theorists but it remains a work within the discipline of politics. Having said this. in some ways. 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. can be said to be making certain laws of protective discriminations to maintain itself as the most important arbiter of social justice. 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. Also. Supposing that women are able to define their claims in terms of legal rights. The state.

On the contrary the ‗out‘ position is held by the radical feminist notion of the state which sees it as essentially patriarchal.. I shall be referring to this as the ‗in and out‘ dichotomy of the state. We will get back to discussing it in more detail in the latter part of the chapter. within the larger framework of feminist perspectives on the theme. After discussing the different feminist theories of the state we shall go on to discuss about law and women in particular. the work deals with these above mentioned questions in the Indian context. 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. it is important that we place the debates in the Indian context. The ideology of liberalism is based on the distinction between the private and the public. 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 this introductory chapter I shall discuss the differences among the different feminisms in their understanding of the state. There are various strands of feminisms giving different understandings of the state i. It is with this purpose that in the introduction I have looked into the works of some of the western feminists.e. In the mean time we shall look into the politics of the liberal. Marxist. The ‗in‘ position refers to the liberal feminist notion of the state which believes in usurping more and more amount of state power.As can be seen from the title of the study. and socialist. radical. It holds that the state interference is important but only in those matters which are seen as falling under the realm of the public. radical. 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. 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. However in order to understand the engagement between women and law. liberal. They believe that there should be no state interference 3 . and the socialist strands of feminism. 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. Marxist.

To state further. radicals and the socialists. Knowing the basic characteristics of the liberal ideology. Marxist. liberalism as an ideology believes in the intrinsic human capacity to reason and also in the dignity and the worth of every individual being. They argue that such kind of an ascribed sexual division of labor will not allow the women to exercise their human capacity to reason. Alison M. since they see it as the reason behind women‘s concentration in the unpaid household labor. 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. we now move on to understand the reasons given by the liberal feminists behind women‘s oppression. It is one of those aspects of liberal feminism which is largely criticized. 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.in the matters concerning the personal life of an individual. They suffer disadvantages and disabilities as a group and not as individuals. 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. 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. 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. 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. Regarding the sexual division of labor and the distinction between the public and the private. 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. 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. The women are invariably relegated to the personal realm of the household based on their 4 . Locke and Rousseau talk about in their ‗state of nature‘ is not carried forward or is discontinued in the ‗civil society‘.

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.. humiliating marriage. The point of economic dependency and women‘s subordination and therefore the need to get out of it can be understood from what Betty Friedan had said in the late twentieth century in her work „The Feminine Mystique‟. 5 .class wives. The kind of the sexual division of labor happening was considered essential for the enjoyment of ‗good life‟ and not just ‗mere life‟. 370. The feminist criticize the lesser value attached to the work done by the women.understanding of the biological distinction between men and women. 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. This is seen as rendering the men and women naturally fit for their roles in the public and the private spheres respectively (ibid.. thereby creating a void for the understanding of the subjugation faced by women other than wives having different situatedness such as class and race.Only economic independence can free a woman to marry for love.. For women to have full identity and freedom. dress. 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. 173-177). rest. or to leave a loveless. not for status or financial support.. Women according to them are occupied either entirely in their household work or are engaged in low paying jobs. 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. they must have economic independence. 1974. 1999). intolerable. 1983. 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.371). and move if she plans not to marry (Friedan. Equality and human dignity are not possible for women if they are not able to earn. or to eat.

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. however with time they start experiencing a kind of void in their lives. 1974). and refusing before hand to make their faculties available. 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. or shall not be advocates.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). is to injure not them only. that we lose nothing by putting a ban upon one-half of mankind. S. Their argument becomes clearer when we read the extract quoted below. 178). 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‘. To ordain that any kind of persons shall not be physicians. 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. Is there so great a superfluity of men fit for high duties. or elect members of parliament. or shall not be members of parliament. The mysticism surrounding the feminine qualities is so deeply entranced that initially women find nothing strange in accepting the traditional roles prescribed for them. This is a point which both liberal thinker J. They construe the restrictions on contraception. as well as restricted to a narrower range of individual choice (Mill. Besides all of these the liberal feminists also view sexual standards as oppressive for women. As a solution to this Friedan suggest women to take up well paying professional jobs. 1970.. sex education 6 . however diminished they may be?. 1983-1984 quoted in Jaggar.. but all who employ physicians or advocates. and who are deprived of the stimulating effect of greater competition on the exertions of the competitors. 1983. 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. Mill and liberal feminist Mary Wollstonecraft makes.

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. 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. One such criticism is that the understanding surrounding the concept of privacy is not clear and thereby it is in need of further specification. Regarding the sexual standards and the liberal feminists interpretation of it. It is due to this that they don‘t attach any normative hierarchisation to any particular sexual behavior over the other. This is because the liberals do not conceive one‘s body to be an essential part of one self (ibid. 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. Jaggar (1983). The liberal ideology of freedom of expression and non interference in the private sphere makes it difficult for them to criticize pornography unless it is proven that such an association is leading to the violation of women‘s rights. This is precisely because they lack political grounds for doing so. This according to Jaggar (1983) is because of the liberal understanding of human nature which is based on normative dualism. Nussbaum (2002).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. wherein unlike the former the latter provides substantive equality provisions in the constitution. how the sexual standards regulate the public life of a woman. 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. points out that Liberal feminist therefore have a different stand on pornography and prostitution which are generally known to be devaluing a woman. She further identifies the difficulties associated with making equality claims based on the notion of privacy which is criticized by feminists on four grounds. i. 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. She argues about the differences in the U.S and the Indian constitutions.e. This problem is seen as having repercussions for the feminist case. 179-180). 1983. Nussbaum (2002) points out that this will be because of the fact that in the absence of any clear understanding of the concept of 7 . Jaggar further states that this dualism is expressed in the use of one‘s reason as an intrinsic characteristic of human being.

privacy, the judgments would be based on arbitrary will reflecting the current societal
trend which in most of the time shall be against women (ibid, 2002, 254).
Secondly, Nussbaum (2002) brings into discussion here the criticism labeled
against the use of privacy concept by feminists like Catherine Mackinnon, where
Mackinnon argues that when we understand privacy in terms of Millean distinction
between ‗self regarding‘ and ‗other regarding‘ actions, it poses great difficulty in
bringing the ‗other regarding actions‘ under the state scrutiny. The feminist criticisms
are directed against the fact that the distinction drawn between the private and the
public sphere makes it very difficult to bring issues of private violence into the public
sphere. Mackinnon, according to Nussbaum (2002) argues that the private sphere is
protecting male‘s privacy and not female‘s. It is this distinction between the private
and the public that helps in making marital rape and domestic violence appear as
personal matters of the family, which is not to be trespassed by the state. Nussbaum
locates this particular criticism in the Indian context by taking the example of the
provision of the ‗restitution of conjugal rights‘ in case of married couples. By citing
the case of T. Sareetha vs. T. Venkata Subbaiah she tries to explain the point made
above regarding the difficulty of asserting sex equality in terms of right to privacy
claim (ibid, 2002).
In the above case an actress from Madras, Sareetha, was sued by her husband
Venkata Subbaiah for the restitution of conjugal rights. Seeing Sareetha flourishing he
wanted to get back to her or else wanted to obtain a profitable financial settlement.
However, the Andhra Pradesh High Court Judge Choudhury ruled that it the clause of
restitution violated Article 21 of the Fundamental Rights of the Indian Constitution.
Justice Choudhury held that it violated the right to ‗life and liberty‘ under the Article
21 and also that it violated the guarantee of equal protection under the Article 14 of
the Indian Constitution (ibid, 2002, 260).
Nussbaum (2002) argues that the recourse to the privacy argument in the above
case by Justice Choudhury acts only in a negative manner for women. It is Nussbaum
says because of the fact that the traditional concept of ‗marital privacy‘ works against
women‘s liberty and bodily integrity (ibid, 2002, 262).
Thirdly Nussbaum argues that the private public distinction is not in
accordance with the Millean separation between the ‗self regarding actions‘ and the
‗other regarding actions‘. She gives a number of examples to illustrate her point;
however I shall be discussing only one of them. She gives an example 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 women‘s 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 women‘s
subordination is as follows.
MARXIST FEMINIST POLITICS
Marxism believes that the present society is a capitalist society, which is
divided into two parts, one having control over the means of production and other
who uses these means of production to make goods and services. The former is
known as the capitalist class and the latter is known as the proletariat. The relation
between these two is understood by Marxists as one of exploitation. Marxists believe
in the notion of ‗alienation‘, i.e. it is a process which a worker in the capitalist society
undergoes in which, as a result of the manner in which production is organized, the
worker experiences detachment or alienation from the product and services that he
produces. Besides this a worker also feels alienated from other co-workers as well as
alienation from himself. Marxism (narrowly or conventionally) can be seen as a
theory which is based on an analysis of the economic relations in the society. As a
consequence of it their understanding about women‘s oppression is also based on the
economic relations surrounding the life of a woman.

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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. The broader meaning implies labor directed towards the satisfaction of human needs. the analysis of the reasons behind them are distinct in both the case. The Marxists caution us from assuming that since there are not many women under the wage labor and that they don‘t suffer alienation like men under capitalism.This section attempts to highlight the main reasons given by the Marxists behind the oppression of a woman. According to Jaggar (1983) Marx and Engels use the word productive in two senses. This is because of the fact that under the capitalist scheme of division of labor. who only differs from the ordinary courtesan in that it she does not let out her body on piecework as a wage worker. but far more commonly of the woman. that they are not oppressed. According to this. however. In both cases this marriage of convenience turns often enough into the crassest prostitution. 216-217). one of which can be said to be broader and the other can be said to be narrower. Marxists are generally seen to be reflecting on the dilemma of whether to consider the household labor of a woman as productive or unproductive. Since it is the men or the husbands who control the economy of the household. but sells it once and for all into slavery (Engels quoted in Jaggar.sometimes of both partners. Marxists believe that women suffer sex specific oppression in addition to experiencing alienation as a wage laborer. a woman is pushed to the domestic sphere of the house. therefore they are also able to control the sexuality of their wives. When it comes to the domestic labor of a woman. On the other hand the narrower implication of it stands for the production of the surplus value. women are oppressed at the hands of their husbands. 11 . 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. 1983. Though the economic dependence of women is seen as a reason for their subjugation even in the liberal feminist ideology. Marxists point out at the fact that the household labor of a woman is a form of unpaid labor. This explanation will become clearer by reading this. In fact they are oppressed in a very different manner. 219).

they believe are acting only as the tool of the capitalists. This means the use of physical force by husbands on their wives. According to Kantola (2006) the Marxists see the state as essentially a capitalist entity fulfilling the needs of only the propertied few. Marxist feminist Alexandra Kollontai. In fact they see men and women both being oppressed under the system of capitalism. which in the communist state shall be looked after by special category of working women. Men. It is the nuclear family which helps in maintaining a high demand for the consumer goods. feeding and other needs of the child. women and children. It is of consequence to note that the Marxists refuse to accept that the real oppressor of woman is the man. There will be no dominion relationship in the institution of marriage. 1983. 221-224). The communist state is also seen as an 12 . 8). It is in the communist state that she sees the full development of men. 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. 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. Marxists understanding of the limits placed on women over their sexuality also has a direct link with the interests of the capitalists. Also it will be the state that shall be responsible for the education. since women no longer shall be dependent upon their husbands but on their own labor. contraception etc are also the capitalist design of maintaining and propagating the nuclear family. 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. 2006. They see that the restrictions placed upon women in the matters of abortion. Further it also acts as a reservoir for army during periods of labor crisis (Jaggar. Kollontai says it is the ‗communist fatherland‘ that will take all the responsibilities of a child. and therefore admits to the fact that without the effective unity between men and women. The state will also take care of the household labor. Thus marriage shall turn into a sublime union of two souls in love. overthrowing capitalism is not possible (Kantola. 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.According to Jaggar (1983) there are also some severe physical manifestations of this violence upon women which assumes the form of wife battery.

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. radical feminists believe in the saying ‗personal is political‘. let us look into the radical feminist understanding of women‘s oppression and the way they understand the state. whereby the wives agrees to lifelong sexual subordination at the hands of their husbands. the Marxists understand the state not under the same light of benevolence. 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. mothers are expected to be sacrificing in their nature. 224) of the state in order to bring about equality. 1988). Radical feminism also believes that the sexuality of a woman is controlled. It is the patriarchal ideology which does not give moral and societal sanction to any sexual act other than the heterosexual one. which they believe will disappear with the dismantling of the capitalist state. Against the liberal feminist distinction between the personal and the political. Unlike the liberal understanding which sees the state as a neutral arbiter of diverging interests. Contrary to the ideology of individualism which is valued in the current society. i. There vision lies in the ‗withering away‘ (Jaggar. The analysis given by radical feminists about forced motherhood helps in highlighting the dual character of a woman‘s existence as a mother. They are expected to be taking care of the family in a self les manner. The former contract takes place between the husband and wife. Radical 13 . Moving ahead. 1983. However they differ in the analysis of its causes.e. Radical feminist Carol Pateman (1988). as sexual slaves that provides the legitimacy for subjugating women. in her work ‗Sexual Contract‘ talks about the presence of a sexual contract prior to the establishment of a social contract.answer to the problem of prostitution. Radical feminists argue that motherhood under patriarchal ideology is forced upon the women. 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. RADICAL FEMINIST POLITICS The patriarchal ideology that‘s pervasive in the society is seen as the reason behind women‘s subjugation by the Radical feminists. Like the liberal and the Marxist feminism.

As a solution she argues that the male ideology should be challenged by way of usurping the legal machinery. Radical feminists Susan Brownmiller (1975) talks about rape in terms of the property right exercised upon women by men. 14 . The norm of heterosexuality which is sanctioned by the patriarchal society is understood to be affecting women in a negative way. She points out that though overt form of encouragement for rape may be absent in the society but. They also see pornography as a reason behind the increase in the rape culture (ibid. They see it essentially as forced under the patriarchal society. There has to be equal male and female in all the aspects of legal process right from the enactment to its enforcement. 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. Under the system of patriarchy they believe that women are understood as sexual objects for the pleasure of men. however it is important to understand here according to the radical feminists is the fact that the raped man is seen as a woman. They are aware of the fact that there are also instances in which a male is also raped. virginity. the radical refuse to see it as an act out of free choice. They understand it as the patriarchal society‘s way of fulfilling the sexual drive of their male members. Radical feminists also condemn against pornography because they view it as a sexist propaganda. It is the patriarchy which creates categories such as honor. 1975). where a woman is portrayed as a sexual object for men‘s consumption. the pervasive male ideology in the society gives sanction to it in a covert manner. Radical feminists understand rape as a political act upon women. Brownmiller sees rape as a political act of domination of women by men. There has to be a rejection of the male culture (ibid. They view all forms of sexual encounters as sexual slavery. They see women as the property of men after recognizing their ability to rape. 1975). Rape is a weapon which is used for conditioning women since very old times. chastity etc that leads to the repression of the sexuality of a woman. Rape of a woman is seen as a violation of a man‘s property rights which makes a counter attack on the enemy‘s women inevitable. The worth of a woman gets defined according to her conformity with the sexual standards of the society set by men.feminists also see sexual slavery as one of the reasons behind the oppression of women. Brownmiller (1975) on the question of prostitution opine that the radical feminists see it as a sexual act which is forced upon a woman.

and on the other hand the other institutions will be radical in the sense that they would fulfill particular needs of women. Jaggar (1983) notes that socialist 15 . 161-62). They believe that the women undergo special sexual form of alienation. It is seen that both capitalism and patriarchy are seen as independent reasons behind the oppression of women. Women are generally expected to be presentable to men. It means that there will be a wide variety of alternative institutions which shall function only for the benefit of women. When it comes to the state. This is how the radical feminists believe that the institution of patriarchy can be challenged. 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. relations to society. Their disillusionment with the patriarchal state is the reason why they want women to build an alternative women culture. 1989. and substantive policies (Mackinnon. 271-275). They understand the normative heterosexual relationship between men and women as the reason behind the oppression of women.through its legitimating norms. forms. They do not see the state as having any element connoting equality of man and woman. It is here that the radical feminists encourage women to be lesbians (Jaggar. however the socialist feminists have combined both the forms of oppression and see them together as oppressive for women. 1983. Socialist feminists develop the Marxist notion of alienation with radical feminist insight of sexuality in it. The liberal state coercively and authoritatively constitutes the social order in the interest of men as a gender. Some of them will be total communities.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. Socialist feminist politics is discussed below. They view both capitalism and patriarchy as repressive for women. SOCIALIST FEMINIST POLITICS The socialist feminists focus on the dual system of oppression for women. hence they urge women to take up alternative sexuality instead of the normative one in order to break free from it. 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 so by refusing to incorporate affirmative action. The way in which a worker is alienated from his work by the capitalist. Hence it becomes important that women should acquire reproductive freedom in order to gain sexual freedom (ibid. 309).136). With regard to the character of the organizations endorsed by the socialist feminists. 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. Further women were also curtailed from having access to birth control means. Women do not have right over their body in the same manner as the laborer does not have right over his product (ibid. through rape. women battery and other forms of sexual harassment. This is due to the commonsensical notion that only a man is the wage earner of a family and not the woman. 1983. 1979. in the same manner a woman is alienated from her sexuality by a man. 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. They believe in the abolition of both class and gender discrimination in order to end women‘s oppression. 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. Socialist feminists focus on getting reproductive freedom for women. which would mean the availability of all the material conditions required for it. 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.feminist see men rather than women controlling the expressions of women‘s sexuality. The socialist feminists also see such reproductive freedom as a kind of sexual freedom. 107. The objective of these organizations is to raise awareness about the ways in which the working class men perpetuate patriarchy. 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. 16 . they opine that it should be both socialist and feminist in nature. 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. Socialist Feminist Linda Gordon (1979) argues that in order for women to be sexually free they have to first have reproductive freedom.

while understanding the difficulties it poses for the feminists to design an undifferentiated category of their subject. Geetanjali Gangoli (2007) in her work argues about the differences between the Indian feminist movement and the western feminist movement. The dissertation attempts to highlight the disillusionment that would be identified with the women‘s movement if it refuses to see the particularities present among the universal.e. There are scholars who see the feminist effort to bring out the politics within the Indian family as a western phenomenon. The women‘s movement in India during the 1980‘s is known to be the second phase or the new women‘s movement because of the kinds of issues raised by them during this period.The work highlights the different dimensions of Indian women‘s movements engagement with the law during the late 1970‘s to the 1990‘s. It is precisely this phase starting from the post emergency period till the 1990‘s that is taken up for study in this work.. women. 17 . 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. i. As a response to such criticisms. 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. The Towards Equality report published by the Committee on the Status of Women in the year 1974 highlighted the deplorable condition of Indian women. 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. 128-129). 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. It came in the wake of the political turmoil that engulfed the entire nation during the period of emergency in the year 1975. had to face certain concerns from various sections of women who were till then lying on the periphery of women‘s politics. 2007. The women‘s movement fighting for the upliftment of the conditions of women.

Gopal Guru (1995) highlights the dalit feminist‘s assertions that the kind of oppression experienced by a dalit woman is different from the oppression experienced by a non dalit woman. 1995). wherein they are oppressed by their own caste men (ibid. Chandra Talpade Mohanty (1991) in her significant work.The women‘s movement during this new phase started realizing that it was becoming increasingly difficult for them to represent a homogenized. The women‘s movement was criticized by feminist representing the dalit women. ‗Under Western Eyes‘ critiques the Western feminist understanding of the third world feminism. It is brought into the notice of the mainstream women‘s movement that the dalit women face double oppression. The elusiveness of a unified category of women was also seen during the debates on the women‘s reservation in the parliament. Till now we have been looking at the differentiation between women in the domestic setting and accordingly being concerned about its universalizing tendency. Ghai argues that the women‘s movements as well as the disability movements have not taken up the issues of disabled women in an adequate manner. 2007. However. minority women and also the disabled women. it is also important for us to distinguish ourselves from how we are perceived by the western feminists. In her work she talks about the colonization process that is at play in order to usurp the 18 . one at a general level and the other at a more particular level. Gangoli (2007) points out that it is important to comprehend the kind of intimidation a woman belonging to a minority community such as the Islamic community would feel under the wake of the rising communal politics during the late 1980‘s and early 1990‘s (ibid. It is in this context that the feminists belonging to the women‘s movement started reflecting upon their demand for a Uniform Civil Code (UCC). 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. A feminist writing from the disabled women‘s perspective Anita Ghai (2002) illuminates on the darkness that surrounds the issues related to disabled women. each experiencing different levels of oppressions based on their particular situatedness. monolithic category of women without taking into account the internal complexities involved in the particular situatedness of these different women. 111). Nivedita Menon (2004) highlights feminists and caste based arguments in support and against women‘s reservation.

1991. 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. lawyers. particularly when the claimant is a woman? Therefore this study attempts to understand the contours involved in the interaction between women and law. The three tendencies are discussed below. academic have had in their involvement with the law. 19 . I would like to point to certain observable general tendencies which emerge out in the course of studying law under the gender perspective. thereby producing/ re-presenting a composite. Feminist writings on law have highlighted a number of issues involved in it. Any claim without the legal acknowledgement becomes futile. There is also a growing realization among the Indian women‘s movement that greater numbers of laws increase the state power (Agnes. however is it enough to have legal rights in order to lay claims on it. I have tried to identify three such important tendencies and put it in a concise manner as a part of the introduction. The law in this study assumes added significance due to the language in which it communicates with its subjects. singular ―third world woman‖. Engagement with the state here implies the women‘s movement‘s negotiation with the legislature. As an introduction to understanding the particularities of women‘s movements engagement with the law. The dissertation highlights the various kinds of experiences that feminist activists. 1992). but nevertheless carries with it the authorizing signature of Western humanist discourse‖ (ibid. 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.an image which appears arbitrarily constructed. These tendencies get reflected throughout the dissertation while discussing the potential of law as reforming agent or not. This colonizing capacity is exercised by the Western feminists while giving an understanding of the third world feminists.understanding of a situation offered by the others in order to give one‘s own understanding as the ultimate one. Mohanty contends that the Western feminist writings ―discursively colonies the material and historical heterogeneities of the lives of women in the third world. 383). executive and the judiciary.

Smart points out that. She argues that. The process of binarization creates two extremes in the beginning and end of a continuum. 33). Coming into the Indian context the issue of law creating binary categories is also argued by Nivedita Menon (2004). She argues that the logic of binaries can be linked to the laws ‗claim to truth‘ (ibid. 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. Binarization is an act of disintegration of a particular matter (tangible or intangible) and then segregating them into different oppositional compartments. good and also as the norm. The values attached to the oppositional categories are also set in oppositional terms. She argues that the juridico legal power of law has been continuously increasing. This would mean that law helps in creating binary opposites which renders women‘s experience 20 . 1989. That means that one of the two categories will be having higher value compared to the value of the other category. Smart does not accept Foucault‘s view that in the present context what is important is to understand the mechanisms of power and not who holds the power. these oppositional categories however do not have the same value. There is a total disqualification of women‘s sexuality (ibid. One of the two categories is taken as the right.PROBLEM OF BINARISATION The practice of binarization in the legal language often works against women. This argument of Smart (1989) is an extension of her understanding of the power of law. On the other hand the other category is understood as wrong. Smart takes the example of rape trial where in women‘s sexuality is measured with reference to the male sexuality which is phallocentric in character. the law creates binaries and then through legal means rigidifies them by the process of codification. 1989. This is how the law exercises its claim to truth. bad and also the deviant. Smart argues that the categories having subordinate value are the one‘s which are associated with the women. 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. Smart (1989) argues that the binaries which the law creates are used by it in their application. 4-26). 26-49). despite Foucault‘s argument that the power of the law would start diminishing with the increase in the regulatory power of the psychological discourses. According to Carol Smart (1989) binary system of logic refers to oppositional thinking. 1989.

The next problem with the language of law is the sameness/difference dilemma. Catherine Mackinnon (1987) looks at this dilemma as a doctrine. Understanding the transformatory elements present in the law she does not suggest giving up on it. 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. In fact Mackinnon argues here that whatever the approach be. Can it than be concluded that the binaries designed by law are working towards rigidifying the already existing patriarchal norms in order to maintain the status quo or should it be perceived as a limitation on part of legal language in itself which is beyond recovery and hence should be abandoned by the women‘s movement. 1987. 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.as sterile. citing as an example. This is considered to be a gender neutral and also is understood as having a single standard. This Mackinnon calls the difference approach (ibid. She says that she does not want to say which a better option is. 3234). which is about women being considered as different from men. 21 . the concept which underlies the two is the notion of difference. This is considered to be protectionist in its approach and also having double standards. one is to be considered same as men and the other is to be considered different from men. which is discussed below. since both the sameness and difference doctrines are obsessed with 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. They believe gender neutral legislations will go a long way in bringing in gender justice. Mackinnon (1987) says that women have two approaches under this doctrine. the laws dealing with custody and alimony. 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. 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. On the other hand Mackinnon says women can also go for the alternative available.

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. Contrary to Mackinnon‘s argument. It is also extended to the concept of rights under the law. 1996). Legal rights which were the most important part of feminist politics in the eighteenth century were based on the notion of equality. There have already been two examples of it. 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. It is difficult to understand the language adapted by law. 1987. 1987. 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. Indian feminist lawyers Ratna Kapur and Brenda Cossman (1996). Men will be treated as same when they need it and shall be treated differently when they don‘t need it (ibid. Mackinnon at this moment talks about an alternative approach which is called the dominant approach. 40). According to her. law is important for women because it can no longer deny them the privileges which are legally enjoyed by men. however the same reliance on the law is seen as problematic by the modern feminism.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). The condition is discussed in the following section. Smart gives a detailed understanding about the concept of rights. RIGHTS ISSUES Carol Smart (1989) identifies certain difficulties associated with the rights claim. 39). Under this system the law attempts to bring in equality which is substantive in nature. She points that the language of rights was both empowering and limiting at the same 22 . She argues that this approach shall be more substantive in nature and more jurisprudential than formulaic. who discuss this dilemma in the Indian context as the reason behind the failure of law to deliver justice. She believes that it is only going to help men to get both. 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. see the solution to it lying in the ‗substantive equality approach‘ of the law. however the difficulty does not end here. This approach believes in the equal outcome of law and not on the equal treatment under the law (ibid.

144-145). Women‘s right to parental property stands refuted on the ground that dowry has been paid. Secondly rights can be countered by competing rights. but it is effectively used as a way of disinheriting daughters in India.time.life arguments made by the fraction demanding the fetal right to life. since it could be evoked by anybody and limiting. 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. The Act did not prohibit the transaction of dowry but only objected to it when it was demanded. 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. The discussion on the dowry laws in this work will highlight at the fact that during the debates on the Dowry Prohibition Act of 1961 the practice of dowry was seen under the light of a men‘s right towards the discretion of his property as against the women‘s right to not be commodified. 144). since it made the law as the centre of many political campaigns. This happens due to the understanding that getting rights does away with the unequal power relations. The limits of rights can also be understood in its ineffectiveness in improving the situation of women as a group. 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. There is no denying of the fact there are definitely cases where a women have been given justice. though rights are formed in order to correct social wrong. Firstly she argues that rights have the capacity to ‗oversimplify complex power relations‘ (ibid. Lastly she says that the rights may be appropriated by the powerful ones (ibid. Empowering. The dowry giving act is up to the discretion of the parents of both the groom and the bride. When the second issue of rights being countered by competing rights is taken up in the Indian context. The pro-choice/ pro-life debate around abortion laws is also an instance where rights are countered by competing rights. India being a secular democratic country allows its people the freedom of religion. 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. however it has to be understood that 23 . yet they are more focused on individuals. Therefore the oppression of women in the name of religion can be said to be sanctioned by the law. Smart identifies certain problems associated with rights. 1989. Thirdly. 1989.

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 1980‘s.
Understanding the debates around those issues and the legislations behind them
remain my focus throughout the chapter. Since it is not possible to take up all the
issues, I have looked at only those issues which correspond with the study that I take
up in the subsequent chapters.
In the third chapter I try to narrow down the focus of the study and for that I
choose to study the institution of dowry. The chapter can be seen as an illustration of
the act of formulating binaries by the law, which is how the practice of dowry came to
be institutionalized. My emphasis on the legal reasons behind dowry‘s pervasive
character should not be seen as an attempt to sideline the societal reasons and other
reasons behind it. However it has to be understood that the aim of the study stands to
identify the relationship between the systems of dowry and the law. I also discuss in
this chapter the characteristic changes that the practice of dowry has undergone in the
modern consumerist context. The chapter has been titled ‗The Institutionalization of
Dowry and Its Modern Manifestations‘.
The fourth chapter is called ‗Dowry, Women‘s Movement and The Response of
the State‘. Here, I attempt to capture the trajectory of the women‘s movement in India
and see how it made the state to intervene in the struggle against dowry. The chapter
seeks to understand and evaluate the response of the Indian state.
I have tried to do a secondary literature review of the feminist writings on law
in order to comprehend the scope and limitations of law through the gender
perspective. In order to understand the interplay between the state, law and women, 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 women‘s issues coming into the public
sphere during the early nineteenth century and thereafter. It shall also look into
certain aspects of both the colonial and the postcolonial state in order to look into the
possible similarities and dissimilarities between the two. The chapter attempts to lay
the foundation for a discussion to take place on the various issues mentioned above
under the light of the constant friction that is taking place between the constitutional
safeguards and the hegemonic patriarchal ideology dominating all the spheres of
human life. The latter—draws on for its legitimacy, not just the religious scriptures,
but frequently now,—also from the domain of Science and scientific knowledge. The
remaining sections will try to evaluate the extent of the impact of this friction on the
lives of the Indian women by examining the various issues affecting a woman‘s life
such as the personal laws, violence of a sexual nature, reservations for women, the
question of the Uniform Civil Code and also the kinds of double subjugation faced by
dalit women and the specially abled women. In this chapter I would argue that in the
interaction that is taking place between the legal and the feminist discourse, the voice
of the feminists time and again gets marginalized due to the reaffirmation and the
recreation of the dichotomy between the private and the public by the discourse on
law.

26

The same is true in case of Christianity. These rights and protections. 197-198). It is only the notion of worshipping women as mothers that has come to be accepted widely as a valued 27 . It further reserves the right of the state to make special provision for the weaker sections of the society like children. however comes in contestation when we look into the rights that are guaranteed to the religious communities under the articles 25 to 30 (Roy. It is this context that it becomes necessary for us to look into the way how various religious communities view their women. Anupama Roy (2005) points at the Constitutional guarantees of equality before law for each citizen irrespective of their race. V. men to assert themselves on these secondary sinful creatures by controlling them.Geetha (2009) also points out that the Islamic religion is no different in this matter. we will in the last section try to engage ourselves with the different views given by women activists. Since they owe their existence 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. women. 2005. scheduled castes and scheduled tribes. which believes that it was man (Adam) whom god first created using clay and woman (Eve) it is believed was created using Adam‘s bone and therefore women came after men. caste. The Greeks who worshipped both gods and goddesses applied the same notions of hierarchy in allotting women secondary status with respect to men. 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. sex. as we see in daily life tend to accord women with the respectable position of mother of the present and the future generations. 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. She points at how Hinduism sees women as sinful creatures since the dawn of creation in which fire. V. religion etc which is contained in articles 14 and 15 of the Fundamental Rights of the Indian citizen.With this argument in mind. Islam too like Hinduism believes in the notion of impurity of a woman‘s body. However a closer look at it will confirm a picture which is otherwise. This is precisely the reason why Manu suggests the superior creatures. snakes and poison are rolled into one. that they accord inferior status on the women of their respective religions. they are secondary to and inferior to men. Geetha (2009) highlights that there is a common thread running through all the religions and that is.

1989). the world and the home. 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 . today scientific reasons are cited validating grounds of discrimination between men and women. Having said this. 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. 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. the public and the private. 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. 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. Male and female hormones. Geetha‘s (2009) account of religious and scientific explanations of women‘s subjugation helps us show that contrary to the belief that gender difference is an eternal and transcendental truth. In fact Partha Chatterjee (1989) argues that the women‘s question by the end of the nineteenth century started fading away because of the dichotomy that was being drawn out between the outer and the inner sphere. They wanted to bring reforms on their own terms. 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 were explanations given by the revivalist that they did not have to bring in any change to better the position of women. It was countered by the Indians in the name of cultural difference as well as its superiority over the western civilization. On the contrary the modernist strand sought the colonial state‘s intervention in bringing legislations concerning women in order to correct their situation (ibid. 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. thereby subsuming all other identities and roles essayed by a woman.identity. it is actually a phenomenon which is historically located (ibid. It is in this context that the distinction between and the private and the public became all the more obvious. 2009). in fact it has also found an undue place in the commonly held neutral and objective discourse of science. Geetha (2009) says that. V. However in the nineteenth century the ‗Women‘s Question‘ had become one of the prime concerns and there were different kinds of resolutions put forward.

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 much later that these differences were recognized as constraining for women and were therefore sought to be removed. historical and political situatedness began to emerge. In the last quarters of the twentieth century. The women in the first half of the twentieth century started to be constructed as mother figure. It was only in the early twentieth century that autonomous women‘s organization started developing and by the mid thirties and forties fully fledged ‗women‘s activism‘ was constructed (ibid. According to Kumar (1993). The differences among and between women belonging to different cultural. 1993). 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. during this period emphasis was given on the ‗maternal‘ instincts and functions of a woman. It is also important to problematise the modernist stand. Movements which started making demands based on needs had travelled a path over two hundred and more years to make demands based on rights.e. The period of the nineteen eighties saw the rise of demands by the women‘s movement‘s asserting their claims over the 29 . We can see how the centrality of the issue has shifted from that of the women to the concept of colonial state in particular and the state in general. May I here point out that this might also be seen as a cause of the gradual fading of the women‘s question from therefore front? According to Radha Kumar (1993) though the early nineteenth century had brought in the women‘s question but it was nevertheless taken up by the men. the women‘s movement started identifying the sexual division of labor as an impediment on the way of enjoying a status equal to that of men. 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.us the weight of the ambivalence of their claim i. There was also the realization of the fact that it was too simplistic an assumption that -―woman‖ is a homogeneous category. Radha Kumar (1993) in her work tries to highlight the nature of the women‘s movement during the mid-nineteenth and early twentieth century. whether they were against the interference by the colonial state or the concept of the state in general.. In this sense the proponents of this faction saw in the colonial state a way to realize their political aspirations.

The feminization of the freedom movement can be seen in the instances where charkha (spinning). Upendra Baxi (2000) argues that colonialism and constitutionalism were strangers to each other. 1993. 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. regarding the nature of the postcolonial state. 2008) has had serious implications on the lives of 30 . there is another argument from Sudipta Kaviraj (2003). Postcolonial state not just in the narrow sense referring to the state that came into existence after the exit of the colonial state. it becomes important to study them in order to understand their emancipatory and egalitarian potentials. However. After realizing the changes in terms of the issues raised by the women‘s movement in the post independence period. They had huge problem with lending the women as a terrain for contestation between the state and the community. which was a women‘s sphere) were used to invoke nationalist sentiments (ibid. 1993).right of their body. 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. The colonial state and the postcolonial state show certain signs of continuation as well certain signs of rupture. According to Radha Kumar the trajectory of the women‘s movement‘s engagement has travelled from the midnineteenth century‘s preoccupation with the process of codification to the early twentieth century women‘s movement‘s engagement with codification as well as its implementation (ibid. making salt (an ingredient found in kitchen. 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. Kumar (1993) says that in order to understand the extent of women‘s participation in the freedom struggle movement we should see how the national movement led by Gandhi was feminized. 5). but more in terms of the fact that certain features in the present state exists only because of the past colonial rule. It was a transfer of power from the colonial administration to the Indian elite. He calls it a modern superstition to believe that constitutional forms and ideals constitute a legacy of the past colonial rule.

Now. the Christians consider it as an ‗Indissoluble Sacrament‘ (Agnes. inheritance and adoption come under the ambit of personal laws which are different for different religions. It can be said that it was based on the idea that the state treated religion as any other associations present in a state. who tries to see the institution of marriage which comes under the personal law. we see that there were a number of codifications taking place with an attempt to reform the Hindu Laws. 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 state‘s resources in practicing and professing their religion. 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. 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. Therefore marriage. maintenance. 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. let us look into the lives of women situated in the maze of these contested notions of state and religious membership. While the Hindus view it as a ‗Sanskara and a Contract‘. When we take into consideration the passing of the Hindu Code Bill both amidst widespread protests and support. Muslims as a ‗Contractual Union‘. will definitely come across various restrictions that these laws put on women. The one. 2008. It has left the state with a lot of scope for patronizing a particular community over others according to the need of the hour.the women. 2011). 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. without even any other body reviewing it. which now 31 . 297-310). guardianship. 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. divorce. 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. This kind of dual membership has in most cases acted against women.

desertion and adultery as independent grounds for divorce to both Christian men and women. were often cited as having been left untouched. 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. 19). The Christians. whichever was less and the Cochin 32 . It was until 2001. 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 Travancore Succession Act 1916 gave a daughter one fourth of the son‘s share or Rs 5000. The rights of the Muslim men who were allowed to marry for four times.made polygamy an offence. it in fact gives her the status of residuary inheritors. 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. The Muslim woman on the other hand has a right to inherit property but it does not give her the status of a sharer. 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. by being left to regulate themselves according to their own customary practices. 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. There exist now a set of laws to protect the interest of the women belonging to the Hindu religion. which made it literally impossible for a Christian woman to get divorce from her husband. grandson and great grandson were made class 1 heir (Agnes. However the Indian Divorce Act was later amended and was made the ―Divorce Act‖ which provided cruelty. governed by the Indian Divorce Act 1869. mothers and wives of pre-deceased son. However as will be seen in the coming pages. it is definitely not prudent to see these laws in an uncritical fashion. and the minority religions have been favored. had the right to unilaterally give divorce to their wives by pronouncing triple talaq. The Hindu Succession Act 1956 gave daughters the right to inherit their father‘s self acquired property thereby raising their position to the rank of class 1 heir. 2011. 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. 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). For the first time wives.

Christian Succession Act 1922 gave daughter one third of the son‘s share or Rs 5000. 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. 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. lawyers. 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. The codification of the Hindu laws which took place during the 1950‘s was done in order to improve the position of the Hindu women. 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 majority of the issues concerning women however emerge from this sphere. The Marxist theory believes that women‘s suppression has occurred due to the relegation of their work inside the house thereby rendering it unworthy of recognition. whichever was less. 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 one‘s life. This distinction believes that the state‘s regulation is sought and permitted only in the public sphere whereas the private sphere is to remain unregulated by the state. which is seen as one of the major reasons behind making women‘s work unproductive. The Travancore Succession Act however was struck down in the Mary Roy case in the year 1986 (Agnes. 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. 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. 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. 1998). 2011). 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 women‘s claim for maintenance on the grounds that their husband‘s have 33 . academicians in their own specific manner. The new laws have been criticized by feminist activists.

It finally led to the decision that divorced Muslim women cannot make use of the Section 125 of the Cr. keeping in consideration the overall development of the child. In fact according to Flavia Agnes (1995) this has deprived women in polygamous marriages the safeguards which were there prior to the amendment. The cases pertaining to the custody and guardianship tells us how the state and its legal machinery accords a secondary status upon women. Such a regulation in fact places women in a far worst situation in which they run the risk of losing their married status. The dichotomy between the private and public gets reflected in a clear manner in the controversy around the Shah Bano case in 1985. by considering the father of the child as the natural guardian. when polygamous marriage had legal recognition. 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. Here too the father has greater chances of winning the legal battle because of his generally better financial position. deriving it from the upper caste Brahmanical norms. which we shall take up in the section in which we discuss the Uniform Civil Code. 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. The Hindu Minority and Guardianship Act of 1956.P. After which the court gives custody to the parent whom it deems fit. which give Hindu women the status of the legal guardian comes with a clause attached to it. However this case is not an ordinary case in some other sense as well. and mother as the custodian up till a certain young age of the child. which makes it really difficult for the women to survive economically and not fall into destitution. and be degenerated into the level of one‘s ―keep‖ and prostitute. Let us now take the instance of divorce in case of Muslim women. and that is—that the mother is the natural guardian but only after the father. how does the court and law arrive at an adequate amount? How is the quantum of maintenance to be arrived? 34 . 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. Firstly.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.C. So we can see it clearly that the laws are actually in line with the dominant patriarchal ideologies.

Since there are not adequate safeguards for women within the personal laws. 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 women‘s status as an equal citizen in the country. The wife becomes helpless in such a situation. the husband can create technical loopholes by disclaiming a legal marriage and hence free himself from paying any maintenance (ibid. It is generally the women who have to face such internal discriminations. 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. 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.Secondly. in order to give them some kind of ownership right and an amount of economic independence. Though the Hindu Succession Act 2005 have been made. we shall see 35 . The case of Muslim women who gets half the share of their brothers is justified in the name of Muslim men‘s responsibility to pay Mehr and maintenance of the children. it is only a small section of women who are enjoying the benefit of such legislation. 238). 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. The limits of the state in interfering with the religious practices have left the lives of women in great difficulty. In fact there are various peasant communities where the women are not allowed to enjoy property rights. Thirdly. 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 women‘s rights in these societies (ibid. under the patriarchal and dominant religious ideologies determining and governing their lives. therefore it makes it relatively easier for men to commit crimes against women which are mostly sexual in nature. 1992. 1989). In the coming section. These forms of violence deny women the autonomy of their body. but when we look at the actual scenario. Bina Agarwal (1996) makes suggestion about ―joint pattas‖ in the name of village women. The case against the non-payment of maintenance would again be a long drawn one involving great deal of expenses. which gives equal share of property to both sons and daughters. the husband generally evades paying maintenance after some time.

stick. but do they actually work? According to Menon (2004) the discourse about rape which is produced by the feminist and legal practices. Baxi. All other forms of penetration done by finger or other objects like bottle. The legal machinery recognizes only successful penile penetration as rape. are not considered to be rape.. and rod. The first assumption is that the law needs to be made more reflective of the women‘s experience and once this is achieved. 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. It is therefore possible that the women‘s experience may get rendered as sterile in the face of rigid codification that is done under the law (ibid. the chaste or the real woman as against the unchaste or the unreal women and the married woman against the unmarried woman (Gangoli. one will be able to chart out three fundamental issues around which the debates revolved. The narrowness of the definition of rape has been troubling the feminists for a long time now. 1197). is based on two assumptions. 2004. 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. 106-107). etc. At best the decisions are based on the notion of 36 . Due to the limited scope of the chapter we will be taking up only some selected forms of violence such as rape. guidelines to prevent sexual harassment at the workplace. 2000. VIOLENCE AGAINST WOMEN There are laws against rape and domestic violence. 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 women‘s experience which is shaped by interplay of various factors. domestic violence. 107). When one looks at the debates during the early 1980‘s in the Lok Sabha. 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. 1996. Such a distinction made by legal discourse actually makes the idea of a woman‘s 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. 336. 2004. The three issues can be classified as the following: the raped women as the stigmatized creature as against the normal women.some forms of violence that are committed against women.

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

They. 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. The Indian state and the legislature seem to have aversion towards the concept of marital rape due to the patriarchal ideology. If any person from the public comes to the victims rescue. Opinions and assumptions ranged from accepting that no real woman would 38 .to maintain the victim‘s anonymity. She was not just raped. The norms of femininity and masculinity are so much a part of the commonsensical notion (V. Further it states that the police stations should install CCTV‘s.Geetha. 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. 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. 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 the gradations of the sexual crimes be retained according to the 1860 IPC. Further it suggested that—the victims should be able to file FIR‘s online. It tells about making the police sensitive towards the victim by proper training. 2013). When the friend protested he was beaten till the time he lost his consciousness. It does not want to meddle with the established status quo of the society. Nirbhaya lost the battle for her life soon after that. later on dumped both the victims on the roadways in a complete naked state. she should not be treated as wrong doer. The committee also made recommendations for reform in the police‘s attitude towards the victims of sexual crimes. 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. The demand made by the committee regarding marital rape has been made by feminists time and again but to no avail. 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. and the girl was by then being gang raped by one juvenile and the rest three to four adults. 2013). The committee also suggests increasing police patrolling (ibid. in fact her vagina and other internal organs were ruptured when her tormentors inserted heavy iron objects into her vagina. The incident took place on 16 th December 2012 in a moving bus in which she was accompanied by a male friend of hers.

2000).falsely accuse anybody of rape for the fear of being stigmatized.4 percent over the year 2007. 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. downloaded from ncrb.7 percent of cases under the Dowry Prohibition Act in the year 2011 compared to the previous year. Further there has been an increase of 9. 141).2000) and a kind of physical violence comprehensible within legal discourse. Violence against women does not end here. 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.1 percent over the year 2010 and 23. to concerns about certain immoral women belonging to the lower castes and class with loose morals falsely implicating men belonging to respectable positions. crime against women during the year 2011 increased by 7. 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.in on 08. The NCRB says that there has been an increase of 27.2 percent in the rape cases in the year 2011 as compared to the year 2010. According to the National Crime Records Bureau (2011). These kinds of legislations lay bare the double standard that the legal 39 .05. 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. During the 1980‘s when there was wide spread protest against dowry and rape. 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. However we must keep in mind that these figures only tell about those cases which were reported. 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. goes on according to Menon (2004) to further ―mystify ―sexuality‖ as the truest deepest expression of the self‖ (ibid.2013). 2004.7 percent of cases under the Section 302 and 304B of IPC which deals with the cases of dowry deaths.nic. 1998). 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. It also says that there has been an increase of 2. 2011. There are number of incidences which go unreported due the fear of stigmatization and humiliation driven by the patriarchal ideology (NCRB.

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

In order to be not intimidated by any top level officer. 2004). The definition includes any physical contact and advances. It says that sexual harassment finds an easy ground when gender discrimination is so rampant. showing pornography and also any other unsolicited physical. however they do not qualify the criteria of sexual harassment. 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 employers of either private or public sector has to circulate the definition constituting an act of sexual harassment. The first issue comes up at the time of actual formulation of the codes.redressal of such offences. 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 phrase refers to the anti women discriminatory policies. the committee is required to involve a third party preferably an NGO or one which have knowledge about the issue (Menon. These guidelines are famously known as the Vishakha guidelines (Menon. 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 committee should be headed by a woman and not less than half of its members should be mandatorily women. The guidelines specify that it is the responsibility of the employers to provide a safe working environment to their women employees. but according to the Report there is a close relationship between the two. 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. sexually colored remarks. 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. any form of request or demand for sexual favors. 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. However according to Menon (2004). 144-145). verbal or non-verbal conduct of sexual nature. 2004. The guideline has also tried to define acts of sexual harassment. 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. The second issue that 41 .

sex. or will it just lead to the codification of the norms of the majority 42 . therefore after omitting such an important section from within its purview. 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. Will it be able to reflect the interest of all the sections of the society. 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. with widespread poverty. she says that the expectation of the local supporters of the complainant to take the internal political struggles into concern also proves constraining (ibid. Lastly.she raises is with regard to the setting up of the committee.154). 148.selective abortions. the problem arises while deciding whether the members should be elected or nominated. However the problem with election is that it might lead to such an individual coming into power who actually confirms with the existing norms. 2004. 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. According to Menon. 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. who may in turn reflect the interests of those who are in power. We understand that the three kinds of violence which we discussed in this section are not just the only forms of violence. We have seen that these are some of the vital issues to be confronted in order to make the guidelines effective. leading to the killing of female fetuses. across people belonging to different religions. such as child marriage. There is no doubt that there are other forms of violence. the guidelines should not expect to gain much. In a country like India. it has become almost a rule for majority of the women to engage themselves in the informal sector. 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. Nomination may lead to people with power getting nominated. It becomes an issue of concern under those circumstances where there is no proper trade unions to keep a watch on the rules.

the Mataa which was due to her. but it stopped thereafter. which will then lead to a kind of conformity and not uniformity. which gained important dimension during the mid 1980‘s. By then the case had entered the Supreme Court where Shahbano‘s counsel argued that the provision of maintenance was considered as righteous in the Koran. which according to the advocates of the UCC is under threat due to the presence of plural systems of legality.community. it was held that Section 125 could not be held down by the religious barriers. The demand for a UCC is portrayed as a requirement for national integrity. Her counsel Daniel Latifi cited two verses from the Koran defending his argument. The Magistrate ordered that Rs 25 to be paid and the M. Shahbano was a married Muslim woman for 43 years. The judgment was resented by the Muslim religious leaders 43 . One was that both the Muslim personal law as well as the Section 125 Cr. Secondly.C upheld Shahbano‘s right to maintenance. thereby forcing these communities to follow the new laws. we shall look at the debates around UCC. 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. High Court raised the amount to Rs 179. This claim is criticized by the minority communities.20. which was a considerable amount taking note of her husband‘s monthly income of Rs 5000. The judgment was met with great amount of criticisms from the liberals.e. which is mentioned as a goal to be reached in the Directive Principle of the state policy.P. Thirdly. In this section. after which her husband drove her out of her house to bring another woman in. It is the Shahbano case which has become a landmark reference point in the debates on the UCC. as they view it as an attempt to impinge on their religious freedom. feminists and secularists. The husband for the first two years paid Rs 200 a month as maintenance. 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. citing three reasons for it. It was the All India Women‘s Conference which for the first time articulated the demand for a Uniform Civil Code (UCC). It is than that Shahbano filed for maintenance under Section 125 of the CCP. Finally the apex court upheld Shahbano‘s right to maintenance. Shahbano‘s counsel argued that there was a third type of payment i.P. the judgment was critical of the ways in which the Hindu and the Islamic religious scriptures treat women in an unjust manner.

Let us look at both the cases in brief. 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. Ratna Kapur and Brenda Cossman (1993) argues that the Right wing parties believe in formal equal treatment towards all the religion.C. In the year 1983. 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. The demand for UCC which was made during the Shehnaz Sheikh and Mary Roy‘s cases also receded into the back when the entire Shah Bano controversy was taking place. 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. 1993. 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 Women‘s Bill 1986. Full of communal overtones. 159-165). Shehnaz Sheikh of 26 years 44 . the case finally led to the passing of the Muslim Women‘s (Protection on Divorce) Act 1986 which now barred Muslim women from claiming maintenance under Section 125 of the CCP (Kumar. However it is the time around which this case came up that has lent it such significance. The liberals.C as a challenge and an attempt to override the Muslim personal law. 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. 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.on the ground that it was an attack on their community. The Muslim communalist fraction demanded the repeal of the judgment and also they demanded exemption of the Muslim women from the Section 125.P. 37). They saw the grant of maintenance under section 125 of the Cr. Radha Kumar (1993) highlights that. a bill was laid in the parliament asking exclusion of the Muslim women from the protection of the Section 125 of Cr.P. The Hindu communalists used this as a pretext of calling the Muslims ‗anti women‘ and ‗barbaric‘. The first case is about the various difficulties faced by a Muslim woman because of the practice of talaq. Radha Kumar (1993). criminal nature. and it is on this ground. 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. As a result in the year 1985 August.P.C.

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

the personal and the egalitarian laws (ibid. 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. so it had to accommodate the communal sentiments by giving them fundamentalist concessions in the form of the above mentioned Act (ibid. 9).e. 1993). 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. 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. 1998. 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.. 46 . 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. and in turn the religious identity being constituted through its women ( Kapur and Cossman. 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. Under these situations where women are increasingly seen as constituting their religious identity. 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‘ one‘s religion.agitators who were Hindus. 1993). 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. 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. It is under all these compounding factors that the Women‘s movements demanding the UCC have started to rethink their stand.

The arguments which supported such a move were based on the facts that parties informed by patriarchal ideologies were reluctant to sponsor women candidates. 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. With some of these aims in mind there has been demand for thirty three percent reservations for women in the parliament. However. Liberal feminists suggest that more and more women should be brought in and that this would eventually lead to forming egalitarian laws benefitting women. This can be achieved through various affirmative actions. The women representatives during the earlier debates around reservations for women. She holds that feminists supporting reservations base their argument on the basis that such a policy would help women to 47 .However under the present circumstances of rising communal politics it is difficult to say what kind of an end the UCC will see. that reservations would lead to greater amount of women‘s participation and it was also believed that presence of more women in legislatures would change the directions of debates and policies. In the following section we will see the various grounds supporting and opposing the reservations. Giving reservations to women in village panchayats and the municipalities under the 73 rd and the 74th amendment act is a case in point. In relation to the issue of women‘s reservation Menon (2004) makes a distinction between feminist arguments for and against reservations and caste based arguments for and against reservations. thought it was unnecessary and that it would further underestimate the women. there are also oppositions labeled against it. 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. thereby forcing the minority communities to conform to it. 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. 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 criticism that the invisibility of women in the public sphere is one of the reason behind women‘s subjugation.

In fact women even after getting reservations will be part of the political parties and they will have to endorse the party ideology. 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 size of the constituency will make it difficult to identify cases of corruption. 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. 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. is based on the assumption that there should be ‗reservations within reservations‘ promoting the interests of the women belonging to the lower castes (ibid. The support for the Bill. It highlights the internal contradictions that are bound to come up if we go ahead with the Bill in the current form. it will lead to greater struggle between three representatives over the resources thereby making real progress difficult.get into politics and make pro women policies. In the current atmosphere of NGOisation and Globalization. and lends a very interesting insight to this issue. In fact solution of the three member constituency will also have their own specific problems. Some would like to read this as any other opposition party. it is probable that the women representatives get institutionalized and lose their vision. In short it would lead to biwi-beti brigade in the parliament. rigidify and thereby reestablish the prevalent patriarchal norms (ibid. 2004). however this is not what it shall be. There will be no electoral 48 . on the other hand. There are also feminists who believe that reservations would just be able to bring in those women who would be having their political godfathers. The caste based oppositions is based on the rejection of women as a homogeneous category. 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. 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. However on the other hand the castes based arguments for and against the reservation policy are entirely different. Keeping this entire debate in mind is important for us to realize that it is very difficult for us to imagine an all women‘s party in the absence of any substantive reservation policy for women. 2004. 172-173).

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. However as a non dalit feminist. Gopal Guru (1995) gives two reasons for the marginalization of issues concerning dalit women. They tend to homogenize the difference of the non dalit forces.defeat for them as this party shall not contest in the elections. They see it just as an extension of the marginalization that the dalits are subjected to by the upper castes. the external and internal factors. The concept of universal sisterhood came under scanner by feminists representing different belongingness. It is definitely the ‗politics of presence‘ that is being done as against the ‗politics of ideas‘ (Phillips 1995). physical and historical conditions. These he calls. This has to be a serious endeavor in order not to be assimilated by the state. It therefore makes less valid and less authentic the non dalit voices representing dalit women. Sharmila Rege (1998) is not at ease with Guru‘s assertion on the ground that such kind of a different talking might just degenerate into the narrow 49 . 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 first one can be seen at work when we see the dalit women‘s voices getting marginalized under the homogenizing attitude of the non-dalit forces. This is precisely the reason why Guru believes that the dalit women should talk differently. There was increased assertion that the experiences of women vary according to their social. He believes that the particular social belongingness of an individual is crucial for the authenticity and validity of their claims. 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. It shall function as a consciousness raising body about the politics done around women. The manifestation of this problem can be seen in the debates around the UCC and the Women‘s Reservation Bill. On the other hand the dalit women also have to face marginalization due to the patriarchal attitude of the dalit men. in the next section we will try to identify certain voices which speaks against the homogenizing feminist ideology. economical. One such dissent has been from the dalit feminists.

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

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. there is yet another line of criticism coming in from feminists like Gail Omvedt. However we find that Madhu Kishwar (1996) nevertheless thinks that the 51 . 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. Now the question is that will law come to their rescue. Nandita Shah. however they believe that it can nevertheless be used as an agent for bringing the women‘s issues to the front. According to Menon (2004) the interactions between law and women have been viewed by different feminists in different ways. who believe that lobbying for laws by the urbanbased groups is wastage of energy. She believes in mass-based militant politics (ibid. 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. According to Menon (2004). 2004. Flavia Agnes. The law in this sense becomes a subject of criticism by the feminists.with the disabled women and the disability movement in order to develop an inclusionary framework comprising disabled women in both theory and practice. There are feminists like Nandita Gandhi. 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‘. 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. Madhu Kishwar and Ruth Vanita‘s work reflect this argument. 5-6). and Nandita Haskar who claim that they are not under any illusion that law is genuinely emancipatory. 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. In the case of dalit women. with a hope of getting short term legal remedies. which she tries to put in the following manner. This assumption is however criticized when it is brought into light that these judgments reinforce patriarchal lines.

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. However law should not be allowed to appropriate the former task of radical politics. the market and the household. 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. This according to her needs to be carried on with other transformative strategies. of which law can be one. 52 . However I should make it clear that by no means am I seeing Menon‘s argument as a solution to the dilemmas that we have tried to discuss in this chapter. hegemonising as well as homogenizing entities and develop an alternative to it. the distinction that they make between a man and a woman. the ideal and the distorted and finally as a consequence of all these distinction.Indian culture is women friendly as it is always ready to make progressive laws for women. 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.

In such a situation it became imperative for the women‘s movement of the 1980‘s to take up the issue of amendments to the Act with great vigor. The increasing number of dowry deaths towards which the state‘s attention was drawn by the women‘s movement in the 1980‘s is a subject worth investigating. the home and the world. 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. Having said so. As has been already discussed in the previous chapter it was this distinction between the inner and the outer sphere.resulted in the gradual fading of the women‘s question towards the end of the nineteenth century. the practice of dowry has assumed an altogether different character. In this work I have taken up the issue of dowry in order to understand the terms on which the women‘s movement has negotiated with the state. which was based on the belief that the Indian tradition had a rich past according great status to women.CHAPTER THREE THE INSTITUTIONALISATION OF DOWRY AND ITS MODERN MANIFESTATIONS In the earlier chapter we looked into the various issues confronting the women‘s movement‘s engagement with law. However it is significant to note here that it was not just the reformists who were taking up the women‘s question. This kind of sharp distinctions. We shall discuss about the interaction between the women‘s group and the state on the question of dowry law and its amendments in the coming chapter. We try first of all. 53 . Here we must note that the effectiveness of the already existing Dowry Prohibition Act of 1962 can be said to be negligible. In the current context of consumerism. that. 1993). The women‘s 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. 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. since there were others who were more keen about reviving the position of women in India. 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. to see how the practice of dowry got entrenched and institutionalized in India. 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.

It will see if dowry is only a Hindu phenomenon or does it exists among any other religions. Whether it is stridhan or any other form of limited estate.is progressive legislation enough to bring about social. Hence in this chapter we will see dowry as being both institutionalized as well as a condition for marriage. women are never the owner of these because they don‘t have agency. This chapter borrowing on a great deal from Sheel‘s work will discuss about the process of the institutionalization of dowry. Now to reiterate the central question of this work. Ranjana Sheel (1999. The fifth section will take up the issue of dowry in the contemporary context of consumerism. even equal succession rights are hardly able to show real results. 34-62) speaks of the process of its institutionalization. In such a situation of powerlessness. 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. it is only a married woman who is entitled to it. In addition to the process of institutionalization. Be it the traditional and voluntary stridhan or the contemporary and involuntary dowry. And then we will conclude. In the sixth section we will examine the relationship between women. It will also talk about how dowry went on to assume the status of a condition for a marriage. land and dowry. I also argue here that it is the institutionalization of marriage. Are both the same? The third section will talk about the ultimate importance of marriage as an institution in the life of a woman. We must here understand about the socio-cultural. 54 . Then second section will be a comparison between stridhan and dowry. 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. I argue here that dowry can also be seen as a 'condition‘ for a valid marriage. 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. 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. The fourth section will talk about the process of institutionalization of dowry.Regarding the establishment of the practice of dowry.

which is a note on dowry. ornaments. They were of the opinion that dowry is a woman‘s stridhan and it is therefore not bad. 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. 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. Such a change in the definition was widely and uniformly criticized as being unclear and vague. 182). ornaments and other goods. unless it was extorted out of the bride‘s father. The definition further allows presentations of any amount to be made in the form of cash. 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. any property or valuable security given directly or indirectly. in 55 . UNDERSTANDING DOWRY The Dowry Prohibition Act of 1961 in its Clause 2 defined dowry as. 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. There was very less emphasis put on the conditionality aspect of dowry. The problem with the definition is that the law does not see dowry as inherently bad and devaluing for the women.With this introductory layout of the chapter. It was not seen as an essential condition for marriage. It was such an understanding of dowry among the law makers that they went on legalizing all kinds of transactions involving cash. What is bad and illegal is to demand dowry. 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. According to Ranjana Sheel (1999) this and various other equally unmindful changes brought about by the amendment were being criticized by various women‘s 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. 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‘. 1999. we shall now move on to its first section.

Rajaraman‘s (1993) interpretation is seen by Ranjana Sheel (1999. Dowry also connotes. 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. 64). 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. There is also another significant interpretation of dowry coming in from Indira Rajaraman (1983) in her article titled ―Economics of Bride-price and Dowry‖. 1973). 276). In other words. 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. According to them dowry connotes female property or female right to property which is transferred at a women‘s marriage as a sort of pre-mortem inheritance. in complementary fashion that property is transferred together with a daughter so that she is enabled to enter into marriage. the decline might be the result of the decline in the services provided by women. Under the former. The law does not set any upper limit on the amount on the gifts. which are exogenous and endogenous. 24) as a purely economic interpretation of the practice of dowry. She sites women‘s lesser involvement in the economically productive labor as a result of this shift from the bride-price to the dowry. Rajaraman‘s work is seen as polemical and ahistorical representation of dowry. a daughter and her dowry become vehicles for setting up relation of affinity between the bride‘s family and the husband‘s family (Goody and Tambiah.other word they gave legal sanction to dowry. 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. There are scholars who see dowry as some kind of ‗a pre-mortem inheritence‘ (Goody and Tambiah. She believes that there are two kinds of factors effecting women‘s participation in the labor force. According to them it is only the present form of extortion that the customary practice has assumed that it has become a problem. 1973. 275-279) explains dowry as a ‗negative bride-price in the organized sector‘. Rajaraman (1983. However in the later the reason behind women‘s lesser participation is that it is because of the increasing prosperity among 56 .

They have criticized it on the grounds that it fails to explain the prevalence of dowry in those cases where the woman is earning. 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. which will definitely result in different amount of dowry being asked accordingly. The practice of dowry is also seen as ‗groom-price‘ in the place of bride-price. She is definitely not saying the same thing for the organized sector where-in she acknowledges the existence of bidding for the groom. 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. Srinivas (1984). However. There are various criticisms which are labeled against Rajaraman‘s 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. It is because of the fact that in order to get a decent groom. In response to Sambrani and Sambrani‘s doubts. 1983 and Aziz. views that the increased leisure and the withdrawal of women from work is because of the increased prosperity of the peasant classes. which buy the leisure of their women. Aziz (1983) could not find proper explanation behind the uniformity of the dowry amount demanded. 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. Sambrani and Sambrani (1983) points out that Rajaraman did not take into account the contribution made by women in the domestic sphere. when she talks about the evaluation which is being made with regard to the contribution versus the cost of subsistence. 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 women‘s contribution as against the cost of her subsistence would be based on more or less the same indices for the entire unorganized sector. On paying bride-price. 1983). Rajaraman says that she is definitely taking into consideration the contribution made by women in the household. one gets the ownership right over the 57 . 277) groom-price is not the same as bride-price. the girl‘s parents have to pay a huge amount of dowry. 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.the land owning communities. 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. However according to Indira Rajaraman (1983.

According to the National Crime Records Bureau (2011). there has been an increase of 27. the discussions on dowry seem to be devoid of the political dimension constituting it. 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.e. such as the distinction which she makes between the organized and the unorganized sectors of labor. This kind of gifting to the girl was known as her stridhan over which she had full right. 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. However. however I am aware of the fact that with regard to the payment of dowry there was no demands made. In the coming sections we will talk about the various forms of marriages prescribed by Manu. 1999.. house etc. 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. in which it is clear that the form of marriage which involved some kind of transaction.7 percent of cases under the Dowry Prohibition Act in the year 2011 compared to the previous 58 . Though dowry existed even in earlier times but it was largely voluntary in nature. Dowry death has increased in such a proportion that it has finally become an issue for women‘s mobilization. The discussion on Dowry can never be a simple one as it has been one of the realities of a woman‘s life. The stridhan largely consists of goods which are moveable in nature and does not include items which are immovable in nature such as land. the Brahma form of marriage which was accorded the highest sanctity. The analysis of dowry in terms of its power dimension is not much visible. i. Here it is important for us to distinguish between the dowry as a payment and the dowry as a condition for marriage. however the present manifestation of dowry is in the form of extortion and coercion (Sheel. It is here that I would argue against the voluntary nature of the system of dowry. Srinivas (1984) is giving more or less a generalized development which has taken place with regard to dowry but when we look into Rajaraman‘s work we find that she is formulating her arguments based on more specific locations. This study does not see dowry as a voluntary transaction. 17). In today‘s context dowry has assumed such magnitude that the amount of violence associated with it is gruesome. There is no real possession of the groom.women but such is not the case with regard to the groom-price.

We have to study the particular characteristics that it has assumed in the modern times.nic. To quote Manu No father who knows (the law) must take even the smallest gratuity for his daughter. about which one can gather evidence from the Vedas and Smritis (Sheel. This in turn makes the act of giving away of a maiden in marriage by her father as the highest act of religious sanctity. In fact the kanyadana (giving away of bride to the groom by the bride‘s 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. through avarice. The Hindu Brahmanical tradition accords great amount of sanctity and importance to the acts of dana and dakshina. downloaded from ncrb. we will see if it exists in other religions.7 percent of cases under the Section 302 and 304B of IPC which deals with the cases of dowry deaths (NCRB. Therefore the presentations accompanying a bride at the time of marriage known to be dakshina sanctified the marriage and elevated the position of the bride‘s family. is a seller of his offspring (Buhler. Hence in the next section we are going to discuss the similarities and dissimilarities between stridhan and dowry. The amount of gifts accompanying the girl was largely voluntary in nature and depended on the financial position of the bride‘s family. We shall also look at dowry under the contemporary context of consumerism. This theory is one among the various explanations given behind the practice of dowry.year. 19). 2011. What came to be condemned was any sort of demands by either side in consideration for marriage. 20). 51). 19. III. As against the commonly held belief that dowry is essentially a Hindu phenomenon. 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. 1886. 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.05. 59 . 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. takes a gratuity.2013). for a man who.in on 08. 1999. Though the Vedas and the Smritis allowed for dowry they had a huge contempt towards bride-price. It also says that there has been an increase of 2.

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. a common enough and hoary Indian device. education and the introduction of the ‗organized sector‘. at the same time it allows presents and gifts to be made at the time of marriage. clothing. However. In addition to these factors he believed that forces let loose by British rule such as monetization. According to M.e.. Apart from looking at dowry as an extension of the dana and dakshina theory there are other reasons given for such a phenomenon. modern dowry is entirely the product of the forces let loose by British rule such as monetization. To quote him As stated earlier. What is 60 . 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. She also raises some other important questions as to why does the groom‘s family not find themselves under such pressure to increase their social status by giving gifts to the girl. The attempt to equate the huge sums of cash. 1999. her stridhan. jewellery. The problem arises when we have to demarcate between dowry and gifts (Gandhi and Shah. 1992. to dakshina is only an attempt to legitimize a modern monstrosity by linking it up with an ancient and respected custom.N. It is under these considerations that the Dowry Prohibition Law permits one to give and take gifts but not dowry. furniture and gadgetry demanded of the bride‘s kin by the groom‘s. The law maintains that since it is associated with a women‘s right to property i. caste system and the kinship structure are behind the spread of dowry. hence it is not advisable that giving of gifts all together should be curtailed. Srinivas (1984) hypergamous marriage. we see that though it makes giving. taking and abetting of dowry an offence. education and the introduction of the ‗organized sector‘ has helped in promoting it. 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. 220).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 bride‘s family (Sheel. 22).

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

which constitute a major part of a woman‘s property is generally kept for the coming generations of female members in the family. They are mostly non. It is the antiwomen attitude of the patriarchal society which in order to keep women in a continued state of dependency and helplessness. Uma Chakravarty (1993) explains this to be the result of the ideological domination of the upper caste Brahmans. Chakravarty calls them ‗master-stroke of Hindu-Aryan genius‘ which naturalized these qualities and thereby went on to establish patriarchy as an ideology. Accordingly the concept of pativrata and stridharma are instilled in them right from the beginning. 583). WOMEN. The practice of disinheriting a daughter even after the presence of law to its contrary effect shows how inherent this anti-woman mentality is.alienable in nature. Even when stridhan and dowry are given to a daughter. According to her pativrata was the ideological purdah by which the hierarchical and inegalitarian social structure was reproduced with the complicity of women (ibid. The practice of marrying off a daughter to faraway places makes her even more vulnerable in a completely new and strange place. The problem gets compounded under the pattern of preferred and prevalent marriage forms of the Hindu society. it is largely related to her marital status. Thirdly. still she does not have any absolute agency over it. Moreover. Therefore it becomes necessary for us to see the institution of marriage and what role it has to play in a woman‘s life. fail to recognize their rightful claims over property. whatsoever property a woman enjoys. These kinds of commonalities help us discern the fact that women are not entitled to any real property rights. maintaining the rhetoric that it is her property right. MARRIAGE AND PROPERTY The title of the section is an attempt to highlight the linear progression in the life of a woman. 62 . The Brahmanical scriptures and texts lend these kinds of domination and subjugation all the required sanctions in a traditional society like India. 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. The family and the society right from the beginning prepare a woman for the ultimate reality of her life. 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).

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

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. people believe that increased division of the land would lead to greater fragmentation of land which they are not willing to do. people believe that if women are given a share in their parental property they will be the one ‗inheriting twice‘. It is important to highlight this reason. Sisters‘ claiming their share in the parental property is seen to be an act in defiance with the familial norms of sacrifice. Such an act is seen as divisive. The daughters are denied their legal share because this is seen as detrimental for the land holding. In 64 . However Bina Agarwal points at the fact that smaller size of land holding does not affect in any ways the crop production. The commonly held notion is that giving of lands to the daughters would lead to greater fragmentation of land. therefore if she is also given a share in the natal family it is she who will be inheriting twice. 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. clan and village exogamy also helps in depriving women from inheriting land and other immovable properties. Acknowledging property rights of daughters would lead to the family land passing on to the hands of the son in law‘s family. This is based on the assumption that a woman receives her matrimonial property. there are women themselves who sign off their property in the names of their brother.transfer their land into the hands of their daughter‘s in-laws. Agarwal (1998) points that the kind of preferred marriage alliances involving caste. The Hindu traditions believes it to be a sin to even drink water from a daughter‘s family which makes it impossible for parents to imagine themselves taking any kind of assistance from their daughters during their bad times. once from their father and then from their husband. Fifthly. however it is not the same in the case of daughters. Sometimes men even take recourse to violence in order to intimidate women against acquiring property. more often their husbands or sons (Agarwal. 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. institutionalized by the patriarchal ideologies. Fourthly. Thirdly. Secondly. love and respect for one‘s brother. 1998. They believe that smaller holdings of land would not serve any purpose. 21-32).

The state and the law under their legislative and judiciary capacities only help in reaffirming these binaries. in preventing women from inheriting property. Agarwal (1998) argues that emphasizing only on the patriarchal attitudes of family and the society. It is based on redistributive justice and efficiency theory. 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. 1998. 1989). Though this can be seen as a general practice and not something which is laid down by the law. 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. It gives the land to the tiller and attempts to prevent fragmentation of land (Agarwal. On its part. It means that when a woman becomes a widow. we must therefore understand that how 65 . the decisions made by the state are based on the deep rooted patriarchal structures. and in fact endorsing them. They somehow assume that the head of the family is and should always be a male member (Agarwal. takes us away from consideration of the important role that the state plays in not challenging these norms. political and economic bias against women strong. 1998). In most cases the elder brother is married with a living wife and children. it is the elder brother that she marries. 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. when there are any kind of land redistribution project undertaken by the state it gives the ownership rights to the men. redistributive programs and land development measures insists on allocating land to the head of the family and not any woman member of the family.cultural. Since we are talking about the role played by the state in perpetuating the inherent patriarchal biases against women.fact in those communities where they practice close kin marriages there the women have always scored better in inheriting property (ibid. 34). 16). The state undertaking land reform measures. For instance. and where this is not possible. she is forced to marry the younger brother of her husband. 1998. however do not such general practices by the state go on to strengthen the socio. 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. Prem Choudhury (1989) highlights that there are parts of the country where people follow the custom of leviratic unions.

2145). 1994. 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. 1999. Agarwal (1998) gives us the distinction between the two schools. 2145). However even before the transfer took place. establishing the legality of those customs which generally devalued women. that is during the rule of the East India Company there were attempts made towards codifying the laws. 66)..does it actually operates. After the sepoy mutinee of the 1857. The Indian subcontinent was governed according to the various customary laws present at that time. in cases of dissidence against the empire and also in the fiscal matters (Kishwar. For the East India Company it became increasingly difficult to rule under the prevalence of the great diversity among the customary laws. The Mughal rulers also gave recognition to the customary practices however reserving certain exclusive rights upon themselves i. The laws are there to protect our rights and make us aware of our constitutional entitlements. Also we will look into certain other instances in which the relatively pro women customs were overlooked at. These schools were established around the twelfth century AD. 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. The kind of laws which were enacted by the colonial state was based on various factors. 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. The laws also reflect the prevalent public opinion. In the coming section we shall see how dowry got institutionalized. These codes were adapted later on by the Mitakshara and the Dayabhaga schools which were applicable in the whole of India. It is this context which makes it significant for us to understand the codification of law which took place during the colonial rule. the administration of India was transferred to the British Crown from the hands of the East India Company. Mitakshara was followed in most parts of India. Narada and Brihaspati. whereas Dayabhaga was more famous in the Bengal region (Sheel. 1994. Both the schools made their 66 .e. 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.

However. Sir Jones translated the Code of Manu in 1794. since women were not made coparceners they were not entitled to any property rights under this system. According to the project. According to Ranjana Sheel (1999) the British did not understand that it was not something which existed like the Indian Penal Code. Manu however did not refute the fact there existed conflicting customs and traditions in the family and that they should be respected (ibid. 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. On the contrary. 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. one is the joint family property and the other is the separate property. The Mitakshara school made distinction between two forms of property. and that it did not have any modern legal sanctions. whether it be joint or separate (ibid. Manu. Then came the translation of the commentaries of Vijnanesvara‘s Mitakshara and 67 .prescriptions regarding the inheritance rights of man and woman. paternal grand father. paternal great grand father and the devolution could take place up to a depth of four generations. 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. The joint property included the property acquired by father. Under this system daughter‘s rights came after the rights of the widows. Under this system a man had absolute rights over his separate property. 1999. They were some of the dictums which he prescribed for the people belonging to the upper caste (Brahmans). The rights of a daughter only included her right to be maintained till her marriage and the bearing of her marriage expenditure. The code was based on the beliefs of the writer. under the Dayabhaga system the share of daughter‘s and widows was recognized. The first text which they took for translation was the code of Manu. Also it made a person the absolute owner of all his property and had the absolute right to dispose all his property. 1998. This system meant that those coparceners who were living had an interest over the dead. It gave widows very limited rights to property which excluded any kind of alienating rights. It was Warren Hastings and Sir William Jones who undertook this task. Though the rights of a widow and a daughter did not change a lot under this system. 8-10). Mitakshara system did not allow women to become coparceners. There was however conditions attached to such consideration which required the widow to remain chaste and not conduct remarriage. 66-67). The devolution of the property under Mitakshara system took place by way of survivorship.

including full power of alienation in respect to such property which they actually enjoyed till then under Jain Customary Law. When we look at it in hindsight. 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. The courts for the purpose of clearing their doubts also attached pundits to them. 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. Therefore the reformed law worked to their detriment (ibid. among others). It is important here to give some instances of codification wherein the progressive customary laws were bypassed for the sake of regressive laws. 1994. For example. as noted earlier). Take for instance the Hindu Women‘s Right to Property Act of 1937. 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.Jimutvahana‘s Dayabhaga by Colebrook in the year 1810. The process had already begun under the British. One such practice is the Karewa form of marriage about which we have already discussed in the previous section (Choudhury. It therefore also took away from the Jain widows the absolute interest in property inherited from their husbands. established the Hindu widows limited estate in her husband‘s property (in opposition to the original mitakshara law. 1999). 2151). This was against the various other local customs and tradition prevalent during that time. 1937. 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 Hindu Women‘s Right to Property Act (HWRPA). 68 . ostensibly passed to enhance women‘s rights. 1989 and Kishwar. 1994). Virashaivas. Coorgs. These Pundits were Brahmans who naturally spoke in favor of their own customs over the local customary practices wherever any such doubts existed. 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.

32). The forcible abduction of a maiden from her home. 27). 1886. 1886. whom (the father) himself invites. III. which springs from desire and has sexual intercourse for its purpose (ibid. 1886. 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. 1886. In the code of Manu. is called in the smriti the Pragapataya rite (ibid. Now when we take into consideration the institution of marriage. III. during the course of its performance. while she cries out and weeps. that is called the Asura rite (ibid. to a man learned in the Veda and of good conduct. 2151-2152). which led to the neglect of the progressive customs among the Khasi community. 1886. III. The eight forms of marriages are given below: The gift of a daughter. The voluntary union of a maiden and her lover one must know (to be) the Gandharva rite. ‗May both of you perform together your duties. is called the Rakshasa rite (ibid. III.‘ and has shown honor (to the bridegroom). are the ones which are not approved. III. after (her kinsmen) have been slain or wounded and (their houses) broken open. that is named the Arsha rite (ibid. When (the bridegroom) receives a maiden. 1886. The gift of a daughter (by her father) after he has addressed (the couple) with the text. 1994. 28). 30). 31). III. for (the fulfillment of) the sacred law.As pointed out by Kishwar (1994). out of which first four are the approved forms of marriage and the last four. he stipulates eight kinds of marriages. after receiving from the bridegroom. we shall see how this kind of a codification affected it adversely. The gift of a daughter who has been decked with ornaments. When (the father) gives away his daughter according to the rule. III. 29). after decking her (with costly garments) and honoring (her by presents of jewels). a cow and a bull or two pairs. according to his own will. they call the Daiva rite (ibid. is called the Brahma rite (Buhler. to the kinsmen and to the bride herself. 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. 33). 69 . to a priest who duly officiates at a sacrifice. after having given as much wealth as he can afford. 1886.

Though the court accepted the presence of local customary marriage practices. it also started recognizing the Brahma form of marriage as the most legal and standard form of marriage (Sheel. the most base and sinful rite of the Pisakas (ibid. 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. This kind of codification can be said to be not just the ‗institutionalization of dowry‘ as given by Ranjana Sheel (1999). 1999). The court to consider a marriage as a Brahma marriage has to find evidence that there was no bride-price taken in that marriage. Such kinds of complex situations along with the process of Sanskritization. or disordered in intellect. Alongside this. the court considered all marriages to be under the Brahma form of marriage. 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. Even if any other form of marriage wanted to gain the status of a Brahma marriage. III. 74).When (a man) by stealth seduces a girl who is sleeping. It interpreted gift giving at the time of marriage as kind of inheritance right of a maiden daughter (Sheel. 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. in fact we might as well see it as getting transformed into a condition of marriage. However it did not consider a marriage to be Brahma marriage if there was no gift giving at the time of kanyadana. Now we can see that. 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. at first it was dowry 70 . that is the eight. 1999). intoxicated. then all it had to do was involve the transaction of dowry in it. because of the difficulty to prove the legality of such marriages (Agnes. It explains how dowry was at first made a requirement to acknowledge a marriage as a Brahma marriage. 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 women‘s property right. were sacrificed for the sake of uniformity driven and guided by their myopic vision of the diverse Indian society. 34). 1995 and Sheel. 1886. thereby making the practice legal. According to Sheel (1999) in the colonial era. 1999. 1995).

Domestic violence. Hence. 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. once again exemplifies the limitation of the legal process. 2003. 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. it can even lead to the death of a woman. Dowry demands have assumed the characteristics of ransom and blackmailing. It is when these kinds of instances of dowry deaths increased and came into light that the women‘s movement took up this issue during the late 1970‘s and early 1980‘s. According to Indu Agnihotri‘s71 . 308). Rising crime statistics against women related to dowry violence has made it imperative to see the institution of dowry in its modern manifestation. DOWRY AND ITS MODERN MANIFESTATIONS ―On 1-2 September 2002 the All India Democratic Women‘s Association (AIDWA). 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. now there was a blurring of this distinction between the private and the public. dowry deaths which were earlier passed off as a family‘s internal matter were no longer so. then it was the Brahma marriage which was given the legal legitimacy by the law as the highest form of marriage. together with the Indian School for Women‘s Studies and Development. which further went on to institutionalize the practice of dowry. coercive gift giving ritual. in which a situation. The practice of dowry which was made as a condition as well as an institution. a case or an individual has to be made to fall either under ‗this‘ category or ‗that‘ category.which was made a condition for a Brahma marriage. organized a workshop to discuss the ‗Expanding Dimensions of Dowry‘‖ (Agnihotri. The ‗personal is political‘ can be said to be the agenda of the women‘s movement in which the most personal aspects of an institution such as marriage was brought the public light. We shall discuss about this in the coming section. failing which. went on to become a legal requirement during the colonial times has culminated into a practice of involuntary. 2003. During this time the women‘s movement took up issues which were earlier said to be belonging to the personal realm. 308).

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

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

There was a coalition formed which was called the Forum Against Sex Determination and Sex Preselection (FASDSP).read. 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. The sex selective abortions of female child persist even though there are laws to curb it. 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. In fact dowry is one of the main reasons behind a girl child‘s under nutrition and illiterate status. The passing of the Muslim women‘s Act 1986 together with the prevalence of dowry goes on to create an increasingly vulnerable situation for a Muslim woman post her talaq. This was possible because of the struggle against the practice of the pre-natal sex determination which was launched by the women‘s movement along with the civil liberties and the health movements in the year 1984. 2006. 39-48). It actually selects one form of property (monetary) over the other (woman) form (ibid. 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. which brought out the Maharashtra Regulation of the Use of Prenatal Diagnostic Techniques Act of 1988.e. 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. The first attempt to curb the practice was initiated by the state of Maharashtra. 1-40). 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. It is seen that there are increasing cases of abortion of the female fetus. The loopholes in the Maharashtra Act made it 74 . however there is also one more phenomenon which is fast acquiring pace. 3973-3976). the practice of sex selective abortion. 2001. 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. 2012. 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. interpret and understand the laws through the gender perspective (Hussain. 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. i.

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

the effectiveness during its delivery gets thwarted due to the process of binarization. In the next chapter we will see on what terms the women‘s movement interacts with the state and its laws with regard to the issue of dowry. 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.patriarchal prejudices to the meanings of the right and the wrong. 76 . assuming an autonomous character at that particular point of time. It will discuss the challenges thrown at the state by the women‘s movement during the 1980‘s and 90‘s.

104). The uproar against it in the 1980‘s was the result of the increasing number of dowry deaths coming into notice. The irony however lies in the fact that little has changed even after that. 1999. however protests in the other states could not spread much unlike the movement in Delhi. the police had registered a case of suicide (Kishwar. the state decided to amend the Dowry Prohibition Act of 1961. However. 1999. 12). The victim was doused in fire by her mother-in-law and sister-in-law while she was watching TV. The year 2005 also brought in equal inheritance rights for women along 77 . As a response to the widespread movement against dowry and the state‘s ineffectiveness in controlling dowry deaths. 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 term ‗new‘ here indicates to the newness of the issues during this period. There was an immediate spark to the movement against dowry due to the death of Tarvinder Kaur of Model Town (Delhi). Raka Ray (2000) in her work argues that it is the particular political field on which the success of a movement depends (ibid. It is not just the city of Delhi where protests against dowry deaths happened. AND THE RESPONSE OF THE STATE The late twentieth century saw the emergence of an upsurge against the system of dowry. it was due to the particular character of the political field (Ray. once in 1984 and then once again in the year 1986. The Act was subsequently amended twice. In spite of the victim‘s dying declaration against her in-laws. The women‘s movement started raising issues of violence against women during the latter half of the twentieth century. 2000) in Delhi which gave the dowry movement the kind of articulation that it needed. The movement criticized the ineffective and impractical Dowry Prohibition Act of 1961 as being a tokenism act on the part of the patriarchal state. it started making claims for women‘s equality directing their energy towards the state for ensuring it (Sheel. The cases of atrocities linked with dowry. instead of decreasing keeps increasing. 1984). The ‗second‘ or the ‗new‘ phase of women‘s movement started at the end of the 1970‘s and by the beginning of the 1980‘s. 2000). which led to its recognition as the ‗second phase‘ of feminism (Mazumdar. The newness of the second phase has to be understood keeping in mind the newer issues raised by the women‘s organization during this time. WOMEN’S MOVEMENT.CHAPTER FOUR DOWRY.

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. There were different aspects of the Bill which had to go through quite rigorous debate. 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. 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. For the purpose of finding answers to the above raised questions and for the sake of clarity of the arguments. How did it shape up? Were there any disjunction between the avowed and the literal objectives? If yes.with men. I shall try to make the 78 . look into the LSD on the Act. we shall have to get behind the scene to understand what the inherent objective was of the Act. In order to understand the failure of the Dowry Prohibition Act 1961. Then we move to our third section which will take up the tussle between the women‘s movement and the state with regard to the issue of dowry. It is in this context that it becomes important to take note of the laws dealing with the issue of dowry. Also significant was the uncertainty about the nature of the offence and the penalty for it. There were remarkable differences of opinion on the definition of dowry. That section will look into the presence of any kind of patriarchal elements in the state‘s response. Eventually in the conclusion we will try to look in general at the feminist engagement with the law and the state. however it was the definition of the term dowry which took the largest share of it. In the coming section we shall look into the LSD on the Dowry Act. In the first section we will as has already been mentioned. 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 women‘s movements of the 1980‘s under the light of the politics happening during that period. 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. In the fourth section we will look into the responses of the state towards the demands made by the women‘s movement. I have tried to compartmentalize them into specific issues and then delve into the debates around it.

so as to what constitutes a dowry and what does not. In fact even if it was dowry and it was voluntary. that the members would solicit the interference of the police and the state.. It is only when the money is extorted. Shri Hajarnavis had said to this effect that Voluntary gifts to any extent. There was a section of parliamentarians who were completely in support of the voluntary gifts given at the time of marriage. in any form. XXXVI. I agree. 79 . To that extent. It was they believed was the love for their daughter that a man should not be stopped from giving gifts to the daughter. It is important to point out here that more than dealing with the issue of dowry.. of course. or any property is extorted as a consideration. he should be prevented from doing so. From the above excerpt it is quite clear that it is only when an individual‘s discretionary right over his property is at jeopardy. Greater number of members agreed on the fact that only that which is extorted out of a bride‘s father is to be called dowry otherwise not. 1959.. As a matter of fact. Debate over the definition of dowry: To begin with.arguments clearer by mentioning certain excerpts from the debate. One Pandit Thakur Das Bhargava went to the extent of justifying dowry in the name of article 19 of the Constitution. I agree that so far as he misuses that right in respect of extortion of dowry.e. I may submit that it interferes with article 19 of the constitution. 3453-3454). You might enhance the punishment also in such a case (LSD. the supporters did not object to it as it was neither demanded nor extorted by the father. 3447). Any person has got the right to dispose of his property in any way he chooses. the right to property which no longer stands now. Hence according to this section gifts when not demanded should not come under the dowry regulations and thereby should be treated as voluntary gifts. as and where it is required. The Deputy Minister of law. are outside the scope of the Bill. the intention of the ministers is to ascertain their right to the disposal of their property and its safety.that it comes within the mischief of the Bill (ibid. 1959. i. the ministers widely disagreed on the definition of dowry.

even though that right to property may be defected by a will or by testamentary disposition or non. 4010-4011). 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. 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.testamentary disposition. 80 . it was again the demand or the extortion of dowry which was seen as the real problem and not the system as such. The section who supported dowry based their arguments on the conviction that dowry was a kind of inheritance right for a woman. It gave women some sort of provision in case of her husband‘s death (LSD. In the argument made by this particular member we can see that the women‘s right to property is linked with her being married which we have already discussed in the previous chapter. There were members who tried to highlight the complexities associated with dowry. Therefore. 1959. XXXVI.While.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. that is the only way by which our women used to acquire stridhan. The then Law Minister A. Hence there was no harm in it. They also brought into focus the growing form that the practice of dowry had assumed in the wake of increasing monetization. 3437). 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. there was a section which believed in the inherent negative consequences of dowry nonetheless. In the words of Srimati Ila Palchoudhury from Nabadwip Dowry as it existed in the past was not always an unmitigated evil. In various instances the amount of dowry demands get escalated keeping in consideration the groom‘s social and economic value. Of course. the modern Hindu Succession Act has given women the right to property. education etc. 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. To quote the Law Minister In fact. Moreover it was seen as a social evil which could only be eradicated by raising the consciousness of the people. 1959.

The definition further allows presentations of any amount to be made in the form of cash. 1959. Manjula Devi. stressed the importance of demarcating between the voluntary and conditional gifts. Finally. 1959. otherwise it is an ancient custom which does not require to be overthrown (ibid. it was only 40 members who opposed the definition of the dowry in the manner it was passed. There were members who raised their apprehensions so as to why property in any form should be linked with the institution of marriage.. 3701-3704). Another member from Gopalpara. It is only the demand that is considered to be a social evil. 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 is important to note that such regressive outlook of the Law Minister with respect to women‘s property rights provides ample clarity to us about the seriousness or not of the government about tackling the issue. amidst the entire contradictions clause 2 was passed with the approval of 183 members. The Minister‘s words cannot be read as anything else apart from the legal sanction that is being given to the practice. 36973700) spoke of the naïve assumption that the law makers were making in considering the two individuals in marriage i. The difference in the number points to the fact that how serious were the members about the issue of dowry (ibid. 1959. 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 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. 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. Why can‘t 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.e. ornaments. yet she believed in the indispensability of voluntary dowry payment in the life of a woman. Srimati Parvathi Krishnan from Coimbatore (LSD. 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. Though this member was in favor of making dowry demand a cognizable offence. 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. XXXVI. 81 . 4205-4209).

Members like Shri Jadhav. I think that would be a sad day. This kind of opposition was based on their fear that it might destroy the sanctity of the institutions like marriage and family. Shri Subhiman Ghose supported the amendment moved by Shri Jadhav to make it a cognizable offence. With reference to the former apprehension I quote Shrimati Ila Palchoudhuri . However there was also a section which believed that in the absence of the clause of cognisability the law would be futile. if it is going to be a cognizable offence. I would like to point here to the strict division between the private and the public sphere. XXXVI.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. because.. Shri Brajraj Singh and Shri Subhiman Ghose argued in favor of making this offence cognizable. no matter whatever arguments are put forward. Friend opposite has claimed that it should be a cognizable offence.. 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. I hope the Minister will take care that he is not influenced to consider it a cognizable offence (LSD. if the police is going to be allowed to come into every aspect of our private life. In response to the argument by the Law Minister that persons with courage of conviction would go to the law court.Inspector of Police as was suggested by my friend opposite. 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 state‘s regulatory forces. There I certainly disagree. he raised the question that why is it not that the Law Minister takes the lead to set such an example. Because. No matter. that should never be allowed. This should never be agreed to. 3439). it is a sacrament. It was pointed out that such an excuse does not hold any ground.My hon. 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 would be absolute harassment. 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.. after all. 1959. When the question of difficulty in finding witnesses by 82 . even if it is the Sub.

Borrowing from the section 190 of the Cr.the state was taken up by the Deputy Minister of Law Shri Hazarnavis. 83 . XXXVI. K. The clause 8 made the offences noncognizable. 1959. 1959. There were several effective suggestions which came from certain progressive members within the parliament. 4215). Therefore in an attempt to secure the individual‘s liberty the Minister thought that the offence should not be made cognizable giving wide power to the police. 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. bailable ( In Bailable offences one is out on custody while the case goes on. There was a suggestion from Shri Nathwani to enlarge the scope of the court to take cognizance of the offence. The Deputy Minister gave a long excuse for not making it a cognizable offence. Pandit Thakur Das Bhargava‘s amendment suggested that the right to file a complaint should be upon government recognized social organizations. 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. 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. The Law Minister A. There was also a great amount of debate on the clause 7 which dealt with the cognizance of the offence. P. 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). K. 1959. Sen was of the view that it is undemocratic to allow such secret complaints in a democratic country like India (ibid.spirited enough to go and furnish information to the magistrate. individual‘s right to liberty and individual‘s right to property. He rejected it on the grounds of protecting the fundamental tenet of our constitution which is the individual‘s right to privacy. Sen. when the state had already given up (LSD. This kind of a suggestion was grounded on the fear of people filing false complaints out of selfish motives. A person may not be bold enough to make a formal complaint but may be public. 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. 4241-4247)? Finally the amendments suggesting making dowry a cognizable offence was put to vote. However it was vehemently opposed by other members with the support of the Law Minister A. 4229-4240).P.C.

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

XXXVI. 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. Ranjana Sheel (1999) argues that during the debates around the bill some kind of a pattern can be said to have evolved. 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. the amount of punishment. some members were completely against the system.e. They argued for the delinking of marriage with gift-giving in order to end women‘s exploitation. Therefore it should stand as it is. 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.. I think this legislation is fulfilling all the 3 purposes of social legislation. it was their stridhan. 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. 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 woman‘s right to inheritance i. there were 141 members who voted against it and only 41 members who voted in favor of it. C. It is also trying to do something which is in the light of public opinion which prevails. It was only these few above mentioned issues over which the entire debate revolved. 1959. Shri D. I quote him . 3746). Finally. If we try to take away anything from the scope of punishment in terms of imprisonment or fine. On the other hand. On the one hand. Sometimes public opinion dictates to us what kind of legislation we should adopt..situation. The debates regarding the definition of dowry. Sharma argued for retaining both imprisonment and fine as the punishment for the offence. It is giving the right kind of direction to public opinion. It is also honoring public opinion..I should think this punishment of 6 months and also fine should be kept as it is. I think we will be making the Bill a toothless Bill and it will not be able to do anything (LSD. 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. The 85 . Sometimes our legislation has to give direction to public opinion.

The fact that there should be social change cannot be contested. XXXVI. economic. therefore. The legislators could not fathom the politics behind the practice. Fourth. They somehow managed to sideline a daughter‘s right over her parental property. 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. however in its anticipation making toothless laws would only aggravate the problem. To make this point more clear I would like to quote Shri Tyagi from Dehradun. there was an underlying assumption among the members regarding the futility of the law. I would.provision of allowing gifts and disallowing dowry. social and political rights were not conceptually present in the debates on the Act. First. The Act instead of curbing the offence went on to legalize it. The majority of the Parliamentarians were more concerned with the extortion of money from the girl‘s father. They refused to accept the emancipatory and the deterrent element of the law. Sen also expressed his belief that law alone will not be able to do anything unless accompanied by social change. For them law was just a tool to bring into light the problems of the society. I would however like to point towards certain features of the Act which have eventually made it ineffective. it was less or not concerned at all about the position of women due to the prevalence of dowry. 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. 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. 86 . 1999. There are many more important problems before the nation than dowry. (ibid. 4233). In fact the Law Minister A. In the end. punishment and the non-cognisability of the offence shows that the government was not serious about the issues. suggest that we finish it early (LSD. I would further push the argument made by Sheel that the kind of definition. The realization of the fact that dowry was something which robbed women of their human. Thirdly. throughout the process of making the law. 165-67). K. Second. Agreeing with the pattern given by Ranjana Sheel (1999). 1959.

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

1998. 39-48) that the kind of subjugation experienced by a dalit woman is different from the oppression of a general woman. the nationalist leaders took up the women‘s question for different reasons. The development made the women‘s organization reinterpret their stand on the Uniform Civil Code. 49-66). During the colonial rule. 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. 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. All these assertions were enough for the movement to realize that the woman as a category was not a homogeneous identity. John (2008) the women‘s movement during the 1970‘s 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. Further there were assertions made by the dalit feminists (Rege. A dalit woman has come to be accepted as doubly oppressed (Guru. According to Mary E. for instance.woman under the Section 125 of the Criminal Procedure Court. 2002. 1993. 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. 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 women‘s movement. The women‘s movement also became more reflexive with the struggles around making disability a component of feminist politics (Ghai. 2548-2550). 1995. which they were assured of in the pre independence era. The method used by the social reformers during that period was to take recourse to formulating new laws. The women‘s movement was also a result of the dissatisfaction with the union government‘s failure to address the issues of women. 160-171). However towards the end of the late nineteenth century the women‘s question and their issues started fading by. Gradually the leaders decided that the women‘s question would be taken up once India gained independence. which dealt with the provision of maintenance (Kumar. The women‘s movement questioned the state‘s power in delegitimizing the victimhood of a woman as and 88 . 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.

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

412). However. Mazumdar further states that it was only in the 1980‘s that the women‘s movement woke up from its long slumber since independence (ibid.with education. It was the women‘s wing of the communist party of India (Roy. 1992. she acknowledges the significance of such an analogy ‗for indicating the oppositional politics that the movement represents‘ (Roy. not merely spreading educational facilities but attacking sexist and stereotyped textbooks. It was the verdict in the Mathura rape case.. Anupama Roy (2010) seems to be not as ease with such a metaphorical comparison between the two phenomenons.e. 2010. i. which was followed by an open letter to the Chief Justice of India by four university teachers in 1979. The Dowry Prohibition Act 1961 was however a more recent legislation and in spite of that it failed. not only equal rights. We have already seen that the laws dealing with rape were out dated and needed changes in them. Anupama Roy. 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. contrary to the prevalent notion that the post independence era was devoid of any real women‘s movement. 2010. 90 . with equality. How and on what terms did the movement engage itself with the law and the state on the question of dowry? WOMEN’S MOVEMENT’S AGAINST DOWRY ENGAGEMENT WITH THE LAW It can be said that the issue of violence against women was the agenda of the new women‘s movement. Raghunath Kelkar and Lotika Sarkar (Mazumdar. However there is also another terminology which is used to capture the transitional element within the women‘s movement. Vasudha Daghamwar. They were Upendra Baxi. of the wave in itself and the women‘s movement. 1999. but equal opportunities to work and with equal pay‘ (Gandhi and Shah. 410). the newness of it and the autonomous character of the women‘s movements now we shall look into how and what place did the issue of dowry occupy in it. After discussing about the issues raised. 5). 14). It is known as ‗waves of feminist movements‘. As has been already pointed out the women‘s movement of the 1980‘s is generally referred to as the ‗new‘ or the ‗second‘ phase of the women‘s movement. There were increasing incidences of dowry related violence in the country. 21).

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. 1984) by women will make any human being to contemplate and reflect upon the situation. 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. Though it was Mahila Dakshata Samiti which first took up the issue of dowry in Delhi‘s contemporary feminist movement. In most cases it was found that police refused to record the dying declaration by the victim indicating the involvement of their inlaws. pain and betrayal written as ‗letters at the death‘s door‘ (Kishwar and Vanita. but it was Stri Sangharsh which campaigned against dowry and made it a house hold name (Kumar. 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 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. It was the Delhi episode which fuelled the agitation. The serious loopholes in the legal system added injury to the assault. which they did. They used methods of social boycotting of the accused and his family. 1993. since the Act did not make the offence cognizable (Indrani Mazumdar. However it could not be developed into a fully fledged movement. It highlighted the murderous angle involved in it. the Towards Equality report taken out by the CSWI mentioned that the failure of the Act came from within itself. The women‘s movement‘s continued struggle bore some results when in the year 1983 the Criminal Law (second amendment) Act was passed which introduced 91 . They protested against the casual and defensive attitude of police. On various other occasions the police have advised the feminists to use ‗social pressure‘ against dowry. As already mentioned in the beginning it was the death of Tarvinder Kaur of Model town. 2006). Tales of horror. The women‘s movement organized protests outside the workplace and the residences of the culprit. 117-120).The disillusionment of the women‘s movement with the legal protection was evident from the unprecedented uprising against dowry during the late 1970‘s and the early 1980‘s. People took pledges against giving and receiving of dowry. It was able in drawing the link between dowry demands and death of young brides by burning. It was the Progressive Organization of Women in Hyderabad which first protested against dowry in the year 1975. Delhi which ignited the movement against dowry.

C. The protests by the women‘s organizations helped in highlighting the link between the practice of dowry and women‘s subjugation as against the commonly held belief that dowry consists of women‘s inheritance rights. 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. Under the Section 3 of the Act. 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. Also the Act amended Section 174 of the Cr. It exposed its public nature which had so far been hidden under the private realm of the home. The demands of the women‘s movement were fulfilled each time by making a new law or amending the existing laws. The decade of 1980‘s is seen as a decade of progressive legislation (Agnes. The movement made their demands for equality upon the state. 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‘. Cruelty included both mental and physical harassment. whichever was more. which made the post mortem of a woman compulsory who died within seven years of marriage (ibid. or the amount of the dowry. 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. 122-125). 5000 to Rs. however it remained a bailable offence even after the 1984 amendment. The act of dowry which was till now non-cognizable and bailable. This provision made cruelty against wife a cognizable offence and when proven will amount to three years of imprisonment and a fine. In the coming section we shall see how the movement against dowry compelled the state to amend its dated and vague law on dowry.Section 498-A to the Indian Penal Code. 1992) however these laws were unable to curb the various forms of injustices done to women. The section will discuss the DPA 1961 and the subsequent amendments to it in the years 1984 and 1986. 10000. 1993. Section 4 made dowry demand an offence with equal amount of punishment as that of the one receiving or giving dowry. was made a cognizable offence. Section 6 said that 92 . 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.P.

Dowry deaths found legal recognition. 1992. Further unlikely is the maintenance of the list of the gifts given to the bride and the groom. According to Nandita Gandhi and Nandita Shah. several women and civil rights organizations prepared a memorandum highlighting it. 182-184). The minimum punishment for taking and abetting dowry was increased to five years and the fine was made Rs 15000. The state has been prompt enough in making the amendments in the wake of the movement against dowry. 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. failing which a fine equivalent to dowry to be levied on the person concerned. The amendments have led to the reopening of cases which had been closed off as incidents of accidental deaths (Sheel. 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. 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 amendment also shifted the burden of proof on the accused and not the complainant. 1999. the giver or the bride‘s family is always under pressure and therefore they are in a vulnerable position (ibid. the new amendments reflected mindless callousness and lack of political will towards the problem of dowry. 1992. which ultimately led to another amendment in the year 1986. Also making the acts of both taking and giving dowry as an offence do not go down well with Gandhi and Shah.in case dowry is received by any person other than the bride then it has to be transferred to her within three months. 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. 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 . 218220). These are some of those conditions which can easily be bypassed. 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. With the increasing amount of realization of the lacunae in the 1984 amendments. 220). However when we see the debates which took place before the enactment of the initial DPA of 1961.

Nigam also questions the possibility of treating a non-compoundable offence as a compoundable offence. 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. 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. The court cases mentioned below are taken from her work. 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 woman‘s right to a life of dignity and equality. hence they are favorably biased towards the institution of the family (in this case the marital family) and not towards the victim. 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. There is no doubt that with the kind of continuous struggle that the women‘s movement have been waging against the state. it has become considerably easier for these groups to bring in progressive legislations. 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 wife‘s mental condition was cited as grounds for the acquittal of the offender. However despite having knowledge about the negative effects of the dowry nothing much could be done.was problematic and not the custom of stridhan. we see that the judiciary has not been sensitive enough to use these laws for the benefit of these women. It is true that amidst the widespread movement against the anomalies of the Dowry Prohibition Act of 1961. 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. The assembly debates reiterated the commonly held belief that woman‘s property rights are intrinsically linked to her marriage. 2006). but the problem arises at the time of its delivery. In the next paragraph we will see few judgments as an illustration of the above mentioned points. 94 . there were amendments done by the state recognizing the seriousness of the issue.

frustrated and depressed. 1 (complainant wife) and the accused (husband) are separated. 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. 95 . 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. The accused Ramesh may or must have told the deceased that she was free to go anywhere she liked. 2006). 1 has developed resentment. This is more so when the accused is said to be living with another woman‖ (ibid. She was overtaken by a feeling of shortcomings which she attributed to herself. Making the deceased free. 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. May be that was in a fit of anger contrary to his and immediate convenience the deceased was empathic on being dropped at her sister‘s residence to see her. The High Court of Madras stated that ―there is no dispute that that the P.. 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 sister‘s residence the deceased felt disappointed.Ramesh Kumar Vs State of Chattisgarh (2001): This case dealt with the abdication of the responsibility of the husband in his wife‘s 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).Unfortunately. W.. Because of separation it is quite natural that P.to go wherever she liked and to do whatever she wished. 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.. W.. A woman is expected to fulfill certain requirements as a wife.

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

Basu‘s work induces us to rethink about the entire question of property rights. Legislating progressive laws is definitely significant. 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. but in reality it is only the act of demanding dowry which is seen as an offence by the state. Though the DPA makes the taking and abetting of dowry an offence. She argues that women decide on these lines because they feel the loss of connection with their natal family as a kind of alienation. 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.prejudices. The process of dowry is continuously devaluing the position of women in the society. however when we read Srimati Basu‘s 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. It helps us understand how earnest they are in their endeavor to do away with the problem of dowry by giving equal inheritance rights. The law becomes meaningless and redundant 97 . According to these women the loss of familial ties is too big a loss compared to the gain from getting property (Basu. It is true that women have been continually denied their property rights in the natal family. 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. 304-305). The refusal by the state to acknowledge women as the head of the family while carrying on state sponsored land redistribution and developmental activities. While implementing the laws the attitude becomes all the more evident. When we examine the state‘s attitude we see that even the law gives utmost importance to the sanctity and piousness of the marriage and family as institutions. 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. It is in this context that the importance of women‘s movement gets doubled. 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. The problem of dowry has only grown to an extent where the groom‘s family doesn‘t need to make any explicit demand of dowry. these progressive laws can‘t expect to gain much. 2012. they simply get it because of the virtue of being the groom‘s family.

She also makes an argument that the state and the law is also trying to localize the formal law by decentralizing its operations (ibid. the struggles involved and the kind of success that they meet with depends on the ‗power of the state vis. the rules which bind individuals are not only codified law. From the above argument we understand that the state while making laws have to take these factors into account. 1259) insists on legal pluralism.vis the other political players in the fields distribution of power‘ (ibid. 527) found was lacking in Bina Agarwal‘s (1994) work. religious rules and other social norms‖ (Patel. 2012. like the right to inherit property rather than the welfare perspective. which understands ‗law‘ as being multi-locational. 201-216). To make laws more effective Reena Patel (2006. This is something that Indu Agnihotri (1996. 292-297) in which she highlights the atrocities done by the khap panchayats in Haryana and also some other parts of North India. wherein a woman does not have to produce documentary and other kinds of proof each time unlike in the formal courts. In most cases it tries to appease both the parties.a. 1259). 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. but customary practices. 2006. Acknowledging the importance of the empowerment aspect is definitely 98 . 2000.when the majority of masses are not aware of their rights. However there is also a contrasting picture of these local fora coming out in the work of Prem Choudhury (2008. Raka Ray (2000) here argues that the issues raised. with various centers of power beyond the state to include the family and other social structures. As such. 14). There is a need to emphasize on the empowerment aspect of the rights given to the women. 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. 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. According to Nagaraj (2012) these fora many a times acts in the favor of women. It should be an endeavor of such organizations to educate people that the laws made for them are not against them but for them. 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. This is mostly because the arbitrators are generally aware of the condition of the petitioners involved.

rights based claims.important. but that does not however mean giving up on law. 99 . have to be made according to legal language. We shall be naïve if we presume that the laws by themselves are enough to bring in empowerment. 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. in order to be heard. but it is not clear as to who is to be assigned with the task to the effect. With the increasing importance that the state has assumed in the contemporary times.

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

It was during this period that there was an increased realization that women belonging to different situatedness experience subjugation in an entirely different manner. Feminists insist that it is one of the instances where the state is strengthening the private public dichotomy. Women‘s right to property was artificially linked to her married status in the form of dowry. 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 1980‘s. This work in order to understand this interaction between the state and women‘s movement took up the Dowry Prohibition Act 1961. The incidences of dowry indicate the subordinate status of women in the Indian society cutting across religious and regional lines. As a result of the loopholes in the Act. The Indian state maintains the position of non interference in the personal laws. it failed to curb the practice of dowry. we can see it is the women who are the worst hit. which though limited in nature. In trying to understand the spread of the practice of dowry. which is seen as the reason behind the subjugation of women. I came across works which link the institutionalization of dowry to the colonial state‘s codification programme. This legal discrepancy resulted in the spread of the practice to such a level that it increasingly started assuming a violent characteristic. 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 . Nowhere did the debate ever reflect any discussion between the members about a daughter‘s right to parental property. The myopic vision of the law which hinders its view beyond the strict binaries of the right and the wrong. in which the men belong to the public sphere and women belong to the private sphere. The Lok Sabha debate which preceded it was looked at.public sphere. It is this distinction between the private and the public. There were increasing numbers of dowry deaths happening all over the country. had legal recognition. 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. Besides this the chapter talks about the elusiveness of the category of women. 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 bride‘s 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. It therefore leaves the women out of legal protection by the state.

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 . 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. little has improved. gives daughter‘s equal share with the son‘s to their parental and ancestral property. They are dependent upon the male members of their natal and marital family for their subsistence. it is important for the women‘s movement to realize that the mere legislation can never be enough to bring gender equality. It is said that the condition of women is deplorable since they don‘t have any kind of economic freedom. There have been laws giving inheritance rights to women even during the 1950‘s though it was very limited in its nature.dowry transaction was must in order for the marriage so be solemnized. 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. Now the question is that when feminists and those others associated with the women‘s movements understand that the state and its organs are not serving any real substantive gender equality then why they keep coming back to it. It is at this point that the feminists need to be reflective about their strategies and their actions. However this explanation fails to justify those instances of dowry transactions where the bride is gainfully employed. The law overlooked at different pro-women customary forms of marriages which existed by its side as less authentic and thereby less Indian. Does the state carry any benign element of social change? This could also be answered in negative. Before directing our demands at the state. 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. They are not comfortable with the idea of abandoning the legal field. however when it comes to the condition of the women. Years later when this decision gave rise to the problem of dowry. It was then amended in the year 2005. 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. 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. The Hindu Succession Act 2005. 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.

however it should not be allowed to take over the task of radical politics. 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. Thereby it becomes necessary that the women‘s 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..e.about which this work has discussed at length. She insists that law should be used as one of the reforming agencies. For the laws to bring in gender equality. the executive and the judiciary. 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. It is important to understand that the state machinery is under the control 103 . 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. After all how can we expect an institution (the state) which is essentially seen as patriarchal. 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. 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. the judiciary and the executive branch of the state are also laden with the male ideology. wherein a woman due to the presence of the laws can get herself justice. to be genuinely interested in challenging the existing status quo. Menon argues that it is the commonsensical notion that has to be attacked in order to change the power equations prevailing in the society. However it does not mean that legal recognition is not important. At this instance I would like to extend Menon‘s (2004) argument that an uncritical use of law without any kind of an emancipatory radical movement accompanying it. but it is not clear as to how is it going to benefit women as a category. i. as it would qualify only certain women fit to be given the legal protection and equality and others unfit. It is the limitation of the language of law. Like the legislature. Eventually it would be detrimental for women. The law in this situation can be said to be divisive in nature. I would like to believe it to be more beneficial at the individual level. Having said so. would be fruitless. a lot will depend upon the rest two branches of the state. thereby facilitating it with increased scope for creating binaries in additional areas of our lives. Liberal feminists must see the limits of this institution.

They have to be made gender sensitive. 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 need independence not just from the financial dependency. thereby either validating or invalidating a claim. 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. There has to be conviction in our thoughts and with this conviction we have to move forward towards establishing them by dismantling the older. but also from ideological dependency. 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. discriminating norms of the society. Efforts have to be directed towards breaking this element of mysticism and the real condition has to be understood. Women should be given education in order to make them independent. It is deeply entrenched in them. 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. Men and women are conditioned to accept their superior and inferior positions as natural order of the things. They must understand and imbibe in themselves that the mystique which surrounds the norms of femininity is for subjugating them. 104 . Here a question emerges in my mind. Law will help in giving it legal recognition as right or wrong.of the male members of the society. 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.

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