Enforcing Legal Rights in the Family
Enforcing Legal Rights in the Family
Newsletter May 1988
When a woman is growing up she is confronted with two contrary realities—theoretical rights and freedoms guaranteed by the Constitution and the reality of social norms which confine her as an individual. When women struggle against the oppressive conditions of their life a critical problem is that their “enemy” is often a person whom they love and respect such as a parent or husband. This is the context in which Saheli functions.
Saheli grew out of the anti-dowry and anti-rape campaigns which took place in the late seventies and early eighties. With the agitation spreading in the form of demonstrations, street plays etc. we were confronted with the questions “How can we help individual women who don’t want to die. How can we help women exercise the right to live—the right to live a dignified life with suitable work, housing and mutual support networks.”
Since its inception in 1981 more than 700 women have come to Saheli for help. We provide here a brief account of our experiences in attempting to enforce legal rights within the family.
The right to live independently
A number of young women (above 21 years and legally adults) come to Saheli because they want to marry men of their own choice, take up careers, postpone marriage or simply want to educate themselves. If the wishes of the woman are in opposition to those of the parents, then the parents retaliate by (1) physically locking her up (2) mental torture and threats (3) assaults in the form of slaps and more severe beating (4) threatening her friends with dire consequences if they help her.
The judiciary as well as the police do not deal with the problem in a uniform way. Rather the individual official allows stereotypes and prejudices to operate quite often. It is assumed that parents or “elders” know best and whatever they do is good for the girls.
In one case, the Supreme Court refused to accept a Habeas Corpus petition (the girl was locked up by her parents after marriage) on the ground that is was difficult to believe an educated woman could be confined against her will and suggested we go to a lower court! However the Superintendent of Police had warned her husband that if he dared to lodge a complaint, he himself would be arrested. However the local district magistrate was willing to let us ascertain the truth and the girl was freed.
In another case, when a Hindu girl wanted to marry a Muslim boy the magistrate refused to marry them. It is well-known that in Delhi’s marriage courts a gang of Arya Samajis keeps a watch on Hindu-Muslim marriages. When an announcement of inter-religious marriage is made they inform the respective parents and try to stir up trouble. While the Special Marriage Act has been passed to enable interreligious and inter caste marriages there are several loopholes which create problems.
In this case the girl’s parents put up a false complaint that the girl was already married. However they did not provide any evidence: photographs/or even a description of the boy! Of course no bridegroom was produced. Inspite of this the magistrate ruled against performing the marriage according to the girl’s wishes. The result was that the couple were forced to marry according to Muslim custom.
In many more cases, Saheli intervenes by setting up a dialogue between the parents and the concerned girl. The most critical element in the process is that the girl should have safe shelter so that she can think about her problem without duress either from her parents, friends or a prospective husband.
Once the girl is seen to be determined and acts according to her choice, parents often become reconciled after a few months. It is important that the concerned girl have a feeling of security. Only this makes it possible for her to exercise her rights. Extreme violence is a reality to be faced. Cases where the family kill their own daughter to avoid ‘shame’ are not unknown and Saheli volunteers have been threatened with murder and acid throwing.
Problems in the Matrimonial home
After marriage women face a number of problems. These could be (1) related to dowry demands (2) violence over extended periods, and in the worst form (3) death.
In the case of dowry retrieval, we face several problems.
Usually there are no records of financial transactions, especially cash. Jewellery is very easily made to disappear. We have had marginal success in retrieving dowry when the police have acted sympathetically. The police however have to ensure that the in-laws do not become violent. In such cases we have managed to retrieve clothes and some kitchen utensils. But cash and jewellery are impossible to reclaim.
In the courts the procedures are lengthy and the woman can win her case if (1) she has the support of her own family to fight a legal battle; (2) she has the financial means to fight a protracted legal battle and (3) she has the time to go back to court again and again for some years. All this means that the poorest women are not able to go in much because they do not have the minimal resources.
Implementing Section 498A
According to the Crimes Against Women Cell of the Delhi Police, 3000 complaints had come to the Cell during 1987. Of these 228 had been registered but till the end of 1987 not a single man was punished for any criminal act.
While Section 498A recognizes family violence as a crime, the major hurdle women face is to have their FIR registered. Most police stations turn away women without accepting their complaint. Lower level functionaries in particular work from the premise that “no decent woman will come to a police station”. Secondly, violence perpetrated by a husband on a wife is still seen as a private matter.
The police usually give out wrong information and counsel the woman to compromise. This leaves women in a very vulnerable situation since the police is their last resort. It is true that women want to use the police as a pressure point for decent reconciliation.
This calls for a new role to be played by the police. Legally speaking, the police ought to register complaints and proceed against the husband. However, the police attitude is that a slap or kicks are not adequate grounds to “criminalize” the husband. Experience over the last few years is making it increasingly clear that the police need to re-evaluate their role and re-examine their values vis-a-vis women’s problems.
The Indian Express of April 13, 1988 reports that 79 cases of dowry deaths had been reported in Delhi in 1987. There was not a single conviction. Lack of evidence and corruption are two main prob1ems for the lack of convictions. While women’s organizations have been successful in highlighting the problem, it has not been possible for them to turn into “investigators” and take on police functions. Neither is it the task of women’s organizations to do so.
Our main role has been to (1) provide a safe shelter to women when necessary; (2) help women become financially independent—this has been a difficult task since no jobs are available to most women in our economy and this limits their options; (3) generate public opinion which supports a woman’s right to struggle against all forms of inequality; (4) challenge mainstream assumptions about a woman’s place in society; and (5) expose patriarchal attitudes which prevent implementation of the spirit of the law.
Harassment by the police
A number of cases have come to Saheli where the police have harassed single women. They do this usually by calling the woman to the police station and interrogating her without any written complaint having been lodged. Abusive language and threats of demolition of houses in JJ colonies is also common. In such cases militant local organizations where other women demand an explanation have proved useful. Saheli has also intervened to prevent further harassment.
Training and education of various government agencies such as the police is essential, but “training” by itself is unlikely to resolve the basic problems. This has to be kept in mind because there is an increasing tendency to view the problems as “attitudinal.” Stereotypes affected women negatively and need to be changed but fundamentally the structures in our society which imprison women and create the stereotypes need to be exposed and changed radically.
Enforcing property and other rights
Enforcing property rights, rights of working women and social rights in the area of health, etc. each have their own special problems. It is clear that organized action by women’s groups has to increase to implement existing legislations. In addition we have to struggle for the right to housing and the right to work. These two basic needs have to be met if women are to be in a situation to struggle for the implementation of existing laws.