One of the most significant legacies of the 90s to the history of human rights has been its effort to redefine the parameters of marriage and family without wanting to do away completely with these institutions. If the 60s were marked by nihilism, the 90s that then ushered in the new millennium were, to this observer at least, more thoughtful and contemplative.
Large numbers of feminists and gay rights activists in the West, and a few in this country too, have rightfully questioned the norm of the heterosexual couple and their exclusive right to be parents. Referred to as "difference feminism" in academic circles what such activism implies is that every man or woman has a "human" right to be different and that should not prevent them from the joys of familiality or parenthood.
Let us now place against these global developments two recent judicial decisions by the Calcutta High Court - decisions made in the name of feminism. The static meaning of female respectability that underlies these two decisions would not only stun any sensitive observer but they will also then call into question the basic conception of feminism in this country.
In the first of the two cases, Kalipada Garui was accused of tricking a woman into living together with him saying that the relationship would culminate in marriage. Garui then ditched the woman and tied the knot with someone else causing the wronged lady to press criminal charges against him. A Calcutta High Court bench of two justices, Nurul Alam Chowdhury and Arunabha Barua ruled in favor of the prosecution charging Garui of rape because in refusing to marry his earlier lover, Garui’s actions had called into question the notion of "voluntary consent."
The second case involved another woman accusing one Babul Sarkar of raping her because he had jilted her after a long courtship that left her six months pregnant.
Before considering the implication of the charges or the judicial decisions let me state that desertion after a prolonged relationship is undoubtedly painful. Every man and woman ending a long term relationship, especially one that had them sharing the same home and hearth, would have a different story to tell about why matters came to a close. It is also beyond question that breaking a promise can in extreme situations tantamount to cheating and mendacity. Having established the fact that the two women in question have every right to feel wronged and violated, the question then arises about the means by which they have sought redress - in both cases legal redress - and the connotation of this mode of administering ‘justice’.
What woman, one wonders, would want to marry a man who needs legal force to make him take the marriage vows? Even if we were to grant for the sake of argument that marriage is purely a contract with no emotional basis to it, is it a sign of maturity or self-possession on the part of the woman to enter into such a contract with an individual whose own actions towards her have proven him to be a fraud or, worse, a rapist? What social pressures may have been operative here and what conceptions of meaningful love? Finally, what are we to make of a judiciary that ordains a relationship that was (hopefully) based on mutual love and consent between a man and woman, but did not end up in marriage because the man backed off is rape?
Let us say in the spirit of debate that in India, living together as partners rather than as spouses exposes a woman to more social censure than it does a man to this day. Most women who have had the experience of "living together" will know/ remember the numerous eyebrows they raised, the incessant questions from parents, friends, and elders about when they will marry.
A good friend once told me that parents complained of high blood pressure when she announced her decision to postpone entering into wedlock with her long-term boyfriend for a few years before she felt well settled professionally. Having known the family for many years now, I can confidently say that the parents in question are fair, judicious and reasonable people. So to what do I attribute the permanent crease marking their foreheads? Undoubtedly to that anonymous thing we call social pressure - the heavy mace that society wields upon those with an unmarried daughter who lives together with a man who is not her husband.
An unmarried woman is the embodiment of shame and grief upon her family if by some misfortune she happens to conceive a child from her relationship - such is the societal ruling irrespective of what a different minority believes. And no matter how much academic and activist feminists struggle to accommodate difference in society, most of us still abide by these rules. A man does not get pregnant. His sense and experience of shame are therefore not the same as a woman’s.
These sentiments have largely remained unchanged over decades and it would be no exaggeration to say that these concerns underlay a series of legislation from the mid-nineteenth century onward leading to some important reforms such as widow remarriage (1856). An unwed widow embodied untamed sexuality. It would be far less threatening for society to contain her impulses within the bonds of matrimony was the argument issued by numerous reformers.
But, are the premises of the two cases under consideration the same as the situations outlined above? The answer, it seems to me would be a resounding no! In both cases the women willingly agreed to live with the accused males. True, they expected that one-day, like most other women, they would end up getting married. And motherhood when it came, would be accompanied with a corresponding legal father for the child.
These expectations, we know, were belied. But is that letting down, that wrong doing (I am taking the articulation of these feelings by the women as given) constitutive of rape? Rape as I understood it until these hearings was forcible sexual intercourse, usually perpetrated by a man upon a woman (it could certainly be the other way around) that carries with it the trauma of physical and mental injury. Desertion or a promise broken does not, even with many leaps of a twisted imagination, compare with that sense of violation.
Let us now consider the import of the decision made by the judiciary. Once again I am going to begin with the assumption that their motivation was to act in the best interests of the prosecutors. But, we also need to consider if, whether a man who claims to have lost interest in a woman and marries another, is guilty of a crime as heinous as rape? By ruling that it is, not only have the honorable judges belittled the physical and emotional trauma of rape, but they have also put a price on the act of rape. And that price is marriage.
In other words, if the accused had married the women then there would have been no crime committed. By jilting them instead they have now perpetrated what stands out as one of the most grievous and painful acts done by one human to another. There is a peculiar reductive mentality at work here that makes marriage, motherhood, and coupledom a black comedy or worse a tragic farce.
How then would he compensate the wronged women? It seems to me that the legal alternatives have already been put into practice in many places of the world, some countries in the EU and Australia immediately come to mind. A far more civilized choice would be to recognize unmarried cohabitation over a certain period of time as a legal option for men and women. If that were the case, both men and women would have the right to demand a property settlement in the event of a break up.
Financial compensation by the wrong doer - and there is no reason to assume that it is only a man who can change his mind about a relationship - rather than personalized slurring would be a much more humane and effective means to deal with desertion. It is certainly regressive, not to mention humiliating, to assume that it is always a woman who can be "victim." Furthermore, every child - irrespective of whether s/he was born in or out of wedlock - has the right to financial support from both parents. In the event that the father disavows that responsibility he should be forced to fulfill his responsibilities by legal force. But isn’t the Calcutta High Court’s ruling a stigmatizing of the child since her conception has now been labeled as an act of rape?
Equal opportunity feminism does not reduce women into mere objects whose only means of empowerment is through marriage arranged by the power of the state. If that is what our judiciary rules, the struggle of the legal apparatus of the Indian state has insulted Indian feminism.
Rochona Majumdar is Collegiate Assistant Professor and Harper Fellow at the University of Chicago