Motherhood is hallowed concept in Indian society – folklore and stories of branding women who do not bear a child as wicked abound here. The present law on domestic violence (Protection of Women from Domestic Violence Act) had included a specific provision on this and mentions that ‘emotional abuse includes insults, ridicule, and humiliation, name calling with regard to not having a child.’ Women are routinely forced into motherhood and humiliated if they cannot or choose not to become a mother by the family and the society in general.
However, the women’s movement has always maintained that marriage and motherhood are overvalued notions and women all over the world have fought for the right to remain single, to say no to motherhood as well as to seek an abortion. Unfortunately women with disabilities have always been denied these traditional roles of wife and mother. The disability movement has actually fought for the rights of women with disabilities to marriage, family and to become mothers. One can recall here a specific provision of the UN Convention on the Rights of Persons with Disabilities namely Article 23 where it is mentioned that ‘States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others’. This article has been welcomed by disability activists in India, where information about hysterectomy of disabled women within institutions as well as families is regular news.
It is of no surprise that the very second case where the UNCRPD was mentioned in the courts in India (Suchita Srivastava & ANR. vs Chandigarh Administration (C.A.NO.5845 OF 2009 @ Petition(s) for Special Leave to Appeal (Civil) No(s).17985/2009) dealt with motherhood of a young girl with intellectual disabilities.
The girl was staying in a Government run shelter home and was raped there. She showed reluctance to terminate her pregnancy even though the authorities of the home wanted her to go in for an abortion. Interestingly, the disability sector was divided on the issue on whether to support the girl’s decision or not. The first verdict came from the Chandigarh High Court. However finally the case had to go up to Supreme Court and the highest court gave a decision in favour of the young woman. I found the judgment given by the apex court quite controversial – this judgment mentioned the UNCRPD, but it upheld the MTP (Medical Termination of Pregnancy) Act of India which is contentious as far as the issue of disability is concerned. This is because, firstly, the MTP Act says ‘Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner – (b) (ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped’. Secondly MTP Act says, ‘No pregnancy of a woman who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian.’ Both these clauses, which are contradictory to the UNCRPD are used in this judgement.
The judgement said that ‘Since there is an apprehension that the woman in question may find it difficult to cope with maternal responsibilities, the Chairperson of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities (constituted under the similarly named 1999 Act) has stated in an affidavit that the said Trust is prepared to look after the interests of the woman in question which will include assistance with childcare.’ And till date National Trust is taking care of the woman and her child.
The positive point of the judgement is that it tried to talk about differences between mental retardation and mental illness. Then it clearly mentions that since the MTP Act says that a guardian’s consent is required regarding termination of pregnancy where a woman with mental illness is concerned, and this young woman is not mentally ill but is ‘mentally retarded’ her consent is enough. Somewhere there, the MTP Act’s clause that women with mental illness do not have the right to decide but need to depend on someone else regarding motherhood is re-emphasized by this judgement. It is ironical that Indian activists did not discuss these discrepancies but kept on talking about this judgement when the motherhood discourse took place.
So much so that when controversies regarding Rights of Persons with Disabilities (RPD) Bill 2014 erupted in India, quite a few groups cited the example of this case and judgement to say that the RPD Bill has diluted rights of disabled women which have already been given by the apex court. Whether those who said this have actually read and understood the judgement properly is a question. The very mention of the UNCRPD and reconfirming clauses of the MTP Act regarding mental illness in the same judgement can be extremely paradoxical in nature.
But a Supreme Court judgement and the UNCRPD can be just theory which may not be applicable in real life as far as the large number of disabled women are concerned. I would like to talk about a case which happened here in a remote village of West Bengal. Whereas in the Chandigarh case, the young woman was an orphan and staying in a Government home – in this particular case the young woman is living in a village in the Hooghly district with her mother. She never received any special educational inputs or therapy. Her father passed away when she was young. Her mother who is illiterate herself makes a living by picking flowers and taking them to Kolkata to sell them every day. As she used to leave her daughter alone in the house the whole day, men from her village raped the young woman. Just like in the Chandigarh case, the young woman did not inform anyone about the abuse. Only when she missed her period did her mother take her to a doctor and find out that she was pregnant.
As I visited this young woman, I noticed the extreme vulnerabilities she was facing because of her surroundings. No Government support could be expected in her case as she was not staying in an institution as in the case of the Chandigarh girl. The only service on disability available in her village is that there is an NGO that runs a rehabilitation programme for people with hearing impairment. This NGO lacked knowledge about dealing with intellectual disabilities, let alone about the legal implications of dealing with rape cases, or skills of counselling the girl in such a situation or advising the mother on a possible course of action. To the credit of the NGO, the authorities tried to give as much support to the woman as they could, and brought the issue to the notice of a forum whereby activists like me could visit her along with a lawyer and help the woman even after she gave birth to a son. For the record, the woman did not even possess a disability certificate, her mother did not have a clue where to turn to for any disability related services for her daughter. The woman herself is showing reluctance and incapability in looking after the baby – so the mother has now stopped coming to Kolkata to sell flowers and is taking care of the new-born child. This means the family’s only source of income is gone. Now all three of them are totally dependent on the NGO and some help from villagers.
The point that I would like to make here is this is not an isolated case. As an activist working on gender and disability issues for very long, I have come across a number of such cases. How many such cases will be taken care by the Government via National Trust? How many will be able to reach even the district courts? For this particular woman and her family, UNCRPD articles and the apex court verdict do not touch their lives and it is important for people who are preparing or critiquing the RPD Bill take into consideration the day to day reality of women with disabilities.
For me, the advocacy for motherhood and family life of such women remains futile unless we address the poverty issue – I am not prepared to take any side even if that is espoused by the United Nations or apex court of my country, unless it actually reflects grass-roots experiences.
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