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Sexuality and LawThe I Column

Law and Sexuality

I graduated from a Law School in Bangalore in 2012 and moved back to my hometown, Lucknow, U.P., where I started working with a feminist legal advocacy and resource group. I worked with the case-work unit of the organization and this involved regular interactions with survivors, perpetrators and State and non-State actors. My parents did feel scared initially and do so to this day but the fact that I am so particular about my work, saying anything to me was never really an option for them. I could sense their anxiety from the conversations they had with me with me telling me about other career options, etc. Working at the grass-roots level brought me very close to the inherent gender-based discrimination that occurs in society and made me extremely aggressive and intolerant towards such discrimination. It was extremely stressful to do the kind of work I did and deal with the taunts from parents who would link my low-paying job to my incapability of getting a high-paying one like my friends and relatives.

As a female lawyer going to the courts in Lucknow in formal Western wear, I faced a very dismissive kind of attitude from the court staff, fellow lawyers and judges. I was often viewed as an immature law student and it made me feel like a stranger each time I stepped into the courts.  The fact that I don’t look my age played to my disadvantage every time I struggled to examine a case file or find out the next court date in a particular case. As a young-looking female lawyer in western attire I felt I was invisible at many times when what I said would be completely negated or ignored. I also interacted with police officials a number of times at police stations while trying to help a survivor get her First Information Report (FIR) lodged. The fact that I had more clarity about the law and my perspective was rights-based seemed to annoy police officials who thought of me as a child and would often refer to me as ‘beta’ (Hindi word for child). The patriarchal approach is deeply embedded within all institutions and State actors from the police to the judiciary find it extremely difficult to absorb a feminist and rights-based approach and perspective.

During my work, I intervened in a number of cases of ‘right to choice in relationships’ where the woman chose to exercise her sexual autonomy, and as a result had to face violence from the community, family and police. In such cases, while negotiating with the police they often justified the acts of wrongful confinement or violence by parents stating that they would have done the same had their daughter taken such a step. Child marriages and forced marriages are widely practised across the country but each time a major girl exercises her right to sexual autonomy and goes away with a partner, the man gets charged under Section 366 and Section 368 of the Indian Penal Code, 1860 for kidnapping and abducting her. Never once have I been to a police station in Lucknow and got a certain FIR lodged smoothly without any hassles. It has always taken me at least three hours to get an FIR lodged and that too after a chain of long arguments. When a girl without parental consent marries or leaves her natal home with her partner, within no time the police lodges an FIR and is often seen sympathising with the parents and justifying their acts of violence irrespective of her age. In many cases of kidnapping and abduction the police, despite having clear proof of marriage and age, refuse to consider these on the ground that elopement is against the prevailing custom and tradition of the society. They disregard the statement of the woman, if it is in favour of the man/woman with whom she exercised her right to choice.

I also dealt with many cases of domestic violence from spouses where married women were found to be hesitant to step out of the abusive relationships because of a lack of spaces and opportunities to access their autonomy and sexuality outside marriage. Other than economic dependence, exercise of sexual autonomy in my experience was a major factor contributing to the lack of willingness of married women to step out of abusive relationships

Marital rape is not recognised as a criminal offence under the Indian Penal Code with the exception of sexual intercourse with a wife below the age of 15 years. No amendment with this regard was brought after the Criminal Law Amendment Act, 2013. A wife’s body and sexuality is viewed as the property and under the control of her husband. Adultery covered under Section 497 of the Indian Penal Code, 1860 makes a man culpable for the offence of adultery, with regard to having sexual intercourse with a ‘married’ woman. The question of whether the woman had consented to the act of sex is irrelevant; this completely negates a women’s right to sexuality and sexual autonomy.

The two-finger test during medical examination in rape cases is still widely practised across the nation though it has been held as inhumane and barbarous by the Apex Court [1] and been banned by the Ministry of Health and Family Welfare which recently came up with Guidelines and Protocols: Medico-legal care of survivors/victims of sexual violence [2]. This test involves the insertion of two fingers into the vagina of the survivor to ascertain whether the  woman is ‘habituated to sex’ or not.. This test has been conducted in every case of sexual assault that I intervened in and each time I tried to talk to the doctor about how it was declared inhumane and had been condemned by the Supreme Court and they should not do it, they would ask me if I was married or not and that I would not understand if I was not married. Also, that this was the only possible test to ascertain whether rape was committed or not. This kind of test is a result of a patriarchal and protectionist mind set which completely negates a woman’s sexuality and sexual autonomy. This test is the outcome of a society where pre-marital sex is considered a taboo and if an unmarried girl is found to be ‘habituated to sex’, this is raised during arguments in the court to question her character and used against the survivor in the trial, thus resorting to blaming the survivor for the criminal act.

I believe any number of laws cannot change the current situation unless there is change in the protectionist and patriarchal approach of the State and non-State actors which aims at controlling a woman’s sexuality and sexual autonomy. Though the principle of equality is enshrined in the basic law of the land, there is duality in approach of the State actors when women who try to exercise their sexuality and sexual autonomy, are harassed by them by abuse of due process of law. I am hopeful about the future and the fact that there is so much to be done to bridge the gap between theory and practice keeps me going. I, though only a drop in the ocean, struggle to work towards an egalitarian society.

Article written by:

A young feminist lawyer. She has directly intervened in cases of human rights violations and violence against women and children including sexual violence. Her areas of interest include gender studies, constitutional law, human rights law, access to justice.

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