Atrocious practice of customary laws against women

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By: Bhanashree Saikia

“It is the crime against humanity that women are victim of evil customs where some push women shut up within the four walls of the houses and some other gives physical and mental torture. There is no sanction anywhere for the deplorable condition in which our women have to live”- Muhammad Ali Jinnah

The new century brought much more progress in all the democratic institutions. However, reduction in the number of ‘crime against women’ has not been consummated. Man is born free; chains are only for women everywhere. Yes, the world has changed into a new millennium but the woman continues to be oppressed and ill treated till now. Women are always treated with various forms of violence which forms a gross violation of human rights. Most harmful practices exist in society in the name of customs & traditions such as Female Genital Mutilation (FGM), Female Feticide, Gender Biasness, Honour killing, Early Marriage etc. Customary laws are practices as the mode of social control amongst different communities. But male valued Indian societies installed such thoughts on their mind that women have internalised these to great extent. The custom of denying upper status of women and underestimation of their abilities is still on. Some of the traditions give the portrait of how customary laws have been responsible for the committing crime against women & encourages for the removal of prejudices and customary practices which based on the notion of ‘inferiority of women and superiority of men.’

Gender equality as a fundamental right for women was proclaimed since 1912 when women in San Francisco rose up in arms for their rights. Infact, the charter of United Nation also proclaimed women’s rights on gender equality in 1945. Conventions regarding prevention of discrimination of women and much more provisions are laid down in the Indian Constitution towards the protection of women. But still a question on safeguard of female always rests in the mind of every girl. Though Indian history and mythology have given place of pride to women but the names Sita and Draupadi, also strike our mind. These prides of Indian history subjected to sexual harassment and mental torture. The instance of Sita’s aagni pariksha and draupadi’s vastraharana gives us the portrait of status of women. Nirbhaya case, 2012; Kathua rape case, 2018; Madurai infant girl killing case, 2020 etc are few examples of crimes against women. So I think the movies like ‘The Phantom Lover’, ‘Rashomom’ that reveal the fight of female protagonist, their endurance and finally their overcoming of the old culture are failed to encourage the people towards women empowerment. For the reason of some traditions, customs, social structures and attitudes towards women they became vulnerable to lots of crimes. Crimes against women are perpetrated not from yesteryear but since antiquity. Any traditional custom that places women in subordinate position within society or in family has the potential to turn violent. The SC observed that Indian women have suffered and are suffering discrimination in silence. Self sacrifice and self denial are their nobility and fortitude and yet they are remaining subjected to all indignities, inequalities and discrimination. Following paragraphs are for describing some kinds of crime committed against women resulting as the practice of customary rules with special reference to India.

Female foeticide and infanticide: Murder before and after birth

“If it seems horrible to kill a man in his own house, it ought surely to be more atrocious to destroy a foetus in the womb before it has come to light.-Jean Calvin

A woman has to face challenges from her mother’s womb. Crime against women can said to begun even before her birth as her life ended with an abortion and continues till her death. Female foeticide is the process of finding out the sex of a foetus and undergoing abortion if it is a girl. Some communities practice female infanticide i.e. killing of a girl child once born. The instances of infanticide available in India where recently in Madurai the grand-mother of a baby girl killed the four-day-old infant by using herbal concoction when the child’s mother was not at home, allegedly confessed by the infant’s father. In 2019, a 48 hours baby girl found with no sign of life in the post-natal ward of a government hospital in northern Tamil Nadu. Post-mortem report found adequate and positive forensic findings to prove that the death was unnatural and the baby was the second daughter of parents. In an examination by Rob Stephenson and colleagues using NFHS data found that women who resort to abortion also likely o experience violence and women in Bihar, Jharkhand, Maharashtra, and Tamil Nadu etc. were found more than twice as likely to have victim of violence after undergoing and induced abortion. Significantly, western and particularly north-western states such as Maharashtra, Haryana, and Jammu & Kashmir found with higher rate of female foeticide. About 5-7 lakh girls a year or 2000 girl in a day go missing in India due to female foeticide. During 2000, the high occurrence of female foeticide are concentrated in Maharashtra (45.1% of India’s total foeticide), followed by Madhya Pradesh, Haryana, Rajasthan and Andhra Pradesh. Female foeticide and infanticide not only reduce the female sex ratio, but also create a human rights violation from all aspects. Therefore, as a human being our duties should not limited to penalise the accused but also ending and infanticide. Uproot all the crimes against women must be at priority levels of government.

Why these practice of female foeticide and infanticide?

Abortion of baby girl or killing of girl infant is mostly frequent in the places where cultural norms valued the male over female. These cultural norms are seen to be based on mostly economic reasons. A girl in the society not gets preference because she will be married off to another family so will not contribute financial support to her parents. A daughter is considered as burden because of money which has to be spent on her dowry. Human greed and growing consumerism have made things worse. The argument that it is better to kill the girl in the womb than killed for dowry is outrageous. To some extent ultrasound scan is helpful for the medical science for knowing the improvement and status of a foetus in mother’s womb. But the negative side of technologies like ultrasound has led to sex based abortion of female foetuses. People think women are nothing but a liability. Female foeticide, infanticide, dowry death etc. are the examples of crimes against women due to economic factor. It cannot be said that rural people have zero knowledge about the consequences of foeticide. If the elder believes in male supremacy, younger automatically follow it. In Punjab 100% of people were aware about foeticide. About half were support of it. The fact is inspite of having so much awareness against the ill practice, public supports the crime unabated.

Female Genital Mutilation: Brutal cultural practice

“Why and how the bodily integrity and individual should be part of religion and its essential practice? Why should anybody else have any control over the genitals of individuals? FGM let the woman not to be ‘subjugated’ to the level where they have to ‘please’ her husbands only”Supreme Court, 9th July, 2018

“In FGM external female genitalia (clitoris, labia minora, and labia majora) is partially or totally removed using a razor of blade with or without anaesthesia is called the custom of khatna. Someone pinning her down spreading her legs apart and doing something that a girl even don’t know what is going to happen to her body. Being burnt, raped, tortured, killed in the name of crimes against women is not history. The apparent progressive world we live in; still practices some horrific brutal rituals, which being banned by government worldwide, seen a number of participant even today. Is there a real need for this custom?”

Why and where it is practised?

FGM is a social illness, the social pressure to follow what others do and have been doing. Cutting of women intimate part is often motivated by custom and beliefs. Many communities believe the practice is for controlling woman’s sexuality. It is done to refrain the girls from illicit sexual acts, which as per their definition is pre-marital sex and masturbation. It is also believed to ensure marital fidelity. Practiced in 27 countries in the Sub-Sahran and Northeast Africa and few Asian countries including India among the Bohra community. At a prevalence rate 98.9% Somaliland has one of the high rates of FGM in the world. With evidence 1-5 girls who have been subjected to FGM had the procedure performed by a trained medical professional. The World Health Organisation (WHO) estimates that more than 200 million girls and women worldwide have been subjected to FGM with approximately 3 million girls cut before they turn 15.

FGM violates human rights?

Our Constitution guarantees protection of life and personal liberty (Article 21) and prohibits discrimination on the grounds of sex, race, caste, religion, place of birth (Article 15). As the practice violates both the Article as it put female child to the trauma of FGM. Convention on Elimination of All forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of Child declared FGM as a violation of human rights. Article 3 of the Universal declaration of Human rights, states that everyone has the right to life, liberty, and security of person, where women and girls are not in full control of their liberty or their bodies. Violation of such above mentioned articles leads violation of human rights. Thought nothing is impossible and welfare of people should be more preferred than practice of custom, we should advocate for the laws restricting FGM. While, law is important, public education can play a vital role in this do away with FGM. Education about prevention of FGM should be encouraged in the schools and colleges. Outcomes like problems suffered by FGM’s victims and their interview should be integrated in the gender related education. Further, let the practitioner of FGM to be known the sequels of their action. In the name of practising cultural FGM is absolute crime against women and violation of human rights.

Honour crimes: Custom kills people

“The human rights of daughter, brother, sister or son are not mortgaged to the so called honour of family or clan”Justice Dipak Mishra

Marrying to a person from another culture should not be the reason for killing of a person or couple by his or her own family members. Divorcing or separating from their husband, being raped, unable to give a child to the in-laws, being in a relationship with another, engaging in non-heterosexual relations are the very reasons for honour killing. Both men and women are subjected to honour killing; as the culture always favour man, honour killing are appropriately crime against woman. Sheetal Chaudhary, resident of New Delhi was killed by her family so that she was in love with Ankit Bhati and got married to him in October 2019. As the Sheetal’s family got to know about her marriage to another caste’s boy they tried to convince to leave house. On January 30, 2020 parents and other relatives of her strangled her. They put her body in a car and drove to Aligargh and later disposed it into a canal. During sustained interrogation, family of Sheetal confessed to have killed in the police station. In 2017, 23 years old divorced woman found dead in her maternal house in a village near Roorkee, Uttarakhand. Investigation said victim’s mother, along with two of her minor kids smothered her to save the families name. So this is the portrait how honour killing is practicing worldwide. The misconception ‘honour killing can only erase shame’ leads to commit this crime.

Honour killing violates right to freedom and dignity:

Constitution of India guarantees not only Right to Life but Right to Life with Dignity. Where marriage is legal, right to select one’s life partner is integral to dignity of life. There are various rules and regulation in the name of a marriage such as Hindu Act, 1955, Dissolution of Muslim marriage Act, 1939, The Indian Christian Marriage Act 1872 but there are no writings in law books or any of holy books to commit honour killing when one married outside caste. Everybody has their own rights.

Role of Khap Panchayat in performing honour killing?

Khap Panchayat is the social organisation or administrative body generally prevailed in some north Indian villages. These are non-constitutional bodies’ tries to solve problems by applying age-old customs or traditions. According to this organisation inter caste, inter religion marriage or marriage in the same gotra is a violation of customary rules so punishment should be there for those. Khap Panchayat generally found in UP, Punjab, Delhi, Rajasthan and Haryana. The role of Khap Panchayat in Manoj- Babli case is one of the examples of practicing honour killing in 2007. Manoj and Babli from Kaithal district were brutally murder by Baabli’s relatives, on diktats of Khap Panchat for marrying in the same gotra. In Shakti Vahani Vs UOI (AIR 2018 SC 1601) SC held that two competent major persons can choose their life partners without any kinds of restriction or interference. Neither family members of both parties nor Khap Panchayat have the authority to determine the legality or validity of their relation. SC has also said that there is no constitutional value of Khap Panchayat and it does not bear a legal status under the Constitution of India. Looking at the interference by the Khap Panchayat on person’s life Chief Justice Dipak Mishra said that “We can’t say which marriage is null or void, which marriage is good or bad. Two persons marry, they are adult…you are no one to interfere in it…”

What should we do?

  • To develop publications and advocacy tools for international, regional and local areas which efforts to end FGM within a generation.
  • To ensure professional care, training, guideline, health policy and provide medical counselling and care for those who have experienced FGM.
  • Though economic consideration is one of the reasons for female foeticide and infanticide, the solution too will be economic. The government should take more initiative for reservation of seats in jobs & educational institutions, perhaps tax concession for parents of girl child.
  • At social level ‘Social Organisations’ , ‘Mahila Committee’ or Mahila Sanggathana, Religious Organisation should take preventive steps towards the practice of cruel customs and crimes against women.
  • Practice of dowry in some places contributes to the diminished position of women. Our duty is to clean the dowry system from each part of the Indian customs so that the socio-economic factor for foeticide and infanticide can be uprooted.
  • The honour killing is covered by Indian panel code. However making honour killing a separate crime, would help bring more clarity for law enforcement.
  • Prohibition of Unlawful Assembly (Interference with the Freedom of Matrimonial Alliances) Bill, 2011 is a proposed legislation in India intends to prevent honour killing in India. The bill also seeks to affirm the right of an individual, which can be read within the coverage of Article 21. However, the bill focuses on punishment rather than prohibiting criminal acts.

Why a woman cannot honour her own desires? Why the family’s honour always lied on the shoulder of a woman? Why people think that honour of a family is lost when their girl go away from home and will come back only after her death? Why a girl is always the victim of forced marriage as soon as she grows up? Why the society always keeps talking about her marriage and brings her parents under pressure? Why the social and family pressure always coupled with crimes against her?

Discrimination in the distribution of power and work always lies in the path of a woman and the philosophy of ‘crime against women’ will never going to end. The history itself is the evidence of women’s domination and their tolerance. Delineating various crimes is not my intention. The intention is to destroy the whole system that creates crime against women. The law should prohibit all the behaviours which are socially abhorrent. We should not only fight against the criminals but should give the maximum effort to uproot all the crimes. (The writer is an LL.M student of Dibrugarh University)

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