AGAINST PRESCRIPTIVE GENDER BEHAVIOUR
– Saema Jamil
LL.B from Campus Law Centre, Delhi University,
LL. M. from National Law University, Delhi,
Assistant Professor at Lloyd Law College (Affiliated to CCS University)
Men and women are expected to behave in particular ways and if they fail to adhere to the stereotypes, their behaviour is declared to be unreasonable. This is what is referred to as prescriptive gender behaviour in this paper. The law and the courts together decide how women should behave in given situations and punish them if they do not abide by the set norms.
The aim of this paper is to argue that prescriptive gender behaviour adversely affects women and must be eliminated. The focus would be on criticism of gender behaviour ascribed to women in particular because ultimately it is women who suffer dearly because of them. However it is clarified that the author believes there should not be any expectations as to the way a person should behave based on his/her gender.
The prescriptive gender behaviours are most starkly evident in family law cases and rape cases. Thus, this paper would analyse these sets of cases to demonstrate how stereotyping of behaviour and actions adversely affect women. Part A of the paper discusses divorce cases on the ground of cruelty which showcase that prescriptive gender behaviour is one of the guiding factors while deciding cases. Part B would exclusively deal with rape cases and scrutinize judgments from the lens of prescriptive gender behaviour. The aim of the paper is to show that prescriptive gender behaviour not only violates the rights of women who do not adhere to it but also reinforces stereotypical notions of women based on patriarchy and promotes status quo.
A. PRESCRIPTIVE GENDER BEHAVIOUR IN FAMILY LAW CASES
This part of the paper would focus on how the courts while applying family law have reinforced traditional gender roles of women and thus preserved the subordinate position of women. To do so petitions filed for divorce on the ground of cruelty under the Hindu Marriage Act, 1955 would be analysed.
I. Divorce Cases
The Hindu MarriageAct, 1955 enumerates various grounds on which divorce can be sought.1 These grounds are available to the husband as well as the wife. However, the grounds are applied to them differently because the courts judge the cases according to the gender roles prescribed by society. This part would analyse cases under Section 13 (1) (ia)2 of the Hindu Marriage Act in order to demonstrate how a gender neutral provision is applied in a biased manner.3
Before 1976, cruelty was only a ground for judicial separation. The petitioner was required to prove that the respondent had treated him or her with such cruelty so as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the respondent. It was only after the Hindu Marriage Laws (Amendment) Act, 1976 was passed that cruelty was made a ground for divorce. Also, cruelty was not qualified and thus, the petitioner was not required to show reasonable apprehension in his or her mind that it would be harmful or injurious for him or her to live with the respondent. The courts interpreted the word “cruelty” to imply physical as well as mental cruelty.4 In V. Bhagat v. D. Bhagat5 mental cruelty was defined as “conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other.” It was further held that while determining whether mental cruelty was inflicted or not regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances.6 The factum of cruelty is therefore to be determined on a case to case basis in a subjective manner.
This subjective nature of cruelty has led to a lot of uncertainty and unpredictability and has created a space within which the courts can take into account their assumptions about the nature of family and of men’s and women’s different roles therein.7 Often the courts have punished women who challenge the normative behaviour expected of them and rewarded women who adhere to them.8 For instance in a case, the court held that mental cruelty to the husband was established inter alia because the wife refused to wear a mangal sutra, especially when she was a Hindu Brahmin.9 In contrast the court rejected the husband’s petition for divorce on the ground of cruelty in another case where it was convinced that the wife was fulfilling her matrimonial duties like a devoted good Hindu wife.10
The court in Sapna v. B. Pradeep Kumar11 held that a wife must not remain like a maid servant, only to cook food and look after children. It further held that the wife is also expected to have a rightful equal honour and dignity in matrimonial home.12 The word “also” can be interpreted in two ways. Either it means that the wife like the husband is entitled to honour and dignity or that besides cooking and looking after children, the wife is also expected to be treated with honour and dignity. A plain reading of the judgment points towards the latter meaning. This would imply that it is the duty of wives to do domestic work but they cannot be treated like a maid servant; they must be given respect. Merely adding that wives must be given honour and respect does nothing to challenge the stereotype that women are duty bound to perform household chores. In fact the judgment reinforces the belief that women must perform domestic chores.
The court upheld cruelty to the wife in Vijaykumar Ram Chandra Bhate v. NeelaVijaykumarBhate where “aspersions of perfidiousness” were attributed to the wife.13 The court held that keeping in mind Indian conditions and standards, accusations of unchastely and indecent familiaritywith a personoutside wedlock and allegations ofextramarital relationship are an assault on the character, honour, reputation, status as well as health of the wife.14 It held that it was one of the worst forms of insult and cruelty. The decision acknowledges and accepts the social norm that requires wives to be loyal and that sees chastity as the most important value that a woman should possess. It does not say that in a marriage, trust is a sine qua non for a happy relationship and allegations ofunchastelyresult inembittering the relationship and might amount to mental cruelty. Instead the court has cited Indian conditions to justify its conclusions and has impliedly accepted the cliché argument that women are the keepers of morality and in their honour lays the honour of the family. This decision makes it abundantly clear that indecent familiarity of the wife with a person would be seen as the worst form of cruelty to the husband and of course what constitutes “indecent familiarity” would also be seen in the Indian context!
This case when contrasted with another case where the court upheld cruelty to the husband brings out how gender stereotyping and prescribed gender roles influence the court’s decisions. In G. V. N. Kameswara Rao v. G. Jabilli,15 it was held that the wife was subjecting her husband to mental and physical cruelty. The primary reason given was that the husband was not respectfully treated when he went to meet his wife who was living with her sister. The non courteous treatment ofthe husband was said to have caused serious humiliation to the husband especially because it was meted out in the presence of others. The educational qualification of the husband and his position in society were seen as important factors in coming to this conclusion. The court finally granted a decree of divorce on the ground of cruelty because of non-cooperation and hostile attitude of the wife. Thus, for a husband lack of respect given to him by the wife is seen as cruelty while for a wife any aspersion on her chastity is seen as cruelty to her.
In SwarupTalapatra v. GargiTalapatra16, the husband filed a petition for divorce under Section 13 (1) (ia). The court ruled in his favour because the wife did not cook food for him and his parents on the pretext of going to office, insulted and quarrelled with him, did not take care ofthe child thereby forcing him to miss work, went to her parents without permission, did not disclose why she visited a doctor after leaving the residence of the husband, attempted to commit suicide and insulted his parents. The first four reasons blatantly demonstrate the importance of prescriptive gender roles for the judge. The failure of the wife to conform to societal norms was seen as cruelty to the husband.
The courts have viewed refusal to live with the parents of the husband as amounting to cruelty. For instance, in Durga PrasannaTripathy v. Arundhati Tripathi17 the husband sought a divorce decree inter alia on the ground that the wife refused to stay with him, took up a job where her parents lived and pressurised him in joining her there. The court saw the refusal to live with the parents of the husband as desertion and after perusing through the evidence came to the conclusion that there was an irretrievable breakdown of marriage. In an apparently more liberal judgment the court held that a reasonable demand by the wife to have a separate matrimonial home does not amount to cruelty.18 In the opinion of Justice P. Roy, the wife’s insistence on separate residence per se does not constitute mental cruelty unless it is found to be totally unnecessary, unreasonable, inhuman and unfair. Thus, if the wife’s demand of a separate residence is without a justifiable cause, it would amount to metalcruelty. The question that arises is- What is a justifiable cause? Would reasons like unwillingness to cook for more people or want for privacy qualify as reasonable demands? The problem is that the courts would judge the reasonableness of the demand in an objective manner. In other words, it would see if the demand is justifiable from the point of view of an Indian woman who adheres to all normative norms and perfectly fits into the gender role prescribed by society for women. Consequently, even though the determination of the factum of cruelty is based on a subjective test, the acts of the wife are judged objectively. To put it differently, the same provision has different ramifications for men and women.
The purpose of discussing divorce cases relating to cruelty was to demonstrate the futilityof a gender neutral provision if they are applied in a gendered manner. The direct result of imposing prescribed gender roles upon women is the exclusion and alienation of women who challenge them or do not fit into these roles. It also results in normalising and legitimising the assumption that women must adhere to these gender roles in order to deserve relief from the courts.
B. PRESCRIPTIVE GENDER BEHAVIOUR IN RAPE CASES
This paper has so far highlighted the behaviour expected from women in the context of family law. This part of the paper would analyse how imposition of prescriptive gender behaviour negatively affects women in rape trials.
I. The implications of past sexual behaviour
Traditionally rape was seen as a property offence and loss of virginity and chastity was seen as a decrease in the value of the woman. In contemporary times, rape can no longer be called a property offence; however the focus still remains on the virginity and chastity of the woman. No wonder rape for more than 150 years constituted only penile-vaginal penetration. It was only when the CriminalAmendment Act, 2013 was enacted that the definition of rape was broadened to include various other kinds of penetrations (penile-oral, penile-anal, finger/ object and anal/vaginal penetration).19 It is worth observing that despite the increase in scope of the definition, the focal point continues to be on penetration (except in Section 375 (d) which covers application of mouth to the vagina, anus or urethra of a woman).
The importance given to virginity is evident by the two finger test which is carried out as a matter of routine in most States. The test is conducted to examine the laxity of the vagina by inserting two fingers and to determine whether the victim was “habituated to sexual intercourse” or not. It has no scientific utility and proves nothing because the laxity of the vagina cannot prove habituation to sexual intercourse20 and even if it did, habituation to sexual intercourse does not disprove rape. Despite its lack of scientific basis, it has crystallised into a blindly followed custom. The Supreme Court of India has held that the two finger test violates the victim’s right to privacy, physical and mentalintegrity and dignity21 and yet the test has not been banned.
The reason behind the significance attached to the two finger test is the belief that only virgins can be raped. If a woman loses her virginity, she cannot be raped; once a woman ceases to be chaste, she loses the protection of the law.
Until 1983, past sexual history was openly used as a tool to discredit the testimony of the rape victim.22 The courts cited the victim’s past sexual history as a proof of consent to sexual intercourse. The victim was particularly disbelieved if she was in an adulterous relationship or if she was sexually active before marriage. In Pratap Mishra v. State of Orissa ,23 the court called the prosecution story as “inherently improbable” inter alia on the ground that the victim was a sexually experienced, grown up woman. Similarly in Tukaram v. State of Maharashtra 24, the victim’s past sexual history was the primary reason for finding fault with her story.
In 1983, a proviso was added to Section 146 of the Indian Evidence Act stating that in a prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character. Despite the insertion of the proviso, the past sexual history of the victim continued to influence the decision of the court. This is evident from the judgments as they clearly justify acquittal of the accused on the basis of medical reports stating the victim was “habituated to sexual intercourse”. Recently, the Criminal (Amendment) Act, 2013 inserted Section 53A to the Indian Evidence Act in order to make evidence of character and previous sexual experience irrelevant in cases of sexual offences but the amendment is going to have little effect until past sexual history is allowed to be introduced through the two finger test and other means.
The attempt has been to control women’s sexuality by equating sexual activity to unrapability. The law only comes to the rescue of women who adhere to the prescriptive gender behaviour, i.e. women who protect and value their chastity; women who fail to do so are not given the protection of law. It is high time that the judiciary and the legislature recognise the problem and become willing to challenge prescriptive gender roles and behaviour.
II. Creation of stereotypes by pigeonholing women into “types”
The court while pronouncing judgments in rape cases ended up pigeonholing women into “types”. In Smt.SudeshJhaku v. K.C.J. and others25 the court held,
when we think of integrity of the person violation of which society cannot and must not tolerate (Susan Estrich, Teaching rape Law, The Yale Law Journal) we think not only of women clad in chiffon, draped in misty soft powder sprinkled with a swans down puff challenging to sink ships and stop heart beats, though they also are no less important, but of also those bare-faced a la Bankim Chandra imprisoned within the confines of female subordination and restricted life chances.26
The court has unnecessarily stereotyped women differentially depending on their social status thereby implying inherent differences between them. The court went a step further in BharwadaBhoginbhaiHirjibhai v. State of Gujarat27 by enumerating characteristics of different classes of women. It held that if the evidence of the victim does not suffer from any basic infirmity and the probabilities-factor does not render it unworthy of credence, there is, as a general rule, no reason to insist on corroboration. This statement if seen independently is progressive, however if the judgment is read as a whole, it does more harm than good. The court has divided women into three categories: “women of Western society”, “rural and most urban Indian women” and “some urban elites”.
The court has stated that Western womenmight institute false cases as regards sexual molestation because of a variety of reasons like ulterior motive for economic gain, psychological neurosis, in order to take revenge, out of jealousy or to gain publicity or sympathy from others. On the other hand, it has held that it would be only in very rare cases when an Indian woman would file a false case relating to sexual offence. The reasons justifying this hypothesis are a number of stereotypes associated with Indian women which reinforce that all that matters for an Indian woman is her virginity and chastity. Some of these characteristics/stereotypes mentioned in the judgment are:
• A woman would be reluctant to even admit that any incident reflecting on her chastity has ever occurred
• She would be fearful of ostracisation by society
• She would be afraid to lose the love and respect of her family members
• If unmarried, she would be worried about not finding a suitable match
• She would feel embarrassed to narrate the incident and be overcome by shame
• She would avoid destroying the family honour
• She would be scared of being blamed for the incident
The court further opined that false accusation as regards sexual offences might only be filed rarely by Indian women and that too “possibly from amongst the urban elites”, thus creating a further class of “urban elites”.
The implication of the decision has been disastrous. It ends up putting a greater burden on foreign women, women who might have been brought up abroad and women belonging to the elite class to prove rape. The decision becomes a precedent to rely upon when the court wants to disbelieve the evidence of a woman who belongs to one of these classes.
The reasoning based on stereotypes has been given in a number of subsequent judgments to justify believing Indian women without material corroboration.28
The courts have come a long way since Rameshwar v. The State of Rajasthan29 where it equated the testimony of a rape victim to that of an accomplice. However, the problem lies with the line of reasoning employed by the courts to say that corroboration ofthe rape victim’s testimony is not necessary. Instead of giving rational justifications like lack of eye witnesses in a rape case since rape generally takes place in a private place, the court cited and agreed with stereotypes that apply to Indian women. These stereotypes might even be true in most cases but the court’s reliance on them in order to believe the testimony of the victim does grave injustice to women who do not fit into them and also shows a sense of contentment with the way women are stereotyped and expected to behave. If the courts challenge the conventional image of an Indian woman and base their decisions on rational arguments, it would help reducing gender inequality and provide a normwhich would gradually be accepted by society. On the other hand, if the court subscribes to and accepts these stereotypes, gender equality would merely remain a distant goal which would never be achieved.
III. The ashamed victim is the only “true victim”
As discussed above, the courts have accepted and subscribed to gender stereotypes while pronouncing decisions which have resulted in favouring some women over others. This section would examine how this has forced the rape victim to discharge the burden of performance30 in addition to the burden of proof in order to win her case.
Justice Krishna Iyer in his poetic style wrote in a judgment:
When no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, we cannot cling to a fossil formula and insist on corroborative testimony…… When a woman is ravished what is inflicted is not merely physical injury, but “the deep sense of some deathless shame.31
He in the same judgment upheld the seven year sentence awarded to the accused because “rape for a woman is deathless shame and must be dealt with as the gravest crime against human dignity.
This portrayalof rape as deathless shame for the woman does two things: one, it acknowledges and confirms the view that rape is committed more against the chastity of the woman and less against the woman (thus, the woman is bound to be ashamed of being raped) and two, it puts a burden of performance on the woman to appear ashamed. Both consequences are equally problematic.
Section 280 of the Criminal Procedure Code provides, “When a presiding Judge or Magistrate has recorded the evidence of a witness, he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination.” The Judge or Magistrate gauges the demeanour of the complainant against the backdrop of the prescribed gender behaviour for women. For example inKamalanantha and Ors v. State of TamilNadu32 , the court quotes the observation of the trial court made under Section 280 of the Criminal Procedure Code and is visibly shaken by it. The witnesses cried and felt giddy and dizzy while testifying as they recounted the horrific acts done to them. The court believed them and sympathised with them. But what happens if the witness does not appear ashamed, teary-eyed, broken and timid? Should she be branded as a non credible witness and should an adverse inference be drawn against her on this basis? The answer obviously should be no but the Section gives the judge the power to determine whether a rape victim is a credible witness or not through her demeanour (when even psychologists cannot tell with certainty whether a witness is lying or not). Aparticular victim might appear distressed while another might appear calm and detached. It is now well documented that rape victims can have a wide range of reactions33 but the Section coupled with expectations of compliance with prescribed gender behaviour favours only the women who fit the stereotype. Even though Section 114Aof the Indian Evidence Act, 1872 shifts the burden of proof on the accused in cases which fall under Section 376(2) of the Indian Penal Code34, Section 280 increases the burden of performance on the victim.
This necessitation of the discharge of the burden of performance by the accuser, results in the crystallisation of a dogma that only a victim who appears ashamed is a “true victim”; any other reaction is met with suspicion.
The recurring motif in this paper has been that women who comply with prescribed gender behaviour are rewarded by the courts while those who deviate from it are punished or at least denied the protection of the law. The problem is two-fold; it puts an additional burden on the victim and more importantly, it provides legitimacy to the need to adhere to prescriptive gender roles and behaviour. In fact, it forces the victim to at least pretend to behave in the expected manner if they desire justice to be done.35
The unwarranted result is the further entrenchment of prescriptive gender behaviour for women. It is a vicious cycle: the courts decide on the basis of prescriptive gender behaviour which leaves no options for the victim but to abide by them. To break this vicious cycle, the courts must take the first step to challenge the status quo or at least not accept and base their arguments on the pre-existing unfair, arbitrary and sexist gender behaviour that is attributed to women. Unfortunately, as this paper revealed the courts have not yet attempted to do so.