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Changing sex relations in India in the transitional era

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Markandey Katju
Markandey KatjuSep 09, 2018 | 09:08

Changing sex relations in India in the transitional era

New relationships between men and women in our country highlight our transitional era

Since India is passing through a transitional period in its history, from a feudal to an industrial society, many new phenomena have arisen in social relations — particularly relating to relations between men and women. We may consider some here.

Love isn't always sweet and simple. (Photo: PTI/file)
Love isn't always sweet and simple. (Photo: PTI/file)

Inter-faith marriages, though not common, sometimes take place in India. A recent example is the case of one Mohd Ibrahim Siddique of Chhattisgarh, who reportedly fell in love with a Hindu girl, converted to Hinduism, and married her in an Arya Samaji ceremony. However, his grievance was that the girl's parents later allegedly detained her against her wish. 

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He appealed to the Supreme Court after his petition was dismissed by the Chhattisgarh High Court, but the girl, in the SC, said she wanted to live with her parents. Hence, the appeal was dismissed. Now why the girl preferred her parents over her husband can only be a matter of conjecture. She had been with her parents for some time. Was she cajoled, threatened or given some allurement by her parents? We do not know.

The law is well settled that if a girl is a major, i.e. above 18 years of age, she has a right to live with and/or marry whom she likes, vide Lata Singh vs State of UP, Hadiya's case (Shafin Jahan vs Ashokan) and Nandakumar vs State of Kerala. 

Hadiya, whose case made history. (Photo: Twitter)
Hadiya, whose case made history. (Photo: Twitter)

However, apart from the legal aspect, there is an important social aspect to the issue. In the case referred to above, the girl's name and caste have not been disclosed, but if she is upper caste or OBC, it is unlikely that the girl's parents will accept the marriage, and will probably cut off social relations from the couple permanently. 

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This is because Hindu society is, even today, conservative and largely caste-bound. Even if a Muslim converts to Hinduism, to which caste will he belong?

Caste is so deeply entrenched in Hindu society that when Hindus migrate to foreign countries, they often take their caste with them.

For instance, in the USA, there is an organisation called TANA (Telugu Association of North America) which consists mainly of Kammas from Andhra and Telengana, and an organisation called NATA (North American Telugu Association) consisting mainly of Reddys from the same states.

I was a judge for 20 years — in all my career, I came across only one case of inter-faith marriage where the young man was a Hindu and the woman was a Muslim. In all the other cases (and there were dozens of them), it was the reverse, the man being a Muslim and the woman being a Hindu, who converted to Islam, took on a Muslim name, and came to court wearing a black hijab.

The woman in a veil raises more than one debate. (Photo: Reuters/File)
The woman in a veil raises more than one debate. (Photo: Reuters/File)

So, it is largely one-way traffic (which the BJP calls 'love jihad').

In my opinion, the reason for this happening is that when a Hindu girl marries a Muslim youth, she is accepted into the youth's family, whereas if a Muslim girl marries a Hindu youth, the latter's family often does not accept her — because she does not belong to their caste.

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Even after marriage, a couple often needs family support, materially and emotionally, for it is difficult to live in isolation.

Apart from that, since most Muslims are very conservative, the relatives of a Muslim girl who marries a Hindu youth may sometimes resort to violence, as happened recently in a case in Kerala. Of course, 'honour killing' is not confined to Muslims — many Hindus do it too, for instance, in Western UP and Haryana.

Caste is still deeply ingrained in our society — and is not confined to Hindus — as Justice Rohinton Nariman of the Supreme Court recently pointed out.

I may give a few instances from my personal experience.

When I was Chief Justice of the Madras High Court, a judge belonging to a Scheduled Caste came to meet me on a courtesy call with his wife. His wife belonged to an upper caste in Tamil Nadu. She told my wife that they had had a love marriage many years back. When they married, her relatives performed her 'funeral rites', and thereafter cut off all social relations with her.

When I was in Allahabad, I had a Muslim friend, a Syed by caste. In theory, Islam knows no caste — but in India, particularly North India, Muslims have castes, and Syeds are the highest (see my blog 'Caste among Muslims in India' on my blog: Satyam Bruyat).

My friend's daughter was of marriageable age, and I suggested a young man for marriage, whose father was a multi-millionaire and known to me. My Syed friend asked the young man's caste. I said he was an Ansari, and had a carpet manufacturing business in Bhadohi. At this, my friend's wife remarked, "Bhai Saheb, hum chama** mein shaadi nahin karte."

I was shocked and said that I thought Islam recognised no caste. She said, "Bhai Saheb, woh sab theek hai, magar hamein apni biraadari mein rehna hai."

Alongside all this, we have to confront the misuse of laws meant for the protection of women.

Some laws ostensibly meant for the protection of women have in reality become weapons in the hands of estranged vindictive wives  —  e.g. Section 498A IPC and the Protection of Women from Domestic Violence Act, 2005. Often, wives who are estranged from their husbands file FIRs against them under these laws, implicating not only the husband but also a large number of his relatives, like his parents, uncles and aunts, brothers and sisters, cousins, etc.

The result is that the police come to arrest all of them — and often demand bribes for not doing so. The unmarried sisters often have difficulty in getting married then. The case lingers for years, and the wife resorts to blackmail, demanding a huge amount of money for withdrawing it. This practice is rampant in India, and whole families are suffering due to it.

There are several instances as well where the young wife of an NRI settled in the USA or Europe, who has differences with him, surreptitiously abducts their child (or children) and goes off with them to India permanently. The husband sometimes files a court case in the US or Europe and obtains a decree for the return of the child to him, but the decree is unenforceable as foreign decrees are not binding in India. 

There is a Hague Convention for the return of such internationally abducted children, but India has not signed it.

Consequently, the only legal recourse for the NRI is to come to India and file a court case here, praying for custody. In India, the law of custody is that the paramount consideration for the court is the welfare of the child, and since the child is usually small, most judges take the view that the child needs the mother more. Only visitation rights are granted to the father, but how often can a man holding a job in the USA or Europe visit India? I know of NRIs who have wept before me as they have not seen their children for years.

Pre-marital sex and live-in relationships are also areas of turbulence.

The Tamil actress Khushboo was prosecuted for defamation for her views on pre-marital sex and live-in relationships, but in the Khushboo vs Kanniammal case, the Supreme Court quashed the criminal proceedings, holding that Khushboo had the freedom to express her views — and that 26% people in Tamil Nadu agreed with her.

Khushboo won the argument on pre-marital sex and freedom. (Photo: PTI/file)
Khushboo won the argument on pre-marital sex and freedom. (Photo: PTI/file)

In D Velusamy vs D Patchiammal, the Supreme Court in an elaborate judgment held that a woman who had a live-in relationship with a man was entitled to maintenance on separation.

The Court noted that a new legal concept called 'palimony' has been created in view of changes in society. While alimony is granted to a divorced or estranged wife, palimony is granted to a woman who was never legally married, but lived for some time in a live-in relationship with a man, and thereafter separated.

Relations between men and women in India are thus changing and it is vital we know much more about this.

Last updated: September 09, 2018 | 09:08
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