By Shivani Kabra and Anirudh Krishnaa
There is no doubt that patriarchy is widely prevalent in society – at home, at work, and even in educational institutions. One always looks towards the pillars of justice, guardians of constitutional values – the courts – for a reprieve from these ordeals. However, patriarchy is so pervasively entrenched in society that it is further reinforced by the judiciary which tends to propagate violence against women.
One such example would be the recent ‘Love Jihad’ case brought before the Kerala High Court. In this case, a Hindu woman, Akhila befriended a Muslim woman named Jaseena. She maintained close contact with Jaseena and her family, subsequently changing her name to Hadiya while converting to Muslim faith. Consequently, Hadiya’s father filed a petition before the Kerala High Court for regaining custody of Hadiya, which was rejected on the grounds that Hadiya, being a major of sound mind, was capable of making her own decisions. A second petition was filed during the pendency of which Hadiya decided to marry Shafin Jahan. The petitioner’s contentions were that a female in her twenties was at a ‘vulnerable age’ and as per ‘Indian tradition’ the custody of an unmarried daughter rested with parents till she was ‘properly married’. The courts further stated that parental authority and control does not cease when the child attains majority.
Such arguments of paternalistic authority have found support in the prior case of Dr. Lal Parameswar vs. Ullas. N.N where a father illegally detained his daughter in his house since she wanted to marry a man her father did not approve of. The court opined that “parents were naturally the proper people for making decisions concerning the future and career of their children, and so they are entitled to control their children, especially if they are daughters, to protect them from the ‘vagaries of adolescence’”. Through such an approach, the Court absolutely ruled out the concept of individual autonomy and agency while denigrating female intellect and maturity.
The aforementioned conclusion was replicated in Hadiya’s case, (Love Jihad case) wherein though the court admitted that questions of faith and religion were matters of personal conviction, not to be interfered with, they still declared the marriage a sham and remanded an adult female to the custody of her father. The reasoning postulated was deduced on the ground that she was not a bright student and therefore incapable of taking firm, independent decisions.
This judgment in the ‘Love Jihad Case’ is a reflection of gender actions within the framework of benevolent sexism that regard women as dependant entities incapable of individual autonomy. The court’s ruling that remanded Hadiya into the custody of her father was due to her ‘moderate intellect’, which made her vulnerable to the evils of society. The decisive attitude with which the courts stripped Hadiya of her decisional autonomy and vested the same with her father is the literal and symbolic definition of paternalistic. Not only does this approach take away the decisional agency of an adult woman but it also reinstates its effectiveness in controlling women choices and shaping them into conformity with idealized traditional norms. Such denials of a woman’s’ self-hood is nothing but the vestiges of rescinded practices of covertures, and deliberate infantilisation of females into being considered inept at decision making.
In an alternate case before the courts, three students from Jindal Global Law School blackmailed and engaged in forceful sexual relations with a fellow student. Though they were initially convicted and sent to prison, the Punjab & Haryana High Court recently released the accused students on bail while reviewing the case. According to the court, the incident “was reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world.” The court questioned the virtues and attitude of the female student prior to the act and blamed her for the entirety of the incident. On considering the amicable relationship of all the parties prior to the sexual assault, the court felt the incident lacked ‘gut wrenching violence’ and was accordingly deemed to be a misunderstood result of ‘casual relationships and adventurism’.
In this context, it is relevant to mention the Delhi High Court decision in the recent Mahmood Farooqui case where the said person was alleged to have sexually assaulted a foreign student. The court accepted the argument that due to prior friendly and sexual interaction between the two parties the accused was incapable of realizing absence of consent despite the numerous times the female student had said no. The underlying assumption was that the female student’s resistance was too feeble for the accused to comprehend and thus would not constitute rape. By doing so, it decried the concept of affirmative consent while interpreting the same on a subjective platform of the perpetrator’s understanding of the same or lack thereof. Significantly, the court inferred that though there was unwillingness in her own mind and heart, the female student had still communicated her consent.
The foregoing judgment of the Haryana High Court too reverberates of an overarching mindset engaged in system justification of traditional roles. The Haryana Court in their judgment released the perpetrators on bail owing to the ‘promiscuous’ personality of the victim and the bright futures’ of the perpetrators. Though a manifestation of the Brock Turner case, the court sought to take the philosophy one step forward by engaging in victim blaming and slut shaming – two devices still used by society to condition female behaviour into the mould of a model paragon. Similarly, the Delhi High Court based their judgment in M Farooqi on traditional sexual roles played by both the genders with the male being the dominant and the female, the submissive. While acknowledging gender equality activism in current times, they dubbed the same as confusing for the male intellect in understanding if there is consent (or its lack thereof) or simply a woman exercising her new-found equality activism.
It is pertinent to understand that the underlying reasoning posited in all the foregoing judgments was remnant of a Victorian era paternalistic attitude. The blatantly paternalistic approach employed by the Courts while intended at ‘protecting’ and ‘caring’ for the female gender, is based on the presumption of male superiority, authority and intellect. Thus the subterfuge accepted through these decisions perceives women as incompetent outside her tradition gender role of nurturer and reinstates the gender stereotype of men as protectors.
Besides the obvious disregard of the law, these judgments collectively reinstate structured gender stereotyping with the male as the dominant and the female as the submissive abider of the male’s dictates. By making sexual awareness (‘promiscuity’) of a woman the reason for her sexual assault, one denies her, her sexual agency and make the concept of consent optional; contingent upon the circumstances of the incident. Assertive or self-confident females are considered an anomaly with the prevalent gender roles they are supposed to play, while the enormity of the male ego is made conditional on the number of sexual partners he has had. The dictionary meanings of the terms inter alia promiscuous, slut and wanton too restrict the usage of such nomenclature to the female gender while condescending sexual exploration by them.
This general acceptance of double-standards in gender norms by most men and women unnecessarily valorises male masculinity and stigmatizes femininity to the extent of placing the latter on a subversive panel to the former (in line with the concept of ‘the second gender’). Remarkably though, it disillusions ‘male-gaze’ of a society that paradoxically looks down upon female sexuality (read ‘slutty behaviour’) while simultaneously desiring sexier females. The echo of the Brock Turner case in the Haryana Court judgment while absolutely disregarding the enormity of the crime further sets a disturbing precedent of a court that accepts sexual assault of promiscuous females by individuals having bright academic and career future.
The irony in the entirety of these incidents is still however the interchangeability of the names of the Courts.
(Anirudh Krishnaa is an Associate Editor and Shivani Kabra is an Editor at the Journal of Indian Law and Society)
Asokan K.M. vs The Superintendent Of Police, WP (Crl.) No. 297 of 2016.
Asokan K.M. vs The Superintendent Of PoliceWP (Crl) No. 25 of 2016.
Lal Parameswar v. Ullas N.N,(2014) 1 KLT 937.
Id. at 8
Supra note 1.
Id. at 75.
Feminist Perspectives on the Self, Stanford Encyclopaedia of philosophy, June 28, 1999, at https://plato.stanford.edu/entries/feminism-self/#BM2
Vikas Garg &Ors. v. State of Punjab & Haryana, Cr.M.No.23962 of 2017.
Id. at 10.
Id. at 10.
Mahmood Farooqui v. State (Govt. of NCT of Delhi) CRL.A.944/2016.
Id. at 58.
 Id. at 59.
Joseph Marguiles, Racism, Classiam, Feminism… and Brock Turner, The Verdict available at https://verdict.justia.com/2016/09/06/racism-classism-feminism-brock-turner
Id. at 85.
Jacqueline Yi, The Role of Benevolent sexism in Gender Inequality, athttp://steinhardt.nyu.edu/appsych/opus/issues/2015/spring/yi
 This is further mirrored in the Delhi Court judgment where it was opined that “in acts of passion, actuated by libido, there are myriad circumstances which can surround consent and it may not necessarily always mean yes in case of yes or no in case of no.”
Feona Atwood, Sluts and Riot Grrrls, Vol. 16(3) Journal of Gender Studies, September 19, 2007, http://www.tandfonline.com/doi/full/10.1080/09589230701562921 ; See Jane Mills, Woman words a Vocabulary of Culture and Patriarchal Society, at https://philpapers.org/rec/MILWAV
Simone De Beauvoir, The Second Sex, 1949
Linda LeMoncheck, Loose Women, Lecherous Men: A Feminist Philosophy of sex, 1997