AIDS and the Sexuality of Law: Ironic Jurisprudence


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Be the first to like this. No Downloads. Views Total views. Actions Shares. Embeds 0 No embeds. According to news reports perturbed over recurrent instances of sexual harassment of teenage girls, the panchayats of six villages in Haryana decided not to send their girls to school. Around girls were affected by this decision. One can condemn these decisions, but this will not help change social reality at the ground level. Child rights groups concerned with the global trafficking of minors opposed the provision of 16 years for consensual sex on the ground that it would encourage child traffickers.

But we cannot collapse two different concerns — the issue of trafficking of minors and consensual sexual activity between young adults. The new bill has stringent provisions on trafficking and there is no intention on the part of the government to skirt this issue. So this argument lacks validity. This position also has the sanction of the moral brigade that views sex and marriage as synonymous.

The two main concerns for those resisting the increase in the age of consent are increasing parental control over young adolescents and criminalising a normal sexual activity. Monica approached a public hospital with pregnancy-related problems. The boyfriend, a year old Muslim, who worked as a garage mechanic, was arrested.

Monica was distraught. Several bail applications made on his behalf were dismissed despite Monica herself pleading for his release. This incident occurred before the Protection of Children from Sexual Offences Act, , with its provision of mandatory reporting of all sexual offences came into force.

A month later, Monica delivered a daughter. Her only concern was to meet the father of her child. Every time he was brought to court, she went along with her infant all dressed in a hijab. Her fault was not realising in time that she was pregnant so she could undergo an abortion, and her mother truthfully admitting that she was not married and that they were too poor to afford a private maternity home. Monica is lucky that she has a supportive mother but other young girls are not so lucky.

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There are several instances where the parents file cases of rape against the boys with whom their teenage daughters have eloped. These are cases where the girl elopes with her boyfriend and her parents file a case of rape to exert pressure on her to return, only to get her married to a boy of their choice against her wishes. This tactic could be used only if the girl was around 16 years of age, but now it can be used even in cases where the girl is over 18, since proof of age is a contentious issue in litigation and ossification tests have a margin of two years, either way.

And in a dispute over age between the parents and the child, the law tends to lean in favour of the parents. In a strictly stratified society, ridden with prejudices against the lower castes and minorities, a young couple that dares to cross boundaries is severely punished. At times, the price for choosing a partner is public humiliation or gruesome murder. The notion of women as the sexual property of their communities is deeply ingrained.

Despite this being one of the earliest legal campaigns, there are hardly any incisive analyses on why legal reform has failed to address the problem. While child marriage continues to be a problem rooted within socio-economic structures, a solution to it is sought within the domain of the law. The contemporary discourse needs to be located within continuous structural shifts in the economic, cultural and social frameworks.


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The 19th century reformers raised this issue within the newly introduced colonial legal order, which was designed to usher in modernity and state control. It posed a challenge to brahminical patriarchy, within which a high premium was placed on the virginity of child brides.

The demand was to fix a statutory age of 10 years, below which intercourse was prohibited, both in prostitution and in marriage. This was opposed by revivalists who challenged the authority of the colonial state to interfere in local customs, practices and religious beliefs.

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But the age of consent was fixed at 10 in the Indian Penal Code of Later, following the death of a young bride, Phulmonee, due to violent sexual intercourse by her husband, the age was raised to 12 in after a great deal of controversy. The British courts had ruled that since the girl was above the age of consent, her death could not be viewed as murder as the husband had a legal right to have sex with her Sarkar The age for marriage of girls under the Child Marriage Restraint Act, CMRA was raised from 12 to 14, when biologically the body of the female would be more receptive to sexual intercourse and pregnancy.

In , the age of consent under the rape law was raised to 15 years. This became the basis while enacting the Hindu Marriage Act in , which laid down a minimum age of 15 for girls and 18 for boys. But the enactment did not render under-age marriages void. This was due to the ideology of Hindu marriages being sacramental despite the codification and due to the grave social implications such a move would have on children born of such unions.

In this context, the CMRA came to be viewed more as rhetoric or an aspiration than a moral code or a legal mandate. Socially sanctioned community norms and customs prevailed over the legal dictate. So, despite the prolonged and highly visible campaign before the enactment, the Act was a non-starter, with scholars in the late s commenting that there had hardly been a hundred-odd prosecutions under it in 40 years, while millions of child marriages took place in the country.

It was also noted that where parties had been prosecuted, the motivations came from family feuds and factional fights rather than from a diligent application of the legal provision by the state Sampath Thus even the few prosecutions under the Act were confined within patriarchal paradigms and community controls over the female body, rather than acting as a safeguard against them. Several social factors such as urbanisation increased opportunities for education of girls, a loosening of the grip of conservative religious leaderships over communities, and westernisation among the urban middle class have contributed to a gradual increase in the mean age of marriage.

In the s, the minimum age for marriage was raised to 18 for girls and 21 for boys as per the recommendations of the Committee on the Status of Women. While child marriages still prevail in India, the concern raised by the 19th century reformist movement is no longer valid. Rather than dictates of brahminical patriarchy, the contemporary concern over child marriage needs to be located within socio-economic factors such as extreme poverty among the urban and rural poor, lack of access to education for girls, and fear of rape and sexual abuse.

Much more than the elite and middle classes, it is the backward castes, the dalits and Muslims who are burdened with these concerns. Ironically, these communities were not the focus of attention at the time the debate was initiated. Among many lower castes, adult marriages of women were the norm.

Though there has been a consistent demand from urban, middle-class legal scholars and social activists to declare child marriages void, there is a legislative reluctance to give in to this even after the Prohibition of Child Marriage Act, This has been so in view of the plurality of cultures and socio-economic backgrounds in our population. Some rural-based social activists have highlighted the class and caste biases of the contemporary campaign against child marriage in the context of Rajasthan Singh et al As against the socio-economic constraints of child marriage due to poverty, these cases concern marriages of choice by young girls.

Introduction

Here the legal provision becomes a weapon to control the expression of sexuality, and curb voluntary marriages, and is used to augment patriarchal parental power. Even though the criminal provisions of kidnapping and statutory rape appear to be protecting the minor girl, these provisions are concerned primarily with securing the rights of the parent or guardian over the minor girl against her lover or husband.

A young couple who exercises the choice gets trapped in family feuds, or caste and community hostilities. There are no exceptions in the laws on abduction and kidnapping that allow a minor to opt out of guardianship or to leave her parental home on grounds of domestic abuse and neglect Baxi In a society ridden with prejudices against the lower castes and communal conflicts, a young couple who dares to disobey community dictates is severely punished.

At times, the price for choosing a partner is death or public humiliation Chowdhry ; Welchman and Hossain There are several instances where the provision of minority is used against the girl and her lover on the ground that she is a minor and lacks agency to consent. At times, girls who have attained majority are falsely projected as minors who are devoid of the legal authority to give their consent to marriage or sexual intercourse. Despite being aware that it is a marriage of choice and voluntary elopement, the police collude with the fathers to protect patriarchal interests and community honour.

AIDS and the Sexuality of Law: Ironic Jurisprudence AIDS and the Sexuality of Law: Ironic Jurisprudence
AIDS and the Sexuality of Law: Ironic Jurisprudence AIDS and the Sexuality of Law: Ironic Jurisprudence
AIDS and the Sexuality of Law: Ironic Jurisprudence AIDS and the Sexuality of Law: Ironic Jurisprudence
AIDS and the Sexuality of Law: Ironic Jurisprudence AIDS and the Sexuality of Law: Ironic Jurisprudence
AIDS and the Sexuality of Law: Ironic Jurisprudence AIDS and the Sexuality of Law: Ironic Jurisprudence
AIDS and the Sexuality of Law: Ironic Jurisprudence AIDS and the Sexuality of Law: Ironic Jurisprudence
AIDS and the Sexuality of Law: Ironic Jurisprudence AIDS and the Sexuality of Law: Ironic Jurisprudence
AIDS and the Sexuality of Law: Ironic Jurisprudence AIDS and the Sexuality of Law: Ironic Jurisprudence

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