India’s national capital has witnessed yet another rape. And, as usual the city broke out into protests, breast beating and blame games.

The alleged rape of a 25-year-old woman by Uber taxi driver Shiv Kumar Yadav prove that such protests have the least impact on some people. Rapes that occur at regular intervals are just the tip of a much larger social malaise.

These cases raise several questions: Why do crimes against women go unchecked? How could we end violence against women? Who are responsible to check these crimes?

An anti-rape law, enacted soon after the Nirbhaya case (December 16, 2012) by jurists led by the late Justice J S Verma seems to have made no impact. Otherwise how could one explain why violence, assault and rape of women and girl children are increasing in Delhi and elsewhere? That is despite the fact that many cases go unreported.

It is true there has been some action, at least in the Nirbhaya case. A month back, all the accused in that case were given death penalty. But has the verdict acted as deterrence? No. We continue to hear and read about rapes. Why?

Passive resistance theory

It is worth noting the infamous (italics mine) Mathura rape and custodial death case that gave a new definition to rape case. Mathura was a young tribal girl, who was allegedly raped by two policemen inside the Desai Ganj Police Station in Chandrapur district of Maharashtra on March 26, 1972.

The Bombay High court had made a progressive judgment in that case, making an interesting legal interpretation of “consent — between passive resistance and submission. However, in September 1979 the Supreme Court of India Justices Jaswant Singh, Kailasam and Koshal in their judgment on Tukaram vs. State of Maharashtra reversed the High Court ruling and acquitted the accused policemen.

The Supreme Court held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person, suggesting no struggle and therefore no rape. The apex Court then established the theory of passive resistance. The judge noted, “Because she was used to sex, she might have incited the cops (they were drunk on duty) to have intercourse with the men in uniform.”

Such observations by the judges of the highest court of the land have not only damaged the morale of society but also encouraged perpetrators to commit rapes with no qualms – that too by custodians of law and order. No doubt such observations betray one’s attitude and mind set.

Presumption regarding the consent

The Mathura case verdict led to hue and cry from w omen and civil society groups. This led to the enactment of “The Criminal Law (Second Amendment) Act 1983 (No. 46) that made a statutory provision in the face of Section 114 (A) of the Evidence Act made 25 December 1983. It states that if the victim says that she did not consent to the sexual intercourse, the court should presume that she did not consent as a rebuttable presumption. New laws were also enacted following the incident.

The Custodial Rape Punishable and shifting burden of proof to the accused

The Section 376 (punishment for rape) of the Indian Penal Code underwent a change with the enactment and addition of Section 376(A), Section 376(B), Section 376(C) and Section 376(D) that made custodial rape punishable. Besides defining custodial rape, the amendment shifted the burden of proof from the accuser to the accused once intercourse was established. It also added provisions for in-camera trials, the prohibition on the disclosure of the victim’s identity, and tougher sentence.

Imrana Rape case

Another rape case that hit national headline involved Imrana, a 28-year-old mother of five on June 6, 2005. She was raped by her 69-year-old father-in-law Ali Mohammad. Soon after the rape, a local Muslim panchayat (council of elders) asked her to treat her husband Nur Ilahi as her son and declared their marriage null and void.

The leading Islamic seminary Darul Uloom Deoband also issued a fatwa or opinion, which quotes from Quran 4:22: wa la tankihoo ma nakaha aaba-o-kum, “And marry not women whom your fathers married.”

At one point, the then Uttar Pradesh Chief Minister Mulayam Singh Yadav also endorsed the view of the Darul Uloom that she can no longer live with her husband. Such comments and statements by people holding responsible posts indicate the type of mindset of some leaders in politics and judiciary.

Shakti Mill Rape case

Yadav’s comments in the Shakti Mills case were barbarous to say the least. “Ladke, ladke hain. Galti ho jati hai (Boys are boys. Mistakes happen sometimes),” he reportedly said in an election rally in Moradabad. The supremo of the Samajwadi Party that now rules Uttar Pradesh saw a need to change the new rape law which provides for death sentence to repeat rape offenders. No doubt such statements at the outset are insulting, not only to the poor and innocent victims in rape cases, but also to the womanhood.

Rape is a heinous crime against women and society, and the laws have aptly prescribed death penalty in repeat rape cases. Such statements of politicians glorify rapists and challenge the authority of law and indirectly try to disturb the democratic system of the country.

Indian culture and women

This dismal scenario gives the impression the Indian culture does not value women. On the contrary, the Indian culture extols the virtues of womanhood and their role in society. It puts women on a pedestal, and even goes as far as describing nature and the world as “Mother Earth” and the nation “Mother India.”

We have elected a woman as Prime Minister, Indira Gandhi, as early as 1966. We have had a woman as the president, the supreme head of the nation. Our nation boasts of several prominent female chief ministers, philosophers, scholars, sports icons and writers. During, Rasha bandhan brothers pledge to protect their sisters for life. Hindu mythology, which is dominant in Indian culture, is full of tales of kings moving heaven and earth to rescue damsels in distress.

Then, where have we gone wrong?

We have to be wary of these symbols that actually provide a convenient facade for endemic violence ingrained in our culture. The reverence for women is a part of a lie. What is happening in reality is just the opposite. In traditional Indian culture, girls are groomed to be good wives, not independent women with their own careers. Traditional values say women are only important because they produce children and preserve culture.

Manusmriti and status of women

The Manusmriti or the code of Manu is the earliest metrical work on Brahminical Dharma in Hinduism. According to Hindu mythology, the Manav Dharam Shastra or Manusmriti is the word of Brahma, and it is classified as the most authoritative statement on Dharma (religion).

Some verses in the code betray prejudice, hatred and discrimination against women. The following are some of the ‘celebrated’ derogatory comments about women.

1. “Swabhav ev narinam …..” – 2/213. It is the nature of women to seduce men in this world; for that reason the wise are never unguarded in the company of females.
2. “Avidvam samlam………..” – 2/214. Women, true to their class character, are capable of leading astray men in this world, not only a fool but even a learned and wise man. Both become slaves of desire.
3. “Matra swastra ………..” – 2/215. Wise people should avoid sitting alone with one’s mother, daughter or sister. Since carnal desire is always strong, it can lead to temptation.
4. Versus 17. States, “Balya va.” – 5/150. A female child, young woman or old woman is not supposed to work independently even at her place of residencs
5. “Balye pitorvashay…….” – 5/151. Girls are supposed to be in the custody of their father when they are children, women must be under the custody of their husband when married and under the custody of her son as widows. In no circumstances is she allowed to assert herself independently.

This Manuvati theory of women as seducers and the ones who lead men astray brings forcefully not only biased attitude ingrained in the system but also justifies the perpetuation of heinous crimes against women. Women are to be submissive and docile and her role is under the care of her father when she is a child and brother when she is adolescent. In her youth she is under the protection of her husband and in her old age her son takes charge of her. This keeps a woman under male control throughout her life. Men and women in India grow up believing that a woman is a property to be appropriated.

Religion and Women

At this juncture it is not out of place to mention that all religions, including Christianity and Islam, allot a subservient position for women in society.

Quran and Women

The Quran says that even though men are a degree above women in status (Sura 2:228, see below), “it implies no superiority or advantage before the law.”

The Prophet said, “I looked at Paradise and found poor people forming the majority of its inhabitants; and I looked at Hell and saw that the majority of its inhabitants were women.”This explains that the majority of the inhabitants of hell are women because they are ungrateful and harsh towards their husbands.

There is no word about the husbands’ ingratitude and harshness. It should be noted that some Muslim missionaries and polemicists assert that since women make up the majority of the world, it only stands to reason that they would be the majority in hell.

In reply, however, this misses the point—and may miss the possibility that women may be more spiritual than men. Regardless, the reason that women make up the majority in hell is their harshness and ingratitude. So it has nothing to do with a numerical majority. Instead, Islam clearly does not honor women.

This hadith says that women are part of an evil omen. Abdullah bin ‘Umar writes , “ I heard the Prophet saying. “Evil omen is in three things: The horse, the woman and the house.)

It is one thing if a culture perpetuates this inequality from time immemorial, but it is quite another if it gets enshrined in the sacred texts of a worldwide religion. The Quran and the hadith attack women simply because they are women. Surely it is this patriarchal and misogynistic attitude that permeates too much of the Islamic world.

This attitude is wrong on its own, but it is doubly misguided when it can be interpreted by judges and jurists to give husbands a legal step above their wives, in such contexts as inheritance laws and giving testimony. This means that the Quranic view of womankind in Suras 2:228 and 4:34 does not remain only in a theological sphere, but in down-to-earth areas, where material and physical damage can be done, as seen, for example, in the Quranic permission for men to hit their wives. This view will also show up in two laws in the Quran.
Bible and Women
The Bible decrees that woman must submit to the dominance of man.”The social and legal position of an Israelite wife was inferior to the position a wife occupied in the great countries round about… all the texts show that Israelites wanted mainly sons to perpetuate the family line and fortune, and to preserve the ancestral inheritance… A husband could divorce his wife; women on the other hand could not ask for divorce… the wife called her husband Ba’al or master; she also called him adon or lord; she addressed him, in fact, as a slave addressed his master or subject, his king. The Decalogue includes a man’s wife among his possessions… all her life she remains a minor. The wife does not inherit from her husband, nor daughters from their father, except when there is no male heir. A vow made by a girl or married woman needs, to be valid, the consent of the father or husband and if this consent is withheld, the vow is null and void. A man had a right to sell his daughter. Women were excluded from the succession.”

The Biblical concept of women as a seducer and tempter has indeed done much harm to women’s status. Some priests even prescribe dress code for women, but not for men. The scriptural interpretations are too done mostly by the male hierarchical Church, as convenient to men. This helps perpetuate violence against women. The taboos attached to religious practices in relation to women also perpetuates violence on women

Jesus promotes the universal principle of equity

There is neither Jew nor Greek, slave nor free, male nor female, for you are all one in Christ Jesus (Galatians 3:28).This verse is remarkable, considering the patriarchal and divisive culture and rigidly structured classes in the Greco-Roman world. It breaks down all barriers between religions or ethnicities (Jew or Greek, that is, Gentile), and between wide social statuses (free or slave), and between gender (male or female).

This goes to the nature of humankind. In Christ, all are one, regardless of their roles in society or external circumstances. All receive God’s value and love in their essence. This universal principle should flow out into all areas of practical life.

If the later Christian leaders became patriarchal and derogatory toward womankind, it only proves that they strayed from the real teachings of Christ or misread the universal pronouncements in the New Testament.

Moral policing of daughters not applicable to sons

Thus in the home front the religious understanding and scriptural notions of the scriptures do play a major role in the attitude and understanding of the parents in relation to daughters and sons. The parents do worry so much about “losing face” in the community that while boys have all the freedom they want, girls are constantly advised not to do anything that would “bring shame.”

This mentality explains why so many are forced into marriages, or even murdered by their own parents. It leads to mothers excusing away the heinous crimes of their sons by saying, “If these girls roam around openly like this, then the boys will make mistakes.”

Women’s individuality

Woman’s individuality, independency, rationality and human dignity are not allowed to surface or blood. The Maunivian theory that considers her as a fragile being goes well with the old Shakespearean concept,`frailty thy name is woman.’

The history of sociology has rewritten it as: courage thy name is woman, tenacity thy name is woman , fortitude thy name is woman so and so forth .

Yet the question remains: Has society’s perception of woman changed? Ney, society still wears the old lenses – the colored glass, despite the devolvement and empowerment women have achieved by fighting their own battle.

Conclusion

Listening to women and girls as well as the reports on how women struggle to survive in terror should make anyone worry deeply about the twisted beast that Indian culture and religions have become. Most of all it should make the men of our nation sit up and ask: How did we get here?

Sister Mary Scaria

The epidemic of violence is obviously not good for women, but doesn’t it also say something about the state of mind of Indian men? So the need of the hour is an honest auditing of attitudes and the mindset and make conscious efforts by everyone concerned to make a change.

Let not another Uber or Nirbhaya case jolt us again.

(Sr. Mary Scaria is a member of the Congregation of Sisters of Charity of Jesus and Mary (SCJM). She is a practicing advocate in the Supreme Court of India. She is graduated in political science from Maharani’s College, Jaipur and did her law studies in Pune. She studied Master’s in Human Rights and Humanitarian Law at Lund University, Sweden. She is a human rights lawyer. She has authored and edited books such as Minorities in the present Political Scenario, Law & Your Rights, Human Rights: A Close Look, Maid in hell, Woman :An Endangered Species, The Unknown Face of the Church.

Sr. Mary Scaria worked as the coordinator of Justice and Peace Commission, Delhi Catholic Archdiocese. She is also the secretary of the Constitutional Cause/Samvidhani Andolan. Recently, she was appointed secretary for the Committee for Law and Public Interest Litigation (CLAP) under the Catholic Bishops’ Conference of India.)