Hello and welcome to Mind the Gap, a newsletter that adds perspective to the gender developments of the week.
Under Indian law, sexual intercourse with a minor girl (defined as 16 years and younger) is defined as rape (PTI)
THE BIG STORY: Love, sex, and agency
On the face of it, it’s an unusual order. The Delhi High Court judge has ordered the custody of a baby boy to his biological father, a man accused of raping the baby’s mother who is a minor girl of 16.
Here’s the reality check: The Muslim girl, a class 9 student, told the court that she is in love with the 19-year-old Hindu man and was in a consensual relationship with him, a fact her parents disapproved of.
In March this year, when she went missing, her mother filed a police complaint. The girl was found a month later. She was five months pregnant. The 19-year-old was arrested under the Protection of Children from Sexual Offences (POCSO) Act and rape charges. The baby was born in August and handed over to a friend of the girl’s brother for adoption.
The 19-year-old was arrested under the Protection of Children from Sexual Offences (POCSO) Act and rape charges (AFP)
In September, Justice Mukta Gupta granted bail to the 19-year-old and restored the baby to his mother. But since she’s a minor, noted the court, she cannot be permitted to live with the accused. The girl has said she would rather live in a government-run shelter home than return to her parents.
So, the question: What happens to the baby? “The baby boy cannot be permitted to be languishing [in the shelter home]…custody of the baby boy has been handed over to… his natural father,” the court ruled.
Statutory rape
Under Indian law, sexual intercourse with a minor girl (defined as 16 years and younger) is defined as rape, and is punishable under sentences that vary from a minimum of seven years to a maximum of life (or even the death sentence).
Until 2012, the age of consent was 18. Now, it is 16. The minimum legal age for marriage is also 18 for women, 21 for men, and there is a move to raise the age for women to 21 to bring it at par with men.
A study of 600 rape trials in Delhi in 2014 by journalist Rukmini Srinivas found that 40% of all tried cases dealt with consensual sex (REUTERS)
A study of 600 rape trials in Delhi in 2014 by journalist Rukmini Srinivas found that 40% of all tried cases dealt with consensual sex, usually involving the elopement of young couples where the minor girl’s parents had filed rape charges against her partner.
The lack of agency
In 2019, Partners for Law in Development (PLD) studied consensual romantic relationships of 15 girls aged between 15 and 20. The sample size is small, but revealing. Read the study here.
Almost all the girls came from families where they were subject to strict vigilance and restrictions on their movements. They had no agency on crucial decisions affecting their lives, including education and marriage.
They were required to pitch in with long hours of household work and many had been pulled out of school for this reason. Leisure was a luxury and friendships even with other girls, discouraged. Some reported physical abuse from parents. For many, a romantic relationship was the first realization of self-worth.
Raising compliant girls
The agency of adolescent girls is rarely spoken about in mainstream discourse. Girls in India are brought up to be silent, unquestioning, and compliant. Whether in villages where they are subject to khap panchayat rules or in cities, adolescent girls are subject to a range of restrictions from their mobility (where they go, with whom, and why) to their extra-curricular interests. Girls’ limited access to mobile phones and devices through which they can access online education was made apparent during the Covid-19 pandemic.
Behind these restrictions lies the fear of parents that a daughter’s romantic relationship will bring “shame” to the family honour in a country where over 93% of marriages are arranged in line with caste, community, and religious endogamy.
Meanwhile, the girl in the Delhi High Court judgment will remain at the shelter home until she turns 18, when she will finally be at liberty to live where she wants.
NEWSMAKER
Make way for Saurabh Kirpal
For four years, Saurabh Kirpal has waited for his name to be cleared by the Supreme Court collegium as a judge in the Delhi High Court. Three times since 2017, the collegium dithered and so, although Kirpal had led the legal battle in getting the Supreme Court to decriminalise Section 377, it was not as accommodating where diversity on the Bench goes. And then this past week, his name was finally cleared.
He has never hidden his sexual orientation, has spoken about how he came out to his parents (his father, BN Kirpal is a former Chief Justice of India) and has pitched for same-sex marriage (ANI)
The Oxford and Cambridge-educated 49-year-old lawyer has edited an anthology, Sex and the Supreme Court. He has never hidden his sexual orientation, has spoken about how he came out to his parents (his father, BN Kirpal is a former Chief Justice of India) and has pitched for same-sex marriage.
An excellent cook with varied interests from classical music to history, he lives in New Delhi with his parents, his Swiss partner of 20 years, and their two dogs, Barolo and Margaux.
WE WILL MISS…
Mannu Bhandari whose death at the age of 90 on November 15 is a huge loss to the world of letters. A thinker who wrote about strong, independent women, Bhandari was best known for her story, Yeh Sach Hai about a single woman research scholar in a relationship with a predictable, if somewhat boring, man and the conflicting emotions she experiences, particularly after a job interview in another town where she runs into an old flame. The story was made into a film, Rajnigandha, by Basu Chatterji, a box office success that introduced many Indians to the work of this writer.
In June 2021, Poonam Saxena wrote about Bhandari just before she turned 90. Do read her evocative piece here.
STORIES YOU MIGHT HAVE MISSED
Sexual intent, not skin-to-skin: The Supreme Court has clarified that touching a child with sexual intent even if there is no “skin-to-skin” contact is an offence under POCSO, reports Abraham Thomas. The clarification comes after the two controversial decisions of the Bombay High Court in January. In the first, a single judge bench ruled that the “act of holding a girl’s hand and opening the zip of pants was not sexual assault as defined by POCSO but only sexual harassment.”
In the second, the same bench said groping the breast of a minor girl without ‘skin-to-skin’ contact could not be termed as sexual assault.
Uniform Civil Code: The Allahabad High Court has asked the central government to look into implementing a uniform civil code (UCC) as mandated by the Constitution, reports Jitendra Sarin. Calling the UCC a “necessity”, Justice Suneet Kumar was hearing a batch of 17 petitions by interfaith couples who wanted protection from the court. Parliament needs to come up with a “single family code” to protect interfaith couples from being “hounded as criminals”, the judge observed.
Women and drug trials: Until as recently as 1993, the Food and Drug Administration (FDA), of the United States, considered women to be a special subgroup of patients, resulting in their exclusion from most clinical trials. This exclusion has had disastrous results as adverse drug reactions affect different groups differently, writes microbiologist Anirban Mahapatra. Women, for instance, are twice more likely to suffer adverse drug reactions than men. Read how and why here.
FIELD NOTES:
The luxury of leisure: Ashwini Deshpande, a professor of economics at Ashoka University, parses data from the Centre for Monitoring Indian Economy (CMIE) to find out how the first wave of Covid impacted paid work, domestic chores and leisure.
The diminishing workforce: Women’s labour force participation had already been in free-fall for the last decade. So, when the lockdown was declared in April 2020, more men lost jobs than women in terms of absolute numbers simply because there were far more men than women in employment. But as the economy opened up, male employment recovered from April to August 2020, whereas for women, the likelihood of being employed was nine percentage points lower than that for men.
The household burden:
By December 2020, the time spent by men on housework had fallen to below pre-pandemic levels (Priyanka Parashar)
The pandemic, finds the paper, also worsened the burden of domestic chores for women, although in April 2020 at the peak of the lockdown, men spent more time on housework relative to December 2019. The good news didn’t last for long, though. By December 2020, the time spent by men on housework had fallen to below pre-pandemic levels, while women were spending more time than ever on domestic chores.
Leisure: An obvious casualty was leisure time. By the end of 2020, time spent with friends had fallen to one-third of pre-pandemic levels. Read the paper here.
AROUND THE WORLD
Where is Peng Shuai?
Weeks after making allegations of sexual harassment against former Chinese vice-premier Zhang Gaoli, tennis star Peng Shuai’s whereabouts remain uncertain. Chinese state media tweeted an email purportedly from Peng to the Women’s Tennis Association claiming that she was resting at home. The WTA is not convinced and leading tennis players including Naomi Osaka have tweeted their concern. “Censorship is never OK at any cost, I hope Peng Shuai and her family are safe and OK,” she tweeted.
Peng Shuai of China (REUTERS)
In early November, in a social media post, the 35-year-old Peng Shuai said that Zhang Gaoli, married and 40 years older than her, had assaulted her on at least one occasion. That post was erased within minutes of being published.
In Pakistan, the fate of habitual rapists: A joint session of the Pakistan Parliament approved a criminal law amendment that will punish habitual rapists with chemical castration. The use of drugs to reduce or remove sex drive is currently in use in Indonesia, Poland and the Czech Republic. Some countries, like the United Kingdom and South Korea, have a law for voluntary chemical castration in return for reduced sentences.
That’s it for this week. If you have a tip or information on gender-related developments that you would like to share write to me at: namita.bhandare@gmail.com.
Namita Bhandare writes and reports on gender
The views expressed are personal
Marika Gabriel contributed to the making of this page.