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The Scandal of the State: Women, Law, and Citizenship in Postcolonial India (Next Wave: New Directions in Women's Studies)

The Scandal of the State: Women, Law, and Citizenship in Postcolonial India (Next Wave: New Directions in Women's Studies)

by Rajeswari Sunder Rajan

ISBN: 9780822330356

Publisher Duke University Press Books

Published in Calendars/Women's Interest

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Sample Chapter


Chapter One

Women in Custody

2 The Ameena "Case": The Female Citizen and Subject

On 11 August 1991 the newspapers announced the dramatic "rescue" of a "child bride" on the previous day. On the flight from Hyderabad to Delhi (en route to Riyadh), Ameena, the child bride, ten or eleven years old, had been spotted crying bitterly by several passengers, who had reported the matter to the airhostess. Ameena then told the airhostess that the old man beside her, Yahya Mohammed al-Sageih, a sixty-year-old Saudi Arabian national, was taking her away after having forcibly married her in Hyderabad (her native town) only a few days before. She wept throughout the flight. As soon as the plane landed in Delhi, al-Sageih was arrested by the city police, and Ameena was produced before the metropolitan magistrate, who temporarily entrusted her to the local Nari Niketan (destitute women's home). The parents, in Hyderabad, were also subsequently arrested. After months of legal dispute over her custody, during which she was moved to a children's home, the Delhi High Court ordered her restoration to her family. No judgment has yet been pronounced in the legal case against her parents for performing the marriage of an underage daughter.

The extent of the national response to Ameena's predicament was unprecedented. In Parliament there were vociferous demands that the government look into "the sale of Indian girls to flesh markets abroad." Newspaper editorials protested that "Indian girls are not for export." When Ameena was produced in court on 13 August there was a "minor stampede" to see her. The case quickly caught the attention of the international media as well. In Canada a "Child Bride Ameena Trust" was formed following the live telecast of an interview with Amrita Ahluwalia, the airhostess who had rescued Ameena and subsequently petitioned for custody of her. Women's groups quickly entered the fray. The national press kept up the pressure with feature articles and background stories.

Primarily and most obviously a discourse of nationalism and nationalist identity, the "Ameena case," as it soon came to be called, also makes visible the functioning of the state in matters relating to gender especially as it concerns female sexuality. It is framed therefore by the problematic of women in/and the Indian state that is the concern of this book. It allows us to see not only how the insertion of women into the discourse of nation has implications for the subjectification of women and the representation of nation, but also how, and with what assumptions and consequences, the postcolonial state addresses "social evils," in this instance child marriage, in its modernizing drive. We might go further and deduce that when the issue is one of "saving" women, the "nation" is the stage on which the state's intervention is most spectacularly performed. In this instance (but not only in this, as my comparison of it with the Shahbano case will show), postcolonial nationalism and the postcolonial state converged on the issue of "reform" of (not coincidentally, minority) women's status. The controversy over Ameena's custody and the issue of child marriage also engaged a concerned citizenry (the passengers on the plane, the airhostess), women's groups, "liberal" Muslims, the media, and the High Court, who orchestrated, as we shall see, a liberal, secular, modernizing, and constitutional discourse whose successes and limits it tested. The "Ameena case" serves as a significant site to explore the overlaps and pulls between the concepts and practices of citizenship-as-rights and citizenship-as-national identity (and, even, as compulsory residency) in the case of the subaltern gendered subject. Methodologically, in representing the issue of child marriage in India by/as the "Ameena case," this chapter contends with the problem of having to think beyond exemplarity yet well before an untheorizable particularity.

Points of Crisis

It is necessary to track closely the development of the case following the rescue of Ameena and the arrest of al-Sageih in order to locate its flash points of conflict, controversy, and contradiction.

Al-Sageih was released on bail but with orders to cooperate with the investigation and not leave the country until the case had been dismissed. He was accommodated in the Saudi Arabian embassy. Ameena underwent a checkup at the government hospital. According to the information on her passport and the nikhanama (marriage certificate) produced by al-Sageih, her age was thirty-five; her parents claimed she was eighteen; her own statement and her medical examination suggested she was eleven or twelve.

According to the preliminary reports, al-Sageih had arrived in Bombay on 28 July and met Ameena's family in Hyderabad on 7 August through a marriage broker who arranged such matches. The wedding had taken place the following day. Such marriages are fairly routine arrangements; in the past decade more than 8000 marriages-one report gives the figure as 40,000 since the oil boom-between Arab men and young, poor Muslim Indian girls have taken place in Hyderabad city alone. Al-Sageih reportedly paid the father, Badruddin, Rs 6000 as mehr (marriage settlement). Badruddin is an auto-rickshaw (three-wheeler scooter) driver with eight children; Ameena is the second of five daughters. The Shakkargun locality of Hyderabad city where the family live is a Muslim ghetto, poor and torn by frequent communal strife.

In Delhi, airhostess Ahluwalia passionately pleaded for Ameena's release from the Nari Niketan and outlined her plans for her future if granted custody. She gave several other interviews of a similar kind to the press and on television ("give my Ameena back," etc.). Women's organizations-Saheli and the Janwadi Mahila Samiti-also protested Ameena's stay in a Nari Niketan and applied for custody of her. Their application was refused, but Ameena was produced in court on 13 August and moved to a "short stay" home in response to the outrage over her confinement in a Nari Niketan. The court also refused to admit Ahluwalia's petition, through Saheli, for custody of Ameena. Instead it directed the Juvenile Justice Court to decide on an appropriate residence for Ameena. At this stage, Ameena expressed a wish to return to her parents.

The city police filed criminal charges against both al-Sageih and Ameena's parents under various sections of the Indian Penal Code (IPC): section 366 (abduction), 420 (cheating and forgery), 467, 471, and 486 (using forged documents), 372 (sale of minor for prostitution), 373 (purchase of minor for prostitution), 120-B (entering into a conspiracy to commit all the above offenses), and section 4 of the Child Marriage Restraint Act (CMRA 1929, as amended in 1978). Ameena's parents were released on bail on the basis of bonds provided by two local residents on 3 January 1992.

On 29 August, the arrival of Ameena's parents in Delhi to meet their daughter and file a petition for her restoration to them was occasion for another furor. In interviews Badruddin, Ameena's father, defended the marriage as being in accordance with Muslim custom and expressed resentment at the "interference of outsiders." Shortly after this, the Saudi Arabian ambassador also made a similar statement opposing the intervention of women's groups. The All India Lawyer's Union called for a high-level inquiry into the case.

On 5 September the court rejected all the petitions for custody of Ameena and ordered her kept in a home for children for three months. On 5 December, her three-month state custody over, her case came up for review again, but the Juvenile Justice Board had not arrived at any decision. Responding to these delays and to the Board's indecisiveness, Brinda Karat of the Janwadi Mahila Samiti (JMS) filed a petition for a speedy decision on the issue of custody. Finally, on 21 February, a division bench of the Delhi High Court, expressing dissatisfaction with the Juvenile Justice Board's lethargy in the matter, ordered Ameena to be presented to them the following week in order to formally "ascertain her wishes" on the matter. They then ordered the Juvenile Board to speed up its decision but reserved final judgment over the matter. Meanwhile the case against al-Sageih and Ameena's parents was proceeding independently of the custody case. On 21 February 1992, the court was packed when the three accused appeared before the metropolitan magistrate to face the charges against them. The public prosecutor asked for a trial in the Sessions Court, and the case was adjourned for further hearing.

In the custody issue the Juvenile Board, finding the parents "unfit," ordered (on 4 March) that Ameena be transferred to a service home in Hyderabad for three years. The Janwadi Mahila Samiti protested against this decision, as the welfare institution was meant for women between eighteen and thirty-five and would therefore be unsuitable for a child of Ameena's age; the Samiti urged instead Ameena's speedy restoration to her parents since she had already spent nearly seven months in the state's custody. The decision of the Juvenile Board was subject to review by the High Court.

On 11 March 1992 Ameena appeared before the division bench of the High Court, comprising Mr. B. N. Kirpal and Mrs. Santosh Duggal. She reiterated her wish to go home. The judges examined Badruddin at length to ascertain his fitness and willingness to take charge of Ameena. Badruddin produced three affidavits given on his behalf by respectable Hyderabad citizens. The JMS also supported the parents' petition. The following day the judges ordered Ameena's restoration to her parents but stipulated that she be first presented to a metropolitan magistrate in Hyderabad. They also directed the magistrate's court to verify the state government's arrangements for monitoring Ameena's welfare once she was back at her parents' home. Mr. Kirpal said, "With the passing of this order we hope a nightmarish chapter in the young life of Ameena will hopefully come to a satisfactory end." And, in a sense, the Ameena custody issue comes to a close here.

Later in the year, on 9 September, the prosecution case against al-Sageih and the Badruddins was resumed in court. Al-Sageih's defense advocate, Irshad Ullah Khan, argued that Ameena had never stated in court that she had been coerced into marriage. He also invoked Muslim personal law, which allowed the marriage of a legally minor girl if she had attained puberty-which might happen at an age as early as nine. The court, however, ruled that al-Sageih be tried on all the charges listed against him, including abduction and violation of CMRA. The chief issue here was, clearly, the conflict between the CMRA and Muslim personal law.

This controversy over which system of laws applies-the uniform civil and criminal laws or the differentiated religious personal law-requires some elaboration. India's dual law structure is an inheritance from colonial jurisprudence. The personal law system was acknowledged by British administrators as a way of respecting and guaranteeing the continuation of the traditional laws of the country's diverse religious communities-the majority Hindu as well as the minority Muslim and Christian-in all "personal" matters (relating to the "person"), such as marriage, divorce, maintenance, succession to property, inheritance, custody, guardianship and adoption of children, etc. The personal laws of all communities discriminate against women, though modified reform of some Hindu personal laws has been codified. Though the adoption of a uniform civil code is enshrined as a Directive Principle of the state, to be brought about in time through what was envisaged as a gradual and progressive social evolution, the Constitution of India still continues to observe personal law differences. Muslim personal law is codified under the Muslim Personal Law (Shariat) Application Act of 1937.

In all other matters a uniform law prevails. The CMRA is a civil law, applicable to Indians of all religions. It was first passed in 1929 and was revised in 1978, stipulating an increase in the minimum legal age of marriage, which is at present eighteen for women and twenty-one for men. Any case filed against the marriage of underage children makes the bridegroom (if over twenty-one) and the parents or guardians liable to prosecution under the CMRA. Kirti Jain, an activist feminist lawyer, sees no scope for conflict between CMRA and Muslim personal law (MPL): "The Shariat Act states that the MPL will prevail over custom or usages that are contrary to it, but nowhere does it say that the MPL will outweigh any legislation clashing with it. So legislations like the Contract Act, Criminal Procedure Act, and the CMRA outweigh the MPL." I. U. Khan, however, holds (like several other legal experts) that since marriage, divorce, and inheritance are directly governed by personal law, it is also applicable in the case of child marriage: "The MPL is a special law for a special class of people, whereas the CMRA is a general law. And in the case of a conflict, the former will prevail" (Sahgal and Sarita Rani 1993, 38-39).

Khan argued that Ameena's marriage had after all been performed "openly." Further, "society may have reservations about the respective ages and other aspects of the marriage but where was the legal breach?" (ibid.). Ameena's testimony against the accused, also, was conflicting. The case went on, with several witnesses appearing for the prosecution; but the crucial testimony was Ameena's. On 17 November, when Ameena appeared in court, she formally withdrew her charges. Weeping, she told the sessions judge, Mr. Babulal Garg, that the marriage had taken place with her consent. (At the insistence of the JMS her evidence was taken in the judge's chambers to save her the ordeal of testifying in open court.) The state prosecutor confronted her with her very different statement to the police the previous year, soon after she had been "rescued." Ameena denied the earlier statement and her signature. She gave her age as sixteen or seventeen, not twelve as earlier claimed (but she did not know her date of birth). She said she did not remember what she had said earlier to her interlocutors on the plane and to the police. Ameena's testimony obviously weakened the state's case considerably, though charges were not officially dropped. In July 1993 the newspapers reported that al-Sageih had jumped bail in February and left the country. His sureties paid up the bail amount.

Averting the Crisis

The potential for communal controversy in the Ameena episode was present from the beginning. The scandalous nature of the event, the facts of Ameena's being a Muslim and her husband a Saudi Arabian national, the disparity in their ages, the validity that the marriage was claimed to possess under Muslim law despite being a legal offense: these facts were provocative and sensational. Thus when Ameena's case came to national attention through the media's extensive coverage, its potential for communalization was immediately obvious, especially since its news appeal was highly emotive.

(Continues...)

Excerpted from "The Scandal of the State: Women, Law, and Citizenship in Postcolonial India (Next Wave: New Directions in Women's Studies)" by Rajeswari Sunder Rajan. Copyright © 2003 by Rajeswari Sunder Rajan. Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher. Excerpts are provided solely for the personal use of visitors to this web site.
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