Women's
Day Special
Law alter views
Some
laws do not consider women as an adult
Barrister
Sadia Arman
Section:
155 of the Evidence Act 1972 of Bangladesh states:
1.
The credit of a witness may be impeached in the following
ways by the adverse party, or, with the consent of the
Court, by the party who calls him:
(4) When a man is prosecuted for rape of or an attempt
to ravish, it may be shown that the prosecutrix was of
generally immoral character.
Consider
the meaning of this extant law. Firstly think of the first
line of defence that naturally springs to the mind of
a lawyer when defending a man charged with committing
rape, and consider what the conduct of that defence entails
in relation to the victim. Think of the victim. She has
been raped. Then, struggling with the burden of the agony
and the shame, she has finally summoned enough courage
to confront him who has wronged her. Then the defending
counsel shouts in front of the court: "My lord, the
truth is that this woman is a whore. She pursued my client
for money. My client is a man of upright character, who
has been wrongly seduced by this woman". The woman
hears, and her first reaction is to hide her face in utter
agony, then, she starts crying with sobs: a perfect pathetic
spectacle of shame for all the world to condemn.
I
have just potrayed the scene as described to me by a young
female advocate, who had joined the profession a few months
back. She said that on witnessing this she felt that if
she were to conduct such a defence, her nature would rebel
against her to such an extent that she might fall prey
to some serious physical disorder. So she left the profession
for good.
Consider
the insinuation of bad character within the construction
of the sentence for any victim. But consider also the
purport of the provision for a woman of 'immoral character'.
The legal provision suggests that such a woman may be
raped with impunity.
The
legal provision in question which was drafted in 1872
during the British regime reflects the social attitudes
towards women that were reflected in the law. What kind
of a woman lets herself be raped? What kind of a woman
lets herself fall into such a situation that she gets
raped? She can't be a lady of the upper classes who is
travelling with a male escort in a carriage. She is of
the wrong sort, who mixes with all kinds of men, and certainly
she is from the lower classes. This kind of woman deserves
little legal protection, if any, from the court.
In
England the law against rape evolved, and had a major
overhaul in the case of RvR, (1992), in which
the House of Lords held that if a man has forcible sexual
intercourse with his lawfully wedded wife, that shall
amount to rape.
This
created ripples even in England because although English
law had slowly been developing to grant woman increasing
protection, it had mandated since Blackstone's time that
since a man by marriage is entitled to enjoy a woman's
body, he is not capable of raping her: the benefit of
the delights of the body being incorporated within the
marriage contract itself.
RvR
stripped the husband of any such guarantee, and moved
the mind's focus to another place: the issue of consent.
If a woman does not consent to sexual intercourse, she
is being raped. Full Stop.
This
resulted from a major development in social perceptions.
Woman's body was at last recognised as a sacred entity
over which she alone should have supreme control.
This
development in relation to rights over the body occurred
parallel to other developments, relating to marital status
and property. Before 1882, a woman, upon marriage, gave
a gift of her person and property to her husband: she
therefore had no separate personality, and she could not
dispose of any real or personal property that she owned.
By the Married Women's Property Act 1882 a married woman
acquired the right to own and dispose of personal and
real property, but only if she had been married before
1882!
At
about the time of RvR, if only some thirty before,
an interesting development had been taking place over
the property rights of the unmarried woman who had been
living together with a man, sharing a home. The married
woman had a right over the matrimonial home, and could
claim half the value upon divorce, but not so the unmarried
woman, who had not concluded a formal contract of marriage.
But England at the time had a very dynamic and humanitarian
judge heading the Court of Appeal, a man who was never
afraid of molding the law to suit the needs of justice.
This wonderful Judge, Lord Denning, when faced with some
cases where woman had to separate after spending the major
part of a life-time with an unmarried man, decreed, that
even though she may not have paid for the value of the
house in economic terms, yet she was entitled to half
the value of the home in an appropriate case where she
taken care of the home and the children. It was by virtue
of her services that the man was able to work and earn,
and her work had thus a corresponding economic value to
which she was entitled in the shape of a share in the
matrimonial home. The abolition of this distinction between
the rights of the married and unmarried in relation to
the matrimonial home was consolidated by the Family Law
(Maintenance of Spouses and Children) Act 1976.
In
fact most of the conceptual changes with respect to a
woman's body and property took place in the 20th century.
Woman was not till then recognised as a full-fledged citizen,
because, as Ruskin argued, her proper place was in the
domestic, not the public sphere. Only in the 20th century
did woman gain the right to vote at Parliamentary elections,
the culmination of many years' campaigning by the female
suffragettes.
These
social conceptions regarding woman can be said to relate
to the fact that she was not considered fully adult: her
physical and mental powers, her judgement, were all considered
inferior. It followed that she was in some way or the
other the ward of a man: her father, her husband, or even
her son. But although the Occident has gone a long way
from such ideas now, in Bangladesh we understand too well
the implication and meaning of these. Can an unmarried
woman or a divorcee rent a flat of her own and stay? Few
hotels in the country will let in such a woman. May a
single unmarried woman adopt a child? May she even ride
a bicycle in the streets? In business, in travel, in finding
a shelter for herself, she must find a male counterpart
for legitimacy. And legitimacy is a very powerful concept.
The single woman, or, the woman who likes to do things
alone as an adult in her own right finds her very identity,
her very existence coming into question.
The
law refuses to accept that woman is an adult. Where a
Bangladeshi woman marries a foreigner, she cannot pass
citizenship to her husband. Neither the Muslim nor the
Hindu laws of inheritance allow daughters to inherit family
property like sons. The Muslim religion dictates that
a woman giving evidence in court is the equivalent of
half a man. So woman is half an adult.
Interestingly,
the issue of women's emancipation is not really like any
other human rights issue; such as ethnic minority rights,
the right to practise a religion, or the right of a people
to their language. Nor is it like any single category
of right that concerns a whole nation, like freedom of
assembly, freedom of thought and expression. Woman is
not a minority, and neither are we concerned here with
a single category of rights. The issue of women's rights
is easily the most important human rights issue of all
simply because women constitute half the population of
the human race.
And
here we come to the stalwart Convention on the Elimination
of all Kinds of Discrimination against Women (CEDAW),
which came into force in 1981, and to which Bangladesh
is a signatory, which declares effusively and stridently
in its Preamble:
The
State Parties to the present Convention,
"... Convinced that the full and complete development
of a country, the welfare of the world and the cause of
peace require the maximum participation of women on equal
terms with men in all fields,Have agreed on the following:"
And
here we have the wonderful CEDAW. You are invited to take
a look at it.
The
author is currently Capacity Cultivating Coordinator in
Action on Disability and Development.
