The Tribune, Chandigarh, India

ARTICLE

Learning from Malala
Problems need solutions, not extreme reactions
by B.G. Verghese

Amidst the shrill voices of hate, bigotry, pettiness, greed and trivia we hear all around us, there was a poignant moment on July 12 when a 16-year-old Pakistani girl, Malala Yousafzai, addressed the world through the UN General Assembly for Youth in New York. A victim of a murderous Taliban assault in Swat 2011 aimed at extinguishing women's education, she spoke with rare conviction and grace that went straight to the heart.

“I am not against anyone,” she said. “Neither am I here to speak in terms of personal revenge against the Taliban or any other terrorist group. I am here to speak up for the right to education of every child. I want education for the sons and the daughters of all extremists, especially the Taliban….

So let us wage a global struggle against illiteracy, poverty and terrorism and let us pick up our books and pens. They are our most powerful weapons. One child, one teacher, one pen and one book can change the world.”

What a powerful message of tolerance, forgiveness and fraternity! Malala represents Pakistan more than many of those who claim attention. The Taliban want to go back to a medieval barbarism that caricatures Islam in the same manner as Hindutva degrades Hinduism to what it bears no true relationship with. Yet this is the bankrupt and divisive credo which the RSS and sections of the BJP once again want to nail to their mast under the leadership of Narendra Modi. More disturbing than his figures of speech, and the double meaning inherent in the use of words like “puppy”, “Hindu nationalist” and “burqa”, was his lieutenant Amit Shah's announcement of the BJP's determination to build a grand Ram temple at Ayodhya. This issue is sub judice and of little interest to people in and around Ayodhya, who have failed to endorse this idea in successive polls. Yet it serves to arouse divisive passions.

Not to be outdone, the Madhya Pradesh government, apropos of nothing, has introduced a Bill to enhance the existing punishment it legislated for conversion of a Hindu to any other faith by force, allurement or fraud to three years imprisonment or a fine of up to Rs 50,000 or both, or four years and a fine of Rs 1 lakh in the case of a woman, Dalit or tribal person. This has been done on the ground that the current punishment has not deterred forcible conversion, of which the Governor found little evidence. The amendment also makes it incumbent on the priest to take permission from the district magistrate instead of merely informing the official after the event. The amendment is based on the model of a Gujarat law and shows scant respect for freedom of religion. Force and fraud in any matter is reprehensible and an offence. Likewise, seeking official sanction to convert makes a mockery of fundamental rights and validates the state government's role as moral police.

As for schools and children, Malala's focal concern, the series of food poisoning cases in relation to midday meals across states is deeply saddening and speaks of incompetence, lack of supervision, poor storage and corruption. The Food Security Ordinance has been attacked at another level as an election gimmick, but the constant resort to heads-I-win, tails-you-lose tactics betray intellectual dishonesty. Those who tirelessly ask for more in the name of the poor should not simultaneously castigate the government for financial profligacy and oppose any measure to raise additional resources. This double-talk is plain dishonest. Yet, the Central and state governments' failure to store grain in clean and safe conditions is utterly deplorable.

Similarly, when the government, constantly taunted for doing nothing, boldly, even if belatedly, moves decisively on widening and deepening FDI, it is strange that the BJP should label this an election gimmick and a panic reaction to the falling value of the Indian rupee. The Left, not surprisingly, sees the American wolf at the door. How long are we going to shoot ourselves in the foot while the world moves on? In just this last week POSCO and ArcelorMittal have announced withdrawal of their $30 billion mega steel projects in Karnataka and Odisha because of inordinate delays in land acquisition and obtaining raw material linkages. The fate of Vedanta's Lanjigarh alumina refinery (to be expanded from one to six million tonnes per annum) hangs in the balance.

Now, following the Uttarakhand natural disaster, with two glacier-lake outbursts above Kedarnath doing the main damage following unprecedented rainfall from two simultaneous extreme storm events, many people seem to have been affected by the “Fukushima syndrome”: Do not “over-develop” and curb hydro projects in large tracts declared “eco-sensitive zones”. Learn from the Uttarakhand disaster but do not be paralysed by what was by any yardstick a freak event. There is a difference between rash and prudent development. Subjective fears should not be allowed to overwhelm objective reality, making non-development a far greater disaster than balanced development.

The government has, meanwhile, been determined to limit the investigative autonomy it is willing to grant the CBI. The plea that honest officials will be blackmailed and harassed is grossly exaggerated; safeguards can be provided against any such eventuality. In Maharashtra the Home Minister, R.R. Patil, wants to retain power to change postings of police officers as recommended by the state's police establishment board. Why? Why this persistent denial of police autonomy despite countless police reform recommendations and Supreme Court directives. Likewise, the Centre has baulked at a Supreme Court order disqualifying legislators if convicted by the trial court, instead of waiting, as at present, until any appeal is disposed of. Currently 30 per cent of all MPs and 31 per cent of all MLAs have serious self-declared criminal cases against them. Instant disqualification does pose some problems but is the purity of our legislatures not a supreme democratic value? Why condone thuggery; why tolerate gross violations of electoral expenditure; why draw a curtain over political party funding; why pander to corruption?

The rise in Maoist attacks, recent Bodh Gaya blasts, Naxal infiltration in the Northeast and a rising curve of cross-border and militant violence in J&K are warning signals that must be heeded. And for the NSCN (IM), with whom the government has been engaged in peace talks during 14 years of ceasefire, to assert its legitimate right as a “de facto government” to collect taxes (extortion money) in so-called Nagalim is a piece of effrontery that should not be tolerated. The NSCN (IM) has been guilty of many ceasefire violations but there is a limit to what might be winked at.

Malala’s forgiveness and tolerance is based on principle and not surrender to crude pressure and threats of violence.

www.bgverghese.com

MIDDLE

To have or not to have Shakespeare
by MK Kohli

I am a retired teacher of English, but not tired, and am still very much interested in what is going on in the realm of English in the Indian context.

I have not gone through the report pertaining to the exclusion of Shakespeare at the graduation level in the colleges affiliated to the prestigious Panjab University, but have read two letters to the Editor in The Tribune vehemently criticising the decision.

I presume both the writers are ardent admirers of Shakespeare; as such their arguments are worthy of respect. However, I cannot persuade myself to subscribe to some of their views. For instance, one letter described the university decision as a “sledgehammer stroke on countless students of English literature.” The other called it a “retrograde step”. I honestly feel as a grey-haired teacher that both the university and its critics are right — in their own ways.

I would like to relate my experience to illustrate this point. Way back in the 1960s, I was a lecturer at Government College, Gurgaon, where some of the students were very good in English — to the point of even being creative. Once I asked a class to write on the spot a paragraph on “The college canteen”. One boy with a convent-school background wrote such a marvellous piece that even a fastidious Editor of The Tribune would have been glad to publish it as a middle. On another occasion, a girl student of the same college wrote a humorous article for the college magazine that reminded me of “Uncle Podger Hangs a Picture”.

In 1971, I was transferred to a newly opened Government College at Bhiwani. Bansi Lal, the then mighty Chief Minister of Haryana, had ordained that only 'excellent teachers' should be posted to this college in his hometown. What a fall it was from a 'forward' to a ‘backward’ area for me in terms of teaching English!

In the very first period I asked a student to change a simple sentence in the active voice to its passive form. Pat came the reply, “Bera koi na”. As I didn’t understand Haryanavi, I asked another boy what his fellow student had said. He translated it for me: “I don't know”.

There was greater shock in store for me in the next class. I asked the BA-I students what was the last poem they had read. One student enthusiastically raised his hand and said, “The Okean”. During my fairly long career, I had never heard of such a poem. I was puzzled. Help came from another student who said, “Sir, it is written by Lord Byron”. “The Ocean” had turned into “The Okean”, much to my dismay.

The crux of the problem is there are two contrasting streams that meet at the graduation level — “The College Canteen” and “Uncle Podger Hangs a Picture” type on the one hand and the “Bera koi na” and “The Okean” type on the other.

Would the critics of the university decision like to waste Shakespeare on unresponsive souls? Let us show mercy to the greatest literary giant of all times.

OPED-WOMEN

A judgement that polarised women
Receiving maintenance is reaffirmation of a traditional role for a woman or, is it an assertion for equality? Maintenance money paid to Aysha, an unwed mother, has put the feminists and the judiciary in a dilemma
Aruna Burte

"....IF any couple, subject to their attaining the mandatory age of freedom, who indulge in sexual gratification, then that would be considered as valid marriage and they could be termed as 'husband and wife', as a result of their choice of freedom." This was stated in a judgement by Justice C.S. Karnan of Chennai High Court, on June 17, 2013. Justice Karnan gave the judgement while modifying an April- 2006 judgement of a family court in a maintenance case. A family court in Coimbatore had ordered a man to pay Rs 500 maintenance per month to his two children and Rs 1000 as litigation expenses and had held that the woman's wedding with him did not have any documentary proof. Hence, the woman was not entitled to maintenance.

Sandeep Joshi

The judgement created a furore, polarising opinions on the regressive statements of the judgement that equalled all sexual relations between adult man and woman to a marriage, thereby raising questions on the validity of social rituals associated with marriage. Indirectly, the judgement also raised questions about maintenance money to be granted to a woman who is in a relationship but not a wedded wife. While the controversial judgement granted the woman right to maintenance, it also established the woman's place in a traditional mode - that of a receiver rather than a claimant of equality.

The judgement provided fodder to all sorts of reactions verging on frivolity on social networking sites. All the hype died down a few days later and relegated the real issue to oblivion. The real issue being judicial discretion and awarding of permissible maintenance to a woman who is not wedded to the man she lives with. Strange as the ruling may seem, it must be admitted that Justice Karnan was indeed confronted by the hard facts of the case, which would shock judicial conscience.

The case

The facts of Aysha v. Ozir Hasan (Coimbatore Family Court-2000) case that created such a furore are: Ayesha claimed that she married Ozir Hasan in 1994 and had two children (born on 21.12.1996 and 31.12.1998). They stayed as family until 1999 when he deserted her. She filed for maintenance of Rs.5000 as her husband's earning was Rs.25000 in the year 2000. She submitted proofs of birth certificates of her two children, with her husband's signature on the caesarean operation of the second child, a family certificate where his signature appears as head of the family and witness of the doctor who performed tubectomy on her. The family court granted maintenance of Rs.500 per child and Rs.1000 towards court expenses to the woman on 28.4.2006 and denied maintenance for lack of documentary proof of her marriage. She appealed to the high court. Justice C.S. Karnan revised the family court order and granted Rs.500 maintenance to the woman from the date of petition i.e. September 2000 till May 2013, arrears to be paid in three months and thereafter Rs.500 every month. The fact of awarding maintenance to the deserted woman is creditable. But the judgement fails on two grounds - one, it is full of flawed reasoning and two, it does not award legally permissible amount of maintenance to the woman.

Is it travesty of justice?

The main issue in this case was to establish woman's status in the absence of sufficient documentary proofs of marriage. The proof of five years of co-habitation along with birth certificates of children was enough ground to grant maintenance under section 125 Cr.P.C. The woman and the man in question were not married earlier. They had no third party encumbrance. They were of legal age. What needed was to expand the definition of 'wife' as in some of the earlier judgements of the Supreme Court. For example, in Vimala (K.) v. Veeraswamy (K.) case of 1991, where the man had denied being married to the woman. There was no documentary proof of their marriage. The proof of a fairly long period of cohabitation was submitted. The man extended the argument that he had married earlier. However, he could not submit proof for his argument. Therefore, the Supreme Court declared that the man is liable to pay maintenance to Vimala. In another case of Dwarika Prasad Satpathy v. Bidyut Prava Dixit (1999) the court said that it is not strictly mandatory to provide documentary proof of marriage under section 125 Cr.P.C. as is needed under the bigamy section Cr.P.C. 494. Under Cr.P.C. 125 if the woman is able to submit proof of co-habitation for a sufficient period of time, the man and woman in the case would be considered as husband and wife. The man has the scope of disproving cohabitation by providing proofs. But if he cannot do so then he is liable to pay maintenance to the woman. The Chennai High Court could and should have made the argument by sighting similar judgements. The judgement did not do so.

Instead, it went on opining (obiter dicta - opinion uttered in giving judgement) on valid marriage, sexual behaviour, and validity or otherwise of registration and host of such matters. In other words, the reasoning of the judgement is based on is seriously problematic. It does not show required judicial discretion which is clear from the following sentences of the judgement:

"This Court is of the view that if a woman aged 18 or above has a sexual relationship with a man, aged 21 or above, and during the course of such relationship, if the woman becomes pregnant, she would henceforth be treated as the 'wife' and the man would be treated as the 'husband'. Even if the girl does not become pregnant after having such sexual relationship with a man but if there is strong documentary evidence to show the existence of such relationship then also the couple involved in such acts would be termed as 'wife' and 'husband'."

The judgement in the next paragraph states, if there is a dispute the 'husband' in such a relationship has to obtain divorce before he marries a second time! It states: "This Court is of the further view that if the bachelor has completed 21 years of age and the spinster 18 years of age respectively then they acquire the freedom of choice as guaranteed by the Indian Constitution. Consequently, any couple who choose to consummate their sexual cravings then that act becomes a total commitment which adherence to all consequences that may follow except on certain exceptional considerations. Therefore, the marriage formalities as per custom or registering of marriage at a Government Registration Office is only to comply with each one's respective custom or for the satisfaction of the society."

'Hence, the main legal aspect for valid marriage is consummation or sexual interaction…'

Objection my lord!

The court declares the woman in question 'wife' and the man 'husband' in an arbitrary manner. And hence, the man is liable to pay maintenance to wife. The arguments are problematic for the following reasons:

* As shown in the paragraphs above the arguments have no backing of existing law relating to validity of marriage and divorce as also of the previous cases.

* It carries conflicting statements. For example it says, 'In India there is no need of registration of marriage to prove validity, only the proof of sexual relationship is sufficient' in the same breath it states, 'if the couple wants to seek divorce in such cases they should do so legally'. To take legal divorce it will require some documentary proof of a marriage. In one sentence documentary things like registration is trashed and in the next its requirement is stated.

* Due to this conflicting and contradictory statement it raises more questions than answering the existing ones. For example, what about short time sexual relationship? What happens to citizens who are against 'marriage' as such? Is registration of marriage absolutely insignificant?

* The choice of words like 'sexual gratification' and 'any couple who want to consummate sexual cravings' show non-liberal, moralistic, narrow and judgemental attitude towards male-female sexual relations. To declare all consenting sexual relations as marriage is nothing short of assuming the role of moral policing. This attitude hampers the autonomy and privacy of citizens which is a pre-requisite of democracy. Such ideology cannot ensure women's rights in the end, though it has been the intent of this judgement.

* Such regressive ideology compartmentalises human sexuality into 'marriage' and 'prostitution'. There is patriarchy lurking in it. In fact, men and women are interacting freely due to education, profession, jobs etc. today. The young generation wants to breathe free of restrictions of marriage. Many want to go in for live-in relationships. The horizons of personal freedom are ever increasing. Only liberalism can help to create responsible sexual relationships among the youngsters. The opinions in the judgement are not conducive for creating such milieu in the society. For the sake of protecting women's right to maintenance, other broader democratic rights—of which women are an integral part, cannot be flouted.

* Lack of legal discretion is dangerous. It is arbitrary and therefore not in the tradition of democracy and liberalism. Democracy allows citizens to exercise autonomy in personal lives.

* The lower courts depend on the judgements of the high courts. Therefore, the high court judges are expected to exercise greater discretion. There is a tradition among judges expressing their perspective while delivering judgements.

This judgement could have done the following:

* Could have ascertained whether the maintenance paid for children is applied from the date of application or not. And whether it is paid regularly, since there are many defaulters.

* Under the same amendment, it was directed to dispose of such cases in 60 days from the date of application. In this case, it was relevant that the judge should have commented upon this aspect.

* Could have increased the limit of maintenance by sighting amendment of 2001 to Cr.P.C.125 wherein the limit of Rs.500 was lifted. Do the high court judges, not only in this case but in many other cases lack knowledge of this amendment or, they do not want to interpret the law in favour of the disadvantaged? With the limit of Rs.500 deleted, judges are free to interpret the amount of maintenance based on the income of the respondent.

* This judgement had the scope to state the need of expanding economic rights of women beyond the sum of maintenance to 'matrimonial property or community of property'.

The road ahead...

Finally, we have to understand 'maintenance' is one side of the coin of women's secondary status in patriarchy. We need to revive campaigns such as the one initiated for the rights of deserted women by Vijaya Chauk in 1990 of Dhule district in Maharathtra; a long drawn struggle asserting land rights of single women of Bahe village in Maharashtra and present day single women's struggles. They all demand economic rights of and entitlements for women i.e. jobs, employment opportunities, rightful shelter, right to credit etc. While these struggles outside the perview of courts are important to bring substantial relief and dignity to women, it is equally necessary to critique judgements like these from the point of view of the feminists and the democratic rights of women.

Verdict: Progressive or regressive ?

Two days after he delivered the judgement, which evoked disapproval and criticisms from unpredictable quarters, including on social media, Justice C S Karnan said comments should not be made without fully understanding the verdict.

In a clarificatory order, which would be part of the judgement, the judge said "This court's order does not in any way run against any religion and is not intended to wound any Indian. The order had not in any way degraded the system of marriage performed as per the various religious and customs and rites among the various communities."

The writer is a social activist and a free-lance writer