THE SUNDAY STORY
The woman, whose lover had fathered two children but refused to pay child support, must have felt vindicated when Justice C.S. Karnan ordered him to pay maintenance, in the Madras High Court.
By holding the man liable for the upbringing of his offspring, begat through non-marital sex, the judge has created a more level playing field for single mothers, and relief for children. After all, sex and reproduction is between two people and both should be held responsible for its consequences, regardless of the legal status of their relationship.
Many of us have grown up watching Amitabh Bachchan films in which the eternal mother Nirupa Roy was discarded by husband or lover. In one, she had to bring up two children, one who became a criminal and the other a police officer, both seeking justice from a society which gave so much power to a man, that he could produce children but play no part in their upbringing.
These films narrated the plight of many unwed mothers in India who became second class citizens simply because they had sex without marriage, with or without their consent, were loving and responsible enough not to abandon their children. They ended up economically and socially marginalised.
While national data are not available, a survey conducted by Kerala’s Scheduled Castes and Scheduled Tribes Department found 563 unwed Dalit mothers in the state. The Kerala Women’s Commission puts the actual number at more than 2,000. An investigation led by Deputy Police Inspector-General S Sreejith found that there were more than 1,000 unwed mothers in the tribal areas. According to the KWC, most unwed mothers are 14 to 20 years old and some ended up in prostitution to feed themselves and their children.
Historically and even today, many unwed mothers are Dalit or tribal women, who have been forced by an unequal caste system to be sexually available for upper caste men as their accepted destiny. Their children from such encounters contribute to the cheap labour on which India’s economy runs. The women’s options are foreclosed, as their time and resources are consumed, bringing up the child.
Justice Karnan’s order reflects an empathy with the woman’s plight. India’s culture, as depicted in the Ramayana, Mahabharata, the Puranas and the Upanishads, reflect struggles between various schools of thought, representing what is right from the point of view of the patriarchal upper castes and what is right from the point of view of various Dalit and tribal groups. Laws and codes are written, challenged re-codified in different periods of history.
Rishi Gautama in the Upanishads honours the unwed mother Jabala by taking over the social responsibility of bringing up her son, Satyakam, by giving him 100 cows, unlike Ram who discards Sita in the Tulsi Ramayan when a dhobi questions the paternity of Luv and Kush.
Justice Karman’s order will provide relief to thousands of women, who may want their lovers to share responsibility for bringing up the children of that relationship, but may not want to marry the men in question.
We know that often courts and families trap young women and girls in the prison of oppressive marriages by ordering them to marry their rapists; a remnant of patriarchal thinking that a woman is ‘owned’ by any man who takes her virginity. And many a young woman, faced with a future of bringing up a child single-handedly, succumbs to economic necessity as much as social stigma.
Today, male responsibility in a sexual relationship is, at best, limited to offering room and board via marriage or using a condom. Marriage is considered a reward that men give women for being ‘good.’ It provides women with legal rights to home and property for themselves and their children. For thousands of children and their mothers the link between marriage and legitimacy, both legally and socially, has been so strong that it has become a weapon of control by many men.
Justice Karnan’s order may become a precedent and free women from exercising a self-destructive option by pinning financial liability on fathers, inside or outside marriage. However, as a society we have a long way to go in creating progressive and equal norms for fatherhood. Men need to, not just contribute towards child support monetarily, but participate in child rearing too. If men spend more time in child care - thus developing the universally human qualities of patience, empathy and others necessary to raise children -violence and oppression inside families may decrease.
Very often social change is triggered by legal change. Legal frameworks and laws often end up legitimising or de-legitimising certain segments of society. We know that British laws, which criminalised homosexuality, still leave a whiff of scandal around homosexuals. Thousands of Indian communities that the British named Criminal Tribes, still suffer the stigma of being branded thieves, and are cut off from jobs and education, leading to inter-generational prostitution. We know that women in prostitution consider themselves and are considered by mainstream society to be ‘bad’, while men who exploit them are excused as simply being men. One reason for this is that more women are arrested under the Immoral Traffic Prevention Act for soliciting in a public place than are their pimps and clients. It's the women who end up with criminal records.
The Madras High Court judgment has led to debate on the legitimacy of sex, marriage and paternity and created an opening for India to move towards a more gender equitable society like Sweden where unwed mothers are paid maintenance support and the father, who is required to pay, must reimburse costs paid from public funds for the maintenance support in full or in part.
(Ruchira Gupta is the founder of anti-trafficking organisation Apne Aap-www.apneaap.org)
Keywords: Justice Karnan judgment, Madras High Court, religious customs, wedding solemnisation, presumption of marriage, marriage formalities, premarital sex, proof of marriage, Justice C.S. Karnan, Immoral Traffic Prevention Act, Kerala Women’s Commission, unwed mothers