Is there an Ordinary Woman? We need an image of her, if we have to negotiate a space of equality and dignity for the woman. The judges have created an image of the Reasonable Man. We have no image of the Reasonable Woman or Ordinary Woman in our judicial pronouncements.
In Dothard v. Rawlinson , the question was whether the regulation which barred women from being employed in all-male prisons violated the right to equality. The U.S. Supreme Court by a majority upheld the regulation. Justice Marshall dissented and said: “It appears that the real disqualifying factor in the Court’s view is “[t]he employee's very womanhood. […] With all respect, this rationale regrettably perpetuates one of the most insidious of the old myths about women — that women, wittingly or not, are seductive sexual objects.” The judgment itself was a construct of what a woman is, physically less capable of protecting herself, inherently a sexual object, and incapable of inspiring order and discipline.
We must remember that the lived experience of the Ordinary Woman and the Ordinary Man is different. This is clear from the speech by Lady Hale, the only woman in the U.K. Supreme Court. “More objective evidence for difference lies in Feminist Judgments , a recent experiment in re-writing a variety of well-known judgments from a feminist perspective and seeing what a difference that can make. […] Women judges may think that some of the results are only common sense — which just shows how gendered a concept like common sense can be.” It clearly argues the case for inclusiveness and diversity on the Bench.
This is an extract from the Other Side of Silence by Urvashi Butalia: “Is there such a thing, then, as a gendered telling of Partition? I learnt to recognise this in the way women located, almost immediately, this major event in the minor keys of their lives. From the women I learned about the minutiae of their lives, while for the most part men spoke of the relations between communities, the broad political realities.” We have been told that discriminating markers like poverty are gendered, it seems even common sense and memory are gendered.
That the law which is facially equal kicks in injustice when it is put in action is something we recognise too late. Justice Verma report says: “This brings us to the vexed question that unless and until the state pursues a policy of avowed determination to be able to correct a historical imbalance in consciousness against women, it will not be possible for men and indeed women themselves, to view women differently and through the prism of equality.”
A case of sexual harassment once came before the Madras High Court. The Enquiry Officer found the delinquent officer guilty. The High Court exonerated him. The judgment makes certain observations which indicate how the Ordinary Man is constructed differently from the Ordinary Woman. “... The delinquent is leading a happy married life and there was no necessity for him to solicit sexual favours from anyone, much less the complainant ... The complainant lodged the said criminal complaint […] only to create documentary evidence in her favour so as to be used in the departmental proceedings which shows her motivated intention of achieving her illegal goal of throwing the delinquent officer from his official position.” Going by the judgment, the Ordinary Man is ordinarily faithful. The Ordinary Woman is ordinarily vengeful. Judicial decisions are not immune from the prism through which ordinary people are viewed.
Then we have the concept of consent. Unless she kicked, scratched and tore, or (as we have recently heard) called out to her attackers as “brothers” and pleaded with them to “leave me alone,” she has consented. This is another profile of the Ordinary Woman.
The Ordinary Woman is perceived to abuse the law. She is bent on wrecking the home with a false case and recklessly sends to prison innocent members of her family including aged mothers-in-law and pregnant sisters-in-law. These are the spectacles through which this Ordinary Woman is seen. An impression has been created that women who have no reason to be aggrieved are abusing the law.
The truth is otherwise. No woman who is happily married will invoke this provision. Most women suffer adverse consequences when they no longer have a spouse, because of death, divorce or desertion. For this reason, the majority of women in India suffer in silence within an abusive marriage, even a severely abusive one.
Those who attack Section 498A of the Indian Penal Code — which punishes a husband or his relative who subjects a woman to cruelty — use two arguments: it destroys the family; innocent bystanders are dragged in. Let us examine the first argument. What is a family? It is a fundamental social unit and each member of the unit has the right to be safe from injury being inflicted by the other. If one parent/ spouse systematically inflicts cruelty on the other, to the point there is danger to life or limb of that member of the family, then the family has set off on its path of self-destruction. The destruction did not commence with the perpetrator, usually the male, being taken into custody but well before that. The offence itself is structured on a destroyed or an about-to-be destroyed family. So the statement that the family is destroyed if a complaint is lodged by the woman under Section 498A is an offence to her dignity and to her right to live.
A study on 498A in Tamil Nadu was conducted by EKTA, a resource centre for women. It showed that even if all the cases under Section 498A, Dowry Prohibition Act and Section 304B are brought together, each All Women Police Station investigated not more than two cases per month. Where, then, is the widespread abuse of Section 498A?
The abused woman will find it difficult to secure the necessary evidence, because the scene of occurrence is within the “four walls” of the matrimonial home. So if a case fails, it is not because the case is false, but because there are inherent difficulties in the case going through the whole trial, not least of which is social pressure. The report showed that for offences under Section 498 A, arrest of senior citizens was 3.95 per cent. So the parents-in-law were not roped in in all the cases. Almost all the judicial officers who were interviewed said that the accusation that women are using Section 498A to extract money is not justified. So the image of the Ordinary Woman with a false case is incorrect.
Let us visualise the Ordinary Woman. The Ordinary Woman gets up early and cooks for the family. She packs food for the children and her husband. If she works at home, her strenuous chores begin thereafter. If she works outside she goes by public transport and does not want to be touched or mauled or leered at on the way. At work she wants to be treated with dignity, and does not walk about in a state of perpetual consent. She comes home all tired but generally the Ordinary Woman’s husband does not share the house work. So she begins the chores at home till she is ready to drop asleep. She wants to be treated with respect by her husband and does not want to be hit. She wishes to be cordial and friendly with others without being suspected of adultery. She is not a compulsive liar. She does not readily go to court. If she does, it is only because she is aggrieved. She does not complain about her marriage or her husband unless pushed to it. She knows that she will be a burden on her natal family if she returns. She also knows that if she comes out of the marriage she will suffer economic disadvantage. So she puts up with a lot of suffering being aware of her life’s reality. She does not consent to rape. She does not “ask for it.” She does not want to be abused. She deserves to be safe at home and outside. She deserves to be treated with dignity. She deserves a full life. Is that too much to ask?
(Prabha Sridevan is a former judge of the Madras High Court. The article is excerpted from her keynote address on August 11, 2013 at a conference organised by the Majlis Legal Centre, a forum for women’s rights discourse and legal initiatives)