CHAPTER 2

Violence against women is perhaps the most shameful human rights violation. And it is perhaps the most pervasive. It knows no boundaries of geography, culture, or wealth. As long as it continues, we cannot claim to be making real progress towards equality, development, and peace. United Nations Secretary General Kofi Annan, 1999

2.1. DEFINITION
Violence is defined as physical act of aggression of one individual or group against another or others resulting in or likely to result in physical, sexual or psychological harm or suffering. Violence in its different dimensions is also viewed in the context of criminality, which is on the upswing in most societies. At its most basic and obvious level, violence is "an act carried out with the intention or perceived intention of physically hurting another person". Adding the gender dimension to that definition amplifies it to include violent acts perpetrated on women because they are women2.
WHOs World Report (2002) on Violence and Health defines, violence as the intentional use of physical force or power, threatened or actual, against oneself, another person or against a group or community, that either results in or has a high likelihood of resulting in insure, death, psychological harm, mal development or deprivation.

Violence against women refers to any private or public act that is likely to cause them physical, sexual or psychological harm or suffering. Violence against women affects all spheres of a womans life-her autonomy, her productivity, and her capacity to care for herself and her children and subsequently also her overall health status and quality of life. However,

Violence, National Resource Centre for Women, See http:// www.nrcw.nic.in.

14

violence against women has become recently focus of Asia.

discussion in South

The United Nations Declaration on the Elimination of violence against

women3, adopted by the United Nations general Assembly in 1993 defines violence against women as:
The term "violence against women" means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.

Article-2 of the declaration states violence against women shall be understood to encompass, but not be limited to, the following:

a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non spousal violence and violence related to exploitation. b) Physical sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution. c) Physical, sexual and psychological violence perpetrated or condoned by the state, wherever it occurs. Although broad in its scope, this statement defines violence as act that cause or have the potential to cause harm, and emphasizes that these acts are rooted in gender inequality.

Article 1 of United Nations Declaration on the Elimination of violence against women, 1993.

15

The Fourth Conference of Women4, 1995 has defined

Violence against women, as a physical act of aggression of one individual or group against another or others. Violence against women is any act of gender-based violence which result in, physical, sexual or arbitrary deprivation of liberty in public or private life and violation of human rights of women in violation of human rights of women in situations of armed conflicts.

Liz Kelly (1998)5, Surviving Sexual Polity has defined violence as

Any physical, visual, verbal or sexual act that is experienced by the woman or girl at the time or later as a threat, invasion or assault, that has the effect of hurting her or degrading her and/or takes away her ability to contest an intimate contact.

Dr. Joanne Liddle6, modified this definition as

Any physical, visual, verbal or sexual act that is experienced by the person at the time or later as a threat, invasion or assault, that has the effect of hurting or disregarding or removing the ability to control ones own behavior or an interaction, whether this be within the workplace, the home, on the streets or in any other area of the community.

2.2. FORMS OF VIOLENCE AGAINST WOMEN

2.2.1. Introduction Violence against women is often a cycle of abuse that manifests itself in many forms throughout their lives. Even at the very beginning of her life, a girl may be the target of sex-selective abortion or female infanticide in cultures where son preference is prevalent. During childhood, violence against girls may include enforced malnutrition, lack of access to medical care and education, incest, early marriage, and forced prostitution or bonded labour. Some go on to suffer throughout their adult lives battered, raped and
4 5

Conference on Women, Beijing, 1995 Country Report. Saravanan, Sheela, Violence Against women in India: A literature review, Institute of Social Studies Trust (ISST), March 2000. Ibid.

16

even murdered at the hands of intimate partners. Other crimes of violence against women include forced pregnancy, abortion or sterilization, and harmful traditional practices such as dowry-related violence, sati (the burning of a widow on the funeral pyre of her husband), and killings in the name of honour. And in later life, widows and elderly women may also experience abuse. The major types of violence committed against women are as under:2.2.2. Domestic Violence Domestic violence occurs at home which is considered as the safest place for all but statistics experience reveals otherwise. According to Sydney Brandon, Statistically it is safer to be on streets, after dark with the stranger than at home in the bosom of ones family, for it is there that evident murder and violence are likely to occur.7 The family is often equated with sanctuary a place where individuals seek love, safety, security, and shelter. But the evidence shows that it is also a place that imperils lives, and breeds some of the most drastic forms of violence perpetrated against women and girls. Violence in the domestic sphere is usually perpetrated by males who are, or who have been, in positions of trust and intimacy and power husbands, boyfriends, fathers, fathers-in-law, stepfathers, brothers, uncles, sons, or other relatives. Domestic violence is in most cases violence perpetrated by men against women. Women can also be violent, but their actions account for a small percentage of domestic violence. Domestic violence or more simply violence at home is an invasion on ones right to live safely. It infringes on ones basic right to feel comfortable within the confines of ones house which to all domestic violence victims is not a home. A home where one can live without any fear or insecurity. Domestic violence can take a number of forms including:
7

Sydney Brandon in Boreland, M.Ed Violence in Family, J (1976).

17

 Physical abuse (slapping, punching, pulling have or showing); Forced or coerced sexual acts or behaviour (un-wanted) founding or intercourse or sexual jokes and insults; Threats (threatening to hit, harm or use a weapon); Psychological abuse / emotional abuse (attack on self esteem, attempt to control or limit another persons behavior repeated insults or interrogation); Verbal abuse (constant put-downs, name calling, making harassing or threatening phone calls etc.; Economic abuse is when abuser has complete control over the victims money and other economic resources (preventing from having access to money, preventing the victim from finishing education or obtaining employment);

Stalking8 (following a person, appearing at a persons home or work place, making repeated phone calls or leaving written messages); or

Cyber stalking (repeated online action or e-mail that causes substantial emotional distress); and

Sacrifice of liking interest and skills.9 Domestic violence is caused due to various factors that are:-

Cultural: Gender specific socialization. Cultural definition of appropriate sex roles. Expectations of roles within relationships.

Stalking generally refers to repeated behavior that causes victims to feel a high level of fear. (Tjaden & Thoennes, 2000). http//www.Nolo.Com,What is Domestic Violence?

18

 Relief in the inherent superiority of males. Values that give men proprietary rights over women and girls. Notion of the family as private sphere and under make control. Customs of marriage (bride price / dowry) Acceptability of violence as a means to resolve conflict. Economic: Womens economic dependence on men. Limited access to cash and credit. Discriminatory lanes regarding inheritance property rights, use of communal lands and maintenance after divorce or widowhood. Limited access to employment in formal and informal sectors. Limited access to education and training for women. Legal: Lesser legal status of women lither by written law and / or by practice. Laws regarding divorce child custody, maintenance and inheritance. Legal definitions of rape and domestic abuse. Low levels of legal literacy among women. Insensitive treatment of women and girls by police and judiciary. Political: Under representation of women in power, politics, the media and in the legal and medical professions. Domestic violence not taken seriously. Notions of family being private and beyond control of the state.
19

 Risk of challenge to status quo / religious laws. Limited organization of women as a political force.

Limited participation of women in organized political system.10 Domestic violence has long term effects on victim who have been

abused. The effects of repeated and prolonged violence on the women can be divided into the physical, psychological, social and economical. It can also be seen as a violation of the fundamental right to live with dignity and of the right to equality and equal protection of the law guaranteed under the Indian constitution.11 Domestic violence is undoubtly a human rights issue and deterrent to development. The Vienna accord of 1994 and the Beijing platform of action 91995) both have acknowledged this. The United Nations Committee of Convention on elimination of all forms of discrimination against women (CEDAW) in its general recommendations (1989) has stated that state parties should act to protect women against violence of any kind especially accruing within the family. Domestic Violence is not limited to any social class. The men who are violent to the women come from all socio-economic classes. There has been some discussion about the relationship between the domestic violence and social class. Some studies have reported a greater prevalence of domestic violence among working class couples. However, there is much stronger evidence suggesting that the domestic violence is not the preserve of any one social class. 2.2.3. Female Foeticide The Atharvaveda says, The birth of a daughter, grant it elsewhere, here grant a son. This saying in the Holy Scripture sums up the Indian
10

11

Source: Heise 1994, UNICEFs, Domestic Violence against Women and Girls, 6 Innocenti Digest 1, 7 (2000). Jaising, Indira, Law of Domestic Violence, 2000, pp v, vi, ix.

20

attitude towards female children who are subjected to multifarious travails inflicted by the society on them. The girl children in India have been the most vulnerable for centuries and, are even today, vulnerable to the insults of deprivation as well as discrimination. Whatever the natural biological laws of human reproduction had given mankind for balancing its natural sex ratio, has been taken away by man made laws, customs, traditions, religious beliefs and sophisticated medical technology, resulting in a lower status in society for girls as well as women. For too long have they been left on the back burner, facing discrimination throughout their entire journey from cradle to the grave. In particular, peculiar to South Asia, and certainly to India, tradition, values and customs encrusted over time have resulted in the insatiable desire for sons, with families having totally marginalized the joy and pleasure in giving birth to a baby girl. It is agonizing to know that the gender bias and deeprooted prejudice and discrimination against girl child, which have been there down the centuries, are now found to begin in the womb itself. The girl child in the womb faces the peril of pre birth elimination i.e. female foeticide. Female foeticide refers to the elimination of female foetus through abortions. it means unlawful expulsion of foetus. It is also called criminal abortion or causing miscarriage, when used in the legal sense, it includes both abortion and premature labour. As per medical sense, premature labour means expulsion of a child that has attained viability. The term abortion or miscarriage signify the expulsion of foetus or ovum at an earlier period12. In 1871, when Indias first census survey was conducted by the British, the scope of the problem of infanticide became visible. The sex ratio was 940 females to 1000 males in pre-independence India. British statisticians and survey conductors noted that this rate was the inverse of the rate as prevalent in England and other countries. In most developed countries, sex ratio has been more favorable to the females. The British passed an act banning
12

Weddel, L.A., Lyons Medical jurisprudence for India, Vth edition (1914),Thacker Spink & Co., Calcutta and Shimla. Pp. 288.

21

infanticide (Female Infanticide Act 1870). But this act was difficult to implement or put into practice because most births happened at home, and registration of births was not common. Hence the number of mysterious child mortality cases remained unaccounted. Autopsies were not performed except in unusual cases, and hence it was always difficult to ascertain the cause of the death of a child. This law led to the practice being carried out away from public eye. Technology changed the mode of getting rid of a girl child. Female infanticide took the form of female foeticide. The latest advances in modern medical sciences - the tests like amniocentesis and ultrasonography which were originally designed for the detection of gender related congenital abnormality of the foetus are now being abused particularly in India and Asian countries primarily to detect the sex of the foetus with the intention of getting it aborted if it happens to be that of a female. Such foetus is considered to be suffering from the very disease of being a female foetus. Sex determination tests are seen as providing a reproductive choice a choice to decide to have a boy or a girl. However, this choice has been used as a way of systematic discrimination against the girl child. Advertisements like spend Rs 5000 now, and save Rs 5, 00,000 later become a part of this inhuman practice, and make it sound like an economic investment. Very often, this choice is completely based on the notions of son preference. Son preference refers to a range of values and attitudes, which are manifested in many different practices, their central focus being the neglect of the daughter and over emphasis on the virtues of the son. There are many cases where the women have no say in the matter of their own reproductive health. Fear of violence, rejection, and also the desire for a higher status in the house in decision-making matters are causes that drive the woman to agree to foeticide. Technologies like the sex selection provide women the base from which they negotiate and secure their positions in their families. This is particularly seen
22

with young mothers, who look forward to a son, in order to strengthen their status and position in their family. Often women are seen to be consciously making this choice of aborting the female foetus. What are the reasons that drive this choice? Often mothers who suffer discrimination their entire lives do not wish to pass this legacy to their girl child. As in the case of India, girls in most of the developing world receive less attention and resources than boys. They face a double jeopardy of increasing prenatal elimination, together with persistent postnatal risk. To realize the strength of the social pressure on woman, one may think of the following data. According to a study of suburban women 95% of them would favor termination of pregnancy if they knew that the foetus is female. 46% of them were actually prepared to terminate a pregnancy if the foetus were female, while the remaining 54 percent despite a favorable attitude said that they would not actually do so as they had either completed their family or had two sons. Moreover, 18 percent of the respondents were ready to abort a female foetus even though they considered it a sin. This explains the paradox of social compulsion and individual choice. According to social norms they considered abortion a sin, and yet, female foeticide was acceptable. Abortion, for some is an option, which seems to be psychologically easier to bear than neglecting a living child. Despite the increasing female education and work participation awareness, socio-economic advancement is still viewed as largely achieved through men and families value sons accordingly. The inter-linkage between the productive and the reproductive domains (represented by work and marriage) leads to womens work and education being subjected to the dictates of marriage necessities13.

The Causes behind Female Foeticide

13

Kumari, Ranjana, Female Infanticide & Foeticide: The Declining ratio. Paper presented at the National Seminar on Violence Against the Girl Child, Jaipur, February 10-11, 2006

23

a. The Social Causes The social causes emanate from religious beliefs, sanctions and practices. The majority of the people who follow Hindu faith believe that a son alone can perform the last rites, which ensure salvation of the soul after death. It is the son who carries the family name and lineage. Parents are considered to be the trustees of their daughters, who belongs to another family and in reality, is only a guest till she is married off into her matrimonial home. The practice of dowry is an economic burden on the parental family and further reduces the status of women and the desire to have a daughter. b. The economic cause The economic causes are the reasons, which are primarily materialistic in nature. It is often difficult to separate economic causes from social causes. A brief listing of the economic causes is given below. Sons provide the workforce as they bring in a bride seen as an extra pair of hands. Sons are the source of family income and have to provide for parents in their old age. Daughters do not stay with the family. Hence parents do not profit from any investments made in the daughter. Daughters do not become the support for parents in their old age. Dowry is a huge financial burden on the families. This burden leads to the daughter being perceived as a liability. The issue of inheritance rights is a sensitive one. The large female foeticide taking place in primarily agricultural areas is attributed to the fact that with equal inheritance rights given to the

24

girls, families fear that agricultural land would get fragmented as the daughter marries and moves away.

Labour market discriminations are an important form of

economic discrimination. Women are less likely to work in as high positions as compared to their male colleagues. Women are often paid lesser than their male counterparts even when they are more productive than their male colleagues. Womens earnings in India are only 38% of the male earnings14. c. Technology-related Causes The technological causes are the ones that gave birth to the problem of foeticide. Before diagnostic techniques for detection of the sex of the foetus were available, one could not carry out sex-selected abortions at all. Hence with technology, a new way to get rid of the unwanted girl child was discovered. Previously, the birth of the girl child was often not declared openly, and the girl was even put to death. This process was extremely cumbersome. There was tremendous guilt associated with the act, as it was difficult to distance oneself from killing a baby. Sometimes emotional attachments led mothers to not let their (girl) child being killed. The girl child in such cases would be abandoned. Foeticide is a natural corollary of infanticide, a result of the introduction of technology. Compared to infanticide, foeticide was a more acceptable means of disposing of the unwanted girl child. Infanticide was an overtly barbaric and inhuman practice. Foeticide on the other hand, was and is carried out by skilled professionals. It is a medical practice, an oft-given justification. It uses scientific techniques, hardware and skills, and reduces tremendously, the guilt factor associated with the entire exercise. According to an observation made by the UNICEF, the problem of female foeticide has been rising, as technology has been improving. The different technologies for sex determination are increasingly
14

Human Development Report, 2004.

25

being available in rural areas also, and this is fuelling fears that sexdetermined abortions will only increase in the future. These circumstances make the agenda of bioethics pivotal. d. Causes due to Governance and Policies The policy reasons pertain to the governance-related factors that have accelerated the problem of foeticide. India was one of the first nations in the world to have a family planning policy (1952). The two-child norm has been inculcated to the people through public awareness campaigns, rather than through coercion. As urbanization has taken place and families have been becoming increasingly nuclear, there is a realization of the economic benefits of the small family. But at the same time, the ingrained values such as son preference have remained in tact. In urban India, where by and large people adopt a small family number female foeticide often is practiced to limit the size of the family15. 2.2.4. Female infanticide Female Infanticide is another form of violence which is committed against women. "Female infanticide is the intentional killing of baby girls due to the preference for male babies and from the low value associated with the birth of females"16. Kolloor (1990) defined it as, Killing of an entirely dependent girl child less than one year of age by mother, parents or others in whose care she is entrusted17. Historically, female infanticide has been in existence since long. Girl infants have been known to be killed by rubbing poison on the mothers breast, by feeding infants with milk of errukam flower or oleander berries, by using sap of calotropis plant, paddy grains, giving sleeping tablets or by simply burying the girl infants alive. There are more passive forms of infanticide like neglect, sustained nutritional deprivation,
15 16

17

Supra Note 13. Marina Porras, "Female Infanticide and Foeticide" for more info visit http://sorrel.humbolt.edu. Kollor T M (1990) Female infanticide: A Psychological analysis. Grass Roots Action, Special issue on Girl child April 3, and pp 3.

26

delayed health care for female infants or, in other words, an unequal allocation of household resources detrimental to the health of the girl child. In fact, the passive forms of infanticide remain unrecorded as infanticide by health workers and sociologists18. Law banned this heinous practice in 1870, more than a century ago. Yet this abuse of girl child which is violation of her human right to life continues to prevail not only in some parts of Rajasthan and Gujarat but recently has been found in some districts of Tamil Nadu and Maharashtra as well19. It is most inhuman, uncivilized, barbaric tragic event. Female infanticide and foeticide has occurred not only in several cultures across history, but is known to occur in contemporary societies as well. Several scholars have documented female infanticide for the period of British Colonial rule. In the period since independence, the practice has been reported as occurring in many parts of the country including Tamil Nadu where the practice was not known to exist before independence 20. The first recorded instance in India dates to 1789 when Jonathan Duncan, a British Resident at Benares, Uttar Pradesh State, North India, detected the practice among a Rajput clan. The British passed the Infanticide Regulation Act in 1870 and subsequently, a special Census was taken in 1881 in the Western Provinces and Oudh to detect female infanticide21. Evidence from the British records and other historical sources shows that the practice was confined to Northern and Western regions of the country including present day Rajasthan, phenomenon22. Punjab, Uttar Pradesh and Bihar. By contrast, female infanticide in Tamil Nadu is essentially a post independence

18
19 20 21 22

Supra Note 5. Kumari R (1995) Rural female adolescence: Indian scenario. Social Change 25 (2): 177-88. Supra note 13. Ibid. Chunkath et al., 1999: 4, Supra note 5.

27

In South India, the practice of female infanticide existed among the Toda tribe of Tamil Nadu. The only factual evidence to prove that it still exists among them is the sex ratio data in the Nilgiri District of Tamil Nadu. The data that Chunkath and others analysed confirmed that, the practice of female infanticide is widespread in Dharmapuri, Salem and Madurai Districts. They arrived at this conclusion after preparing a table on, distribution of Blocks by number of female infanticide deaths, as per PHC records. They observed that there is a contiguous cluster of blocks where female infanticide occurs and what should be a cause for particular concern is that the phenomenon is spreading from the core area to a much wider neighboring periphery area and beyond23. According to the study done by George and others24 in 1992, out of the 18 cases of female infanticide (of married mothers) that they came across, 17 were among the Gounders. The remaining one case occurred among the Arunthatis (cobblers) a scheduled caste. In Bihar, according to a study done by Adithi, a local NGO in Katihar District, of 35 Dais, this practice originally began among Rajputs but spread to many castes including the Bumihars, Brahmins, Kayasthas, Yadavas and some scheduled castes. This, they say, is similar to the case in Tamil Nadu, where it originally began with Gounder caste and has now spread to almost all castes25. What makes the practice important in the contemporary society is that there are indications of its increase in occurrence.

23

24

25

Chunkanth, Sheela Rani and V.B Athreya, Female Infanticide in Tamil Nadu : some evidence, Economic and Political weekly, XXXII(17),1997, WS 22-29. George Sabu et al., Female Infanticide in Rural South India, Economic and Political Weekly, XXVII(22),1992,pp.1155 Times of India, 22nd April.

28

Causes of infanticide Infanticide of the female children in India is usually done out of the under mentioned necessity: a. Dowry: Dowry, given at the time of the daughters marriage, has

influenced the status of women. The daughter is considered to be a liability as her contribution to the family is temporary upto the time she is married and sent to another family. It is the inability to meet the dowryrelated demands from the in-laws family that is a major cause for female infanticide.
b. Fear of sexual abuse: The fear of sexual abuse of the girl child is also a

cause for female infanticide.

c. Poverty: Poverty is one of the reasons for female infanticide. According

to the survey done by Chunkath and others26, the occurrence of female infanticide is widespread among the poorer and socially disadvantaged community including the thevars, vaniyars and scheduled castes. In contrast, ADITHI & Community Services Guild (1992)27 has mentioned several Communities, including the wealthy Gounder community, the landed caste in Salem District, Tamil Nadu, also practice female infanticide. George and others28 in their study point out although the Gounders, live in remote villages, they own a significant proportion of land and are in the upper social stratum of their villages, in the North and South Arcot Districts in Tamil Nadu. It has been proved through various studies that the practise cuts across all classes and caste.
d. Birth order: Chuknath and Athreya29 observed that birth order determines

the fate of a girl child. According to the study, the first female infant is, in a majority of cases, not a victim of female infanticide even in the high
26 27 28 29

Supra note 23. Ibid. Ibid. Ibid.

29

female infanticide Health Unit Districts (HUDs), although there are instances when it is. The second female infant has a much greater chance of escaping infanticide in Madurai HUD than she does in Periyakulam and Dharmapuri HUDs. While the third female is at much greater risk than the first in all three HUDs, both the second and third seem to be equally at risk in Periyakulam. Negi after conducting interviews and discussions with people and NGOs closely working in Madurai District point out to the prevalence of a superstition that, killing a new born girl child increases the probability of a male child being born in the family30.
e. Lack of education: Lack of education is also reason for female

infanticide. In the survey conducted by George and others in 1989 found that, the villages in which female infanticide occurs tend to be even more remote and have less educated people than the villages with no cases of infanticide31 .
f. Lack of scanning centers: Lack of scanning centers has also been cited as

reason for infanticide. As people do not have this facility, they kill the child after it is born. According to Soma Wadhwa, every year 50,000 female foetuses are aborted in India. These people are not very different from those who kill the baby after she is born. The latter, she says, simply do not have enough money or facility to kill her in the womb32. 2.2.5. Child Sexual Abuse An area in which there is little available research is that of child abuse within the home. There is utter silence around the sexual violation of the girl child in the family by her own relatives. It is the most secret of all crimes, yet more common than imagined33. It has become rampant in Indian society. It is the crime that threatens the fabric of family life. It is a highly sensitive
30 31 32 33

Supra Note 13. Ibid. Times of India, 29 Dec., 1995. Gupta, Shriniwas, Incestuous relations and Sexual Abuse of the children in India and Abroad, Amity Law Review, vol.3 , Part I, 2002, P. 79.

30

subject. It was always kept in the dark among middle and upper class people until recently when the increase in the number of cases and awareness of women to say no to all forms of abuse served as an eye opener to the horror that destroys numerous families across the nation34.
Sexual abuse is defined as all sexually oriented conduct, commentary or gestures, intentional and repeated, not desired or accepted freely by their object, for whom it is an imposition, a humiliation or attack on their dignity35.

Legally child sexual abuse is interpreted as rape of a child who is below 16 years of age and rape as defined in Indian Penal Code is penetration without her consent. However, in Indian law has interpreted and defined rape as penile-vaginal penetration. This definition is inadequate as in most of the child sexual abuse cases, Sakshi36 has worked with, there has been no sexual penetration child sexual abuse is the physical or mental violation of a child with sexual intent. Thus Narang, (1998)37 defines child sexual abuse as follows: An adult exposing his/her genitals to a child or persuading the child to do the same. Adult touching a childs genitals or making the child touch the adults genitalia.
An adult involving a child in pornography which includes exposing a

child to pornographic material. An adult having oral, vaginal or anal intercourse with a child. Any verbal or other sexual suggestion made to a child by an adult.
Adult persuading children to engage in sexual activity.
34

35 36 37

Mishra, Preeti, Growing Menance of Incestuous Behaviour in India calls for legislation, 1999, CrLj (Jr) 65. Diaz, (1996) (Adriana Gomez, 1996), Supra note 5. Sakshi is an NGO working in Delhi. Supra Note 5.

31

According to the report of RAHI38 (1998) child sexual abuse is any sexual contact between a child and an adult. The contact covers a wide range of behaviours. It may or may not involve physical contact, force or violence, but always involves coercion. It can also include fondling of the breast or genitals, rape, oral sex, and/or sodomy. It can also include an adult demanding that a child touch his/her genitals either directly or through clothing. Nonphysical sexual contact also includes exhibitionism, obscene talk or pornography39. Child sexual abuse takes place in all cultures, races and in every strata of the society. Both males and females are sexually abused. Girls however, are abused more frequently and over a longer period of time. The abuser is usually an older person who is in some position of trust and/or power vis-avis the child. Even though both men and women can sexually abuse a child, most abusers are male. The abuser violates a relationship of trust with the child. They may use tricks or threats to persuade the child to take part in a sexual activity. The abuse generally takes place in the childs home or the abusers home. Given that the abuser is often known to the child and usually has both access to as well as authority over the child, the abuse does not commonly involve physical violence and generally continues over a long period of time. The abuser uses threats or blackmail to warn the child against telling any one about the abuse. This may be the primary cause for the childs silence40. Child sexual abuse is on the increase because of the responses to it and towards the victims. One of the responses being denial of its existence and disbelief: Many people, with whom Sakshi has interacted, deny any existence of child sexual abuse especially within a family. The concept of Indian families is perhaps the most sensitive and revered. Therefore, it is difficult to believe that sexual abuse in the families really happens. For them, if at all the
38 39 40

RAHI is an NGO working in Delhi. Supra Note 5. (Narang, 1998: 21) Ibid.

32

concept of child sexual abuse exists; it is limited to a particular class. The popular belief is that it is very rare and happens only in low class families (slums). Even if some people believe that child sexual abuse exists, there is denial publicly as it is difficult for them to deal with the fact that it is prevalent in our traditional Indian families. Due to ignorance, denial of its existence, and inability of adults to deal with the subject, the child is met with disbelief when he/she finally summons up the courage to confide in someone about the experience and trauma of being sexually abused. Thus the child is forced to suffer in silence giving the abuser greater power over the child. Sexual abuse is shrouded in shame and secrecy. Sexual organs or any reference to sex is considered to be shameful. Children are not given proper answers when they ask questions about sexual organs. They get the messages that certain body parts are dirty and they should never be talked about. So, when a child is abused, there is total silence. The child knows that there is something wrong going on, yet the child does not have the language or the words to express it. There is loneliness because the child cannot talk about it to anybody and does not know whom to approach. This hampers disclosure and thus the abuse continues. In families where parents/relatives accept and realise that a child has suffered sexual abuse, the child is forced into silence given the culture of privacy, family prestige and family unity. The child generally does not receive much support from the family as they do not want the matter to be disclosed and the family name exposed. Thus the abuser is not confronted and the child is encouraged to forget the traumatic experience. The child and her future are sacrificed for the image of the family. In some cases, the mothers do not want to take action against the abused as they are constrained by the status of the abuser within the family, for example; a father. Economic dependence, low self esteem, lack of power within the family, incapacity to accept the responsibility of single parent and moral shame of the act keep the mother quite. Members of voluntary organisations says that a mother would often suppress and wish away the
33

event, not only because of a sense of shame and outrage, but also out of fear of reprisals from her husband, son, or other relatives41. The person who is sexually abused in childhood is faced with the taboo of talking about it. Most former victims keep their experiences a secret for many years. Consequently their emotions are likely to run very deep and when they eventually surface the effects can be devastating. The abuser conveys the message that the abusers needs come first and so it destroys the basis for child-adult trust. Victims of sexual abuse grow up without a sense of protection and security, something that is essential for them to build inner strength and venture into new experiences. As a result, they also have difficulty in trusting others and forming relationships. Survivors sexual activities as children were dominated by perpetrators emotional needs and selfish orientation towards sexuality. Tension, fear, betrayal, pain and mistrust coloured the victims sexual awakening. Consequently, as adults, the sexual behaviour of survivors is severely impacted. They face issues such as sexual maladjustment, abstaining from sex or compulsively seeking it out. Adult women victimised as children are also more likely to manifest depression, self destructive behaviour, anxiety, feelings of isolation, low self-esteem, and a tendency towards substance abuse, over-eating and various other addictions42. 2.2.6. Dowry related violence In the recent decades, it has been found that the marriage which is primarily meant for the happy and prosperous life results in violence against the fair sex. Hardly, a day passes, when we do not hear about such type of violence. This type of violence against the bride revolves around the demand for more and more dowry and it continues till the divorce or death of the bride takes place. The demand for the more and more dowry hence comes to an end and the bride is kept in the constant tension. In majority of cases violence is
41 42

Ibid. (RAHI, 1998:8) Supra Note 5.

34

also used against the bride in order to force her to motivate or compel the parents to extract maximum possible dowry.43 Dowry has been referred to as a social cancer, a cruel custom and an insult to the dignity of women. It has been crystallized in our society and despite legislation, cases of dowry harassment and dowry deaths are increasing every year. Dowry is much more dangerous than AIDS and Drugs. AIDS kills one individual and the-same with drugs also but Dowry kills the entire society. Dowry is derived from the ancient Hindu customs of "kanyadan" and "stridhan". In "kanyadan", the father of the bride offers the father of the groom money or property, etc. whereas for stridhan", the bride herself gets jewelry and clothes at the time of her marriage, usually from her relatives or friends. In "varadakshina", the father of the bride presents the groom cash or kind. All of these could be done voluntarily and out of affection and love44. The Hindu marriage system is sacramental. According to this system, a marriage is forever, and there is no scope for a separation. Among the various ceremonies previously practiced, the ceremony in front of a "godly" fire ("Yajna" in Sanskrit) has taken over, the antiquated system of "marrying a wife by capture. This form of marriage began the practice of dowry, where originally, the family of the bride would accept gifts and money from the groom's (potential conqueror's) family as an alternative to bloodshed during the capture of the bride. A later modification of this system has paved way for the present dowry system primarily practiced by the society45.

43

44 45

Mehraj-ud-din Mir, Crime Against Women: A critical Analysis, Crime Against Women O.C. Sharma. Dowry System in India, Azad India Foundation, http:// www.AzadIndia.org. Ibid.

35

Dowry means any property or valuable security given or agreed to be given either directly or indirectly(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person,

to either party to the marriage or to any other person; at or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies46. The dowry custom continues to rule society. In majority of Indian families the boy has inheritance rights while the girl is given a hefty sum at the time of her marriage in lieu of the Government regulated equal rights for girls in parental property. The evil of the dowry system has spread its tentacles in almost all parts of the country and sections of society. There are several reasons for the prevalence of the dowry system, but the main one is that it is a necessary precondition for marriage. "No dowry, no marriage," is a widespread fear. As love for consumerism is increasing so is the greed for dowry. The young man and his parents want all their needed consumer articles to be satisfied by the brides parents or guardians. Failing to get them satisfied, they twist the arm of the bride so much that it breaks. They either murder her or induce her to commit suicide by their persistent cruelty, harassment, taunts, insults and humiliating behaviour. The advancement of science, education, arts, etc. in our country, made people more and more educated and cultured in society, but it is further aggravated the miseries of Indian girls, because dowry rate also proportionately increased, with the advancement of the country, according to the status qualification employment, etc. of the bridegroom. The price tag for the groom is now bigger and bolder. The emergence of an affluent middle class, the torchbearer
46

Section 2 of Dowry Prohibition Act, 1961.

36

of social change in modern India, is another factor for the perpetuation of the dowry system. Families arrange most marriages, and a man who does not marry for love learns he can marry for possessions. For this man, and his family, a woman becomes the ticket to shortcut riches through the system of dowry. There are a number of things people desire to have in their own houses but cannot afford; they use the opportunity of a son's marriage to get them. The girl's parents do not protest against the blatant extravaganza, as they regard the alliance as a stepping-stone towards higher social status and better matches for the remaining children. Dowry as a phenomenon has gone beyond the ritual of marriage. Pregnancy, childbirth and all kinds of religious and family functions are occasions when such demands are made. A more sophisticated public image of an extended gifting session has replaced the old system. Now there is demand for receptions in marriage palaces. The trousseau includes designer wear for the bride and groom's family. Chefs are flown in for multi-cuisine wedding dinners. The bride's family usually pays for all this. The rich revel in the exchange of their black money, but this in turn exerts pressure on the other classes to ape them with serious social consequences. The women have become a kind of commodity. It is them who are the worst sufferers because dowry is most often a monetary agreement between two men - the bride's father and the groom. Caste-based practices have only added fuel to the fire. Marriages in political families are arranged to consolidate the caste base for support in electoral politics, so they do not challenge the dowry system. Dowry rituals have now spread even to communities where they were unknown. It has gone to different castes, crossed the boundaries of provinces and education and religion. Muslims and Christians, such as the Syrian Christians of Kerala and the Roman Catholics of Mangalore have started demanding dowry47. 2.2.7. Rape
47

Supra Note 44.

37

Rape is one of the most extreme manifestations of gender based violence. Even the threat of rape, give men control over women. It is one of the most damaging and heinous crime. It is the most serious offence against the dignity and modesty of women. Rape is the only crime in which the victim faces more degradation and socially un-acceptability. It has been often described as a deathless shame or living death it does not only victimize her, but it also leaves life-long stigma on the character and dignity of women causing her and her relatives the hard pain and agony. The mental torture is so deep that it hardly heals and if it heals at all, it takes very long time to heal. The woman generally suffers in silence and endures in shame. The victim and her relatives take every possible care to conceal it, instead of exposing it and bringing the accused to book. In case of unmarried women her life becomes miserable and chances her marriage are ruined and she is treated as an out caste. The married women losses the love of her husband and her restoration in the family is jeopardized48. The family members never show a positive approach to her. Even children lose the trust and security they reposed in her. In Western countries the victims are viewed as damaged goods. The victims are destined to lead a painful life, irrespective of their age and circumstances. For fear of blame, rape victims often remain reticent and withdrawn. Many a time, they attempt to commit suicide out of grief and self-contempt.49 Definition Rape has been defined from various angles. The dictionary meaning of rape is the act of taking anything by force. In legal terms rape is a serious offence of indecent assault on a female committed with the intent of knowledge to outrage her modesty50. In the Indian Penal Code, rape is categorised under offences against human body. As per section.375 of IPC

48 49 50

Supra Note 43, Pg 65. Supra Note 31. Usha Venkitakrishnan, Sunil George Kurien, Rape victims in Kerala, Discussion Paper 52, 2003.

38

a man is said to commit the offence of rape with a woman under the following six circumstances: 1. 2. 3. hurt, 4. With her consent, when the man knows that he is not her Sexual intercourse against the victims will, Without the victims consent, With her consent, when her consent has been obtained by

putting her or any person that she may be interested in fear of death or

husband, 5. With her consent, when at the time of giving such consent she

was intoxicated, or is suffering from unsoundness of mind and does not understand the nature and consequences of that to which she gives consent, 6. age. Further explanation provided to the section states that penetration is sufficient to constitute the sexual intercourse necessary to constitute the offence of rape, whereas the exception leaves out marital rape altogether if the wife is not under fifteen years of age. Attempt to Rape In cases where an indecent assault is made upon the person of a woman, but where rape is not committed- the culprit is charged with Section.354 of IPC, because unless the Court is satisfied that there was determination in the accused to gratify his passion at any cost, and inspite of all resistance, such person is not charged with rape. Section 354 of the IPC prescribes punishment for anyone who assaults or uses criminal force to any woman with an intent to outrage her modesty.
39

With or without her consent when she is under sixteen years of

An indecent assault upon a woman is punishable under this section. Rape is punished under Section.376; but the offence under this Section is of less gravity than rape. And also because a person who is guilty of attempting rape, cannot be allowed to escape with the lesser penalty of this section. An indecent assault, i.e., an assault which right minded persons would consider as indecent- accordingly any evidence explaining the defendants conduct, or whether any admission by him or otherwise is admissible to establish whether he intended to commit an indecent assault, as is stated under Section.21 sub clause (2) of the Evidence Act, which reads: Section 21 (2): An admission may be proved by or on behalf of the person making it, when it consists of statements of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable. 2.2.8. Sexual Harassment at work place Sexual harassment in the workplace is a growing concern for women. Employers abuse their authority to seek sexual favours from their female coworkers or subordinates, sometimes promising promotions or other forms of career advancement or simply creating an untenable and hostile work environment. Women who refuse to give in to such unwanted sexual advances often run the risk of anything from demotion to dismissal. But in recent years more women have been coming forward to report such practices -- some taking their cases to court. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) stressed that sexual harassment constitutes a form of sex discrimination. "It not only degrades the woman", the report noted, "but reinforces and reflects the idea of non-professionalism on the part of women workers, who are consequently regarded as less able to perform their duties than their male colleagues."

40

A study done by the International Labour Organisation in 1992 found that sexual harassment of women is acquiring a menacing dimension the world over compelling many of its victims to quit jobs or suffer humiliation. 23 countries were surveyed (but it did not include any of the South Asian countries). The picture, as the report said, was a disquieting one - 15 to 30 per cent of the women who were working had been subjected to sexual harassment. The sexual harassment they were subjected to varied from explicit demands for sexual intercourse to offensive remarks and one out of 12 women had to quit her job or had been fired51. In spite of this report no positive steps had been taken in India to deal with this problem but that did not mean that there was no sexual harassment faced by working women. The fear of losing their jobs or being subjected to further humiliation kept many of them quiet. The two provisions of law which could be of help to anyone, wishing to take action were section 354 and section 506 of IPC52. There are, however, a few cases where the woman has taken up her fight seriously and also been able to win. Suman, a Doordarshan producer in Hyderabad took her boss Chawla to court. She had complained about his behaviour to the DD Welfare Association saying she was being harassed and teased by him for over three months. The only outcome of her complaint was that she was transferred to Lucknow. But she pursued the case and filed two separate cases in the metropolitan magistrate's court; the first one charged Chawla with outraging her modesty. The second case is where a clerk in the pay and accounts office in Hyderabad complained to an NGO association against two male superiors who had tried to molest her during office hours. Though her complaint was followed by a series of dharnas, an inquiry committee headed by a woman

51

52

Reproduced in Noorani, A.G; 'Sexual Harassment and the Law'. Span, 17 (August 1993). S. 354 - assault or criminal force to woman with intent to outrage her modesty; S. 506crimmal intimidation....impute unchastity to a woman.

41

exonerated the guilty officer. But under pressure from the activists the government was forced to transfer them53. The third case is one which should be given a great deal of publicity so that women who are being harassed wilt pick up courage to fight back. Shehnaz Sani, a Saudi Arabian Airlines employee was fired after she protested against her senior's sexual advances. The Bombay High Court had ordered that she be reinstated and paid 13 years' foregone wages- Her courage in fighting this case was tremendous as what added to her problems was the fact that her husband worked in Saudi Arabia and was threatened with retrenchment if his wife took an aggressive stand against the airlines. But, as she said, she could not submit and she "fought this battle entirely on my own"54. Sujata Kohli, an advocate in the Sessions Court, was allegedly assaulted by the secretary and a senior member of the Delhi Bar Association. Even the police in the police post in the compound refused to intervene. The case filed under section 354 and section 506 is still continuing and she is fighting a lone battle.55 Gita Kariekar, a typist in a private firm in Mumbai lost her job for refusing to have an affair with her boss. She told the labour court about this reason for her termination but could not convince the judge who said "Why should any man want to chase you"56. Chaula Karuva, the public relations officer at the Gujarat Tourism Development Corporation was dismissed for having lodged a formal complaint against the misconduct of her IAS officer boss. She took the case to court and the Gujarat High Court ordered her department to reinstate her with full back wages and her boss was transferred following an inquiry. One of the few cases where the woman had the courage
53

54

55
56

Shama Chatterjee, The Free Press Journal dated 29.11.1997 reproduced in ROWS Newsletter. Namita Devidayal, The Times of India dated 29.11.1998 reproduced in RCWS Newsletter 10. Laxmi Murthy, Business Line dated 15.9.1997. Shama Chatterjee, The Free Press Journal dated 29.11.97.

42

to take the case to court and also win, but the IAS fraternity on her return to work continued to harass her for tier crusade against one of their colleagues.57 Another case was that of an officer in the nationalised bank in Delhi who had complained of harassment by her boss who insisted she stay back till late hours and tried to get physically intimate. She was charge sheeted and asked to explain why she talked about this to others and brought a bad name to the bank. When she complained to the grievance committee she was charge sheeted again58. Often complaints are not taken seriously and complainants are advised to withdraw their complaint if the delinquent is an aged person. AIDWA had raised the question of a joint director, married and in his late fifties, who misbehaved with his female colleague. The advice given to the association was that a "man of 55 years is harmless and they should withdraw the complaint''. However when the association brought this to the notice of the then Chief Minister Karunanidhi, he promptly got the officer transferred59. Women who are active in the workers' unions are particularly the target of harassment by the employers. Amarjeet Kaur of the All India Trade Union Congress gives a number of examples where this happened even in a place like Delhi. In a watch manufacturing unit in Daryaganj the most dynamic woman worker leading the agitation was harassed by the management and even told to leave the union because other union leaders would force her into prostitution. The management of an electronic industry in Okhla wrote letters to the parents of the young women who were active in the union complaining about their indulging in 'anti-social activities'- The young women had to face the wrath of their families plus the effort of the management to break their strike60.
57 58 59 60

Ibid. Ibid. Ibid. Amarjeet Kaur AITUC, Supra Note 70.

43

No changes have been made in the law to improve the situation even though as far back as 1984 an article had drawn attention to the fact "Sexual harassment of women at the workplace is an important instance of the oppression of women through sex and terror. This combination of sex and terror is central to the oppression of women in family, on the streets, at the workplace"61. It was the Supreme Court which in 1997 gave a landmark judgment to deal with this problem in Visakha v. State of Rajasthan.'62 The petition was filed by a number of women's organisations following the gang rape of Bhanwari Devi, a Sathin in Rajasthan during the course of her work of preventing child marriage. The Supreme Court pointed out that each "incident reveals the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate and the urgency for safeguards by an alternative mechanism in the absence of legislative measures. Each such incident results in the violation of the fundamental rights of "Gender Equality" and "The Right to Life and Liberty"63. The violations are under articles 14, 15 and 21 and as it was pointed out that "one of the logical consequences of such an incident is also the violation of the victim's fundamental right under Article 19(g) to practice any profession or to carry out any occupation, trade or business". The responsibility for ensuring the safety and the dignity of the woman is through legislation and the executive taking action but the court did not abandon its responsibility but felt that "some guidelines should be laid down for the protection of these rights to fill the legislative vacuum"64. The court said: "The power of the Court under Article 32 for the enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the woman from sexual harassment and to make their fundamental rights meaningful. Gender equality includes
61

62 63 64

The Sunday Observer dated 13.5.84. (1997) 6 SCC 241. Id. at 247. Ibid.

44

protection from sexual harassment and the right to work with dignity which is a universally recognized basic human right"65. The international conventions and norms are, therefore, of great significance in the formulation of the guidelines to achieve this purpose. The government has ratified the recommendation of CEDAW and the relevant article 11 - "Equality in employment can be seriously impaired when women are, subjected to gender specific violence such as sexual harassment". The international conventions and norms for construing domestic law when there is no inconsistency between them, and there is a void in the domestic law, is now an accepted rule of judicial construction. In exercise of its power under article 32 the court laid down guidelines and norms for observance al all working places and institutions until a legislation is enacted for the purpose. The guidelines were directed to be treated as the law declared by the court under article 141 of the Constitution. The Judgment of the Supreme Court has been referred to as a landmark in judicial history. It ''explicitly defined sexual harassment in workplace and bid clear guidelines to prevent their occurrence...." 2.2.9. Eve Teasing Eve teasing is an act of terror that violates a womans body, space and self-respect. It is one of the many ways through which a woman is systematically made to feel inferior, weak and afraid. Whether it is an obscene word whispered into a womans ear; offensive remarks on her appearance; an intrusive way of touching any part of a womans body; a gesture which is perceived and intended to be vulgar: all these acts represent a violation of a womans person, her bodily integrity. Eve teasing denies a womans fundamental right to move freely and carry herself with dignity, solely on the basis of her sex66.
65 66

Id. at 249. Hindu, August 2, 1998.

45

Eve teasing by itself is not an offence under any law, but Sections 294 and 349 of the Indian Penal Code cover substance of eve teasing. Sections 294 punishes whoever, to the annoyance of others (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballads or words in or near any public place is liable to be punished with imprisonment or with fine. The section is very wide in nature and a person can be hauled up even if the acts forming part of the substance of the offence are addressed to the public at large, provided this cause annoyance. Clearly a girl or a woman who feels annoyed by any obscene song or words can take recourse to the provision of the section and put up a complaint before a police station. The offence is cognizable and bailable. A graver form of eve teasing is accompanied by the use of gesture indicating threat or use of force. Criminal force has been defined under Section 349 of Indian Penal Code. According to his section a person is said to use force to another if he causes motion, change or cessation of motion to that other person. In such a case also, action can be taken against the person using it. The punishment is such cases are imprisonment for two years or fine or both. The offence is cognizable. Thus, simple eve teasing accompanied with gesture to use force are punishable under the existing provisions of the Indian Penal Code. 2.2.10. Prostitution Prostitute means act or practice of engaging in sexual intercourse for money and the word prostitute connotes a person, usually a woman who engage in sexual intercourse for money. The Suppression of Immoral Traffic in women and girls Act(1956) defines prostitute as a female who offer her body for promiscuous sexual intercourse for hire, whether in money or in kind, and whether offered immediately or otherwise and the expression prostitute shall be construed accordingly.

46

Prostitution in India is Rs 40,000 crore annual business. It has been estimated that 30% of the sex workers are children, who earn Rs.11, 000 crore. This has been reported by a study by the Centre of Concern for Child Labour (CCL)67. At present the number of child prostitutes in India is between 270,000 and 400,000, with the number of children in commercial prostitution increasing at the rate of 8-10% per annum. Poverty and deprivation, coupled with a low status in society for girls is a primary factor for prostitution. It is well known that prostitution exists in the Third World because of poverty68. Prostitution is often viewed as an avenue providing easy money, which seems attractive for families steeped in poverty69. Child prostitution in India is aggravated by the presence of social conventions and myths prevailing in society. It is popularly believed that sex with a virgin is a cure for venereal and other diseases. Moreover, a reason for the rise in child trafficking can be attributed to the myth that having sexual intercourse with a child would protect the client from AIDS. This was stated at a workshop organised by UNICEF on The Rights of the Child70 With the low levels of education and literacy, such myths are only perpetuated. Social conventions play an important role in the continuance of the phenomenon of prostitution. These include child marriages, polygamy, dowry and social stigma against single, unwed, divorced women and girls who have been sexually abused71.Children, especially young girls, in these circumstances are especially vulnerable to the prostitution racket. There have been instances of girls being driven into the sex trade following traumatic sexual experiences during childhood, including rape. If, in the case of Shahida of Kozhikode, it was the violence inflicted by her fathers younger brother
67
68 69 70

71

The Times of India, 10 Nov. 1998. (Grant, 1996), Supra Note 5. Ibid. The Hindustan Times, 28 Aug 1997. Trade in Human Misery, 1998.

47

followed by molestation by her cousin and then rape72. Prostitution thus becomes a viable option for children who have been abandoned, for those from disrupted families and for those who are financially supporting their families. The prevalence of traditional and religious practices in some communities that consist of dedicating girls to gods and goddesses serve to encourage prostitution. The evolution of the Devadasi cult can be traced to a period earlier than the entry of Aryans in India. The cult appears to be a relic of the Dravidian matriarchal society. It exists today in India with many regional variations. This social convention condemns nearly 5 to 10 thousand girls every year to a life of sexual servitude (concubinage) and subsequently into prostitution. The devadasi girls form 15% of the total women in prostitution in India. In the border districts of Maharashtra and Karnataka states, their percentage in prostitution is nearly 80%. The striking fact is that all of them have entered prostitution in an extremely organized manner. This process involves first making the girl a devadasi and then legitimising her entry into prostitution with the help of religion. The practice receives sanction from mythology and was once supported by feudal land owning systems. Social backwardness is the most closely linked factors to both devadasis and prostitutes. It is known that ethnic minority, scheduled castes and other backward classes, indigenous people, hill tribes, refugees and illegal immigrants are particularly susceptible to the racket. Interestingly, the signs used to identify the chosen child (who is then dedicated to the goddess Yellamma) are those of ill health - white patches of eczema, leprosy and even mental retardation. Researchers now speculate whether prostitution was one lucrative way of making use of such otherwise worthless children. Among those involved in child prostitution, it is the street children who are most vulnerable to it73.
72
73

The Hindustan Times, 2 Oct 1998. Supra Note 5.

48

The erosion of traditional family systems and values and the pursuit of consumerism encourages sale of children. The National Commission for Women identifies sexual glorification by the electronic media as one of the prime reasons for minors in prostitution74. In 1991, the Central Social Welfare Board conducted a study on Child Prostitution. Among the causes of entry to prostitution, economic distress accounted for 41%; desertion by spouse = 24.5 %; deception = 11.9%; social customs = 5.35%; family tradition = 5%; kidnapping and abduction = 2.25%. The study also indicates that many of the young girls join, emulating the example of girls who have joined the trade and as a consequence are living well75. The prevailing situation is aggravated by the lack of awareness of legal rights, the exploited situation of the victims and the absence of a channel for seeking redress. In the presence of the growth of trans-national crime and expansion of drug trafficking networks, weak law enforcement mechanisms, exploitation by corrupt law enforcers and officials are the order of the day76. On paper, prostitution per se is not illegal and hence there are loopholes in the law that ensure a person goes scot-free even if he sells a minor girl to a brothel, provided there is a stamped receipt77. 2.2.11. Trafficking Trafficking is a form of violence against women that takes place in multiple settings and usually involves many different actors including families, local brokers, international criminal networks and immigration authorities. Trafficking in human beings takes place both between and within countries. The majority of the victims of human trafficking are women and children, and many are trafficked for purposes of sexual exploitation.

74 75 76 77

(Prabhudesai,1997), Ibid (DCunha, 1995: 22). Ibid. Supra Note, 7. (Nigam, 1993:23) Ibid.

49

Trafficking of women and girls, especially into the big cities of India, remains a serious problem in the South Asian region. Increasingly young girls between the ages of ten and fourteen are trafficked to different parts of India from within India as well as Nepal and Bangladesh. In other countries there are smaller trafficking enterprises taking place. It is estimated that about 200,000 young girls from Nepal in India of which 45,000 are in Bombay alone. Women are often trafficked by close friends and family78. Dr. K. K. Mukhpadhyay from Delhi School of Social Work, University of Delhi, in his presentation based on surveys he conducted for the Government of India, said that young girls in India were taken away from their parents in poor backward and drought affected districts of the country for purposes of trafficking. He found in his survey that about eighty per cent of the girls who were in this profession entered it as children and due to difficult circumstances, such as poverty, illiteracy, ignorance, and deception. The increasingly consumerist society only further complicated the situation. Children are often hired out or sold by their families to agents who may or may not reveal the true nature of the work offered. The agent may promise a job as a domestic servant or factory worker at a wage many times higher than is customary in rural areas. A sum which is large in the eyes of the family, may be handed over to them, and the child is obligated to work to pay off the debt. Some young girls are deceived by young urban boys who go to villages. The boys conduct fake marriages with these girls, bring them to the cities and sell them to the brothels79. On the economic front, it must be noted that development policies and patterns of development promoting tourism, industrialization, rural to urban migration particularly of males generate a demand for commercial sex. In such a situation, the developing countries bear the brunt of the problem.
78

79

Radhika Coomaraswamy, The varied contours of violence against women in South Asia, Fifth South Asia Regional Ministerial Conference, Celebrating Beijing Plus Ten Islamabad, Pakistan, 3- 5 May 2005, P 6. (Mukhpadhyay, 1995:7) Supra Note 5.

50

Economic disparities within countries, and between countries and regions fuels the demand for trafficking from low income to high income areas. In addition, population mobility has been facilitated by globalization and liberalization as they have opened borders and relaxed controls. Such a scenario gives a spurt to tourism which leads to sex tourists from the West journeying East with the purpose of exploiting children. Goa has become one such haven for paedophiles and people indulging in child prostitution80. According to a report81, between 5,000 and 7,000 girls are trafficked, from their most deprived living environments to exploitative physical and social situations, into India from Nepal, most of them under 18. Girls as young as 13 are trafficked from Asia as mail order brides. In addition girls are trafficked to India from Bangladesh and from poorer states to more affluent ones. The popular routes are from Nepal to Indian states of Uttaranchal, Uttar Pradesh, Bihar and West Bengal, and from Bangladesh to Indian state of West Bengal. They are powerless to protest, thus at risk of violence. 2.2.12. Caste based violence Exploitation and violence based on caste are found in many parts of the world but the most talked-about community are the Dalits or so-called untouchables of India. Lower-caste women often suffer double and triple discrimination because of their caste, class and gender. These women are gang raped, forced into prostitution, stripped, paraded around naked, made to eat excrement or even murdered for no crime of theirs. The women also face discrimination through the payment of unequal wages, or work in slave-like conditions in bonded labour. They also face sexual discrimination in the workplace. In India, violence against women based on caste is manifested in high rates of sexual violence committed against Dalit women by men of

80

81

(Trade in human Misery, 1998) Ibid. Saran, Sathya, Could You Be Sold for a Song, Femina, April 1, 2002, p. 104

51

higher caste. In particularly remote villages, access to a Dalit womans body is considered the prerogative of the landlord of the village82.

2.2.13. Witch-hunts In parts of eastern India, like Jharkhand and West Bengal then people suffer from illnesses, or if there is a lack of drinking water, or if there is a death in the family, or cattle die, or if there is a crop failure, or even if there is a natural calamity, the local magic doctor is approached. He usually declares a woman or women to be witches or dayans and suggests that their elimination is necessary to be rid of the evil spirit that is causing the problems. In many cases this practice is an excuse to appropriate the property of the witch.

82

Grey, M., Dalit women and the struggle for justice, Feminist Theology, Vol. 14, No. 1 (2005), pp. 127-149.

52