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Re: [reprohealth_india] A blow for reproductive and sexual rights in India

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  • wji.delhi@hrln.org
    Dear All, Just some thoughts that I want to put down about this case. a.. First of all when we look at the case in its factual matrix, frankly, its not a bad
    Message 1 of 15 , May 3, 2007
    • 0 Attachment
      Dear All,
       
      Just some thoughts that I want to put down about this case.
      • First of all when we look at the case in its factual matrix, frankly, its not a bad judgment!! so for us it makes most sense to try and keep that part out.
      • Then why is this judgment a problem?? mainly because it has become gender neutral while laying down the law that refusal by any of the spouse to have intercourse or to have children will amount to mental cruelty. A statement like this cannot be gender neutral, because there are clear biological differences that have to be recognised by the court. It is a woman who will carry the baby and then look after the child then on. That has not been considered by the Supreme Court.
      • We must get together on this issue and take some action, but we must be clear that we are concerned about the principle that the court is laying down generally and not get into the facts of the case.
       
      Warmly,
       
      Anubha Rastogi,
      Assistant Director,
      Women's Justice Initiative,
      Human Rights Law Network,
      576, Masjid Road,
      Bhogal, Jangpura,
      New Delhi-14,
      91-11-24379855-57,
      09810527453
      ----- Original Message -----
      Sent: Sunday, April 08, 2007 10:42 AM
      Subject: Re: [reprohealth_india] A blow for reproductive and sexual rights in India

      Dear All, (especially Anubha: thank you so much for the judgement....excellent timing la!!)
       
      Have just finished reading the judgement....and before writing it up-, (also know Anubha will be doing it), just wanted to park a few things for discussion:
       
      1. Clearly the linking of mental cruelty to exercise of reproductive and sexual rights cannot be allowed....so, what should have been the factors on which the divorce could have been granted?
       
      2. If we flip the situation, (not the refusing to have a child),  refusal to have sex......(and this I have seen in marriages where often gay men have married women, and then refused to have sex) provides ground for divorce (annullment in some cases). In fact int he case of marriages between incompatibles we have gone to court on impotency (even the accusation does cause significant trauma), disclosing facts of gay behaviour or even of mental cruelty, which is often the better of all evils. So, we do not have enough ground in our act which grant us discretion or for that matter courts discretion. (which does nto take away from the fact that this judge has an agenda...but we should be prepared)
       
      3. Another issue that is related is that while we strongly stand against marital rape, as marriage is not a blanket consent for sex, and each encounter has to be negotiated...I feel we have not emphsised this enough. How it will pan itself out, vis a vis law, (except in the case of PWDV act), and how all of this is going to impact of divorce laws...
       
      There are many other issues as well, but this is to start our thinking...am being a just a bit of a devil's advocate, will send in analysis by midweek.....
       
      warmest all from KL
      tulika
        


       
      ----- Original Message ----
      From: "wji.delhi@..." <wji.delhi@...>
      To: tulika srivastava <tulikaj@...>; Mira Shiva <mirashiva@...>; reprohealth_india@yahoogroups.com; JAGORI <jagori_jagori@...>; lcoutinho@...; "Mukherjee, Vanita" <V.Mukherjee@...>; Chandrashekhar IPAS <vschandra@...>; Action India <actionindia1976@...>; indira jaising <indirajaising@...>; madhu <madhu05.m@...>; pldindia@...; Melissa Upreti <MUpreti@...>; Susan Jolly <S.Jolly@...>; niti@...
      Cc: N. B. Sarojini <sama.womenshealth@...>; Gita sen <gita@...>; Asha George <ashasara@...>; Sundari Ravindran <ravindrans@...>; Ravi Duggal <rduggal57@...>; Lawyers Collective <wri@...>; TARSHI <tarshi@...>; kavip@...
      Sent: Saturday, March 31, 2007 3:17:07 PM
      Subject: Re: [reprohealth_india] A blow for reproductive and sexual rights in India

      Dear Friends,
       
      Please find attached the full text of the case in discussion. I am going through it currently and will post me comments soon.
       
      Warmly,
       
      Anubha Rastogi,
      Law Officer,
      Women's Justice Initiative,
      Human Rights Law Network,
      576, Masjid Road,
      Bhogal, Jangpura,
      New Delhi-14,
      91-11-24379855-57,
      09810527453
      ----- Original Message -----
      Sent: Friday, March 30, 2007 8:01 PM
      Subject: Re: [reprohealth_india] A blow for reproductive and sexual rights in India

      Dear All,
      I absolutely agree that we should meet. In case we are able to find the full text, couple of us can taken on a rights critique and present it, for strategic discussion. We could also discuss ways to move a revision, (if its at that stage on it)....
       
      I also think we do need to talk about a joint strategy....so as to challenge the judgement, and ensure safeguarding of the rights...
       
      willing to do what I can....
       
      warmest
      tulika

      Mira Shiva <mirashiva@...> wrote:
      Dear Friends ,
      There are 4 recent judgements that STINK of patriachal thinking to the coe .
      This of course is one of them .
      98% sterilizations are tubectomies .
      Inflicting unwanted pregnancy is not a cruelty ,
      Forcing repeated abortions as a substitute  for Family Planning is not a cruelty .  
      Forcing Sex Determination & sex linked abortion is not cruelty
      Haressment  to produce Male child is not Mental cruelty .
      Domestic rape is not a cruelty
      Haressment for dowary continuing long after marriage is not mental cruelty ,as most women forced into arranged marriage , most of which are dowary linked will never open their mouths to keep the facade of marriage , not to bring shame to her parents , having been conditioned that she is PARAYA DHAN .She will suffer because she has been conditioned into beleiving that only her ARTHI should leave her husband's house . Literally many do committ suicide as there are NO OPTIONS . Even when the parents know their daughter is suffering they tell her to stay on & adjust . We did not need the SUPREME COURT TO SAY THE SAME .
      Case 2  Judgement on a 5year old girl being molested by an old man .Excluding rape & adding 5 year old girl has NO MODESTY to be outraged . Haryana judgement 2 years ago . I do not think many people reacted to it including me as I was not aware of it .
      Case 3 Sleeping with your 5 even if she is 15 is not a rape
      Case 4 In domestic violence act  Married woman has right to stay in her husband's house but not in her in laws house . When large number of boys stay with their parents ,implications are obvious .
      According to Mr Arwind Jain Lawyer Delhi High Court LAW stands forLAWS ( LAWLESSNESS ) AGAINST WOMEN .
      I think there is a need to collect some of these outrageous judgements  , identify the judges & then with some strategy planning deal with it as a gender , health , legal , human rights issue .
      3-4 years ago a chairperson of a STATE HUMAN RIGHTS COMMISSION who we had invited to Chair the Inaugral session on  Sex Determination issue , he said State Human Rights Commission cannot intervene in the issue since the UNBORN FOTUS had not been born & was hence not human according to some defination guiding their work . My jaw dropped with " SHOCK & AWE" . I had taken it up with Justice Verma the then Chair person with NHRC & he said this was not a correct  interpretation .
        We are seeing TRIPS interpreted by the powerful in one way & so also the very Doha Round of WTO .
      What is the content of some of these problamatic  laws & their interpretation ?.
      I rembeber learning some of the gender biases in law in Nandita Haksar's primer on this , National Human Rights Law Nettworks Manuels on Women & Law, Indira JaiSingh's book on Domestic violence .
      There is a need for an Action Planning Meeting .
      regards
      Dr Mira Shiva
       
       


      Jashodhara <jashodhara@...> wrote:
      “- Unilateral decision of refusal to have intercourse for a considerable period without there being any physical incapacity or valid reason may amount to mental cruelty - If a man underwent sterilization without medical reasons and without the consent or knowledge of his wife and similarly if a woman underwent tubectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act might lead to mental cruelty.”
      I consider the above Supreme Court Judgment a blow for the reproductive and sexual rights in India (see below for the full text). While it sounds apparently ‘gender equal’ in that it refers to both the man and the woman in making the reproductive decisions, it does not consider existing gender power relations. It basically takes away from women’s right to individually decide on whether they want sex, whether to carry a pregnancy to term or have an abortion, whether to use contraception or not. It mandates spousal consent for sterilization and abortion (as against existing norms). It is also a contradiction of the Protection of Women from Domestic Violence Act which recognizes forced and coerced sex among intimate/married partners as a type of domestic violence.
      We need to formulate a serious and substantive response to this. The understanding of Supreme Court judges on gender, reproductive rights and population issues is clearly quite low. Similar pronouncements by the Supreme Court in the matter of Javed have led to disastrous two-child norm legislation being recently proposed in Bihar (fortunately stopped because of timely civil society interventions).
      Jashodhara
       
      Jashodhara Dasgupta
      SAHAYOG
      A-240 Indira Nagar,
      Lucknow 226 016
      India
      Phone + 91-522-2310747
      Fax +91-522-2341319
       

      From: reprohealth_india@yahoogroups.com [mailto:reprohealth_india@yahoogroups.com] On Behalf Of Abhijit Das
      Sent: Thursday, March 29, 2007 3:22 PM
      To: reprohealth_india@yahoogroups.com
      Subject: [reprohealth_india] Worrisome SC ruling
       
      Dear All,
      The following news is very worrisome for the view of reproductive rights where the courts are providing opinion on personal issues.
      Two issues of concern are : the fact that the indivdual cannot get sterilisation ( tomorrow it can extend to any contraceptive) or even seek abortion without consent of the partner. The court has ignored the assymetric power relation that exists between couples, and the fact that only women can seek abortion. Also this ruling contravenes the MTP Act which lays down the grounds for seeking abortion in our country.
      Please respond...
      Abhijit
       
       
      New Supreme Court ruling on divorce
      J. Venkatesan
      "Unilateral refusal to have child will amount to mental cruelty"
      New Delhi : A unilateral decision by either the husband or wife not to have a child will amount to mental cruelty and constitute a ground for divorce, the Supreme Court has held.
      A Bench comprising Justices B.N. Agrawal, P.P. Naolekar and Dalveer Bhandari said, a "unilateral decision of refusal to have intercourse for a considerable period without there being any physical incapacity or valid reason may amount to mental cruelty."
      The Bench, while laying down what would constitute mental cruelty, granted divorce to Samar Ghosh, an IAS officer of West Bengal , who alleged that his wife Jaya Ghosh, also an IAS officer, refused to bear him a child for no fault of his. It allowed his appeal against a Calcutta High Court order, which reversed a trial court's divorce decree. The couple got married in December 1984. According to the appellant, Jaya Ghosh was a divorcee and had a girl child from her first marriage. Since the girl stayed with her, she decided not to have a child by him, and since August 1990 the couple had been living separately.
      On a petition from Mr. Ghosh, the lower court granted divorce. On appeal by the wife, the High Court reversed the order.
      Writing the judgment, Justice Bhandari said if a man underwent sterilisation without medical reasons and without the consent or knowledge of his wife and similarly if a woman underwent tubectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act might lead to mental cruelty.
      The Bench said: "The concept of mental cruelty cannot remain static; it is bound to change with the passage of time, the impact of modern culture through the print and electronic media and value system, etc." What might be mental cruelty now might not be so with the passage of time and vice versa. "There can never be any straitjacket formula in matrimonial matters."
      Mental cruelty was a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of the other for a long time might constitute mental cruelty. So would a sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable the life of the spouse, and sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
      © Copyright 2000 - 2006 The Hindu
       


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    • wji.delhi@hrln.org
      ... From: wji.delhi@hrln.org To: tulika srivastava ; Mira Shiva ; reprohealth_india@yahoogroups.com ; JAGORI ; lcoutinho@packard.org ; Mukherjee, Vanita ;
      Message 2 of 15 , May 3, 2007
      • 0 Attachment
         
        ----- Original Message -----
        Sent: Thursday, May 03, 2007 2:27 PM
        Subject: Re: [reprohealth_india] A blow for reproductive and sexual rights in India

        Dear All,
         
        Just some thoughts that I want to put down about this case.
        • First of all when we look at the case in its factual matrix, frankly, its not a bad judgment!! so for us it makes most sense to try and keep that part out.
        • Then why is this judgment a problem?? mainly because it has become gender neutral while laying down the law that refusal by any of the spouse to have intercourse or to have children will amount to mental cruelty. A statement like this cannot be gender neutral, because there are clear biological differences that have to be recognised by the court. It is a woman who will carry the baby and then look after the child then on. That has not been considered by the Supreme Court.
        • We must get together on this issue and take some action, but we must be clear that we are concerned about the principle that the court is laying down generally and not get into the facts of the case.
         
        Warmly,
         
        Anubha Rastogi,
        Assistant Director,
        Women's Justice Initiative,
        Human Rights Law Network,
        576, Masjid Road,
        Bhogal, Jangpura,
        New Delhi-14,
        91-11-24379855-57,
        09810527453
        ----- Original Message -----
        Sent: Sunday, April 08, 2007 10:42 AM
        Subject: Re: [reprohealth_india] A blow for reproductive and sexual rights in India

        Dear All, (especially Anubha: thank you so much for the judgement....excellent timing la!!)
         
        Have just finished reading the judgement....and before writing it up-, (also know Anubha will be doing it), just wanted to park a few things for discussion:
         
        1. Clearly the linking of mental cruelty to exercise of reproductive and sexual rights cannot be allowed....so, what should have been the factors on which the divorce could have been granted?
         
        2. If we flip the situation, (not the refusing to have a child),  refusal to have sex......(and this I have seen in marriages where often gay men have married women, and then refused to have sex) provides ground for divorce (annullment in some cases). In fact int he case of marriages between incompatibles we have gone to court on impotency (even the accusation does cause significant trauma), disclosing facts of gay behaviour or even of mental cruelty, which is often the better of all evils. So, we do not have enough ground in our act which grant us discretion or for that matter courts discretion. (which does nto take away from the fact that this judge has an agenda...but we should be prepared)
         
        3. Another issue that is related is that while we strongly stand against marital rape, as marriage is not a blanket consent for sex, and each encounter has to be negotiated...I feel we have not emphsised this enough. How it will pan itself out, vis a vis law, (except in the case of PWDV act), and how all of this is going to impact of divorce laws...
         
        There are many other issues as well, but this is to start our thinking...am being a just a bit of a devil's advocate, will send in analysis by midweek.....
         
        warmest all from KL
        tulika
          


         
        ----- Original Message ----
        From: "wji.delhi@..." <wji.delhi@...>
        To: tulika srivastava <tulikaj@...>; Mira Shiva <mirashiva@...>; reprohealth_india@yahoogroups.com; JAGORI <jagori_jagori@...>; lcoutinho@...; "Mukherjee, Vanita" <V.Mukherjee@...>; Chandrashekhar IPAS <vschandra@...>; Action India <actionindia1976@...>; indira jaising <indirajaising@...>; madhu <madhu05.m@...>; pldindia@...; Melissa Upreti <MUpreti@...>; Susan Jolly <S.Jolly@...>; niti@...
        Cc: N. B. Sarojini <sama.womenshealth@...>; Gita sen <gita@...>; Asha George <ashasara@...>; Sundari Ravindran <ravindrans@...>; Ravi Duggal <rduggal57@...>; Lawyers Collective <wri@...>; TARSHI <tarshi@...>; kavip@...
        Sent: Saturday, March 31, 2007 3:17:07 PM
        Subject: Re: [reprohealth_india] A blow for reproductive and sexual rights in India

        Dear Friends,
         
        Please find attached the full text of the case in discussion. I am going through it currently and will post me comments soon.
         
        Warmly,
         
        Anubha Rastogi,
        Law Officer,
        Women's Justice Initiative,
        Human Rights Law Network,
        576, Masjid Road,
        Bhogal, Jangpura,
        New Delhi-14,
        91-11-24379855-57,
        09810527453
        ----- Original Message -----
        Sent: Friday, March 30, 2007 8:01 PM
        Subject: Re: [reprohealth_india] A blow for reproductive and sexual rights in India

        Dear All,
        I absolutely agree that we should meet. In case we are able to find the full text, couple of us can taken on a rights critique and present it, for strategic discussion. We could also discuss ways to move a revision, (if its at that stage on it)....
         
        I also think we do need to talk about a joint strategy....so as to challenge the judgement, and ensure safeguarding of the rights...
         
        willing to do what I can....
         
        warmest
        tulika

        Mira Shiva <mirashiva@...> wrote:
        Dear Friends ,
        There are 4 recent judgements that STINK of patriachal thinking to the coe .
        This of course is one of them .
        98% sterilizations are tubectomies .
        Inflicting unwanted pregnancy is not a cruelty ,
        Forcing repeated abortions as a substitute  for Family Planning is not a cruelty .  
        Forcing Sex Determination & sex linked abortion is not cruelty
        Haressment  to produce Male child is not Mental cruelty .
        Domestic rape is not a cruelty
        Haressment for dowary continuing long after marriage is not mental cruelty ,as most women forced into arranged marriage , most of which are dowary linked will never open their mouths to keep the facade of marriage , not to bring shame to her parents , having been conditioned that she is PARAYA DHAN .She will suffer because she has been conditioned into beleiving that only her ARTHI should leave her husband's house . Literally many do committ suicide as there are NO OPTIONS . Even when the parents know their daughter is suffering they tell her to stay on & adjust . We did not need the SUPREME COURT TO SAY THE SAME .
        Case 2  Judgement on a 5year old girl being molested by an old man .Excluding rape & adding 5 year old girl has NO MODESTY to be outraged . Haryana judgement 2 years ago . I do not think many people reacted to it including me as I was not aware of it .
        Case 3 Sleeping with your 5 even if she is 15 is not a rape
        Case 4 In domestic violence act  Married woman has right to stay in her husband's house but not in her in laws house . When large number of boys stay with their parents ,implications are obvious .
        According to Mr Arwind Jain Lawyer Delhi High Court LAW stands forLAWS ( LAWLESSNESS ) AGAINST WOMEN .
        I think there is a need to collect some of these outrageous judgements  , identify the judges & then with some strategy planning deal with it as a gender , health , legal , human rights issue .
        3-4 years ago a chairperson of a STATE HUMAN RIGHTS COMMISSION who we had invited to Chair the Inaugral session on  Sex Determination issue , he said State Human Rights Commission cannot intervene in the issue since the UNBORN FOTUS had not been born & was hence not human according to some defination guiding their work . My jaw dropped with " SHOCK & AWE" . I had taken it up with Justice Verma the then Chair person with NHRC & he said this was not a correct  interpretation .
          We are seeing TRIPS interpreted by the powerful in one way & so also the very Doha Round of WTO .
        What is the content of some of these problamatic  laws & their interpretation ?.
        I rembeber learning some of the gender biases in law in Nandita Haksar's primer on this , National Human Rights Law Nettworks Manuels on Women & Law, Indira JaiSingh's book on Domestic violence .
        There is a need for an Action Planning Meeting .
        regards
        Dr Mira Shiva
         
         


        Jashodhara <jashodhara@...> wrote:
        “- Unilateral decision of refusal to have intercourse for a considerable period without there being any physical incapacity or valid reason may amount to mental cruelty - If a man underwent sterilization without medical reasons and without the consent or knowledge of his wife and similarly if a woman underwent tubectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act might lead to mental cruelty.”
        I consider the above Supreme Court Judgment a blow for the reproductive and sexual rights in India (see below for the full text). While it sounds apparently ‘gender equal’ in that it refers to both the man and the woman in making the reproductive decisions, it does not consider existing gender power relations. It basically takes away from women’s right to individually decide on whether they want sex, whether to carry a pregnancy to term or have an abortion, whether to use contraception or not. It mandates spousal consent for sterilization and abortion (as against existing norms). It is also a contradiction of the Protection of Women from Domestic Violence Act which recognizes forced and coerced sex among intimate/married partners as a type of domestic violence.
        We need to formulate a serious and substantive response to this. The understanding of Supreme Court judges on gender, reproductive rights and population issues is clearly quite low. Similar pronouncements by the Supreme Court in the matter of Javed have led to disastrous two-child norm legislation being recently proposed in Bihar (fortunately stopped because of timely civil society interventions).
        Jashodhara
         
        Jashodhara Dasgupta
        SAHAYOG
        A-240 Indira Nagar,
        Lucknow 226 016
        India
        Phone + 91-522-2310747
        Fax +91-522-2341319
         

        From: reprohealth_india@yahoogroups.com [mailto:reprohealth_india@yahoogroups.com] On Behalf Of Abhijit Das
        Sent: Thursday, March 29, 2007 3:22 PM
        To: reprohealth_india@yahoogroups.com
        Subject: [reprohealth_india] Worrisome SC ruling
         
        Dear All,
        The following news is very worrisome for the view of reproductive rights where the courts are providing opinion on personal issues.
        Two issues of concern are : the fact that the indivdual cannot get sterilisation ( tomorrow it can extend to any contraceptive) or even seek abortion without consent of the partner. The court has ignored the assymetric power relation that exists between couples, and the fact that only women can seek abortion. Also this ruling contravenes the MTP Act which lays down the grounds for seeking abortion in our country.
        Please respond...
        Abhijit
         
         
        New Supreme Court ruling on divorce
        J. Venkatesan
        "Unilateral refusal to have child will amount to mental cruelty"
        New Delhi : A unilateral decision by either the husband or wife not to have a child will amount to mental cruelty and constitute a ground for divorce, the Supreme Court has held.
        A Bench comprising Justices B.N. Agrawal, P.P. Naolekar and Dalveer Bhandari said, a "unilateral decision of refusal to have intercourse for a considerable period without there being any physical incapacity or valid reason may amount to mental cruelty."
        The Bench, while laying down what would constitute mental cruelty, granted divorce to Samar Ghosh, an IAS officer of West Bengal , who alleged that his wife Jaya Ghosh, also an IAS officer, refused to bear him a child for no fault of his. It allowed his appeal against a Calcutta High Court order, which reversed a trial court's divorce decree. The couple got married in December 1984. According to the appellant, Jaya Ghosh was a divorcee and had a girl child from her first marriage. Since the girl stayed with her, she decided not to have a child by him, and since August 1990 the couple had been living separately.
        On a petition from Mr. Ghosh, the lower court granted divorce. On appeal by the wife, the High Court reversed the order.
        Writing the judgment, Justice Bhandari said if a man underwent sterilisation without medical reasons and without the consent or knowledge of his wife and similarly if a woman underwent tubectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act might lead to mental cruelty.
        The Bench said: "The concept of mental cruelty cannot remain static; it is bound to change with the passage of time, the impact of modern culture through the print and electronic media and value system, etc." What might be mental cruelty now might not be so with the passage of time and vice versa. "There can never be any straitjacket formula in matrimonial matters."
        Mental cruelty was a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of the other for a long time might constitute mental cruelty. So would a sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable the life of the spouse, and sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
        © Copyright 2000 - 2006 The Hindu
         


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        Get your game face on with the latest PS3 news and previews at Yahoo! Games.


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