“A 30-year-old man should marry a charming girl of 12 years or any girl of 8 years – sooner, if his fulfilling the Law would suffer.” – Translated text from the Manusmriti
It was once normal for girls to marry at the age of 14-15, and deliver a child before they turned 17, said a judge of the Gujarat High Court while deciding on a plea for permission to terminate her pregnancy submitted by a minor rape survivor. On June 7, while indicating that he might not allow the petition if both the girl and foetus were healthy, Justice Samir Dave of the high court also referred to the Manusmriti during the hearing and recommended that the petitioner read it, and ask her mother/grandparents about their time. It is pertinent to note that the petitioner here is a rape survivor, who is 16 years and 11 months old and carrying a seven-month-old foetus.
The said plea had been moved by the petitioner’s father to seek permission from the High Court for aborting the pregnancy of the petitioner as it had crossed the 24-week threshold up to which abortion can be performed without a court’s leave.
On Wednesday morning, the lawyer representing the petitioner had sought an early hearing, saying the family was concerned because of the girl’s tender age. Responding to this, Justice Dave said there was anxiety because “we are living in the 21st century”.
“Because we are living in the 21st century, ask your mother or great-grandmother, 14-15 was the maximum age (for getting married). The child used to take birth before the age of 17. Girls get matured before boys. 4-5 months here and there doesn’t make a difference. You will not read it, but do read Manusmruti once for this” he added.
In response to this, counsel for the Minor’s father/Petitioner, said that under the Muslim Law, the age is 13 years, as reported by LiveLaw. The relevance behind this whole discussion, and recommending Manusmriti to a rape survivor, was not clear.
Later, as the expected date of delivery is August 16, the judge then consulted expert doctors in his chamber and informed the lawyer that “The court can consider (allowing abortion) if any serious ailments are found in the foetus or the girl. But if both are normal, it will be very difficult for the court to pass such an order,” as reported by the New India Express.
In the end, considering the facts and circumstances of the case, the court directed the Medical Superintendent of Rajkot Civil Hospital to get the girl examined by a panel of doctors to find out if the medical termination of pregnancy was advisable at this point. The doctors have also been direction to carry out an ossification test on the girl and a psychiatrist should ascertain her mental condition, Justice Dave said, asking the hospital to submit reports by June 15, the next date of hearing.
During the hearing, the judge also advised the girl’s lawyer to start looking for options in case the medical opinion went against the termination of the pregnancy. “I will not give permission if both are found healthy. The weight of the foetus is also good… What will you do if the girl gives birth and the child lives? Who will take care of that child? I will also inquire if there are government schemes for such children. You should also check if someone can adopt that child,” said the judge, as reported by the New Indian Express.
The order can be read here.
Manusmriti in court- anti-thesis to women empowerment
“As per Hindu Dharma, all women are created by God as prostitutes. They are prostitutes as per Hindu Dharma…Manu Dharma. The status of all women is less than that of a man.”
According to some scholars, Manusmriti was established by the 5th Century C.E, but regardless of the time of its first appearance, Manusmriti has remained colossally influential in determining the oppressive and patriarchal structure and the function of Indian society. Manusmriti, a book often revered by the right-winger Sanghis, is a book that has been single-handedly responsible for the derogatory position accorded to women and the people from the non-dominant caste since the post-Vedic period. It is through this book that a Brahminical patriarchal structure has been maintained in our country, establishing Brahmins as the highest authority deserving all the societal privileges.
It is this Manusmriti that says, “It is the very nature of women to corrupt men here on earth; for that reason, and circumspect men do not get careless and wanton among wanton women.” This book defines a woman’s social status, both in her current birth and beyond, as being dependent on the exact and proficient performance of home activities and duties towards her husband. While Manu was not the first to think of women as sexual tempters, corrupters, or portals to hell, it was through his book that such disgusting and derogatory anti-women were promoted and established. The castigation and condemnation of women has been underlined by depicting the woman as a dependent and loathsome creature in need of constant protection and supervision – initially by the father or brother, and later by the husband and son. Manusmriti has overtly advocated child marriage and dowry in addition to the disparaging image of women and the demonization of persons, particularly women, from non-dominant castes.
Aside from the dependent status bestowed to women, this is a text that advocates the most severe punishments for any violation of the caste order, and it is a text that is reflected in practice when women and men are killed for marrying across caste lines, entering institutes of higher education, or contesting elections.
Are we going forward or backward?
Dr. Ambedkar had burnt the Manusmriti in December 1927 at the Mahad Satyagraha in the presence of thousands of women and men, when he was only 36 years old. And yet, a judge of the High Court had, in a court of law, promoted the reading of Manusmriti to educate a girl child on how she should be aware of the duties of child bearing that her mother and grandmother had played at their own times. The Manusmriti says that women should concentrate on the tasks they are good at, i.e., bearing and rearing the progeny, and Justice Samir Dave had basically recommended a rape survivor, approaching the court for abortion, to learn from it.
Only a few days ago, the Supreme Court had intervened in an order of the Allahabad High Court seeking confirmation of the ‘Manglik’ status of a woman who had accused her partner of making a false promise of marriage. On June 3, 2023, the Supreme Court of India put a stay on Allahabad High Court’s order to confirm the ‘Manglik’ status of a rape survivor. On May 23, 2023, a single-judge bench of the Allahabad HC was hearing a bail petition filed by the accused. The accused said he backed out of the promise after learning that the girl was not ‘Manglik’. The High Court had then asked the astrology department of Lucknow University to look into the horoscope of the woman to verify the claim of the man she accused of having a relationship on the false promise of marriage.
In view of these two recent judgment, it seems like the judiciary is not far or isolated from the structure or patriarchy existing in our society. There is a need for the judiciary to recognising society’s deep-rooted patriarchy, and their contribution in it, and initiate a course correction in the way the judiciary itself views gender rights. It is essential that this course correction is not only limited to the Supreme Court, but also reaches the high courts and the district courts, that the common person approaches to seek justice. Many a times, the judges of the courts of India, have reiterated the misogyny, besides carelessly making statements that are anti-women to its core. Women are battling society’s ingrained prejudices, and even accessing courts for seeking justice in cases of crimes committed against their bodies is a fight big enough, without having the judges supporting gender stereotyping and promoting books like Manusmriti.
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