At the time of India-Pakistan partition, both the newly formed States were yearning for legitimacy and the moral support from its citizens. Trapped between the clashing egos of these countries, abducted women of different communities) became the biggest sufferers.
Three weeks after India and Pakistan achieved their independence as separate states, representatives of both dominions met on September 3, 1947, and agreed that steps should be taken to ‘recover’ and ‘restore’ abducted persons. Both sides pronounced themselves against the recognition of forced marriages.
The partition of the sub-continent was an immensely harrowing tragedy for people on both sides of the border. During this process, thousands of women were abducted, sexually violated, raped, and in many cases married to their abductors. This fact did not go down easy down the throat of the patriarchal leaders of the States. Therefore, in a bid to regain some of their legitimacy lost during the loss of life and dignity during partition, India and Pakistan entered into an agreement to mutually ‘restore’ their daughters to their home countries. The Hindu and Sikh women and girls from Pakistan and their Muslim counterparts in India, would be literally exchanged.
The approach taken led to, on the Indian side the ‘Abducted Persons (Recovery and Restoration) Act, 1949’ that was passed by the Indian Government. The act would treat all mixed marital unions between Hindus and Muslims as forced unions in which abducted women were married off against their wishes. A method was prescribed for the rescue of such women and their subsequent restoration to their homes in India or Pakistan. The aim was to locate all the “abducted persons” in the territory of India, and detain them in temporary camps. For this, police officers designated by the government were empowered to locate and capture such persons which he believed or had the suspicion, were abducted. No warrant was required and complete immunity was offered by the law, to such officers in searching premises, conducting inquiries and detaining such persons. The job was assigned to the local police, assisted by one AIG, two DSPS, 5 inspectors, 10 SIs, 6 ASIS and social workers.
Under the act, “abducted person” meant a male child under the age of sixteen years or a female of whatever age who is, or immediately before the day, March 1, 1947, was, a Muslim and who, on or after that day and before the day, January 1, 1949, has become separated from his or her family and is found to be living with or under the control of any other individual or family, and in the latter case included a child born to any such female after the said date.
In their article “An exchange of Women”, Scholars Ritu Menon and Kamla Bhasin discuss that tracing such women was a near impossible task, and to accomplish it, Ads were placed in papers, giving details of missing women. These were then taken up by social workers on both sides of the border in Punjab, and verifications made. Social workers used all sorts of ruses to find out where the abducted women were, sometimes disguising themselves as bangle-sellers, or fruit-vendors. No captor was willing to give up his claims: they heard that women were spirited away, hidden in tandoors, disguised as sisters and mothers–but never voluntarily given up. One liaison officer, who worked in Lyallpur for nine months before formal treaties were drawn up by India and Pakistan, told them: “I would slap the women and tell them I’d shoot them if they didn’t tell me whether there was a Hindu woman in the neighbourhood. They would tell me because they were helpless their men were not around at the time.” He claimed to have ‘recovered’ 800-900 women from Lyallpur alone this way.
These arrangements not only denied women any agency in determining where they chose to live, or who they chose to marry, but also ignored the contingent nature of individual predicaments and the diverse and complex tapestries of human relationships. Thus, there were cases where women had married their “abductors,” had children, and preferred to live with these men instead of being sent back to their families. There were Hindu families who were reluctant to accept women who had had ‘sex with’, or ‘been impregnated’ or worse still had children by, men of the other religion. Chastity and purity were considerations that surfaced frequently, so pregnant women were more likely to be shunned, while women who had children would be taken back only on condition that they gave up these children of mixed unions to orphanages. Older women were vulnerable in other ways. If they owned property, younger men would force these women to “adopt” them, in order to inherit their property. (Niraj-Gopal-Jayal, ‘Citizenship and its Discontents’)
The paradigm of the “recovery” and “restoration” of women was a form of biological citizenship, as it entailed not only determining the religion (at birth) of a woman, almost as if it were a biological characteristic, but also her biological status as a woman whose body had been violated, impregnated, or otherwise defiled by union with a male of another religious community.
Women’s citizenship was thus produced by three concentric circles: first, the citizenship of her father or husband, second, religious identity, and—on the basis of both of these—her imputed national identity. This mapping of religious diﬀerence onto citizenship of the nation meant that not only could abducted women not choose their citizenship, as men theoretically could, the assumption was that India was the natural home for Hindu and Sikh women, while Muslim women were naturally Pakistani.
By the time the Abducted Persons Act was repealed in 1957, approximately 20,000 women had been so “recovered” and “restored” to the biological citizenship of their respective “natural” nations.
The above analyses leads to a number of observations. First, the aspect of the State claiming a ‘lien’ over these women in a patriarchal backdrop. This is in a way, an imposition of nationality and by itself, an act of claiming dominion over these women, regardless of their preference or choice. The State in this case became an abductor itself. Comparing this, to the situation of various migrants or refugee groups which ‘seek’ and beg the State for inclusion and citizenship, asserting their nationality and belonging towards it, and yet are denied the privilege of citizenship.
Secondly, the aspect of a ‘natural citizen’ is expanded and includes into its folds the ‘natural’ characteristics of persons which become the deal makers (or breakers) when it comes to deciding their citizenship. In this case, even though India had proclaimed itself to be secular, it was deemed natural that the Hindu and Sikh women were to belong to India and the Muslim women were to be sent to Pakistan. This kind of an approach blatantly violates secularism as well as logic. The ties to the ‘nation’ were deemed as stronger and superior even to the marital ties and individual agency in hierarchy of the various markers of citizenship an individual possesses.
Thirdly, there is an important provision in the Abducted Persons Act – the provision which decides that the children out of these marriages should be considered as citizens of the country their mother has been held a citizen of.
The Constituent Assembly discussed the following question: If only one parent was entitled in these cases to transmit filiation as a basis for establishing citizenship, was the relationship with the mother or with the father to be considered relevant for creating the necessary credentials for citizenship?
It was argued by Shrimati Durgabai in the Constituent Assembly, that it was not the joint labour of the man and the woman but the plunder by men of women’s bodies that had created these children. Hence, ‘‘What right has the abductor to keep the child? The child has to go with the mother.’’
This is in itself a new paradigm approach. Consider the question of the legality of the children born to the union of an illegal immigrant and a citizen. As per the India’s Citizenship Act, such a child is not to be given citizenship regardless of which of the parent is a citizen, and the fact that the child was born in India. It proves thus, that a marker of citizenship is not the alleged illegality of one of the parents, but the colour in which the State looks at the child thus born, based on the ‘natural’ characteristic of that child which may or may not be sufficient in establishing the child’s claim over citizenship. A child which is more ‘Indian’ is thus one which pleases the political State’s agenda. This kind of an approach is necessarily a departure from the Jus Soli approach and an embracing of a Jus Sanguinis approach, which itself suffers from moral defects and arbitrariness as a preeminent marker of citizenship.