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‘Hindu marriage is legal fiction’

Gender rights lawyer and writer Flavia Agnes who was down in Goa for the recent Difficult Dialogues 2018 talks about why there needs to be more focus on the Hindu marriage law, why she opposes the death penalty and how it is still a struggle to secure rights for women

Story: BHARATI | PAWASKAR | 13th February 2018, 06:29 Hrs

#TGLIFE: You are an inspiration for women to learn from you and to rise above their situations. But from where did you get all that courage?

Flavia Agnes: It was sheer matter of survival. The courage comes when you know that your survival depends on taking on challenges and that there is no other way out - it’s a matter of do or die. And since I am a survivor, I decided to do and die. It is simple logic and reasoning. And it paid off. Each small step taken in the right direction was a step forward.

TG:Following the judicial separation from your husband, you decided to do back to school. How difficult was this?

Since I was not fortunate to have degree before I got married, I had to start from scratch. Initially, I thought it would be very difficult to study and write exams. But when I started, I realised it wasn’t so. Because you are much older than other students who are taking the same exam, and you have life experience to back you, and not just bookish knowledge, it all added up while answering exams. Initially I never thought I would succeed but then I had set my goals very clearly. I wanted to be a women’s rights’ lawyer and an expert in women oriented litigation. Once the goals are clear the task becomes easier and then you just take one step at a time and go forward. I would have almost completed my PhD also, but by then I had lost faith in the system. Adding more degrees was not going to help me to change the system. I was also not interested in an academic post in a university, so I stopped and concentrated more on my writing and publishing books. That was more satisfactory. Today the books written by me, particularly my book on Gender and Law and Family Law are considered as text books in law colleges. This gives me great satisfaction.

TG:Your writings are women-centric – inspiring others to fight their battles and win. Looking back, how do you feel?

I feel a deep sense of satisfaction and feel amply rewarded. Writing is my hobby, my passion. I enjoy writing and publishing as it helps to get my views into the public domain. My flair for writing has helped me immensely in conveying my views - even if they are controversial and not populist. Today, there are so many avenues for publishing articles. Yes, it was a great struggle initially, but today since I have made a mark in my specialised area of interest, I do not have a problem in sharing my views.  

TG:You co-founded ‘Majlis’ along with Madhushree Dutta. What prompted this decision?

Started in 1991, the focus of the legal centre of Majlis has been to provide access to justice to women from marginalised sections and to spread legal awareness. Ours is an all women team of lawyers and social activists. Since the organisation began, we have reached out to more than 50,000 women in Mumbai and other districts of Maharashtra. Our main work has been on issues of violence against women both domestic violence and sexual violence. In cases of sexual violence we walk the legal journey with the victims and help them to become survivors. We also attempt to make the system more accountable to the needs of women. We have had some measure of success in this area at least in Mumbai where the police are today responding to complaints of sexual abuse by women and children in a more positive manner.

TG:You are critical of the death penalty and oppose it in all cases. Why?

Most civilised nations have abolished death penalty. Death penalty is a medieval remedy. There is a finality about death penalty. But since our legal system is not infallible, and there is a possibility that a particular decision may be wrong, once a person is killed by state action, there is no scope of rectifying the error. It is fallacy to presume death penalty acts as a deterrent. Crime is not reduced because an offense carries the stringent punishment of death penalty. Demanding death penalty is a knee jerk response from the society. It does not lead to changing societal attitudes. We have seen this happen in cases of rape and child sexual abuse. We amended the law in 2012-13 and made it more stringent. This in no way has reduced the incidents of rape and child abuse in our country.

TG:What are the differences between various marriage laws?

This would require writing an essay on personal laws with a comparative perspective. I have done it in my book Family Law which is in two volumes. It is a fallacy to presume that Hindu (marriage) law is superior to Christian or Muslim (marriage) law. It is not. In fact there are so many problems with the codified Hindu (marriage) law and Hindu (marriage) cultural practices such as dowry related violence, the forms of solemnising the Hindu marriage etc. The Hindu marriage is a legal fiction which has to be proved with photographs and rituals while the others can be proved with written documents. Though polygamy is banned, it is more prevalent among Hindus and a woman who is trapped in such a relationship is devoid of rights and dignity and is termed as a ‘mistress’. But the media only focusses on the lacunae within the Muslim law and hence the problems with Hindu law for Hindu women get swept under the carpet within the current political scenario.

TG:Has the law become more favorable towards women in India now?

We still have to struggle to secure the rights of women, but things are much easier than what they used to be. Rather than the statutory provision, what we need to focus on is legal strategies and these have to be fine-tuned as to the needs of individual women. It is a challenge. The struggle for legal rights of women has been one step forward, two steps backwards. Though on paper it does seem that women have many rights, when we actually approach the courts, we realise the struggle that is involved in securing the rights and you need lawyers who are dedicated and committed to securing the rights of women from marginalised sections.

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