Child Sexual Abuse by Fathers in India: Exploring the Layers of ‘Honour’ in Trials

ABSTRACT

Feminist scholarship has devoted significant time and space to critiquing court judgments that make patriarchal-normative assumptions about consent, resistance to sex, ‘provocation’ of dress, habituation to sex, etc. in rape cases. Hence, this paper asks whether rape and sexual abuse trials would be devoid of patriarchy were it not for these routinely repeated patriarchal-normative scripts. It does this by looking at cases where allegations of consent to sex, blame for initiating sex, previous sexual encounter, clothing, and so on are not raised. To that end, this paper looks at Indian trial court judgments of child sexual abuse in which the child is a female and the accused is her father/step-father (CSAF). Judgments on CSAF, nevertheless, raise questions about sexual history, what establishes credibility, character, hostility, easy acquittal, etc. However, it would be reductive to view these questions as a simple reiteration of what emerges in most other rape cases. This is because what most significantly unfolds in CSAF cases are points of divergence from other cases of child sexual abuse and sexual abuse generally. These divergences lead to new questions: Whose sexual history is raked up? Whose character is assessed? How is rape disbelieved when consent becomes immaterial? What peculiarities lead to an acquittal? These divergences appear because the survivor of sexual abuse in all these cases was not simply a female, but a daughter. Interpreting these divergences, this paper articulates that concerns of ‘honour’ run through the process of legal adjudication in CSAF cases. The honour concerned is not only of the child who suffers abuse, but also her mother’s; the honour concerned is not only a person’s, but also the nation’s.

Acknowledgements

This essay was conceptualised as a part of two courses – ‘Law of Evidence’ by Kunal Ambasta (2019) and ‘Laws Related to Child Sexual Abuse’ by Swagata Raha, Kushi Kushalappa & Suja Sukumaran (2020) – offered at National Law School, Bangalore. I am particularly grateful to Ayushi Agarwal, Preeti Dash, Jahnu Bharadwaj, Amal Sethi, Atharv Gupta, Ashi Mehta, Parvathy Suresh and Kalyani Sreekumar for their insights on earlier drafts. The two anonymous peer reviewers and AFLJ editors have helped immensely in shaping this paper into what it is now.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Notes

1 Mahmood Farooqui v State (Govt of NCT of Delhi) 2018 Cri LJ 3457.

2 Tukaram & Another v State of Maharashtra (1979) 2 SCC 143.

3 Express News Service, ‘“You Wore Sexually Provocative Dress”: Kerala Court’s Remark on Attire of Harassment Case Plainant’ (The New Indian Express, 17 August 2022) <www.newindianexpress.com/states/kerala/2022/aug/17/you-wore-sexually-provocative-dress-kerala-courts-remark-on-attire-of-harassment-case-plainant-2488400.html> accessed 2 September 2023.

4 Rakesh B v State of Karnataka 2020 SCC OnLine Kar 844.

5 For a discussion of such cases, see Debolina Dutta and Oishik Sircar, ‘India’s Winter of Discontent: Some Feminist Dilemmas in the Wake of a Rape’ (2013) 39 (1) Feminist Studies 293.

6 Shraddha Chaudhary, ‘“Love”, Consent and the POCSO’ in VS Elizabeth (ed), Implementation of the POCSO Act, 2012 by Special Courts: Challenges and Issues (Centre for Child and the Law, National Law School of India University 2018) 125.

7 For a detailed discussion, see VS Elizabeth (ed), Implementation of the POCSO Act, 2012 by Special Courts: Challenges and Issues (Centre for Child and the Law, National Law School of India University 2018).

8 The reason for confining the scope of the paper to a female child has been explained in Part 3.

9 Nivedita Menon, ‘Embodying the Self: Feminism, Sexual Violence and the Law’ in Partha Chatterjee and Pradeep Jaganathan (eds), Subaltern Studies XI: Community, Gender and Violence (Permanent Black 2000) 68.

10 Arun Sagar, ‘Law, Honour, Violence: The Supreme Court’s Legal and Non-legal Voice’ (2018) 2(2) Indian Law Review 119, 120.

11 ibid.

12 Sara Ahmed, Living a Feminist Life (Duke University Press 2017) 27.

13 Leigh Gilmore, Tainted Witness: Why We Doubt What Women Say About Their Lives (Columbia University Press 2017) 1–3.

14 The hierarchy of courts in India is as follows: At the lowest rung you have trial courts, which come under what is known as the district judiciary. Appeals from trial courts go to High Courts, which is the highest court in any state in India. At the top in this hierarchy, and above High Courts, is the Indian Supreme Court.

15 Anuj Bhuwania, Courting the People: Public Interest Litigation in Post-Emergency India (Cambridge University Press 2017) 14.

16 ibid 4.

17 Bhuwania borrows this term from Jerome Frank. See Bhuwania (n 15) 4, 14.

18 For an account of how the publicised nature of a case influences its adjudication, see Pratiksha Baxi, ‘“Carceral Feminism” as Judicial Bias: The Discontents around State v. Mahmod Farooqui’ (2016) 3 Interdisciplinary Law (CSD Hyderabad) 1.

19 For instance, see Mrinal Satish, Discretion, Discrimination and the Rule of Law Reforming Rape Sentencing in India (Cambridge University Press 2017); Kalpana Kannabiran and Vasanth Kannabiran, De-Eroticizing Assault: Essays on Modesty, Honour and Power (Stree 2002).

20 Pratiksha Baxi, Public Secrets of Law: Rape Trials in India (Oxford University Press 2014); Preeti Pratishruti Dash, ‘Rape Adjudication in India in the Aftermath of Criminal Law Amendment Act, 2013: Findings from Trial Courts of Delhi’ (2020) 4(2) Indian Law Review 244; Neetika Vishwanath, ‘The Shifting Shape of the Rape Discourse’ (2018) 25(1) Indian Journal of Gender Studies 1.

21 Luisa Teresa Hedler Ferreira and Maj Grasten, ‘Law’s Lolita Paradox: Translating “Childhood” in Statutory Rape Jurisprudence’ (2022) 47(2) Australian Feminist Law Journal 229.

22 See Malcolm M Feeley, The Process is the Punishment: Handling Cases in a Lower Criminal Court (Russell Sage Foundation 1979).

23 Dash (n 20).

24 Michael Richardson and Kyla Allison, ‘Affect and the Unsaid: Silences, Impasses, and Testimonies to Trauma’ in Amy Jo Murray and Kevin Durrheim (eds), Qualitative Studies on Silence: The Unsaid as Social Action (Cambridge University Press 2019) 237.

25 ibid.

26 Ahmed (n 12) 27.

27 Foster C Johnson, ‘Judicial Magic: The Use of Dicta as Equitable Remedy’ (2011) 46(4) University of San Francisco Law Review 883, 898.

28 ibid.

29 Protection of Children from Sexual Offences Act 2012, s 28. The Section reads: ‘28 Designation of Special Courts- (1) For the purposes of providing a speedy trial, the State Government shall in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, designate for each district, a Court of Session to be a Special Court to try the offences under the Act’.

30 VS Elizabeth, ‘Introduction’ in VS Elizabeth (ed), Implementation of the POCSO Act, 2012 by Special Courts: Challenges and Issues (Centre for Child and the Law, National Law School of India University 2018) xv. Centre for Child and the Law, National Law School of India University, Bangalore, Study on the Working of Special Courts Under the POCSO Act, 2012 in Delhi (2017) (‘CCL-NLSIU Delhi'); Centre for Child and the Law, National Law School of India University, Bangalore, Study on the Working of Special Courts Under the POCSO Act, 2012 in Maharashtra (2017) (‘CCL-NLSIU Maharashtra’); Centre for Child and the Law, National Law School of India University, Bangalore, Study on the Working of Special Courts Under the POCSO Act, 2012 in Andhra Pradesh (2017) (‘CCL-NLSIU Andhra Pradesh'); Centre for Child and the Law, National Law School of India University, Bangalore, Study on the Working of Special Courts Under the POCSO Act, 2012 in Assam (2017) (‘CCL-NLSIU Assam’); Centre for Child and the Law, National Law School of India University, Bangalore, Study on the Working of Special Courts Under the POCSO Act, 2012 in Karnataka (2017) (‘CCL-NLSIU Karnataka’).

31 Aditya Rajan, Apoorva, Sandeep Bhupatiraj, Shareen Joshi and Daniel L. Chen, A Decade of POCSO (VIDHI Centre for Legal Policy, November 2022) v.

32 E-courts Mission Mode Project <https://districts.ecourts.gov.in/> accessed 3 September 2023.

33 This is the approach followed by Preeti Pratishruti Dash in her paper. See Dash (n 20).

34 Baxi, ‘“Carceral Feminism” as Judicial Bias’ (n 18) 4.

35 Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge 1999) 6.

36 Suruchi Thapar writes that anti-colonial activism in India projected the figure of the ‘woman’ as a sign for the nation, the category of ‘woman’ itself was to be neither homogenous nor uniform. Mainstream nationalism sought to create a dichotomy between ‘respectable’ and ‘unrespectable’ female sexuality, whereby the emergence of the respectable ‘new woman’ was possible only when dalit women were relegated to realm of the unrespectable and immodest. See Suruchi Thapar, ‘Women as Activists; Women as Symbols: A Study of the Indian Nationalist Movement’ (1993) 44 Feminism Review 81, 88.

37 Ratna Kapur argues that upper-caste Hindu nationalism in the Indian context had took deep roots when it began to articulate a ‘virile, heteronormative, powerful masculinity focused on protecting the nation and its women.’ [413] This articulation was pitted not only against the coloniser but also against the Muslim man. In the present times, this manifests as the widespread belief that ‘ … the Muslim community’s opposition to a civil code – distilled as a deep suspicion of its anti-Muslim and majoritarian moorings – is interpreted as an opposition to women’s equality.’ [413]. Ratna Kapur, ‘Gender and the “Faith” in Law: Equality, Secularism, and the Rise of the Hindu Nation’ (2020) 35(3) Journal of Law and Religion 407.

38 I have demonstrated elsewhere that Hindu anti-colonial nationalism endeavoured to enclose female sexuality only within the institution of heterosexual marriage because the maintenance of heteronormative sexuality was merged with the idea of nationhood: Arti Gupta, ‘The Unhappy Marriage of “Queerness” and “Culture”: The Present Implications of Fixating on the Past’ (2022) 48(2) Australian Feminist Law Journal 221.

39 Dutta and Sircar (n 5) 298–99.

40 See Thapar (n 36), Kapur (n 37) and Gupta (n 38).

41 Gayatri Spivak, ‘Can the Subaltern Speak?’ in Lawrence Grossberg and Cary Nelson (eds), Marxism and the Interpretation of Culture (University of Illinois Press 1988) 217.

42 Uma Chakravarti, ‘Whatever Happened to the Vedic Dasi?’ in Kumkum Sangari and Sudesh Vaid (eds), Recasting Women: Essays in Colonial History (Kali for Women 1989) 27.

43 Himani Bannerji, ‘Attired in Virtue: The Discourse on Shame (lajja) and Clothing of the Bhadramahila in Colonial Bengal’ in Bharati Ray (ed), From the Seams of History: Essays on Indian Women (Oxford University Press 1995) 68.

44 Indrani Chatterjee, ‘The Bengali Bhadramahila – Forms of Organisation in the Early Twentieth Century’ (1988) 45 Manushi 26.

45 Jasbir K Puar, ‘“I Would Rather be a Cyborg Than a Goddess”: Becoming-Intersectional in Assemblage Theory’ (2012) 2(1) philoSOPHIA 49, 55.

46 Bannerji (n 43) 76–78.

47 Thapar (n 36) 88.

48 Sherry B Ortner, ‘The Virgin and the State’ (1978) 4(3) Feminist Studies 19, 26.

49 Nivedita Menon, Seeing Like a Feminist (Penguin Books 2012) 96.

50 Sumit Sarkar, Beyond Nationalist Frames: Postmodernism, Hindu Fundamentalism, History (Indiana University Press 2002) 120.

51 See Kumkum Sangari and Sudesh Vaid (eds), Recasting Women: Essays in Colonial History (Kali for Women 1989).

52 Bannerji (n 43) 68.

53 Durba Mitra, Indian Sex Life: Sexuality and the Colonial Origins of Modern Social Thought (Princeton University Press 2020) 2.

54 Ratna Kapur, ‘Too Hot to Handle: The Cultural Politics of Fire’ (2000) 64(1) Feminist Review 53, 54–55.

55 Janaki Nair, ‘“Imperial Reason”, National Honour and New Patriarchal Compacts in Early Twentieth-Century India’ (2008) 66(1, Autumn) History Workshop 208, 217–18.

56 ibid 222.

57 Uma Chakravarti, Gendering Caste: Through a Feminist Lens (Sage 2018) 83.

58 Sharmila Rege, ‘Brahmanical Nature of Violence Against Women’ in Sunaina Arya and Aakash Singh Rathore (eds), Dalit Feminist Theory: A Reader (Routledge 2020) 111.

59 See Himani Bannerji, Shahrzad Mojab and Judith Whitehead (eds), Of Property and Propriety: The Role of Gender and Class in Imperialism and Nationalism (University of Toronto Press 2001).

60 Amy Bhatt, Madhavi Murthy and Priti Ramamurthy, ‘Hegemonic Developments: The New Indian Middle Class, Gendered Subalterns, and Diasporic Returnees in the Event of Neoliberalism’ (2010) 36 Signs: Journal of Women in Culture and Society 127.

61 ibid 128.

62 ibid 129.

63 Leela Fernandes, ‘Nationalizing “the Global”: Media Images, Cultural Politics and the Middle Class in India’ (2000) 22(5) Media, Culture & Society 611, 623.

64 Bhatt, Murthy and Ramamurthy (n 60) 130.

65 ibid 148 (emphasis supplied).

66 Inderpal Grewal, ‘Outsourcing Patriarchy’ (2013) 15(1) International Feminist Journal of Politics 1, 10.

67 Vrushali Patil and Bandana Purkayastha, ‘Sexual Violence, Race and Media (In)Visibility: Intersectional Complexities in a Transnational Frame’ (2015) 5 Societies 598, 610.

68 Grewal (n 66) 12.

69 Leela Fernandes, India’s New Middle Class: Democratic Politics in an Era of Economic Reform (University of Minnesota Press 2006) 59.

70 ibid 61.

71 Michelle Murphy, The Economization of Life (Duke University Press 2017) 114–15.

72 Kalpana Kannabiran, ‘A Ravished Justice: Half a Century of Judicial Discourse on Rape’ in Kalpana Kannabiran and Vasanth Kannabiran (eds), De-Eroticizing Assault: Essays on Modesty, Honour and Power (Stree 2002) 144.

73 Phul Singh v State of Haryana AIR 1980 SC 249 (emphasis supplied).

74 Sagar (n 10) 131.

75 Sujit Kumar & Others v State of UP & Others 2002 (45) ACC 79 (emphasis supplied).

76 Pratiksha Baxi, Shirin M Rai and Shaheen Sardar Ali, ‘Legacies of Common Law: “Crimes of Honour” in India and Pakistan’ (2007) 27(7) Third World Quarterly 1239, 1249.

77 Kalpana Kannabiran, ‘Sexual Assault and the Law’ in Kalpana Kannabiran and Ranbir Singh (eds), Challenging The Rule(s) of Law: Colonialism, Criminology and Human Rights in India (Sage 2008) 78–80.

78 Kannabiran, ‘A Ravished Justice’ (n 72) 144.

79 Pratap Bhanu Mehta, ‘The Indian Supreme Court and the Art of Democratic Positioning’ in Mark Tushnet and Madhav Khosla (eds), Unstable Constitutionalism: Law and Politics in South Asia (Cambridge University Press 2015) 238.

80 Another instance of how the ‘nation’ comes into picture can be seen in the case of Shafin Jahan v Asokan KM AIR 2018 SC 1933. In this, the Supreme Court of India directed the NIA, the national counterterrorism agency, to inquire into something as private as a marriage between two individuals belonging to different religions.

81 State v Avinash Gupta Spl Case No 135/13 (Delhi) (emphasis supplied).

82 See generally Elizabeth Bernstein, ‘Carceral Politics as Gender Justice? The “Traffic in Women” and Neoliberal Circuits of Crime, Sex, and Rights’ (2012) 41 Theory and Society 233, 244–50.

83 State of Tamil Nadu v Suresh & Another AIR 1998 SC 1044.

84 Kannabiran, ‘Sexual Assault and the Law’ (n 77) 93.

85 Gilmore (n 13) 2.

86 Ferreira and Grasten (n 21) 245 (emphasis supplied).

87 Isabel Grant and Janine Benedet, ‘The “Statutory Rape” Myth: A Case Law Study of Sexual Assaults against Adolescent Girls (2019) 31(2) Canadian Journal of Women and the Law 266, 274.

88 Protection of Children from Sexual Offences Act 2012, s 33(6).

89 Indian Evidence Act 1872, s 146 (emphasis supplied).

90 Saumya Maheshwari, ‘The Language of Evidence in Rape Trials’ (2014) 10 Socio-Legal Review 1, 9.

91 State of Maharashtra v Ramkishor Pannalal Sharma Spl (Child) Sessions Case 84/2013 (Pune).

92 ibid 8 (emphasis supplied).

93 State of Maharashtra v Azad Ramji Mishra Spl (POCSO) Case No 146/2014 (Thane).

94 Satish (n 19) 203.

95 Preeti Jacob and Kavita Jangam, ‘Appreciating Children’s Testimonies’ in VS Elizabeth (ed), Implementation of the POCSO Act, 2012 by Special Courts: Challenges and Issues (Centre for Child and the Law, National Law School of India University 2018) 122–23; Kushi Kushalappa and Suja Sukumaran, ‘Support Gaps and Linkage Between the Criminal Justice and Child Protection Systems’ in VS Elizabeth (ed), Implementation of the POCSO Act, 2012 by Special Courts: Challenges and Issues (Centre for Child and the Law, National Law School of India University 2018) 177–90.

96 Baxi, Public Secrets of Law (n 20) 139.

97 ibid 117.

98 Durba Mitra and Mrinal Satish, ‘Testing Chastity, Evidencing Rape’ (2014) 49(41) Economic & Political Weekly 52.

99 Gilmore (n 13) 2.

100 Nancy Whittier, The Politics of Child Sexual Abuse: Emotion, Social Movements, and the State (Oxford University Press 2009) 24.

101 ibid.

102 For an analysis of how sexual history of the mother can be made relevant, see Gaurav Bhawnani, ‘The Mother’s “Character” on Trial in Child Sexual Abuse Cases’ (2020) 6(2) Indian Law Review 189.

103 ibid.

104 ibid 196.

105 ibid 197.

106 State of Maharashtra v Krushna Spl Sessions Case No 269/2015 (Pune).

107 ibid 4 (emphasis supplied).

108 Baxi, Public Secrets of Law (n 20) 128.

109 ibid.

110 Ramkishor (n 91) 8.

111 State of Assam v Jibon Arandhara Spl (POCSO) Case No 11 of 2014 (Assam) 6 (emphasis supplied).

112 State of Maharashtra v Samji Isarya Gavit Sessions Case No 16/2015 (Nandurbar). The Sessions Court observed: ‘Apart from it, delay in lodging the complaint in the cases like this is inconsequential as no daughter would like to rush to the police station immediately to lodge complaint against her own father alleging sexual intercourse by him unless that stage is reached’.

113 Tamara Shefer and Sally R Munt, ‘A Feminist Politics of Shame: Shame and Its Contested Possibilities’ 29(2) (2019) Feminism & Psychology 145, 147.

114 Kaare Torgny Pettersen, ‘Sexual Abuse Within the Family: A Study of Shame From Sexual Abuse in the Context of a Norwegian Incest Center’ (2013) 22(6) Journal of Child Sexual Abuse 667, 686–87.

115 ibid 680.

116 ibid 680.

117 Cynthia A Solin, ‘Displacement of Affect in Families Following Incest Disclosure’ (1986) 56(4) American Journal of Orthopsychiatry 570, 572.

118 ibid.

119 Urmila Pullat, ‘Child Sexual Abuse and the Culture of Shame and Silence’ in VS Elizabeth (ed), Implementation of the POCSO Act, 2012 by Special Courts: Challenges and Issues (Centre for Child and the Law, National Law School of India University 2018) 168.

120 Lindsay C Malloy, Thomas D Lyon and Jodi A Quas, ‘Filial Dependency and Recantation of Child Sexual Abuse Allegations’ (2007) 46(2) Journal of American Academy of Child & Adolescent Psychiatry 162, 163.

121 Debayan Roy, ‘POCSO Death Penalty Will Spell Life Threat for Victims, Prolong Trials, Say Experts’ (The Print, 12 July 2019) <https://perma.cc/Y525-AJTY> accessed 3 September 2023.

122 Shraddha Chaudhary, ‘Reforms to the Legal Framework of Child Sexual Abuse in India: Legislative Band-Aids on Systemic Wounds’ (2020) 20(20) Statute Law Review 1, 15.

123 CCL-NLSIU Delhi (n 30) 67-69; CCL-NLSIU Maharashtra (n 30) 70; CCL-NLSIU Andhra Pradesh (n 30) 59; CCL-NLSIU Assam (n 30) 60; CCL-NLSIU Karnataka (n 30) 64.

124 State v Mohd Sallauddin SC No 35/14 (Delhi).

125 Swagata Raha, ‘Compensation under the POCSO Act’ in VS Elizabeth (ed), Implementation of the POCSO Act, 2012 by Special Courts: Challenges and Issues (Centre for Child and the Law, National Law School of India University 2018) 78–79.

126 State of Maharashtra v Azad Ramji Mishra Spl Case No 146/2014 (Thane).

127 As the High Court of Karnataka recently said, ‘the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished.’ See Rakesh B v State of Karnataka 2020 SCC OnLine Kar 844.

128 Indian Evidence Act (1872), s 157 (emphasis supplied). The Section reads: 157. Former statements of witness may be proved to corroborate later testimony as to same fact. In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

129 State v Suraj Tiwari SC No 97/13 at CCL-NLSIU Delhi (n 30) 104.

130 Prabha Kotiswaran, ‘Governance Feminism in the Postcolony: Reforming India’s Rape Laws’ in Janet Halley and others (eds), Governance Feminism: An Introduction (University of Minnesota Press 2018) 113.

131 ibid.

132 Roland C Summit, ‘The Child Sexual Abuse Accommodative Syndrome’ (1983) 7 Child Abuse & Neglect 177, 185.

133 Meredith S Fahn, ‘Allegations of Child Sexual Abuse in Custody Disputes: Getting to the Truth of the Matter’ (1991) 25(2) Family Law Quarterly 193, 203.

134 ibid.

135 Karl Ask and Sara Landstrom, ‘Why Emotions Matter: Expectancy Violation and Affective Response Mediate the Emotional Victim Effect’ (2010) 34 Law and Human Behavior 392, 394.

136 Swagata Raha and Shruthi Ramakrishnan, ‘Draconian and ineffective’ (The Indian Express, 25 December 2015) <https://perma.cc/KD7Q-MBWU> accessed 3 September 2023.

137 State of Maharashtra v Azad Ramji Mishra Spl Case No 146/2014 (Thane).

138 ibid 15.

139 Dipak Gulati v State of Haryana (2013) 7 SCC 675.

140 Lillu @ Rajesh v State of Haryana (2013) 14 SCC 643.

141 Avinash (n 81).

142 Baxi, Rai and Ali (n 76) 1249.

143 Sagar (n 10) 121.

144 State of Maharashtra v Deepak s/o Jitendra Sawant Spl (Child Act) Case No 144/2013 (Wardha).

145 State of Uttar Pradesh v Shri Kishan (2005) 10 SCC 420.

146 ibid 422 (emphasis supplied).

147 Rajeswari Sunder Rajan, ‘The Story of Draupadi’s Disrobing: Meanings for Our Times’ in Rajeswari Sunder Rajan (eds), Signposts: Gender Issues in Post-Independence India (Kali for Women 1999) 348.

148 Baxi, Public Secrets of Law (n 20) 344–45.

149 ibid.

150 State of Assam v Sri Nirud Phukan POCSO Case No 18/2014 (Dibrugarh). For data on conviction in CSAF, see Table 2.

151 Satish (n 19) 88.

152 Veena Das, ‘Sexual Violence, Discursive Formations and the State’ (1996) Economic & Political Weekly 2411, 2416 <https://www.epw.in/system/files/pdf/1996_31/35-36-37/sexual_violence_discursive_formations_and_the_state.pdf> accessed 3 September 2023.

153 ibid.

154 Prem Chowdhry, ‘Enforcing Cultural Codes: Gender and Violence in Northern India’ in Mary E John and Janaki Nair (eds), A Question of Silence: The Sexual Economies of Modern India (Kali for Women 1998) 333.

155 ibid 339.

156 ibid 339.

157 Uma Chakravarti, ‘From Fathers to Husbands: Of Love, Death and Marriage in North India’ in Lynn Welchman and Sara Hossain (eds), ‘Honour’: Crimes, Paradigms and Violence Against Women (Zed Books 2005) 309.

158 State of Maharashtra v Prakash Dhansing Chavan Spl (POCSO) Case 2/2015 (Buldana) (emphasis supplied).

159 Jyoti Vishwanath and Srinivas C Palakonda, ‘Patriarchal ideology of Honour and Honour Crimes in India’ (2011) 6(1–2) International Journal of Criminal Justice Sciences 386, 387.

160 I draw this largely from Martha Nussbaum. See Martha C Nussbaum, Hiding from Humanity: Disgust, Shame and the Law (Princeton University Press 2004) 102.

161 Preeti Pratishruti Dash, ‘Feminism and Its Discontents: Punishing Sexual Violence in India’ (2021) 28(1) Indian Journal of Gender Studies 1, 9.

162 Anup Surendranath, ‘Death Penalty for Child Rape: Dangerous and Ineffective’ (India Seminar, 2018), <https://perma.cc/9BMV-KS82> accessed 3 September 2023.

163 Duncan Kennedy, Legal Reasoning: Collected Essays (The Davies Group 2008) 12.

164 Tarunabh Khaitan, ‘Koushal v Naz: Judges Vote to Recriminalise Homosexuality’ (2015) 78(4) Modern Law Review 672, 678.

165 Mehta (n 79) 236.

166 Two such legal news blogs are ‘Bar and Bench’ and ‘LiveLaw’.

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Arti Gupta

Arti Gupta graduated from the National Law School of India University, Bangalore with a combined Bachelor of Arts and Bachelor of Laws (Hons) in 2022. She currently practices as an Advocate in India.