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The ancient Hindu practice of Chhaupadi is an apt example of a religious belief having an edge over the law. This deeply rooted belief states that menstrual blood is impure. The practice is one of the forms of seclusion of women from society and is localized mostly in the far-western part of Nepal. The Supreme Court of Nepal banned Chhaupadi in 2005, stating that it is a violation of Human Rights, but it still continues to flourish.

Nepal’s Parliament criminalized Chhaupadi in 2017, in a law that was passed unanimously. However, despite its criminalization, this practice still exists due to prevalent social norms. Traditional healers linked it with a tradition that has been followed for decades. On the other hand, anti-Chhaupadi activists have been unable to convince the people to abandon this brutal practice of forcing women to live outside the home, in huts during their periods. Going to huts has been the tradition for a very long time. Women subjected to this practice constantly live in fear of sexual violence, animals and various other diseases during their stay in the huts. It is often argued that this practice has roots in Hinduism, and hence sleeping in a hut is a requirement for a woman during her periods. Elders and other traditional healers try to preserve this tradition stating that women in their periods bring bad luck and are impure. A religious belief more often than not has edge over the law. However, the younger generations in the villages of Western Nepal need to take the lead and reject and denounce this practice in its entirety, from their society.

In Hinduism, the goddess occupies an exalted position and is worshipped; on the other hand, women are made to suffer because of their natural body cycles. This is a human-made practice which can be abolished with the joint support of the community. Women are forced to sleep alone or in groups sometimes for 5 to 7 days and are not allowed to take part in household work or enter temples. They are often forced to live with cattle too during that period.

In India, the Sabarimala temple located in the state of Kerala is also an example of religious belief having more influence than law. Though, the Supreme Court of India gave a historic verdict and granted women of all age groups the right to enter the shrine of the temple.  The court stated that a woman is not inferior to a man and patriarchy cannot be permitted to trump religious practice, and also defined such a practice to be a violation of article 14 (right to equality) of the Constitution of India. However, despite this verdict, women are not allowed to enter the sanctum of the temple by the local community. This shows that religious belief that has been followed for a very long time often ends up overriding the law. Many attempts have been made to allow them entry into the temple but the localities believe that Lord Ayyappa, who is worshipped in the temple, is a Nashtika Bramahachari or a celibate for life, and so the women belonging to the menstruating age group should not be allowed to enter the premises.

In both the situations in India and Nepal, this deeply rooted belief overpowers the law. In the name of religion and tradition, women are forced to perform unwanted and harmful rituals merely to impress the local deity. Efforts should be made to abolish these practices in their entirety. It has become a norm to follow these practices and those who don’t are treated as social deviants and excluded from society.

Law is supposed to render a form of social control over society in order to create harmony. However, in these situations, law enforcement agencies and judicial systems are ineffective when they seek to challenge tradition. Deeply rooted tradition has become the weapon for traditionalists to impose discriminatory practices on women without any fear of law.

Law and society need to go hand in hand. Until and unless society and values change, the law becomes inactive. It becomes difficult for society and for the nation as a whole to progress. Until and unless there is a change in the mentalities of the people, nothing is going to change in society. Families in the village often take pride in sending their loved ones to huts. It is quite strange that deities curse only women, and not men who demean their dignity. It is very difficult to eradicate the tradition that has been practiced over a long period of time. Therefore, it will be a major challenge for the legal fraternity and the government to build a strong policy regarding this. There needs to be a strategic intervention as part of an attempt to abolish these practices.

Authored by: Laabhesh Thapa, 2nd Year Student,
NALSAR University of Law

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