SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

More documents

Recommendations

Info

Indonesia’s Law on Marriage requires the consent of both Parties to a marriage. The age of consent for marriage under the law is 21. 257 However, with parental consent parties to a marriage have not attained the age of 21 may be married. 258 The law further states that a marriage shall not be considered valid unless the man has attained 19 years of age and the woman, 16 years of age. 259 However, persons below these ages may be married with the dispensation of the court or an authorized official agreed to by both sets of parents. 260 Forced Marriage: In Bangladesh, in Dr. Shipra Chaudhary and another v. Government of Bangladesh and others, 261 the High Court Division of the Supreme Court considered a case of forced marriage before it. The facts of the case involved a doctor practicing in England who was consistently pressured by her family in Bangladesh to get married. On one of her visits to Bangladesh she was confined by the family and was allegedly married by force; a relative along with Ain-O-Sailesh Kendra, an NGO approached the High Court asking for the doctor to be produced in court. The Court on ascertaining the facts and speaking to the doctor herself when she was finally presented in court determined that she had indeed been “illegally detained without any lawful authority and in an unlawful manner.” While the court did not rule on whether the marriage was valid or not [not a subject matter of the Rule which to produce the woman in court] and asked the parties to approach the appropriate fora, it did rule on the matter of forced marriages. The court held, “Forced marriage is not at all permissible in our country. But the line between forced and arranged marriages is often not drawn in our culture with a deeply traditional respect for the family hierarchy. Article 31 of the Constitution of Bangladesh provides, among other, that no action detrimental to the life, liberty, body reputation or property of any person shall be taken except in accordance with law. Article 32 provides that no person shall be deprived of life or personal liberty save in accordance with law. Those inalienable fundamental rights enshrined in the Constitution cannot not only be taken away by anybody including the parents of the detenu.” In determining the content of the fundamental rights in the Bangladeshi Constitution, the court noted that it could look to international covenants as an aid to interpretation of these rights, particularly to determine the rights implicit in the rights like the right to lie and the right to liberty but not enumerated in the Constitution. The court thus referred to the Convention on the Elimination of All Forms of Discrimination against Women, highlighting in particular Article 16 and the equal right of men and women to “choose a spouse and to enter into marriage only with their free and full consent.” It also referred to the Declaration on Elimination Against Women, the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social And Cultural Rights and again 257 Article 6, Law on Marriage, 1974 (Indonesia) 258 Ibid. The provision also specifies who should give consent where the parents are not alive or where consent is not given or there is a difference of opinion among those who have to give consent in which case the courts would step in. 259 Article 7, Law on Marriage, 1974 (Indonesia) 260 Ibid. 261 29 BLD (HCD) 2009 70
Article 16 of the Universal Declaration of Human Rights recognizing that marriage shall be entered into with the free and full consent of intending parties. Based on these, the court held, “In this connection it is important to note that the parents, of course, have the right to advise their cildren but they must not treat their children as their slaves who must have their freedoms particularly when they are adults. The parents must remember that they are not living in old ages, but in the twenty first centure where freedom of every human being irrespective of sex is universally recognized. The petitioner’s liberty enshrined in the Constitution shall mean and include her right to make decision concerning her groom free of coercion, violence and discrimination.” [Emphasis added] 3.3 Incest The laws of the research countries cover different aspects of incest either through their criminal or marriage laws. In Nepal, where incest relates to child sexual abuse, it is dealt with through criminal laws 262 . Sri Lanka’s Penal Code punishes incest through Section 364A. Marriage laws may also contain criminal sanctions as in the case of Sri Lanka’s Muslim Marriage & Divorce Act, 1951, which governs Muslims in Sri Lanka and stipulates punishment for Muslims who enter into incestuous relationships within or outside marriage. 263 In India, Bangladesh, Thailand and Indonesia incest is not specifically punishable by criminal law (though laws relating to child sexual abuse may apply generally.) The marriage laws of all the research countries contain prohibited degrees of marriage. 264 The range of prohibition differs. In Thailand for instance, a marriage cannot take place if the man and woman are blood relations in the direct ascendant or descendant line, brother or sister of full or half blood. The said relationship shall be in accordance with blood relation without regard to its legitimacy. 265 Further an adopter cannot marry the adopted. 266 Under India’s Hindu Marriage Act 1955, the prohibited degrees extend beyond the direct ascendant or descendant line. Thus, the prohibited degrees are: “(i) if one is a lineal ascendant of the other; or (ii) if one was the wife or husband of a lineal ascendant or descendant of the other ; or (iii) if one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother of the other; or (iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;” The prohibited degrees of marriage also differ according to the personal law. In Indonesia, prohibited degrees of marriage are a combination of those specified in the Law on Marriage, 262 See Chapter 5 on Violence (Child Sexual Abuse) 263 Section 80, Muslim Marriage & Divorce Act, 1951 (Sri Lanka) 264 In Sri Lanka the Marriage Registration Ordinance, 1907 consolidates and governs marriages of all persons in Sri Lanka save Muslims and Kandyans stipulates the prohibited degrees of relationship for those who wish to marry. The Kandyan Marriage & Divorce Act, 1952 also stipulates prohibited degrees of relationship for those who wish to marry. The Muslim Marriage & Divorce Act, 1951, which governs Muslims in Sri Lanka stipulates punishment for Muslims who enter into incestuous relationships within or outside marriage. 265 Section 1450, Civil and Commercial Code (Thailand) 266 Section 1451, ibid. 71
Page 1 and 2:
THE INTERNATIONAL COUNCIL ON HUMAN
Page 3 and 4:
6. ACCESS TO HEALTH SERVICES IN REL
Page 5 and 6:
ABBREVIATIONS AIDS ART ARV CEDAW CE
Page 7 and 8:
in the regional reviews. This is a
Page 9 and 10:
provide for information and distrib
Page 11 and 12:
B. METHODOLOGY In keeping with the
Page 13 and 14:
elevant and key laws and judgments;
Page 15 and 16:
The inability of many sexually stig
Page 17 and 18:
Equality irrespective of a person
Page 19 and 20: The centrality of women’s rights
Page 21 and 22: social standing, religious belief,
Page 23 and 24: according to the physical condition
Page 25 and 26: Constitutional Court in The Nationa
Page 27 and 28: protections or statutory law. There
Page 29 and 30: However it also noted that every Ri
Page 31 and 32: concerned with declaring that the h
Page 33 and 34: without guaranteeing the personal p
Page 35 and 36: to enlarge the meaning and content
Page 37 and 38: a concept has wider dimensions than
Page 39 and 40: Such conduct mentioned in clauses (
Page 41 and 42: embraced the complainant and asked
Page 43 and 44: does not sever the ties between the
Page 45 and 46: The potential recognition of same-s
Page 47 and 48: Similarly, seeking out sex educatio
Page 49 and 50: condom). Across such laws, the defi
Page 51 and 52: jurisdictions. Nepal, a country wit
Page 53 and 54: the conviction of the accused for s
Page 55 and 56: with an unmarried woman is not puni
Page 57 and 58: physical characteristics (virginity
Page 59 and 60: interventions and safeguards such a
Page 61 and 62: The opinion of the National Commiss
Page 63 and 64: was married to she would acquire im
Page 65 and 66: to consider the case of a woman see
Page 67 and 68: oth parties and deems all marital p
Page 69: female who has not attained 12 year
Page 73 and 74: In Bangladesh, polygamy is allowed
Page 75 and 76: immovable property. The above propo
Page 77 and 78: consummation of marriage. The incap
Page 79 and 80: Violence, especially sexual violenc
Page 81 and 82: gender norms which many remand home
Page 83 and 84: female or a female to a male. It in
Page 85 and 86: from other forms of inequality as w
Page 87 and 88: c. Whereas victims of violence in h
Page 89 and 90: courts. 350 According to the Commis
Page 91 and 92: The Act provides for the appointmen
Page 93 and 94: Rani 383 it was held that a shared
Page 95 and 96: The Act specifies imprisonment of 6
Page 97 and 98: property jointly or separately held
Page 99 and 100: upees or the amount of the dowry wh
Page 101 and 102: however, is that, of the 10,000 dea
Page 103 and 104: Addararachchi 439 the court conside
Page 105 and 106: harassment, the Indian Supreme Cour
Page 107 and 108: doer’s sexual desire by using doe
Page 109 and 110: In holding that there was no justif
Page 111 and 112: coerce or induce female inmates to
Page 113 and 114: material or detain any person for t
Page 115 and 116: consensual sexual activity with you
Page 117 and 118: The fined amount is to be given to
Page 119 and 120: the State and its citizens is one o
Page 121 and 122:
every person “the right against e
Page 123 and 124:
The law also includes the right of
Page 125 and 126:
eing committed. 570 While prosecuti
Page 127 and 128:
Broader provisions related to child
Page 129 and 130:
in order to engage the child in suc
Page 131 and 132:
her.” 631 A person is deemed to h
Page 133 and 134:
that they are denied the fundamenta
Page 135 and 136:
Indonesia’s Constitution recognis
Page 137 and 138:
In Thailand too, abortion is illega
Page 139 and 140:
With regard to the first question,
Page 141 and 142:
Further, any pregnant woman may vol
Page 143 and 144:
childbearing age to establish a hea
Page 145 and 146:
Government could not be held liable
Page 147 and 148:
among those in the reproductive age
Page 149 and 150:
Members' right to protect public he
Page 151 and 152:
7. INFORMATION, EDUCATION AND EXPRE
Page 153 and 154:
education as well as non-discrimina
Page 155 and 156:
The exchange of information through
Page 157 and 158:
community.” 727 In each case, the
Page 159 and 160:
Nepal’s Interim Constitution limi
Page 161 and 162:
Sections 292, 292A, 293 and 294 of
Page 163 and 164:
“...any interpretation of 'obscen
Page 165 and 166:
“1 (a) Condones or extenuates act
Page 167 and 168:
In Thailand, places of entertainmen
Page 169 and 170:
8. SEX WORK This section examines h
Page 171 and 172:
The use of raids, and exemptions fr
Page 173 and 174:
clients or make an offer for a sex/
Page 175 and 176:
and non-rehabilitative juvenile jus
Page 177 and 178:
“In view of the aforesaid proposi
Page 179 and 180:
person who commits the act are of t
Page 181 and 182:
as parent or guardian has given his
Page 183 and 184:
with one) on the charge that it was
Page 185 and 186:
for sex workers while emphasizing t
Page 187 and 188:
19. Azimuddin v State of Uttar Prad
Page 189 and 190:
1. Acid Control Act, 2002 2. Acid-O
Page 191:
13. Intellectual Property Act, 2003
show all

SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?