Saturday, December 09, 2006

GENDER JUSTICE – A LEGAL PANORAMA

Talk delivered by Justice Yatindra Singh in the colloquium on ‘Gender and Law’ organised by the National Judicial Academy, British Council and the Allahabad High Court at JTRI Lucknow on 14th October 2001. It has been modified since then.

An illustration from a medieval translation of Euclid's Elements, (c. 1310) showing a woman teaching geometry to male students - courtesy Wikipedia
It is heartening that the National Judicial Academy, British council and Allahabad High Court are organising this colloquium on 'Gender and Law'. Action in law is in the courtrooms and its outcome depends on how well equipped judges are: better their knowledge, more satisfying the results. And who else but the National judicial Academy, the highest body for training Judges, should undertake to equip them. British owe a debt to Indian Women. Women's estate or widow's estate was unknown to Mitakshra and widow or daughter never had limited rights: they inherited like male heirs. Privy Councillors and the British Judges warped by status of women in England (see End note-1) and influenced by later developments in law of Dayabhag (by Jimutvahan to get over difficulties in Bengal) interpreted the women’s rights limiting them to their lifetime (See ‘Evolution of Ancient Indian Law’: Tagore Law Lectures 1950 by Dr. N.C. Sen Gupta pages 185, 190,1991-192, and 195). British Council is rightly redeeming that debt. Allahabad High court has unique contribution in the field of Gender Justice: it will be clear in my talk, just bear with me for some time.




GENDER JUSTICE - MEANING
Gender justice means that no one be denied justice or discriminated only because of one’s gender (sex). Some people include gay rights under the umbrella of gender justice but this may not be correct. Gays are discriminated on the ground of their sexual orientation and not because of their sex and their rights should be treated as minority or ethnic rights rather than as issues of gender justice. But what do you say about transsexuals (see End note-2) and transgendered (see End note-3). And then human sexuality is not digital in the sense that it is either male or female: there are in-betweens having characteristics of both sexes namely intersex (Hermaphrodite) (see End note-4). Transsexuals, transgendered and intersex are often discriminated because of their sexuality. Their rights may be within sphere of gender justice but this term is often used and understood to mean justice for women and it is in this sense that I would confine myself.

Patriarchy: Backward Class
Patriarchy means a social system where male is head and descent is through male: broadly a society that works to the advantage of men. There are few matriarchal societies but almost all are patriarchal. Many different theories (see End note-5) have been advocated for patriarchal form of society but neither there is any single theory completely explaining it, nor there is any one historical moment when patriarchy could be said to have been established. A society working to the advantage of men has women in the back seat. The first Backward Commission (Kala Kalekar Commission), set up by the President of India under Article 340 of the Constitution in 1953, confirmed it. The commission submitted its report in 1955. One of the note worthy recommendation of this commission was to treat all women as backward class.

Constitution and Other Provisions
Constitution of India among the others prohibits discrimination on the basis of sex {Article 15(1)} but permits State to make special provision for women and children {Article 15(3)}. The 73rd and 74th Constitution (Amendment) Acts have made provision for reserving 1/3rd seats for women in elections in local self-government (Article 243-D and 243-T). Under Consumer protection Act, one member of the forum is to be a lady member {Sections 10(1)(c), 16(1)(b) and 20(1)(b)} and under Family Court Act preference is to given to women for appointment {Section 4(4)(b)}.

Convention of Elimination of Discrimination Against Women (CEDAW) was ratified by UNO in 1979. We have ratified CEDAW except Articles 5(a), 16(1), 16(2) and 29 (kindly see Madhu Kishwar vs State of Bihar 1996 (5) SCC 125= AIR 1996 SC 1868). The courts have taken guidance from CEDAW while interpreting statutes (Article 51). We have also enacted many statutes to bring about the equality. But have we achieved gender equality? Have we administered gender justice? Let's take a look at some of the cases decided by the courts; they give us good indication.

Many of these decisions are criticised. It is said that the courts lost opportunities to achieve gender justice but even then they did advance gender justice: may be not to the extent expected of them. Some decisions, according to many, failed but I am sure you remember Thomas Elva Edison. He—yet to find suitable filament for incandescent bulb—was asked by his friends if he hadn’t failed in his many attempts. ‘No’, he answered. ‘I have found out what will not make good filament.’ Well, some of the decisions do tell us what is not gender justice.

PERSON CLAUSE CASES
Many often say that neutral norm is the male norm that suits males only, leaving women to struggle and claim their rights. Sometimes it is difficult for a man (some times for women too, she after all is from the same system) to understand it. Let me tell you one example of 75 years of struggle in courts regarding person clause cases. Today, this seems ridiculous but is true.

It all started in the middle of 19th century, at that time majority of the statutes used the phrase ‘any person who is or has … is entitled to vote or to take admission or to practise.’ But women were neither permitted to vote nor to take admission. And soon a question was raised, ‘Does the word 'person' include women?’ It was consistently answered against them.

The first reported case is Chorlton Vs Lings (1869) where the Statute had used the word ‘man’ was used. Thereafter the House of Lords in Nairn Vs Scottish University1 expressly held that women did not fall within the meaning of the term ‘person’. The US Supreme Court had already similarly held in Bradwell Vs Illinois2 (for married women) and in Minor Vs HappierSett3 (a special category of citizen whose inability to vote did not infringe upon their rights as citizen). A court in South Africa had held otherwise but it did not last long. In an appeal against it, the appellate courts in Incorporated Law Society Vs Wookey (1912) case overruled it. It took the established line that women were not included in the term ‘person’

In India the Calcutta {In re Regina Guha ILR (44) Calcutta 290=35 IC 925 (decided on 29.8.1916)} and the Patna {In re Sudhansu Bala Hazra AIR 1922 Patna 269 (decided on 28.11.1921)} High Courts rejected the applications of women for enrolment under the Legal Practitioners Act. The full benches of these courts on judicial side held that women were not included in the term ‘person’. The Allahabad High Court is the first court to enrol a lady named Cornelia Sorabji under 'person' clause on August 9, 1921 however it was done on the administrative side (see the article 'Pretty Ones').

Curtain to the ‘person clause cases’ in the rest of the world was drawn in 1929 (8 years after the Allahabad High Court) in Edwards Vs Attorney General Canada. The Supreme Court of Canada had unanimously decided that women were not included in the term ‘persons’. In appeal, the Privy Council, in a one-line, expressed the obvious,
‘The word person may include members of both sexes and to those who ask why the word should include females the obvious answer is ‘Why not’.

PERSONAL LAWS
Gender inequality is most apparent in personal laws. The best way to remove it is to enact uniform civil code (take best from all) but our founding fathers has included it as one of the Directive Principles of the State policy (Article 44); not enforceable in the courts of law. Directive principles are our goals; the fundamental rights are means to achieve them. The court decisions indicate that though the directive principles are not enforceable yet the courts are interpreting fundamental rights in their light. There is a sort of fusion between the two in most of the fields and the courts are in a way enforcing them; except in the field of personal laws (uniform civil code). Many have been urging the courts to take more active role in this direction. They say that:
  • Article 13 does not make any distinction between personal law and in any other law.
  • The Legislature is not likely to intervene to make any legislation for political reasons.
  • Personal laws are also subject to part III of the Constitution.
  • Many provisions of personal laws violate article 14 and 15(1) of the Constitution and should be declared un-constitutional.

The Courts made some progress in this regard in Sarala Mudgal vs. Union of India{1929 ALL ER 571} and Madhu Kishwar vs. State of Bihar {(1996) 5 SCC 125=AIR 1996 SC 1868} but subsequently the Supreme Court dismissed the writ petition in Ahmedabad Women Action Group (AWAG) vs. Union of India {1997) 3 SCC 573 = 1997(3) JT 171 = AIR 1997 SC 3614} saying that:
'The arguments involve issues of State policies with which the court will not ordinarily have any concern. … [T]he remedy lies somewhere else and not by knocking at the doors of the Courts.'
Will an activist court go into validity of personal laws? It is not clear, only the future will clarify.

The decisions regarding personal laws indicate that the courts are reluctant to intervene in this regard or to declare them ultravires the constitution. Nevertheless, they are willing to liberally construe different provisions in favour of women, often by reading them down or straining their natural meaning (see End note-6) perhaps with the exception of maintenance for second wife in the Yamuna Bai case (Yamuna Bai Anant Rao Adhav vs Anant Rao Shivam Adhav, (1988) 1 SCC 530=AIR 1988 SC 644).

MAINTENANCE: Second Wife and Common Law Wife
In the Yamuna Bai case, the Supreme Court held that the second wife—if the second marriage under the personal law is invalid—is not entitled to maintenance under section 125 of the CrPC. In this case the Court narrowly interpreted the word wife on the reasoning that she has to be legal wife before she can get maintenance.

Second marriage if the first wife is living is illegal under the Hindu Marriage Act and Special Marriage Act. Any party to such second marriage may institute a proceeding for declaring it a nullity. There is dispute among the High Courts if the second wife is entitled to maintenance in proceeding for declaration of nullity of marriage under these Acts. The Madras High Court (Naryanaswami vs Padmanabhan: AIR 1966 Madras 394) has taken the view that the second wife may not claim maintenance. The Bombay High Court (Govind Rao vs. Anandi bai, AIR 1976 Bombay 433) has taken a contrary view and has held that the second wife can so claim. And I think that the view of the Bombay High Court is reasonable and correct. Perhaps the Supreme Court might like to reconsider its view in the Yamuna Bai case or the legislature may intervene. In fact, the Supreme Court did consider the question regarding grant of permanent alimony and maintenance under section 25 Hindu Marriage Act in a case where a decree is passed under section 11 of the Hindu Marriage Act declaring a marriage to be void. The Court in Rameshchandra Daga Vs Rameshwari Daga 2005 (2) SCC 33 = AIR 2005 SC 422 has held that permanent alimony and maintenance can be awarded.

While we are discussing about maintenance about a wife whose marriage is not legal we may discuss about maintenance for some one who is living like wife but is not so: common law wife. Lord Denning in Davies vs Jonson {Davies vs Jonson (1979 AC 264)} explains,
'No such woman was known to the common law, but [the phrase] means a woman who is living with a man in the same house hold as if she were his wife. She is to be distinguished from a mistress, where relationship may be casual, impermanent and secret.'

A common law wife—in absence of any specific legislation—may also be not entitled to any maintenance. It is another question that the courts, in view of living together, may presume that parties are married. Future controversy may revolve around if she is entitled to any maintenance or not.

Divorced Muslim Women
The Supreme Court in Shahbano case {Mohammad Ahamad Khan vs Shahbano Begum, AIR 1985 SC 945=1985 (2) SCC 556} held that maintenance could be awarded to divorced Muslim wife who is unable to maintain herself under section 125 CrPC even after expiration of period of Iddat. This was done in view of explanation (b) to section 125 (1) CrPC despite section 127(3) CrPC that provided that an order under section 125 be cancelled if the divorced woman has been paid whole of the sum under customary law applicable to her. However, the Parliament intervened and has enacted Muslim Women (Protection of Rights on Divorce) Act, 1986 to nullify this decision. The Supreme Court upheld its validity in in a public-interest-litigation Danial Latifi Vs Union 2001(8) JT 218. The decision is a unanimous decision of the constitutional bench but it read down the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 holding that liability of Muslim husband to pay maintenance is not confined to the period of iddat only and a fair provision means that maintenance can be awarded beyond the period of Iddat. The law relating to maintenance for divorced Muslim women is on the same footing as the one applicable to other communities.

Quantum
CrPC applies with equal force to all communities. Under Section 125 of the CrPC, maintenance upto Rs. 500 per month could be granted. This was amended by UP Act no. 36 of 2000 by which the ceiling was increased to Rs. 5000/- and a court may grant interim maintenance. The Parliament has enacted Act no. 50 of 2001 removing ceiling imposed under section 125 CrPC.

The orders passed under section 125 CrPC are subject to orders passed in civil proceedings. In civil proceedings, maintenance is governed by personal laws applicable to the parties. Most of the communities are governed by the codified law {kindly see Hindu Maintenance and Adoption Act (Section 18), and Hindu Marriage Act (sections 24 and 25), Parsi Marriage Divorce Act (Sections 39 and 40), Indian Divorce Act (Sections 36 and 37)} though Muslims are governed by the uncodified law. A divorced wife is entitled to maintenance depending upon the conduct of the parties, income, property and other circumstances. There is no mathematical formula for calculating the amount of maintenance but under section 36 of the Indian Divorce Act maintenance during pendency of a case could not exceed 1/5th of the husband's average net income. This has often governed the discretion of the Courts under other Acts. However, there is no such limitation at the time of granting permanent alimony. Now the courts are generally granting atleast 1/3rd of the income of the husband. But can a matrimonial court trying a case provide a place to live?

Residence
Maintenance is defined under section 3(b) of Hindu Adoptions and Maintenance Act, 1956 as follows:
3. Definitions:— In this Act, unless the context otherwise requires,—
(b) "Maintenance" includes—
(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;
(ii)in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage;
It includes residence also and the matrimonial courts while granting maintenance may make provision regarding residence. But apart from it, do the matrimonial courts have jurisdiction to deal with the properties of the parties? Or should the parties be left to declare their rights in other proceedings before civil courts?

Matrimonial Courts - Other Properties
Section 27 of the Hindu Marriage Act is similar to section 42 of the Parsi Marriage and Divorce Act. Both of them provide that the matrimonial courts have power to deal with the property presented at or about the time of marriage. There is some conflict among the High Courts about the true interpretation and area of operation of these sections. The High Courts disagree whether the courts are entitled to deal with exclusive property of the parties or not. The Delhi High Court (Smt. Shukla vs. Brij Bhushan Kakkar: AIR 1982 Delhi 223), Orissa High Court (P. Maharajan alias Nadarajan vs. Chakalayil Kanju Sarojini: AIR 1988 Orissa 175), Jammu and Kashmir High Court (Sardar Surinder Singh vs. Manjeet Kaur: AIR 1983 J&K 86), and Punjab and Haryana High Court (Smt. Surinder Kaur vs. Madan Gopal Singh: AIR 1980 Punjab 334) have held that exclusive property of the parties can not be dealt by the matrimonial courts under section 27 of the Act and they should seek remedy before regular civil courts.

The Allahabad (Kamta Prasad vs Smt. Om Wati, AIR 1972 All 153), Bombay (Sangeeta Balkrishna Kadam vs Balkrishna Ramchandra Kadam, AIR 1994 Bombay 1), and MP (Ashok Kumar Chopra vs. Smt. Visandi, AIR 1996 MP 226) High Courts have taken the view that these sections do not restrict or prohibit the disposal of the property that exclusively belongs to one of the parties and matrimonial courts can deal with such property under inherent powers of the courts.

The Allahabad and MP High Court were concerned with the ornaments (stridhana) given to the wife at the time of marriage. The Bombay High Court was concerned with the ornaments given at the time of marriage and some other property that the wife had purchased from her own earnings during marriage i.e. property not presented at or about the time of marriage and exclusively belonging to the wife.

The decision from the Bombay High Court was taken in appeal to the Supreme Court. It was partly overruled in Balkrishna R Kadam vs. Sangeeta B Kadam (AIR 1997 SC 3652=1997 (7) SCC 500) (the Balkrishna case). The Supreme Court held:
'It [Section 27 of the Act] includes the property given to the parties before or after marriage also, so long as it is relatable to the marriage. The expression “at or about the time of marriage” has to be properly construed to include such property which is given at the time of marriage as also the property given before or after marriage to the parties to become their “joint property”, implying thereby that the property can be traced to have connection with the marriage. All such property is covered by Section 27 of the Act.'

In substance the Supreme Court in the Balkrishna case held that property covered under section 27 must be traced to marriage and should be connected with it. But should it also be jointly held by the parties? Has the view of the Allahabad and MP High Court overruled?

Section 27 uses the phrase,
'property presented at the time of marriage, which may belong jointly to both the husband and the wife'.
In view of the Balkrishna case this section has one prerequisite: the property must be connected with the marriage. The Supreme Court in this case has not held that exclusive property given at the time of marriage can not be dealt by the matrimonial courts. Section 27 nowhere uses mandatory word 'must'; it uses the word 'may'. The phrase 'which may belong jointly'—because of the use of the word may—includes within it penumbra the property which may not jointly belong to the parties. It would be incorrect to say that section 27 confine or restricts the jurisdiction of matrimonial courts to deal with the joint property of the parties only; it also permits disposal of exclusive property of the parties provided it was presented at or about the time of marriage. This has been so explained in a division bench decision of the Allahabad High Court reported in Hemant Kumar Agrahari Vs Laxmi Devi 2003 (32) ALR 166.

Matrimonial cases are tried by the District Court and if Family Court has been established then by the Family Court. They are decided by the senior Judges at the district level and civil procedure code is applicable. The entire proceeding is like a regular suit; though court is required to conciliate between the parties. The Judges manning matrimonial courts are senior enough to decide about exclusive property on the regular side. Same procedure is applicable in the matrimonial cases. It is correct that section 13 of the Family Courts Act declares that a party shall not have right to legal representation, but court can always permit legal representation. In case complicated questions are involved, permission for legal representation in the family court is normally granted; more so in a case where complicated questions regarding disposal of property are involved.

Section 7 of the Family Court Act defines the jurisdiction of the Family Court. It is as follows:
Relevant part of section 7 of the Family Court Act is as follows:

7. Jurisdiction.- (1) Subject to the other provisions of this Act, a Family Court shall
(a)have and exercise all the jurisdiction exercisable by any district court or any sub-ordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and

Explanation: The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them:

Sub section 1(a) of section 7 of the Family Court Act states that it has jurisdiction in respect of suits and proceedings of the nature referred to in the explanation. Explanation (c) states that the suit or proceeding between the parties to a marriage which with respect of the properties of the parties or any one of them. In case the matter is before matrimonial court, then it is proper that all disputes relating to the parties should be settled by one court at the same time: leaving a part of the dispute to be decided in future in another suit would prolong acrimony and agony. Life should be spent in a fruitful way, rather than wasting it in constant bickering. There seems to be no reason as to why the entire dispute including the joint property as well as exclusive property owned by the parties should not disposed of together. This will not only avoid multiplicity of the proceedings, but will also hasten the process of starting new life by the parties. Perhaps the legislative may like to intervene or the Supreme Court may reconsider its opinion in the Balkrishna case.

Generally in our country wife is a house maker and stays at home and the husband is the earning member. He earns and acquires property in his own name; it is treated as his separate property. In case there is divorce, should it be divided among the parties?

The properties of the parties may be taken into account while awarding maintenance. But there is neither any express provision of law nor any reported decision that separate property may be pooled and divided among the parties. However, in some parts of the world separate property of the parties is treated as community property or family asset and is divided between the two in the decree of divorce. The reason is that house makers also work but as they are not paid in terms of money, they cannot acquire property. It is for this reason that such laws were upheld there. Should we enact such a provision? Will the Indian courts do so under inherent powers? We will have to wait for the future to unfold. This struggle in England in courtrooms and then enacting of law has been described in part seven ‘The Deserted Wife's Equity’ and part eight ‘The Wife’s Share In The Home’ of the book 'The Due Process Of Law' by Lord Denning.

Divorce: Muslim Law
Shamim Arra vs. State of UP: 2002 (7) SCC 518 (the Shamim Arra case) is an important case. It has approved decisions from the Gauhati High Court holding that the divorce under the Muslim law is,
  • not on the whim of the husband
  • under exceptional circumstances
  • for reasonable cause
  • only if it is preceded by attempts at reconciliation between husband and the wife by two arbitrators – one from the wife's family and the other from the husband's – fail.
It does not say what will happen if one or more conditions is not satisfied. Will such a divorce be invalid? Do the courts have jurisdiction to invalidate a divorce under the Muslim Law on the ground that any one, more grounds have not been satisfied? I will leave it for the future to unfold.

Child: Blood Test
Should a woman be harassed to get maintenance for her child? When a child may undergo a blood test if paternity is denied? Section 4 of the Evidence Act deals with conclusive proof. Section 112 of the Evidence Act says birth during marriage is conclusive proof unless it can be shown that parties to marriage had no access. The Supreme Court in Goutam Kundu vs. State of West Bengal {(1993) 3 SCC 418} had to consider whether blood test of the child to show parentage should be ordered or not. The court held;
'This section [112 of Evidence Act] requires the party disputing the paternity to prove non-access in order to dispel presumption. "Access" and "non-access" mean the existence or non-existence of opportunities for sexual intercourse; it does not man actual "cohabitation”. …
We find the purpose of the application is nothing more than to avoid payment of maintenance, without making any ground whatever to have recourse to the test.'

INHERITANCE

For the purpose of inheritance, property can be broadly divided in two categories, (i) agricultural property, and (ii) non-agricultural property. Agriculture is a State subject and agricultural property is dealt by Provincial Acts. In State of UP, it is governed by UP Zamindari Abolition and Land Reforms Act (Zamindari Abolition Act). Under the Zamindari Abolition Act, a daughter does not inherit equally with the son though the widowed mother and the widow of pre-deceased son does (see End note-7). Will daughters inherit equally with sons? We have to wait and see.

Intestate succession to non-agricultural property for Muslims is dealt by their personal uncodified law. For rest of communities, it is codified {See Hindu Succession Act, Chapter 3 Part V of the Indian Succession Act (for Parsi), and Chapter 2 and part V of the Indian Succession Act (for rest of the communities)} Under Hindu law mother, daughter and a widow of a pre deceased son inherit equally along with a son though in other communities their share varies according to the heirs and is often less than a son. There is no right by birth in other communities except among Hindus in coparcenary property. It was only for the sons and not for the daughters. It was extended to the daughters by the some State by local amendments and later on the Parliament enacted the Hindu Succession Amendment Act 2005 (Act no. 39 of 2005) amending the section 6 of the Hindu Succession Act, giving same rights to the daughters as the sons in the coparcenary property. Will the concept of Hindu Undivided Family (HUF) be totally abolished? To some extent, it was already abolished: there is deemed partition under law in case of death of a male (Section 6 of the Hindu Succession Act). Will the benefits granted to HUF under different Acts be taken away by enacting Uniform Civil Code? It is for future to disclose.

DOMESTIC VIOLENCE ACT
The principles relating to maintenance, residence and custody of children are modified with the enactment of the Protection of Women from Domestic Violence Act, 2005 (the Domestic Violence Act). It has been enforced with effect from 17.10.2006 and was enacted in pursuance of CEDAW. It protects women from domestic violence of a person, with whom she is or has been in domestic relationship. It extends to whole of India except the State of Jammu and Kashmir and applies to all communities equally. The provisions of the Domestic Violence Act are in addition rather than in derogation of any other relief provided under any other law.

The expression 'domestic relationship' has been explained as relationship between two persons who live or have lived together in a shared household when they are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. This will include common law wife also. In addition, relationships with family members living together as a joint family are also included. Sisters, widows, mothers, single women, or living with the abuser are entitled to protection under the Domestic Violence Act.

The expression 'domestic violence' has also been explained. It includes actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. It also includes harassment by way of unlawful dowry demands on the woman or her relatives.

Section 17 of the Domestic Violence Act provides, every women in a domestic relationship, a right to residence in the shared household; whereas Section 19 empowers the Magistrate to issue residence orders. Section 20 provides monetary relief including maintenance; whereas section 22 empowers the Magistrate to grant compensation. Section 21 empowers the magistrate to pass suitable orders regarding custody of children. Section 18 empowers the magistrate to grant protection orders. Breach of the protection orders passed by the magistrate is also punishable as an offence. Section 26 clarifies that these relief may be claimed in any legal proceeding pending before civil, family, or criminal court if they were pending on the commencement of the Domestic Violence Act.

OFFENCES AND EVIDENCE
Criminal justice is most debated topic in the field of Gender Justice; it is sensitive too. One has to harmonise principle of liberty of the accused with gender justice. But first I will talk about two sections that many claim to be outdated.

Relating to Marriage
Sections 497 and 498 of the Indian Penal Code (IPC) are in Chapter XX. This chapter is about offences relating to marriage. These two sections are analogous. Section 497 deals with adultery (with married women) and section 498 deals with enticing or taking away or detaining with criminal intent a married woman. Cognisance of these offences can be taken only on a complaint made by the aggrieved husband under section 198(2) of the CrPC. Gender bias against women is inherent in these sections. The Supreme Court accepted these objections in Alamgir vs. State of Bihar {AIR 1959 SC 436=1959 SCR (Suppl 1) 464} observing that,
‘The provisions of S. 498 like those of S 497 are intended to protect the rights of the husband and not those of the wife.

The policy underlying the provisions of S. 498 may no doubt sound inconsistent with the modern notions of the status of women and of the mutual rights and obligation under marriage.'
But the Supreme Court chose to uphold the section on the ground that:
'[It] is a question of policy with which courts are not concerned.'
The other cases upholding validity of these sections are reported in Yusuf Abdul Aziz vs State of Bombay and others, AIR 1954 SC 321; Sowmithri Vishnu vs Union of India and others, 1985 (Suppl.) SCC 137 = AIR 1985 SC 1618 ; V Revathi vs Union of India and others, 1988(2) SCC 72=AIR 1988 SC 835.

The acts envisaged in sections 497 and 498 of IPC have civil consequences. These actions in many parts of the world are no longer offences but give rise only to matrimonial rights namely divorce, judicial separation, guardianship rights over children etc. The first National Commission on the status of women appointed by the Government of India has also recommended that adultery should be removed as an offence. According to the commission its retention as a Criminal offence brings out clearly the values of the last (nineteenth) century, which regarded wife as husband's property and also prevents lawyer and others from giving necessary help to an oppressed wife.

Under section 497 the wife can not be punished even as an abettor. The Law Commission of India in its 42nd Report 1971 recommended the retention of 497 in its present form with the modification that, even the wife, who has sexual relations with a person other than her husband should be made punishable for adultery but the suggested modification was not accepted by the legislative. The law commission also records that the suggestion that, in the name of equality of the sexes, the unfaithful husband who has a mistress or goes to a prostitute should also be punishable for committing adultery did not find a sympathetic response in any quarter.

SEXUAL OFFENCES
(See Appendix-1 also)
In the context of sexual offences, Tuka Ram vs. State of Maharashtra (1979 (2) SCC 143=AIR 1979 SC 185; also known as Mathura rape case) is the most debated and talked about case. It is important too; it precipitated many amendments in the criminal law. In this case a tribal girl had eloped with her lover. She along with her lover were brought to the police station on the report of her brother. Her statement was recorded there and she was alleged to be raped in custody by the Head Constable and one other constable. (I have used the word 'alleged' as the accused have been acquitted). Sexual intercourse in the police station with the head constable was not disputed and the question was whether there was passive submission or not. The Supreme Court on the circumstances of the case held that:
'The consent in question was not a consent which could be brushed aside as passive submission'.
The Supreme Court further held that the High Court wrongly allowed the appeal and convicted the accused as,
'It did not give a finding that such fear [for sexual intercourse] was shown to be that of death or hurt.'

This decision generated heated debate. Law Commission had earlier made certain recommendation in its 42nd report in 1971; apparently nothing was done so far as sexual offences were concerned. The government in view of the discussion requested the law commission to give another report in this regard that the commission did in 1980 in its 84th report. Some of these recommendations were accepted and Criminal Law Amendment Act 1983 (Act no. 43 of 1983) was enacted.

Act no. 43 of 1983 has substituted sections 375 and 376 in IPC in place of old ones, and further has inserted sections 376-A to 376-D IPC. It has further amended Evidence Act by inserting a new section 114-A that has shifted the burden on the accused in rape cases in certain circumstances (including the one in TukaRam case). It also amended section 327 of the CrPC by inserting sub section (2) and (3) which gives power to the court trying rape case to order trial to be conducted in camera. The court can also prohibit any person to print or publish any matter in relation to proceeding in the court without its previous permission. Section 228-A was also inserted in IPC providing punishment for disclosing identity of the rape victim. Two more reports namely 156th and 172nd regarding rape by the Law Commission for consideration of the government.

42. After enactment of Act no. 43 of 1983, some questions were again raised regarding use of the word conduct when the Supreme Court decided Prem Chand vs. State of Haryana : 1989 Suppl(1) SCC 286=AIR 1989 SC 937 (the Prem Chand case). However, the Supreme Court clarified in the review application {State of Haryana vs. Prem Chand: 1990 (1) SCC 249=AIR 1990 SC 538=1989 (4) JT 544} held that,
'We have not used the word "conduct" with reference to the character or reputation of the victim. …
We have not expressed any view in our judgement that character, reputation or status of a raped victim is a relevant factor for consideration by the court while awarding the sentence to a rapist.'

Marital Rape
In England and Scotland, a husband could not be held guilty of a rape committed on his wife. This was on the presumption that the wife has surrendered her person to her husband. The principal authority for the exemption was in Hume Commentaries on the law of Scotland Respecting the Description and Punishment of Crime. But attitudes have changed so has the law. High Court of Scotland in S vs. HM Advocate 1989 SLT 469 has described this change as follows:
'Whatever Hume meant to encompass in the concept of wife’s “surrender of her person” to her husband “in that sort” the concept is to be understood against the background of the status of women and the position of a married woman at the time when he wrote. Then, no doubt, a married woman could be said to have subjected herself to her husband’s dominion in all things. She was required to obey him in all things. Leaving out of account the absence of rights of property, a wife’s freedom were virtually non-existent, and she had in particular no right whatever to interfere in her husband's control over the lives and upbringing of any children of the marriage. By the second half of the 20th century, however, the status of women, and the status of a married woman, in our law have changed quite dramatically. A husband and wife are now for all practical purposes equal partners in marriage and both husband and wife are tutors and curators of their children. A wife is not obliged to obey her husband in all things nor to suffer excessive sexual demands on the part of her husband. She may rely on such demands as evidence of unreasonable behaviour for the purposes of divorce. A live system of law will always have regard to changing circumstances to test the justification for any exception to the application of a general rule. …The reason given by Hume for husband’s immunity from prosecution upon a charge of rape of his wife, if it ever was good reason, no longer applies today.'
The above observation is quoted in R vs. R (rape: Marital exemption); (1991) 4 All ER 481 where English courts have also taken similar view.

In India sexual intercourse with wife was a rape only if she was less than 15 years age (2nd exception to section 375); the punishment varied according to the age of the wife (Section 376). It is still the law. However, 42nd and 84th law commission reports recommended that this exemption should not be applicable if the wife is living separately. In view of this recommendation section 376-A has been inserted by Act no. 43 of 1983 and now sexual intercourse by a husband with his wife—who is living separately from him under a decree of separation or under any custom or usage without her consent—is also punishable.

After enactment of Act no. 43 of 1983, sexual intercourse (namely Intercourse by public servant with woman in his custody, Intercourse by superintendent of jail, remand home etc., and Intercourse by any member of the management or staff of a hospital with any woman in that hospital) in certain circumstances though not rape are also punishable under section 376-B to 376-D of the IPC. It is also relevant to consider whether sexual intercourse in similar situations between guardian and a woman in the position of a ward shouldn’t be made punishable.

Rape Trials: Evidence, Procedure
(See Appendix-1 also)
Many say that in rape trials past conduct of the victim is neither relevant nor important. They also object to the way rape trials are conducted. They say there are two rapes first the actual one, the second at the time of the trial when victim is asked all sorts of questions. Section 146 of the Evidence Act explains as to what questions may be asked in cross-examination. Section 155 of the Evidence Act is about impeaching credit of a witness. Sub section (4) of Section 155 is as follows:
155. Impeaching credit of witness - The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent, of the Court, by the party who calls him -

(4) When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.
It permits the accused to show the past conduct of the rape victim (prosecutrix). Under these sections it is possible to adduce evidence about the character of the rape victim (prosecutrix).

The Law Commission in its 84th report considered these objections and after considering views of different sections, accepted the same. It recommended substitution of new sub-section 4 to section 146 and inserting of new section 53-A. Paragraphs 7.27 and 7.28 of its report are as follows:
'7.27 Accordingly, we recommend that the following sub-section should be added to section 146 of the Evidence Act:-
"(4) In a prosecution for rape or attempt to commit rape, where the question of consent to sexual intercourse or attempted sexual intercourse is at issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the prosecutrix as to her general immoral character, or as to her previous sexual experience with any person other than the accused for proving such consent or the quality of consent."
7.28. Even this amendment of the law, however, would not be enough. In our opinion, it is also necessary to exclude the possibility of evidence of general immoral character being tendered under the sections of the Act, which relate to substantive evidence.
Accordingly, we recommend that the following new section should be inserted, in the Evidence Act, say as section 53A
"53A. In a prosecution for rape or attempt to commit rape, where the question of consent to sexual intercourse or attempted sexual intercourse is at issue, evidence of the character of the prosecutrix or of here previous sexual experience with any person other than the accused shall not be relevant on the issue of such consent or the quality of consent.'
In this connection, it will be also relevant to consider section 41 and section 42 of the Youth Justice and Criminal Evidence Act, 1999 enacted in England

The proposed subsection 4 of section 146 and section 53-A prohibited adducing of evidence or cross-examining the rape victim (prosecutrix) about her immoral character or her previous sexual experience with any person other the accused for proving quality of the consent and declared them irrelevant. However, the government did not accept it and no amendments were made in this regard. But the courts have not stood still; they have moved ahead. They have declared law on the lines similar to the sections proposed by the law commission (though the legal effect is not the same). Let's see principles emerging from following two cases namely (i) State of Maharashtra vs Madhukar Narain Mardikar: (1991) 1 SCC 57=AIR 1991 SC 207 (the Madhukar case) (ii) State of Punjab vs. Gurmeet Singh; (1996)2 SCC 384=AIR 1996 SC 1393 (the Gurmeet case). Six principles emerge from these decisions and I have marked them in italics with numbers in the quotations for convenience.

The Madhukar case was not a criminal case but a service case. One Police Inspector was charged in disciplinary inquiry for attempting to rape and for preparing false documents and entry in the station diary to show that he carried a prohibition raid at the time of attempted rape near her house. He was removed from service. The High Court allowed his writ petition. The Supreme Court allowing the appeal held that:
'The High Court observes that since Banubi is an unchaste women it would be extremely unsafe to allow the fortune and career of a government official to be put in jeopardy upon the uncorroborated version of such a woman who makes no secret of her illicit intimacy with another person. She was honest enough to admit the dark side of her life. [i] Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. … Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.' (Italics and numbering is mine).

The Gurmeet Singh case was a criminal case regarding rape. The trial court acquitted the accused but the High Court had allowed the appeal and convicted the accused. The Supreme Court while dismissing the appeal emphasised:
'[i] The courts must deal with such [rape] cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions of insignificant discrepancies in the statement of the prosecutrix. … [ii] If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars
Some defence counsels adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. Then victim is required to repeat again and again the details of rape incident not so much a to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. … [iii] The court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. The Court, therefore, should not sit as a silent spectator while the victim of crime is being cross-examined by the defence. It must effectively control the recording of evidence in the court.
Wherever possible [iv] it may also be worth considering whether it would not be more desirable that the cases of sexual assaults on the females are tried by lady Judges, wherever available, so that the prosecutrix can make her statement with greater ease. …
[v] The courts should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of sex crime.
We … hope that the trial courts would take recourse to the provisions of Sections 327(2) and (3) Cr.PC liberally.[vi] Trial of rape cases in camera should be the rule and an open trial in such cases an exception.'(Italics and numbering is mine)
However now, the Evidence Act has been amended by the Central Act number, 4 of 2003. It has deleted sub-section (4) of section 155 and has inserted the following proviso to to sub-section (3) of section 155,
'Provided that in a prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character.'
This substantially is in accordance with the 84th report of the Law Commission.

Rape Cases - Compensation
Under section 357 CrPC, Criminal Courts have power to apply fine for payment to person for any loss but whether they can do so in pending trial is another question. The law is still not settled. In P. Rathinam vs State of Gujrat, 1994 SCC (Crl) 1163 (the Rathinam case) and Bodhisatwa Gautam vs Subhrachakraborty (Ms), (1996) 1 SCC 490=1996 SC 922 (the Bodhisatwa case) the Supreme Court awarded compensation and interim maintenance. But in AK Singh Vs Uttarakhand Jan Morcha (1999) 4 SCC 476 the Supreme court set aside compensation awarded by the High Court for molestation in a PIL pending prosecution but granted liberty to aggrieved person to approach the competent court for compensation. And in Mukeshbhai Nanubhai Patel vs. State of Gujrat (1998 CrlJ 194), the Gujrat High Court has confined the Bodhisatwa case to the facts of that case and set aside the order granting interim maintenance pending trial.

In Delhi Domestic Working Women's Forum vs. Union of India {(1995) 1 SCC 14=1994(7) JT 183}, the Supreme Court took note of delay in deciding rape cases and directed the National Commission for Women to evolve a suitable scheme to be examined by the Union of India and to take necessary steps for the implementation of the scheme at the earliest. The matter is still pending and the scheme is yet to come.

DOWRY
The government enacted Criminal (Second Amendment) Act (Act No. 46 of 1983) in 1983 to check evils of the dowry. It has inserted Section 498-A of the IPC providing punishment for dowry and has amended Evidence Act by inserting Section 113-A raising presumption as to abetment of suicide by a married woman.

This was further strengthened by the Dowry Prohibition (Amendment) Act 1986 (43 of 1986). It has amended Dowry Prohibition Act, IPC, CrPC and Evidence Act. Section 304-B was inserted in IPC defining 'dowry death' and providing punishment. Section 113-B was inserted in the Evidence Act raising presumption as to dowry death in certain circumstances.

What may be done to curb dowry death? How should a court try such a cases? Some indication were given by the Supreme Court in Kundula Bala Subrahmanyam vs State of AP {(1993) 2 SCC 684= 1993(2) JT 559= !993 CrLJ 1635},
'Laws are not enough to combat the evil. [i] A wider social movement of educating women of their rights, to conquer the menace, is … needed more particularly in rural areas where women are still largely uneducated and less aware of their rights and fall an easy prey to their exploitation. …
It is expected that [ii] the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacunae in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished. [iii] The courts are expected to be sensitive in cases involving crime against women. The verdict of acquittal made by the trail court in this case is an apt illustration of the lack of sensitivity on the part of the trial court. (Italics and numbering is mine)

SEXUAL HARASSMENT AT WORKING PLACES
(See Appendix-1 also)
Sexual harassment at working place is more rampant than it is thought of. It is for this reasons that Vishaka vs. State of Rajsthan: (1997) 6 SCC 241 = 1997(7th) JT 384 = AIR 1997 SC 3011 ( the Vishaka case) is an important decision. It is also a unique case. In this case, the court defined sexual harassment and chose to lay down norms, principles and guidelines to be followed: a function exclusively within legislative domain, outside judicial functions. The court further directed that:
'The guidelines and norms [regarding sexual harassment at working place] would be strictly observed in all workplaces for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field.'

The norms declared in the Vishaka case were applied in Apparel Export promotion Council vs. AK Chopra: 1999 (1) SCC 759=AIR 1999 SC 625 (the AK Chopra case). In this case services of one AK Chopra were terminated for causing sexual harassment to a subordinate female employee. The Delhi High Court allowed his writ petition on the ground that he 'did not actually molest' but only 'tried to molest the subordinate female' and reinstated him without back wages. The Supreme Court allowing the appeal held that:
'That sexual harassment at the place of work, results in violation of the fundamental right to gender equality and the right to life and liberty—the two most precious fundamental rights guaranteed by the Constitution of India.'
The court also observed:
'The observations made by the High Court to the effect that since the respondent did not "actually molest" Miss X but only "tried to molest" her and, therefore, his removal from service was not warranted, rebel against realism and lose their sanctity and credibility. Sympathy in such cases is ... misplaced and mercy has no relevance. … The High Court overlooked the ground realities and ignored the fact that the conduct of the respondent against his junior female employee, Miss X, was wholly against moral sanctions, decency and was offensive to her modesty. Reduction of punishment in a case like this … is a retrograde step.'

PRIVACY, LIBERTY AND EQUALITY
Privacy, liberty and equality are pillars of gender justice. These principles have been explained, established and reaffirmed in different decisions. A brief account of these decisions is instructive.

The Neera Mathur Case
The first one is Neera Mathur vs Life Insurance Corporation Of India, (1992) 1 SCC 286=AIR 1992 SC 392 (the Neera Mathur case). Neera Mathur was a probationer in the Life Insurance Corporation (LIC). During probation she applied and was granted maternity leave. She was simply discharged from service after she returned. Her discharge was defended by the LIC on the ground that she had given false declaration at the stage of entering the service.

All candidates while entering service had to fill up a declaration. A lady candidate—in columns 6(iii) to (viii) of the declaration—was required to give information about her menstrual period, last date of menstruation, pregnancy and miscarriage. According to the LIC Neera Mathur had not given this information correctly and it was borne out from her maternity leave. The court held that:
'The particulars to be furnished under columns (iii) to (viii) in the declaration are indeed embarrassing if not humiliating.’
These columns were held to be unreasonable and discharge was set aside.

The Ashok Kumar Case
The second one is Ashok Kumar vs. State of Rajsthan (1991) 1 SCC 166 (the Ashok Kumar case). Is there any comradeship among women? Should their evidence be ignored merely because a lady doctor gives evidence in case victim is also a woman? The Supreme Court criticised the Session Court for doing the same in the Ashok Kumar case and said:
‘We consider it necessary to record that the judge was uncharitable in discarding the testimony of Dr. Patrisia and doubting her truthfulness principally because she was a women.'

The First Air Hostess Case
In Air India vs Nergesh Meerza: (1981) 4 Supreme Court Cases 335=AIR 1981 SC 1829 (the First Air Hostess case), apart from other questions, the legality of regulation 46(c) was challenged. This regulation provided superannuation of an Air Hostess at the age of 35 years or on marriage if it takes place within four years of service or on first pregnancy, whichever is earlier. The court declared the provision for retirement on first pregnancy to be unreasonable and said,
'Whether the woman after bearing children would continue in service or would find it difficult to look after the children is her personal matter and a problem which affects the Air Hostess concerned and the Corporation has nothing to do with the same.'

The CB Muthamma case
In CB Muthamma, IFS VS Union of India: (1979) 4 SCC 260 = 1979 SC 1868 (the CB Muthamma case), petitioner was a lady officer in Indian Foreign Service. She filed a writ petition claiming denial of promotion on the ground of hostile discrimination, as she was a woman. She also brought to the notice of the court following two rules:
  • Rule 8(2) of the Indian Foreign Service (Conduct and Discipline) Rules, 1961 which required a woman member in foreign service to obtain permission of the Government in writing before her marriage and to resign if the Government is satisfied that her family and domestic commitments are likely to come in the way of due and efficient discharge of her duties.
  • Rule 18(4) of the Indian Foreign Service (Recruitment, Cadre, Seniority and Promotion) Rules, 1961, which prohibited a married woman to be appointed in Foreign Service as of right.

The court held that:
'Discrimination against women, in traumatic transparency, is found in this rule. … If the family and domestic commitments of a woman member of the service are likely to come in the way of efficient discharge of duties, a similar situation may well arise in the case of a male member. In these days… one fails to understand the naked bias against the gentler of the species. …
And if the executive… makes [such] rules … [then] the inference of die-hard allergy to gender parity is inevitable.’
The Anuj Garg case
Section 30 of the Punjab Excise Act prohibited employment of men less thatn 25 years of age and women in a place where liquor or intoxicating drug is consumed by the public. The validity of this section involved in Anuj Garg Vs Hotel Association of India 2008 (3) SCC 1. Supreme Court upheld the decision of the Delhi High Court, declaring it to be ultra-vires the constitution, holding:
'Hotel management has opened up a vista for young men and women for employment ... Right to be considered for employment subject to just exceptions is recognised by Article 16 of the Constitution. Right of employment itself may not be a fundamental right but in terms of both Articles 14 and 16 of the Constitution of India, each person similarly situated has a fundamental right to be considered there for.'

Equal Pay For Equal Work
Women workers are in no way inferior to their male counter parts yet they drew lesser pay for the similar work. The Supreme Court explained the movement of equal pay for equal work in Associate banks Officers' Association vs. State bank of India, 1998 (1) SCC 428 = AIR 1998 SC 32 as follows:
'Historically, equal pay for work of equal value has been a slogan of the women's movement. Equal pay laws, therefore, usually deal with sex-based discrimination in the pay scales of men and women doing the same or equal work in the same organisation. For example, the Equal Remuneration Act, 1976 provides for payment of equal remuneration to men and women workers and is meant to prevent discrimination on the ground of sex against women in the matter of employment.'

The Supreme Court applied the Equal Remuneration Act to grant same salary to the lady stenographers in M/s Mackinnon Mackenzie and Co. Ltd. vs Audrey D'costa and other (1987) 2 SCC 469=AIR 1987 SC 1281. The plea of the employer that only women are appointed as confidential stenographers and are in different class was negated. The court held,
'If only women are working as Confidential Stenographers it is because the management wants them there. Women are neither specially qualified to be Confidential Stenographer nor disqualified on account of sex to do the work assigned to the male Stenographers. Even if there is a practice in the establishment to appoint women as Confidential Stenographer such practice can not be relied on to deny them equal remuneration due to them under the Act.'

Housewife to Home Maker
Has the change from housewife to homemaker made any difference in the status of wife—apaprently not. This has been subject matter of discussion in a Supreme Court decision in Arun Kumar Agarwal and another Vs. National Insurance Company & others 2010 (7) 304. There the court was considering appropriate compensation on the death of wife under Motor Vehicle Act.

In the aforesaid case, one of the judges critically commented that census-2001 had wrongly categorised homemakers as non-workers equating them with beggars, prostitutes, and prisoners who according to census are not engaged in economically productive work.  The Judge also recommended the Parliament to have rethinking for properly assessing the value of a homemaker and suitably amending the provisions of Motor Vehicle Act as well as matrimonial laws.

Preferential Treatment
An affirmative action giving preference to women has been held to be protected under article 15(3) of the Constitution. The Supreme Court in Government of AP vs. PB Vijay Kumar (1995) 4 SCC 520 =AIR 1995 SC 1648 upheld a rule providing
"other things being equal preference shall be given to women and they shall be selected to the extent of 30% of the post".

CHANGING ATTITUDES: NEW CHALLANGES
Attitudes throughout the world are changing. We are no exception. We must have regard to the changing circumstances. I have already dealt one namely about common law wife earlier, let's consider few English cases that depict others.

The Peake Case
In England there is an Act known as Sex Discrimination Act, 1975 to prevent discrimination on the basis of sex. In the first case {Peake vs Automotive Products Ltd. (1978)1 All ER 106 (at page 108) } under this Act, Lord Denning while upholding an arrangement where women were let off 5 minutes before in a factory to avoid being jostled and hurt during rush hour, said,
'It is not discrimination for mankind to treat womankind with the courtesy and chivalry which we have been taught to believe is right conduct in our society.'

The El Vino Case
But we should also see Gill and another Vs El Vino Co. Ltd: (1983) 1 All ER 398 (page 402, 403) (the El Vino wine bar case). Justice Griffiths describes El Vino wine bar as,
'El Vino's is no ordinary wine bar. It has become a unique institution in Fleet Street. Every day it is thronged with journalists, solicitors, barristers, exchanging the gossip of the date. No doubt it is the source of many false rumours, which have dashed the hopes of many an aspirant to a High Court appointment.'
In the El Vino bar, ladies could be served drink while seated but were not served drinks while standing as could be done for men. This was for the same reasons as in the previous case: the space in front of the bar, where men could take drinks standing, is very crowded. Two ladies brought an action of discrimination on the basis of sex. The court held that:
'She is not being allowed to drink where she may wish to drink, namely standing up among the many people gathered in front of the bar. … If male journalists are permitted to do it, why shouldn't she? If she is denied it she is being treated less favourably than her male colleagues.'

The KR Case
In re KR (a child) abduction: forcible removal by parents: 1999 (4) AllER 954 is about an Indian family living in England. KR was a minor girl who left her home and went to live with her sister P. Her father reported her missing and that P had kidnapped her. KR was restored to the custody of her father. Thereafter KR was brought to India. P initiated ward-ship proceedings in England. Father took up a plea that KR has gone to India with her own wishes and delayed her production before the Court. She was ultimately produced before the court after help was taken from officials in India.

The Court after hearing her found that father with support from mother was playing deceptive game. He was keeping KR hidden until she was 18 so that proceeding could end, then she could be made to marry one of the two suitor whose photographs she was shown. The Court then passed necessary orders against her father and observed,
'Of course I recognise that, approaching these issues from the point of view of KR's parents and of others within their family and community who share their conviction and their outlook, this outcome is an affront to their traditional values, possibly to their religious tenets and certainly to their concept of family (and perhaps particularly paternal) authority.

Sensitivity to these traditional and/or religious influence is, however, likely in English courts usually to give way to the integrity of the individual child or young person concerned. In the courts of this country the voice of the young person will be heard and, in so personal a context as opposition to an arranged or enforced marriage, will prevail.’

British Parliament has enacted the Forced Marriage (Civil Protection ) Act 2007 to help persons who are being forcibly married.

CONCLUSION
We are in 21st century; despite progress in direction of gender equality much is still required to be done. 'Will there be complete gender justice' is for future to answer. About a quarter of century ago, someone (Robert Kennedy) said,
'Some men see the things as they are and say why, I dream things that never were and say why not?'
If we think about gender equality there is no reason why we will not achieve it. And by God’s grace—despite male chauvinism—we will.

End note-1: Those who are interested in knowing about status of women in England and how it changed may read the chapter 'The Story Of Emancipation’ in part six, ‘The Deserted Wife's Equity’ part seven and ‘The Wife’s Share In The Home’ part eight of the book 'The Due Process Of Law' by Lord Denning. Some indications are also given in S vs. HM Advocate 1989 SLT 469 quoted in R vs. R (rape: Marital exemption); (1991) 4 All ER 481 referred to in this article.

End note-2: Those with anatomy of one sex but adopt the characteristics, behaviour etc. of opposite sex.

End note-3: Those who get their sex changed by an operation. One such example is of Renee Richards. He changed his sex from man to woman. He wanted to compete in women tennis but was denied. However she gained some respectability when she became coach of Martina Navaratilova.

End note-4: A human cell consists of chromosomes. These chromosomes carry instructions for replication. A human cell (except sex cell) contains 46 chromosomes. When cells divide the number of chromosomes doubles so that two different cells have 46 chromosomes each. These chromosomes come in pairs; there are 23 pairs of chromosomes in a human cell. The 23rd pair is a special pair and determines the sex. In females it consists of two long chromosomes called X-chromosomes, so a female could be designated as XX. In the male 23rd pair is not a true pair. One of them is normal X-chromosome but the other is a smaller than X-Chromosome, called Y-Chromosome, and a male can be designated as XY. A sex cell does not contain 23 pair of chromosomes but only contains 23 chromosomes. A female sex cell (called ovum) has 23rd chromosome as X-chromosome but a male sex cell (called Sperm) could have 23rd chromosome as X-chromosome or a Y-chromosome. In case Y-Chromosome sperm fertilises an ovum then a boy is born. In case it is X-chromosome sperm that fertilises ovum then a girl is born. Some times, at the time of division of a sex cell, aberration takes place so that it may have one chromosome more or a chromosome less. This in turn produces aberrations in the baby. In case aberration is in 23rd chromosome then the fertilised ovum could be XXY or XYY or only X or only Y. Such a person is not exactly a male or a female and is in-between or intersex. One polish female athlete Ewa Koblukowska was debarred in 1967 in participating in women events. She had one chromosome too many. It would have been un-sportsman like to have her compete with normal women.

End note-5: Some say that in the ancient times more people meant more strength. They could carry work on farm, or stand in arms. Due to high infant mortality and low life expectancy, it was social pressure to have as many children as possible. To multiply is necessarily in built in every society; every religion and family planing is a taboo. It took all women to do that. This resulted in confining women to household, fit for household work only.

End note-6: One example is cases relating to maintenance for divorced Muslim women. Some other examples are reported in (i) Mary Roy vs State of Kerala: 1986 (2) SCC 209=AIR 1986 SC 1011 (ii) Madhu Kishwar vs State of Bihar: (1996) 5 SCC 125=AIR 1996 SC 1868 (iii) C. Masilamani Mudaliar vs Idol of Sri Swaminatha Swami Swamintha Swami Thirukoil: (1996) 8 SCC 525=AIR 1996 SC 1697 = 1996 (3) JT 98 (iv) Kirtikant D. Vadodariya vs State of Gujrat: (1996) 4 SCC 479= 1996(6) JT 244 (vi)Githa Hariharan (Ms) vs Reserve Bank of India: (1999) 2 SCC 228=AIR 1999 SC 1149 The first three cases relate to succession. In the fourth case though the court held that mother under section 125 of CrPC does not include step mother yet looking into objects of section 125 CrPC a childless step mother unable to maintain herself may get maintenance from her step son. In the fifth case the question involved was if a mother could be natural guardian of her minor child during the life time of the father in view of the words 'after him' in section 6(a) of the Hindu Minority and Guardianship Act. The court answered this question in affirmative and read these words as 'in absence of '. To my mind, this case may be considered as upholding the welfare and interest of a minor rather than a victory for 'gender justice'.

End note-7: There are few observations in some decisions Bishwanath Pandey vs. Badami Kaur, AIR 1980 SC 1329 = 1980(2) SCC 349 and Sellammal and others vs. Nellammal (dead) by L.Rs, AIR 1977 SC 1265=1977 (3) SCC 145 that Hindu Succession Act will override Zamindari Abolition Act and also that exclusive right to male succession may be suspended till female dependants acquire another mode of livelihood (Madhu Kishwar vs. State of Bihar, (1996) 5 SCC 125; 1996 (4) JT 379). But to my mind in view of the legislative competence of the Union and the state and in view of section 4(2) of the Hindu Succession Act, succession to agricultural property is governed by the Zamindari Abolition Act, rather by the Hindu Succession Act. This is also so held in Prema Devi vs. Joint Director of Consolidtion :AIR 1970 Alld 238.

End note-8: After the Delhi gang rape case in December 2012, the Central government has amended the IPC, CrPC and Evidence Act to deal sternly with sexual assault cases.  These amendments modify the law mentioned under the heading  'SEXUAL OFFENCES', 'Evidence Procedure: Rape Trials', and 'SEXUAL HARASSMENT AT WORKING PLACE'. The broad features of the amendments are dealt in Appendix-1. 


Appendix-1
Amendments brought about by the Criminal Law (Amendment) Act, 2013 (the 2013 amending Act) to deal sternly with sexual assault cases

On 16 December 2012, a female physiotherapy intern was beaten and gang raped in Delhi. Thirteen days later, she succumbed to her injuries.  The incident provoked protests not only within our country but outside as well. 

On 22 December 2012, the Central government appointed a judicial committee headed by Late Shri JS Verma, a former Chief Justice of India,  to submit a report,  suggesting amendments in the criminal law to deal sternly with sexual assault cases. 

The Committee submitted its report on 23 January 2013. Many of these suggestions were incorporated into an Ordinance that was promulgated on 3 February 2013. Subsequently, it was replaced by the Criminal Law (Amendment) Act, 2013 (the 2013 amending Act); it was enforced from 3 February 2013.  It amends the provisions relating to sexual offences in the Indian Penal Code (IPC),  Code of Criminal Procedure, 1973 (CrPC), and the Indian Evidence Act.  

The notable amendments in the IPC are as follows: 
  • Section 354A to 354D has been inserted in the IPC.   Section 354A IPC defines sexual harassment and provides punishment for the same.  Section 354B defines assault or use of criminal force on a woman with intent to disrobe and provides punishment for the same.  Sections 354C and 354D define voyeurism and stalking and provide punishment for the same;
  • Sections 370 and 370A IPC have been substituted for the existing section 370 of the IPC.  Section 370 defines trafficking of person and provides punishment for the same.  Section 370A provides punishment for sexual exploitation of a trafficked minor;
  • Sections 375 to 376D IPC under Chapter XVI of 'Offences Affecting the Human Body' and sub-chapter 'sexual offences' relating to 'rape' have been substituted by sections 375 to 376D redefining rape with harsher punishment for the same.  


The notable amendments in the CrPC are as follows: 
  • Sections 154 and 161 of the CrPC have been amended providing that for sexual offences against women the FIR by the victim as well as statement of the victim would be recorded by the woman police officer or any woman officer;
  • Section 357C has been inserted, mandating hospitals (whether public or private) to immediately provide free first aid or medical treatment to the victims of any offence covered under sections 326A, 376, 376A, 376B, 376C, 376D or section 376E of the IPC. They are also required to inform the police about the incident. 


The notable amendments in the Evidence Act are as follows:  
  • Section 53A has been inserted and the proviso to section 146 has been substituted.  Section 53A provides that in the prosecution for an offence under sections 354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D or 376E of the IPC or for attempt to commit any such offence, the victim's previous sexual experience with any other person shall not be relevant on the issue regarding consent or the quality of consent.   Similarly, by the substituted proviso to section 146 of the Evidence Act,  the questions regarding general immoral character or previous sexual experience of such victim have been prohibited in the cross-examination;   
  • Section 114A has been substituted providing presumption as to absence of consent in certain prosecution for rape under clauses (a) to (n) of sub-section (2) of section 376 of the IPC. 

Appendix-2
(Summary of suggestions proposed by Justice Yatindra Singh, Judge Allahabad High Court, Allahabad on 11th of December 2004 in the conference organised by the National Commission of women on Women's Empowerment vis-a-vis Legislature and Judicial Decisions)

Population Control
1. Most of our problems are related to population. There are too many of us. We can solve many of our problems (including regarding gender justice) if we control and reduce our population. The women may not be treated as baby producing machines. If we wish to contain population then we have to do the following:
  • Increase level of Education and Women Empowerment
  • Improve Basic Health and Medical Services
  • Enact laws providing incentives for one child and disincentives for more than one child family. Disincentives for more than two children have been upheld by the Supreme Court in Javed & others Vs. State of Haryana JT 2003(6) SC 283=2003(8) SCC 369.

It is relevant to point out that:
  • The Allahabad High court has proposed 'The Allahabad High Court Computer Cadre Service Rules, 2005'. These rules not only bar the appointment of the persons if they have more than two children but also bar promotion, or selection grade to the employees after more than two children are born to them. Of course the Rules takes into account the person having more than two children before enforcement of the Rules as well as step and adopted children. Perhaps, the service jurisprudence will take a cue and similar provision will be provider in every rule. For details see here.
  • C/M Distt. Coop. Bank Ltd. Thru' Chairman & Anr. Vs. State Of U.P. Thru' Secy. (Coop.) & Ors. 2005 ALJ 1892 has been decided laying down the guidelines as to who may be appointed as administrators after expiry of term of committee of management of a cooperative society. Among the others it has been laid down that the persons having more than two children may not be appointed. The text of the judgement is also available here.

Adoption of Convention of Elimination of Discrimination Against Women (CEDAW) without any Reservation
In interpreting different provisions of any Statute, the courts have taken help from the CEDAW (Article 51 of the Constitution of India). We have ratified CEDAW with reservation on Articles 5(a), 16(1), 16(2) and 29. This is so mentioned in Madhu Kishwar vs. State of Bihar 1996 (5) SCC 125 = AIR 1996 SC 1868. These Articles are appended as Appendix-3. In case these provisions are also ratified then it will help the courts in advancing gender justice; some effort may be done in this direction.

One Court for All Matrimonial and Criminal Cases
Criminal offences under sections 406, 494 and 498-A, IPC and 3/4 Dowry Prohibition Act deal with the matrimonial problems. These cases may also be tried by the Family courts. The stand taken by the parties in all proceeding will be before one court and it will be able to tackle the problem better. In case any reconciliation takes place then all matters could be settled by one court. The lady litigants may have to appear in one court only. Apart from it, execution is the weakest part in the family courts: involvement of the State agency may improve it.

Norm – Family Court
The Family courts are already overburdened. In case the aforesaid jurisdiction is also transferred to the Family Courts then they will become non-functional. A norm may be fixed for establishing family courts: one family court for 1000 cases in a district is a good norm. It may be adopted. In case so many courts can not be created then some of the Sessions Courts may be given powers of the Family Courts.

Amendments in the Family Courts Act
Section 498-A of the IPC and the offences under the Dowry Act are non-compoundable. Some times it hinders in the conciliation proceedings. The High Court has inherent jurisdiction to pass any order under section 482 of the CrPC or under Article 226 of the Constitution of India. In case of compromise, they have been quashing criminal proceedings. Now this has legal sanction in view of the Supreme Court decision reported in BS Joshi and others versus State of Haryana (2003) 4 SCC 675 and another. However the Family Courts can not do so. The Family Courts Act may be amended by incorporating Sub-section (3) to Section 7 in the following manner:
(3) Not withstanding anything contained in this Act or any other law, the Family Court or in case where family court is not established then any other court while dealing with the matrimonial cases, shall have jurisdiction and power to do the following:

(a) to deal and partition separate and joint properties of the parties given at the time of marriage, or acquired by the parties jointly or separately at any other time.

(b) to quash or set aside any criminal proceeding pending in any court of law involving any offence (compoundable or non-compoundable involving the parties after giving opportunity to the prosecuting agency.

(c) to decide any other dispute between the parties.

Additional Service of Notice by the Advocates
Generally the suit for divorce is filed by the husband. In these suits wrong report about service is obtained and they are decreed exparte. By the time the wife comes to know about these proceedings, the husband has remarried and has children by the second marriage. This creates problems. Many times the second wife is not party to any fraud and has become a victim. In the matrimonial cases, if the wife does not put up appearance then the Family Courts may serve notices on the wife through advocates practising in that judgeship before cases are proceeded ex parte.

Introduction of Special Paper at the Post Graduate Level
Sections 5 and of the Family court envisage association of social welfare agency and counsellor with the Family Courts. There is shortage of marriage counsellors and child psychologists. Their role in sorting out these problems is important. Normally people are trained in the field of psychology are capable of doing this kind of work. Department of Psychiatry (in the Medical College), or Psychology, or Social Work (in the University) can train people in this regard. There is a paper in these departments called 'Clinical and Counselling Psychology' dealing with general principles. It is confined to the personal and individual problems. It does not give a specialised training in family matters. A curriculum for training specialists for family counselling is required. This could be achieved by developing a specialized module at the post graduate level with practical training. The University Grants Commission (UGC) may be requested to constitute an expert committee consisting of senior faculty members of psychology, Social Work, Law and representatives of judiciary to identify the kind of experts (Human resource) are required and suggest development of appropriate curriculum for it. This paper may be titled 'Family Counselling with practical training' covering:
  • Marital discord.
  • Child care and development.
  • Gender issues.

Appendix-3
(Articles 5(a), 16 and 29 of CEDAW that are not ratified by India are as follows.)
Article 5
States Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based to the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;

Article 16
1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
(a)The same right to enter into marriage;
(b)The same right freely to choose a spouse and to enter into marriage only with their free and full consent;
(c)The same rights and responsibilities during marriage and at its dissolution;
(d)The same right and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;
(e)The same right to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;
(f)The same right and responsibilities with regard to guardianship, warship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;
(g)The same personal right as husband and wife, including the right to choose a family name, a profession and an occupation;
(h)The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.
2.The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.

Article 29
1.Any dispute between two or more States Parties concerning the interpretation or application of the present Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the parties are unable to agree on the organisation of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.
2.Each State party may at the time of signature or ratification of this Convention or accession thereto declare that it does not consider itself bound by paragraph 1 of this article. The other States parties shall not be bound by that paragraph with respect to any State Party, which has made such a reservation.
3.Any State Party which has made a reservation in accordance with paragraph 2 of this article may at any time withdraw that reservation by notification to the Secretary General of the united Nations.

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