“Honesty, pride and self-esteem are crucial to the personal freedom of a woman. Social progress depends on the progress of everyone. Following words of the father of our nation must be noted at all times: To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If non-violence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?” – Mukesh & Anr. v. State (NCT of Delhi) & Ors., (2017) 6 SCC 1.
The Supreme Court has recently pronounced numerous judgments on women’s rights. Therefore, on the occasion of International Women’s Day, it would be apposite to briefly discuss the important pronouncements.
X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi and Another, (Civil Appeal No. 5802 of 2022).
The Supreme Court held that all women are entitled to safe and legal abortion. The Court held that by eliminating the word “married woman or her husband” from the scheme of the Medical Termination of Pregnancy (MTP) Act, 1971, the legislature intended to clarify the scope of Section 3 of the MTP Act and bring pregnancies which occur outside the institution of marriage within the protective umbrella of the law. The Court further held that by framing Rule 3B of the MTP Rules, the legislature intended to solve the mischief, so to speak, of women being unable to access abortions when their lives underwent significant changes impacting their physical and mental health, and their decision to have a child was impacted after the length of the pregnancy exceeded twenty weeks. The Court also dwelled upon the right to dignity and held that if women with unwanted pregnancies are forced to carry their pregnancies to term, the state would be stripping them of the right to determine the immediate and long-term path their lives would take. Depriving women of autonomy not only over their bodies but also over their lives would be an affront to their dignity. The right to dignity would be under attack if women were forced to continue with unwanted pregnancies.
Kamla Neti (Dead) through LRs v. The Special Land Acquisition Officer & Ors., (Civil Appeal No. 6901 of 2022).
The Supreme Court observed that when the daughter belonging to the nontribal is entitled to the equal share in the property of the father, there is no reason to deny such right to the daughter of the Tribal community. Female tribal is entitled to parity with male tribal in intestate succession. To deny the equal right to the daughter belonging to the tribal even after a period of 70 years of the Constitution of India under which right to equality is guaranteed, it is high time for the Central Government to look into the matter and if required, to amend the provisions of the Hindu Succession Act by which the Hindu Succession Act is not made applicable to the members of the Scheduled Tribe.
Mrs. Akella Lalitha v. Sri Konda Hanumantha Rao & Anr., (Civil Appeal Nos. 6325-6326 of 2015).
The Supreme Court held that a mother who remarries after the death of the biological father can decide the surname of the child. The Court held that the mother being the only natural guardian of the child has the right to decide the surname of the child. She also has the right to give the child in adoption. The Court may have the power to intervene but only when a prayer specific to that effect is made and such prayer must be centered on the premise that child's interest is the primary consideration and it outweighs all other considerations. The Court also held that a surname refers to the name a person shares with other members of that person's family, distinguished from that person's given name or names; a family name. Surname is not only indicative of lineage and should not be understood just in context of history, culture and lineage but more importantly the role it plays is with regard to the social reality along with a sense of being for children in their particular environment. Homogeneity of surname emerges as a mode to create, sustain and display ‘family’.
Arunachala Gounder (Dead) by LRs v. Ponnusamy and Ors., (Civil Appeal No. 6659 of 2011).
The Supreme Court held that the right of a widow or daughter to inherit the self-acquired property or share received in partition of a coparcenary property of a Hindu male dying intestate is well recognized not only under the old customary Hindu Law but also by various judicial pronouncements. The Court observed that it is clear that ancient text as also the Smritis, the Commentaries written by various renowned learned persons and even judicial pronouncements have recognized the rights of several female heirs, the wives and the daughter's being the foremost of them. The rights of women in the family to maintenance were in every case very substantial right and on whole, it would seem that some of the commentators erred in drawing adverse inferences from the vague references to women's succession in the earlier Smritis. The views of the Mitakshara on the matter are unmistakable. Vijneshwara also nowhere endorses the view that women are incompetent to inherit. If a property of a male Hindu dying intestate is a self-acquired property or obtained in partition of a co-parcenery or a family property, the same would devolve by inheritance and not by survivorship, and a daughter of such a male Hindu would be entitled to inherit such property in preference to other collaterals.
The State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai, (Criminal Appeal No. 1441 of 2022).
The Supreme Court held that any person who conducts the “two-finger test” or per vaginum examination (while examining a person alleged to have been subjected to a sexual assault) in contravention of its directions shall be guilty of misconduct. The Court observed that it has time and again deprecated the use of this regressive and invasive test in cases alleging rape and sexual assault. This so-called test has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimizes and re-traumatizes women who may have been sexually assaulted, and is an affront to their dignity. The “two-finger test” or pre vaginum test must not be conducted. The Court directed the Union Government as well as the State Governments to ensure that the guidelines formulated by the Ministry of Health and Family Welfare are circulated to all government and private hospitals; conduct workshops for health providers to communicate the appropriate procedure to be adopted while examining survivors of sexual assault and rape; and review the curriculum in medical schools with a view to ensuring that the “two-finger test” or per vaginum examination is not prescribed as one of the procedures to be adopted while examining survivors of sexual assault and rape. The Court also directed that a copy of this judgment shall be shared with the Secretary, Ministry of Health and Family Welfare, Government of India and also directed that the Secretary, Ministry of Health and Family Welfare, Government of India shall transmit copies of this judgment to the Principal Secretary (Department of Public Health) of each state. The Court held that the Principal Secretaries in the Departments of Health of each state shall also be responsible for ensuring the implementation of its directions. The Secretaries in the Departments of Home of each state shall in addition issue directions to the Directors General of Police in this regard. The Directors General of Police shall, in turn, communicate these directions to the Superintendents of Police.
Deepika Singh v. Central Administrative Tribunal and Others, (Civil Appeal No. 5308 of 2022).
The Supreme Court held that the grant of maternity leave under Central Civil Services (Leave) Rules, 1972 is intended to facilitate the continuance of women in the workplace. The Court observed that it is a harsh reality that but for such provisions, many women would be compelled by social circumstances to give up work on the birth of a child, if they are not granted leave and other facilitative measures. No employer can perceive child birth as detracting from the purpose of employment. Child birth has to be construed in the context of employment as a natural incident of life and hence, the provisions for maternity leave must be construed in that perspective. The Court held that the predominant understanding of the concept of a “family” both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children. This assumption ignores both, the many circumstances which may lead to a change in one’s familial structure, and the fact that many families do not conform to this expectation to begin with. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the “mother” and the “father”) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones. The same undoubtedly holds true for women who take on the role of motherhood in ways that may not find a place in the popular imagination. Therefore, the Court held that a woman cannot be declined maternity leave under the Central Services (Leave) Rules, 1972 with respect to her biological child on the ground that her spouse has two children from his earlier marriage.
Prabha Tyagi v. Kamlesh Devi, (Criminal Appeal No. 511 of 2022).
The Supreme Court held that Section 12 of the Domestic Violence Act, 2005 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. Even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the D.V. Act. The Court held that it is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household. The Court also held that there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-à-vis allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting. In other words, even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the D.V. Act.
Hotel Priya, A Proprietorship v. State of Maharashtra & Ors. (SLP (C) No. 13764 of 2012).
The Supreme Court held that the condition imposing a gender cap as to the number of women or men, who can perform in orchestras and bands, in bars licensed under the Licensing and Performance for Public Amusement including Cabaret Performance, Melas and Tamashas Rule, 1960 and other allied provisions, is void. The Court held that while the overall limit of performers in any given performance cannot exceed eight, the composition (i.e., all female, majority female or male, or vice versa) can be of any combination. The Court held that whenever challenges arise, particularly based on gender, it is the task of the judges to scrutinize closely, whether, if and the extent to which the impugned practices or rules or norms are rooted in historical prejudice, gender stereotypes and paternalism. Such attitudes have no place in our society; recent developments have highlighted areas hitherto considered exclusive male “bastions” such as employment in the armed forces, are no longer so.
The Secretary, Ministry of Defence v. Babita Puniya & Ors., (Civil Appeal Nos. 9367-9369 of 2011).
The Supreme Court held that the policy decision which has been taken by the Union Government allowing for the grant of Permanent Commissions (PCs) to Short Service Commission (SSC) women officers in all the ten streams where women have been granted SSC in the Indian Army is accepted subject to : all serving women officers on SSC shall be considered for the grant of PCs irrespective of any of them having crossed fourteen years or, as the case may be, twenty years of service; the option shall be granted to all women presently in service as SSC officers; women officers on SSC with more than fourteen years of service who do not opt for being considered for the grant of the PCs will be entitled to continue in service until they attain twenty years of pensionable service; as a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC; SSC women officers with over twenty years of service who are not granted PC shall retire on pension in terms of the policy decision; and at the stage of opting for the grant of PC, all the choices for specialization shall be available to women officers on the same terms as for the male SSC officers. The Court also held that women SSC officers shall be entitled to exercise their options for being considered for the grant of PCs on the same terms as their male counterparts.
Aparna Bhat & Ors. v. State of Madhya Pradesh & Anr., (Criminal Appeal No. 329 of 2021).
The Supreme Court held that using rakhi tying as a condition for bail, transforms a molester into a brother, by a judicial mandate which is wholly unacceptable, and has the effect of diluting and eroding the offence of sexual harassment. The Supreme Court further observed that the act perpetrated on the survivor constitutes an offence in law, is not a minor transgression that can be remedied by way of an apology, rendering community service, tying a rakhi or presenting a gift to the survivor, or even promising to marry her, and, the law criminalizes outraging the modesty of a woman. The Supreme Court also issued a slew of directions in dealing with bail in sexual harassment cases and the highlighted the need for sensitivity to be displayed by the judges in such cases. Some of the guidelines issued by the Supreme Court are: bail conditions should not mandate, require or permit contact between the accused and the victim, such conditions should seek to protect the complainant from any further harassment by the accused; where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim; in all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days; bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC, in other words, discussion about the dress, behaviour, or past conduct or morals of the prosecutrix, should not enter the verdict granting bail; the courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions or encourage any steps towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction; sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments; judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court; courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that women are physically weak and need protection, women are incapable of or cannot take decisions on their own, are the head of the household and should take all the decisions relating to family, women should be submissive and obedient according to our culture, good women are sexually chaste, motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother, women should be the ones in charge of their children, their upbringing and care, being alone at night or wearing certain clothes make women responsible for being attacked, a woman consuming alcohol, smoking, etc.
(Muneeb Rashid Malik is an Advocate and can be reached at [email protected] He tweets @muneebmalikrash).