5 Oct 2018 6:52 AM GMT
"I raise up my voice—not so I can shout, but so that those without a voice can be heard...we cannot succeed when half of us are held back."―this were the words of Noble Prize winner Malala Yousafzai, who rightly pointed towards the indispensability of making every woman in the world self-sufficient as the development of human race would not be possible without it and the Indian...
"I raise up my voice—not so I can shout, but so that those without a voice can be heard...we cannot succeed when half of us are held back."―this were the words of Noble Prize winner Malala Yousafzai, who rightly pointed towards the indispensability of making every woman in the world self-sufficient as the development of human race would not be possible without it and the Indian judiciary has been prodigiously vibrant in influencing the course of social change by being the voice of women whose cries were unheard for a long time. From the landmark decisions elucidating the principle of ‘equal pay for equal work’ way back in 1982 to the recent decision in Sabarimala temple case in 2018 recognizing the right to religion as not gender categorical, our judiciary has always recognized and fortified the principle of parity as enshrined in the Constitution of India.
Let us now peregrinate with the judicial decisions in this regard:-
1. Equal Pay for Equal Work:-
In Randhir Singh vs Union of India, while considering the case of drivers in the Delhi Police Force with other drivers in the service of the Delhi Administration and the Central Government, the court expounded the paramount principle of equal pay for equal work holding that:“It is true that the principle of equal pay for equal work is not expressly declared by our Constitution to be a fundamental right. But it certainly is a Constitutional goal. Art. 39(d) of the Constitution proclaims 'equal pay for equal work for both men and women" as a Directive Principle of State Policy. 'Equal pay for equal work for both men and women' means equal pay for equal work for everyone and as between the sexes. Directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation”.
2. Striking Down Condition Of Service Of Termination Of Service On First Pregnancy
In Air India vs Nergesh Meerza, while considering the service condition which provided for termination of services of air hostesses on first pregnancy, the Supreme Court expressed that after having utilised the services for four years, to terminate the service on pregnancy amounts to compelling the air hostess not to have any children and thus interfering with and diverting the ordinary course of human nature. The apex court termed it not only a “callous and cruel act”, but an open insult to Indian womanhood, the most sacrosanct and cherished institution and such a provision, therefore, is not only manifestly unreasonable and arbitrary but contains the quality of unfairness and exhibits naked despotism and is, therefore, clearly violative of Art. 14 of the Constitution.
3. Sexual Harassment at Workplace
To promote the contribution of women towards the development of the nation, the apex court became vigilant of the sexual harassment faced by them in the workplace and laid down the guidelines filling the vacuum in legislation in Vishaka vs State Of Rajasthan. What was recognized by the judiciary way back in 1997, took the shape of legislation only in 2013, with the enactment of an Act in this regard.
4. Recognizing the Right of Hindu Women as Natural Guardian
While interpreting S.6 of the Hindu Minority and Guardianship Act of 1956 in Ms. Githa Hariharan vs Reserve Bank Of India, which uses the word ‘after’, plainly meaning thereby that the mother's right to act as a natural guardian stands suspended during the lifetime of the father and it is only in the event of death of the father, the mother obtains such a right to act as a natural guardian of a Hindu minor, the Supreme Court of India held that word ‘after’ shall have to be given a meaning which would sub-serve the intent of legislature towards the cause of welfare of minor and as such the word ‘after’ does not necessarily mean after the death of the father, on the contrary, it depicts an intent so as to ascribe the meaning thereto as ‘in the absence of’—be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise.
5. Right to Maintenance of Muslim Women
The apex court came to the rescue of divorced Muslim women who have no means and are left to fend vagrant by applying S.125 CrPC to all, irrespective of the religion professed by them. It held in Mohd. Ahmed Khan vs Shah Bano Begum that Clause (b) of the Explanation to section 125(1) of the same provision, which defines 'wife' as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope.
6. A Rapist remains a Rapist regardless of his Relationship with the Victim
The apex court, in Independent Thought vs Union Of India, while striking down Exception 2 to S. 375 IPC in so far as it permits intrusive sexual intercourse with a girl child below 18 years by her ‘husband’, examined in a petition filed under Article 32 of the Constitution the provision of IPC in relation to the POCSO Act and observed that having sexual intercourse with a girl child between 15 and 18 years of age, the husband of the girl child is said to have not committed rape u/s 375 IPC but is said to have committed aggravated penetrative sexual assault in terms of Section 5(n) of the POCSO Act. It further observed that the marital rape could degrade and humiliate her, destroy her entire psychology pushing her into a deep emotional crisis and dwarf and destroy her whole personality and degrade her very soul. This conflict or incongruity needs to be resolved in the best interest of the girl child and the provisions of various complementary statutes need to be harmonised and read purposively to present an articulate whole.The court also touched upon the age of giving valid consent and stated that the age of consent is statutorily and definitively fixed at 18 years and there is no law that provides for any specific deviation from this. Therefore, unless the Parliament gives any specific indication (and it has not given any such indication) that the age of consent could be deviated from for any rational reason, it cannot assume that a girl child who is otherwise incapable of giving consent for sexual intercourse has nevertheless given such consent by implication, necessary or otherwise only by virtue of being married.
7. Directions to Reduce Child Prostitution
In Vishal Jeet vs. Union of India, the apex court while emphasizing the importance of children as assets of the nation issued some prominent directions to the state governments and union territories, including steps for setting up of a separate Advisory Committee within their respective zones for making suggestions regarding the measures to be taken in eradicating child prostitution and the social welfare programmes to be implemented for the care, protection, treatment, development and rehabilitation of the young fallen victims namely the children and girls rescued either from the brothel houses or from the vices of prostitution. It also issued directions for taking steps in providing adequate and rehabilitative homes manned by well-qualified trained social workers, psychiatrists and doctors and also directed the Union Government for setting up a Committee whose main object is to evolve welfare programmes to be implemented on the national level for the care, protection, rehabilitation, etc., of the young fallen victims and to make suggestions for amendments to the existing laws or for enactment of any new law, if so warranted for the prevention of sexual exploitation of children.
8. Right of Unwed Mother relating to Guardianship
In ABC vs State (NCT Of Delhi) dealt with the question as to whether it is imperative for an unwed mother (which in that case was a Christian woman) to specifically notify the putative father of the child whom she has given birth to of her petition for appointment as the guardian of her child observed that where the father has not exhibited any concern for his offspring, giving him legal recognition would be an exercise in futility. It thus interpreted the term “parent” which was not defined in the concerned Act dealt with in the said case that in the case of illegitimate children whose sole caregiver is one of his/her parents to principally mean that parent alone. There is thus no mandatory and inflexible procedural requirement of notice to be served to the putative father in connection with a guardianship or custody petition preferred by the natural mother of the child of whom she is the sole caregiver as the uninvolved parent is not precluded from approaching the guardian court to quash, vary or modify its orders if the best interests of the child so indicate. The court also directed that if a single parent/unwed mother applies for the issuance of a Birth Certificate for a child born from her womb, the authorities concerned may only require her to furnish an affidavit to this effect, and must thereupon issue the Birth Certificate, unless there is a court direction to the contrary.
9. Honour Killings and Right of Major Women to Espouse As Per Her Wish
In Lata Singh vs State Of U.P., the apex court, while expressing anguish over the episodes of honour killings throughout the nation, recognized the right of the petitioner woman who has attained majority to marry anyone or stay with anyone she likes. In order to provide protection to the victims of such barbaric acts of caste-based discrimination, the court also directed the administration/police authorities throughout the country to ensure that if majors undergoing inter-caste or inter-religious marriage are not harassed by anyone nor subjected to threats or acts of violence, and anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.
10. Rights of Unborn Female Child
In the landmark judgment popularly known as CEHAT case, the apex court took note of the inaction on the part of the government authorities in implementing the Pre-Conception and Pre-Natal Diagnostics Techniques Act which prohibits sex determination and sex-selection and issued a number of directions in this regard, for prevention of female foeticide which has caused large decline in female sex-ratio.
11. Right of Hindu Female over Property Given In Lieu Of Maintenance Under An Instrument
The apex court in V. Tulasamma & Ors vs V. Sesha Reddi (Dead) By L. Rs observed that the Hindu female’s right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights. It also declared that where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub- S. (2) and would be governed by S. 14(1) of the Hindu Succession Act, despite any restrictions placed on the powers of the transferee.
12. Property Rights of Indian Christian Females:-
In Mrs. Mary Roy Etc. vs State Of Kerala, the apex court, while dealing with the property rights of women belonging to the Indian Christian Community in the territories of the former State of Travancore, held that they would now be governed by the Indian Succession Act, thereby giving them right to seek an equal share in their father’s property.
13. Right of Hapless Muslim Divorced Women to be Maintained beyond Iddat:-
In Danial Latifi & Anr vs Union of India, the apex court recognized that a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well and which extends beyond the Iddat period and same must be made by the husband within the Iddat period. Further a divorced Muslim woman who has not remarried and who is not able to maintain herself after Iddat period can proceed under the Muslim Women (Protection of Rights on Divorce) Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the said Act to pay such maintenance.
14. Rights of Women Prisoners in Pregnancy and of their Children:-
While considering the plight of children who for no fault of their own, have to stay in jail with their mothers, issued a number of guidelines in R.D. Upadhyay vs State Of A.P. & Ors, covering the area of basic minimum facilities for child delivery, pre-natal and post-natal care for both mother and child, proper hygiene, educational facilities, arrangements regarding stay of such child until attains 6 years and arrangements thereafter etc.
15. Compulsory Registration of Marriage:-
Reducing the apathy of Indian women who may have to fight for establishing the legality of their marriage, the Supreme Court in Smt. Seema vs Ashwani Kumar issued some guidelines while observing that marriages of all persons who are citizens of India belonging to various religions should be made compulsorily registrable in their respective states, where the marriage is solemnized.
16. Women in Live-in-Relations Qualify for Domestic Relationship:-
While recognising the change in social scenario with many adults opting for live-in-relations, the apex court in D.Velusamy vs D.Patchaiammal said that live-in-relations which are ‘relationship in the nature of marriage' come under the purview of the Protection of Women from Domestic Violence Act and thereby elongating its scope but cautioned that all such relations may not amount to relation in nature of marriage.
17. No Right To Breach The Person Of Anyone Else, Including Of An ‘Unchaste’ Woman:-
In State Of Maharashtra And Another vs Madhukar Narayan Mardikar, the Supreme Court observed that even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes and she is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of the law. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.
18. Scrapping of Triple Talaq:-
The apex court recognized the manifest arbitrary nature of Triple Talaq or Talaq-i-Biddat in Shayara Bano vs. Union of India and held that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it and as such same was declared to be violative of the fundamental right contained under Article 14 of the Constitution of India.
19. Right to Enter a Religious place by Women Of All Ages:-
While dealing with the restriction on entry of women of the age group of 10 to 50 years at the Lord Ayyappa Temple at Sabarimala, Kerala, our judiciary in Indian Young Lawyers Association & Ors. Vs. State of Kerala & Ors very succinctly held that in no scenario, it can be said that exclusion of women of any age group could be regarded as an essential practice of Hindu religion and on the contrary, it is an essential part of the Hindu religion to allow Hindu women to enter into a temple as devotees and followers of Hindu religion and offer their prayers to the deity.
S.497 IPC had relegated the position of married women in so far that anyone having physical relation with her without the connivance of her husband was guilty of adultery and thereby disregarding the right of married women over her own person. Recently the apex court headed by then Chief Justice of India Dipak Misra held in Joseph Shine vs. Union of India that ‘any provision of law affecting individual dignity and equality of women invites wrath of Constitution. It’s time to say that husband is not the master of wife. Legal sovereignty of one sex over other sex is wrong’. The court, however, reminded that the judgment is not to be understood as a licence to have extramarital relations.
The above-cited decisions only give us a glimpse of the pragmatic approach adopted by the Indian Judiciary in reinforcing and strengthening women who constitute a major part of the nation. However, these efforts will remain barren without concerted co-operation from the government and the society at large, who are equally accountable for the cause of empowering women. Society has to liberalise realising the intrigues of women whose augmentation is indispensable as they are its real architects.
1982 AIR 879, 1982 SCR (3) 298.
1981 AIR 1829, 1982 SCR (1) 438.
AIR 1997 SC 3011.
AIR 1999 SC 1149.
1985 AIR 945, 1985 SCR (3) 844.
Writ Petition (Civil) No. 382 of 2013.
Writ Petition (Criminal) No. 421 of 1989.
Civil Appeal No. …….. of 2015, [Arising out of SLP (Civil) No. 28367 of 2011].
Writ Petition (Crl.) 208 of 2004.
Centre For Enquiry Into Health vs Union Of India,Writ Petition (civil) 301 of 2000.
1977 AIR 1944, 1977 SCR (3) 261.
1986 AIR 1011, 1986 SCR (1) 371.
Writ Petition (civil) 868 of 1986
Writ Petition (civil) 559 of 1994.
Transfer Petition (civil) 291 of 2005.
Criminal Appeal Nos. 2028-2029__of 2010, [Arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010].
AIR 1991 SC 207.
Writ Petition (C) No. 118 of 2016.
WRIT PETITION (CRIMINAL) NO. 194 OF 2017
WRIT PETITION (CIVIL) NO. 373 OF 2006
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]