Two students of NUSRL, Ranchi have moved the Jharkhand High Court challenging Section 64 of CrPC, on the basis of it being a gender biased provision.
Section 64 states "Where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate."
The Petitioner students Rajiv Pandey and Ravikant Sharma contend that this provision creates inequality upon the women of the country by not letting them to accept the summons on behalf of the person so summoned.
"By the perusal of the above sections it is reflected that a summons can only be served to the adult male member of the family and excludes the female member to receive summon when the person so summoned cannot be found. That prohibition made by statute of receiving the summons to any specific gender violates the basic principles of the fundamental right of equality under Articles 14 and 15 of the Constitution. The above provision also violates the right to know under Article 19," the plea states.
They have submitted that in its 37th Report, the Law Commission of India took note of the changing social conditions and accordingly modified Section 70 of the CrPC, 1898. It had recommended that servants are no more like family members and hence the provision should not be continued. Consequently, an explanation was added thereon to exclude the servant as the member of the family.
In this backdrop it has been argued that the contemporary social conditions have changed and men and women are considered equal. Hence, it has been prayed that the gender specific part of Section 64 be struck down and the provision should be made applicable to all adult members of the family.
The Petitioners have compared this provision to Order V Rule 15 of the CPC which stipulates "Service may be on an adult member of defendant's family".
"In a civil law both male and female can receive summon without any discrimination whereas Section 64 of the Code of Criminal Procedure is gender discriminatory in nature where only the adult male member of the family can receive summon when the person summoned cannot be found. In any civilized society discrimination cannot be justified on any ground whatsoever," the plea read.
They have further pointed out that the implied prohibition of serving summons on the female member of the family is a major cause of delay in criminal cases. They elaborated,
"the prohibition to receive summon by the female in a criminal case is one of the causes of delay of justice because a working male person is generally not found at the home during the general office hours which is of 9 AM to 5 PM. And usually the female of the house being the housemaker stays at home. And if in case we restrict women from receiving the summon in the absence of the person being summoned, the serving officers will not be able to summon the person on time it becomes one of the reasons of delay of justice."
Hence, the Petitioners have sought that the word "male" be struck down from Section 64 of CrPC to the effect that it allows receipt of summons by an adult member of the family residing with the person so summoned.
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