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Let us look at 10 women friendly rulings by various courts in the country in the year since the last Republic Day in 2020.
Although the Constitution of India grants Indian women certain fundamental rights that ensure them a dignified living, women constantly have to bear socially generated challenges that put certain limits on those rights, even though they are constitutionally guaranteed.
In situations like these, the Supreme Court in India and various High Courts across India have come forward and given significant women friendly rulings, which serve as a light at the end of the tunnel.
As we celebrate our 72nd Republic Day –the day when our Constitution came into effect, let us look at 10 significant rulings for women that have come in since last year’s Republic Day, and which give us hope that our fundamental rights will always be protected by the Constitution of India. Even if sometimes the courts slip up in terrible ways.
In August 2020, a three –judge bench headed by Justice Arun Mishra ruled that daughters will have equal rights to inherit joint Hindu family property as sons and cannot be deprived of their Right to Equality.
This ruling came in regard to the Hindu Succession (Amendment) Act, 2005. The Act came into effect in 2005 “to remove gender discriminatory provisions regarding property rights in the Hindu Succession Act, 1956.” Section 6 (1) (a) in the Act said , “the coparcenary benefit will apply on and from the commencement of the Amendment Act of 2005 with effect from September 9, 2005.”
A recent court ruling said that the 2005 law will also apply irrespective of whether the daughter was born before or after the amendment and that she could not be denied her share to the property on grounds that her father passed away before the law came into effect.
The bench observed, “Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on September 9, 2005.”
The bench also ruled, “Daughters cannot be deprived of their right of equality conferred upon them by Section 6 of the Amendment Act.”
Read about it here on Women’s Web.
A petitioner Bhuvaneshwari V. Puranik was rejected for a job appointment that she was supposed to be given on compassionate grounds after her father passed away while at his government job. She was denied the appointment because she was a ‘married’ daughter.
She challenged the grounds of rejection for being against Article 14 of the Indian Constitution which guarantees Right to Equality to all.
The Court Ruling of the Karnataka High Court said, “granting appointment to a son without any qualification and denying the same to a daughter with the qualification of marriage cannot but be held to be discriminatory (on the basis of gender). Marriage does not determine the continuance of the relationship of a child with the parent, whether son or a daughter. Son continues to be a son both before and after marriage and a daughter also should continue to be a daughter both before and after marriage. This relationship does not get affected by the fact of marriage, as marriage does not sever the relationship of the daughter with the parent. These relationships are neither governed nor defined by marital status. This notion on which the Rule is framed cannot answer the tests of Articles 14 and 15 of the Constitution.”
The Central Government denied command postings to women officers citing “physiological features and domestic obligations of women.”
The Union Government also cited, “physical limitations, the reluctance of the male troops predominantly from rural backgrounds to accept women in command, domestic obligations due to the social role of women etc.” as reasons for denying command postings to women officers.
Countering these baseless arguments, the Supreme Court said that “the physiological features of women have nothing to do with their rights.”
The Court added, “To deny the grant of permanent commission based on these stereotypes represents deeply entrenched biases,” Justice Chandrachud said, reading out the order. “It is an insult to women as well as the Army when aspersions are cast on women, their ability and their achievements in the Army.”
In a 64 page judgment, Justice Chandrachud observed, “The battle for gender equality is about confronting the battles of the mind. In the context of the Armed forces, specious reasons have been advanced by the decision makers and administrators. They range from physiology, motherhood and physical attributes to the male dominated hierarchies.”
Talking to BBC, lawyer Aishwarya Bhati who represented women officers in the Supreme Court said it was a landmark judgement. She added, “There was clear discrimination in the Army.One officer had served for 26 years without getting the same benefits as men. Now the wrong has been corrected.”
Personal content of a rape survivor, including her photos and videos were used illegally by the accused without her consent. The accused had also created a fake Facebook profile on the victim’s name but deleted it later when intervened by the police.
Justice SK Panigrahi who presided over the matter stated, “if the right to be forgotten is not recognized in such matters, any accused will surreptitiously outrage the modesty of the woman and misuse the same in cyberspace unhindered.”
One of the remarks made by the High Court states, “There is an unprecedented escalation of such insensitive behaviour on the social media platforms and the victim like the present one could not get those photos deleted permanently from the server of such social media platforms like Facebook.”
While dismissing the bail application of the accused in this case the Court also said that, “As in the instant case, the rights of the victim to get those uploaded photos/ videos erased from Facebook server still remain unaddressed for want of appropriate legislation. However, allowing such objectionable photos and videos to remain on a social media platform, without the consent of a woman, is a direct affront on a woman’s modesty and, more importantly, her right to privacy.”
Couple and Petitioners Salamat Ansari and Priyanka Kharwar (Alia) had married as per Muslim personal law in August 2019, after Priyanka voluntarily converted to Islam. The couple were both of the age of majority, and legally able to get into a contract of marriage.
The father of the bride had filed an F.I.R. against the groom Salamat Ansari, who was then arrested. The couple had then moved to the High Court to file a writ petition seeking the dismissal of the F.I.R and arrest of petitioner Salamat Ansari and three others by Priyanka Kharwar’s (Alia) father under various sections of IPC and POCSO Act.
The historic judgment by the Allahabad High Court stated , “Right to live with a person of his/her choice irrespective of religion professed by them is intrinsic to right to life and personal liberty. Interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals.”
The court also stated that, “Decision of an individual who is of the age of majority, to live with an individual of his/her choice is strictly a right of an individual and when this right is infringed it would constitute a breach of his/her fundamental right to life and personal liberty, as it includes right to freedom of choice, to choose a partner, and right to live with dignity as enshrined in Article 21 of the Constitution of India.”
A couple living together filed a petition stating that their right to life and personal liberty was being hampered by their respective families. The woman, 19 and the man, 20 expressed to the Court about their wish to get married.
However, when the woman’s family became aware of the relationship, she was harassed by them and even confined to her room. Soon, she left her house to live with her partner.
Taking cognizance of the matter, the bench headed by Justice Alka Sarin observed, “The society cannot determine how an individual should live his or her life. The Constitution guarantees every individual the right to life.The freedom to choose one’s partner is an important facet of the right to life. In the present case, the girl’s parents cannot dictate how and with whom she should spend her life since she is an adult. Parents cannot compel a child to live life on their terms. The right of an adult couple to live together cannot be denied, just because the man has not yet attained the marriageable age.”
A similar case was ruled on by the Allahabad HC too.
In a recent judgment, the Supreme Court maintained that “the value of a woman’s work is no less than her office going husband.”
A three-judge bench headed by Justice Ramanna said, “Women spend 134 minutes on unpaid caregiving services and looking after the family members while men only contribute 76 minutes.”
Citing data from the 2011 National Census, Justice Ramanna stated, “Almost 159.85 million women mentioned ‘household work’ as their main occupation while men engaged in the same were only 5.79 million.”
Justice Ramanna added that, “Women on average spend 16.9% on unpaid domestic services and 2.6% on unpaid caregiving services, while men spend 1.7% and 0.8% respectively.”
The judgment also recognized the labour put in by women residing in the rural areas of the country and highlighted that apart from the household work, rural women also have the responsibility of tending cattle.
At the end, Justice Ramanna asserted that it is extremely important to pay homemakers for the hard work they do every day because it is through their hard work that they constitute in the elevation of GDP.
Deliberating upon the Tarun Batra case where the court had earlier defined a shared household as, “any property owned by the husband’s joint family or any property in which the husband had a share,” the Supreme Court of India reversed its 2006 judgment in favour of women, granting women their Right to residence.
The judgement said, “shared household meant the place where the woman lives or at any stage has lived in a domestic relationship either singly or along with the husband and it includes the house “owned or tenanted”.
The court further said , “Guaranteeing equal rights and privileges to women by the Constitution had marked the step towards the transformation of the status of women in this country.”
The Kerala High Court said that “sexual intercourse between a man and a woman can be construed as consensual only if it is ‘welcomed’ by the latter.”
The High Court was hearing an appeal filed by a 59-year-old man against his conviction in a rape case. He was accused of committing a continuous assault on a minor in February 2009. In his appeal , the man said that the victim had consented to intercourse. The girl, who was 14-year-old then and belonged to a scheduled caste, had also been impregnated by him.
The High Court ‘upheld his conviction and dismissed the appeal.’
The bench headed by Justice P.B. Suresh Kumar in the order on 29 June 2020 ruled that “In a country like ours committed to gender equality, only sexual intercourse which is welcomed could be construed as not violative of the rights of the victim, and accepted as consensual.”
“In other words, the consent in order to relieve an act of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one’s will or pleasure” the Court said.
In 2019, following a raid at a guest house, three women were picked up by the police as ‘victims’ and were sent to the local detention facility against their will. Later, they were booked under the Immoral Traffic (Prevention) Act.
In September 2020, critical of the Magistrate’s decision to send the three women to a correctional facility without their consent, the Bombay High Court stated that the women were adults and “entitled to move freely and choose their own vocation.”
The Court further said, “Even otherwise, the Immoral Traffic (Prevention) Act, 1956 does not empower the magistrate to hold the custody of the victims beyond the period of three weeks without there being any final order to that effect after following due process of law.”
The most significant part of the order was when Justice Prithviraj Chavan ruled, “There is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution.”
Image source: shutterstock
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