Jurisprudence of gender in India

1. 0
Table of Contents
Table of Cases ....................................................................................1
I. Introduction ..............................................................................3
II. Scope of Examination ................................................................3
III. Constitutional Provisions...........................................................3
Constitutional Privileges..................................................................4
IV. Legal Provisions.........................................................................5
Crimes under the Indian Penal Code (IPC) .......................................5
Special Legal Provisions for Crimes Against Women.........................6
International Covenants ..................................................................6
V. Need for Judicial Intervention in Securing Rights.......................7
VI. Legislative Interpretation of Art. 14 ............................................7
VII. Judicial Intervention................................................................11
Against Exploitation ......................................................................11
Preservation of Female Dignity.......................................................13
Employment & Reservation for Women..........................................15
Mitigation of Severity of Law ..........................................................15
VIII. Judicial Law-Making................................................................17
IX. Illustrative Downside of Judicial Intervention...........................18
X. Author’s Viewpoint ..................................................................19
Bibliography.....................................................................................20

2. 1
Table of Cases
1. Abdul Aziz v State of Bombay, AIR 1994 SC 321
2. Agarwal v. Uttar Pradesh AIR 1993 SC 1440
3. Air India v. Nargesh Meerza, AIR 1981 SC 1829
4. Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759
5. Apparel Exp. Promotion Council v. Chopra, AIR 1999 SC 625
6. Ara v. Uttar Pradesh, AIR 2002 SC 3551
7. BS Lokhande and Anr. v. State of Maharashtra and Anr (AIR 1965 SC 1564)
8. C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Swaminathaswami
Thirukoli, (1996) 8 SCC 525
9. C. Rajakumari v. Commissioner of Police, Hyderabad, AIR 1998 AP 302
10. Cehat and Ors. v. Union of India 2003 (10) SCALE 11, (2003) 8 SCC 412 (2003)
11. Chairman, Ry. Bd. v. Das, AIR 2000 SC 988
12. Chandra v. Bihar, 1996 AIR 88
13. Chanmuniya v. Virendra Kumar Singh Khushwaha and Anr (2011) 1 SCC 141
14. Choki v. State of Rajasthan, AIR 1971 Raj. 10
15. Dattatreya v. State of Bombay AIR 1953 Bom.311
16. Govt. of Andhra Pradesh v. Vijayakumar AIR 1995 SC 1648
17. Gupta v. Uttar Pradesh (2005) 5 SCC 172
18. Kaushal v. Kaushal, AIR 1978 SC 1807
19. Lakshmi v. Punjab University AIR 2003 SC 3331
20. Lily Thomas v. Union of India AIR 2000 SC 1650
21. Madan Mohan Singh and Ors. v. Rajni Kant and Anr [2010] INSC 631
22. Madhu Krishnan v. State of Bihar,(1956) 5 SCC 148
23. Miss Radha Bai v. The Union Territory of Pondicherry Represented By Its
Chief Secretary, 1995 AIR 1476 1995 SCC (4) 141 – Jt 1995 (4) 34 1995 Scale
(2) 842
24. Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945
25. Miss C.B. Muthamma v. Union of India, AIR 1979 SC 1868

3. 2
26. Mrs. Githa Hariharan & Anr v. Reserve Bank Of India & Anr AIR 1999, 2. SCC
228
27. Mrs. Rupan Deol Bajaj & Anr v. Kanwar Pal Singh Gill & Anr 1996 AIR 309,
1995 SCC (6) 194
28. Municipal Corporation of Delhi v. Female workers (Muster Roll) & Anr, 2000
ICIR 879
29. Ran Raj Rajeshwari v. The State of Uttar Pradesh, AIR 1954 All. 608
30. Reddy v. Andhra Pradesh (1993) 4 SCC 439
31. Sadhu Singh v. Gurudwara Saheb Narike 2007 (1) HLR (SC) 1
32. Satpathy v. Dixit AIR 1999 SC 3348
33. Smt. Sarla Mudgal v. Union of India AIR 1995 SC 1531
34. Sesharathamma v. Manikyamma (1991) 3 SCR 717
35. Shri Ramakant Rai and Health Watch U.P. and Bihar v. Union of India and
Singh v. Ramendri Smt. AIR 2000 SC 952
36. Smt. Bimla Rani & Ors v. Appellate Authority, 113 (2004) DLT 441, (2005)
IILLJ 148 Del, 2005 (1) SLJ 481 Delhi
37. State of Jammu and Kashmir v. Dr. Susheela Sawhney AIR 2003 JK 83, 2003
(1).
38. State Of Maharashtra and Anr v. Madhukar Narayan Mardikar AIR 1991 SC
207 (1990)
39. State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284
40. Suresh Kumar Koushal & Anr v. NAZ Foundation & Ors Civil Appeal No. 10972
of 2013
41. Suresh Kumari v State of Haryana, 1995 (4) Crimes 643 C.P.S.14
42. The Union Territory of Pondicherry Represented By Its Chief Secretary 1995
AIR 1476 1995 SCC (4) 141-Jt 1995 (4) 34 1995 Scale (2) 842
43. Union of India v. Prabhakaran (1997) 11 SCC 638
44. Vishaka v. State of Rajasthan AIR 1997 SC 3011
45. Vishal Jeet v Union of India, AIR 1990 SC 1412
46. NALSA vs Union of India Writ Petition (Civil) No. 400 of 2012.

4. 3
I. Introduction
The principle of gender equality is enshrined in the Indian Constitution in its
Preamble, Fundamental Rights, Fundamental Duties and Directive Principles. The
Constitution not only grants equality to women, but also empowers the State to adopt
measures of positive discrimination in favor of women. Within the framework of a
democratic polity, our laws, development policies, Plans and programmes have aimed
at women’s advancement in different spheres. India has also ratified various
international conventions and human rights instruments committing to secure equal
rights of women. Key among them is the ratification of the Convention on Elimination
of All Forms of Discrimination Against Women (CEDAW) in 1993.
II. Scope of Examination
Since the ambit of the subject is large, I have found it necessary to confine my
research paper to brief examination of constitutional and legal provisions for women
and their interpretation by Indian courts in three selected fields, viz. interpretation of
Art. 14, exploitation and dignity, employment and reservations and the steadily
expanding ambit of such interpretation.
III. Constitutional Provisions
The Constitution of India not only grants equality to women but also empowers the
State to adopt measures of positive discrimination in favor of women for neutralizing
the cumulative socio economic, education and political disadvantages faced by
them. Fundamental Rights, among others, ensure equality before the law and equal
protection of law; prohibits discrimination against any citizen on grounds of religion,
race, caste, sex or place of birth, and guarantee equality of opportunity to all citizens in
matters relating to employment. Articles 14, 15, 15(3), 16, 39(a), 39(b), 39(c) and 42
of the Constitution are of specific importance in this regard.

5. 4
Constitutional Privileges
India’s Constitution grants women the following specific privileges:
i. Equality before law for women (Article 14)
ii. The State not to discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them (Article 15 (i))
iii. The State to make any special provision in favour of women and children
(Article 15 (3))
iv. Equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State (Article 16)
v. The State to direct its policy towards securing for men and women equally the
right to an adequate means of livelihood (Article 39(a)); and equal pay for equal
work for both men and women (Article 39(d))
vi. To promote justice, on a basis of equal opportunity and to provide free legal
aid by suitable legislation or scheme or in any other way to ensure that
opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities (Article 39 A)
vii. The State to make provision for securing just and humane conditions of work
and for maternity relief (Article 42)
viii. The State to promote with special care the educational and economic interests
of the weaker sections of the people and to protect them from social injustice
and all forms of exploitation (Article 46)
ix. The State to raise the level of nutrition and the standard of living of its people
(Article 47)
x. To promote harmony and the spirit of common brotherhood amongst all the
people of India and to renounce practices derogatory to the dignity of women
(Article 51(A) (e))
xi. Not less than one-third (including the number of seats reserved for women
belonging to the Scheduled Castes and the Scheduled Tribes) of the total number
of seats to be filled by direct election in every Panchayat to be reserved for

6. 5
women and such seats to be allotted by rotation to different constituencies in a
Panchayat (Article 243 D(3))
xii. Not less than one- third of the total number of offices of Chairpersons in the
Panchayats at each level to be reserved for women (Article 243 D (4))
xiii. Not less than one-third (including the number of seats reserved for women
belonging to the Scheduled Castes and the Scheduled Tribes) of the total number
of seats to be filled by direct election in every Municipality to be reserved for
women and such seats to be allotted by rotation to different constituencies in a
Municipality (Article 243 T (3))
xiv. Reservation of offices of Chairpersons in Municipalities for the Scheduled
Castes, the Scheduled Tribes and women in such manner as the legislature of a
State may by law provide (Article 243 T (4)
IV. Legal Provisions
To uphold the Constitutional mandate, the State has enacted various legislative
measures intended to ensure equal rights, to counter social discrimination and various
forms of violence and atrocities and to provide support services especially to working
women. Although women may be victims of any of the crimes such as ‘Murder’,
‘Robbery’, ‘Cheating’ etc, the crimes, which are directed specifically against women,
are characterized as ‘Crime against Women’. These are broadly classified under two
categories.
Crimes under the Indian Penal Code (IPC)
 Rape (Sec. 376 IPC)
 Kidnapping & Abduction for different purposes ( Sec. 363-373)
 Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC)
 Torture, both mental and physical (Sec. 498-A IPC)
 Molestation (Sec. 354 IPC)
 Sexual Harassment (Sec. 509 IPC)
 Importation of girls (up to 21 years of age)

7. 6
Special Legal Provisions for Crimes Against Women
Although all laws are not gender specific, the provisions of law affecting women
significantly have been reviewed periodically and amendments carried out to keep pace
with the emerging requirements. Some acts which have special provisions to safeguard
women and their interests are:
i. The Employees State Insurance Act, 1948
ii. The Plantation Labour Act, 1951
iii. The Family Courts Act, 1954
iv. The Special Marriage Act, 1954
v. The Hindu Marriage Act, 1955
vi. The Hindu Succession Act, 1956 with amendment in 2005
vii. Suppression of Immoral Traffic (Prevention) Act, 1956
viii. The Maternity Benefit Act, 1961 (Amended in 1995)
ix. Dowry Prohibition Act, 1961
x. The Medical Termination of Pregnancy Act, 1971
xi. The Contract Labour (Regulation and Abolition) Act, 1976
xii. The Equal Remuneration Act, 1976
xiii. The Prohibition of Child Marriage Act, 2006
The Criminal Law (Amendment) Act, 1983
xiv. The Factories (Amendment) Act, 1986
xv. Indecent Representation of Women (Prohibition) Act, 1986
xvi. Commission of Sati (Prevention) Act, 1987
xvii. The Protection of Women from Domestic Violence Act, 2005
International Covenants
India is a signatory to all the following international conventions that bear
specific references to women’s rights:
i. Universal Declaration of Human Rights, 1948
ii. Convention on the Political Rights of Women, 1954
iii. The International Covenant on Civil and Political Rights, 1966

8. 7
iv. International Covenant on Economic, Social and Cultural Rights, 1966
v. Beijing Principles of the Independence of the Judiciary, 1995
vi. Declaration on Elimination of Violence against Women 1993 and Convention
on Elimination of all forms of Discrimination against Women (CEDAW)
V. Need for Judicial Intervention in Securing Rights
Notwithstanding such impressive array of laws, the World Economic Forum’s
Measuring the Global Gender Gap Report, 2012 places India’s gender gap at 105th
rank,
up from 113 in 20111
. India’s 105th
rank and score of 0.6442 is bettered by Sri Lanka
with its 39th
rank and score of 0.7122. Surprisingly, a developing country like the
Philippines ranks 8th
with an enviable score of 0.7757, immediately after Denmark but
two ranks above developed Switzerland. The US Council of Foreign Relations states
that rape complaints increased by 25% from 2006-11 with a low conviction rate of 26%,
while NCRB statistics showed a 7.1% rise in crimes against women since 20102
. How
have courts dealt with such executive indifference to women’s rights?
VI. Legislative Interpretation of Art. 14
In a landmark judgement in State of West Bengal v. Anwar Ali Sarkar3
, the Apex
Court noted that:
….the State in the exercise of its governmental power must have
necessity make laws operating differently on different groups or classes
of persons within its territory to attain particular ends in giving effect to
its policies…….indeed the very idea of classification is that of
equality……
In Madhu Krishnan v State of Bihar4
, the Court noted that although women formed half
of the Indian population they have always been discriminated against men, suffered
1
Table 3a: The Global Gender Gap Index 2012 rankings: comparisons with 2011, 2010, 2009, 2008, 2007
and 2006
2
Xu, Beina: Backgrounder: Governance in India: Women’s Rights, Council on Foreign Relations,
extracted on Jan 15, 2014 from http://www.cfr.org/india/governance-india-womens-rights/p30041
3
1952 SCR 284
4
(1956) 5 SCC 148.

9. 8
denial and are suffering discrimination in silence. Self-sacrifice and self-denial are their
nobility and fortitude and yet they have been subjected to all kinds of inequities
indignities, incongruities and discrimination. Having laid down the fundamental rules
of equality before the law under Art. 14, the Court embarked on a series of
interpretations of the statutes in force.
In its landmark judgment the Apex Court in Air India v Nargesh Meerza5
held
that a woman shall not be denied employment merely on the ground that she is a woman
as it amounts to violation of Article 14 of the Constitution. In this case, air-hostesses of
Indian Air Lines and Air India challenged the service rules which stated that:
Air-hostesses shall not marry for the first four years of their joining; they
will lose their jobs if they become pregnant. They will retire at the age
of 35 years, unless the Managing Director extends the term by ten years
at his discretion.
The Supreme Court of India suggested that the first provision was legal, as it would
help in promotion of the family planning programmes, and would increase the
expenditure of airlines recruiting air-hostesses on temporary or ad hoc basis, but the
second and third provisions were declared as unethical, abhorrent, unreasonable,
arbitrary, unconstitutional and an open insult to Indian womanhood. In a similar case,
Air India Cabin Crew Association v. Yeshawinee Merchant and others6
, the Apex Court
directed that air hostesses in Air India would continue in service till they attained the
age of 58 years, like their male counterparts.
Rules regarding seniority and promotion in the Indian Foreign Service was
challenged before the Apex Court in Miss C.B. Muthamma v Union of India,7
where it
was held that the rules relating to seniority and promotion in the Indian Foreign Service
which discriminated only on ground of sex was not only unconstitutional but also a
hangover of the masculine culture of handcuffing the weaker sex. In this instant case a
writ petition was filed before the Apex Court wherein it was contended that she had
5
AIR 1981 SC 1829
6
RD-SC 291
7
AIR 1979 SC 1868

10. 9
been denied promotion to Grade I on the ground of sex, which violated the Art. 15 of
the Constitution of India, 1950. The Apex Court allowed the petition and held that Rule
8 (2) of the Indian Foreign Service (Conduct and Discipline) Rules, 1961 which required
an unmarried woman member to take permission of the Government before the marriage
and that after the marriage, she may be asked any time to resign if it is felt that her
family life affected her efficiency contravened Art. 15 of the Constitution of India. In
view of the above decision, now these provisions have been deleted.
In Smt. Bimla Rani & Ors v. Appellate Authority, it was held that equal pay for equal
description of work was liable to be paid to female employees and not by mere change
of designation8
. The Supreme Court, in Municipal Corporation of Delhi v. Female
workers (Muster Roll) & Anr9
said:
We have scanned the different provisions of the Act, but we do not find
anything contained in the Act which entitles only regular woman
employees to the benefit of maternity leave and not those who are
engaged on casual basis or on muster roll on daily wage basis.
In the offence of adultery, S. 497 of the Indian Penal Code, 1860 punished only the
male counterpart and exempted the woman from punishment. The constitutional validity
of S. 497 of the IPC was challenged on the ground that it violated Art. 14 and 15(1) of
the Constitution. In Abdul Aziz v State of Bombay,10
the Apex Court upheld the validity
of the provision on the ground that the classification was not based on the ground of sex
alone. The Court relied upon the mandate of Art. 15(3) of the Constitution of India to
uphold the validity of the said proviso of the Code. However, in the present case the
petitioner contended that even though the woman may be equally guilty as an abettor,
only the man was punished, which violates the right to equality on the ground of sex. It
was contended that Section 497, IPC violated Art. 14 and 15 of the Constitution on the
ground that it makes an irrational classification between men and women in that:
8
113 (2004) DLT 441, (2005) IILLJ 148 Del, 2005 (1) SLJ 481 Delhi
9
2000 ICIR 879
10
AIR 1994 SC 321

11. 10
(i) it contents upon the husband the right to prosecute the adulterer
but it does not confer any right upon the wife to prosecute the
woman with whom her husband committed adultery;
(ii) it does not confer any right on the wife to prosecute the husband
who has committed adultery with another woman; and
(iii) it does not take in cases where the husband has sexual relation
with an unmarried woman with the result that it amounts to
having a free licence under the law to have extra marital
relationship with unmarried woman.
However, the Apex Court rejected these contentions and held that it could be said that
in defining the offence of adultery so as to restrict the class of offender to men, any
constitutional provision is infringed.
In Ran Raj Rajeshwari v The State of Uttar Pradesh,11
wherein the issue related
to a discriminatory provision in a status was adjudicated under the UP Court of Wards
Act, 1912. According to this Act a male proprietor could be declared incapable in
managing his property only on one of the five grounds mentioned therein and that too
after giving him an opportunity of showing cause as to why such a declaration should
not be made, a female proprietor could be declared incapable to manage her property on
any ground and without giving her any show cause notice. The Allahabad High Court
held that this provision was bad because it amounted to sexual discrimination that
violated Art. 15(1) of the Constitution of India.
In Apparel Export Promotion Council v. A.K. Chopra12
, the court found that the
distinction between attempt to molest and completed act erroneous in context of
dismissal of employee for sexual harassment. In fact, in Chairman, Ry. Bd. v. Das13
,
Apparel Exp. Promotion Council v. Chopra14
, and Vishaka v. Rajasthan15
, the Apex
Court approached the issue of gender based violence by relying on the international
11
AIR 1954 All. 608
12
(1999) 1 S.C.C. 759
13
AIR 2000 SC 988
14
AIR 1999 SC 625
15
AIR 1997 SC 3011

12. 11
legal norm of gender violence being an issue of equality, and that freedom of it is a
fundamental right protected under the constitution. Specifically the court had tried to
incorporate CEDAW into its analysis.
VII. Judicial Intervention
Against Exploitation
Art. 23 of the Constitution provides the right against exploitation. The
constitutional provision prohibits traffic in human beings. In this context traffic in
human beings includes “devadasi system”. The Apex Court in Vishal Jeet v Union of
India,16
observed that trafficking in human beings was prevalent in India for a long time
in the form of selling and purchasing of human beings for prostitution for a price just
like that of vegetables. On the strength of Art. 23(1) of the Constitution, the legislature
passed the Immoral Traffic (Prevention) Act, 1956 abolishing the practice of
prostitution and other forms of trafficking including “devadasi system”. The court
further observed that this Act was made in pursuance of the international convention
against immoral traffic which India had signed.
In Ara v. Uttar Pradesh17
, Singh v. Ramendri Smt.18
, Satpathy v. Dixit19
,
Sesharathamma v. Manikyamma20
and Kaushal v. Kaushal21
, the Court interpreted
ambiguous laws in a manner that was protectionist towards women-such such as
labeling women as being destitute after divorce. In Mohd. Ahmed Khan v. Shah Bano
Begum22
, the Court determined that a Muslim woman who was divorced should be paid
alimony. The case created a lot of controversy since Muslim religious leaders did not
want the court to interpret religious concepts in the area of family without religious
authority. In Lily Thomas v. Union of India23
, and Smt. Sarla Mudgal v. Union of India24
,
16
AIR 1990 SC 1412
17
AIR 2002 SC 3551
18
AIR 2000 SC 952
19
AIR 1999 SC 3348
20
(1991) 3 SCR 717
21
AIR 1978 SC 1807
22
AIR 1985 SC 945
23
AIR 2000 SC 1650
24
AIR 1995 SC 1531

13. 12
the Court negated the right of Hindu men to convert to Islam to avail of Muslim
protectionist marriage laws, such as for exercising polygamy. In C. Masilamani
Mudaliar v. Idol of Sri Swaminathaswami Swaminathaswami Thirukoli25
, the Court held
that “personal laws conferring inferior status on women is anathema to equality.”
In State Of Maharashtra And Anr v. Madhukar Narayan Mardikar26
, the Court
opined that even a woman with easy virtue was entitled to privacy and no one could
invade her privacy as and when he liked. So also, it was not open to any and every
person to violate her person as and when he wished. Therefore, merely because she is a
woman of easy virtue, her evidence could not be thrown overboard. In Cehat And Ors.
vs Union Of India27
, the Court took on the unique role of actually monitoring the
implementation of the law and issuing several beneficial directives over the course of
three years during which the case was proceeding in court. This petition put the issue of
sex selection and sex selective abortion on the national agenda and as a consequence
there have been heightened activities on this issue by government and non-
governmental agencies alike.
In Miss Radha Bai v. The Union Territory of Pondicherry Represented By Its
Chief Secretary28
, when Radhabai, Secretary to Mr. D Ramchandran, the then Minister
for State, protested against his abuse of girls in the welfare institutions, he attempted to
molest her, which was followed by her dismissal. The Supreme Court in 1995 passed
the judgment in her favor, with back pay and perks from the date of dismissal. Mrs.
Rupan Deol Bajaj & Anr vs Kanwar Pal Singh Gill & Anr29
changed the meaning of the
terms, modesty and privacy in such a way that any kind of harassment or inconvenience
done to a woman’s private or public life would be considered an offence.
25
(1996) 8 SCC 525
26
AIR 1991 SC 207 (1990)
27
2003 (10) SCALE 11, (2003) 8 SCC 412 (2003)
28
1995 AIR 1476 1995 SCC (4) 141 - Jt 1995 (4) 34 1995 Scale (2)842
29
1996 AIR 309, 1995 SCC (6) 194

14. 13
Preservation of Female Dignity
The issue of whether beauty contests violated Constitutional provisions, the Andhra
Pradesh High Court in C. Rajakumari v Commissioner of Police, Hyderabad30
held that
if a beauty contest indecently represent any woman by depicting in any manner the
figure of woman, form, body or any part thereof in such a way so as to have the effect
of being indecent, or derogatory to or degrading women, or likely to deprive, corrupt
and injure the public morality would violate the provisions of the Indecent
Representation of Women (Prohibition) Act, 1986 and would also be unconstitutional
as it violated Art. 14, 21 and 51-A of the Constitution of India.
In Shri Ramakant Rai and Health Watch U.P. and Bihar v. Union of India and
Others31
, it was held that women had the human right to voluntary sterilization services
that were not coercive, discriminatory or violent. The court asked state governments to
take steps to regulate doctors and other providers who perform sterilization procedures.
The mandate of S. 437 of the Code of Criminal Procedure, 1973 permits distinction in
favour of women even if there appears to be a reasonable ground for believing that they
have been guilty of an offence punishable with death or imprisonment for life.32
In other
words this section prohibits release of a person accused of a capital offence on bail
except women and children under 16 years of age or sick or infirm person. In Choki v
State of Rajasthan,33
the Rajasthan High Court held that it was valid on the ground that
it makes special provision for women and therefore, it was protected under Article 15(3)
of the Constitution.
In Ara v. Uttar Pradesh34
, Singh v. Ramendri Smt.35
, Satpathy v. Dixit36
,
Sesharathamma v. Manikyamma37
and Kaushal v. Kaushal38
, the Court interpreted
ambiguous laws in a manner that was protectionist towards women-such such as
30
AIR 1998 A.P. 302
31
Civil Writ Petition No 209/2003
32
Suresh Kumari v State of Haryana, 1995 (4) Crimes 643 C.P.S. 14.
33
AIR 1971 Raj. 10.
34
AIR 2002 SC 3551
35
AIR 2000 SC 952
36
AIR 1999 SC 3348
37
(1991) 3 SCR 717
38
AIR 1978 SC 1807

15. 14
labeling women as being destitute after divorce. In Mohd. Ahmed Khan v. Shah Bano
Begum39
, the Court determined that a Muslim woman who was divorced should be paid
alimony. The case created a lot of controversy since Muslim religious leaders did not
want the court to interpret religious concepts in the area of family without religious
authority. In Lily Thomas v. Union of India40
, and Smt. Sarla Mudgal v. Union of India41
,
the Court negated the right of Hindu men to convert to Islam to avail of Muslim
protectionist marriage laws, such as for exercising polygamy. In C. Masilamani
Mudaliar v. Idol of Sri Swaminathaswami Swaminathaswami Thirukoli42
, the Court held
that “personal laws conferring inferior status on women is anathema to equality.” In
State Of Maharashtra And Anr v. Madhukar Narayan Mardikar43
, the Court opined that
even a woman with easy virtue was entitled to privacy and no one could invade her
privacy as and when he liked. So also, it was not open to any and every person to violate
her person as and when he wished. Therefore, merely because she is a woman of easy
virtue, her evidence could not be thrown overboard. In Miss Radha Bai v. The Union
Territory of Pondicherry Represented By Its Chief Secretary44
, when Radhabai,
Secretary to Mr. D Ramchandran, the then Minister for State, protested against his abuse
of girls in the welfare institutions, he attempted to molest her, which was followed by
her dismissal. The Supreme Court in 1995 passed the judgment in her favor, with back
pay and perks from the date of dismissal. Mrs. Rupan Deol Bajaj & Anr vs Kanwar Pal
Singh Gill & Anr45
changed the meaning of the terms, modesty and privacy in such a
way that any kind of harassment or inconvenience done to a woman’s private or public
life would be considered an offence.
39
AIR 1985 SC 945
40
AIR 2000 SC 1650
41
AIR 1995 SC 1531
42
(1996) 8 SCC 525
43
AIR 1991 SC 207 (1990)
44
1995 AIR 1476 1995 SCC (4) 141 - Jt 1995 (4) 34 1995 Scale (2)842
45
1996 AIR 309, 1995 SCC (6) 194

16. 15
Employment & Reservation for Women
The Bombay High Court in Dettatreya v State of Bombay,46
held that reservation
of some seats in women’s college was not unconstitutional. The court observed that
establishment of educational institution exclusively for women was not hit by Art. 15
of the Constitution. In Govt. of Andhra Pradesh v. Vijayakumar47
, the court upheld
affirmative action for women in public employment. In Agarwal v. Uttar Pradesh48
and
Reddy v. Andhra Pradesh49
, the Court held that reservation of seats for women in
municipal boards and boards of cooperative societies were protected by Art. 15(3) of
the Constitution. In Gupta v. Uttar Pradesh50
, Lakshmi v. Punjab University51
, Union
of India v. Prabhakaran52
, Pansari v. Orissa53
, Chandra v. Bihar54
and Kavitha v. Tamil
Nadu55
, the Court upheld the reservation of seats for women in public institutions
Mitigation of Severity of Law
In the landmark judgement delivered by the Jammu and Kashmir High Court in the
case of State of Jammu and Kashmir v. Dr. Shusheela Sawhney56
the court held that the
daughter of a permanent resident of the State of Jammu and Kashmir by marrying a non-
permanent resident did not lose her status as permanent resident of the State of Jammu
and Kashmir to hold, inherit and acquire immovable property in the State of Jammu and
Kashmir. It was also held that right of employment of a woman who is in employment
of the State and at the time of initial appointment is permanent resident of the State can
continue to be in employment of the State even after her marriage with the non-
permanent resident57
.
46
AIR 1953 Bom. 311
47
AIR 1995 SC 1648
48
AIR 1993 SC 1440
49
(1993) 4 SCC 439
50
(2005) 5 SCC 172
51
AIR 2003 SC 3331
52
(1997) 11 SCC 638
53
AIR 2000 SC 1531
54
1996 AIR 88
55
1992 AIR 359
56
AIR 2003 J K 83, 2003 (1)
57
2003(1) JKJ p.35.

17. 16
In Ms. Githa Hariharan & Anr vs Reserve Bank Of India & Anr58
, the Supreme
Court diluted the severity of the Hindu Adoption and Maintenance Act which declares
a father as the sole natural guardian by expanding the definition of natural guardian and
declaring the circumstances in which a Hindu Mother could also be treated as a natural
guardian59
.
Courts have also stepped in to contemporary areas such as male-female
cohabitation and rights accruing therefrom. In the case of Madan Mohan Singh and Ors.
V. Rajni Kant and Anr.60
, the Court relied upon a decision reported in AIR 1992 SC 756
where it was held that if man and woman are living under the same roof and cohabiting
for number of years, there will be a presumption under Section 114 of the Evidence Act,
that they live as husband and wife and the children born to them will not be illegitimate.
In the case of Chanmuniya v. Virendra Kumar Singh Khushwaha and Anr.61
, has laid
down:
We are of the opinion that a broad and expansive interpretation should
be given to the term 'wife' to include even those cases where a man and
woman have been living together as husband and wife for a reasonably
long period of time, and strict proof of marriage should not be a pre-
condition for maintenance under S. 125 of the Cr PC, so as to fulfill the
true spirit and essence of the beneficial provision of maintenance under
S. 125.
However the Supreme Court itself in the case of Sadhu Singh v. Gurudwara
Saheb Narike62
has held that “wife or widow” in the context of marriage, succession or
maintenance enactments are of restrictive legal character imply relationships that result
from a recognized legal mode of marriage and would not include a relationship which
is not recognized by law. In B.S. Lokhande and Anr. v. State of Maharashtra and Anr63
,
58
AIR 1999, 2. SCC 228
59
1999 AIR 1149 1999( 1 )SCR 669 1999( 2 )SCC 228 1999( 1 )SCALE490 1999( 1 )JT 524
60
[2010] INSC 631
61
2011) 1 SCC 141
62
2007 (1) H.L.R., (S.C.) 1
63
(AIR 1965 SC 1564)

18. 17
the Apex Court stated that merely because the couple lived together as husband and
wife, the status of wife was not conferred on the woman in such a relationship.
VIII. Judicial Law-Making
In Cehat And Ors. vs Union Of India64
, the Court took on the unique role of
actually monitoring the implementation of the law and issuing several beneficial
directives over the course of three years during which the case was proceeding in court.
This petition put the issue of sex selection and sex selective abortion on the national
agenda and as a consequence there have been heightened activities on this issue by
government and non-governmental agencies alike.
In 1997, in a landmark case before the Apex Court stemming from the brutal
gang rape of a publicly employed social worker at work Vishaka v. State of Rajasthan65
,
the Court stated that a woman’s constitutional rights to life (with dignity), to equality
and to practice any profession or carry out any occupation under Art. 14 & 19,
demanded safeguards against sexual harassment in the workplace. In the absence of
legislative safeguards, the Court, stated that an “affective alternative mechanism” was
needed to prevent violations of these fundamental rights in the workplace. To that end,
the Court established guidelines (Vishaka Guidelines) with regards to the prevention
and redress of sexual harassment in the workplace. These set out a series of obligations
on employers to prevent or deter acts of sexual harassment and to remedy occasions
where such acts take place. The Court stated that the Vishaka Guidelines were to be
treated as a declaration of law and to apply until relevant protective legislation was
enacted by the Parliament. The Court in Medha Kotwal Lele vs. Union of India directed
States and the Bar Council of India to take certain measures so that the Visakha
Guidelines did not remain “lip service, hollow statements and inert and inadequate laws
with sloppy enforcement are not enough for true and genuine upliftment of our half most
precious population – the women”.
64
2003 (10) SCALE 11, (2003) 8 SCC 412 (2003)
65
AIR 1997 SC 3011

19. 18
IX. Illustrative Downside of Judicial Intervention
Notwithstanding major changes in social mores and the emergence of hitherto
unknown (in India) forms of relationships, including online social media and same sex,
Indian courts have consistently upheld the constitutional validity of Section 497,
ostensibly to keep women out of the purview of criminal law. It is obvious that no
adultery can be committed unless a woman is a consenting partner. The judicial
perception that only a man can be “an outsider”, who has potential to invade the peace
and privacy of the matrimonial unit and to poison the relationship between the unfaithful
wife and her husband, therefore, seems to be, with due respect, less convincing and
unrealistic. “An outsider woman”, can, like “an outsider man”, be equally capable of
“invading” the matrimonial peace and privacy as well as of “poisoning” the relationship
of not only her own matrimonial home but also that of her paramour.
Similarly, the judicial opinion that Section 198(1) read with Section 198(2)
CrPC, disqualifying the wife of an unfaithful husband for prosecuting him for his
promiscuous behaviour, with due respect, is unconvincing and illogical. Such judicial
reasoning, in ultimate analysis, unfortunately endorses the patriarchal, property-oriented
and gender-discriminatory penal law of adultery. It conveys that a man is entitled to
have exclusive possession of, and access to, his wife's sexuality, and a woman is not
eligible to have such an exclusive right and claim over her husband. She is, therefore,
not entitled to prosecute either her promiscuous husband or the “outsider woman” who
has poisoned (or colluded with her promiscuous husband to do so) her matrimonial
home. The Apex Court, thus, failed to take contemporary insight of this gender-biased
law of adultery although it has, from time to time, asserted that it is for the legislature
to take cognizance of the social “transformation” and not for it. What is even more
surprising is that the Apex Court has not hesitated in steadily expanding the scope of
Art. 21 for all Indians, including women.
Courts have also been reticent about recognizing the LGBT community as the
‘third sex’. Although the Delhi High Court granted recognition to this community in
Suresh Kumar Koushal & Anr v. NAZ Foundation & Ors66
, upon appeal the Apex Court
66
CIVIL APPEAL NO.10972 OF 2013

20. 19
overruled the High Court and upheld the validity of S. 377 of the IPC. It was not until
NALSA vs Union of India67
that the Apex Court declared that Transgendered People
were the 'third gender' and that they had equal rights as any other gender. The petitioner
in this case was the National Legal Services Authority (NALSA).
X. Author’s Viewpoint
While the legal framework for protection of women and legal/judicial processes
tedious and expensive, indeed often too complicated for the common woman, timely
and inexpensive enforcement remains the biggest hurdle in assuring the efficacy of such
framework. Many laws such as those relating to S. 377, 497, 498-A, etc. deserve to be
repealed and replaced with more contemporary ones that are in synch with rapidly
changing social lifestyles and attendant social mores. Family courts are a welcome part
solution to enforcement but sheer numbers overwhelm them. Even within the existing
legal framework, courts often allow meagre compensation for alimony, maintenance of
children and unrealistic compensation for the loss of a partner. In a large country like
India, where exploitation of the indigent and women are more the rule than an exception,
enforcement remains slave to executive indifference. There is little courts can do, save
for an occasional intervention in favor of those that seek its protection. Religious laws
often compound human misery in matters of property, inheritance, marriage,
maintenance, et al, lending greater credence for existing Indian laws to be replaced by
a uniform civil code. As Mr. Nani Palkhivala, the celebrated Indian jurist encapsulated
the state of the nation:
…..the most persistent tendency in India is to have too much government
but too little administration; too many laws and too little justice; too
many public servants and too little public service; too many controls and
too little welfare.
67
Writ Petition (Civil) No. 400 of 2012

21. 20
Bibliography
All Criminal Law Reporter
All India Reporter (SC)
Beijing Principles of the Independence of the Judiciary, 1995 extracted on Jan 25, 2015 from
lawasia.asn.au/objectlibrary/147?filename=Beijing%20Statement.pdf
Commission of Sati (Prevention) Act, 1987
Constitution of India extracted on Jan 15, 2015 from http://indiacode.nic.in/coiweb/welcome.html
Convention on the Political Rights of Women, 1954 extracted on Jan 20, 2015 from
https://treaties.un.org/doc/.../1954/07/19540707%2000.../Ch_XVI_1p.pdf
Declaration on Elimination of Violence against Women 1993 and Convention on Elimination of all forms
of Discrimination against Women (CEDAW) extracted on Jan 26, 2015 from
http://www.un.org/womenwatch/daw/cedaw/
Dowry Prohibition Act, 1961
Indecent Representation of Women (Prohibition) Act, 1986
Indian Penal Code extracted on Jan 15, 2015 from districtcourtallahabad.up.nic.in/articles/IPC.pdf
International Covenant on Economic, Social and Cultural Rights, 1966 extracted on Jan 24, 2015 from
www.who.int/hhr/Economic_social_cultural.pdf
Services Law Journal
Suppression of Immoral Traffic (Prevention) Act, 1956
Supreme Court Supplementary without volume
Supreme Court/High Court cases from www.indiankanoon.com
The Employees State Insurance Act, 1948
The Contract Labor (Regulation and Abolition) Act, 1976
The Criminal Law (Amendment) Act, 1983
The Equal Remuneration Act, 1976
The Factories (Amendment) Act, 1986
The Family Courts Act, 1954
The Hindu Marriage Act, 1955
The Hindu Succession Act, 1956 with amendment in 2005
The International Covenant on Civil and Political Rights, 1966 extracted on Jan 22, 2015 from
https://treaties.un.org/doc/Publication/.../volume-999-I-14668-English.pdf
The Maternity Benefit Act, 1961 (Amended in 1995)
The Medical Termination of Pregnancy Act, 1971
The Plantation Labor Act, 1951
The Prohibition of Child Marriage Act, 2006
The Protection of Women from Domestic Violence Act, 2005
The Special Marriage Act, 1954
Universal Declaration of Human Rights, 1948 extracted on Jan 18, 2015 from
http://www.un.org/en/documents/udhr/