Tag Archive for women and law

Chennai HC Judgment: A judicial let down!

women and law

Flawed reasoning that has no backing of existing laws, lack of required judicial discretion, failure to accord permissible amount of maintenance are some of the flaws of the judgment passed by the Chennai High Court last month

By Aruna Burte

“….if any couple, subject to their attaining the mandatory age of freedom, who indulge in sexual gratification, then that would be considered as valid marriage and they could be termed as ‘husband and wife’, as a result of their choice of freedom.” Thus declared Chennai High Court judge C.S. Karnan, on 17th June 2013, while giving judgement on the criminal revision case of maintenance of Coimbatore family court.

The judgement created a huge controversy and provided fodder to all sorts of reactions verging on frivolity on various social networking platforms. Though the hype died down, the real issue was relegated to oblivion!

However, it is very important to discuss the issue because it is about judicial discretion and awarding permissible maintenance.

The case
The facts of Aysha v. Ozir Hasan (MN.64 of 2000 of Coimbatore Family Court) case are: Ayesha claimed that she married Ozir Hasan in 1994 and had two children (dates 21.12.1996 and 31.12.1998). They stayed as family until 1999 when he deserted her.

She filed for maintenance of Rs.5000/- as her husband’s earning was Rs.25000/- in the year 2000. She submitted proofs which included birth certificates of their two children, her husband’s signature for a caesarean operation (for the birth of the second child), a family certificate where his signature appears as the head of the family and witness of doctor who performed family planning operation on her.

The family court granted maintenance Rs.500/- per child and Rs.1000/- towards court expenses to the woman on 28.4.2006 but denied her maintenance citing the lack of documentary proof of her marriage. She appealed to the high court.

The Chennai High Court judge C.S. Karnan revised the family court order and granted Rs.500/-maintenance to the woman. She would be entitled to this from the date of petition i.e. September 2000. The arrears from that date onwards till May 2013 would have to be paid in three months and a sum of Rs 500 per month thereafter.

The judgement
The awarding maintenance to the deserted woman is creditable. The judgement, however, fails on two grounds. One – it is full of flawed reasoning. Two – it does not award a permissible amount of maintenance to the woman.

The main issue in this case was how to decide woman’s marital status in the absence of sufficient documentary proofs of marriage. The proof of five years co-habitation along with birth certificates of children was enough ground to grant maintenance under section 125 Cr.P.C. It was the first marriage for both the woman and the man in question. They had no third party encumbrance. They were both of legal age. What needed was to expand the definition of ‘wife’ as in earlier cases of Supreme Court. For example in Vimala (K.) v. Veeraswamy (K.), [(1991) 2 S.C.C. 375, the man had denied the marriage. There was no documentary proof of marriage but the proof of a fairly long period of cohabitation was submitted. The man extended the argument that he had married earlier. However, he could not submit proof for this argument. Therefore, the Supreme Court declared that the man is liable to pay maintenance to Vimala.

In another case of Dwarika Prasad Satpathy v. Bidyut Prava Dixit (1999) 7 S.C.C. 675, the Supreme Court said that it is not strictly mandatory to provide documentary proof of marriage under section 125 Cr.P.C. unlike the bigamy section Cr.P.C. 494. Under Cr.P.C. 125, if the woman is able to submit proof of co-habitation for a sufficient period of time, the man and woman in the case would be considered as husband and wife. The man has the scope of disproving cohabitation by providing proofs. But if he cannot do so then he is liable to pay maintenance to the woman. The Chennai High Court could and should have made the argument by sighting similar judgements. But the judgement did not do so.

Instead, it gave opinions on valid marriages, sexual behaviour, and validity or otherwise of registration and host of such matters. In other words, the reasoning of the judgement is based is seriously problematic. It does not show required judicial discretion which is clear from the following sentences of the judgement:

“This Court is of the view that if a woman aged 18 or above has a sexual relationship with a man, aged 21 or above, and during the course of such relationship, if the woman becomes pregnant, she would henceforth be treated as the ‘wife’ and the man would be treated as the ‘husband’. Even if the girl does not become pregnant after having such sexual relationship with a man but if there is strong documentary evidence to show the existence of such relationship then also the couple involved in such acts would be termed as ‘wife’ and ‘husband’.”

The judgement in the next paragraph states if the there is any dispute the ‘husband’ in such relationship has to obtain divorce before he marries second time! It further says:

“This Court is of the further view that if the bachelor has completed 21 years of age and the spinster 18 years of age respectively then they acquire the freedom of choice as guaranteed by the Indian Constitution. Consequently, any couple who choose to consummate their sexual cravings then that act becomes a total commitment which adherence to all consequences that may follow except on certain exceptional considerations. Therefore, the marriage formalities as per custom or registering of marriage at a Government Registration Office is only to comply with each one’s respective custom or for the satisfaction of the society.”

‘Hence, the main legal aspect for valid marriage is consummation or sexual interaction…’

The court declares the woman in question ‘wife’ and the man ‘husband’ in arbitrary manner. And hence, the man is liable to pay maintenance to wife. The arguments are problematic for the following reasons:

• As shown in the paragraphs above the arguments have no backing of existing law relating to validity of marriages and divorce and also of previous cases.

• It carries conflicting statements. For example it says, ‘In India there is no need of registration of marriage to prove validity, only the proof of sexual relationship is sufficient’. In the same breath it states, ‘if the couple wants to seek divorce in such cases they should do so legally’.
To take a legal divorce, some documentary proof would be required. In one sentence processes that provide documentation like registration is trashed and in the next its requirement is stated. On one level the registration of marriage is trashed and on the other all adult consenting sexual relations are declared marriage. What can be said of this sort of ill-logic?

• This conflicting and contradictory statement raises more questions than answering the existing ones. For example, what about short-time sexual relationship? What happens to citizens who are against ‘marriage’ as such? Is registration of marriages so insignificant?

• The choice of words like ‘sexual gratification’ and ‘any couple who want to consummate sexual cravings’ show non-liberal, moralistic, narrow and judgemental attitude towards male-female sexual relations. To declare all consenting sexual relations as marriage is nothing short of assuming moral policing. This attitude hampers the autonomy and privacy of citizens which is pre-requisite of democracy. Such ideology cannot ensure women’s rights in the end.

• Such regressive ideology compartmentalises human sexuality into ‘marriage’ and ‘prostitution’. There is patriarchy lurking in it. In fact, men and women are interacting freely due to education, profession, jobs, art, etc today. The young generation wants to breathe free of restrictions of marriage. Many want to go in for live-in relationships. The horizons of personal freedom and concepts are ever increasing. Only liberalism can help to create responsible sexual relationships amongst the youngsters. The opinions in the judgement are not conducive for creating such milieu in the society. For protecting women’s right to maintenance how can broader democratic rights of which women’s rights are part, be flouted? It is viewing women’s rights from the point of male dominance after all! Sadly, one has to admit that our learned judges are also product of the all pervading patriarchal world-view.

• Lack of legal discretion is dangerous. It is arbitrary and therefore not in the tradition of democracy and liberalism. Democracy allows citizens to exercise autonomy in personal lives.

• In fact, the lower courts depend on the judgements of High Courts. Therefore, the high court judges are expected to exercise greater discretion. But the present judgement is wrongly argued and lacks legal discretion.

There is a tradition of judges expressing their perspective while delivering judgements. This judgement could have done following:

• Could have ascertained whether the maintenance paid for children is applied from date of application or not. And whether it is paid regularly, since there are many defaulters.

• Under the same amendment, it was directed to dispose of such cases in 60 days from the date of application. In this case, it was relevant that judge could have commented upon.

• Could have increased the limit of maintenance by sighting amendment of 2001 to Cr.P.C.125 wherein limit of Rs.500/- was lifted. Do high court judges, not only in this case but in many other cases, not know of this amendment or they do not want to interpret the law in favour of disadvantaged i.e. women? With the limit of Rs.500/- deleted, judges are free to interpret the amount of maintenance based on the income of the respondent.

• This judgement had the scope to state the need of expanding economic rights of women beyond the sum of maintenance to ‘matrimonial property or community of property’. But it is very difficult to this looking at the mindset from which this judgement originated.

Finally, but most importantly, we all have to understand that ‘maintenance’ is one side of the coin of women’s secondary status due to patriarchy. We need to revise the campaigns for rights of deserted women led by Ms. Vijaya Chauk of 1990 of Dhule district in Maharathtra; long drawn struggle asserting land rights of single women of Bahe village in Maharashtra and present day single women’s struggles.

They all demand economic rights of and entitlements for women i.e. jobs, employment, opportunities, rightful shelter, credit etc. While these struggles outside the perview of courts are important to bring substantial relief and dignity to women it is equally necessary to critique judgements from feminist and democratic rights point of view.

Aruna Burte is a writer and feminist activist based in Solapur, Maharashtra

Justice Verma: A judge who fought for women’s rights

Justice Verma

With the sad demise of Justice Verma, the Indian women’s movement has lost one of its most noble defenders

By Team FI

Justice J S Verma, the much respected jurist who died of multiple organ failure on Monday at the age of 80, was cremated yesterday with state honour in New Delhi. He was the former Chief Justice of India and ex-Chairperson of the National Human Rights Commission (NHRC).

On behalf of the women’s movement, Vrinda Grover (lawyer), Suneeta Dhar, Madhu Mehra and others attended the funeral at the Lodhi Road crematorium and paid tribute to the great human rights defender.

Noted women’s rights lawyer Flavia Agnes told FeministsIndia that she is honoured to have interacted with Justice Verma. “Justice Verma will always be remembered for his humility, dedication and commitment towards women. Three landmark decisions in his career paved the way for women’s legal rights. His Vishaka Judgment ensured security to women at the workplace in the absence of a law. As Chairperson of the NHRC, he ordered the retrial and transfer of the Bilkis Banu case and lastly and most significantly he prepared the progressive and practical Verma Committee Report post the Delhi rape.”

Justice Verma began his legal career in 1955. He was responsible for several landmark judgments that made him the face of judicial activism in the country. In May 1997, during his term as the Chief Justice of India the Supreme Court of India adopted the Charter “Restatement of Values of Judicial Life”. This charter, served as a code of conduct, a guide for the judiciary of India to be strong, independent and impartial.

In 1997, as the Chief Justice of the Supreme Court, he passed a landmark judgement in the case of Vishaka v. State of Rajasthan. It gave the country its first definition and framework for sexual harassment at the work place, recognizing sexual violence as an abuse of a woman’s constitutional and human rights.

Three landmark decisions in his career paved the way for women’s legal rights

After retiring from the Supreme Court, Justice Verma served as the chairperson of the NHRC from November 1999 to January 2003. In the aftermath of the Gujarat riots, he led an NHRC team that visited Gujarat from March 19 to 22, 2002. The team submitted a report on April 1, 2002 which was welcomed by human rights groups in the country. In an interview to Tehelka magazine in 2008, Justice Verma unequivocally stated that NHRC had passed two orders on April 1 and May 31, 2002, which had “indicted the state government of Gujarat. In the April order, the NHRC clearly stated that the government is doing little to stop the violation of fundamental rights to life and dignity of the people in Gujarat.”

Renowned feminist economist Devaki Jain stated that India has lost “a great luminary and the noblest of human beings.” She described his tenure as the Chairperson of NHRC as one of the glorious periods for those who were working in the field of human rights in India. “He was always accessible and willing to respond to ideas and positions which were not ‘associated with important people’. Justice Verma opened his mind and the doors of NHRC, with what can be called ‘immediate effect’ to a proposal I made for what at that time we called ‘Indigenizing Human Rights Education’,” said Devaki Jain.

Activist Sheba George commented, “He will be remembered for his landmark NHRC report on the 2002 violence in Gujarat and also for the work he did to end violence against women after the gruesome gang rape in Delhi last December.”

Last year, in December, the brutal gang rape of a young woman and her subsequent death as a result of her injuries had the country and its capital engulfed in protest and anger. The government appointed a three member panel headed by Justice Verma to formulate recommendations to create stronger laws against sexual violence. The Verma Commission took in suggestions and opinions not only from women and human rights groups in the country but also individuals across the nation. Within 29 days, a 630 page report was submitted to the government. The report went above and beyond the call of duty by not just recommending changes to the current laws but framing a comprehensive gender policy.

Though the report was applauded by women’s and human rights groups in the country, the government response with the Criminal Law Amendment 2013 came as a letdown by ignoring some of the key points made in the Verma Commission report.

Justice Verma is survived by his wife and two daughters.

In memoriam: Lotika Sarkar 1923 – 2013

Lotika Sarkar

Saluting Professor Lotika Sarkar who fought to make the country’s laws uphold gender justice and women’s rights

By Vibhuti Patel

Professor Lotika Sarkar who played a central role in several path-breaking and crucial legislations for gender justice and empowerment of women during 1975-2005, passed away at the age of 90 on 23rd February 2013. In the women’s rights movement, she was known as Lotikadee.

When other stalwarts of women’s studies touched our hearts with inspirational speeches in the women’s movement gatherings, Lotikadee floored us with her legal acumen. The first Indian woman to graduate from Cambridge, Dr. Lotika Sarkar was the first woman to join the law faculty at the University of Delhi. She taught Criminal law and was a mainstay of the Indian Law Institute, Delhi during 1980s and 1990s. She was a member of the Government of India’s Committee on the Status of Women in India and a founding member of several institutions—the Indian Association for Women Studies (IAWS) and the Centre for Women‘s Development Studies (CWDS).

Lotikadee was in the peak of her career, when she was asked to join Committee on Status of Women in India, 1972 that prepared Towards Equality Report, 1974. As a pioneer in the fields of law, women’s studies and human rights, she prepared the chapter on laws concerning women in the Status of Women’s Committee Report with gender sensitivity and analytical clarity to promote women’s rights.

Along with three law professors of Delhi University – Prof. Upendra Baxi, Prof. Kelkar, Dr. Vasudha Dhagamwar, Lotikadee wrote the historic Open Letter to the Chief Justice of India in 1979, challenging the judgment of the apex court on the Mathura rape case. I remember cutting stencil and making copies on our cyclostyling machine of the 4-page long letter for wider circulation. Translation of this letter into Gujarati and Hindi served as a crash course in understanding the nuances of criminal justice system, rape laws and sexual violence as the weapon to keep women in a perpetual state of terrorization, intimidation and subjugation. It resulted in birth of the first feminist group against rape in January, 1980 – Forum Against Rape.

In 1980, along with Dr. Veena Mazumdar, Lotikadee founded Centre for Women’s Development Studies. When Lotikadee came to Mumbai for the first Conference on Women’s Studies in April, 1981 at SNDT women’s University, we, young feminists were awe-struck! Ideological polarization in this conference was extremely volatile. Lotikadee’s commitment to the left movement did not prevent her from interacting meaningfully with liberals, free-thinkers and also the new-left like me. Indian Association of Women’s Studies was formed in this gathering. In the subsequent conferences, Lotikadee attracted innumerable legal luminaries to IAWS.

At the initiative of her students, Amita Dhanda and Archana Parashar, a volume of Essays, Engendering Law: in Honour of Lotika Sarkar was published in 1999 by Eastern Book Company, Delhi.

Lotikadee and her journalist husband Shri. Chanchal Sarkar was kind, generous and trusting. After her husband passed away she was under immense trauma and grief. Taking advantage of this situation, her cook and a police officer whose education she and her husband had sponsored, usurped her property and house. Her students, India’s top lawyers and judges mobilized support and signed an open letter studded with such names as Justice V.R. Krishna Iyer, Soli Sorabjee, Gopal Subramaniam and Kapila Vatsyayan. Jurists, advocates, academics, bureaucrats, journalists and human rights activists signed the open letter demanding justice for her. Finally, Lotika Sarkar’s property and assets was transferred back to her to allow her to live her life in peaceful serenity, which she so deserved. Lotikadee’s traumatic experience invited serious attention on safeguarding the rights of senior citizens by both state and civil society.

Lotikadee was a conscience keeper not only for policy makers and legal fraternity but also for the women’s studies and women’s movement activists. The most appropriate tribute to Lotikadee is to proactively pursue the mission she started with her team in 1980, to fight against rape and various forms of structural and systemic violence against women and to strive for social justice, distributive justice and gender justice. The resurgence of activism against sexual violence and feminist debate around Justice Verma Commission’s Report as well as Criminal Law (Amendment ) Ordinance, 2013 constantly reminds us of the pioneering work of Lotikadee in terms of creating a strong band of committed and legally aware feminists who are following her footsteps. Let us salute Lotikadee, torchbearer of gender justice by continuing her heroic legacy.

Vibhuti Patel is active in the women’s movement in India since 1972 and currently teaching at SNDT Women’s University, Mumbai.