KERALA MONITOR
November 11, 2001
JUSTICE FOR WOMEN Justice Sujata Manohar* The constitutionally-guaranteed fundamental right to equality before the law and non-discrimination on the ground of sex have been used by the Supreme Court of India as well as the High Courts to ensure gender justice to women. Laws that discriminate in favour of women have also been upheld under Article 15 that permits special provisions being made for women and children. In fact, right from the day when India attained Independence and after the old Hindu law was amended through four pieces of legislation including the Hindu Succession Act to give better legal protection and legal rights to women, the statutes which were enacted for this purpose have been interpreted by the courts liberally in favour of women.
The judgements given by the Supreme Court presided over by the former Chief Justice, Dr. Justice A.S. Anand, are in the same liberal tradition. In fact, he has built upon this tradition by interpreting in the Apparel Export Promotion Council Case Article 14 as guaranteeing equality in the workplace and by holding that sexual harassment in the workplace is a denial of the right to equality at the workplace for women. His judgements on the rights of children are also etched on a broad canvas of children’s rights. He has interpreted the existing laws in a manner that will promote welfare of children. In the well-known case of Gita Hariharan v. Reserve Bank of India, he has interpreted Section 6 of the Hindu Minority and Guardianship Act liberally holding that the natural guardian of a Hindu minor in respect of the minor’s person as well as the minor’s property, can be the mother in the absence of the father.
The word ‘absence’ has to be interpreted broadly as meaning the father’s absence for any reason whatsoever in the context of taking care of the minor’s person or property. If the father is wholly indifferent to the minor even if he/she lives with the mother, or by virtue of a mutual understanding between the father and the mother, the mother is put in exclusive charge of the minor, or if the father is physically staying away from the place where the mother and the minor are living, or in any situation where the father is physically unable to take care of the minor, he can be considered as absent and the mother can be recognised as the natural guardian. She can act validly on behalf of the minor as a guardian. Justice Anand has thus very rightly ensured that the minor’s welfare is not neglected when the father is not taking or is not able to take any interest in the affairs of the minor for any reason.
In the same vein, in Noor Saba Khatoon v. Mohd. Quasim, he has held that the children of Muslim parents are entitled to maintenance under Section 125 of the Criminal Procedure Code till they attain majority or are able to maintain themselves, whichever date is earlier, or in the case of female children, till they get married. Their right is not restricted to maintenance only for a period of two years prescribed under Section 3 (1) (b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The same Section 125 came up for consideration before Justice Anand in Kirtikant Vadodaria v. State of Gujarat in a different context. The Court was required to consider whether a claim for maintenance by a step mother is sustainable against her stepson. Looking to the aims and objects of Section 125 of the Criminal Procedure Code, Justice Anand has observed that it has to be borne in mind that the dominant and primary object is to give social justice to wife, children and infirm parents and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support to pay maintenance. The aim is clearly not to leave parents, children or wife in a helpless state of distress, destitution and starvation.
Therefore, Section 125 should be given a liberal construction to achieve this intention of the legislature. Taking a balanced view he held that a childless step mother may claim maintenance from her step son provided she is a widow or her husband is incapable of supporting or maintaining her and if she does not have natural children who can support her, but not otherwise. In the case before the Court, the step mother who claimed maintenance from her step son had five natural born sons, all of whom were major and three of them were well-to-do and capable of maintaining their mother. The husband was alive and possessed sufficient means and property to maintain his second wife. In this context, he declined to give maintenance to the step mother.
Or take the interpretation of the Dowry Prohibition Act, 1961. In
S. Gopal Reddy v. State of Andhra Pradesh, the definition of the expression "dowry" was held as not confined merely to a demand made at or after the performance of marriage. A demand for dowry which is relatable to a proposal of marriage was also construed as a demand of dowry under the Act, even if, as a result of this demand, the marriage did not take place.
One of the major problem areas for women has been the way in which crimes against them have been dealt with within the criminal justice system. It is, therefore, important that the highest court in the country lays down the correct norms of appreciation of evidence in crimes such as rape. In the State of Himachal Pradesh v. Raghuvir Singh, Justice Anand held that conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is an absence of circumstances which militate against her veracity. In a case where barbaric rape and murder was committed on a helpless school-going girl by the security guard, he confirmed the capital punishment holding this to be one of the rarest of rare cases. He observed, "While a real and abiding concern for the dignity of human life is required to be kept in mind by the courts while considering the confirmation of the sentence of death, a cold-blooded, pre-planned brutal murder without any provocation after committing rape on an innocent and defenceless girl by the security guard would fall under the category of rarest of the rare cases".
Only a few of the cases decided by Justice Anand which show a deep and abiding concern for justice for women and children have been referred to in this write-up. The same concern is reflected in his speeches in a much more direct way. Judgements, unfortunately, cannot be read in the same manner as short stories or novels. The section on judgements may, therefore, prove to be somewhat difficult reading for a non-legal person. But the passages which express the set of liberal values that have moulded the judgements of the former Chief Justice of India are certainly worth reading. These judgements will pave the way for many such judgements in future.
