'Courts Should Not Further The Notion That Only Male Child Will Assist Parents In Old Age; Avoid Patriarchal Remarks' : Supreme Court

The Supreme Court has advised Courts to refrain from making patriarchal remarks in judgments. A bench comprising Chief Justice of India DY Chandrachud, Justice Hima Kohli and Justice PS Narasimha was deciding a petition seeking to review the death penalty awarded to a convict for the kidnap and murder of a 7-year old boy.

The bench noted that the Supreme Court, in its appeal confirming the death penalty, had taken the killing of a male child to be an aggravating circumstance. In its order dismissing the appeal, the Supreme Court had  noted - 

"Purposefully killing the sole male child, has grave repercussions for the parents of the deceased.Agony for parents for the loss of their only male child, who would have carried further the family lineage, and is expected to see them through their old age, is unfathomable. Extreme misery caused to the aggrieved party, certainly adds to the aggravating circumstances".

In the review proceedings, the present bench took exception to such remarks made in the appeal judgment. It was categorically noted in the present round of proceedings that though the murder of a child is a gruesome act, the gender of the child cannot in itself be an aggravating circumstance.

“In such a circumstance, it does not and should not matter for a constitutional court whether the young child was a male child or a female child. The murder remains equally tragic. Courts should also not indulge in furthering the notion that only a male child furthers family lineage or is able to assist the parents in old age. Such remarks involuntarily further patriarchal value judgements that courts should avoid regardless of the context", the judgment authored by CJI Chandrachud stated.

Also read - Rarest Of Rare Doctrine Requires Death Sentence Be Imposed Only If There Is No Possibility Of Reformation : Supreme Court

In the 2021 judgment in the case Aparna Bhat and others vs State of Madhya Pradesh and others, the Supreme Court had issued several guidelines to Courts to avoid patriarchal and misogynistic comments in judgments.

While setting aside a bail condition imposed by the Madhya Pradesh High Court directing the accused in a sexual harassment case to get rakhi tied by the victim, a bench comprising Justices AM Khanwilkar and S Ravindra Bhat directed that courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that :

(i)women are physically weak and need protection;

(ii) women are incapable of or cannot take decisions on their own;

(iii) men are the "head" of the household and should take all the decisions relating to family;

(iv) women should be submissive and obedient according to our culture;

(v) "good" women are sexually chaste;

(vi)motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother;

(vii) women should be the ones in charge of their children,their upbringing and care;

(viii) being alone at night or wearing certain clothes make women responsible for being attacked;

(ix) a woman consuming alcohol, smoking,etc. may justify unwelcome advances by men or "has asked for it";

(x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony;

(xi) testimonial evidence provided by women who are sexually active may be suspected when assessing "consent" in sexual offence cases;and

(xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman

Case details : Sundar @ Sundarrajan v. State by Inspector of Police| 2023 LiveLaw (SC) 217

Click Here To Read/Download Judgment