Indian feminist scholarship has extensively examined embedded patriarchy in legal rules and their application by the courts. It is often argued that women's access to justice, which is both a fundamental human right and an essential means to implement other human rights, is inadvertently curbed by the Indian judicial set-up which is entrenched in patriarchy and is oblivious to her needs....
Indian feminist scholarship has extensively examined embedded patriarchy in legal rules and their application by the courts. It is often argued that women's access to justice, which is both a fundamental human right and an essential means to implement other human rights, is inadvertently curbed by the Indian judicial set-up which is entrenched in patriarchy and is oblivious to her needs. However, Indian Courts have made some leaps in 2022 in terms of employing feminist jurisprudence in its judgements. From the banning of the two-finger test for rape survivors to extending the right of safe abortions to unmarried women, as the year comes to an end, it is time to look at 22 judgements of 2022 where Indian Courts decided cases from a feminist perspective and furthered the cause of equal justice for all.
1. Banning of Two-Finger Test: Supreme Court Says It's Based On Patriarchal Mindset That Sexually Active Women Can't Be Raped
Case Title: State of Jharkhand vs Shailendra Kumar Rai @ Pandav Rai | 2022 LiveLaw (SC) 890
Coram: CJI DY Chandrachud and Justice Hima Kohli
The Supreme Court reiterated the ban on "Two-Finger Test" in rape cases and warned that persons conducting such tests will be held guilty of misconduct. "It is regrettable that "two-finger test" continues to be conducted even today", the bench lamented while restoring the conviction in a rape case. "This court has time and again deprecated the use of two finger test in cases alleging rape and sexual assault. The so called test has no scientific basis. It instead re-victimises and re-traumatises women. The two finger test must not be conducted...The test is based on an incorrect assumption that a sexually active woman cannot be raped. Nothing can be further from the truth", the bench observed while pronouncing the judgment.
2. Supreme Court Cautions Indian Army To Have SSB For Promotion Of Women Army Officers
Case Title: Nitisha v. Union of India MA 1913/2022 in W.P.(C) No. 1109/2020
Coram: CJI DY Chandrachud and Justice PS Narasimha
In an application filed in a plea seeking rank promotion for women army officers, the Supreme Court, cautioned the Army authorities (Defence Ministry) that it would pass peremptory order to ensure promotion of women army officers. The court also expressed concern that the authorities were not treating the women officers fairly. The petitioners had expressed anguish that after the order in The Secretary, Ministry of Defence v. Babita Puniya, 1200 officers (male) junior to the petitioners had been promoted, while the promotions for the petitioners who were women had been withheld. Women Short Service Commission Officers were not able to reap the benefits of the Supreme Court judgments which opened the avenues for them to seek Permanent Commission, as the selection boards for promotion had been held only for male officers. After the cautioning, the Indian Army informed the Supreme Court of India that special selection board for the women officers in the Army will be commencing from 9 January 2023, when cases of approximately 246 women officers will be heard.
3. Equal Abortion Rights For All: Supreme Court Affirms Reproductive Autonomy of Women
Case Title: X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi | 2022 LiveLaw (SC) 621
Coram: CJI D.Y. Chandrachud, Justice A.S. Bopanna, and Justice J.B. Pardiwala
The Supreme Court held that unmarried women were entitled to seek abortion of pregnancy in the term of 20-24 weeks arising out of a consensual relationship. The judgement also held that the meaning of rape must be held to include "marital rape" for the purpose of the Medical Termination of Pregnancy Act and Rules and doctors need not disclose the identity of any minor girl seeking abortion in the information given to police. While discussing the rights concerning reproductive and bodily autonomy of women, the judgement clarified that the term women also included persons who identified as any other gender but required access to reproductive healthcare. The judgement, while affirming the right to reproductive choice as being firmly rooted in a person's bodily autonomy, along with being an essential facet of Article 21 of the Constitution of India, highlighted the positive obligations of the State with regards to this right. The bench noted that the true realisation of reproductive autonomy could only be ensured by State's active participation in the process. It also noted–
4. Maternity Leave Under CCS Rules Can't Be Denied Because Woman's Husband Has Two Children From His Previous Marriage: Supreme Court
Case Title: Deepika Singh versus Central Administrative Tribunal | 2022 LiveLaw (SC) 718
Coram: CJI D.Y. Chandrachud and Justice A.S. Bopanna
Supreme Court held that a woman cannot be declined maternity leave under the Central Services (Leave Rules ) 1972 with respect to her biological child on the ground that her spouse has two children from his earlier marriage. According to Rule 43, only a female employee with less than two surviving children can seek maternity leave. In this case, the woman's husband had two children from his previous marriage and she had previously availed child care leave for her non-biological child. When a child was born to her in the marriage, the authorities denied her maternity leave, citing the bar under Rule 43. The Apex Court held that Rule 43 of the Central Civil Services (Leave Rules) 1972 has to be given a purposive interpretation in terms of the Maternity Benefit Act and Article 15 of the Constitution of India, under which the State is to adopt beneficial provisions for protecting the interest of women.
Also from the judgment - Family May Take Form Of Unmarried Or Queer Relationships, Atypical Families Also Entitled To Protection Of Law : Supreme Court
5. Police Should Not Abuse Sex Workers, Media Should Not Publish Their Pictures During Raid & Rescue Operations: Supreme Court
Case Title: Budhadev Karmaskar v. State of West Bengal And Ors. | Criminal Appeal No. 135 of 2010
Coram: Justice L. Nageswara Rao, Justice B.R. Gavai, and Justice A.S. Bopanna
Asserting that the basic protection of human decency and dignity extends to sex workers, the Supreme Court directed that the police should treat sex workers with dignity and should not abuse them, verbally or physically. Further, the Court directed that media should not publish their pictures or reveal their identity while reporting rescue operations and stated that the offence of voyeurism under Section 354C of the Indian Penal Code should be enforced if media publishes the pictures of sex workers with their clients. The Press Council of India has been directed to issue appropriate guidelines in this regard.
6. Every Woman In A Domestic Relationship Can Enforce Right To Reside In 'Shared Household' Even In Absence Of Any Domestic Violence: Supreme Court
Case Title: Prabha Tyagi vs Kamlesh Devi | 2022 LiveLaw (SC) 474
Coram: Justice M R Shah and Justices B V Nagarathna
The Supreme Court observed that every woman in a domestic relationship has a right to reside in the shared household even in the absence of any act of domestic violence. She cannot be evicted, excluded or thrown out from such a household even in the absence of there being any form of domestic violence, the bench observed. The Court added that such a right can be enforced under Section 17(1) of the Protection of Women from Domestic Violence Act, 2005, irrespective of whether she is an aggrieved person or not. The Court also held that a victim of domestic violence can enforce her right to reside in a shared household, irrespective of whether she actually lived in the shared household. "Even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the D.V. Act.", the bench held.
Also from the judgment- Domestic Violence Victim Can Enforce Her Right To Reside In 'Shared Household' Even If She Has Not Actually Lived There: Supreme Court
7. 'Limits Women's Choice Of Avocation Under The Guise Of Protection': Supreme Court Quashes Gender Cap In Orchestra Bars: Supreme Court
Case Title: Hotel Priya A Proprietorship v. State Of Maharashtra | 2022 LiveLaw (SC) 186
Coram: Justice KM Joseph and Justice S. Ravindra Bhat
In a significant judgment disapproving gender-based stereotypes, the Supreme Court held that the condition imposing a gender cap as to the number of women or men, who can perform in orchestras and bands, in licenced bars, is unconstitutional. While the overall limit of performers in any given performance cannot exceed eight, the composition (i.e., all female, majority female or male, or vice versa) can be of any combination, the Court clarified, while allowing the appeal filed by a hotel challenging the restrictions imposed by Mumbai Police. The Court observed that the restriction capping the number of women performers emanated from gender-based stereotypes. "Practices or rules or norms are rooted in historical prejudice, gender stereotypes and paternalism have no place in our society", the bench observed. The court added that such restrictions limit or exclude altogether women's choice of their avocation.
8. Daughter's Right To Inherit Self-Acquired Property Of Father Dying Intestate Recognized Under Customary Hindu Law: Supreme Court
Case Title: Arunachala Gounder (Dead) Vs Ponnusamy | 2022 LiveLaw (SC) 71
Coram: Justice S. Abdul Nazeer and Justice Krishna Murari
The Supreme Court observed that a daughter is capable of inheriting the self-acquired property or share received in the partition of a coparcenary property of her Hindu father dying intestate. In this case, the property in question was admittedly the self-acquired property of Marappa Gounder. The question raised by the appellant was whether Late Gounder's sole surviving daughter Kupayee Ammal, will inherit the same by inheritance and the property shall not devolve by survivorship? The Court was considering the question whether a sole daughter could inherit her father's separate property dying intestate (prior to the enactment of Hindu Succession Act, 1956). To answer this issue, the Apex Court bench referring to customary Hindu Law and also judicial pronouncements, observed that the right of a widow or daughter to inherit the self-acquired property or share received in the partition of a coparcenary property of a Hindu male dying intestate is well recognized not only under the old customary Hindu Law but also various judicial pronouncements.
9. Limitation Period under Section 468 CrPC not applicable for offences under Section 12 Domestic Violence Act: Supreme Court
Case Title: Kamatchi v. Lakshmi Narayanan | 2022 LiveLaw (SC) 370
Coram: Former CJI UU Lalit and Justice PS Narasimha
The Supreme Court held that the limitation period prescribed under Section 468 of the Code of Criminal Procedure is not applicable for the filing of an application by an aggrieved woman under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The Supreme Court held as erroneous a judgment of the Madras High Court which held that the Section 12 application ought to have been filed within one year of the acts of alleged domestic violence.
10. Female Members of a Tribal Community should be entitled equal share in the property of the father: Supreme Court
Case Title: Kamla Neti (D) vs Special Land Acquisition Officer | 2022 LiveLaw (SC) 1014
Coram: Justice MR Shah and Justice Krishna Murari
This case was regarding a claim of the share of a woman belonging to the Scheduled Tribe Community under the Hindu Succession Act. While the court found that a female member of the scheduled tribe was not entitled to any right of survivorship under the provisions of Hindu Succession Act, it asked the Central Government to consider bringing a suitable amendment to Hindu Succession Act in this regard. The court stated that when a daughter belonging to a non-tribal community is entitled to the equal share in the property of the father, there is no reason to deny such right to the daughter of a Tribal community. It noted–
"Female tribal is entitled to parity with male tribal in intestate succession. To deny the equal right to the daughter belonging to the tribal even after a period of 70 years of the Constitution of India under which right to equality is guaranteed, it is high time for the Central Government to look into the matter and if required, to amend the provisions of the Hindu Succession Act by which the Hindu Succession Act is not made applicable to the members of the Scheduled Tribe."
11. Woman Additional District and Sessions Judge reinstated on directions of Supreme Court after she was constrained to resign post raising allegations of sexual harassment against a sitting HC judge
Case Title: Ms. X vs Registrar General, High Court of Madhya Pradesh | 2022 LiveLaw (SC) 150
Coram: Justices L. Nageswara Rao and B.R. Gavai
The Supreme Court reinstated a woman Additional District and Sessions Judge ("AD&SJ"), who was constrained to resign, after she raised allegations of sexual harassment against a then sitting Judge of the Madhya Pradesh High Court. Acknowledging the petitioner's resignation was not voluntary, the Bench comprising Justices L. Nageswara Rao and B.R. Gavai quashed the order passed by the Government of Madhya Pradesh, Law and Legislative Affairs Department, accepting the resignation of the petitioner and directed her reinstatement with continuity in service.
12. In a Rape Case, once the Court believes survivor's version, failure of police to send seized clothes to forensic laboratory is insignificant: Supreme Court
Case Title: Somai v. State of Madhya Pradesh (Now Chhattisgarh) | 2022 LiveLaw (SC) 989
Coram: Justice Sanjay Kishan Kaul and Justice Abhay S. Oka
In this case, the court found that once the court believes the statement of a survivor of sexual assault, it is sufficient to establish an offence punishable under Section 376 of the Indian Penal Code, 1860. It further noted that the failure of the police to send seized articles to the forensic science laboratory would not affect the outcome in such a case.
13. Supreme Court Lifts Stay On 30% Quota For Women Domiciled In Uttarakhand In State Services
Case Title: State of Uttarakhand vs Pavitra Chauhan and Ors | SLP (C) No. 18143/2022
Coram: Justice S. Abdul Nazeer and Justice V. Ramasubramanian
The Supreme Court, through this case, lifted the stay which the Uttarakhand High Court had imposed on the Government Order which provided 30% reservation to the women domiciled in State of Uttarakhand in State Services. The High Court had stayed the GO on the prima facie view that the government order was contrary to the mandate of Article 16(2) of the Constitution of India. It is pertinent to note that this direction was passed as an interim order.
14. Rape Victim's Statement Under Section 164 CrPC Must Not Be Disclosed To Any Person Including Accused Till Charge-Sheet Is Filed: Supreme Court
Case Title: X vs M Mahender Reddy | 2022 LiveLaw (SC) 899
Coram: Former CJI UU Lalit and Justice Bela M. Trivedi
The Supreme Court reiterated that a rape victim's statement made under Section 164 CrPC should not be disclosed to any person including the accused till charge-sheet/final report is filed. The bench also suggested the High Courts to make appropriate modifications/amendments to the Criminal Practice/Trial Rules incorporating provisions consistent with the directions in these decisions.
15. Mother who Remarries After the Death of the Biological Father Can Decide Surname of the Child: Supreme Court
Case Title: Akella Lalita vs Sri Konda Hanumantha Rao | 2022 LiveLaw (SC) 638
Coram: Justice Dinesh Maheshwari and Justice Krishna Murari
The Supreme Court observed that a mother who remarries after the death of the biological father can decide the surname of the child and include it in her new family. The bench set aside an Andhra Pradesh High Court judgment which directed a mother to change the surname of her child and also to show the name of her new husband in records only as 'step father'. The court said that such a direction is almost "cruel and mindless of how it would impact the mental health and self-esteem of the child".
16. Woman's 'Provocative Dress' No Licence For Man To Outrage Her Modesty: Kerala High Court
Case Title: State of Kerala v. Civic Chandran and XXXXX v. State of Kerala | 2022 LiveLaw (Ker) 522
Coram: Justice Kauser Edappagath
While granting anticipatory bail to author and social activist Civic Chandran in a sexual harassment case, a Kerala Sessions Court had observed that the offence under Section 354A of the Indian Penal Code is not prima facie attracted when the woman was wearing 'sexually provocative dresses'. The order resulted in massive outrage across the country. The Kerala High Court expunged the 'sexually provocative dress' remark of Kozhikode Sessions Court. The court observed that dressing of a victim cannot be construed as a legal ground to absolve an accused from the charge of outraging the modesty of a woman. It noted– "The right to wear any dress is a natural extension of personal freedom guaranteed by the Constitution and a facet of the fundamental right under Article 21 of the Constitution. Even if a woman wears a provocative dress that cannot give a licence to a man to outrage her modesty."
17. Person Has Right To Specify Only Mother's Name In Identity Documents: Kerala High Court
Case Title: XXX v. Registrar of Births and Dead Pathanamthitta Municipality and ors. | 2022 LiveLaw (Ker) 373
Coram: Justice P. V Kunhikrishnan
Kerala High Court, while allowing a Writ Petition held that a person has the right to not specify the name of their father in identity documents. The Court passed the order recognising the agonies faced by children of unwed mothers and rape victims. Referring to the Mahabharata character Karna, the Court observed in the judgment "We want a society with no such characters like "Karna," who curses his life because of the insult he faced for not knowing the whereabouts of his parents". The court also stated, "A child of an unwed mother is also a citizen of our country, and nobody can infringe any of his/her fundamental rights, which are guaranteed in our Constitution".
18. Calling A Girl "Item" Is Derogatory, Roadside Romeos Deserve A Heavy Hand: Mumbai Court
Case Title: The State of Maharashtra v. Abrar Noor Mohammad Khan C.R. No.381/2015
Coram: Judge SJ Ansari
A special court of Mumbai held that calling an unknown girl "item" and pulling her hair would amount to outraging her modesty punishable under Section 354 of the IPC. It accordingly sentenced a 25-year-old businessman from Mumbai to a year and a half in prison in a sexual harassment case. The special judge observed that "Item is a term used generally by boys to address girls in a derogatory fashion as it objectifies them in a sexual manner, the same will clearly indicate his intention of outraging her modesty." He also stated, "Such offences need to be dealt with a heavy hand as a lesson needs to be meted out to such road side romeos, in order to protect the women from their uncalled for behaviour. Consequently, there does not arise any question of granting the benefit of probation to the accused or showing unwarranted leniency to him."
19. Third Gender Candidates Entitled To Special Reservation: Madras High Court
Case Title: Tamilselvi v. The Secretary to Government and others | 2022 LiveLaw (Mad) 430
Coram: Justice R Suresh Kumar
The Madras High Court directed the state Health and Family Welfare Department and Directorate of Medical Education to provide special reservation to the third gender/ transgender in the admissions for Post Basic (Nursing) Course. The direction was passed after a transgender woman approached the court with a plea seeking quashing of the Prospectus issued for the Post Basic (Nursing) Course and Post Basic Diploma in Psychiatry Nursing Course for the academic year 2022-2023 after she was considered only a woman in the merit list prepared by the Selection Committee.
20. Strain In Marriage Ground For Wife To Seek Abortion Of Pregnancy Upto 24 Weeks, Legal Divorce Or Husband's Consent Not Required: Kerala High Court
Case Title: X v. Union of India | WP(C) NO. 29402 OF 2022
Coram: Justice V.G. Arun
The Kerala High Court said that the drastic changes in matrimonial life of a pregnant woman fulfils the condition of 'change of her marital status' in Rule 3B of the Medical Termination of Pregnancy (MTP) Rules, thus making her eligible to undergo medical termination of pregnancy up to 24 weeks. The court also noted that although she may not be legally divorced, her husband's permission would not be required for undergoing medical termination of pregnancy. The court passed the ruling on a 21-year-old woman's petition seeking permission to undergo Medical Termination of Pregnancy. Her recent marriage had run into a rough weather due to the alleged excesses committed against her by her husband and her mother-in-law. Her husband even questioned the paternity of the unborn baby and refused to provide any support, the court was told. Considering the circumstances, when the woman decided to terminate the pregnancy and approached the doctors, she was told she does not fulfil the conditions under MTP Act and Rules.
21. "Male Chauvinism Unacceptable": Allahabad High Court Dismisses Plea Challenging Different PET Criteria For Males & Females
Case Title: Pramod Kumar Singh And 5 Others v. State Of U.P. | 2022 LiveLaw (AB) 404
Coram: Justice Saurabh Shyam Shamshery
The Allahabad High Court dismissed two pleas challenging criteria of different yardsticks for physical efficiency tests for males and females for the U.P. Subordinate Service Selection Board Excise Constable recruitment exam. The bench observed that the classification of men and women in physical efficiency is not arbitrary and therefore, the allegation of discrimination between men and women is baseless and cannot be accepted. "In the present recruitment, females have succeeded in huge numbers and it appears that unsuccessful male candidates are not able to cope up with the fact that female have overnumbered them in merit. It is an example of 'male chauvinism' which is unacceptable in twenty first century," the Court remarked.
22. Harassment Of Women Would Still Be An Offence Even If Not Committed In Public Place: Madras High Court
Case Title: M.R.Sivaramakrishnan v State and another | 2022 LiveLaw (Mad) 471
Coram: Justice RN Manjula
While dismissing a petition to quash the final report with respect to a sexual harassment case on the ground that the harassment did not occur in the public place, the Madras High Court held that harassment of a woman would still be an offence punishable under Section 354 IPC. The crux of the case was that the petitioner is said to have harassed the de facto complainant and her sister in filthy language in connection with a parking issue and also threatened her about a pending civil suit. The petitioner was thus charged with offences under Sections 341, 294(b), 323, 506(i) of IPC and Section 4 of the Tamil Nadu Prohibition of Harassment of Woman Act, 2002.