On this occasion of International Women's Day, a day dedicated to honor the accomplishment of women across the globe who fought and are still fighting for gender equality and rights, let us have a look at some of the landmark decisions of the Supreme Court on gender justice.
"Permanent Commission should be granted to women in the army regardless of their service, in all the ten streams where the Union Government has already taken a decision to grant the Short Service Commission for women."
The bench comprising Justice DY Chandrachud and Ajay Rastogi slammed the arguments made by the Centre in their written notes which had cited the physiological features and domestic obligations of women as reasons for denying them command appointments. The bench observed that such arguments perpetuate "gender stereotypes".
The court also held that the absolute exclusion of women from command assignments is against Article 14 of the Constitution and unjustified. Hence, the policy that women will be given only "staff appointments" was held to be unenforceable by the Court.
"Giving preference to a male child is violative of Article 39A of the constitution and against the mandate of Article 51A (e) which casts a Constitutional duty on citizens to renounce practices derogatory to the dignity of women."
While upholding the constitutional validity of Section 23 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, the bench comprising Justice Arun Mishra and Justice Vineet Saran observed that female foeticide is the most inhumane, immoral and anti-social act. The court said that the PCPNDT Act is a social welfare legislation, which was conceived in light of the skewed sex-ratio of India and to avoid the consequences of the same.
The court also observed that skewed sex-ratio is likely to lead to greater incidences of violence against women and an increase in practices of trafficking, 'bride-buying' etc. The rigorous implementation of the Act is an edifice on which rests the task of saving the girl child, the court said.
3. Joseph Shine v. Union of India (2018)
"The five-judge bench unanimously struck down Section 497 IPC saying that it was unconstitutional since the very basis for criminalising adultery was the assumption that a woman is considered as the property of the husband and cannot have relations outside the marriage. The said section violated the right to privacy as well as the liberty of women by discriminating against married women and perpetuating gender stereotypes."
The bench comprising Justice Deepak Misra, Justice AM Khanwilkar, Justice DY Chandrachud, Justice Indu Malhotra and Justice RF Nariman dealt with the petition challenging the constitutionality of the offence of adultery under Section 497 of the Indian Penal Code read with Section 198(2) of the CrPC. Section 497 of IPC criminalised adultery by imposing culpability on a man who engages in sexual intercourse with another person's wife. The same was punishable with a maximum imprisonment of five years. A married woman could not bring forth a complaint under Section 497 IPC when her husband was found to be engaged in sexual intercourse with an unmarried woman.
4. Danamma @ Suman Surpur v. Amar (2018)
"The right of a daughter to be entitled to an equal share as a son in ancestral property, including daughters who were born before the Hindu Succession Act, 1956 ("HSA") came into force."
The Supreme Court has held that daughters who were born before the enactment of Hindu Succession Act 1956 are entitled to equal shares as son in ancestral property. The ruling was rendered in an appeal filed by daughters challenging a decree in a partition suit, which excluded them from partition.
The Court also held that the daughters were entitled to the benefit of 2005 amendment as well, and on that basis also they were entitled to shares.
5. Roxann Sharma v. Arun Sharma (2015)
"The custody of the child below five years should be with the mother who was well-educated and self-sufficient whereas the father was jobless."
The division bench comprising of Justice Vikramajit Sen and Justice C. Nagappan held that the Hindu Marriage and Guardianship Act, 1956 protects the father's right as a guardian over the property but not over the child who is below five years of age. It was also stated that no provision of any law/act disqualifies the mother with custody of the child after five years of age. This case was considered to be a landmark because it exclusively specified the right of the mother to have custody of a child below five years of age provided that the mother is not unfit for the same.
6. Shamima Farooqui v. Shahid Khan (2015)
"The divorced Muslim women are covered under Section 125 of CrPC and maintenance is an absolute right of a woman, unless it is disqualified. The court also ruled that the quantum of maintenance to be paid by the ex-husband should be such that it allows the divorced women and her children if any to live with dignity."
The division bench comprising Justice Dipak Misra and Justice Prafulla C. Pant said that the delay in granting the order of interim maintenance by the family court is an 'unacceptable situation' as well as a 'distressing phenomenon'.
The case came up before the apex court when the High court reduced the maintenance ordered by the family court from Rs. 4000 to Rs. 2000. Aggrieved by the decision of the High Court, Ms. Shamima filed the special leave petition. The apex court, in this case, considered four main points (1) whether Sec 125 CrPC applied to divorced Muslim women; (2) how was the amount of maintenance to be fixed in these cases; (3) whether this amount was payable by the husband only during the iddat period; (4) whether the High Court was right in reducing the quantum of maintenance.
"Central Government employee who is a woman and having a minor child could avail a maximum period of 730 days during the entire service period for taking care of her children."
In this case, the appellant had applied for child care leave for a period of initially 6 months for taking care of her child who was in class 10th. While her application was pending, She was transferred to another place. She again sent a letter requesting leave for 730 days but was allowed only 45 days' leave.
The bench comprising Justice SJ Mukhopadhaya and Justice Gopala Gowda held that the 730 days of childcare leave at a stretch could be taken by the female employee for taking care of her son.
8. D. Velusamy v. D. Patchaiammal (2010)
"Live-in relationships will also come under Domestic Violence Act 2005."
The bench comprising Justice Markandey Katju and Justice TS Thakur held that 'not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the DV Act of 2005. To get such benefits the conditions mentioned by the bench must be satisfied, and it has to be proved by evidence. If a man has a woman whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not be a relationship in the nature of marriage'.
"The pregnancy cannot be terminated without the consent of the victim. The reproductive choice of the victim needs to be respected and she should be given the choice to go ahead and bear the child."
The appeal was filed challenging the decision of the High court of Punjab and Haryana which gave directions for termination of the pregnancy of a mentally retarded woman. The appellants stated that the woman in question had been pregnant for more than 19 weeks and the statutory limit for terminating the pregnancy was 20 weeks.
The bench comprising Chief Justice KG Balakrishnan, Justice P Sathasivam and Justice BS Chauhan held that pregnancy can only be terminated when a medical expert was satisfied that there was a risk to the life of the pregnant women or a gave injury was possible to the physical strength.
"The Supreme Court examined and struck down a protective discrimination provision in the Punjab Excise Act, 1914 that restricted women's right to employment and equal treatment."
The appeal challenged the Constitutional validity of Section 30 of the Punjab Excise Act, 1914 (for short "the Act") prohibiting employment of "any man under the age of 25 years" or "any woman" in any part of such premises in which liquor or intoxicating drug is consumed by the public was the question involved in this appeal which arose out of a judgment and order dated 12.01.2006 passed by the High Court of Delhi in CWP No. 4692 of 1999.
The division bench comprising Justice SB Sinha and Justice Harjit Singh Bedi also brought in the "anti-stereotyping principle" which is the foundation of American jurisprudence on sex equality. Accordingly, the court held the legislation as void and unconstitutional.
11. Vijay Lakshmi v. Punjab University & Ors. (2003)
"Giving preference to women in women colleges/hostels is a form of preventive, protective and precautionary measure based on the public morals particularly in a view of the young age of the girl children to be taught."
The appeal was filed regarding the preference given to a woman for being appointed as a Principal of the Government College for girls and lady superintendents for the women hostel as violative of Article 14,15 and 16 of the Constitution of India. The apex court held that such a preference for women's employment is not violative of Article 14.
The division bench comprising Justice MB Shah and Dr. Ar. Lakshmanan also opined that considering the peculiarities of the situation, it does not seem that preference given to women is arbitrary and unjustified.
"The apex court, in this case, issued Guidelines to prevent female foeticide. It was further directed that information should be published by way of advertisements as well as on electronic media. The National Monitoring and Inspection Committee constituted by the Central Government for conducting a periodic inspection shall continue to function till the Act is effectively implemented. The reports of this Committee were directed to be placed before the Central Supervisory Board and State Supervisory Board for any further action."
The bench comprising of Justice M.B. Shah and Justice Ashok Bhan also directed that the quarterly reports by the appropriate authority, which are submitted to the Supervisory Board, should be consolidated and published annually for information of the public at large. The States of Jharkhand, Maharashtra, Tripura, Tamil Nadu and Uttar Pradesh were directed to appoint multi member appropriate authorities, as per the requirement under Section 17(3) (a) of the PNDT Act.
13. Daniel Latifi v. Union of India (2001)
"Liability of Muslim husband to his divorced wife arising under Section 3(1) (a) of the Act to pay maintenance is not confined to iddat period."
The Bench comprising of Justice G.B. Pattanaik, Justice S. Rajendra Babu, Justice D.P. Mohapatra, Justice D. Raju and Justice Shivraj Patil held that a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1) (a) of the Act.
According to the Court, a divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.
"A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Women who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the place where they work; they must be provided all the facilities to which they are entitled."
In the case, the female workers (muster roll) who were engaged by the Municipal Corporation of Delhi raised a demand for the grant of maternity leave which was made available only to regular female workers. The same was denied to the female workers (muster rolls) since their services were not regularised.
The bench comprising of Justice S. Saghir Ahmad and Justice D.P Wadhwa held that the provisions of the Maternity Benefit Act, 1961 indicate that they are wholly in consonance with the Directive Principles of State Policy, as set out in Article 39 and in other Articles, especially Article 42. A woman employee, at the time of advanced pregnancy, cannot be compelled to undertake hard labor as it would be detrimental to her health and also to the health of the foetus. It is for this reason that it is provided in the Act that she would be entitled to maternity leave for certain periods prior to and after delivery.
"Both the father and the mother are the natural guardians of a minor Hindu child. It was held that the mother or the father whoever is capable of and available of taking care of the child and is deeply interested in the welfare of the child can be the natural guardian, and that need not necessarily be the father."
In this case, the petitioner Ms. Gita Hariharan was married to Dr. Mohan Ram and they had a son named Rishab. The petitioner applied to the RBI for 90% relief bond to be held in the name of the son indicating that she would act as the natural guardian for the purpose of investments.
The RBI returned the said application advising the petitioner either to produce an application signed by the father or a certificate of guardianship form a competent authority in her favour to enable the bank to issue the requested bonds.
On realizing that she was not the natural guardian of her minor son, the petitioner decided to challenge the relevant sections of Hindu Minority and Guardianship (HMG) Act, 1956 and the Guardians and Wards Act, 1890 since it violates the provisions of Article 14 and 15 of the Constitution of India.
The bench comprising Justice Umesh. C. Banerjee while relying on the gender equality principles of UDHR, CEDAW and those principles enshrined in the Constitution interpreted the word 'after' appearing in Section 6A of the HMG Act, 1956.
16. Shayara Bano vs Union Of India (2017)
Triple Talaq Unconstitutional
In this case Supreme Court declared the practice of Triple Talaq as unconstitutional by 3:2 majority. Justices Kurian Joseph, UU Lalit and RF Nariman delivered the majority Judgment. Chief Justice Khehar and Justice Abdul Nazeer dissented .
"In view of the different opinions recorded, by a majority of 3:2 the practice of 'talaq-e-biddat' – triple talaq is set aside".
The multi-religion constitution bench comprises of Chief Justice J S Khehar and Justices Kurian Joseph, RF Nariman, UU Lalit and Abdul Nazeer.
Justice Kurian Jpseph:"What is bad in theology was once good in law but after Shariat has been declared as the personal law, whether what is Quranically wrong can be legally right is the issue to be considered in this case. Therefore, the simple question that needs to be answered in this case is only whether triple talaq has any legal sanctity. That is no more res integra. This Court in Shamim Ara v. State of UP and Another has held, though not in so many words, that triple talaq lacks legal sanctity. Therefore, in terms of Article 141 , Shamim Ara is the law that is applicable in India".
Justice Nariman: Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad (supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara (supra). This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the 393 fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression "laws in force" in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him.
17. Gaurav Jain v. Union of India & Ors. (1997)
"The children of the prostitutes have the right to equality of opportunity, dignity, care, protection, and rehabilitation so as to be part of the mainstream of social life without any pre-stigma attached to them."
The bench comprising Justice K. Ramaswamy directed for the constitution of a committee to formulate a scheme for the rehabilitation of such children and child prostitutes and for its implementation and submission of a periodical report of its Registry.
"Issued Guidelines to prevent sexual harassment against women in workplaces. All complaints of sexual harassment by any woman employee would be directed to this committee."
This is significant because an immediate supervisor may also be the perpetrator. The committee advises the victim on a further course of action and recommends to the management the course of action against the man accused of harassment. This verdict by the bench, comprising of Chief Justice Verma, Justice Sujatha Manohar and Justice B.N. Kirpal was superseded by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
"The exclusive right of male succession included in Section 7 and Section 8 of the Chota Nagpur Tenancy Act must be suspended so long as the right of livelihood of the female descendants of the last male holder continues. Accordingly, the Court ordered disposal of the petition with the above relief to the female dependents/descendents."
In this case, the bench comprising of Justice K. Ramaswamy, Justice Kuldip Singh and Justice M.M. Punchhi considered the constitutional validity of Chota Nagpur Tenancy Act, 1908. The said Act was applicable to the Scheduled Tribes in Bihar and it denied the succession to the females in favour of the males. Hence it was challenged as it is biased against females.
Further, the apex court also directed the State of Bihar: "to comprehensively examine the question on the premise of our constitutional ethos and the need voiced to amend the law [and] to examine the question of recommending to the Central Government whether the latter would consider it just and necessary to withdraw the exemptions given under the Hindu Succession Act and the Indian Succession Act at this point of time in so far as the applicability of these provisions to the Scheduled Tribes in the State of Bihar is concerned."
The three-judge bench comprising Justice S.Mohan, Justice Venkatachalliah and Justice SB Majumdar laid down certain guidelines for the trial of rape case:
● "The complaints of sexual assault cases should be provided with legal representation. Such a person should be well acquainted. The Advocates role should not merely be of explaining to the victim the nature of the proceedings, to prepare for the case and assist her, but to provide her with guidance as to how she might obtain the help of a different nature from other agencies- for e.g. psychiatric consultation or medical assistance.
● Legal assistance should be provided at the police station, since the victim may be in a distressed state. Guidance and support of a lawyer at this stage would be of great help.
● The police should be under a duty to inform the victim of her right to a counsel before being interrogated.
● A list of advocates willing to act in these cases should be kept at the police station.
● Advocates shall be appointed by the Court on an application by the police at the earliest, but in order that the victim is not questioned without ones the Advocate shall be authorized to act at the police station before leave of the Court is sought or obtained.
● In all rape trials, the anonymity of the victim must be maintained
● It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment.
● Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape."
The PIL invoked the benign provision of Article 32 of the Constitution of India, at the instance of the petitioner Delhi Domestic Working Women's Forum to espouse the pathetic plight of four domestic servants who were subject to indecent sexual assault by seven army personnel.
"No justification for women teachers being paid less or having fewer promotional avenues than their male counterparts and directed the state to ensure parity between women and men teachers."
The petition was filed under Article 32 of the Constitution aggrieved by the fact the lady teachers and other female employees in the educational line doing administrative business in the employment of the State of UP are being discriminated against regarding the payment for doing the same work.
The division bench comprising Justice Ranganath Misra and Justice MH Kania found that the Uttar Pradesh education department's creation of cadres of male and female teachers, and of paying female teachers less than male teachers, and according to them inferior promotional avenues, was illegal.
22. Mrs. Neera Mathur v. LIC (1991)
"The Court directed the LIC to delete columns demanding the lady candidate regarding the disclosure problems like whether her menstrual period is regular or painless, the number of conceptions taken place; how many have gone full term etc. If the purpose of the declaration is to deny the maternity leave and benefits to a lady candidate who is pregnant at the time of entering the service (the legality of which we express no opinion since not challenged), the Corporation could subject her to medical examination including the pregnancy test."
The petitioner, Mrs. Neera Mathur, was asked to fill a declaration from disclosing personal facts as to pregnancy (if any) and her menstrual cycle when she had applied for work at LIC.
The division bench comprising Justice KJ Shetty and Justice Yogeshwar Dayal remarked, "While we are moving forward to achieve the constitutional guarantee of equal rights for women, the Life Insurance Corporation of India seems to be not moving beyond the status quo."
"Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also it is not open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of the law. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard."
"There is no custom or rule that only ladies can be Confidential Stenographers. If only women are working as Confidential Stenographers it is because the management wants them there. Women are neither specially qualified to be Confidential Stenographers nor disqualified on account of sex to do the work assigned to the male Stenographers. Even if there is a practice in the establishment to appoint women as Confidential Stenographers such practice cannot be relied on to deny them equal remuneration due to them under the Act. The management is liable to pay the same remuneration to all the Stenographers on the same basis irrespective of their sex. The salary and remuneration payable to the lady Stenographers should be computed in accordance with the terms applicable to all the male Stenographers.
In this case, the female employee charged her employer with discrimination under the Equal Remuneration Act (no. 25 of 1926). She claimed that she was paid less as a stenographer than male stenographers performing the same work or work of a similar nature.
The division bench comprising justice ES Venkitaramiah and Justice MM Dutt held that the employer is bound to pay the same remuneration to both of them irrespective of the place where they were working unless it is shown that the women are not fit to do the work of the male Stenographers. Nor can the management deliberately create such conditions of work only with the object of driving away women from a particular type of work which they can otherwise perform with the object of paying them less remuneration elsewhere in its establishment.
25. Mrs. Mary Roy v. State of Kerala & Ors. (1986)
"No personal law can be held above the Constitution of India and if any, such provision is held void and therefore will not be made applicable. Therefore it was held that the provision related to succession under the Travancore Succession Act 1916 is in violation of Article 14 and Article 15 of the Constitution and shall be held as void and the same cannot be made applicable."
Mary Roy, educationist and activist (and mother writer/activist Arundhati Roy), approached the Supreme Court by way of a writ petition under Article 32 of the Constitution, challenging the discrimination against Syrian Christian women in the matter of intestate succession. The succession among Syrian Christians in Kerala was then governed by the Travancore Christian Succession Act, a law passed by the erstwhile princely state of Travancore in 1917, which was adopted by the State of Kerala later.
The division bench comprising Justice RS Pathak and PN Bhagwati held that the Travancore Christian Succession Act stood repealed with effect from 1951 when the Indian Succession Act 1925 was extended and applied to the then State of Travancore-Cochin, which later became the State of Kerala. Therefore, the Court did not examine the argument on the unconstitutionality of the provisions of the Travancore Christian Succession Act.
26. Air India v. Nargesh Meerza (1981)
" The clauses regarding retirement and pregnancy under Regulation 46 of the Air India Employees Service Regulations was held unconstitutional and therefore struck down."
In this case, Regulation 46 and 47 of the Air India Employees Service Regulations were challenged as it had created a significant amount of disparity between the pat as well as promotional avenues of male and female in-flight cabin crew. Under Regulation 46, while the retirement age for Flight Pursers was 58, Air Hostesses were required to retire at 35, or on marriage (if they married within four years of joining the service), or on their first pregnancy, whichever occurred earlier. Under Regulation 47, this period could be extended, subject to the absolute discretion of the Managing Director.
The division bench comprising Justice SM Fazalali and Justice Syed Murtaza struck down that part of Regulation 47 which gives the option to the Managing director to extend the service of an Air Hostess. The court also struck down the last portion of regulation 46(i)(c) where the provision 'or on first pregnancy whichever occurs earlier' as unconstitutional, void and violative of Article 14 of the Constitution of India.
27. CB Muthamma v. Union of India (1979)
"If a woman has to obtain permission from the government before marriage then the same set of reasoning is also applicable to men."
The petitioner in this case who was a member of the Indian Foreign Service alleged discriminatory practices in the service for which she was denied promotion. She contended that there was long-standing hostile discrimination against women and that she had to furnish an undertaking that she would resign if she were to get married.
The bench comprising Justice VR Krishna Iyer and Justice Shingal held that such rules were against the letter and spirit of the Constitution. It was also held that what rules are applicable to a man must also be applicable to a married woman.
"A Hindu female's right to maintenance is not an empty formality or an illusory claim but is a tangible right against property which flows from the spiritual relationship between the husband and wife."
The Bench comprising of Justice P.N. Bhagwati, Justice A.C. Gupta and Justice S.M. Fazal Ali held that Section 14(1) of the Hindu Succession Act, 1956 must be liberally construed in favor of the females so as to advance the object of the Act. This section makes the female Hindu a full owner of a property, instead of a limited owner.
29. B Shah v. Presiding Officer, Labour Court (1977)
"Computation of maternity benefit is to be made for all the days including Sundays and rest days which may be wageless holidays comprised in the actual period of absence of the woman extending up to 6 weeks preceding and including the day of delivery as also for all the days falling within the 6 weeks immediately following the day of delivery thereby ensuring that the woman workers get for the said period not only the amount equal to hundred percent of the wages which who was previously earning in terms of Section 3(n) of the Act but also the benefit of the wages for all the Sundays and rest days falling within the aforesaid two periods which would ultimately be conducive to the interest of both the woman worker and her employer."
The question before the apex court was whether in calculating the maternity benefit for the period covered by Section 5, Sundays being wage less holiday should be excluded or not.
The division bench comprising Justice Jaswant Singh and VR Krishna Iyer observed that the object of doing social justice to women workers employed in the plantations and which squarely fall within the purview of Article 42 of the Constitution, the beneficent rule of construction which would enable the woman worker not only to subsist but also to make up her dissipated energy.
"The court while upholding the principle of equality of status put the female employees at par with male employees declared the clause in the regulation of the Company which required that unmarried women were to give up service on marriage was held unconstitutional."
The question raised in this appeal was regarding the service condition by which unmarried women in the packing and labeling department have to resign on their getting married.
The bench comprising Chief Justice Gajendragadkar, Justice Hidayatullah, Justice Wanchoo and Justice Ramaswami held that there was nothing to show that married women would be more likely to be absent than unmarried women or widows. The economic interest of the concern was also not affected in any material way. There was thus no good and convincing reason why such a rule should continue in one department of the pharmaceutical industry. The fact that such a rule existed also was no justification if the rule could not be justified on its own merits. The rule, therefore, had to be abrogated.