Thursday, 8 March 2012

International women's day: Landmark judgments in favour of women - part one


Syed Akbar
Hyderabad: Judiciary in India has been a guiding force behind a number of legislations 
that have helped in bettering the lives of women. Courts in the country have many a time 
looked at law from a more human perspective, providing the much-needed judicial healing 
touch to a vast majority of women. Thanks to landmark judgments, women are now eligible 
for a share in property, able to work in offices in dignity, exercise their reproductive 
rights, continue with their maiden names after marriage, and secure equal rights in armed 
forces.

Judiciary has also been instrumental in fine-tuning the laws related to marriage and 
divorce, inheritance, guardianship of the minor child, eradication of child prostitution, 
and protection of sex workers from exploitation. Right from Shah Bano to Visakha and 
Geeta Hariharan, the Supreme Court of India has been in the forefront not only protecting 
the rights of women, but also ensuring that they get their rightful due – whether getting 
maintenance for divorced women, protection of women from sexual harassment at workplace 
and grant of the right of guardianship to mothers.

Courts in India have touched practically every aspect concerning women, redefining the 
term homemaker insofar as compensation under Motor Vehicle Act is concerned, giving a new 
meaning to the now-increasing “live-in relationship”, and interpreting Shariat in the 
light of the Holy Quran with regard to divorce of Muslim women.

Courts have been playing an active part, but there needs a lot to be done to ensure that 
timely justice is done to the affected women. Advocate T Vasantha Lakshmi emphasises the 
need to reduce the procedural delays once a case related to women reaches court. 
“Procedural delays often help the accused to find ways to escape from the clutches of 
law,” she points out.

 Though Supreme Court has delivered several judgments that could be considered 
“landmark”, women in India continue to suffer because of different laws governing them 
and lack of a court with common jurisdiction to deal with issues related to women. Women 
are forced to approach different fora to seek each relief separately.

Women have to grapple with numerous legislations. There are Acts like the Hindu Marriage 
Act (divorce), Hindu Adoption and Maintenance Act (maintenance), Guardians and Wards Act 
(custody), and the Hindu Succession Act (inheritance). In case of Muslim women, there are 
Acts like Shariat Act and the Muslim Women Protection of Rights Act. The Indian Divorce 
Act and the Indian Succession Act are primarily meant for Christian women.

Referring to multiplicity of the Acts governing women, the Department of Women and Child 
Development, Government of India, in its document on court cases agrees that each of 
these Acts vests jurisdiction in a different court. “This multiplicity of litigation 
increases the physical and financial burden of litigation manifold. Above all, there is 
the problem of ignorance of the law.”

Agrees senior advocate Ch Nirmalatha, “in many divorce cases, women do not get
maintenance as the divorced husbands disobey the decree. There should be stringent laws 
to ensure that maintenance is paid. Courts should work out mechanism to oversee the 
payment”.

Judicial activism notwithstanding, political pressure often creates hurdles in the 
delivery of justice to victims. “Political pressures have been on the rise and this 
impacts the fair functioning of the police department. In several cases, the culprits go 
scot-free, while innocents bear the trouble. It is not good for democracy if the police 
failed to act in cases of violence against women. In Andhra Pradesh Sri Lakshmi case was 
a landmark judgment as the culprit was severely punished,” argues legal expert J Jnanamba.

The apex court created a history of sorts in the Visakha's case, which is now cited 
almost in every legal argument related to women. It protected women from sexual 
harassment at the work place, and framed detailed guidelines not only to prevent this 
burning problem, but also its redressal. There have been a number of orders, which state 
that the character of a rape victim should not form part of the proceedings during trial.

Women rights groups have been largely satisfied by the SC guidelines in Visakha case that 
they feel no new legislation is needed to protect the rights of women. P Durga Bhavani, 
vice-president of AP Mahila Samakhya, observes that existing laws are sufficient to 
protect women. “What we need is proper implementation of the legislations, Acts and 
judgments”. Agrees social activist T Shakuntala, “it is often the implantation of orders 
that cause more trouble. Domestic violence Act is the case in point. It is observed more 
in breach and innocent people often end up as victims”.

Advocate SK Nagoor, however, sees “loopholes” in Constitution as the cause of women’s 
trouble. “Constitution is pro-women only on paper,” she argues, adding, “Loopholes in 
Acts should be plugged”. Amendment should be made to Sections like 498A and make 
women-related cases non-bailable offences.

Taking the approach of an activist, the Supreme Court drew guidelines on dealing with 
exploitation of sex workers and curbing the menace. “Counseling, cajoling and 
correction”, should be adapted to eradicate child prostitution and rescue of girls from 
red light areas.

Mother too could be treated as a natural guardian, the SC held in Gita Hariharan relating 
to Hindu Adoption and Maintenance Act. The Act treats father as the sole natural guardian.

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