INTRODUCTION ‘A woman finds it impossible to truly express her authentic self within the confines of today's society, which is predominantly male-dominated, governed by laws created by men, and a judicial system that assesses female behaviour through a male perspective.’ ~ Henrik Ibsen There have been various occasions where courts in India, ignoring constitutional mandates owing to their patriarchal setup, have encouraged masculine values. Patriarchy is so deeply rooted that it can be witnessed at every corner. Even the court rooms are no exception. Courtrooms that are considered pious are not even neutral spaces. From Judges to clerical staff, the dominance of males can be seen everywhere. For instance, the first-ever woman judge in SC was appointed in 1989. 39 years since then, only ten women have become judges in the apex court.[i] Chief Justice Ramana revealed that women judges constitute only 11% in High Courts, while in Supreme Court, we currently have 33 sitting judges, out of which we have only 4 women judges (around12%). Also, out of 1.7 million advocates, only 15% are women.
The point that we elevate judges as god-like figures and our benefactors, courtrooms as temples of justice become a misnomer. While raising them as patrons of justice, we forget that judges are also mere mortals with their own ideologies and perspectives. According to Flavia Agnes[ii] , a woman, whether she is a part of the system or the victim, she is never given respect. It is becoming common for them to adjudicate the matter from the patriarchal lens and show hostility towards women's troubles. They are often seen becoming the moral guardian and custodians of traditional norms and cultural sensitivities.
M.K. Jyakumaar, who is a legal expert, during a conference on ‘Interpretation of Laws from Women’s Perspective’, pointed out that the patriarchal mindset was evident when it was stated that section 498 A of IPC was being misused or when they asked that woman who was raped consented as she did not protest.[iii] As Kalpana Kannibaran[iv] points out, Article 15 which talks about the outlawing of discrimination on the grounds of religion, race, caste, sex or place, limits its scope when in a specific case, discrimination does not solely rely on gender, but rather incorporates additional factors. For instance, in the case M.I. Shahdadv. Mohd. AbdullahMir, 1966 SCC OnLine J&K 15 and Mahadev Jiew v. Dr. B.B. Sen, 1951 SCC OnLine Cal 182, where sex was not the only basis but was accompanied by factors like ‘separate conditions of services’ and ‘propriety consideration’. So when will the judiciary understand the difference between differentiation and discrimination? Also, Article 15(3), which talks about women and children, is tossed around in these cases.
In the same case of M.I. Shahdaad v. Mohd. Abdullah Mir, the Jammu & Kashmir High court, made a very controversial observation where the validity of order 5, rule 15 of CrPC was upheld, which states that in the absence of the defendant, only an adult male member can serve the summon.
It was further expressed that in Indian culture, women are primarily assigned the role of being housewives. The fact that the legislature might have enacted this rule due to the prevalence of illiteracy among Indian females and the practice of seclusion in some cases was also acknowledged. As a result, the obligation of male members was emphasised while service of women was continued to be considered as insufficient.
Apart from the cases that are similar to the aforementioned cases like Air India v. NergeshMeerza, (1981) 4 SCC 335, in which the question of parity between air hostesses and their male counterparts was raised or Anjali Roy v. State of West Bengal, 1952 SCC OnLine Cal 17 where the admission of female students was rejected at a mixed-gender educational institution. There is also a case of the University of Madras v. Shantha Bai, 1953 SCC OnLine Mad 182, in which Article 15 (3) was used as a tool for positive discrimination.
J. Sandhya, a well-known lawyer, asserted that the Immoral Trafficking (Prevention) Act had been misused. She supported her claim by referring to a case from 1971 in which women were perceived as property and their release being dependent on someone's guarantee.Additionally, she mentioned the Hadiya case, where the jury viewed Hadiya as a possession, allowing her parents to determine to whom she should be entrusted. Nevertheless, the Supreme Court recently prohibited courts from making gender-based stereotypical remarks, such as suggesting that virtuous women are sexually modest or implying that women who drink or smoke are inviting sexual advances. A bench consisting of Justice A.M. Khan Wilkar and S. Ravindra Bhat directed judges to refrain from pressuring victims to marry their assailants or to seek compromise. The SC also mandated that judges must not grant bail to alleged sexual offenders on the condition of performing community service or apologising to the victim. In the event that bail is granted in a sexual offence case, the victim must receive a copy of the bail order within 48 hours.
A ruling of Madhya Pradesh HC was also overturned in which bail was granted to the accused molester under the condition that he visit the victim's residence and permit her to tie a rakhi on him. The Supreme Courtruled that judges should refrain from employing reasoning or language that downplays the severity of sexual offences and belittles the survivor. Acts such as stalking, eve-teasing, and physical assault, which are commonly referred to as "minor offences," as these are generally viewed from the prism of ‘boys will be boys.’, are now recognised as outlawed behaviours.[v] CASES OF DISCRIMINATION AGAINST SEXUAL ASSAULT VICTIMS An institution which is supposed to be the preserver of justice is often seen becoming a mere custodian of patriarchal norms and stereotypes. On several occasions, even the esteemed supreme court has provided guidelines on how an "ideal" rape victim should act. In the case of Raja v. the State of Karnataka, for example, a troubling remark was made stating that if the victim does not hurry home immediately ‘in a distressed, humiliated, and devastated state’ after an incident that occurred outside, it would be considered unusual or out of the ordinary.
Another alarming statement given by the Punjab and Haryana High Court was- never be blackmailed into being raped again, or you will be showing a ‘promiscuous attitude’ and ‘voyeuristic mind’. Mrinal Satish[vi], a professor from NLU Delhi, in his book "Discretion, Discrimination, and The Rule of Law: Reforming rape-sentencing in India," has observed the deeply ingrained nature of this issue in society. The book extensively examined 25 years of rape jurisprudence, analysing approximately 800 cases from the SC and HC between 1984 and 2009. It revealed that the adjudication and sentencing of rape cases are significantly influenced by prevalent rape myths and stereotypes.
Despite the significant alterations made in the past decade, victim-shaming and victim-blaming are still frequent. Rebecca M. John, a prominent legal expert and senior advocate at the Supreme Court, has stated that judges tend to seek perfection in a woman's character when evaluating her allegations. The defence often presents excuses such as "she is promiscuous,""she had affairs," "she did not behave in a certain way," "she did not show enough emotion during the incident," or "she does not appear traumatised"in an attempt to secure the acquittal of the accused.
According to John, this not only reflects the inherent patriarchy but the laws itself that are very stringent. The Sexual Assault of women at workplace Act, 2013, gives very little discretion to the court through which they could lower their sentence according to the circumstances of the case, due to which the they try to dismiss the whole case altogether. Rebecca suggested that the time has come when the legislature needs to look back at the existing gender laws.
Despite the implementation of training and awareness programs for judges since the amendment of rape laws in 2013, rape stereotypes persist not only among judges but also among young lawyers and students. The prevailing bias revolves around the belief that the main harm caused by rape is the tarnishing of a woman's reputation and honour, rather than the violation of her bodily autonomy. This bias was exemplified when the former Chief Justice of India, SA Bobde, asked a man accused of multiple rapes of a minor girl if he would be willing to marry the victim, thereby reflecting this bias.
In line with a similar line of thinking, the Madras High Court, in 2015, released a convicted rapist on bail and suggested a "compromise" between him and his unmarried victim, who had become pregnant as a result of the incident.
Another significant flaw in the decision-making process occurred when Justice Pushpa Ganediwala made an unusual interpretation of the provisions related to sexual assault under the Protection of Children from Sexual Offences (POCSO) Act. It was stated that sexual assault, according to the POCSO Act, should be limited to "skin-to-skin" contact with sexual intent. However, this interpretation was later set aside by the SC bench, led by U.U. Lalit calls this interpretation ‘unacceptable’ and ‘not legally sound’.
It is common practice to shame survivors and exploit their past sexual history in order to undermine their testimonies. The decision of the Delhi High Court to overturn the trial court's conviction of the accused in the case of Mahmud Farooqui v. State (Government Of Nct Of Delhi) under section 376 raises significant questions that have broader implications. These questions revolve around the definition and standard of establishing the absence of consent and the purpose of criminal law itself. The court had the option to acquit Farooqui based on reasonable doubt regarding whether rape had occurred, but instead, it relied on stereotypes regarding how a rape victim should react, thereby reflecting the misguided notion that a "NO" could somehow mean "YES".
Is there a guidebook on ‘How an ideal rape victim should behave’ that none of us are aware of? We don't blame a murder victim for inciting their own murder when we have evidence. So why is it difficult to extend the same understanding to rape victims? Additionally, why does the burden of explaining why-she-was-where-she-was fall on them?
There is an underlying skepticism that women fabricate claims of sexual assault. When judges can declare that the prosecution has failed to establish its case beyond a reasonable doubt, why is it necessary to delve further and make judgments about women's behaviour?
The Supreme Court's decision in Pratap Misra v. the State of Orissa had a disturbing impact, prompting amendments to Indian rape laws in 1983. This case also shed light on the approach subsequently adopted to assess the credibility of the victim's testimony. In Pratap Misra, a two-judge bench of the Supreme Court acquitted three men accused of gang-raping a woman who was five months pregnant, which tragically resulted in her miscarriage. It was noted that the victim, a 23-year-old woman, was in a relationship with a married man and concluded that she must have given her consent. The court based this conclusion on the absence of visible injuries on her body and her reaction during the act, noting that she had only sobbed instead of screaming. Furthermore, the bench expressed the opinion that if the intercourse had been forced, the fetus would have been immediately aborted rather than a few days later.
To summarise, one could reasonably state that in the eyes of the courts, women are often portrayed as either vulnerable beings whose honour is linked to their sexuality or manipulative individuals attempting to implicate innocent men falsely.
However, in a recent judgement, the SC bench headed by DY Chandrachud, comprised of Justice Hima Kohli, stated that insinuating that a woman who engages in sexual activity cannot experience rape is downright patriarchal and disrespectful. This fact was also recognised by the legislature when through the 2013 amendment, section 53A of the Evidence Act was added, which says- “According to Section 53A of the Evidence Act, the evidence regarding a victim's character or past sexual encounters with anyone is irrelevant when it comes to determining consent or the nature of consent in sexual offence prosecutions”.The bench also slammed the two-finger rape test by declaring it invasive as it re-victimises or re-traumatises sexual-assault victims.
CASES OF DISCRIMINATION IN SPOUSAL AND FAMILIAL RELATIONSHIP
Even now, in the 21st century, women receive crude and uncalled-for comments from an institution that is supposed to uplift them. Discrimination is now so deeply rooted that it has become unconscious. Marriage, pregnancy, menstruation and childbirth constitute women's identity and specify their work in the visions of their male employers. For example, sharing details such as the recent date of your menstrual cycle, the regularity or painlessness of your periods, whether you were pregnant during the application, the number of conceptions, the last date of delivery, and any history of abortion or miscarriage, if any, which can be downright humiliating for any woman.
In Neera Mathur (Mrs) v. LIC, (1992) 1 SCC 286, when the same issue was bought up in Supreme Court, not only was the overt gender-based discrimination disregarded, but the violation of privacy and the demeaning act of requiring a pregnancy test as a condition for employment was also implicitly sanctioned. Also, section 9 of Hindu Marriage Act, 1955, which lays down the principle of the restitution of conjugal rights and is the only remedy the deserted spouse could use against the other, is one of the many controversial parts of familial relationships. As the word ‘conjugal’ itself implies that there is a physical/sexual relationship, this provision is just encouraging marital rape.[vii] Though this legal remedy became gender-inclusive only after the enactment of HMA in 1955 as before it was exclusively for males. However, the essence of equality lies only theoretically, as most of the time, it is used to oppress the wife's claims.
In T. Sareetha v. T. Venkta Subaiah, the discourse of conjugality was changed when the decision of Justice Choudhary held section 9 of the act as unconstitutional and observed RCR to be barbarous and an invasion of personal privacy but the Delhi High Court in Harvender Kaur v. Harmander Singh Choudhry, 1983 SCC OnLine Del 322 upheld the constitutional validity of Section 9 stating that it promotes the preservation of marriage. In this case, the woman had no problem in living with her husband in a separate residence as she found living with his joint family ‘irksome’, but Justice Rohtagi ordered her to go back and live with her husband in the joint family as according to him, issue of the wife was ‘trivial’.
Countries like Scotland and Ireland have abolished any legal action for the Restitution of Conjugal Rights (“adherence”- the Scottish equivalent for RCR) in 1984 and 1988, respectively. Still, unfortunately, this archaic remains intact in Indian provisions in Family Law. However, the Andhra Pradesh High Court noted a crucial aspect of how Restitution of Conjugal Rights is manifested in real-life situations. The author observed that while either spouse can employ this legal recourse to enforce marital obligations against the other, it is uncommon for wives to file suits for restitution. Husbands rather than wives predominantly utilise it.[viii]
Though this decision is more than 30 years old, the mindset of the judiciary is more or less the same. In 2012, the BombayHigh Court decreed that a woman is expected to embody the qualities of the goddess Sita, implying that the wife, leaving her own dreams and career, should follow her husband wherever he goes to ‘serve’ him.
However, we can't say that there has been no improvement in the Indian judiciary as Supreme Court has given many laudable judgements, such as Gaurav Jain v. Union ofIndia, (1997) 8 SCC 114 where the Hon’ble Supreme Court laid down approaches such as the importance of counselling and rehabilitation of women to make them recover from prostitution, andCentre for enquiry into Health & Allied Themes(CEHAT) v. Union ofIndia, (2001) 5 SCC 577 that led to monitored implementation of Pre-Conception & Pre-Natal Diagnostic Techniques Act.
Still, the attitude of the courts has been more or less protective and authoritarian. According to Faizan Mustafa[ix] ‘There is a formal authority rather than a substantive one which has reduced her position as the dependent and imbecile one. Maintenance of second wife is still a controversial issue in which women are often regarded as mistresses or a keep as was held in D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469. However, in the case of Pyla Mutyalamma v. PylaSuri Demudu, (2011) 12 SCC 189, maintenance was granted to the second wife under section 125 of CrPC on the ground that they cohabited continuously for a long time, so the law will presume in favour of marriage.
However, these kinds of progressive decisions are rare to come by. In Narendra v. K. Meena, the respondent filed an appeal against the order of the High Court in which a divorce decree was quashed, therein a generalised statement was made that in Indian culture, it is considered undesirable for a son to be separated from his parents after marriage, as he has been raised and educated by them. Therefore, he bears a moral and legal responsibility to support his parents. The court also stressed that since the wife becomes an integral part of the family, she should not unreasonably demand that her husband leave his family and live solely with her. While the court stated that it is the duty of children to support their parents, it has not recognised the duties and rights of daughters towards their parents.
Court has shown enough for us to assume that it uses the patriarchal lens to adjudicate the matter. As decreed in the case of S. Hanumanth Rao v. S. Ramani, that if the wife is unwilling to wear mangalsutra, it can be treated as an evidence of mental cruelty.
Another case with a disturbing judgement is Asokan K.M. v. Supt. of Police, where the court stated that a girl aged 24 years is ‘frail’ and ‘powerless’, and marriage is a pivotal choice that requires the active participation of parents. However, his judgement was set aside in Shafeen Jahan v. AshokanK.M.
CONCLUSION
First and foremost, gender sensitisation in the judiciary needs to be highlighted so that the problem of adjudicating subject matter from a patriarchal prism could be resolved. Decisions in courts should be made after thorough observation and discussion, noting the current position of females in Indian society andhowit will affect the same. Also, regular and up-to-date domestic and international literature on issues like gender- and sex-based discrimination, domestic violence, sexual assault, family law related to custody, alimony, child support, parental rights etc. should be provided.
[i] Radhakrishnan, V. (2021) Representation of Women Supreme Court Judges: A Historical Imbalance with Recent Advancements. The Hindu. [ii] Agnes, F. (2016) Law and Women in India. Oxford University Press. [iii] Judiciary a product of Patriarchal Order: Experts (2018) The Hindu. [iv] Kannibaran, K. (2014) “Judicial Meanderings in Patriarchal Thicket,” in Law and Women: Perspective of Feminist Critics. New Delhi: Sage Publication, p. 173. [v] Rajagopal, K. (2021)Ban on Gender Stereotypical Comments: Supreme Court Prohibits Courts from Making Biased Remarks. The Hindu. [vi] Satish, M. (2016)Discrimination, Discretion and the Rule of Law: Reforming Rape Sentencing in India. Cambridge University Press. [vii] Hussain, S. (2019) “Patriarchal Judiciary as Harbinger of Gender Justice in India”, RMLNLU Journal, 11. [viii] Singh, S. (2021) Demand of abolition of legal provision for ‘restitution of conjugal rights’ by a rights-based jurisprudence – the leaflet.The Leaflet. [ix] Mustafa, F. (2017) “Judicial Aberrations onGender Issues are Worrisome,” The Hindu, 8 March.
Authored by: Kamya Pandey
Dr. Ram Manohar Lohiya National Law University, Lucknow
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