The year 2015 has been marked by some precedent-setting legal judgements, particularly those that enforce the constitutional rights of women and girls as individuals, wives, single mothers and survivors of sexual crimes.
One of the most interesting judgements in this regard was pronounced in the case of a woman who had sought maternity leave after she became a mother through surrogacy. Her employer, the Kerala Livestock Development Board, declared that she was not entitled to leave since “only normal delivery cases qualify for the facility”. She took her claim to court where the judge ruled, on January 6, 2015, that “motherhood does not end with delivery of a baby; child rearing is also important. Denying her maternity leave to look after the new born baby amounts to denying her fundamental rights as a woman. Besides, the Government of India permits paternity leave [though men do not ‘give birth’]”.
The respondent’s argument that the woman had “neither undergone pregnancy nor given birth, and is, therefore, not entitled to maternity benefits” was totally dismissed by the court. Surrogacy is legal in India, the court pointed out. In any case, when it comes to gender equity issues, the paramount consideration, even in legal interpretations, has to be the socio-ethical consequences, especially when a sophisticated, modern technology like in vitro fertilisation (IVF) throws up situations that are not part of traditional societies.
In this case, the court took a stand based on the best interests of the child, which is what any progressive ruling has to decide on.
Photo Credit: Yann via Creative Commons
Another forward-looking judgement, rendered by the Supreme Court on July 6, 2015, has secured the rights of a single mother in the country and expressly recognises a woman’s input in terms of child rearing. When a single woman approached her local family court seeking the sole guardianship of her child the court wanted to send a notice to the father. This prompted the petitioner to seek the opinion of the Apex Court. The judge held that an unwed mother can be made the sole guardian of her child without disclosing the identity of the father. Guardianship rights of the mother, the judge said, can be decided in the absence of the father if it is seen that he never cared for the child and she had to bring up the child on her own. “The views of the uninvolved father are not essential to protect the interests of the child,” the judgement said.
Usually, when a single mother applies for a passport for her child – or sometimes even for school admission – the father’s consent is required to be submitted, which reduces the mother to humiliation by putting her at the mercy of the man. However, this landmark ruling holds that a woman who has reared her child for years, without the help of the man who fathered the child, is entitled to recognition as a legitimate guardian. The judgement goes so far as to say that “in situations where the father has not exhibited any concern for his offspring, giving him legal recognition (as a guardian) would be an exercise in futility; we, therefore, see no purpose in imposing an unwilling and unconcerned father on an otherwise viable family nucleus”.
Be it motherhood or marriage women are vulnerable to discriminatory attitudes and ‘traditions’.
Credit: Chris Potter [CC BY 2.0], via Wikimedia Commons
Following a writ petition filed by advocate Shiv Kumar from Karnataka, along with Vimochana, a women’s activist group in Bengaluru, an anomalous discrimination against Christian women was examined and redress facilitated as per judgement delivered on February 3, 2015. As per the provisions under The Hindu Marriages Act of 1955, The Parsi Marriage and Divorce Act of 1936, as well as The Special Marriages Act of 1954, a waiting period of only one year is specified before divorce with mutual consent can be sought. Yet, Section 10-A of The Divorce Act, 1869, prescribes two years of separation for Christian women, which violates the constitutional guarantee of equality before the law, regardless of religion. Pointing out that a precedent exists from the Kerala High Court, which is applicable to all the states, the judge ruled that the one year rule should apply to all women. The court additionally made a mention of the need for a Uniform Civil Code, which was promised at the time of Independence but has so far not been taken up.
Of course, while focusing on the ground-breaking legal pronouncements rooted in a gender rights perspective, highlighting the notable judgements concerning crimes against women is imperative. While there has been a lot of criticism around the electronic media’s obsession with ‘breaking news’, especially regarding the coverage of sexual crimes like rape, ironically, a recent court order dealing with this issue did not receive the kind of publicity it deserved.
A complaint was filed by a minor girl about being sexually abused by her father, and the police registered a First Information Report (FIR) listing the details. The rules forbid the law enforcement agency from divulging details of the survivor even then some television reporters who came to know of the case traced the family, turned up at their doorstep and thrust a camera and microphone before the abused child’s mother, asking for their comments. The visuals that were telecast thereafter showed the entrance to the house and other details of the colony that made it easy to identify the girl. Although the mother refused to talk to the crew, her voice was broadcast, despite her strong protests. This caused so much trauma to the girl and her mother that the duo were forced to relocate to a different area to escape the social ignominy and notoriety that the coverage had resulted in. This was followed by a complaint filed before the Delhi High Court against the Police Commissioner and the media for revealing the identity of the child and causing distress. The judgment, given on February 5, 2015, upheld the grievance that the police had broken the law in giving out details of the victim to the reporters and violated her right to privacy. It ordered that a compensation of Rs. 6 lakh be paid – Rs. 5 lakhs to be paid by the TV channel and Rs. 1 lakh by the Police Commissioner – in addition to the litigation costs of Rs. 25,000 from each party.
The court said: “By revealing details about the age of the victim, class of study, name and occupation of the father, the colony where the family lived, and visuals of the doorstep of the house, and broadcasting the mother’s voice recorded (against her will) while she was refusing to talk to the reporter, the TV crew had violated the right to privacy, which is an integral part of the right to personal liberty under Article 21 of the Constitution”.
The judge also remarked on the “prurient and morbid curiosity” of the crew that turned up seeking comments from the victim and her mother, and publicised the details of the case without their consent. Predictably, this judgement directing hefty compensation did not get reported in the media.
In any case, such a judgement rightly emphasises that women cannot be commodified and are entitled to dignity as human beings.
Photo Credit: Adam Cohn/Flickr
Significantly, one more ruling in a case involving the rape of a seven-year-old girl in Madhya Pradesh drew attention to the practice of “compromise”. The Supreme Court held on July 1, 2015, that suggesting a “compromise” between the accused and the victim is unacceptable because “rape is an offence against society and not a matter left to the parties to compromise and settle”.
Fact is that whereas laws can facilitate in furthering gender justice it is their interpretation by the courts that makes them socially meaningful and effective. At least, the law is standing by women.