After the attainment of independence, the entire landscape in which the very perspective so as to identify and accept women’s individual rights has changed and is steadily evolving with every passing year. We have witnessed the very nature of old human values to assume a new complexion thereby giving rise to the unavoidable need for emancipation of womanhood, unchaining and liberating the women from feudal bondage. Such unfettering of women only became all the more imperative in the modern day world under the strain and stress of socio-economic conditions. The continuous agitation by the women for enlargement of their rights successfully created an environment in which it became imperative upon all the stack holders giving a new look to the rights of women in terms of equality, right to life, etc. guaranteed by the Constitution of India.
It can be emphasized here that in pursuance of the ever mounting social pressures, it was necessary to set up a new social order thereby giving the women a place of honour and equality with the male sex in every other respect by making revolutionary changes to abolish the invidious distinction between a male and a female. This revolution can be seen in the wide spectrum of issues touching the very foundation of discrimination of women on the basis of womanhood, be in the matters of inheritance or the dissolution of marriage on certain specified grounds.
Apparently, our Parliament made certain laws like the Hindu Minority and Guardianship Act, 1956, the Hindu Adoptions and Maintenance Act, 1956, the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, etc. at the very early stages of independence which laws not only created a platform for these revolutions but also laid the very foundation on which our modern day society is flourishing.
The transformation of women as an equal being and the acceptance of women’s individual rights in our societies, on equal footing as of men’s, without treating women as an inferior one on grounds of sex alone, has seen a firm grown which is visible in the various judicial pronouncements in this regard. In a majority of cases the verdicts have only strengthen the position of women as an equal being through the eyes of law.
“The transformation of our culture and our society would have to happen at a number of levels. If it occurred only in the minds of individuals (as to some degree it already has) it would be powerless. If it came only from the initiative of the State, it would be tyrannical. Personal transformation among large numbers is essential, and it must not only be a transformation of consciousness but must also involve individual action. But individuals need the nurture of crops that carry a moral tradition reinforcing their own aspirations. These are commitments that require a new social ecology and a social movement dedicated to the idea of such a transformation.” – “Habits of the Heart: Individualism and Commitment in American Life” by R. Bellah, R. Madsen, W. Sullivan, A. Swidler and S. Tipton, 1985, page 286.
The Hon’ble Supreme Court of India has throughout been the guardian of the Constitution of India vis-à-vis recognizing, accepting and protecting the fundamental rights of women especially the rights concerning the equality before law, right to life and to live with dignity, employment, etc. Some of the path breaking a revolutionizing verdicts touching upon the core issues are:
- Vaddeboyina Tulasamma and others v. Vaddeboyina Sesha Reddi (dead) by L.Rs – [AIR 1977 SC 1944] – The question for determination before the Hon’ble Supreme Court in this case was as to whether it is sub-section (1) or sub-section (2) of Section 14 of the Hindu Succession Act. 1956 that applies where property is given to a Hindu female in lieu of maintenance under an instrument which in so many terms restricts the nature of the interest given to her in the property. If sub-section (1) applies, then the limitations on the nature of her interest are wiped out and she becomes the full owner of the property while on the other hand, if sub-section (2) governs such a case her limited interest in the property is not enlarged and she continues to have the restricted estate prescribed by the instrument. Deciding the question in favor of women it was held by the Hon’ble Court that ‘in the present case the properties in question were acquired by the appellant under the compromise in lieu of satisfaction of her right of maintenance, it was sub-section(1) and not sub-section (2) of Section 14 which would be applicable and hence the appellant must be deemed to have become full owner of the properties notwithstanding that the compromise prescribed a limited interest for her in the properties.’
- B. Muthamma v. Union of India – [1979 AIR 1868] – In this case the rule of India Foreign Service requiring a women member of the service to obtain prior permission of the Government in writing before her marriage is solemnized was in question. The Petitioner who was a senior member of the Indian Foreign Services was denied promotion on the grounds that at the time of joining the foreign services she had to give an undertaking that if she were to get married, she would resign from the services. Hearing the petition, it was observed by the the Hon’ble Supreme Court that ‘discrimination against women, in traumatic transparency, is found in this rule. If a woman member shall obtain the permission of government before she marries, the same risk is run by government if a male member contracts a marriage. If the family and domestic commitments of a woman member of the Service is likely to come in the way of efficient discharge of duties, a similar situation may well arise in the case of a male member. In these days of nuclear families, inter-continental marriages and unconventional behaviour, one fails to understand the naked bias against the gentler of the species.’ It was further observed by the Hon’ble Court that ‘if a married man has a right, a married woman, other things being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against woman’s thraldom. Freedom is indivisible, so is Justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of India’s humanity, viz., our women, is a sad reflection on the distance between Constitution in the book and Law in Action. And if the Executive as the surrogate of Parliament, makes rules in the teeth of Part III, especially when high political office, even diplomatic assignment has been filled by women, the inference of die-hard allergy to gender parity is inevitable.’
- Air India v. Nergesh Meerza [(1981) 4 SCC 335] – In this case the policy of the Air India, then a State-owned company, which requires female flight attendants to retire under three circumstances viz., a) upon reaching age of 35 years, b) upon getting married, or c) upon first pregnancy was under challenge. The Hon’ble Apex Court was faced with the substantial question of law with critical and far-reaching impact such as ‘Retirement of Air Hostesses in the event of marriage taking place within four years of service, whether unreasonable or arbitrary?’ ‘Retirement of Air-Hostess, provision on service rule, or on first pregnancy. whichever occurs earlier, whether unconstitutional?’. The Court struck down the rules holding that these requirements are unconstitutional as constituted official arbitrariness and hostile discrimination.
- Randhir Singh v. Union of India and Ors. [(1982) 1 SCC 618] – In this case the Hon’ble Apex Court while holding that non-observance of the principle of ‘equal pay for equal work’ for both men and women under Article 39(d) of the Constitution amounted to violation of Articles 14 and 16, recognized that the principle was expressly recognized by all socialist systems of law including the Preamble to the Constitution of the International Labour Organization.
- Madhu Kishwar and Ors. v. State of Bihar and Ors. [(1996) 5 SCC 125] – In this case challenge was made to certain provisions of Chotanagpur Tenancy Act, 1908 providing succession to property in the male line in favour of the male on the premise that the provisions are discriminatory and unfair against women and, therefore, ultra vires the equality clause in the Constitution. The Court while upholding the fundamental right of the Tribal women to the right to livelihood held that the State was under an obligation to enforce the provisions of the Vienna Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which provided that discrimination against women violated the principles of equality of rights and respects for human dignity.
- Vishaka and Ors. v. State of Rajasthan and Ors. – [(1997) 6 SCC 241] – In this case the Hon’ble Supreme Court was approached to seek the enforcement of the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India with the aim of finding suitable methods for realization of the true concept of “gender equality”; and preventing sexual harassment of working women in all work places through judicial process to fill the vacuum in existing legislation. The Hon’ble Supreme Court while framing the guidelines and norms to be observed by the employers in work places to ensure the prevention of sexual harassment of women, inter alia, relied on the provisions in the Convention on the Elimination of All Forms of Discrimination Against Women as also the general recommendations of CEDAW for construing the nature and ambit of constitutional guarantee of gender equality in our Constitution.
- Juseph Shine v. Union of India – [AIR 2018 SC 4898] – In this case the Hon’ble Court struck down Section 497 of the Indian Penal Code, 1860 by holding that provision of S. 497 of IPC treats a married woman as property of husband. S. 497 IPC does not bring within its purview an extra marital relationship of man with unmarried woman or widow. Man, in certain situations, becomes criminally liable for having committed adultery while, in other situations, he cannot be branded as a person who has committed adultery so as to invite the culpability of S. 497 IPC. Sub-section (2) of S. 198 treats husband of woman as deemed to be aggrieved by an offence committed under S. 497 IPC and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed with the leave of the It does not consider the wife of the adulterer as an aggrieved person. The offence and the deeming definition of an aggrieved person, is absolutely and manifestly arbitrary as it does not even appear to be rational and it can be stated with emphasis that it confers a licence on the husband to deal with the wife as he likes which is extremely excessive and disproportionate. It does not treat a woman as an abettor but protects a woman and simultaneously, it does not enable the wife to file any criminal prosecution against the husband. Indubitably, she can take civil action but the husband is also entitled to take civil action. However, that does not save the provision as being manifestly arbitrary. The rationale of the provision suffers from the absence of logicality of approach and, therefore, it suffers from the vice of Art. 14 of the Constitution being manifestly arbitrary.
- Anuj Garg v. Hotel Association of India – [(2000) 3 SCC 224] – In this case the state imposed prohibition on the employment of any women in any part of such premises in which liquor or intoxicating drug is consumed by the public, imposed by virtue of Sec. 30 of the Punjab Excise Act, 1914, was questioned before the Hon’ble Court. It was held by the Hon’ble Court that ‘instead of putting curbs on women’s freedom, empowerment would be a more tenable and socially wise approach.’ Referring to Professor Williams in “The Equality Crisis: Some Reflections on Culture, Courts, and Feminism” published in 7 WOMEN’S RTS. L. REP. 175 (1982), it was noted as ‘issues arising where biological distinction between sexes is assessed in the backdrop of cultural norms and stereotypes. She characterizes them as “hard cases”. In hard cases, the issue of biological difference between sexes gathers an overtone of societal conditions so much so that the real differences are pronounced by the oppressive cultural norms of the time. This combination of biological and social determinants may find expression in popular legislative mandate. Such legislations definitely deserve deeper judicial scrutiny. It is for the court to review that the majoritarian impulses rooted in moralistic tradition do not impinge upon individual autonomy. This is the backdrop of deeper judicial scrutiny of such legislations world over.’
- Secretary, Ministry of Defence v. Babita Puniya – [(2020) 7 SCC 469] – In this case the claim of women engaged on Short Service Commissions in the Indian Army for seeking Permanent Commission was evaluated and held to be justified.
There are some other cases in which the verdicts came as a strong message to our society at large that treating women unequal is nit permissible. Some of the pronouncements/ cases which gained much coverage in various sections of the societies are:
- Independent thought Vs UOI – in this case it was held that intercourse with wife above 18 is not rape.
- Mukesh and others Vs State of NCT of Delhi (05.05.2017) – this case of brutal rape of a young girl in a moving bus on the streets of the capital of India led to the Criminal Amendment Act 2013.
- Laxmi Vs UOI (10.04.2017) – this case commonly known as the Acid Attack case, brought the Acid Attack Victim Compensation