Some judges appear not to believe in the independent agency of women. (Representational)
Indian judges are independent of the executive and unlike in the US, do not represent a political ideology. Generally, the religion, caste or economic status of litigants has no bearing on judgments. Though our judges attach no importance to litigants’ religion or caste, yet, a recent study by Anup Surendranath found that the poor, Dalits and minorities constitute 76 per cent of the people on death row. There is one strange and notable side of the judiciary, which has not yet been fully researched. It seems that at least some Indian judges are far more sympathetic to Muslim women’s causes compared to those of Hindu women. For instance, a recent judgment of the Guwahati High Court treated the refusal to put on sindoor (vermillion) and conch shell bangles (shaka) as a sufficient basis to grant a divorce to the husband.
Some judges appear not to believe in the independent agency of women. In a recent order granting bail to a rape accused, Justice Krishna Dixit of the Karnataka HC had made some disturbing observations about the reaction of Indian women when they are assaulted. Subsequently, he had to expunge his controversial statement. A few years ago, the Madras High Court gave a strange order directing “divorcees too should maintain sexual purity to claim alimony”.
Even a liberal judge like Justice Markandey Katju in D Velasamy (2010) had termed a second Hindu wife as “mistress” and “keep” and thus not entitled to maintenance. Justice Anil Dave and Adarsh Goel in Prakash (2015) had refused to give retrospective effect to the 2005 Amendment to Hindu Succession Act under which a daughter was for the first time recognised as coparcener and entitled to ancestral property. The pro-women judgment of the Karnataka HC was reversed by the apex court. Strangely, in the second part of the same judgment, Justice Goel expressed concerns about Muslim women and the discriminatory nature of Muslim Personal Law, though he did accept the matter was not in dispute before them. Why did the court did not consider discriminatory provisions of the Hindu Succession Act, which were very much before it? That is a Hindu mother, Hindu wife and Hindu daughter-in-law are still not coparcener. Similarly, if a childless Hindu couple dies, the property of the husband goes to his parents. But strangely, even the wife’s goes to the husband’s parents rather than her own.
Shayra Bano (2017) or the triple divorce case basically originated from the orders of the apex court in the above case where the Court gave judgment against a Hindu woman but seemed more concerned about Muslim women. Interestingly, Shayra Bano’s husband Rizwan Ahmad was keen to retain her as his wife and it was she who had asked for separate house and Rizwan rented one for her. Not satisfied, she was asking him to live with her parents. Her father left the children at Allahabad Railway station. Rizwan was interested in sustaining the marriage and had filed a case of restitution of conjugal rights. When she applied for the transfer of this case from Allahabad to Kashipur, Rizwan sent a written divorce deed along with a draft of dower and maintenance. It was not the case of instant triple divorce.
The facts of Narender (2016) were similar to Shayra Bano. In this case, too, a high court had ruled in favour of the wife. The SC bench of Justice Anil Dave and L Nageshwar Rao held that “Hindu wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family …she would never insist that her husband should get separated from the family and live only with her.” This would amount to “cruelty” and the husband would be entitled to divorce her. The judgment overlooks the fact that marriage is a union of two individuals, not two families. The Court also used Indian and Hindu ethos interchangeably.
In Daniel Latifi (2001) too, ignoring the legislative history of 1986 law, that is Muslim Women’s (Right on Divorce) Act that was brought in to undo Shahbano (1985), the SC gave a big relief to Muslim women by saying that the infamous law brought in by Rajiv Gandhi in no way dilutes Shahbano.
In Rajesh Sharma (2017), a bench of Justice Adarsh Goel and U U Lalit, after noting the misuse of Section 498A of the IPC, which punishes cruelty, observed that there should be no automatic arrests on charges of cruelty and each district should have a Family Welfare Committee. The order was in favour of the husband and in-laws. In this case, a dowry of Rs 3,00,000 and a car was demanded, which the wife’s family was unable to meet. The pregnant wife was dropped in a pathetic condition outside her parents’ house, leading to the termination of pregnancy. She was allegedly tortured, as was noted by the lower court. Unlike Prakash, the plain language of the statute and legislative intent were not a problem in this case. Yet the Court did not hesitate to dilute the statutory provision and give a number of directions in favour of the accused. Subsequently, the matter was referred to a three-judge bench.
Decades ago, in Harvinder Kaur (1983), Justice AB Rohtagi of the Delhi HC had observed that the “introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be the ruthless destroyer of the marriage institution and all that it stands for. In the privacy of home and the married life, neither Article 21 nor Article 14 have any place.” Fortunately, a few months ago, the apex court had agreed to revisit the constitutionality of the restitution of conjugal rights provision.
The writer is constitutional law expert. Views are personal