Is Supreme Court sexist?
by
AJ Philip |
It’s more lexical than legal
LAWS cannot, often, catch up with changing social mores. The Indian Penal Code, drafted by the British in the 19th century, is one of the least amended. The criminal justice system revolves around this code and it has, therefore, many imperfections.
Last week, an event of considerable legal significance happened in the country when Booker Prize winner and author of The God of Small Things Arundhati Roy’s mother Mary Roy got possession of a small plot of land she inherited from her father who died without preparing a will.
Under the Christian succession law, applicable to Syrian Christians of Kerala, a daughter was entitled to only Rs5,000 or a quarter of the share of the son, whichever was less, if the father died intestate. Incidentally, when this law was enacted, Rs5,000 was a princely sum.
There were other provisions in the customary laws applicable to the Christians that protected the interests of their women. The issue here is that when Mary Roy challenged the law and asked for division of her father’s property equally for her and her brother, the Supreme Court did not take shelter in the antiquated law. Instead, the court used its creative and interpretative power to hold the Christian succession law contrary to the ethos of the Constitution and, therefore, invalid. It is a different matter that it took over two decades for Mary Roy to get actual possession of the land, despite the apex court’s verdict in her favour.
The point to be noted is that the High Courts and the Supreme Court have used such powers so that the criminal justice system is not found wanting in dealing with new and unforeseen situations. Last year, a huge controversy erupted when the Delhi High Court in a trend-setting judgement declared those provisions of the law that treated homosexuals as worse than criminals null and void. Of course, many non-government organisations and religious bodies have challenged the verdict in the Supreme Court.
Today, India is a favourite destination for those seeking surrogate mothers, i.e., those who bear children for other persons. There are many fertility clinics in India where services of doctors specialising in transferring fertilised egg into another woman’s womb are available.
The woman and the couple enter into a written agreement so that she is paid the promised fee and she, in turn, does not claim any maternal rights on the baby. Despite the written agreements, there can be disputes as has happened in a recent case in Gujarat involving a foreign couple and an Indian woman. However, there are no laws to govern such relationships.
Yet, the courts cannot dismiss such cases on the ground that the law-makers of the country had not drafted laws to deal with them. In other words, the courts are willy-nilly forced to give verdicts based on their instincts for natural justice and interpretative skills. While the institution of family has been crumbling in the West, it has still been going strong in India. Though the joint-family system has given way to nuclear families, particularly in urban areas, the importance of marriage has not diminished a wee bit.
Yet, live-in relationships, whereby men and women live like married couples, are becoming increasingly common. Like divorces that happen among all religious communities, there can be disputes between the partners in live-in relationships too. It can be about property acquired during their relationship or children born out of such relationships.
Unfortunately, the marriage laws are not applicable to them as they are not formally married. But when courts have to grapple with such cases, they have to find ways to dispense justice within or without the marriage laws. One such case, under the Protection of Women from Domestic Violence Act, came up before the Supreme Court last week. In conformity with its earlier rulings, the two-member Bench consisting of Justice Markandey Katju and Justice TS Thakur declared that the benefits of maintenance under the Act could be extended only to those who were in a relationship “in the nature of marriage”.
While elaborating the point, the court listed four conditions a couple must satisfy if they are to get the benefit of such a marriage: “They must hold themselves out to society as being akin to spouses; they must be of legal age to marry; they must be otherwise qualified to enter into a legal marriage; and they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time”.
But, unfortunately, the court also said: “If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant, it would not be a relationship in the nature of marriage. Merely spending weekends together or a one-night stand would not make it a ‘domestic relationship’.
The court made two blunders. First, it quoted the ‘Common Law Marriage’ entry on Wikipedia, an Internet-based encyclopaedia, open to editing by anyone anywhere in the world, while listing the four conditions. Worse, it used the words ‘keep’ and ‘one-night stand’ to which the only woman additional solicitor-general attached to the Supreme Court Indira Jaising has strongly objected.
When the court asked the lady lawyer, a day after the judgment was pronounced, whether she would have objected to the word ‘concubine’ in place of ‘keep’, it only worsened the problem. Words like ‘concubine’ and ‘keep’ are sexist and show a certain bent of mind and the court should have avoided them by all means. Be that as it may, nobody disputes the fact that the Supreme Court judgment is progressive, particularly when live-in relationships are no longer considered unnatural.
Oman Tribune |
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