GENDER BISA BY COURTS JUDICIARY NEEDS A REALITY CHECK!!

Mehak Khanna, Sambit Swain*

judicial approach and precedents have played an important role in structuring the campaigns to achieve greater equality and social justice for women within the society. These campaigns have focused on the role of the Nation to improve the rights of women on a wide range of areas such as marriage, rape, reproduction, property ownership, prevention of violence and employment protection. However the implementations of reforms through the administration of justice systems have often proved highly problematic. A disturbing trend that can be observed is that the judiciary itself is indifferent and apathetic or, at worst, hostile to developing a legal culture based on gender justice. 1 Articles 14 and 15 of the Constitution provide for equality for all and also prohibit any discrimination based on gender. Despite these provisions, unfortunately for women, there are many in the rank and file of the judiciary who consider women as subordinate to men, women as instruments of man's comfort and pleasure.

In 1996 an Indian NGO Sakshi that works with the judiciary, conducted a research, in which it interviewed 109 judges from District Courts, High Courts and the Supreme Court, female lawyers and litigants in five Indian cities. According to the NGO, ‘it is the durability of this assumption expressed by judges…that allows so much male violence to go unchallenged, so much so that even where women have experienced extreme violence, they are blamed for provoking or tolerating that violence' 2 . About half of the judges interviewed felt that women who are abused by their spouses are partly to blame for their situation because they continue to stay with their abusers. About 68 per cent. felt that provocative attire was an invitation to rape and 55 per cent. felt that moral attire was relevant to rape. This uncovers and exposes the myth of judicial neutrality.

Apathy of the Courts in rape cases

Over the last fifteen or so years there has been an increasing focus on the role of the legal system in combating discrimination against women. The Supreme Court has in a number of its judgments attempted to take initiative in this regard in certain cases though there is a considerable controversy over the role of the judiciary in cases of violence against women. The conviction rates for such crimes are very low. Even when cases are registered, the lack of appropriate investigation, or the judge's own caste and gender biases, can lead to acquittal, regardless of the availability of evidence or witnesses. The failure to successfully prosecute cases of rape also allows for crimes against women to continue unabated. A glaring example of this is the Mathura rape case 3 wherein, Mathura , a sixteen year old tribal girl was raped by two policemen in the compound of Desai Ganj Police station in Chandrapur district of Maharashtra while her relatives were waiting outside the police station.

The case came for hearing on 1st June, 1974 in the Sessions Court. The judgment, however, turned out to be in favour of the accused. Mathura was accused of being a liar and it was stated that since she was ‘habituated to sexual intercourse' her consent was voluntary. On appeal the Nagpur bench of the Bombay High Court set aside the judgment of the Sessions Court, and sentenced the accused namely Tukaram and Ganpat to one and five years of rigorous imprisonment respectively. The Court held that passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse. However, the Supreme Court again acquitted the accused policemen. The Supreme Court held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby negating the struggle by her. The Court in this case failed to comprehend that a helpless resignation in the face of inevitable compulsion or the passive giving in is no consent.

As rightly observed by Justice Saghir Ahmad, “Unfortunately a woman in our country belongs to a class or group of society who are in a disadvantaged position and have been victims of tyranny at the hands of men with whom they, unfortunately, under the Constitution enjoy equal status.” There have been several astounding decisions, which have only worsened the plight of women in this already prejudiced society. In Satish Mehra v. Delhi Administration and Another, 4 a 1996 case of the rape of a three-year-old girl by her father, the Supreme Court concluded that there lacked sufficient evidence to proceed to trial and pointed to the “seemingly incredulous nature of the accusations against a father who molested his infant child.” The Court instead accused the mother of leveling false accusations to take revenge on her husband for an unhappy marriage. The Court relied heavily on the fact that the accused's wife found their marital life to be “extremely painful and unhappy from the very inception” and that she had accused him of being an alcoholic and prone to inflicting severe physical violence. In this case, despite the legal basis it claimed for the decision, the court only briefly touched on evidentiary matters and preferred to be motivated by its professed disbelief that such crimes could actually take place.

The views of the Supreme Court in ascertaining mental cruelty

The Supreme Court in its various decisions in the last five years has granted divorce due to mental cruelty on the basis of the most startling reasons, like the respondent wife working away from home, constant quarrelling and nagging by her, threatening and verbal abuse. The Supreme Court in Samar Ghosh v. Jaya Ghosh 5 laid down certain radical parameters for determining mental cruelty which were:

• Unilateral decision of refusal to have intercourse for a considerable period without there being any physical incapacity or valid reason.

• Sterilization/tubectomy without the consent of the spouse.

• Nagging behaviour

• Indifference and frigidity

• Denial of company

• False allegations and verbal abuse.

The Bench, while laying down factors constituting mental cruelty, granted divorce to the appellant Samar Ghosh who alleged that his wife Jaya Ghosh, also an IAS officer, refused to bear him a child for no fault of his. The couple had got married in December 1984, the respondent, Jaya Ghosh was a divorcee and had a girl child from her first marriage and did not want to bear another child.

As it can be correctly observed from this ‘extremely prejudiced' decision that the Supreme Court has paved way for further atrocities against women. The sole objective of the institution of marriage is not sex or child bearing and neither can there be a comprehensive definition of mental cruelty as recognized and stated by the SC in this judgment. The SC by entering into the private domain of couples has initiated an unending debate for future cases as men for unprincipled and immoral objectives could easily misuse this bigoted decision.

In Naveen Kohli v. Jaya Kohli , 6 the Supreme Court laid down that ‘using filthy language, gestures or even silence may fall under the ambit of mental cruelty'. In a similar thought provoking decision, 7 the Supreme Court acknowledged constant nagging and false allegations, threats, quarrelling, and lack of companionship to be grounds of mental cruelty.

Recent scandalous judgment on dowry

A recent judgment of the Supreme Court has got sharp reactions from some women throughout the country. 8 The court held that a demand for money on account of some “financial stringency” or meeting some urgent domestic expenses, or for purchasing manure by a man from his in-laws, could not be termed as a demand for dowry as the definition of dowry is normally understood under the law. The judgment paves way to husbands demanding wealth from their in-laws on the pretext of business needs and urgent requirement, therefore clearly negating the effect of ant-dowry laws.

Need for Judicial Education

Judicial education is a relatively new idea in the common law tradition, only recognized as having a role to play in the last twenty years or so and only in some countries. There is a growing need for the judiciary to provide and demonstrate accountability in sensitive areas of public domain. 9 Thus, judicial education is best understood within the broader context of the professionalisation and accountability of the judiciary, which is the need of the hour. The Supreme Court in Judges Association v. Union of India, 10 recognizing the importance of judicial training and educational programmes issued directions to set up an All India Institute for the training of higher officers of the judiciary, including District Judges, and a State level institute for training the ‘subordinate' judiciary within each State or Union Territory .

In summary, if the training programmers and the educational initiatives are successful, it could make a significant impact on court practice. This impact can be achieved with the changes in social outlook and widening the thinking of the judges by making them aware of their evenhanded and impartial duty to the society and the country at large.

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* Amity Law School

1. NGO Sakshi, “Gender and Judges: A Judicial Point of View,” (New Delhi, 1996), p. 8.

2. See, Sakshi report on “Gender and Judges: A Judicial Point of view', Study of 1997, p.40

3. 1978 CrLJ 1984 SC

4. In the Supreme Court of India, Criminal Appellate Jurisdiction, Criminal Appeal No. 1385 of 1995, p. 6. 48 Criminal Appeal No. 1385 of 1995, p. 6.Also see, Prem Chand and Another v. State of Haryana, 1989 Supp (1) SCC, p. 287.

5. 2007(5) SCALE 1

6. AIR 2006 SC 1675

7. Jayachandra v. Aneel Kaur, AIR 2005 SC 534 ,See Mayadevi v. Jagdish Prasad, RLW 2007 (2)SC 1093. See also
Durga Prasanna Tripathi v. Arundhati Tripathi ,AIR 2005 SC 3297

8. Appasaheb v. State of Maharashtra , AIR 2007 SC 664.

9. See, Hatchard, John and Slinn, Peter (1999), Parliamentary Supremacy and Judicial Independence : A Commonwealth Approach, London , Cavendish Press.

10. (1991) Suppl. 11 SCR 230