Op EdsOP. ED.

Introduction

The Medical Termination of Pregnancy (Amendment) Bill, 2020[1] (“the Bill”) was passed by the Lok Sabha on 02.03.2020. It was thereafter introduced in the Rajya Sabha on 18.03.2020 and is yet to be passed by the Upper House. The Bill attempts to bring about certain changes in the present law relating to medical termination of pregnancy. Presently, the Medical Termination of Pregnancy Act, 1971[2] (“the MTP Act”) lays down the law and procedure with respect to medical termination of pregnancy and the Medical Termination of Pregnancy Rules, 2003[3] (“the Rules, 2003”) sets forth certain rules that must be adhered to by medical professionals and institutions that carry out medical termination of pregnancy. It is important to note that the term “abortion” has not been used in the MTP Act, the Bill or in the Rules, 2003; but is rather a term that is colloquially used.

Further, it is pertinent to note that the MTP Act acts as an exception to Section 312 of the  Penal Code, 1860[4] (“IPC”), which criminalises the act of “voluntarily causing a woman with child to miscarry” save for the purpose of it being carried out in good faith to save the life of the woman”. Therefore, while Section 312 IPC still remains in force, neither the MPT Act nor the Bill decriminalises medical termination of pregnancy but states certain permissible grounds under which a woman can undergo a medical termination and only under these specified and permissible categories/conditions can a woman undergo a termination, save by an order from the Court concerned.

Brief History of the MTP Act

The MTP Act was introduced in Parliament in 1970, was eventually passed in August 1971 and came into operation on 01.04.1972, after the Government framed rules for its implementation.  Since then, the Act has been amended once in 2002 and the new rules were framed in 2003. The Bill attempts to bring about a third amendment to the MTP Act.

Before the enactment of the MTP Act, about 5 million terminations were carried out per year in India out of which 3 million were illegal[5]. It is said that approximately one seventh of women who become pregnant in India every year resort to unsafe termination methods at the hands of inexperienced persons and “quacks” and/or paramedical personnel, like nurses, midwives who lacked the necessary experience and this resulted in risks of high morbidity and mortality amongst pregnant women and their children[6]. Further, during the period of 1960s, several countries started to enact laws to legalise medical termination of pregnancy. The MTP Act was largely modelled on the Abortion Act of 1967 which had been passed in the United Kingdom and the legislative intent, as opined by the  Supreme Court of India (“the Supreme Court”), was to provide a qualified “right to abortion” and the termination of pregnancy which has never been recognised as a normal recourse for expecting mothers.[7]

In order to lay down the law regarding medical termination of pregnancy, the Government of India set up the Shah Committee under Mr. Shantilal Shah to propose certain draft laws. This was also done at a time when countries across the world were attempting to liberalise termination laws and about 15 counties had already legalised medical termination of pregnancy. The Shah Committee in its report observed that “whatever may be the moral and ethical feelings that are proposed by society as a whole on the question of induced abortion, it is afact that a number of mothers are prepared to risk their lives by undergoing an illegal abortion rather than carrying that particular child to term”. The committee submitted a comprehensive report suggesting various situations justifying legal termination of pregnancy. It was of the view that this should be allowed not only for saving the life of the pregnant woman, but also to avoid grave injury to her physical or mental health. There was some debate surrounding the main prerogative of passing this legislation, as to whether it was enacted to combat the rising population growth or to ensure women have access to safe methods of termination, and giving them enhanced reproductive rights. Certain factions viewed the legislation, upon its enactment, as being a strategy for reducing population growth but the Shah Committee, specifically denied that this was its purpose[8].

A woman’s right to make reproductive choices is also a dimension of personal liberty as under Article 21 of the Constitution[9], as held by the Supreme Court in Suchita Srivastava v. Chandigarh Administration[10]. Herein, the Supreme Court held that it is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating and the crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected, which means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods.

In the aforementioned case, the Supreme Court also laid down the “best interests test” and “substituted judgment test” wherein the “best interests test” requires the Court to ascertain the course of action which would serve the best interests of the person in question and this decision should be guided by the interests of the victim alone and not those of the guardians or of society in general. The application of the “substituted judgment” test requires the Court to step into the shoes of a person who is considered to be mentally incapable and attempt to make the decision which the said person would have made, if she was competent to do so. Further, the Court made a distinction between those who are “mentally ill” or those who suffer from “mild mental retardation”. The MTP Act, as amended in 2002 substituted the word “lunatic” in Section 3(4)(a) which that of the expression “mentally ill person” and persons who are in a condition of “mental retardation” should ordinarily be treated differently from those who are found to be “mentally ill”. Therefore, while a guardian can make decisions on behalf of a “mentally ill person” as per Section 3(4)(a) of the MTP Act, the same cannot be done on behalf of a person who is in a condition of “mental retardation” and those who suffer from “mental retardation” are capable of making their own choices with respect to termination of  pregnancy.

Salient Features of the MTP Act

The MTP Act recognises the rights of the woman who wishes to undergo the termination and is surrounded and premised her consent, well-being and health. Therefore, the permissible grounds of medical termination depend upon the mental and physical health of the woman. This stance is different from that taken by certain countries such as United States of America, wherein certain States have premised their laws on the basis of the foetus, by recognising the rights and well-being of the foetus.

According to Section 3 of the MTP Act[11], if the duration of the pregnancy is of 12 weeks, it may be terminated on the basis of the opinion of one “registered medical practitioner” if continuance of the pregnancy would involve a risk to the life of the pregnant woman or would cause grave injury to her “physical or mental health” or if there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. If the length of the pregnancy is between 12 weeks -20 weeks, then the opinion of two registered medical practitioners is required in order to terminate the pregnancy. The basis of the opinion is the same as mentioned hereinabove.

The two Explanations to this section create as presumption that if the pregnancy is caused by rape or that the pregnancy was due to failure of any device or method used by “any married woman” or “her husband” for the purpose of limiting the number of children, then the “anguish” caused by such a pregnancy would be presumed to cause injury to the mental health of the woman. It is important to note that the grounds for termination, as enumerated in Section 3 of the MTP Act, barring Explanation II, is applicable to all women, regardless of their marital status and therefore the term “pregnant woman” or “pregnancy” is used, which does not indicate the marital status of the pregnant woman. In the event, that the termination is absolutely crucial to save the woman’s life, then the opinion of only one registered medical practitioner will suffice, regardless of the length of the pregnancy[12]. A registered medical practitioner is a doctor who specialises in the field of gynaecology and obstetrics.[13] Any other doctor does not come under the purview of a registered medical practitioner under the MTP Act.

In the event, that the pregnancy exceeds 20 weeks, then the woman has to approach the High Court concerned  or the Supreme Court by filing a writ petition under Article 226 or Article 32 of the Constitution of India respectively. Thereafter, the Court concerned directs that a medical board be set up, which is to prepare a report and submit it before the Court. Based on this report, the Court either allows or disallows the woman to undergo a medical termination.

In Meera Santosh Pal v. Union of India[14], woman who was in the 24th week of her pregnancy filed a petition before the Supreme Court with the plea to undergo a medical termination of pregnancy. The Supreme Court directed a medical board to be set up and the board was of the opinion that continuation of the pregnancy would not only result in grave injury to the physical and mental health of the woman but the foetus  would not be able to survive “extra-uterine life” due to abnormalities and therefore the Supreme Court directed that the woman can undergo a medical termination of pregnancy as per the provisions of the MTP Act.

Similarly, in  Sarmishtha Chakrabortty v. Union of India[15], a woman approached the Supreme Court to seek permission to undergo a medical termination. The Supreme Court directed that a medical board be set up and the medical board was of the opinion that it was a case for termination of pregnancy as the women was at the threat of severe mental injury if the pregnancy is continued and if the child were born alive, would need complex cardiac corrective surgery stage by stage after birth and there is high mortality and morbidity at every step of this staged surgeries. Therefore, the Supreme Court granted the prayers sought for in the petition and permitted the woman to undergo a medical termination of pregnancy.

Further, in  X v. Union of India[16], the Supreme Court held, on the basis of a report submitted by the medical board directed to be constituted, that though the current pregnancy of the petitioner was about 24 weeks but the life of the foetus outside the womb was endangered and therefore the Supreme Court permitted the woman to undergo a medical termination of pregnancy as per the provisions of the MTP Act.

However, in certain cases, the Supreme Court has rejected a woman’s plea to undergo medical termination. In Savita Sachin Patil v. Union of India[17], a woman in her 26th week of pregnancy approached the Supreme Court in order to seek permission to undergo a medical termination. The Supreme Court directed that a medical board be set up and the medical board submitted a report which opined that there is no physical risk to the mother of continuation or termination of pregnancy and if the baby is born with “Trisomy 21”, it is “likely” to have mental and physical challenges. The Supreme Court held that since the medical report clearly does not observe that this particular foetus will have severe mental and physical challenges and simply states that it is “likely” to have these challenges and also since there is no danger to the life of the woman, the prayer to undergo medical termination was declined by the Supreme Court.

Similarly, in  Sheetal Shankar Salvi v. Union of India[18], the Supreme Court, on the basis of the report of the medical board, declined to grant permission to a woman to undergo medical termination on the grounds that since it has not been possible for the  Medical Board to determine the period of time for which the baby is likely to survive and since there is no danger to the mother’s life and that there was the likelihood that “the baby may be born alive and may survive for variable period of time”.

The consent of the woman is of paramount importance and no termination can take place without the consent of the woman[19]. However, in the event that a minor woman i.e. who is under the age of 18 years old or one who may be a major i.e. 18 years old or above but suffers from mental illness is pregnant and wishes to undergo a medical termination, the termination shall take place only upon the consent given by her guardian in the form of writing[20].

Further, women who undergo a medical termination of pregnancy are entitled to maternity benefits and maternity leave for a period of 6 weeks following the date of the termination under the Maternity Benefit Act, 1961[21].

Proposed Amendments by the Bill

The Bill seeks to carry out certain amendments to the MTP Act, some of which are welcome changes. One of the key amendment features is increasing the permissible upper limit of undergoing a termination, without an order from the court concerned, from 20 weeks to 24 weeks of the length of the pregnancy. In the MTP Act, 20 weeks is the upper limit to undergo a termination by seeking the opinion from two registered medical practitioners. As stated above, presently, if the length of the pregnancy is over 20 weeks and a woman wishes to undergo a termination, she will have to file a writ petition before the High Court concerned or the Supreme Court.

Further, the Bill proposes that, if a woman who is pregnant for a period of 20 weeks, wishes to undergo a termination, she will need to seek an opinion from one registered medical practitioner and such a proposed amendment is a welcome change as it reduced the mental, physical and financial burden on women. Further, the Bill proposes that if the length of the pregnancy is between 20 weeks to 24 weeks, then she will need an opinion from two registered medical practitioners before undergoing a termination. However, the Bill uses the term “in case of such category of woman as may be prescribed by rules made under this Act,” and therefore, only women who fall into the category as prescribed by the rules can avail this option. However, termination in this case is also permissible for “such category of woman as may be prescribed by rules made under this Act”. The Bill does not state any such category and this ambiguity/caveat can be problematic as the Rules and not the Act will determine the category of women who can undergo a termination in such an instance. In order to save the life of a woman, only the opinion of one registered medical practitioner is necessary, regardless of the length of the pregnancy. This provision exists presently in the MTP Act as well.

The Bill proposes to set up a “medical board” within the scope of the Act itself. The Bill proposes that if the length of the pregnancy is 24 weeks or more, then a medical termination is permissible only if the medical board has diagnosed that a case of “substantial foetal abnormality exists” and medical termination is necessary. It is pertinent to note that in such an instance, a medical termination will not be permissible on any other grounds but solely on the ground that the fetus has certain abnormalities. Therefore, a woman does not need to approach the Supreme Court or High Court to seek permission for a termination of pregnancy that exceeds 24 weeks in the event that there exists foetal abnormality. However, a woman, would still need to file a writ petition before the  Court concerned if the length of the pregnancy exceeds 24 weeks and she wishes to undergo a termination for a reason other than the existence of foetal abnormality. Presently, medical boards are not statutory creations but are created by various Courts which entertain writ petitions filed by women seeking permission to undergo a termination and on the basis of the report of the medical board, amongst other factors, the Court allows or disallows a medical termination.

Further, the Bill proposes to amend the Explanation to Section 3 (2) by amending the term “married woman” to replace it with “any woman” and by amending the term “husband” to replace it with the term “partner”. This proposed amendment can be regarded as being progressive and liberal as it ends the statutory discrimination against unmarried women and includes all women and their partners, notwithstanding the marital status between them, to fall under the presumptive exception created by the section. Further, this proposed amendment also recognises the changes in society and does not restrict relationships solely to marital ones.

Conclusion

The MTP Act is a progressive legislation, which has given women in India a semblance of reproductive rights and autonomy and this sentiment has been echoed by the Supreme Court through various judgments. At a time when certain countries are attempting to repeal medical termination of pregnancy laws, India has managed to retain and constantly develop the law surrounding medical termination of pregnancy. The Bill attempts to amend and introduce certain provisions which can be beneficial. Despite certain limitations and lacunae, wherein it is hoped that these lacunae are rectified by judicial pronouncements, the Bill can be viewed as an attempt to liberalise and expand the existing medical termination of pregnancy laws.


*The author is an Advocate who practices in New Delhi. She thanks Ms. Nandita Rao for providing some valuable inputs.

[1] Medical Termination of Pregnancy (Amendment) Bill, 2020 

[2] Medical Termination of Pregnancy Act, 1971

[3] Medical Termination of Pregnancy Rules, 2003

[4]Section 312: Causing miscarriage.—Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprison­ment of either description for a term which may extend to seven years, and shall also be liable to fine.

Explanation.—A woman who causes herself to miscarry, is within the meaning of this section.

[5] N. R. Madhava Menon, “Population Policy, Law Enforcement and the Liberalisation of Abortion : A Socio Legal Inquiry into the Implementation of the Abortion Law in India”, 16 JILI 626 at 632- 33 (1974).

[6]Asit K. Bose, “Abortion in India : A Legal Study”, 16 JIL1 535 (1974).

[7]Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1

[8]Siddhivinayak S. Hirve, “Abortion Law, Policy and Services in India: A Critical Review”, Abortion Law, Policy and Practice in Transition, Vol. 12 Issue Sup 24 (2004).

[9]Article 21: Protection of life and personal liberty– No person shall be deprived of his life or personal liberty except according to procedure established by law.

[10] (2009) 9 SCC 1

[11]Section 3: When pregnancies may be terminated by registered medical practitioners.-

(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-

(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that-

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or

(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Explanation 1.-Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

[12]Section 5(1), MTP Act

[13] Section 2(d), MTP Act

[14] (2017) 3 SCC 462

[15](2018) 13 SCC 339

[16](2017) 3 SCC 458

[17](2017) 13 SCC 436

[18](2018) 11 SCC 606

[19]Section 3(4)(b), MTP Act

[20]Section 3(4)(a), MTP Act

[21]Section 9, Maternity Benefit Act, 1961: Leave for miscarriage, etc.—In case of miscarriage or medical termination of pregnancy, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or, as the case may be, her medical termination of pregnancy.

Hot Off The PressNews

The National Human Rights Commission, NHRC, India, in order to ensure effective prosecution leading to conviction in cases of sexual assault on women, has prepared a ‘Standard Operating Procedure (SOP) on Collection & Processing of scientific/forensic evidences.’ The SOP, prepared in consultation with medical experts, has been sent to the States/UTs for issuing instructions to all the officers concerned for implementation.

The SOP has been divided into seven sections of key operating procedures. These are: victim care, promptness and examination, collection of samples, collection of blood and urine samples, genital and anal evidence, handing over samples to FSL and general. It can be accessed through the link: https://nhrc.nic.in/acts-and-rules/standard-operating-procedure-sop-collection-processing-scientificforensic-evidences

The Commission has come out with this SOP after it observed that in many cases of alleged rape and sexual assault, there is a substantial delay in medical examination, collection & processing of scientific/forensic evidences of the victim of sexual assault. The exhibits are forwarded to the Forensic Science Laboratory, FSL after much delay and by that time, the samples deteriorate/autolyse and become unsuitable for examination. This delay adversely affects the investigation for effective prosecution leading to a conviction.

The NHRC has expressed the hope that this Standard Operating Procedure if implemented in letter & spirit by the concerned authorities, will definitely help improve the system of medicolegal investigation in cases of sexual assault on women in the country.


National Human Rights Commission

[Press Release dt. 16-12-2020]

Case BriefsForeign Courts

Supreme Court of the United States (SCOTUS): A Full Judge Bench of Warren E. Burger, C.J. and Lewis F. Powell, Jr., Harry A. Blackmun, William J. Brennan, Jr., William O. Douglas, Thurgood Marshall, Byron R. White, Potter Stewart and William H. Rehnquist, JJ. reversed a judgment appeal of the Idaho Supreme Court.

Richard Lynn Reed, a minor, had died intestate in Ada County, Idaho, on March 29, 1967. His adoptive parents, who had separated sometime prior to his death, were the parties to this appeal. Approximately seven months after his death, his mother, appellant Sally Reed, had filed a petition in the Probate Court of Ada County, seeking appointment as administratrix of her son’s estate. Prior to the date set for a hearing on the mother’s petition, appellee Cecil Reed, the father of the decedent, filed a competing petition seeking to have himself appointed administrator of the son’s estate. The probate court held a joint hearing and treated §§ 15–312 and 15–314 of the Idaho Code as the controlling statutes and read those sections as compelling a preference for Cecil Reed because he was a male.

Section 15–312 designated the persons who were entitled to administer the estate of one who dies intestate, Section listed 11 classes of persons who were so entitled and provided that one of the 11 classes so enumerated was ‘the father or mother’ of the person dying intestate. Under this section then appellant and appellee, being members of the same entitlement class, would seem to have been equally entitled to administer their son’s estate, Section 15–314, however, provided, that

‘of several persons claiming and equally entitled (under § 15–312) to administer, males must be preferred to females, and relatives of the whole to those of the helf blood.’

In issuing its order, the probate court implicitly recognized the equality of entitlement of the two applicants under § 15–312 and noted that neither of the applicants were under any legal disability; the court ruled, however, that appellee, being a male, was to be preferred to the female appellant ‘by reason of Section 15–314 of the Idaho Code.’ Aggrieved by which Sally Reed appealed and her appeal was treated by the District Court of the Fourth Judicial District of Idaho as a constitutional attack on § 15–314. In dealing with the attack, that court held that the challenged section violated the Equal Protection Clause of the Fourteenth Amendment and was, therefore, void; the matter was ordered ‘returned to the Probate Court for its determination of which of the two parties’ was better qualified to administer the estate. This order was never carried out, however, Cecil Reed took a further appeal to the Idaho Supreme Court, which reversed the District Court and reinstated the original order naming the father administrator of the estate. Subsequently, Sally Reed thereupon appealed for review by this Court pursuant to 28 U.S.C. § 1257(2).

The Court concluded that the arbitrary preference established in favor of males by § 15–314 of the Idaho Code cannot stand in the face of the Fourteenth Amendment’s command that no State deny the equal protection of the laws to any person within its jurisdiction.

The Court further stated that Section 15–314 is restricted in its operation to those situations where competing applications for letters of administration have been filed by both male and female members of the same entitlement class established by § 15–312. In such situations, § 15–314 provides that different treatment be accorded to the applicants on the basis of their sex; it thus establishes a classification subject to scrutiny under the Equal Protection Clause and applying this clause Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. The Court quoted from the judgment of Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920),

 ‘A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’

While answering the question in the present case of whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state objective that is sought to be advanced by the operation of §§ 15–312 and 15–314, the Idaho Supreme Court concluded that its objective was to eliminate one area of controversy when two or more persons, equally entitled under § 15 312, seek letters of administration and thereby present the probate court ‘with the issue of which one should be named.’ The court also concluded that where such persons are not of the same sex, the elimination of females from consideration ‘is neither an illogical nor arbitrary method devised by the legislature to resolve an issue that would otherwise require a hearing as to the relative merits * * * of the two or more petitioning relatives * * *.’ 93 Idaho, at 514, 465 P.2d, at 638. The Court held that “To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.” Providing dissimilar treatment for men and women who are thus similarly situated, the challenged section violates the Equal Protection Clause.[Sally M. REED v. Cecil R. REED,  1971 SCC OnLine US SC 174, decided on 22-11-1971]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Madras High Court: A Division Bench of N. Kirubakaran and P. Velmurugan, JJ., while addressing the present petition observed that, Court fails to ascertain how women consent to get married to life convicts.

The present petition was filed by the wife of the life convict who got married to him when he got married when he came out on parole. The petitioner sought leave for 30 days for her husband to make arrangements for the livelihood of her family members.

S.G. Vedha Priyadharshini, Counsel appeared for the Petitioner and R. Prathap Kumar, Additional Public Prosecutor appearing for the Respondents.

Probation Officer in its report recommended 30 days’ leave to the convict which was sought by the petitioner.

Taking into consideration the above-stated report along with earlier orders of the Court, the bench is inclined to grant 30 days’ leave to the convict.

Accordingly, the life convict was directed to be released on 01-10-202 without a police escort and the Convict was directed to surrender before the prison authorities on 30-10-2020.

However, the petition was kept pending as the Court had impleaded National Commission for Women and the State Commission for Women to device a mechanism by which it is ascertained as to whether women are getting married to life convicts on their own accord or by force or coercion.

Hence, the Court raised the query:

“Whether the women marrying the life convicts are examined by the State Commission for Women or National Commission for Women to ascertain as to whether the willingness of the marriage or sign for the acceptance of the marriage has been obtained from the women?”

Bench noted that in many cases, women get married to the life convicts and this Court fails to find out as to how the consent of the women has been obtained. The rights of women have to be safeguarded. Usually, no girl will come forward to marry a life convict.

Nowadays, it is seen that it is difficult for a normal man to get married as modern girls are putting so many conditions for marriage. When that is so, it is unbelievable or surprising to see that a woman on her own volition giving consent to marry a convicted person for a life without husband’s companionship, love and care, which will amount to a violation of human rights.

National Commission for Women filed the response and the State Commission for Women’s response is still awaited. [Saibunisha v. State, 2020 SCC OnLine Mad 2733, decided on 30-09-2020]

Law made Easy

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]

Introduction

The patriarchal setup has been deeply rooted in Indian society since time immemorial. It may be believed that this system laid the foundation stone for the abuse of women. Domestic violence affects women from every social background irrespective of their age, religion, caste, or class. It is a violent crime that not only affects a person and her children but also has wider implications for society. Although the root behind the crime is hard to decipher, certain reasons behind the violence can be traced to the stereotyping of gender roles, and the distribution of power.

The definition of violence has evolved over the years to an extent it not only includes physical forms of violence but also emotional, mental, financial, and other forms of cruelty. Thus, the term domestic violence includes acts which harm or endangers the health, safety, life, limb, or wellbeing (mental or physical) of the victim, or tends to do so, and includes causing: physical abuse, sexual abuse, verbal abuse, emotional abuse, and economic abuse, perpetrated by any person who is or was in a domestic relationship with the victim.

Before the enactment of the Protection of Women from Domestic Violence Act, 2005 (“DV Act”), the victim could approach the court under Section 498-A of the Penal Code, 1860 which provides for ‘husband or relative of husband of a woman subjecting her to cruelty’ wherein only a certain set of offence dealing with cruelty to married women was the only recourse. All other instances of domestic violence within the household had to be dealt with under the offences that the respective acts of violence constituted under the IPC without any regard to the gender of the victim.

Protection of Women from Domestic Violence Act, 2005: Meaning, Intent, and Objective

To minimize the cumbersome position of law, be it procedural or substantive, the Protection of Women from Domestic Violence Act, 2005 was enacted to protect the women from acts of domestic violence. The legislative intent was further emphasized by the Supreme Court of India in the case of Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755 wherein it was stated that the DV Act is enacted to provide a remedy in civil law for the protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society. Other legislations like CrPC, IPC, etc., where reliefs have been provided to women who are placed in vulnerable situations were also discussed.

The objective of the Act lays down “An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.”[1] The Madras High Court in Vandhana v. T. Srikanth, 2007 SCC Online Mad 553 in one of the early cases since the enactment of the DV Act, observed that the Act was formulated to implement Recommendation No. 12 of United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), 1989 and which was ratified by India in June, 1993. Interpretation of the DV Act should conform to international conventions and international instruments and norms. The Bombay High Court in the case of Ishpal Singh Kahai v. Ramanjeet Kahai, 2011 SCC Online Bom 412 reiterated that the object of the DV Act is to grant statutory protection to victims of violence in the domestic sector who had no proprietary rights. The Act provides for security and protection of a wife irrespective of her proprietary rights in her residence. It aims at protecting the wife against violence and at the prevention of recurrence of acts of violence.

Key Definitions under the Domestic Violence Act

  • Aggrieved Person

According to the definition provided under the DV Act in Section 2(a), an “aggreived person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. Therefore, any woman who is or has been in a domestic relationship is entitled to make a complaint invoking provisions of the Act.

The amount or period of time lived together by the petitioner and respondent is not necessary in terms of that the petitioner and respondent should live or have lived together for a particular period of time. Hence, application by lady, for maintenance, from a man with whom she shared a close relationship is maintainable, M. Palani v. Meenakshi, 2008 SCC Online Mad 150.

The Supreme Court had observed in one of the cases that judicial separation does not change the status of the wife as an “aggrieved person” under Section 2(a) read with Section 12 and does not end the “domestic relationship” under Section 2(f). It stated that judicial separation is mere suspension of husband-wife relationship and not a complete severance of relationship as happens in divorce, Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC 705.

  • Domestic Relationship

According to Section 2(f) of DV Act, “domestic relationship” means a relationship between two persons living in a shared household. Domestic relationship can be through marriage such as wives, daughters-in-law, sisters-in-law, widows and any other members of the family; or blood relationship such as mothers, sisters or daughters; and other domestic relationships including through adoption, live-in relationships, and women in bigamous relationship or victims of legally invalid marriages. The law addresses the concerns of women of all ages irrespective of their marital status. The definition of “domestic relationship” under the DV Act is exhaustive: when a definition clause is defined to “mean” such and such, the definition is prima facie restrictive and exhaustive, Indra Sarmav. V.K.V Sarma, (2013) 15 SCC 755.

The Supreme Court further stated that the word domestic relationship means a relationship that has some inherent or essential characteristics of marriage though not a marriage that is legally recognized. Expression “relationship in the nature of marriage” cannot be construed in the abstract. It is to be taken in the context in which it appears and to be applied bearing in mind the purpose and object of DV Act as well as meaning of the expression “in the nature of marriage”, Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755.

  • Shared Household

According to Section 2(s) of DV Act 2005, a shared household is where the aggrieved person or a woman lives in a domestic relationship, either singly, or along with the man against whom the complaint is filed. It may also imply a household where a woman has lived in a domestic relationship but has been thrown out. This may include all kinds of situations whether the household is owned by the respondent or it is rented accommodation. It also includes a house either owned jointly by the aggrieved person and the respondent or both may have jointly or singly, any rights, titles or interests. The DV Act recognizes a woman’s right to reside in a shared household. This means a woman cannot be thrown out of such a household except through the procedure established by the law. In case she is thrown out she can be brought back again after obtaining the order from the court. A woman to claim the protection of right in “shared household” has to establish (a) that the relationship with the opposite party is “domestic relationship”, and (b) that the house in respect of which she seeks to enforce the right is “shared household”. In Indian society, there are many situations in which a woman may not enter into her matrimonial home immediately after marriage. A woman might not live at the time of the institution of proceedings or might have lived together with the husband even for a single day in “shared household” should not be left remediless despite valid marriage. Narrow interpretation of “domestic relationship” and “shared household” would leave many a woman in distress without remedy. Hence the correct interpretation of aforesaid definition including the right to live in “shared household” would be that words “live” or “have at any point of time lived” would include within its purview “the right to live”, Vandhana v. T. Srikanth, 2007 SCC Online Mad 553.

This law does not alter the legality of ownership or transfer the ownership and a woman cannot claim that she owns a house; it only provides emergency relief to the victim in the sense that she cannot be thrown out of her house. For claiming ownership, a woman has to follow a separate legal procedure and has to file a separate application as per the provisions of laws whichever are applicable to her situation.

  • Domestic Violence

“Domestic violence” is a broad term that entails not only physical beating but also other forms of violence such as emotional violence, mental violence, sexual violence, financial violence and other forms of cruelty that may occur within a household. The definition provided in Section 3 of the DV Act includes the following as acts of domestic violence:

“Any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”

The Section also defines the meaning of terms physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse. It further enunciates that the overall facts and circumstances of the case shall be taken into consideration in order to determine whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under the said section.

Who can seek help or can claim reliefs under the Domestic Violence Act?

According to the provisions of this Act, any aggrieved woman who is in a domestic relationship with the respondent and who alleges to have been subjected to the act of domestic violence by the respondent can seek help. A woman can file a complaint against any adult male perpetrator who commits an act of violence. She can also file a complaint against any male or female relatives of the husband/ male partner (for example in a live-in relationship) who has perpetrated violence. The Supreme Court in Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165 struck down adult male from the definition of “respondent” stating that it is not based on any intelligible differentia having rational nexus with object sought to be achieved. The Supreme Court also explained in the said case that the categories of persons against whom remedies under the DV Act are available include women and non-adults. Expression “respondent” in Section 2(q) or persons who can be treated as perpetrators of violence against women/against whom remedies under the DV Act are actionable cannot be restricted to expression “adult male person” in Section 2(q). Thus, remedies under the DV Act are available even against a female member and also against non-adults.

Protection Officer

Under Section 8 of the DV Act, the Protection Officer is appointed by the State Government as per the provisions of the law. The Protection Officer acts as a facilitator between the aggrieved woman and the court. The Protection Officer aids the aggrieved woman in filing of complaints, and application before the Magistrate to obtain the necessary relief and also assists to obtain medical aid, legal aid, counselling, safe shelter and other required assistance.

Duties of Protection Officer

Section 9 of the DV Act lays down the duties of the Protection Officer as follows:

“(a) to assist the Magistrate in the discharge of his functions under this Act;

(b) to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area;

(c) to make an application in such form and in such manner as may be prescribed to the Magistrate, if the aggrieved person so desires, claiming relief for issuance of a protection order;

(d) to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 and make available free of cost the prescribed form in which a complaint is to be made;

(e) to maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate;

(f) to make available a safe shelter home, if the aggrieved person so requires and forward a copy of his report of having lodged the aggrieved person in a shelter home to the police station and the Magistrate having jurisdiction in the area where the shelter home is situated;

(g) to get the aggrieved person medically examined, if she has sustained bodily injuries and forward a copy of the medical report to the police station and the Magistrate having jurisdiction in the area where the domestic violence is alleged to have been taken place;

(h) to ensure that the order for monetary relief under Section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);

(i) to perform such other duties as may be prescribed.”

Service Providers

A victim of domestic violence may require various services such as shelter home or safe accommodation, medical aid, child care, legal aid services and other community services. According to Section 10(1) of DV Act, the Service Providers are the NGOs, Companies or voluntary organizations working in the field of domestic violence and are registered under the laws of the State. Service Providers are duty bound to provide assistance and support to women facing domestic violence. A woman can go to a registered Service Provider to make a complaint under the DV Act. The duty of the service provider, as provided under Section 6 of the DV Act, upon receipt of request should be to provide shelter to the aggrieved person in the shelter home.

Filing a Complaint of Domestic Violence

An aggrieved woman, in order to file a complaint for domestic violence may:

  • Approach the police station and register the complaint, or
  • File a complaint to a Protection Officer or Service Provider, or
  • Directly approach the Magistrate.

The duties of the police officers, Protection officer, Service Provider, or the Magistrate is laid down under Section 5 of the Act. It states that, upon receipt of complaint they shall inform the aggrieved person—

“(a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act;

(b) of the availability of services of service providers;

(c) of the availability of services of the Protection Officers;

(d) of her right to free legal services under the Legal Services Authorities Act, 1987 ;

(e) of her right to file a complaint under Section 498-A of the Indian Penal Code , wherever relevant”

The Supreme Court emphasised that the Police has to look into the complaint made under the DV Act seriously and it cannot submit a report that no case is made out without proper verification, investigation, enquiry not only from members of family but also from neighbours, friends and others, Santosh Bakshi v. State of Punjab, (2014) 13 SCC 25.

Which Court can decide the case

Section 27 of the DV Act provides that a first class magistrate or metropolitan court shall be the competent court to grant a protection order and other orders under the DV Act and to try offences under the Act within the local limits of which

(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or

(b) the respondent resides or carries on business or is employed; or

(c) the cause of action has arisen.

In a recent decision, the Supreme Court held that petition under DV Act can be filed in a court where “person aggrieved” permanently or temporarily resides or carries on business or is employed, Shyamlal Devda v. Parimala, (2020) 3 SCC 14.

Reliefs available under the Domestic Violence Act

The remedies available under the DV Act as provided from Section 18 to 23 for the aggrieved person are as follows:

The Magistrate after giving the aggrieved person and the respondent an opportunity of being heard and if satisfied that domestic violence has taken place or is likely to take place may pass a protection order and prohibit the respondent from

(a) committing any act of domestic violence;

(b) aiding or abetting in the commission of acts of domestic violence;

(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;

(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;

(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;

(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;

(g) committing any other act as specified in the protection order.

The Magistrate may pass a residence order

  1. a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require.

The proviso clause for the section states that no order shall be passed under clause (b) against any person who is a woman.

The High Court of Madras opined that the Act contemplates two types of reliefs viz. (a) right to reside in shared household; and (b) right to seek residence orders under Section 19 of the Act—Section 19(1) of the Act empowers Magistrate to pass variety of residence order. Shared household would come into picture only when relief is sought in terms of Sections 19(1)(a) to (e) of the Act. Aggrieved woman can seek orders to enable her to continue to reside in shared household or protection order to enable her to reside in shared household, then property, which is subject-matter, should be shared household. Aggrieved woman can seek relief of alternate accommodation in terms of Section 19(1)(f) of the Act and in such case concept of shared household would not be attracted. Expression “shared household” occurring in Section 19(1)(f) of the Act is just for purpose of enabling aggrieved woman to seek alternative accommodation, which would be on par with shared household that she enjoyed at some point of time, M. Muruganandam v. M. Megala, 2010 SCC Online Mad 6012.

Under Section 20 of DV Act, an order for monetary relief can be passed by the court in case a woman has incurred expenditure as a result of violence. This may include expenses incurred by a woman on obtaining medical treatment, any loss of earnings, damage to property, etc. The aggrieved person can also claim for maintenance from her male partner.

The Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but is not limited to,—

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 or any other law for the time being in force.

It has also been provided in the section that the monetary relief provided should be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. In case there is a failure in part of the respondent to make payment in terms of the monetary order, the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

The Magistrate may grant temporary custody of the children to the aggrieved woman or any person making an application on her behalf. This is to prevent a woman from being separated from her children, which itself is an abusive situation. Section 21 also states that the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent. However, the Magistrate may refuse such visit to such child or children, if it feels that any visit to the child or children by the respondent may be harmful.

The Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.

  • Magistrate’s power to grant interim and ex parte orders (Section 23)

Section 23 gives power to the Magistrate to pass such interim order as he deems just and proper and also if the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 against the respondent.

Conclusion

Although the major objective of this law, being to protect the women against domestic violence has been secured, certain portions of the law still remains to be developed. This law provides civil remedies to the victims of domestic violence. Before enactment of this law, in order to seek any civil remedies such as divorce, custody of children, injunctions in any form or maintenance, a woman only had the option of taking recourse to the civil courts. Therefore, the DV Act has certainly brought about the required and necessary change in the system.

Although the Act provides exhaustive remedies to counter the issue of domestic violence certain terms and its interpretation needs to develop. The Act falls short in providing any relief to the male members in the community who are subjected to domestic violence, being one of the areas where the law falls short. However, it also needs to be considered that no crime can be abolished from the society completely, it is only with stringent reforms and mechanism that it can be curbed.


[1] Protection of Women from Domestic Violence Act, 2005


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Case BriefsHigh Courts

Madras High Court: A Division Bench of M. Sathyanarayanan and R. Hemalatha, JJ., while addressing the issue of Sexual Harassment of Women at Workplace, held that,

“Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is intended to have an equal standing for women in the work place and to have a cordial workplace in which their dignity and self respect are protected, it cannot be allowed to be misused by women to harass someone with an exaggerated or non-existent allegations.”

The present complaint was basically on the high handedness of the petitioner and the hurt to her self- respect due to his arrogant behaviour.

Once the internal committee on sexual harassment was constituted, complaint preferred another in which complainant narrated about the rude behaviour of the petitioner and had repeatedly mentioned the word ‘sexual harassment’.

Later complainant wrote a letter to Tamil Nadu State Commission for women stating that the Internal Committee would not render her justice as all the members were subordinate to the petitioner and therefore her complaint to be referred to the Local Committee.

Local Committee recommended an immediate detailed departmental enquiry against the petitioner by his employer. Complainant objected the new internal committee as well stating that she feels that she won’t get justice and thus approached the Central administrative Committee.

Local Committee had already conducted an enquiry and held that the Internal Committee formed by the employer was against the law.

Vijaykumar, Additional Government Pleader submitted that on perusal of the order passed by the Local Committee it reveals that it a cryptic order without recording statement of the complainant and others.

It is to be noted that,

“The original complaint dated 02.12.2013 was generic in nature. It elaborated upon how the petitioner was authoritative and also to some extent biased in his action and decisions. This is in sharp contrast to the written complaint dated 17.02.2016. Latter, though did not mention the date and sequence of events, talked about physical advances made by the petitioner and also his lewd remarks on her physical appearance.”

Further, T. Saikrishnan submitted that the objection of the complainant regarding the members of the Internal Committee was accepted by the employer and a senior lady officer was made the Chairperson which only shows the bonafide intention of the employer and that instead of respecting the superior office, the complainant went ahead with the complaint to the Local Committee which was unwarranted.

Conclusion

“Under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the enquiry has to be a full-fledged one, not a preliminary one.”

Section 14 of the Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, provides for penalising the complainant if the complaint is found to be false with malicious intent.

In the present case, findings of the local committee in light of the above-stated provisions become invalid. Complainant’s complaint before the Local Committee smacks of tutoring.

Court states that,

A solitary allegation of intemperate language against a female employee does not constitute an offence under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

In the instant case, intemperate language used by the petitioner was the essence of the first complaint other than the bias and favouritism he (the petitioner) allegedly exhibited.

In view of the stated position, bench stated that constitution of internal committee for enquiry into sexual harassment allegations was not warranted.

Having formed the Committee, the defiant attitude of the complainant in not attending the Internal Committee hearing and the metamorphosis of the original complaint into a sexual harassment one before the Local Committee expose the real intentions of the complainant.

“It appears that the complainant made a futile attempt to settle her personal score with the petitioner.”

Court added to its decision that, Women employees cannot be allowed to go scot-free without completing their assignments.

Thus, the Court quashed the orders passed by CAT and Local Complaint Committee. [Union of India v. Reema Srinivasan Iyengar, WP Nos. 10689, 24290 and 4339 of 2019, decided on 17-02-2020]

Case BriefsHigh Courts

Manipur High Court: A Division Bench comprising of Ramalingam Sudhakar, CJ and Kh. Nobin Singh, J. dismissed an appeal filed by the State against the judgment of a Single Judge directing the State to give admission to the respondent.

In the impugned order, the Single Judge had directed the State to give admission to the respondent in terms of his merit position to undertake B.Sc. Nursing Course by staying in rental accommodation. Being aggrieved by the order, the State filed the present appeal.

The High Court noted that it was not in dispute that the respondent was an eligible candidate and he was selected. The only reason why he was not given admission appeared to be lack of hostel facilities and it was also pleaded by the State that all the available candidates in the hostel are women. The Court held that the apprehension that a single male should not be given a seat for the above reason appeared to be totally misplaced. In such view of the matter, the appeal was dismissed for being without merits.[State of Manipur v. Sanangamba Akham, 2018 SCC OnLine Mani 164, dated 06-12-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of R. Banumathi and Indira Banerjee, JJ. while setting aside the judgment of the Delhi High Court which had reversed the conviction under Section 376(2)(g) recorded by the trial court stated that, “Even assuming that the prosecutrix was of easy virtue, she has a right to refuse to submit herself to sexual intercourse to anyone.”

The factual matrix of the case draws a picture in which it is stated that the present appeals came up on account of the Delhi High Court’s judgment which had allowed the respondents/accused conviction under Section 376(2)(g) IPC to be set aside. The prosecutrix alleged that when the respondents had demanded bidi from the prosecutrix and on her refusal for the same, she was raped by them, in which Respondent 2 was responsible for holding her hands and the other three men had committed rape on her turn by turn. On raising alarm in this situation, PW-3, i.e. mother of the prosecutrix saw those men coming out of the jhuggi while prosecutrix was lying unconscious.

Further, the charges were framed against the respondents under Section 376(2)(g) IPC to which they pleaded guilty. Respondents had submitted that prosecutrix was of bad character and was indulging in prostitution and on complaining about the same, the respondents were falsely implicated for the rape charge. The trial court had convicted the respondents under Section 376(2)(g) IPC but, further, the High Court had allowed the appeal against the trial court judgment by acquitting the respondent and directing to initiate action against the police officers concerned.

The Supreme Court on noting the observations and submissions and also the materials on record stated that, the trial court had rightly stated that “even if the allegations of the accused that the prosecutrix is of immoral character are taken to be correct, same does not give any right to the accused persons to commit rape.”

“Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference like the victim being a woman of ‘loose character’ is permissible to be drawn from that circumstance alone.”

Hence, High Court erred in placing reliance upon the complaints allegedly made against the prosecutrix to doubt her version and to hold that a false case has been foisted. Further, the High Court was also not right in issuing the direction to lodge a complaint against the police officials, which was hereby set aside and the appeal preferred was allowed. [State (NCT of Delhi) v. Pankaj Chaudhary,2018 SCC OnLine SC 2256, decided on 30-10-2018]

Case BriefsSupreme Court

In the theatre of life, it seems, man has put the autograph and there is no space for a woman even to put her signature. There is inequality on the path of approach to understand the divinity. The dualism that persists in religion by glorifying and venerating women as goddesses on one hand and by imposing rigorous sanctions on the other hand in matters of devotion has to be abandoned.

-CJI Dipak Misra and A.M. Khanwilkar, J.

Notions of “purity and pollution”, which stigmatize individuals, have no place in a constitutional order.

-Dr D.Y. Chandrachud, J.

Hindu deities have both physical/temporal and philosophical form. The same deity is capable of having different physical and spiritual forms or manifestations. Worship of each of these forms is unique, and not all forms are worshipped by all persons.

-Indu Malhotra, J.

Supreme Court: A 5-Judge Constitution Bench, by a majority of 4:1, held not allowing entry to women of the age group of 10 to 50 years in the Sabarimala Temple is unconstitutional. The judgment of the Court was delivered by CJ Dipak Misra for himself and A.M. Khanwilkar, J. While, R.F. Nariman and Dr D.Y. Chandrachud each gave separate concurring opinions. The only lady Judge on the Bench, Indu Malhotra, J. rendered a dissenting opinion.

Background: The instant proceedings arose after a 3-Judge Bench in India Young Lawyers Assn. v. State of Kerala, (2017) 10 SCC 689, keeping in view the gravity of issues involved, referred the matter for consideration by a Constitution bench. The writ petition preferred under article 32 of the Constitution sought issuance of directions against the Government of Kerala and other respondents to ensure entry of female devotees between the age group of 10 to 50 years to the Lord Ayyappa Temple at Sabarimala (Kerala) which has been denied to them on the basis of certain custom and usage; to declare Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 as unconstitutional being violative of Articles 14, 15, 25 and 51 A(e) of the Constitution and further to pass directions for the safety of women pilgrims. On the other hand, according to the respondents, the said temple, though open to all members of the public regardless of caste, creed, or religion, is a denominational temple which claims the fundamental right to manage its own affairs in matters relating to religion.

Issue: Whether the complete exclusion of women between the ages 10 and 50 from entry, and consequently, of worship in the Sabarimala temple, based upon a biological factor which is exclusive to women only, and which is based upon custom allegedly constituting an essential part of religion, can be said to be violative of their rights under Article 25?

Discussion in relation to right under Article 25(1)

The right to practise religion under Article 25(1), in its broad contour, encompasses a non-discriminatory right which is equally available to both men and women of all age groups professing the same religion. Article 25(1), by employing the expression “all persons”, demonstrates that the freedom of conscience and the right to freely profess, practise and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women. Women of any age group have as much a right as men to visit and enter a temple in order to freely practise Hindu religion and to exhibit her devotion towards Lord Ayyappa. The term “morality” occurring in Article 25(1) of the Constitution cannot be viewed with a narrow lens so as to confine the sphere of definition of morality to what an individual, a section or religious sect may perceive the term to mean. The notions of public order, morality and health cannot be used as colourable device to restrict the freedom to freely practise religion and discriminate against women of the age group of 10 to 50 years by denying them their legal right to enter and offer their prayers at the Sabarimala temple for the simple reason that public morality must yield to constitutional morality.

Followers of Lord Ayyappa do not constitute a religious denomination

though, the respondents urged that the pilgrims coming to visit the Sabarimala temple being devotees of Lord Ayyappa are addressed as Ayyappans and that they are a religious denomination, was unacceptable. There is no identified group called Ayyappans. Every Hindu devotee can go to the temple. There is no identified sect, Sabarimala temple is a public religious endowment and there are no exclusive identified followers of the cult. Devotees of Lord Ayyappa are just Hindus and do not constitute a separate religious denomination. For a religious denomination, there must be new methodology provided for a religion. Mere observance of certain practices, even though from a long time, does not make it a distinct religion on that account.

Exclusionary Practice- Whether essential practice as per Hindu religion?

What constitutes an essential part of a religion is ascertained with reference to the tenets and doctrines of that religion itself. It had to be determined whether the practice of exclusion of women of the age group of 10 to 50 years is equivalent to a doctrine of Hindu religion or a practice that could be regarded as an essential part of the Hindu religion and whether the nature of Hindu religion would be altered without the said exclusionary practice. the answer to these questions, was in the firm negative. On the contrary, it is an essential part of the Hindu religion to allow Hindu women to enter into a temple as devotees and followers of Hindu religion and offer their prayers to the deity. In the absence of any scriptural or textual evidence, it cannot be accord to the exclusionary practice followed at the Sabarimala temple the status of an essential practice of Hindu religion. By allowing women to enter into the Sabarimala temple for offering prayers, it cannot be imagined that the nature of Hindu religion would be fundamentally altered or changed in any manner.

Conclusions of the matter by the majority is delineated hereinafter:

  1. Custom or usage of prohibiting women between the ages of 10 to 50 years from entering the Sabarimala temple is violative of Article 25(1) and violative of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 made under Article 25(2)(b) of the Constitution. Further, it is also declared that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 is unconstitutional being violative of Article 25(1) and Article 15(1) of the Constitution of India. (per R.F. Nariman, J.)
  2. Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act. The language of both the provisions, i.e., Section 3 and the proviso to Section 4(1) of the 1965 Act clearly indicate that custom and usage must take space to the rights of all sections and classes of Hindus to offer prayers at places of public worship, (per CJ Dipak Misra and A.M. Khanwilkar,J.)
  3. Devotees of Lord Ayyappa are exclusively Hindus and do not constitute a separate religious denomination. (per CJ Dipak Misra and A.M. Khanwilkar, J.)
  4. Freedom of conscience and the right to freely profess, practise and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women. (per CJ Dipak Misra and A.M. Khanwilkar, J.)
  5. The exclusionary practise being followed at the Sabarimala temple by virtue of Rule 3(b) of the 1965 Rules violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. (per CJ Dipak Misra and A.M. Khanwilkar, J.)
  6. The practice of exclusion of women of the age group of 10 to 50 years being followed at the Sabarimala temple cannot be regarded as an essential part as claimed by the respondent Board. (per CJ Dipak Misra and A.M. Khanwilkar, J.)
  7. Hindu women constitute a ‘section or class’ of Hindus under clauses (b) and (c) of Section 2 of the 1965 Act. Rule 3(b) of the 1965 Rules enforces a custom contrary to Section 3. This directly offends the right of temple entry established by Section 3. Rules 3(b) is ultra vires the 1965 Act. (per Dr D.Y. Chandrachud, J.)

Indu Malhotra, J., at as many as 10 places in her dissenting opinion, referred to the deity in Sabarimala temple as Naishtik Brahmachari. She expressly mentioned that “Sabarimala temple where Lord Ayyappa is believed to have manifested himself as a Naishtik Brahmachari“. She held that ‘In the case of the Sabarimala Temple, the manifestation is in the form of a ‘Naishtik Brahmachari’. The belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution.

Justice Malhotra was of the view that the right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the petitioner’s personal rights to worship in the Temple have been violated. the petitioners herein did not claim to be devotees of the Sabarimala temple. The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practices of any religious sect, or denomination. In the present case, the worshippers of this Temple believe in the manifestation of the deity as a ‘Naishtik Brahmachari’. The devotees of this Temple have not challenged the practises followed by this temple, based on the essential characteristics of the deity.

Therefore, the Writ Petition does not deserve to be entertained for want of standing. The grievances raised are non-justiciable at the behest of the Petitioners and Intervenors involved herein.

The equality doctrine enshrined under article 14 does not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion. The prayers of the Petitioners if acceded to, in its true effect, amounts to exercising powers of judicial review in determining the validity of religious beliefs and practises, which would be outside the ken of the courts. the issue of what constitutes an essential religious practise is for the religious community to decide.

The contention of the learned Amicus Curiae that the Sabarimala Temple would be included within the ambit of ‘places of public resort’ under Article 15(2) cannot be accepted.

The proviso to Section 3 of the 1965 Act carves out an exception to the applicability of the general rule contained in Section 3, with respect to religious denominations, or sect(s) thereof, so as to protect their right to manage their religious affairs without outside interference. Rule 3(b) gives effect to the proviso of Section 3 insofar as it makes a provision for restricting the entry of women at such times when they are not by custom or usage allowed to enter of the place of public worship. The Respondents claim the right to worship in the Sabarimala Temple under Article 25(1) in accordance with their beliefs and practises as per the tenets of their religion. These practises are considered to be essential or integral to that temple. Any interference with the same would conflict with their right guaranteed by Article 25(1) to worship Lord Ayyappa in the form of a ‘Naishtik Brahmachari’.

The worshippers of Lord Ayyappa at Sabarimala Temple constitute a religious denomination, or sect thereof, as the case may be, following the ‘Ayyappa Dharma’. The devotees follow an identifiable set of beliefs, customs and usages, and code of conduct which are being practised since time immemorial, and are founded in a common faith, in any event, Article 290 A does not in any manner take away the denominational character of the Sabarimala Temple, or the Fundamental Rights under Article 26.

The religious practise of restricting the entry of women between the ages of 10 to 50 years, is in pursuance of an ‘essential religious practise’ followed by the respondents. The said restriction has been consistently followed at the Sabarimala Temple, as is borne out from the Memoir of the Survey of the Travancore and Cochin States published in two parts in 1893 and 1901. Any interference with the mode and manner of worship of in present case would impact the character of the Temple. The limited restriction on the entry of women during the notified age group does not fall within the purview of Article 17 of the Constitution.

In the light of all that has been discussed as mentioned hereinabove, as per the majority judgment, the practise of not allowing the entry of women of the age group of 10 to 50 years was held to be unconstitutional being violative of fundamental rights. [Indian Young Lawyers Assn. v. State of Kerala,2018 SCC OnLine SC 1690, decided on 28-09-2018]

Hot Off The PressNews

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, A.M. Khanwilkar, Dr D.Y Chandrachud and Indu Malhotra JJ., by a 4:1 majority, allowed the entry of women in Sabarimala Temple, Kerala.

CJ Dipak Misra: Women no way inferior to men. On one hand, women are worshipped as Goddesses, but there are restrictions on the other hand. Relationship with God can’t be defined by biological or physiological factors.

CJ and Khanwilkar, J: Rule 3(b) of Kerala Temple Entry Act which excludes women aged between 10 and 50 violates freedom of a Hindu religion to worship. Right to worship is equally available to men and women. There can be no discrimination on the basis of gender.

 Dr D.Y. Chandrachud J.: To treat women as the children of a lesser God is to blink at the Constitution.

“The ban says presence of women deviates from celibacy. This is placing the burden of a men’s celibacy on women. Stigmatises them, stereotypes them.”

R.F. Nariman J.: Rule 3(b) is unconstitutional for being violative of Articles 25(1) & 15(1) of the Constitution. Excluding women renders their right to practice faith.

 Indu Malhotra J. (dissents): What is essential practice in a religion is for the religion to decide, it is a matter of personal faith. India is a land of diverse faiths. Constitutional morality in a pluralistic society gives freedom to practice even irrational customs. Religious practices cannot be solely tested on the bedrock of equality.

“Religious practices can’t solely be tested on the basis of the right to equality. It’s up to the worshippers, not the Court to decide what’s religion’s essential practice.”

Indu Malhotra J. Judges cannot intervene and decide on whether a practice is violative of fundamental rights or not. Personal views of judges do not matter. A religious denomination has freedom to believe and practice even if their beliefs are illogical or irrational.

Hence, the Constitution Bench with 4:1 majority removed the ban on entry of women in the Sabarimala Temple stating “Women can’t be treated as lesser or weaker.”

Judgment awaited.

Case BriefsSupreme Court

Supreme Court: The 2-Judge Bench comprising of Madan B. Lokur and Deepak Gupta, JJ., passed an order by accepting certain exemptions in regard to the “odd-even scheme” that had been implemented in Delhi by the order of NGT.

ASG had placed upon a grievance stating that “there shall be no exemption to any persons, officer and individual and the two-wheelers from the scope of the odd-even scheme.” Further, he submitted that women and two-wheelers may be granted an exemption too.

Therefore, the Supreme Court accepting the submissions of the ASG in regard to the exemptions in certain cases stayed the operation of the direction mentioned in respect of women and two-wheelers. [Government (NCT of Delhi) v. Vardhman Kaushik, 2018 SCC OnLine SC 1543, Order dated 17-09-2018]

Case BriefsHigh Courts

Bombay High Court: While dealing with petition filed under Article 226 of the Constitution of India alleging gender discrimination and arbitrary denial of access to women in the sanctum sanctorum at the Haji Ali Dargah, the division bench comprising of V.M. Kanade and Revati Mohate Dere JJ., held the ban violative of Article 14, 15 and 25.

In the present petition, the petitioners stated that they are the office bearers of `Bharatiya Muslim Mahila Andolan’ – a national secular autonomous mass movement of Muslim Women with over 50,000 members in 15 States. According to the petitioners, in June, 2012 when the petitioner No. 1 revisited the Dargah to offer prayers, she discovered a steel barricade put up at the entry of the sanctum sanctorum, thus preventing the entry of women devotees in the sanctum sanctorum of the Haji Ali Dargah. Pursuant to the said restriction imposed on women devotees, the petitioners approached the authorities of the respondent No. 2 Trust and sought answers for imposing such a ban/rule. It is stated that the President of the Haji Ali Dargah Trust disclosed that the reasons for imposing such a ban/rule were – (i) women wearing blouses with wide necks bend on the Mazaar, thus showing their breasts; (ii) for the safety and security of women; and (iii) that earlier they were not aware of the provisions of Shariat and had made a mistake and therefore had taken steps to rectify the same.

After perusal of the arguments advanced, the Court said that the respondent No. 2, under the guise of providing security and ensuring safety of women from sexual harassment, cannot justify the ban and prevent women from entering the sanctum sanctorum of the Haji Ali Dargah. The respondent No. 2 Trust is always at liberty to take steps to prevent sexual harassment of women, not by banning their entry in the sanctum sanctorum, but by taking effective steps and making provisions for their safety and security e.g. by having separate queues for men and women, as was done earlier. The Court further stated that it is also the duty of the State to ensure the safety and security of the women at such places. The State is equally under an obligation to ensure that the fundamental rights guaranteed under Articles 14, 15 and 25 of the Constitution are protected and that the right of access into the sanctum sanctorum of the Haji Ali Dargah is not denied to women. The Court held the ban imposed by the respondent No. 2 Trust, prohibiting women from entering the sanctum sanctorum of the Haji Ali Dargah violative of Articles 14, 15 and 25 of the Constitution, and therefore restored status-quo ante i.e. women be permitted to enter the sanctum sanctorum at par with men. The State and the respondent No. 2 Trust directed to take effective steps to ensure the safety and security of women at the said place of worship. [Dr. Noorjehan Safia Niaz v. State of Maharashtra, 2016 SCC OnLine Bom 5394, decided on 26.08.2016]