Women’s Day Special: Eight instances where the courts have let women down

Published on 10 Mar 2017 by Team

While courts in India have consistently been venturing towards becoming more progressive, there have been a few instances where they have clung to ghosts of patriarchy past. This often reflects though their judgments, some of which might be extremely difficult to place in the present day.

Many a time, the courts have failed to take a victim-centric approach in cases relating to women. And in some of these cases, though the courts have delivered legally sound decisions, they have ended up making comments on women which, well, could have been avoided, to say the least.

This Women’s Day, we look at eight judgments where the courts did not live up to their stature when it came to women.

  1. Tukaram vs. State of Maharashtra

In September 1979, a Supreme Court Bench of Justices Jaswant SinghPS Kailasam and AD Koshal reversed a High Court ruling and acquitted the policemen accused of raping a minor in their custody. The Bench held that Mathura had raised no alarm, and that there were no visible marks of injury on her person, thereby suggesting no struggle. Therefore, it was held that no rape could be said to have been committed.

This line from the judgment was singularly uncalled for:

“Because [Mathura, the victim] was used to sex, she might have incited the cops (they were drunk on duty) to have intercourse with her”.

  1. Madan Gopal Kakkad vs Naval Dubey

In this case, the Supreme Court set aside a Madhya Pradesh High Court judgment that convicted the appellant under Section 354 IPC, and held him to be guilty of rape. The Bench of Justices SR Pandian and Fathima Beevi also noted the shocking decision of the High Court to refrain from sentencing.

“The High Court thought of imposing fine only on the ground that the respondent “is now gainfully employed and there is nothing to show that he is indulging in his nefarious activities.”

While setting the error straight, the apex court was guilty of committing a faux pas itself, when it opined,

“The victim having lost her virginity still remains unmarried… She is under the impression there is no monsoon season in her life and her future chances for getting married and settling down in a respectable family are completely marred.”

  1. Dominic Richard Rodrigues v. State of Maharashtra

Earlier this year, the Bombay High Court received major flak for granting bail to a man accused of raping his adopted 17-year-old daughter. The court said that the girl’s accusation did not inspire confidence because “she was used to [doing] all dirty things”.

A single bench of Justice Sadhana S Jadhav, in an order dated January 16, held that after going through a statement of the prosecutrix herself, it was clear that,

“She [the prosecutrix] has admitted that she used to do all dirty things. It appears that she was inherently abnormal and had sexual instincts right from her childhood, in all probabilities, because of the environment and atmosphere where she lived and the conduct of her deceased mother.”

While the remarks were later expunged following the vitriolic backlash over social media, the damage perhaps was not.

  1. Aysha v. Ozir Hassan

Not too long before he was hauled up for contempt by a seven judge bench of the apex court, Justice CS Karnan – then a judge of the Madras High Court – had gained notoriety as the writer of the infamous ‘sex amounts to marriage’ judgment.

In the ruling, he had observed that both the petitioner and the respondent lived together as spouses and begot two children without legal encumbrance or third party interference or without affecting third party’s rights. It was held,

“…the main legal aspect for valid marriage is consummation or sexual interaction… Marriage solemnization is only a customary right and obligation, but not a mandatory one. Hence, this Court treats the petitioner and the respondent as spouses in normal life with a typical identity of their own.”

As an added bonus, the ruling itself reads as a favour to the “wronged” woman, which certainly does not seem to be a goal achieved at the end.

  1. D Velusamy v. D Patchaiammal

A decision by another judge recently pulled up by the Supreme Court for contempt – Justice Markandey Katju – also features in this list. A Bench headed by the controversial former judge, while dealing with the question of whether a sexual partner would be entitled to maintenance, held that one-night stands, weekend relationships and “keeps” would not qualify as domestic relationships. The very words of the judgment were,

“If a man has a `keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage.”

While the judgment itself was legally sound, one might have been tempted to expect a certain level of restraint to be exercised by an apex court judge.

  1. V Mohan v. State of Tamil Nadu

In 2015, a Madras High Court judge decided to release a rape convict on bail and refer the case for mediation with his minor victim, to explore the possibility of a marriage between them. Needless to say, the judgment created major ripples amongst those in the know.

Justice P Devadass began his judgment by lamenting the treatment of women in the country,

“They are considered as chattels, although in our country, they are hailed as ‘Sakthi’, ‘Mother’, ‘Sister’, ‘Nurse’, ‘Life Partner’, ‘Face Saver’, ‘All in One’.”

After making a rather bizarre segue into the merits of ADR, he referred to a similar case which he had earlier sent for mediation, in which it was held,

“It is a pathetic case of a young woman. Petitioner is an eligible bachelor. Now he is in jail for more than 50 days…Some solution has to be arrived at because there is a big question mark before the girl. Her future is very important.”

The judgment was later recalled, and the Supreme Court in a subsequent judgment left no stone unturned in criticising the ruling, whilst holding unequivocally that there can be no compromise in rape cases.

7. Avinash vs State of Karnataka

In the course of delivering a judgement on a habeas corpus petition by a youth alleging that the girl he was going to marry had gone missing, the Karnataka High Court’s Justice Bhakthavatsala observed,

“In our opinion, girls below the age of 21 years are not capable of forming a rational judgement as to suitability of the boy, who is in love. It is relevant to mention that those girls, who are suffering from hormonal imbalance easily fall prey to the boys and fall in love, marry and repent at leisure.”

Justice Bhaktavatsala, in what can best be interpreted as horrifically sexist judgment, went on to say,

“…we suggested that in the case of love affair of a girl, who is below the age of 21 years, there shall be a condition that the parents of the girl should approve the marriage, otherwise such marriages should be declared void or voidable.”

The furore over this judgment cost the learned judge the opportunity to impose his jurisprudence of misogyny on future petitioners. A change in rosters was effected to ensure that he would no longer be hearing disputes arising out of matrimonial matters.

  1. Achey Lal v. State Govt. of NCT of Delhi

The Delhi High Court squeezed into this list after its comments in a judgment in which it held that sexual intercourse, which is forceful and not forcible, is not rape.

While the soundness of the judgment was arguable, what is undeniable is the court’s reference to the fact that the woman was beyond the age of menopause, a statement that led to the publication of a number of misleading headlines.

Written and Published by barandbench.com/

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