Roman Saini is teaching live on Unacademy Plus
Women's Position in Indian Society: Landmark SC Verdicts in 2017-18 Lesson-1 By Dr. Roman Saini
Important Judgements for Gender Equality &Women Dignity The Supreme Court has become the march bearer to protect the "rights, dignity and privacy" of every citizen of any sex, religion and age through their following recent judgements in the cases 1. . 2. 3. 4. 5. Adultery- IPC Section 497 Women entry in Sabarimala temple Triple talaq practice in Muslim Homosexuality- IPC Section 377 Female Genital Mutilation in some sects The first three judgements and their implication are very important to know in every aspects. *
What were the major issues in three cases? All the issues that has been find and discussed by the court in these cases can be understand such as 1. Moral Issues: a. Equality of gender and statu:s b. Individual rights and dignity c. Discrimination on the basis of biological and physiological factors d. Personal liberty and privacy Untouchability and right to worship Patriarchy and male chauvinism e. f.
2. Constitutional Issues: a. b. c. d. e. f. Right to Equality - Art. 14, 15, 17 Right to Freedom - Art. 21 Right to Freedom of Religion - Art. 25, 26 Right to Constitutional remedy - Art. 32 DPSP; Equal Justice and Free legal aid - Art. 39A and FD; To renounce the practices derogatory to dignity of women- Art.51-A(e)
Case 1: Adultery- Section 497 of IPC A writ petition has been filed under Article 32 of the Constitution of India challenging the validity of Section 497 IPC It was argued that Section 497 is a flagrant instance of 'gender discrimination', 'legislative despotism' and 'male chauvinism'. The Petitioners contend that 1. . . Section 497, in so far as it places a husband and wife on a different footing in a marriage perpetuates sex discrimination; Section 497 is based on the patriarchal conception of the woman as property, entrenches gender stereotypes, and is consequently hit by Article 15. 2.
What is the provision under IPC Section 497? Whoever has sexual intercourse with the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape. But it is amounted as guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both In such case the wife shall not be punishable as an abettor. t is clear that the husband of the woman has been treated to be a person aggrieved for the offence punishable under Sections 497 of the IPC. . .
Case 2: Women entry in Sabarimala temple The three-Judge Bench considered following questions for the purpose of reference to the Constitution Bench in this case: Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to "discrimination" and thereby violates the very core of Articles 14, 15 and 17 and not protected by "morality" as used in Articles 25 and 26 of the Constitution? Whether the practice of excluding such women constitutes an "essential religious practice" under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion? 1. 2.
3. Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a 'religious denomination' managed by a statutory board and financed under Article 290-A to indulge in such practices violating constitutional principles/ morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)? Apart from these three major questions, some other concerns also expressed by the Indian Young Lawyers Association such as The exclusionary practice in its implementation results in involuntary disclosure by women of both their menstrual status and age which amounts to forced disclosure. . That consequently violates the "right to dignity and privacy" embedded in Article 21 of the Constitution of India. .
According to old age practice of the temple to exclude the women of age 10 to 50 years, the following are reasons o firstly the Ayyappa is a celibate God and o second it need to be observe the 41 days Vratham by devotee to come to the temple. And women cannot practice 41 days Vratham that stigmatizing women and stereotyping them as being "weak and lesser" human beings thar men. Accordingly, menstruating women and untouchables are being treated as similar in terms of entry to temple and, hence, the custom in dispute amounts to "untouchability'.
Case 3-Practice of Triple talaq The petitioner has sought a declaration, that the 'talaq-e-biddat' (triple talaq) pronounced by husband to his wife should be void and invalid. It is also submitted that divorce of the instant nature, cannot be treated as "rule of decision" under the Shariat Act i.e. Muslim Personal Law (Shariat) Application Act, 1937 as it is not a part of 'Sharia (Muslim 'personal law) . It was argued that the practice of 'talaq-e-bidda ' is violative of the fundamental rights guaranteed to citizens in India, under Articles 14, 15 and 21 of the Constitution.