Roman Saini is teaching live on Unacademy Plus
Women's Position in Indian Society: Landmark SC Verdicts in 2017-18 Lesson- 5 By Dr. Roman Saini
Judgement : "Right to Worship & Pray" is for All - Gi Though Article 21 speaks only of the deprivation of life or personal liberty bya procedure established by law, decisions from Maneka Gandhi v Union of India, have expounded that the law must have a content which is reasonable. Hence, the dignity of women which is an emanation of Article 15 and a reflection of Article 21 cannot be disassociated from the exercise of religious freedom under Article 26 on customary grounds . . The Fundamental Right to worship under Article 25(1) is a nondiscriminatory right, and is equally available to both men and women alike. The right of a woman to enter the Temple as a devotee is an essential aspect of her right to worship, and is a necessary concomitant of the right to equality guaranteed by Articles 15. .
Further, it has been put forth that the constitutional intent in keeping the understanding of untouchability in Article 17 open-textured was to abolish all practices based on the notion of purity and pollution. With this, the Supreme Court has set aside a 27-year-old Kerala High Court judgment that upheld the prohibition. . * . The High Court had pointed out that the 'Naishtika Brahmachari' nature of the deity was "a vital reason for imposing this restriction on young menstruating women" The majority view declared Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act of 1965, which mandates the prohibition in Sabarimala temple, as ultra vires the Constitution. .
Judgement 2: Adultery is only a "civil offence" . Adultery as a criminal offence is a reflection of the social dominance that was prevalent when the Curtailing the sexual autonomy of a woman or presuming the lack of consent once she enters a marriage is antithetical to constitutional values. A provision of law must not be viewed as operating in isolation from the social, political, historical and cultural contexts in which it operates. At first instance, it may appear as if it is a beneficial legislation intended to serve the interests of women. penal provision was drafted. . * .
But, on closer examination, it would be found that the provision contained in the section is a kind of 'romantic paternalism' which stems from the assumption that women, like chattels, are the property of men. According to court, despite conferring many a right on women within the parameters of progressive jurisprudence and expansive constitutional vision, it is imperative that 1. the society cannot conceive of women still being treated as a . . property of men, and where the delicate relationship between a husband and wife does not remain so, it is seemingly implausible to allow a criminal offence to enter and make a third party culpable 2.
Treating adultery an offence, court has disposed to think what would tantamount to the State entering into a real private realm Therefore, adultery does not fit into the concept of a crime. It has emphasised if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. However, adultery will continue as a ground of divorce and, therefore, remain in civil law. The Court ended with the sermon, 'stability of marriages is not an ideal to be scorned. This verdict has been welcomed by those who believe there should be less use of criminal law in matrimonial matters. . . . . . .
Judgement 3: Triple talaq is "anti-constitutional" & "anti-Quran" 03 According to court, in any case, the practice of 'talaq-e-biddat, clearly violated the norms adopted by the declaration, and conventions. As India recognises a plural legal system, wherein different religious communities are permitted to be governed by different 'personal laws', applicable to them * . It needs to be well practiced by the State that there could be no dispute, that different religious communities can have different laws. * But the laws of each religious community must meet the test of constitutional validity and/or constitutional morality as they cannot be violative of Articles 14 and 15 of the Constitution. .
Hence, even though matters of faith and belief are protected by Article 25 of the Constitution, yet law relating to marriage and divorce were matters of faith and belief, are also liable to be tested on restricted subjects.(public order, morality, health, etc.) . And as such, no 'personal law' negates any of the postulated conditions contained in Article 25 of the Constitution itself . Therefore, Articles 14 and 15 of the Constitution are not subject to any restrictions, including any restriction under Article 25 or 26 of the Constitution . In courts opinion, therefore, the Shariat 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression "laws in force" in Article 13(1) must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. .
Ordinance by Government According to court, the State also appears as reluctant on an assumption that reforms of religious practice would offend religious freedom guaranteed under the Constitution of India. * This case only symptomize the harsh realities encountered by women belonging to Muslim community, especially of the lower strata. . It is a reminder to the court unless the plight of sufferers is alleviated in a larger scheme through legislation by the State, justice will be a distant dream deflecting the promise of justice by the State "equality before the law".
Then, Muslim Women (Protection of Rights on Marriage) Bill, 2017 was passed by the Lok Sabha, but was pending in the Rajya Sabha. . So, to make this as complete law, the government has been brought the Muslim Women (Protection of Rights on Marriage) Ordinance of 2018 that makes the declaration of talaq-e-biddat a crime to follow the SC verdict. The objective of the ordinance is to protect the rights of married Muslim women It intends to prohibit the pronouncement of instant triple talaq by "Muslim husbands". .
t has to be kept in mind that she has a right to life and entitled to love according to her choice. She has an individual choice which has been legally recognized. It has to be socially respected. When the right is conferred under the Constitution, it has to be understood . * . that there is no condensation. A man should not put his ego or, for that matter, masculinity on a pedestal and abandon the concept of civility. . o "Eqoism" must succumb to law . "Equality" has to be regarded as the "summum bonum" of the constitutional principle in the society.