GENDER JUSTICE B. Sivaramayya The emergence of independent India marks an important nulesténe in the uplift of women’s position. The Constitution in the preamble proclaimed as its objective to achieve justice, social, economic and political equality to all citizens. More specifically in the chapter on fundamental rights, article 14 guarantees equality before the law and equal protection of laws; article 15 declares that a citizen shall not be discriminated against only on the grounds of race, religion, caste, sex or place of birth or any one of them; and article 15(3) upholds special provisions in favour of women and children In the years 1955-6 amidst stiff opposition, a partial codification of Hindu law was undertaken which removed some of the legal disabilities suffered by Hindu women in matters relating to marriage, divorce, adoption, succession and guardianship. To be sure, the codification did not eliminate all legal inequalities suffered by Hindu women. Also no legislauon aimed at removing the discrimination against Muslim and Christian women 1 their personal laws was attempted by Parliament. Thus, there is 3 considerable residual discrimination against women by unequal personal laws But it needs to be emphasized that gender injustice 1s net confined to personal laws alone, It is visible in the entire gamutGENDER Justice 29] of legal spectrum, Thus, the role of the apex court is critical in grholding the constitutional rights of women who constitute half the poptlation of the country and who are subordinated and Mpjugated. Here an attempt is made to assess the role of the Supreme Court in the first half-century ofits inception. Naturally vine short account can only highlight broad features of the role tnd cannot be exhaustive. The five decades of the role of the court can broadly be dassified as the traditional and the activist. The earlier decades marked the former. But one must hasten to add thar a traditional role need not be a regressive one. The liberal construction under the traditional form amply fulfilled the constructive approach £0 interpretation. After the decision in S.P Gupta v Union of India,! the apex court discarded the traditional limited function and opened up new frontiers of jurisdiction under public interest litigation (hereafter PIL). To be sure, PIL is not without its weaknesses in achieving the desired goals. Bigamous Marriages The legal recognition of bigamy represents women’s gross subordination and a recognition of their inferior status in society. For too long Hindu law recognized that a male Hindu could have an unrestricted number of wives. The Hindu Marriage Act, 1955 (HMA) laid down monogamy as 2 rule for both male and female Hindus. It rendered bigamy punishable under section 494 of the Indian Penal Code, 1860 (IPC). The provision has the objective of social transformation and reform. Under the traditional rules of construction adhered to by the court, the objective of the legislation was totally frustrated. In Bhanu Rao v State of Maharashtra,” the accused took a second wife while the first marriage was subsisting. He was convicted of the offence of bigamy. Against his conviction it was urged that for the offence of bigamy it should be established that the second marriage had been performed according to customary rites, observing all the essential ceremonies. Accepting the contention the court stated : exposition on Public Interest ‘AIR 1982 SC 149, For a luminous 1 Pu « Litigation’, Journal Litigation see $.P, Sathe, ‘Growth of Public Interest of Indian School of Political Economy 1 (1999). ‘AIR 1965 SC 1564.SupREME COURT 292 Firty Years oF TH The word ‘solemnise? means in connection with a marriage ‘to celebrate the marriage with proper ceremonies and in due form’ asconling tothe Shorter Oxford Dictionary. I follows, therefore, tha unless the marriage is ‘celebrated or performed with proper ceremonies and in due form’ it cannot be said to be ‘solemnised’. It is therefore essential, for the purpose of Section 17 of the Act that the marriage to which Section 494 IPC applies on account of the provision of the Act should have been celebrated with proper ceremonies and in due form.) This casts a heavy burden on the prosecution as second marriages are performed without much publicity and usually only near-relatives are present. Derrett pointed out the existing Provision; and the interpretation put on it. Again he pointed outt it will give rise to two devices to evade prosecution for bigamy: First, the parties may deliberately omit a necessary ceremony to shield themselves from prosecution. Second, if that be not the case, the near relations of the second ‘wife? may deliberately give false evidence that an essential ceremony had been omitted. All in all the Supreme Court elbowed out the policy and purpose of the Act, in Preference to the meaning of the word ‘solemnize’ given in the Shorter Oxford Di ionary. In a subsequent decision in Priya Bala v Suresh Chandra,> the court went a step further and held that even an admission made { ‘ond wife in a civil case will not be sufficient evidence in a case of bigamy and that the Prosecution must discharge its burden that the marriage had been ‘solemnized’. Later the Supreme Court in Gopal Lal v § ke tate of Rajasthan,® reiterated the above Position, ° a The result is that in most cases the retation put by the apex . : ut concern for the social t ‘as resulted in the continuation of bigamy among the Hindus, whether overtly or covertly. The “Ibid. at 1565, “J.D.M. Derrett, ‘A Rounds rter 84 (J) 1967, (AIR 1971 SC 1153, AIR 1979 Sc 713, up of Bigamous Marriages’, 69 Bombay LawGENDER JusTICE 293 js not fully cognizable and the economic dependence of wife and children on the husband restrains the aggrieved wife from Jaunching a prosecution. If that be not the case, the isting law under HMA is manipulated by some, and yet others dort fo fake conversions (0 Islam. For this state of affairs the judges: must pass the buck to the legislatures on the simplistic ietoning that penal provisions must be strictly construed. Indeed ay back in 1974 the Report of the Committee on the Status of iiémen in India” suggested some amendments to the HMA to gversome this problem. But in India that is. Bharat who cares? {in bigamous marriages more often than not, the lawfully wedded wife is so to say dumped. But in law at least, like the ‘ometrical point she has a position without dimension. If her husband dies intestate, she is entitled to take her share as a wife. She is entitled to get a decree or order of maintenance, if she can “ross the social and litigational barriers that stand in her way. But then one must remember the words of wisdom uttered by the Privy Council that the troubles of a litigant in India start after the decree has been obtained. If we examine the position of the second ‘wife’, her legal positon is very vulnerable. Very often such unions are contracted because of poverty, parental pressures or deception practised by ner male partner or ‘husband’. She cannot succeed to the property of the person whom she married. Can she at least get a decree or order of maintenance? Tn Yanunabai » Anantrao® the Supreme Court considered this aspect under section 125 of the Code of Criminal Procedure, 1973 (CrPC) and held that the second wife was not entitled to maintenance as the marriage was void. On this decision, Jaya Sagade rightly comments: ‘cis respectfully submitted that the Supreme Court has relied on the leer of the law than its spirit and legislative intent. Ie has failed ro realise the social realities and plight of such second wives. “Towards Equality: Report of the Committee on the Status of Women in India 109 (197: ‘ 4). AIR 1988 SC 644. aya Sagade (1996), Law of Maintenance: An Mumbai, N.M. Gepath / Empirical Study 83, Sc294 Fiery Years of THE SurREME Court Wife as Property Two statutory provisions were challenged before the Supreme Court on the ground that they are based on the — thar the wife is regarded as the property of the husband. These 13Fe, offences of adultery and the matrimonial remedy of restitution o} conjugal rights. The first relates to section 497 of the IPC, which makes it an offence for a male to have sexual intercourse with a married woman. In Sowmitri Vishnu v Union of India’ it was argued that the provision was violative of article 14 of the Constitution and makes an irrational classification between men and women because (a) the section gives a right. tothe husband to prosecute the adulterer but does not confer a similar right on the wife to prosecute the woman with whom _her_husband committed adultery; (b) the provision does not give any right to the wife to prosecute the husband who has committed adulte: with another woman; and (c) section 494 does not bring within its ambit sexual relations of the husband with unmarried women and thus bestows on him as it were, a free licence to have sexual relations with unmarried women. Chandrachud, J, opinion was of the view that the provision is not vi Constitution and that the matter pertains to the s makers. He observed: ‘It is better interest of society that at least a relations is punishable by ideal to be scorned.”!! The decision drew criticism at the hands of writers like S.P Sathe, and Ratna Kapoor and Cossman, the socialist feminists. The latter say: delivering the iolative of the phere of law- from the view point of the limited class of adulterous law. Stability of marriages is not an any one can set the criminal law in mi an understanding of the very Adultery is seen’as a husban specifically a husband’s exclus a violation of a wife's rights s to her husband.!2 ‘tion. The exception is based on nature of the harm caused by adultery. d's property rights over his wife; more ive access to his wife's sexuality. It is not ince she does not possess the same claim NAIR 1985 SC 1618, “Ibid. at 1622. “Ratna Kapur and Brenda Cossman (19 ive Si : 96), Si Delhi, Sage Publications. 0 eerie Gin ewGENDER Justice 295 specifically referring to the constitutional aspects Sath i a Jy a case of discrimination on the it ee ; : 7 : nd o} Jause (2) of Article 15 of the Constitution and sex not scholars ig, of sameness versus ence that donee ee ae s, and in particular the ambit of article 15(3). For coe ler say that a provision in the Penal Code which oe sayy che death penalty would be unconstitutional™ to Sowmitri Vishnu, HLM. Seervai says that ae right conclusion’, though in his submission the as supported by wrong reasons. He notes: : gestion © soul an one yomell fi Referring speached the conclusion Ir is more surprising that the judges did not call upon the petitioner's counsel at the outset to deal with the impact of Article 15(3) on validity of section 497 before proceeding further with other arguments. Had this course been followed, the challenge under “Article 14 would have failed at the threshold for there is no answer to Article 15(3), and none was attempted.’® The anomaly lies in the legislative policy of bringing private poly into public domain; to say that a wife should be given the ine right is to compound the anomaly. In criticizing Sommer Visinw the feminist scholars have a distorted perspective. Restitution of Conjugal Rights 16 that the remedy of restitution rights ‘dates was primarily a property rt of man’s possession as .d by the Ecclesiastical nication. In 1857 Paras Diwan notes’ back to feudal England where marriage deal and the wife and children. were pai any other chattels’. The remedy was enforce Courts by the seizure of goods or excomm| 5S.P Sathe, (1993), Towards Gender Justice, 41, Bombay, SNDT Women's University. «Such a provision existed in the penal law of the former Travancore tate, VIL. 688, Bombay; 5 : CHM, Seerai, (1991), Constiatinal Lav of India, NM. Tripathi, Paras Diwan, ‘Restitution of hes and the i ‘mmission’ Recommendation for (ed.) (2 ), ies in the Hind Marriage and Acts 138-70, ombay, N.M. Tripathi. Conjugal Rig Reform’ in V Bageas the Special Marriage296 Fiery Years OF, THE SUPREME COURT when in England the matrimonial courts began exercising jurisdiction over matrimonial causes, the right could be enforced by the husband by detaining the wife. However, the decision in R. y Jackson” held that the right vould not be enforced by the act of either party and that a husband could not detain his wife by force. After this decision the Proprietary notion behind the remedy largely disappeared and under Indian law the remedy for non-compliance of the decree is by way of attachment of the Property of the person not obeying the decree. ' A single judge of the Andhra Pradesh High Court in Sareetha » Venkata Subbaiah'® was of the view that the remedy was barbarous in its nature, and violative of article 21 and of the right of privacy. On the other hand a single judge of the Delhi High Court in Harvinder Kaur v Harminder Singh’ took the view that the remedy under the HMA is constitutionally valid and that its Purpose is to bring about cohabitation between estranged couples So that they can live together in amity. The Supreme Court in Saroj Rani » Sudarshan Kumar® accepted the view of the Delhi High Court In India it may be borne in mind tha conjugal rights i.e., right of the husband or wife to the society of the i creature of the statute. Such a of marriage itself... There are suffi Prevent it from being a tyranny:2! stating: ry institution cient safeguards in Section 9 to Rape Laws In Tikaram v State of Maharashtra? while under the custody of police in a Police station. The accused “policeman was acquitted by the Supreme Court, Four academics addressed an Open letter to the Chief Justice of the Supreme Court expressing their dismay and Strong feclings against the opinion of the court. The aftermath of these events was that the a tribal woman was raped (1891) 1 QB 671. “AIR 1983 AP 356, “AIR 1984 Del 66. AIR 1984 SC 1562. Ibid. at 1568. 221979) 2 scc 143,r provi Genpen Justice 297 ons relating (© rape were amended, Bur the police non and trial process is loaded against the ctim vest fi 2 the important factors that affect the victims are: 4mone « By wan accomplice The cross-examination of defence lawyers was and is humiliating and offends the dignity and self-respect of the victim: + The trauma suffered by the victim and her family often results in a delay in the filing of FIR, especially under the Indian conditions; and this delay results in drawing an adverse a strong perversion of facts and law, the victim is treated inference. « The doctors whose evidence is critical are reluctant and unwilling and half-hearted in view of the gruelling cross examination and frequent adjournments + Even the testimony of child-victims aged 14 or 15 is disbelieved and the accused are let off in gross violation of the legal provisions, + The victims, who suffer severe psychological and physical injuries rarely, if at all, are compensated. All in all the legal system is loaded against the victim of rape and favours the ised. No wonder, the victims feel the ordeal of the trial of a rape case is worse than the rape itself. In fairness it must be conceded that the ability of the apex ystemic faults is dependent on two factors. asion should present itself. Many a wrong decision remains unreversed for a long time because an opportunity does not present itself, ¢.g- the wrong decision of the Privy Council that gifts for dharma or dharam are void for acertainty. Happily the PIL at least partially mitigates the failure of the court system. The second factor is that the judge or judges: tiust be sufficiently sensitized to the problem. In recent years come trend and the court has tricd to humanize the battering given to them by court to correct the s} t, an appropriate case or Oc here is a wel ‘ystem to the women victims from the ‘he trial process. In State of Maharashtra v Chandraprakash ‘Young girl and her lover cloped to Bombay, WO ow Kewal Chand Jain? got married betore “1990) 1 sce $50.THE SUPREME COURT 298 Fiery Y the kasi and returned to Nagpur. While they Were staying in a hotel, the accused took them to the police station in the early hours, put the husband in the lock-up and took the wife to a lodge and raped her twice. On a complaint filed by the husband, the trial court convicted the police official. On an appeal a Single judge of the high court acquitted the accused on the ground that the corroboration of the testimony of the prosecutrix is required except in the rarest of rare cases. Before the Supreme Court, it was argued that the testimony of the victim was that of an accomplice and therefore, in the absence of further corroboration, the accused could not be convicted. Repelling the argument, Ahmadi, J, emphatically stated: To insist on corroboration except in rarest of rare cases is to equate a ‘woman who is a victim of lust of another with an accomplice to + stime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of on accomplice to a crime. +, jana. ‘olercle MO! Ao O92 Ernok Child Rape Madan Gopal Kalk D id Naval Dubey** pertains to a case of child doctor ltired/a young girl Tulna, when she came to play . wh hse by telling stories, On 2 September 1982, he sent for Tulna, and after stripping ‘himself and her asked her to do fellatio and inserted his penis into her vulva, Only on the third day the girl told her mother the whole incident and only two days (later her parents mustered courage and lodged a complaint. The trial judge acquitted the accused. Among the reasons given for acquittal, two deserve special mention, viz., that there was no corroboration of the evidence (of the girl aged eight years) and that there was a delay in filing the ETR. On en appeal by the state t east the accused, the high court convicted the accused for a {_ {esser offence, viz., of outraging the modesty of a woman and let \\ him off with a mild sentence of a fine of Rs 3,000, stating thar it is nor compulsory in cases of outraging the modesty of a woman to give a sentence of imprisonment; and as the accused ‘bid. at 560 5(1992) 3 sc 204,yr Gexpre Justice 299 sail lly employed, a lesser sentence would suffice, When thi « gaint eg before the Supreme Court, the court accepted thy ws Beane patter ct i” MP ehe victim, Tt termed the view of the ‘aaence OF the the view of the high court thar ree of imprisonment is ot compulsory in cases of outraging nl ‘er pase modesty oF a oman as ‘erroncous and untenable’. Referring mime ons giver! by the high court in imposing a mld ne apes court observed: “We regret to say that we ae sco to understand the above reasons which are not in j with the concept of sentencing policy in a grave ease Compensation to Victims of Rape « ceaous faeuna in the Indian legal system is lack of sufficient rsioas to award compensation to vietims of rape. The law in countries ensures that vietims of rape are enabled to 2 compensation specifically: Though section 357(3) of CrPC Sigemplates the grant of such compensation, the provision is oy invoked and even if granted, it is rorally inadequate, The suffer medical and psychological injuries, loss of job and and are rarely compensated for these losses. In Delt Somestic Working Women’s Forum v Union of India?” a PIL, this wap in Jaw has been filled. he factual matrix of the case was: some tribal women who were employed as domestic workers in Delhi boarded the Murree Horess at Ranchi, bound for Delhi. Some army jawans travelling ¢ same compartment ra ped them. When the train reached Delhi, one of the culprits was caught and the perpetrators of the ne were charged. The Domestic Working Women’s Forum filed a PIL. The these tribal women were at the mercy of their jmidation; and that in spite the stare government nor any legislation to provide fe tw them. The petitioners for Women (NCW) should f India to give effect ition stared that loyers, and are vulnerable to int of such barbaric assaults neither the central government passed ‘chabilitatory or compensatory juste prayed that the National Commission f : daft a scheme and impress upon the Union o {0 it, “bid, at 228. (1995) 1 scc 14.300 Fiery YEARS OF THE SUPREME COURT Mohan, J, delivering the judgement of the court drew attention to the defects and inadequacies of the legal system. He laid down st the victims of rape. These are: certain broad parameters to 3 + Complainants of sexual assault should be provided with legal representation. , + The victim's advocate should not only assist her in filing the complaint bur also guide her in getting other kinds of assistance like psychiatric and medical. * Legal assistance will have to be provided at the police station as well in view of the distressed state of mind of the victim + The police should be duty-bound to inform the victim of the right to get representation before asking her questions and the police report should state that she was so informed. + A list of advocates willing to act in these cases should be kept. * Such advocates should be appointed by the court, but to avoid delay, advocates may be authorized to act in police stations before permission from the court has been obtained. * A criminal injuries compensation board should be set up. * Compensation. for the victim shall be awarded by the court on the conviction of the offender and by the criminal injuries compensation board whether or not a conviction has. taken place.?8 Mohan, J, also directed that the NCW should frame a scheme for compensation to the victims within six months and submit it to the Union of India, which should at the earliest implement it. Domestic Women’s Workers? Union reveals the strengths and weaknesses of PIL. The strengths are that the voices of victims of the worst form of violence were heard by the apex court. The victims Jack education, resources and initiative. In the absence of PIL, they would not have been heard, The weaknesses of PIL are reflected as scant respect is shown to these directions. One wonders whether a criminal injuries compensation board has been set up at all. The suggestion that the Union government should implement a scheme to give compensation to victims of rape, though laudable, has till now been ignored, Often technicalities and the letter of the law prevail over the spirit of justice. But the Supreme Court in State of Karnataka v **Ibid. at 19-20,GENDER Justice 301 ysiwar® scorched the prospect of a technicality over- aie che demands of justice. The facts in this case were: the Cet ced wrongfully restrained a girl aged 15 and forcibly took her ae) jungle $0 metres away’ and raped her One and a halt M0 fp later the victim committed suicide. The trial court Mpised the accused of the offences under sections 376 and 354 re IPC, on the ground that the vietim was not available for & Jpination and convicted him for offences under section 341 ind 333 of the IPC to four months simple imprisonment. The Hn court upheld the acquittal for the offence of rape. On an ee ca] by the State of Karnataka, the Supreme Court reversed the Eusion of the high court. Ratnavelu Pandian, J, pointed out that evidence of the prosecution as well as medical evidence hed that there was an attempr of rape, if not rape itself. fre leaned judge observed: ‘Merely because a vietim is dead and consequendly could not be examined can never be a ground to svouit an accused if there is evidence otherwise available proving the criminal act of the accused concerned’. Succession The UN report 1980 states that ‘women constitute half the world population, perform nearly two-thirds of work hours, receive one- tenth of the world’s income and own less than one-hundredth percent of world’s property’. The apex court had occasion to cite this report.3! The position is much worse in India under the traditional Hindu law with its restrictions on the rights of inheritance of women and the limited estates of Hindu women. The Hindu Succession Act, 1956 (HSA) improved the pre- ciisting rights of Hindu women but some gross features of ciscrimination still continue to exist, notably the retention of Mitakshara coparcenary, and the continuance of discriminatory laws relating to devolution of tenures and special provisions ‘elating to dwelling houses. To the extent the HSA seeks to remove the inequities based on gender, the apex court adopted a progressive and liberal » ylR 1992 SC 2043. Ibid. ar 2045, 4 ‘Madhu Kishwar » State of Bihar AIR 1996 SC 1864 at 1871.oo’ 302 Piety Years on rie SurriMe Court construction, Section Lt of the TISA states that ‘any: Property possessed by a female Hindu shall be held by her as a full owney thereof’. In Aorturwsamd y Terrama® the Supreme Court pave the widest connotation to the word ‘possessed’ as including actual and constructive possession, and in Mangal Singh v Rathno™ it held that where a woman was dispossessed bya trespasser and she had aright fo recover the property she would be deemed to be in , hobare A possession of the property: ahs 1 Ion the other hand, the widow: prior to the HSA parted with het limited estate by gift of sale, the traditional law applies and the reversioners would be entitled to recover the property from the alicnees of the limited estate. In Dhan Singh » Daya Kaur** the question arose whether reversioners were to be ascertained according to the law prior to HSA or according to the HSA. If the former construction is adopted, the agnates of the fast male holder would be entitled to the property; if it is the latter, the daughter of the last male holder would be entitled to the property attcr the limited owner’s death, The apex court held that the reversioners are to be ascertained according to HSA and thereby buttressed the rights of women, Again in the context of section 14 of HSA, while subsection (1) declares that limited owner will become a full owner, subsection (2) preserves the restricted estate under a gift, will decree or order of the court The interpretation of the provisions gave tise to considerable problems, and in particular, if the property is given. towards maintenance under a decree prescribing the limited est fate, whether: such property becomes an absolute property, In Tidasamma y Sesha Reddi,* PN: Bhagwati, J, held that if the widow gets property under a pre-existing right of maintenance, her restricted estate blossoms into an absolute ownership notwithstanding a decree or order of court, gift or will which prescribes a limited estate. Thus widest scope had been given to section 14(1) enlarging the rights of female Hindus. Section 6 of HSA in order to ascertain the share of a deceased in Mitakshara coparcenary envisages notional partition under 2AIR 1959 SC 1577, AIR 1967 SC 1786. BAIR 1974 SC 665, “AIR 1977 SC 1944,GENDER Justice 303 explanation (1) to section 6. In the north, at a partitio eee oem thei ee eee ee grandmother. The question came up before the courts ‘he ie sander the notional partition envisaged in section 6 the widow (or other female heir entitled to share on partition) would be getting Pee hetearcecional haretuvie (het cichtar Raise a share as well as the share under notional partition. It ve held ‘i Gurupad vy Hirabai*® that the widow would be entitled to her guceessional share as well as her share under notional partition The decision serves to protect the share of a female member trom being defeated either by postponing the partition till the death of the female member or where a partition cannot take place as there is only one male member in the coparcenar Thus within the boundaries of legislation and applying traditional rules of interpretation, the apex court liberally construed the HSA and thus aided the process of enlargement of the property tights of Hindu women. Bur when it came to the exercise of its constitutional power to invalidate the discriminatory features of the classical or customary Hindu law of the court failed and still fails to take the initiative, In the Supreme Court prefers to be guided by the succession, other words, legislature rather than guiding it This want of initiative on the part of the in three directions: First is not invalidating the traditional Mitakshara coparcenary which confers the right by birth only on sons, paternal grandsons and paternal greatgrandsons, § cond, section 4(2) of HSA preserves the special rules relating to devolution of tenures in some states which often discriminate been allowed to be in force. Under the validity of such court is noticeable against women and these have PIL in Madhu Kishwar v State of Bihar, h enactment was challenged but the court could nor assert itself Third, the special provisions relating to dwelling houses ee occupied by the members of the family. These aspects nee oe and its bias against The traditional Mitakshara coparcenary 7 daughters reigns supreme in the northern states. Five states in “AIR 1979 SC 1239. AIR 1996 SC 1864.304° Fiery Years of THe SurReMh COUnT south initiated legislation co end the discrrmination.*® The state of Kerala abolished the jomt-tamily system and the right by birth in 1976; Andhra Pradesh, Tanul Nadu and Karnataka adopted a different approach, namely, to confer the right by birth on daughters who were or are unmarried ac the time when the relevant state legislation was passed. The preamble of this legislation which confers a right by birth on daughters also read: Whereas the Constitution of India hay proclaimed equality before law asa Fundamental Right; Whereas the exclusion of the daughter from participation in coparcenary ownership merely by reason of her sex is contrary thereto.” It is a matter of some surprise that the constitutional validity of the Mitakshara coparcenary apparent on its face was not considered before the apex court over half a century. Is it attributable to the insensitivity: of the bar? Or of the bench? A similar fare met the diseriminatory rules relating to devolution of tenures that ist in. some. states like Uttar Pradesh. All agricultural land, it may be recalled, in that state is held under the Uunidari, siridari or asami tenure. For example section 171 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, prescribes a devolution which discriminates inst female heirs. However, in Madhu Kishwar,#! the question came up for a decision indirectly: There the validity of sections 7, 8 and 76 of the Chota Nagpur Tenaney Act, 1908 applicable to Santhals, a Scheduled Tribe, was challenged. The provisions of the Act as regards Mundari Kiunt-kattidari tenancy rights excluded women tribals from inheritance to such rights and confined the succession to Mundari Khunt-kattidari rights among male descendants in the male line. Initially the apex court directed the “See generally, B. Sivaramayya, ‘Coparcenary Rights to Daughters: Constitutional and Interpretional Issues’ (1997) 3 SCC (Jour) at 25-38. “For example see The Hindu Succession (Andhra Pradesh Amendment) Act, 1986 “On discriminatory tenurial laws, see Bina Agarwal, B. Sivaramayya, and Lotika Sarkar (1998), Report of the Committee for Gender Equality in Land Devolution in Tenurial Laws, Ministry of Rural Areas and of Rural Development, Government of India. “'Supra, note 37Genre Jurner 405 gare government of Bihar to © a TE rational ethon and cand Ge re en hin see oh ce we ind he uenion i of the Mw Gt Jd pot te desirable to grant equal nights of eae ae counts. Pint, that would fead to fragmentation u tandhok i and second, fa tribal woman were to marry a non-«ribal gee find would go into the hands of the non-tribals ae a oonservanive approach, the majority” took the view that Oe applicable to them should not be in conformity with the HSAcr ap dian Succession Act, 1923. However, recognizing the right to livelihood of female heirs, the majority took the view ae female relatives of the last male tenant have a constitutional right to say over the holding so long as they are dependant on the holding exclusively. Till then the exclusive right of male succession 4 animation. But it is important to note will remain in suspendes that Madhu Kishwar has no impact ‘on the rules relating t0 devolution of tenures. Section 23 of the HSA curtails the nghts of a female heir in a dwelling house wholly occupied by the family in three directions: First, the section 1s applicable, whether the dwelling house belongs to 4 male or female Hindu intestate. Second, a daughter is entitled to a right of residence, if she is unmarried, or js divorced or has been deserted by or has separated from her husband. Third, the female heir cannot seek the partition of the dwelling house ‘unless the male members of the family choose tO divide the property: Kuurthy » Susheela Bain! the SUPreOe Court cher the restricuon envisaged In Narasimha ¥ considered the third aspect, Vi2 whet A ble even if there is a single secon 23 of HSA will be applica d male heir. The court was of the view that restriction of partition will be applicable even fe male heir. In practical terms the decision Is 1 adoption of the small family norm Inagi the nucieus consists of 2 son an daughter an adverse effect on the rights fof the daughter in © house. Over the five decades, the role of the the gender-based iniquities has been many’ i. 44M. Punctihi and Kuldip Singh AIR 1996 SC 1826. woul uml ‘and the decision has he dwelling court in trying, £0 cOrresE ided. Thus, apartGENDER Justice 307 ‘the modesty and selrespeet- may pethaps preclude t TAM, personal problems like whether the ean sen Press, the mumber of conceptions taken place, Period is regular ne full term, ete. The Corporation would Cee ee Eejumns in the declaration Ihe purpose of the deck ae maternity Benefits t0 a ay carte who i pre rena ering ino sie (he lly of which ee ie core pot challenged) the Corporation could wubjes he to medial ca examination including 2 pregnancy test." In Neeraja Saraph v Jayant Saraj hi? a ‘ USA married an educated girl oa ee ey i: persuaded her to give up her job and to join him. However a Pefwe months he obtained a decree of nullity From a US court ane wife filed a suit for damages. The apex cour while giving The Jn elif to the victim, pointed out the need for a leistation and gave suggestions for it. Right to Privacy both under the Indian and the US law partakes racter. State of Maharashtra v Madbukar Narayan he right to privacy against its gross violation ce serving at Bhiwandi, Right to privacy a penumbra chai Mandikar® protects 1 by a police officer. A sub-inspector of poli went to ne Banubi at 8.45 p.m. on 13 November 1965 and demans course. Banubi raised a hue and cry which broug! 'd and other neighbours. On & written comp! departmental inquiry was held and Mandikar (the g' ctor) was dismissed. The inquiry also brought ou! i an of easy virtue. On appeal the Bombay High Court quashed the dismissal stating that it would be unsafe to allow the fortune and career of a government officer to be put in jeopardy upon the uncorroborated version of an unc an. Reversing the decision of the high court, the Supreme Court observed: vacy and no one can vireue is entitled to priv jt is not open to any ‘when he likes. So als ‘ ’ person as and when He wishes. She is he hut of o ded sexual intet nt her husban' Even a woman of casy invade her privacy as and and every person to violate her “Ibid. at 395. 491994) 6 SCC 461. SoyT (1990) 4 SC 169-