[Editorial Analysis] Target judicial patriarchy, not the judge

Mains Paper 1: Society
Prelims level: National Crime Records Bureau report 2019
Mains level: Role of women and women’s organization, population and associated issues or Social empowerment.

Context:

• A survey by the Thomson Reuters Foundation (2018) and National Crime Records Bureau report (2019) Shows that India as the most dangerous country for women as many as 32,032 rapes were reported in 2019 or 88 incidents of rape a day.

• The Challenge and Concern for India is, every hour, 39 instances of crime against women including four instances of rape are committed in India. And rape cases have increased by 88% over a decade. Four lakh cases of crimes against women were reported in 2019.

National Crime Records Bureau report (2019):

• A total of 4,05,861 cases of crime against women were registered during 2019, showing an increase of 7.3% over 2018 (3,78,236 cases).

• Majority of cases under crime against women under IPC were registered under ‘Cruelty by Husband or His Relatives’ (30.9%) followed by ‘Assault on Women with Intent to Outrage her Modesty’ (21.8%), ‘Kidnapping and Abduction of Women’ (17.9%) and ‘Rape’ (7.9%).

• The crime rate registered per lakh women population is 62.4 in 2019 in comparison with 58.8 in 2018.

Gender insensitivity India:

• The recent observations by the Chief Justice of India (CJI), S.A. Bobde, while granting bail to a government servant who is accused of repeated rape and torture of a 16-year-old child have been widely criticised though the Chief Justice of India has now denied having suggested marriage to the rape accused.

• The worrisome issue is that legally speaking, rape is not even a compoundable offence and parties are not allowed to enter into compromise.

• The real problem is that such avoidable utterances reflect the patriarchal mindset of our judges and the larger society. These statements demonstrate our gender insensitivity.

• The Chief Justice of India said was similar to the Modi government’s affidavit, in 2017, in the Delhi High Court. The RSS too had opposed marital rape being made a crime.

• The Justice J.S. Verma Committee (2013), which was constituted after the Delhi gang rape (2012) had said that rape should be viewed not as an infringement of a woman’s chastity or virginity but a violation of her bodily integrity and sexual autonomy.

• This autonomy cannot be permanently lost by entering into marriage. Rape remains rape irrespective of the relationship.

In the higher judiciary:

• The similar observations by other judges to understand the patriarchal attitude of judges. A few years ago, the top court orally asked a convict who had molested a girl 10 years ago to fall at her feet and that if she forgave him, the Court too would limit his sentence of imprisonment to the period already undergone.

• In June 22, 2020 order while granting advance bail to the rape accused, Justice Krishna S. Dixit of the Karnataka High Court asked why ‘the victim had gone to her office at night’; why had she ‘not objected to consuming drinks with him’.

• The Nagpur Bench of the Bombay High Court, in a strange ruling, had ordered that the sentence of the ‘rape convict can be cut if he agrees to pay Rs. 1 lakh to the victim’. Of course, the poor victim accepted the offer.

• The Bombay High Court in another case had ordered that breaking a promise of marriage is neither cheating nor rape. Here, the victim had filed for divorce from her husband to marry the accused.

• Justice Mridul Bhatkar granted bail to the accused observing that ‘it is an unfortunate case of frustrated love affair’.

• The Madras High Court had granted bail to a rape accused so that he could mediate with the victim. The Supreme Court had to quickly intervene to get the bail cancelled.

The Bhanwari Devi case and other case:

• The shocking decision in Bhanwari Devi (1995); she was gang-raped in 1992. The acquittal order by the Rajasthan court gave absurd reasons such as a higher caste man cannot rape a lower caste woman for reasons of purity.

• A 2020 judgment from the Guwahati High Court treated refusal of applying sindoor (vermilion) and wearing conch shell bangles (shaka) as sufficient basis to grant divorce to the husband.

• A few years ago, the Madras High Court gave an absurd order by directing that ‘divorcees too should maintain sexual purity to claim alimony’.
• Even a progressive judge like Justice M. Katju in D. Velusamy vs D. Patchaiammal (2010) had termed a second Hindu wife as a ‘mistress’ and ‘keep’, and thus not entitled to maintenance.

• In Narendra vs K. Meena (2016), the top court held that under Hindu traditions, a wife on marriage is supposed to fully integrate herself with her husband’s family and that if she refuses to live with her in-laws, it would amount to cruelty and the husband would be entitled to divorce her under the Hindu Marriage Act. The High Court had ruled in favour of the wife.

• In Rajesh Sharma vs The State of Uttar Pradesh (2017), a two judge Bench of Justices Adarsh Kumar Goel and Uday Umesh Lalit in yet another controversial order observed that there should be no automatic arrests on charges of cruelty. In this case, a demand of dowry was made for ?3 lakh and a car, which the wife’s family was not able to meet.

Hadiya Case:

• In the infamous Hadiya (2017) case too, some of the observations of the Kerala High Court about Hadiya’s independent agency and powers of her father over her were equally shocking and patriarchal.

• The Supreme Court in 2018 upheld the validity of her marriage and overruled the High Court’s strange judgment; the fact is that the top court’s order of investigation by the National Investigation Agency into the matter of marriage of two adults was absolutely erroneous.

India’s worse performance:

• The survey asked respondents which five of the 193 United Nations member states they thought were most dangerous for women and which country was worst in terms of healthcare, economic resources, cultural or traditional practices, sexual violence and harassment, non-sexual violence and human trafficking.

• Respondents ranked India the most dangerous country for women in terms of human trafficking, including sex slavery and domestic servitude, and for customary practices such as forced marriage, stoning and female infanticide.

• Government data shows reported cases of crime against women rose by 83 percent between 2007 and 2016, when there were four cases of rape reported every hour.

Conclusion:

• In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband’. Interestingly, though the wife is an integral part of her husband’s family, yet she is not a coparcener under the Hindu Succession Act.

• One hopes the controversy now will lead to greater gender sensitivity by our judges, at least in their oral observations and questions, if not the final judgments. It would be better to target patriarchy rather than the Chief Justice of India. Of course, the power to ask questions too must reflect gender sensitivity.

• India moving to the top of woman crime survey showed not enough was being done to tackle the danger women faced, more than five years after the rape and murder of a student on a bus in Delhi made violence against women a national priority.

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