Women's Rights Initiative Year End Update

Supriya Yadav, from the Lawyers Collective Women’s Rights Initiative takes a look at the legal developments in the past year

RIGHT TO MAINTENANCE

• Maintenance and Right to Residence

In the case of Komalam Amma v. Kumara Pillai Raghavan Pillai and Ors.¹, it was held that a Hindu wife is entitled to be maintained by her husband. She is entitled to remain under his roof and protection. She is also entitled to separate residence if by reason of the husband's conduct or by his refusal to maintain her in his own place of residence or for other just cause she is compelled to live apart from him. Right to residence is a part and parcel of wife's right to maintenance. The right to maintenance cannot be defeated by the husband executing a will to defeat such a right. The right has come to be statutorily recognized with the enactment of the Hindu Adoption and Maintenance Act, 1956. Section 18 of the Act provides for maintenance of wife. Maintenance has been so defined in clause (b) of Section 3 of the Hindu Adoption and Maintenance Act, 1956 as to include therein provision for residence amongst other things. For the purpose of maintenance the term 'wife' includes a divorced wife.

 

Maintenance necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady's life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Section 14(1).

• Maintenance From The Date Of Filing Of Petition

In the case of Shail Kumari Devi &Amp; Anr. v. Krishan Bhagwan Pathak² was held that wife's are entitled to maintenance from the date of filing of the petition.

• No Husband Can Demand Cohabitation

In the case of Sajeev Kumar v. Dhanya,³ the Kerala High Court clearly laid down that Explanation (b) of Section 125, Cr.P.C. entitles a divorced wife to reckon her as a wife for the purpose of Section 125, Cr.P.C. and claim maintenance. The fiction cannot be extended beyond its purpose. Merely because she continues to be a wife for the purpose of claiming maintenance under Section 125, Cr.P.C. no husband can demand cohabitation with such divorced wife. No husband can demand that she should not desert him and must continue to live with him. No husband can insist that a divorced woman must remain loyal and chaste to him if she were to claim maintenance under Section 125, Cr.P.C. Those are not the contentions which the law permits a divorced husband to avail of. The fiction incorporated by Explanation (b) to Section 125, Cr.P.C. can be pressed into service only as demanded or permitted in the context. That cannot obviously impose on the wife a duty to co-habit with the husband or justify the contention that she forfeits her claim if she continues the desertion.

Courts have repeatedly held that the divorced wife who for the purpose of Section 125, Cr.P.C. continues to be a deemed wife as per Explanation (b) to Section 125, Cr.P.C. has no obligations which a woman in current matrimony has.

 

Even assuming that he does not have any present employment, in the absence of a contention, or material to support such a contention, that he is ill and is unable to work and earn his livelihood, he, a young person, must be held to be obliged to work and earn his livelihood and also support the claimants.

In another case Kerala High Court held that "it is by now trite that the evidence of cohabitation as husband and wife and the evidence that the spouses held themselves out to the whole world as husband and wife are sufficient in proceedings under Section 125 Cr.P.C. to come to a conclusion about a valid marriage".⁴

REGISTRATION OF CASES UNDER SECTION 498-A

Justice Kailash Gambhir observed in the case of Chander Bhan and Anr. v. State⁵, that it is essential to lay down some broad guidelines and to give directions in such matters in order to salvage and save the institution of marriage and matrimonial homes of the couples. Some of the important aspects of the guidelines were that the first step for any matrimonial dispute should be reconciliation. The Delhi Legal Service Authority, National Commission for Women, NGOs and social workers working for upliftment of women were directed to set up a desk in Crime against Women Cell to provide them with conciliation services, so that before the State machinery is set in motion, the matter is amicably settled at that very stage. But, if ultimately even after efforts put by the social workers reconciliation seems not possible then the matter should be undertaken by the police officials of Crime against Women Cell and there also, serious efforts should be made to settle the matter amicably. Most importantly, it was opined that:

• No case under Section 498A/406, IPC should be registered without the prior approval of DCP/Addl. DCP.

• Arrest of main accused should be made only after thorough investigation has been conducted and with the prior approval of the ACP/DCP.

• Arrest of the collateral accused such as father-in-law, mother-in-law, brother-in-law or sister-in-law, etc. should only be made after prior approval of DCP on file.

• Police should also depute a well trained and a well behaved staff in all the crime against women cells especially the lady officers, all well equipped with the abilities of perseverance, persuasion, patience and forbearance.

• FIR in such cases should not be registered in a routine manner.

• The endeavour of the Police should be to scrutinize complaints very carefully and then register FIR.

• FIR should be registered only against those persons against whom there are strong allegations of causing any kind of physical or mental cruelty as well as breach of trust.

• All possible efforts should be made, before recommending registration of any FIR, for reconciliation and in case it is found that there is no possibility of settlement, and then necessary steps in the first instance should be taken to ensure return of Stridhan and dowry articles, etc. by the accused party to the complainant.

WOMEN TO BE INCLUDED AS ACCUSED UNDER SECTION 497 OF IPC ON ADULTERY

Where in most part of the world including the European Union and many US states there is a move to decriminalise adultery, the Central government has been seeking a response from each of the 30-odd state governments to the Malimath Committee's recommendation that adulterous wives be penalised. This recommendation was made five years back and is being opposed by the NCW.

REPRODUCTIVE RIGHTS

• Right to Medical Termination of Pregnancy

In the case of Dr. Nikhil D. Dattar, Gynaecologist, Mr. X (Identification withheld for preserving confidentiality) and Mrs. Y (Identification withheld for preserving confidentiality) being wife of Mr. X v. Union of India (UOI) through its Additional Solicitor General (Western Region) and State of Maharashtra through its Govt. Pleader and Advocate General⁶ it was contended that Section 5(1) of the Medical Termination of Pregnancy Act, 1971 should be read down to include the said eventualities, and consequently should be read to include the following words "and when there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped".

During 24th week of pregnancy, the petitioner No. 3 having undergone the necessary medical tests learnt that the foetus in her womb was diagnosed to have congenital complete heart block. The petitioner Nos. 2 and 3 consulted the petitioner No. 1 and sought his opinion about the possibility for termination of pregnancy after learning about the alleged anomalies in the foetus.

As far as Section 3(2)(b)(ii) is concerned, it clearly speaks of right to terminate the pregnancy where there is a substantial risk in allowing the child to take birth as it would suffer from such physical or mental abnormalities as to be seriously handicapped. However, such right is restricted to the maximum period of twenty weeks of pregnancy and not beyond it. Section 3(2)(b)(ii) is very clear in that regard. It also provides that before opting for such pregnancy within the said period, it is necessary for two registered medical practitioners to form an opinion in good faith for termination of the pregnancy. In case, the pregnancy has not exceeded twelve weeks, then such an opinion can be formed in good faith by any one medical practitioner.

The Court held that if such contentions are accepted then it would virtually amount to legislating upon Section 5 of the said Act. Under the guise of reading down a provision of law, the Courts are not empowered to legislate upon a statute. That is essentially the function of the legislature.

• Surrogacy

In the case of Baby Manji Yamada v. Union of India (UOI) and Anr⁷ the issue of surrogacy was discussed and the various types of surrogacy in existence was laid down as following:

• In "traditional surrogacy" (also known as the Straight method) the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others; by the biological father and possibly his spouse or partner, either male or female. The child may be conceived via home artificial insemination using fresh of frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intra cervical insemination) which is performed at a fertility clinic.

• In "gestational surrogacy" (also know as the Host method) the surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother. She may have made an arrangement to relinquish it to the biological mother or father to raise, or to a parent who is themselves unrelated to the child (e. g. because the child was conceived using egg donation, germ donation or is the result of a donated embryo). The surrogate mother may be called the gestational carrier.

• "Altruistic surrogacy" is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses).

• "Commercial surrogacy" is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well off infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents.

The Court held that Commission constituted under the Commissions for Protection of Child Rights Act, 2005 has right to inquire into complaints or take action suo motu notice relating to violation of child rights and development of children and provide relief in such matters with appropriate authorities. The Apex Court also opined that surrogacy arrangements can also be made independently but careful screening is needed to assure their health as the gestational carrier incurs potential obstetrical risks.

MEDIA & DIGNITY OF WOMEN IN LIGHT OF ARUSHI MURDER CASE

The murder of a fourteen year old, Aarushi, brought a number of issues to the forefront which needed consideration and reforms. The discussion, debate, media trial and conclusions drawn by media put a serious question mark on the ethics and principle by which the Indian media works.

The Press Council of India in its norms forbids the press from publishing private details of individuals unless relevant to public interest. The norm forbids the press from divulging details about any person in a manner which raises doubts about the chastity and privacy of a woman. All these norms were violated in the Aarushi case. That apart, even a dead person cannot be criminally defamed and Aarushi was quite clearly defamed by a substantial section of the media.⁸ Further, there was violation of the Indecent Representation of Women Act which requires the press to report on women in a responsible manner that does not violate their dignity.

LEGISLATION ENACTED & PROPOSED

• Proposed Amendment To ITPA

It has been proposed that by an amendment the clients soliciting services from sex workers or visiting brothel will be punished by fine and as well as imprisonment. Section 5C of the ITPA proposes to introduce penalty for visiting a brothel and will also criminalise adult, consensual sex work.

• Proposed Amendment To Rape Laws

There are various amendments being tabled as far as rape laws are concerned. It has been suggested that a woman judge to hear rape cases, as far as is practicable. The investigation of the case will be preferably conducted by woman police officer and at the victim's residence. The questioning of victim in the presence of her parents or a social and the statements will be recorded at a place of her choice. The trial should be completed within three months and a ban should be imposed on publication of trial proceedings in rape cases. Further, provisions for compensation to victims or dependents who have suffered loss or injury as a result of the crime should be provided.

• The Prevention Of Offences (By Acids) Act, 2008

The National Commission for Women has proposed legislation for the classification of acid attack as a separate and most heinous form of offence. The Act not only focuses on regulation and control of acid and other corrosive substances to assist the victim of acid attack by way of providing for her medical treatment services and also provides social and psychological support. The objective of the Act will be to provide legal support to the survivors and to arrange rehabilitation mechanisms/ schemes taking into account the specific needs of the victim. The law envisages to establish National Acid Attack Victim's Assistance Board which will comprise of a Chairperson appointed by Central Government apart from other members from the field of law, representatives of NGOs or women Activists working in the field of empowerment of women and in particular providing assistance to victims of acid attack and any other interests which in the opinion of the central Government.

The Board has been empowered to grant a compensation of Rs. 5 lakhs t Rs. 30 lakhs. The victim is further entitled to the following relief:

• Legal aid

• Medical services, employment, education, rehabilitation, housing and other welfare measures taking into account the specific needs of the victim and her dependents.

• Maharashtra Domestic Workers Welfare Board Act, 2008

The legislation has been passed by the Maharashtra Government in the winter session of the legislative assembly. There are about thirty-two types of work listed under the definition of domestic work which is inclusive of sweeping, cleaning utensils, washing clothes, and cooking.

As per the Act the domestic workers will be entitled to weekly-offs, bonus, increment, maternity benefits and will also be provided other financial relief in terms of social security funds and provident funds.

BUDGET & WOMEN IN 2008

As per the Statement on Gender Budgeting the total magnitude of the gender budget has gone up only marginally from 3.3% to 3.6% of total expenditure, a mere 0.3% increase over the previous year.⁹

1 AIR 2008 SC 1549

2 Special Leave Petition (Civil) No.17260 Of 2007.

3 II(2008)DMC19

4 Ponnupilla, D.G.P. Staff Camp (C.R.P.F) v. Nalini B.P., MANU/KE/0206/2008.

5 II (2008) DMC 359

6 Writ Petition (L) No. 1816 of 2008

7 2008(4)KLT306(SC)

8 Indira Jaisingh, Media on trial: Driven by sensationalism, The Hindu (Magazine section) Also, available at:

http://www.hindu.com/thehindu/mag/2008/08/03/stories/2008080350020100.htm

9http://infochangeindia.org/200803066965/Women/News/Budget-2008-What-s-in-it-for-women.html Last visited on January 25, 2008.