Physical, social and economic vulnerability affects men and women differently. Social structures give automatic advantages to the male or result in undeserved disadvantages to the female. Unless there is a positive affirmation of a woman’s rights, her voice will not be heard. This affirmation must come from the courts. The Madras High Court has played a stellar role in the evolution of gender justice. On its 150th anniversary, it is fitting to recall this contribution.

THREE GROUPS

I have categorised the cases that the Court has dealt with in this regard into three groups — the pre-Constitution period, 1950-2000, and the 21st century — with the full awareness that any list of “my favourites” is liable to be criticised.

In the pre-Constitution period, when the right to equality and special provisions for women were not enshrined as law, we find in the Madras High Court a remarkable recognition of the woman’s right to property, to dignity and in fact a recognition of woman as just herself and not as an adjunct to man as father, husband or son.

As early as in 1864, in Chalakonda Alasani vs. Chalakonda Ratnachalam, the Court held that the rules applicable to a coparcenary for custody of the properties and the separate ownership of self-acquisitions were applicable to female members of a devadasi community living jointly. It was dealt with as if it was a family. Nowadays, the concept of what constitutes a family may no longer be based on marriage or heterosexual ties. From that perspective, this judgment is indeed very modern.

The right to dignity of a woman was seen as an indefeasible right by the Court. In Ramnath Zamindar and Anr vs. Doraiswami (1882), the claim to legitimacy by the son of a dancing girl was upheld. The Court empathised with her reluctance to expose herself to insensitive cross-examination. In Parvathi vs. Mannar (1884), the Bench held that the English law insisting upon proof of special damage in a case of libel against a married woman would not apply under the customs and social context of this country. In both cases, the Court looked at the issue “standing in her shoes.”

Does the husband have the right to beat his wife? Such a misconception is still prevalent. But in Emperor vs. Subbaiah Goundan (1936), the Court was clear that no husband had such a right, “… and wife-beating is not eo nomine one of the exceptions in the Chapter of ‘General Exceptions’ in the Indian Penal Code … We think it necessary to state in unmistakable terms that the learned sessions judge’s declaration of the rights of husbands in this regard has no foundation, so that no one may rely upon that in future as a justification for wife-beating.” Behind the wry humour, we can sense the Court’s pain.

In re Boya Chinnappa, our Court held that the prosecutrix in a rape case cannot be treated “as if she were an accomplice so far as her credibility is concerned.” Yet how often our Courts have even in later cases treated her exactly like that and she is repeatedly victimised during the trial!

In the 50-year period that covers the second group of cases, women were moving out of their homes to seek employment, and women were also moved out of their homes because of divorce or desertion. The courts had to deal with these issues.

But first, let us look at the right to dignity again. In re Ratnamala and Another(1962), the judge held “I must reiterate that the modesty of a prostitute is entitled to equal protection, with that of any other woman. The technique of such raids must be totally altered; otherwise, grave abuses of the law might enter into the very attempt to enforce the law.” Even today, this declaration that her right to dignity is non-negotiable needs to be reiterated!

In Srinivasa Padayachi v. Parvathiammal (1969), the question was whether the pre-nuptial settlement deed was valid. The Court said: “’Marriage may be a sacrament under Hindu Law, but that does not militate against the existence of a contract for the marriage.” The tone is so modern, affirming that the factum of marriage will not destroy the woman’s contractual rights.

Divorce undeniably renders a woman economically very vulnerable, and the Court set right the imbalance. In Soundarammal vs. Sundara Mahalinga Nadar (1980), the Court observed that the laws of divorce should not result in merely wrapping the wronged woman with decree copies of alimony but that the alimony awarded should compensate her for her loss and should be realised uninterruptedly and fully. In Ameer Amanullah vs Pedikkaru Mariam Beevi (1985), the Court held that the statutory obligation to provide maintenance to the wife and children transcends personal law and operates irrespective of caste, creed or religion.

By 1985, women in employment were commonplace, and views that a woman’s rightful place was in the hearth were no longer acceptable. But patriarchal bias still permeated public spaces. The Court held in Sivanarul v. State of Tamil Nadu that a woman cannot be removed from work because she was married. In Rukmani vs. The Divisional Manager, Marapalam Tea Division, the Court held that it was obnoxious and arbitrary to ask a woman to produce a “no objection” certificate from her husband to get a job. In R. Vasantha v. Union of India, the woman insisted that she shall not be excluded from employment in the night shift. The Court agreed, “This social change must necessarily have its impact upon the traditional perspectives concerning woman’s role and that must call for change in our laws … to advance the constitutional guarantees…” A true trendsetter.

A minor girl asserted that her father had no right to terminate her pregnancy. And the Court agreed in V. Krishnan vs G. Rajan @ Madipu Rajan. It is a significant decision for its admirable prescience in recognising, though tacitly, a girl’s right over her body without being trapped by extraneous questions. It said that the Constitution does not distinguish between minors and adults when it concerns fundamental rights.

In the Chidambaram Padmini case and the Meera Nireshwalia case, the very spaces that ought to be safe for a woman victimised her. In the former, the complainant was raped in a police station; in the latter, her home became a hazard. The husband, in collusion with the person who had bought her property, had termed her insane and confined her in an asylum with the help of the police. In both cases, the court showed its stern disapproval and awarded compensation.

Facing or prosecuting a matrimonial case is not easy for the woman. In Janaki vs. V. Sundaram, reminding the Family Courts about their role, the High Court held: “A starving wife cannot be compelled to face the trial. The very purpose of establishing a Family Court is to have a different atmosphere in regard to settlement of family problems. Family Court must instill faith and confidence in parties.”

This is live equality, not pedantic equality that treats two unequal persons as equal.

TWENTY-FIRST CENTURY

Now we move to the 21st century when women are turning agents of change and the Court has facilitated the process. Two women claimed that they must be appointed as members of a public trust in Lalitha Sundari and another vs. Kedarnathan (2002). The Court relied on CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), to which India is a signatory and held that there can be no discrimination against women regarding appointment to public office, and upheld their claim.

The wife who was not allowed to enter her marital home contended that it was a shared household and in Vandana vs Srikanth (2007), the Court proactively construed the concept of a “shared household” and secured her space. It was a nascent Act, and a narrow interpretation would have defeated the purpose of the enactment. And in M. Palani vs Meenakshi (2008) the Court held that maintenance can be claimed by a woman in a domestic relationship, based on consensual sex regardless of its duration. The glass ceilings in the religious space are the hardest to shatter. In Pinniyakkal vs. District Collector and ors(2008), the woman said that she had the right to be a pujari (priest) in a temple and the High Court protected her right, observing “The altars of the God must be made free from gender bias.”

The Courts did not forget the homemaker either. In National Insurance Co. vs. Minor Deepika and others, the High Court put an economic value to the work done by the homemaker. It invoked the CEDAW principles affirming her right to dignity. Turning to working women in the workplace and their right to be free of sexual harassment, the Court, in Srinivas Rajan vs Director of Matriculation Schools, said, “The Special Committee which enquired into the allegations made by the women staff … had clearly forgotten the real import of the Vishakha case.” A woman who has been widowed is traditionally expected to retire from public space but in R. Malathy vs. Director-General of Police, the woman fought for her right to continue in police service, and she succeeded. This judgment traces the history of injustice inflicted on widows. One sees that in this period, the Court has looked at gender equality from many angles.

True, the woman has not always succeeded. But as we celebrate the 150th year of a great High Court, I wish only to record the triumphs (certainly not all of them) in this humble tribute. There have been failures, but the time to dissect them is not now.

(Prabha Sridevan, a former Judge of the Madras High Court, is Chairperson, Intellectual Property Appellate Board.)

Reproduced from The Hindu, September 21, 2012.