Uniform Civil Code: Is it Required?

On October 7, 2016, the Law Commission of India released a questionnaire for public opinion on the implementation of Uniform Civil Code (UCC) in India for all religions. They have asked for certain questions from the public. My thoughts on the subject in a point-wise format together with justifications are given below:

 

1. Are you aware that Article 44 of the Constitution of India provides that “the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India”?
   • Yes
   • No

In your View, does this matter require any further initiatives?

Yes, I am aware of Article 44 of the constitution of India. Article 44 is ‘The Directive Principle of State Policy’ which is guided by Article 37 which states that these are merely guiding policies for the State.

No, this matter does not require any further initiatives/investigation as:

• As per the Article 25-28 of the Constitution of India, the citizens have a fundamental right to ‘Freedom of Religion’. The citizens freedom of religion are
  • Article 25: Freedom of Conscience and free profession of religion
  • Article 26: Freedom to manage religious affairs
  • Article 27: Freedom from payment of taxes for promoting of any particular religion
  • Article 28: Freedom to attend religious instructions
• The Supreme Court of India in Ratilal Panachand Gandhi vs The State Of Bombay, 1954, had stated that, ‘every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such’. The UCC in essence will be restricting these religious practices and beliefs and contrary to the Fundamental Rights enshrined by our constitution. The very tenet of our constitution, the fundamental rights, are being violated

 

2. The various religious denominations are governed by personal laws and customary practices in India on matters of family law, should the UCC include all or some of these subjects?
   • Marriage
   • Divorce
   • Adoption
   • Guardianship and Child Custody
   • Maintenance
   • Succession and
   • Inheritance

• Yes, It should include all these
• No, it should exclude ____
• It should further include _____

 

As mentioned in answer 1 above, professing ones religion, with all its customs and practices is the fundamental right of the citizens of India. All the above points mentioned are an ‘Integral’ part of these customs and practices. All religions have detailed age old customs for all the above subjects. These customs have been built on principles of equity and keeping in mind interactions with the other customs. Many of them are intertwined with each other and cannot be modified without rewriting the whole code from scratch and thereby destroying the very fabric of that religion. This will be akin to creating a completely different religion which will be anything which we started with. Therefore, regulating / governing any of the above will directly interfere in these customs and in essence destroy the religion. 

The answer will be “No, it should exclude all the above subjects”

 

3. Do you agree that the existing personal and customary practices need codification and would benefit the people?
   • Yes
   • No
   • Personal laws and customary practices should be replaced by a uniform code
   • Personal laws and customary practices should be codified to bring them in line with fundamental rights

As discussed in detail in answer 2 above, any codification and replacement with a uniform code will in essence destroy the very tenant of the religion. Therefore (c) above is ruled out. Further, implementing UCC will be against the Fundamental Rights of the citizens of India, thereby ruling out (d). All the personal laws of the religions of India are currently codified in different and various legislatures and are being implemented as such. Recodification of the same would simply add to the confusion and create issues of interpretation and construction. Therefore (a) above is also ruled out.

The answer will be (b) NO, the existing customary practices donot need codification

 

4. Will uniform civil code or codification of personal laws and customary practices ensure gender equality?
   • Yes
   • No

The answer will be (b) NO, UCC will not ensure gender equality. Achievement of gender equality cannot be by way of destroying a religion. Gender Equality is a misguided aim of UCC. For achieving gender equality the State ought to focus on education and labour laws that treat every person as human and does not impose any sort of gender based privilege or penalty. These laws have already been put in place, the need of the hour is proper implementation. The Government ought to implement education programmes for children, improve quality of education and ensure quality teachers in government schools to achieve the objective of Gender Equality and thereby increase the labour force participation rate of women without penalising or discriminating against the male labour force.

 

5. Should the uniform civil code be optional?
   • Yes
   • No

There should be no UCC in the first place. But as there is no other option given by Law commission, the answer is (a) Yes, UCC ought to be optional

 

6. Should the following practices be banned and regulated?
   • Polygamy (Banned / Regulated)
   • Polyandry (Banned / Regulated)
   • Similar customary practices such as Maitri-karaar (friendship deed) et al. (Banned / Regulated)

Let us analyse the above, all are forms of marriage which is regulated in India and only persons who have attained majority can contract marriage. A person who is a major is well aware of his/ her well-being and ought to enter into a contract of marriage by weighing all pros and cons. Every person enters a contract of marriage on his/her own free will. Similarly if they are not happy with the marriage, the option of divorce is always open. All contracts ought to be free to enter and leave, that is the way to restore balance of power to the contracting parties. Keeping the above cannon in mind let’s answer the questions:

a) and b) Polygamy / Polyandry: None (Regulated as no other option is there): The present religious doctrines have captured the issue and dealt with it in detail. The spouse’s interest is also kept in mind. Moreover, the dissentient spouse has an option of divorce if he/she so chooses. Further, in case of Polygamy in Muslim Law, at the time of nikah or any time after that the spouses can enter into an agreement, wherein the husband promises not to marry a second wife. The women can impose this condition prior to marriage (Moharam Ali v. Ayesa Khatum, (1915) 19 Cal. W.N. 1226)

c) Maitri-karaar: None (Regulated as no other option is there): The contract of Maitri –Karaar evolved as the contracting parties did not want to enter into a contract of marriage. Every person has a right to live the way he / she wants (Article 21, Right to life). The state ought not to make rules and regulations in what one does in his/her personal affairs. Regulating / banning the same is completely contrary to the wishes of the contracting party and Article 21 of the Constitution of India.

 

7. Should the practice of triple talaq be
   • Abolished in toto
   • Retained the custom
   • Retained with suitable amendments

As discussed in question 6 above, persons contracting marriage enter the same at their own free will weighing all the pros and cons. Triple talaq is not a one sided affair, as per Muslim law women can also give a triple talaq called talaq-e-tafwiz. So the whole concept that, triple talaq being gender biased is incorrect.

The answer will be (b) Retained the custom

 

8. Do you think that steps should be taken to ensure that Hindu women are better able to exercise their right to property, which is often bequeathed to sons under customary practices?

• Yes, Hindu women must be made aware of this right and measures should be taken to ensure that women, under pressure from family donot forego their property
• No there are adequate protection in the existing law
• Legal Provisions will not help in what is primarily a cultural practice, steps have to be taken so sensitize the society instead

For correctly understanding the question, lets understand the concept first. Right to property for any heir can be divided into 2 parts

• Self Acquired Property: This is the property acquired by the hard work of the individual during his/her lifetime. He should have all rights to deal with it the way he / she seems fit. Making laws for the same will be infringing on the fundamental rights of this individual. So if this individual wants to give it to his/her son, daughter, third person or charity is purely his decision and ought to be honoured.
• Ancestral Property: The case of ancestral property is different, The Hindu Succession Act, 1956, clearly lays down detail rules on division of ancestral property within the heirs. Women have been given equal rights under the said act. So no discrimination as per law made.

As we can see above, law has been made which gives ‘Equal’ right to women heirs (including daughters). Making generalized statements that women forego their rights is incorrect on the part of the Law Commission. Adequate laws and protection is available to women under the present legal framework to enforce their rights if pressure / coercion is applied on them.

Further, Ministry of Child and Women have formed National Commission for Women who have been mandated to promote knowledge of laws in the State of India. If the NCW has been ineffective in its mandate, it’s a call for overhaul in the management of NCW instead of passing a new law.

Hence, the answer will be (b) No there are adequate protection in the existing law

 

9. Do you agree that the two-year period of wait for finalizing divorce violates Chirstian women’s right to equality?
   • Yes, it should be made uniform across all marriages
   • This period is sufficient and in-keeping with religious sentiments

The question seems incorrect. The two-year period of wait as per section 10 of the Divorce Act is equally applicable for both man and women. There is no such inequality suffered by women as per the Divorce Act.

Therefore the answer is b) No. This period is sufficient and in-keeping with religious sentiments

 

10. Do you agree that there should be uniform age of consent for marriage across all personal laws and customary practices?
    • Yes
    • No, customary laws locate this age at the attainment of puberty
    • The prevailing system of recognizing ‘voidable’ marriages is sufficient

As per the Child Marriage Restraint Act, 1929, a child is a person who, if a male, has not completed twenty one year of age, and if a female, has not completed eighteen years of age. As per this act marriage between a child is prohibited. Hence, by way of this act, the minimum age of marriage has already been made 18 for women and 21 for men. I do not see use of another code for the same.

Hence, the answer is (c) The prevailing system of recognizing ‘voidable’ marriages is sufficient

 

11. Do you agree that all religious denominations should have the common grounds for divorce?
    • Yes
    • No, cultural differences must be preserved
    • No, but there should be the same grounds for divorce available for men and women within personal law

As mentioned in answer 6 above, persons contracting marriage are competent persons who have attained majority and can take correct decisions for themselves. Moreover The Special Marriage Act, 1954, has common grounds for divorce for both men and women. The parties contracting marriage always have the option to opt for the Special Marriage Act. If they have chosen to get married under their personal law, it’s because they chose. And choice is the tenant of The Constitution of India and is a fundamental right under Article 21 and also article 25 (Freedom to profess religion). Taking away such a personal choice is against the very fabric of our constitution.

The answer is (b) No, cultural differences must be preserved

 

12. Would uniform civil code aid in addressing the problem of denial of maintenance or insufficient maintenance to women upon divorce?
    • Yes
    • No

The whole premise of this question is incorrect as Section 125 of CrPC has provisions to provide maintenance ‘only’ to women, married or divorced. Law commission has if fact chosen overlook the problem of denial of maintenance to men upon divorce. Men even if handicapped, ill or incapable to earn cannot claim maintenance from a healthy / earning wife . Where is the denial of maintenance for women?

Hence the answer is (b) No.

 

13. How can compulsory registration of marriages be implemented better?

Yes, implementation can be improved by way of registration of all marriage halls and compulsory training of the priests. This way the priests / hall owners would be the hands and legs of the government which would promote marriage registration and educate the parties of its benefits. The Government can also promote public knowledge by targeted advertisement campaigns.

 

14. What measures should we take to protect couples who enter into inter-religion and inter-caste marriage?

The following points may go a long way in protecting the couples:

• Reduce the notice period required for registering a marriage and providing the marriage registration document on the spot
  
• During elopement , the police to register the case of abduction of the girl only after proof of age is provided. In case the girl is found a major, and has voluntarily left home, the case should be cancelled and no arrests ought to be made. Protection to be accorded to the couple immediately.

 

15. Would uniform civil code infringe an individual’s right to freedom of religion?
    • Yes
    • No

Yes, UCC will infringe the right to freedom of religion as:

• As per the Article 25-28 of the Constitution of India, the citizens have a fundamental right to ‘Freedom of Religion’. The citizens freedom of religion are
  • Article 25: Freedom of Conscience and free profession of religion
  • Article 26: Freedom to manage religious affairs
  • Article 27: Freedom from payment of taxes for promoting of any particular religion
  • Article 28: Freedom to attend religious instructions
• The Supreme Court of India in Ratilal Panachand Gandhi vs The State Of Bombay, 1954, had stated that, ‘every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such’. The UCC in essence will be restricting these religious practices and beliefs and contrary to the Fundamental Rights enshrined by our constitution. The very tenet of our constitution, the fundamental rights, are being violated

Professing ones religion, with all its customs and practices is the fundamental right of the citizens of India. Marriage, Divorce, Adoption, Guardianship and Child Custody, Maintenance, Succession and Inheritance are an ‘Integral’ part of these customs and practices. All religions have detailed age old customs for all the above subjects. These customs have been built on principles of equity and keeping in mind interaction with other customs. Many of them are intertwined with each other and cannot be modified without rewriting the whole code from scratch and thereby destroying the very fabric of that religion. This will be akin to creating a completely different religion which will be anything which we started with. Therefore, regulating / governing any of the above will directly interfere in these customs and in essence destroy the religion.

 

16. What measures should be taken to sensitize the society towards a common code of codification of personal law?

As discussed in detail above, UCC is not required and all the objectives mentioned above have already been codified under various acts. Hence, the answer to this question is ‘Not Applicable’

 

Let us all Stand Up for a Cause…

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Note: Please feel free to comment and discuss. I will be happy to modify the article if anywhere my understanding of the law is incorrect.

Marital Rape Epidemic in India

Off late there has been a lot of discussion on Marital Rape. Rape is defined as, ‘Any Sexual intercourse without ones consent’. Rape is a deplorable act, within marriage or outside of it. Before we delve deeper into the discussion on rape, lets understand some statistics on it:

As we can see in the chart above whopping over 60% of all report rape cases are frivolous and donot stand the test of trial. Even organizations working for the cause of women have realized the gravity and extent of false accusations of rape. They have stated that over 53% cases filed were found to be false and ‘revenge was the motive of filing false cases’.

Presently in India, one false rape accusation from a woman makes the man a criminal, one accusation destroys his career and one accusation drains out his savings on legal recourse for defending himself. The woman gets a public prosecutor (ie. an attorney appointed by the state to fight the case on her behalf). There is no accountability whatsoever for filing a frivolous complaint by the woman primarily because of –

• Her identity being protected, therefore filing a frivolous complaint has no public backlash. Whereas the accused’s life is destroyed due to her frivolous complaint. No wonder the Indian Courts have stated that the victim of false case should be called a ‘rape case’ survivor
• As a public prosecutor is provided to the woman, there is no financial drain on her resources
• There are hardly any consequences for filing a false rape case.

Let us now understand the problems in the current rape laws:

1. As shown in the data above it has become increasingly easy to level a false complaint for rape.
2. There are no consequences for filing false complaints.
3. The falsely accused person stands to lose everything due to the false case
4. Men who are raped by women cannot file any complaint of rape. Their bodily integrity is not recognised by law

The need of the hour currently is to immediately amend the rape laws to:

1. Make them ‘Gender Neutral’, like in many other western countries where men can also file rape cases. As per a UK study substantial number of men were victims of rape.
2. Protecting the identity of the rape accused until the conviction, to protect him from media trials as there is a high probability that the case against him would be false as shown in the data above
3. Making the identity of the women public post trial, if the case if found to be frivolous, so as to prevent false cases being filed for ulterior motives
4. Compulsorily trying the woman for ‘malicious prosecution’ and ‘perjury’ for filing false complaint, and ruining the life of the ‘Rape Case Survivor’
5. Rehabilitation and compensation of ‘Rape Case Survivors’

Now as the foundation is clear, we can proceed to discussion on Marital Rape. The reasons put forward to pass a marital rape law are as under:

1. There are no Marital Rape Laws in India: This statement is false, as per The Protection of Women from Domestic Violence Act, 2005 (DV Act), section 3, defines ‘Sexual Abuse’ to include any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman. Therefore any woman subjected to sexual abuse such as marital rape can get orders under the DV Act.
2. Over 60% of Indian Women are subjected to Marital Rape: This is a generally quoted statistic that over 60% of Indian Women are subjected to marital rape. The base of this statistic is on a UNFPA report (Violence Against Women in India, 2004) which bases its comments on a report titled, Population Reports – Ending Violence Against Women, 1999 and this report bases its comments from a report Sexual violence within marriage: a case study of rural Uttar Pradesh, 1997. This study interviewed 115 women from a rural village in Uttar Pradesh. About 76 of these women knew nothing about sexuality during marriage. In most cases the first sexual encounter was characterized by male sexual coercion and female submission. This is being classified as Marital Rape epidemic in India.

Let’s understand the concerns in this report:

• The sample size is 115 rural women from Uttar Pradesh in 1997. This is not representative of the population of India and also is inappropriate be used after 20 years.
• The above women had no clue about sex at the time of marriage, therefore their husbands would have persuaded them to consummate the marriage which could have been classified as marital rape. The most logical transaction between the newly wed couple would have been:

“You’ll really enjoy it Mary.”

“Be careful, Patrick. Don’t.” No, you mustn’t.” “Oh. Oh. Not so hard.” “Do it gently. Oh yes, that’s better. Yes, that’s nice. Do it that way.”

3. Gender Neutral Rape and Marital Rape Laws: The proponents of marital rape law shy away on the request to make the law gender neutral. They know that majority of domestic violence across the world is initiated by women.  Making a gender neutral law would bring out all the atrocities faced by men at the hands of women in a domestic setting. Why are the proponents shying away from making a gender neutral law?
4. Strict provisions for False Accusations: Again the proponents are shying away from adding strict provisions for false accusation and consequences for filing a frivolous case. We have seen how grossly misused are the other women specific laws including the rape laws. Why do the proponents shy away from protecting the identity of the rape accused until the conviction to protect him from media trials?
5. Women do not lie about rape: This statement is completely false. As can be seen above majority of the rape cases are found to be frivolous / false. As per women’s organizations over 53% cases filed were found to be false and ‘revenge was the motive of filing false cases’. There have been cases where a 75 year old sick frail old man, who could not even stand straight was booked for raping a young lady in mid-thirties. The slapping the false rape was to merely extract money from the man. Another example of false case can be found here.
6. Jurisprudence Provisions: No discussion ever takes place on the detailed jurisprudence on marital rape laws, safeguards to be employed to protect the falsely accused and evidence requirements. A law without safeguard mechanisms is a bound to be bane on the society.

As we can see above the whole debate on marital rape is hollow as adequate protection is available for women from marital rape. It is the men who need protection from false cases, domestic violence and marital rape which is being conveniently brushed under the carpet.

 Let us all Stand Up for a Cause…

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Chart data Source: NCRB – Frivolous Cases includes: a) Cases compounded or withdrawn, b) cases declared false on account of mistake of fact or of law, c) cases not investigated or in which investigation was refused, d) cases withdrawn by the govt., and e) cases withdrawn by the govt. during investigation.

Maintenance of Spouse

Recently the Mumbai family court rejected the claim of a wife for Maintenance from her husband under section 24 of the Hindu Marriage Act (HMA). As per section 24 of the Hindu Marriage Act:

Maintenance pendente lite and expenses of proceedings. —Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable. Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.

The aim of section 24 of the HMA is to provide the weaker spouse with such fund as may be reasonably necessary for her or his support and for the carriage of the litigation and such an order automatically comes to an end with the termination of the main proceeding in the Court which passes the order. The proceeding being rather summary in nature, the object of the order being ad hoc and the duration of the order being temporary, the approach of the Court to such an order should be ut res magis valeat qnam pereat, to sustain it wherever possible and not to interfere unless intervention is irresistible in law.

Therefore, the aim is to provide the spouse necessary source of income if the spouse does not have an independent income due to which he/she is unable to maintain themselves. This is a beneficial provision so that the proceedings are not jeopardized for want of funds by either spouse. Social Justice is the driving force for this provision.

Is this Provision Gender Neutral?

On the face of it, the provision seems to be gender neutral as either spouse can file for maintenance pending a litigation. As per the Hon’able Bombay High Court in Smt. Kanchan v. Kamalendra, it was help that ‘husband will have to satisfy the Court either due to physical or mental disability, he is handicapped to earn and support his livelihood.’ Therefore, the husband can only claim maintenance if he is able to satisfy his physical / mental disability and not otherwise. No such rider is there for wife for claiming maintenance.

Factors Considered while paying Maintenance:

As per the Hon’able Delhi High Court in Jayant Bhargava v. Priya Bhargava, the Court can take into consideration amongst others, the following factors while guessing income of the spouses:

1. Life style of the spouse;
2. The amount spent at the time of marriage and the manner in which marriage was performed;
3. Destination of honeymoon;
4. Ownership of motor vehicles;
5. Household facilities;
6. Facility of driver, cook and other help;
7. Credit cards;
8. Bank account details;
9. Club Membership;
10. Amount of Insurance Premium paid;
11. Property or properties purchased;
12. Rental income;
13. Amount of rent paid;
14. Amount spent on travel/ holiday;
15. Locality of residence;
16. Number of mobile phones;
17. Qualification of spouse;
18. School(s) where the child or children are studying when parties were residing together;
19. Amount spent on fees and other expenses incurred;
20. Amount spend on extra-curricular activities of children when parties were residing together;
21. Capacity to repay loan

The object of Section 24 of the HMA is not to bring about financial equality between the spouses. Its object is not to slash some amount from the earnings of the husband and hand it over to the wife so that financial disparities between the two are removed. Its object is only to provide means to the spouse who has no independent source of income to contest the matrimonial proceedings.

It is a well-established maxim of Anglo Saxon jurisprudence that no person can be allowed to incapacitate himself. A person who voluntarily incapacitates himself from earning is not entitled to claim maintenance from the other spouse.

The Hon’able Madhya Pradesh High Court in Smt. Mamta Jaiswal vs Rajesh Jaiswal, stated that ‘Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself or herself inspite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente lite alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversory by implementing the provisions of law suitable to their purpose. A lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a ‘dole’ to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her…. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendente lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself… In fact, well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress’

For example in Sweden maintenance is given when a spouse has difficulty in supporting himself or herself for a transitional period following the divorce. Such transitional maintenance provides the needy spouse with opportunities to seek gainful employment or retraining. Section 7 of Chapter 6 (Maintenance) of the Swedish Marriage Code (Aktenskapsbalken) is: “Following a divorce, each spouse shall be responsible for his or her own support. If a contribution towards the maintenance of either spouse is needed for a transitional period, that spouse shall be entitled to receive maintenance payments from the other spouse on the basis of what is reasonable in view of the latter’s ability and other circumstances.”.  Further, Sweden has a concept of personal property and marital property. Property jointly acquired by the spouses is treated as marital property. An exception is there, if only one spouse acquires property, then his/her personal property may be treated as marital property.

For example in Germany: A spouse must provide for their own maintenance after divorce (Sections 1569, 1577 BGB). Maintenance may only be granted for an intermittent period till the other spouse retrains so as to be employable. Further, the networth of the spouses at the time of marriage and after the marriage is calculated. The difference is treated as marital property and property of both spouses is equally divided. An exception is there that if a spouse does not contribute in promoting the economic gain in marital property, he/she is not eligible for anything. Further, adultery and cruelty is given weightage.

In essence, both the developed nations treat the property of husband and wife separately and only joint contributed property as marital property. This comes from the tenet that all able bodied persons should be liable for their own upkeep.

We are seeing that over the years able bodied and educated women elect to stay out of the labour force. Their labour force participation rate has also fallen drastically in the past 10 years. Time has now come to do away with the one sided maintenance laws and move towards equality if the country wants to prosper.

Let us all Stand Up for a Cause…

Do women want to be treated specially or equally? – Do men know the difference?

As per Article 15(3) of the constitution of India a special enabling provision was made towards the upliftment of women – “Nothing in this article shall prevent the State from making any special provision for women and children”, thereby allowing positive for discrimination for women. The reason for insertion of clause 3 to article 15 was that, for centuries, women in India had been socially and economically handicapped. Thereby they were unable to participate in the socio-economic activities of the nation on a footing of equality with their menfolk. This article was to empower them by way of positive discrimination so as to bring about an equality between men and women, gradually reducing the gap between the two sexes.

Let us evaluate if this is true in modern India. The data points that can act as a barometer for concluding whether women are underprivileged could be:

• Life Expectancy of women: Showing how well they are cared for and have access to medical facilities
• Unnatural deaths of women
• Women’s access to higher education
• Women Child Labour
• Homelessness of Women
• Violent Crime against women
• Women casualties in war
• Political representation of women

Let us critically evaluate every parameter above with data comparing how well men and women of India have fared on the same:

Life Expectancy of Women: It is widely believed that women donot have access to medical facilities. If that is the case their life expectancy ought to have been lower as compared to the privileged men of India.

 

Particulars	Male	Female
Life Expectancy	62	65

As we can see above life expectancy of women is higher than men in India.

Unnatural deaths: Even in the case of unnatural deaths women have fared better than men. As per the WHO data, the number of non-natural deaths in the South East Asian Countries (India is a part of this group) is given below:

Year: 2008

(In ‘000)

Reasons for Death	Male	Female
All Causes	79,13,478.64	65,84,985.96
Communicable Diseases	25,25,517.23	2,507,378.56
Cancers	5,68,926.57	5,66,482.90
Cardiovascular diseases	20,10,290.25	16,05,605.64
Injuries	9,91,230.123	5,60,454.64
Intentional Injuries	2,93,042.05	1,27,055.14

 

Women’s access to higher education: India is currently having more number of graduates and post graduate women. The census data below speaks for itself:

Age	All India Female – Male Sex Ratio	Graduate and above Female – Male Sex Ratio
		All India	Rural	Urban
Total	943	955	962	939
20-24		935	936	933
25-29		975	980	967
30-34		984	1001	951
35-59		951	966	924
60+		1033	1036	1027

As can be seen above the all India all age group graduate female to male sex ratio is way higher than the population sex ratio implying that more women as a percentage are sent to colleges than men. The difference is even wider in rural India where even more women as a percentage than men attend colleges as compared to urban India.

Child Labour: The working children are primarily boys who carry the burden of the patriarchal social construct in their roles as protectors/ providers of the family and at that young age have to shoulder the responsibilities of the family. Still India has special schemes for education and development of a girl child and not for a boy child

Homelessness of Women: In the recent census data for 2011 about 1.05 mn men were found to be homeless with over 600 thousand in cities. Around 1.8x times more men were found to be homeless in the urban areas as compared to women. The situation was not very different in the rural areas where more men are homeless as compared to women. The all-India average is at 1.4x times more homeless men.

Homeless Indian Men

Violent Crime against women: Majority of the crimes are against the male population in India; we see that around 74% of all violent crimes are against the male gender. Men are 2.7 times more likely to be murdered and 4.4 times more likely to be seriously harmed than women in India.

Crime[i]	Men	Women
Murder (#)	25,665	9,457
%	73%	27%
Harm Not amounting to murder  (IPC 304/308) (#)	3,362	761
%	82%	18%

Women casualties in war: the male gender is primarily on the receiving end of all wars and lay down their lives for protecting the society. The casualties across all wars is given below–

	Men	Women
Troop Casualties in WW1	3,74,64,404	Nil
Troop Casualties in WW2	2,70,70,026	Nil
Indo-Pakistani War of 1965	6,800	Nil
Indo-Pakistani War of 1971	12,843	Nil
Kargil War	980	Nil

Political representation of women: Women have higher political representation (shown by the number of voters) and it is seen that a dominant group is one which has more political representation as they control the law making in a democracy-

Year	Men (% votes)	Women (% votes)
1999	40.01%	59.99%
2004	41.93%	58.07%
2009	45.8%	54.2%

 

As we see above in all parameters women fare better than men still there is a demand for positive discrimination for them. Is this positive discrimination beneficial for the society. We have more women graduates, still the women are going out of the work force and prefer to stay at home. Men are required to maintain well educated women, which is evident in the laws such as Section 125 of CrPC. The violent crimes committed by women has substantially increased over the past decade; still they are treated with kid gloves in the eyes of law.

Given the above scenario, do we really require any type of special laws favouring women? Are women really underprivileged and donot have opportunities? It’s time to ponder. Let’s Stand Up for a Cause …

I’m blogging for the India Today Woman Summit 2015 #WomenPower activity at BlogAdda.

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(i) Table 3.3 and 3.4 of Crimes in India 2012, NCRB.

Audi Alteram Partem – No one should be condemned unheard

Audi Alteram Partem in simple words means ‘hear the other side’. It is the most fundamental principle of Justice which states that no one ought to be judged without been given an opportunity to be heard. According to Fortescue J.[1], the first hearing in human history was given in the Garden of Eden. His Lordship observed : Even God himself did not pass sentence upon Adam, before he was called upon to make his defense. “Adam”, says God, “Where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldest not eat?”

These days in the social media trials coupled with an over enthusiastic rush for getting “breaking news”, we have forgotten the most fundamental principle of justice which is hearing the other side of the story. This is important to apply the rules relating to reasonableness, good faith, justice, equity and good conscience. Not giving the other side an opportunity to be heard is akin to treating the words of the accuser as gospel truth and amounts to gross miscarriage of justice.

In the recent past, 2 incidents have come to fore where a lady accused an innocent person of molestation/misconduct through social media. One was the Rohtak Incident and the other the Tilak Nagar- Delhi incident. For days, the pictures of the men were flashed on all news channels, the women were termed as brave-hearts and even bravery awards were announced for them. In both such cases, the women were the wrongdoers, had misbehaved with the men and to gain media sympathy had filed frivolous cases.

In both these cases there were just some photos / videos posted by these women on social media sites which did not show the accused conducting the alleged acts. In both these incidents the eyewitnesses had a completely different story to tell. Still…….

The media themselves have not followed its ‘Norms of Journalistic Conduct’, issued by the Press Council of India. These norms state that media reporting should be:

• Accurate and Fair: The media should not report inaccurate baseless, graceless, misleading or distorted material. Their reports need to be backed by irrefutable facts and evidences.
• Pre-Publication Verification: In case of comments against a citizen, the editor should check with due care and attention its factual accuracy apart from other authentic sources
• Caution against defamatory writings: Should not publish anything which is manifestly defamatory or libelous against any individual unless after due care and verification, there is sufficient reason/evidence to believe that it is true and its publication will be for public good.
• Headings not to be sensational/provocative and must justify the matter printed under them

The media is answerable to these false case survivors and should be put to strict proof whether they had followed the most basis norms of journalistic conduct. Yellow Journalism should be strictly dealt with.

Presently as the situation is in India, one accusation from a woman makes the man a criminal, one accusation destroys his career and one accusation drains out his savings on legal recourse for defending himself. The woman gets a public prosecutor (i.e. an attorney appointed by the state to fight the case on her behalf). There is no accountability whatsoever for filing a frivolous complaint by the woman, in turn media treats her a survivor and terms her a brave-heart.

Over the past decade there has been an exponential rise in the frivolous case of molestation filed by women for personal, political gains and settling scores.

Male Suicides and frivolous cases plotted on a graph and scaled to 100 is given below:

We need to nip this issue at the bud before it assumes disproportional magnitude which cannot be dealt with. The false accusers in these cases ought to be dispensed with iron gloves and should be booked under

1. Section 181: Making a false statement on oath to public servant
2. Section 182: Giving false information, with intent to cause public servant to injure another
3. Section 191: Giving False Evidence
4. Section 192: Fabricating False Evidence
5. Section 211: False Charge of an offense
6. Section 499: Defamation

Let us all Stand Up for a Cause to eradicate this social evil of false cases and media trials.

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[1] R.v. University of Cambridge (1723) 1 Str 557

Frivolous Cases includes: a) Cases compounded or withdrawn, b) cases declared false on account of mistake of fact or of law, c) cases not investigated or in which investigation was refused, d) cases withdrawn by the govt., and e) cases withdrawn by the govt. during investigation

Sometimes a “sorry” is not enough… Then what is?

In simple English a sorry is defined as a feeling of sorrow, regret, or penitence. The important word here is, the realization, that the offense one has done is wrong, and due to which one has a feeling of ‘sorrow’. This deep distress or sorrow should engender a feeling of ‘regret’ which ought to lead to ‘repentance’, which is displaying the sorrow and setting things right. ‘Repentance’ involves a commitment to personal change and resolving to live a more responsible and humane life.

The word sorry is a very wide word, encompassing sorrow, regret, repentance and ultimately a change in the offender. We come to a question now, why such a topic? Why is ‘sorry’ not enough? The reason friends is that the process above is not followed. The person condoning the offense ought to condone only after repentance. For an offender to reach the stage of repentance, a feeling of sorrow should emanate from within, which would only happen if the offense is classified as such and treated as an offense.

Are we classifying offenses as offenses in society? I doubt! Let’s take a recent case of a woman raping a minor boy. First this act is not even classified as rape in law. Forceful sexual intercourse by the woman with a minor is termed by media as forceful physical relationship. Playing down the offense reduces it’s intensity and will never evoke the feeling of sorrow in the offender.

Then we come to the laws, forceful sexual intercourse with a male is not even defined as rape. It does not even find a place in the Indian Penal Code section 375. As per IPC, rape can only be committed by a man thereby absolving all women of this gruesome offense. So a woman who commits rape is not even an offender.

Then we have a special law for protecting children from sexual offenses, Protection of Children from Sexual Offences Act (POCSO). In this sexual offenses are defined as penetrative sexual offence and non-penetrative sexual offence. The act of rape by a woman with a minor comes under the definition of non- penetrative sexual offence which has a very low prison term, thereby undermining the whole offense. (For the initiated, do read my article titled, To Rape a Minor or not…, Her Choice!, for a detailed analysis on the incident and Indian laws).

So now we come to the second part of the question, Then What? Then nothing, sorry is sufficient, it is us who have made it ineffective, it is us as a society who treat women offenders with kid gloves, leave them with a slap on the hand. No wonder the situation has spiralled to alarming proportions and serious crimes by women have increased exponentially (refer to my previous article titled ‘The Fairer Criminals’) over the past decade.

Still we propose gender biased laws and cannot truly embrace ‘equality’. If this is what we would do, off course people will ask questions Sometimes a “sorry” is not enough… Then what is? #sorry. (Written for Indiblogger’s #indispire)

Let us all Stand Up for a Cause…

To Rape a Minor or not…, Her Choice!

I just came across this article titled, Woman booked for ‘raping’ son’s teen pal, wherein it is stated that she spiked the minor boy’ss drink and then raped him (oh! Sorry, rape is a wrong word here. She forced the minor boy to keep physical relationship, as definition of rape does not include forceful intercourse with a male). She also made a video recording of the incident and used to threaten the minor boy with the video recording who was just 16 years of age. It is stated that she also threatened the boy with filing of a false rape complaint against him.

Due to the ordeal, the boy lost interest in studies and was unable to mix up in the family, his health deteriorated and his behaviour changed. The news article states that the probe is currently on, no information of arrest of the accused woman is mentioned.

A few questions that come to mind are:

1. Why is the identity of the woman not disclosed by the media? If it were a man, his identity including photo would be all over the media.
2. Why is there no information of arrest of the woman till now? If this was a man he would have been immediately arrested and people would have been on the streets. He could even have been lynched as has happened in the recent past in other parts of India.

This brings us to 2 conclusions:

1. We live in a society where male disposability is the norm. No one is concerned about the ordeal faced by this minor boy in his formative years. The incident is not even termed as rape. It is classified as forced physical relationship thereby undermining it.
2. Why is the perpetrator, who is a woman in this case, treated with kid gloves and not being subjected to ‘EQUAL’ treatment. Does equality only means getting more benefits?

Let us analyse the Indian Law in this aspect. Forced sexual intercourse with a minor comes under 2 statutes, Indian Penal Code and Protection of Children from Sexual Offences Act (POCSO).

Section 375 of the Indian Penal Code which defines rape states:

A man is said to commit “rape” if he-—

penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any of body of such woman or makes her to do so with him or any other person; or

applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions:—

First.—Against her will.

Secondly.—Without her consent.

Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.—With or without her consent, when she is under eighteen years of age.

Seventhly.—When she is unable to communicate consent

The starting of the definition is “A man is said to commit “rape” if he”, therefore only a man can commit a rape. A woman cannot commit such an act as per the IPC. Therefore the acts committed, such as above donot find a place here, hence the woman clearly cannot be tried for rape, which is precisely what she did. Therefore this brings us to a point of ‘Equality’; Article 14 of the Constitution states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”. Does the minor boy have the same level of protection? Is it equality? Is the law gender neutral? You decide!

Now let us analyse the provisions of POCSO. The statute defines 2 types of sexual assaults on minors: a) Penetrative Sexual Assault, and b) Non Penetrative Sexual Assault. Penetrative Sexual Assault is defined under section 3 of the Act:

A person is said to commit “penetrative sexual assault” if—

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person

If we analyse the definition of penetrative sexual assault, it can “ONLY” be committed by a man, a woman cannot commit such an act (every sub-clause starts with a ‘He’). Therefore in this instant case where the minor boy was sexually assaulted by this woman, it is not defined under penetrative sexual assault. Why; again the definition is ‘NOT’ gender neutral and the minor is not ‘EQUALLY’ protected.

Then, what crime is said to be committed by this woman? It is ‘non-penetrative sexual assault’. Yes that is correct it is a minor offense. Let us read the definition of sexual assault as per section 7:

Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.

So in essence, such a gruesome act comes under the definition of non-penetrative sexual assault. Now what is the difference, would be the next question. The difference friends is the punishment.

The punishment for penetrative sexual assault is minimum 7 years extendable to imprisonment for life (Section 4). And the punishment for non-penetrative sexual assault is minimum 3 years extendable to 5 years.

So in simple terms we draft our laws in a gender biased manner so that criminal women are treated with kid gloves and let off without any repercussions. Further, crimes committed by them are not even defined as crimes (rape by women does not come under the IPC). No wonder serious crimes by women have increased exponentially (refer to my previous article titled ‘The Fairer Criminals’) over the past decade.

The 2000 American Association of University Women (AAUW) data indicate that 57.2 percent of all students report a male offender and 42.4 percent a female offender with the Cameron et al. study reporting nearly identical proportions as the 2000 AAUW data (57 percent male offenders vs. 43 percent female offenders).

Schwartz, Barbara K. and Cellini, Henry R have estimated as many as 63% of sex abusers may be female in their paper titled “Female sex offenders”. The sex offender: Corrections, treatment, and legal practice. Kingston, NJ: Civic Research Institute.

If the incidences of female sexual abusers are as high as 63% then why are the rape laws not gender neutral? Is “Equality” not a doctrine enshrined by our constitution?

Let us all Stand Up for a Cause…

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Source: Wikipedia

Note: Do feel free to comment on the article if you have any concerns with the same. Your concerns will be appropriately responded / updated

Taking Cognizance of Third Gender & their Basic Rights

Recently I came across a news article titled, India votes against gay rights for UN employees. The UN had provided certain benefits for same-sex partners of UN staff and a resolution for opposing the benefits was promulgated which was supported by India. And it brings us back to LGBT rights and the infamous section 377 of IPC.

On April 15, 2014, the hon’able Supreme Court of India passed a landmark judgement promoting the rights of the Transgender (TG) community in National Legal Services Authority v. Union of India and others (Writ Petition (Civil) no. 400 of 2012). As per para 113 of the judgement:

Therefore, gender identification becomes very essential component which is required for enjoying civil rights by this community. It is only with this recognition that many rights attached to the sexual recognition as ‘third gender’ would be available to this community more meaningfully viz. the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver’s license, the right to education, employment, health so on.

Further, the para 114 states:

Further, there seems to be no reason why a transgender must be denied of basic human rights which includes Right to life and liberty with dignity, Right to Privacy and freedom of expression, Right to Education and Empowerment, Right against violence, Right against Exploitation and Right against Discrimination. Constitution has fulfilled its duty of providing rights to transgenders. Now it’s time for us to recognize this and to extend and interpret the Constitution in such a manner to ensure a dignified life of transgender people. All this can be achieved if the beginning is made with the recognition that TG as third gender.

Further, the para 115 states:

 In order to translate the aforesaid rights of TGs into reality, it becomes imperative to first assign them their proper ‘sex’. As is stated earlier, at the time of birth of a child itself, sex is assigned. However, it is either male or female. In the process, the society as well as law, has completely ignored the basic human right of TGs to give them their appropriate sex categorization. Up to now, they have either been treated as male or female. This is not only improper as it is far from truth, but indignified to these TGs and violates their human rights.

Having this backdrop in mind, the hon’able Supreme Court ordered that TGs be recognized as a third gender for the purpose of safeguarding their rights under Part III of our Constitution.

Let us now come to the question of marriage of TGs. Let’s analyse the marriage acts, for instance, the Special Marriage Act 1954 provides condition of a valid marriage in section 4 (c):

the male has completed the age of twenty-one years and the female the age of eighteen years.

The words used are specifically ‘male’ and ‘female’. There is no mention of TGs. Therefore only a male can marry a female as of date, though we do have a third gender – TGs. For the TGs to get the right to marry or enter into same-sex ‘partnerships’, the marriage acts needs to be amended or a new statute may need to be enacted giving these partnerships legal recognition. This would atleast ensure that the TGs can enjoy most of their essential civil rights.

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Do feel free to comment on the article if you have any concerns with the same. Your concerns will be appropriately responded / updated

Benefits of Legalizing Prostitution

Note: For Mature Audiences Only.

No Automatic Arrest in 498A Complaints

In the recent landmark judgement by the Apex Court, it was directed that there should not be any automatic arrest for cases under section 498A of the IPC until provisions of Section 41 of Cr.PC are satisfied.

Section 498A of the IPC was inserted in the code in 1983 with a backdrop to curb torture of married women by the in-laws for dowry. As per the Supreme Court in B.S. Joshi vs. State of Haryana, the object of introducing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry.

Though the backdrop of the provision was to prevent the menace of dowry there were many instances where a complaint was filed with oblique motives. The acquittal of the accused does not wipe out the ignomy suffered during the trial period. By the misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not assassins’ weapon, observed the Supreme Court in Sushil Kumar Sharma vs Union Of India.

There have been many articles stating that the recent SC judgement has weakened the anti-dowry laws. Certain reasons for such a statement were:

1. Complainant required to negotiate with perpetrator: It is said that the complainant is forced to negotiate with the perpetrators. The incidences of frivolous cases has increased over the decade. In 2001 ‘one’ frivolous 498A case was filed per 53 minutes which has increased to ‘one’ frivolous case in 33 minutes till 2010[i]. This is a whooping 62% jump in 10 years. Due to such high incidences of frivolous cases, there could be a situation where in case of a preliminary inquiry and no merit being found in the case, a reconciliation may be promoted to save the marriage.
2. Low conviction rate does not imply misuse: The statement on the face sounds true, but to correctly substantiate, we must see the incidents of frivolous cases, which is as high as one case in 33 minutes. As a percentage, frivolous cases are in the range of 17% – 22%. The chart below on 498A incidents shows a clear picture of high frivolous cases.

Let us understand what does this judgement talks about. The judgement states that there should not be any mechanical arrest in 498A cases. The police should investigate and if there is a prima facie case, should they proceed to arrest. In case of a mechanical arrest, which was prevalent earlier, but just an accusation by the wife, the whole family of the husband used to be behind bars. There have been cases where the entire family of the husband such as his mother, sisters, bhabhis, other female relatives, ailing parents were booked under this section and were arrested. Even people who came to help the victim were booked. There have been cases where a dog’s name has been put in the complaint and even a 2 month old baby got an anticipatory bail under this section.

Looking at the above extent of misuse the hon’able SC has given directions to implement the CrPC section 41 in case of arrest for crimes where punishment is under 7 years (such crimes include 498A crimes).

Prior to arrest,:

1. Police Officeris satisfied that such arrest is necessary –
   1. To prevent such person from committing any further offense ;
   2. For proper investigation of the offense;
   3. To prevent such person from causing the evidence of the offense to disappear or tampering with such evidence in any manner;
   4. To prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer;
   5. As unless such person is arrested, his presence in the Court whenever required cannot be ensured
2. The arresting officer also needs toensure:
   1. Why arrest?
   2. Is it really required?
   3. What purpose it will serve?
   4. What object it will achieve?

The constitution of India, provides the most cherished guarantee in the world as per article 21, Protection of Life and Personal Liberty. This fundamental right states that personal liberty of a citizen will not be taken away without the process established by law. The process of law for arrests is given in Section 41 of CrPC, which is as discussed above.

I fail to understand how does arresting a person as per this process has weakened the anti-dowry laws.

Let us all Stand Up for a Cause…

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[i] NCRB: Frivolous cases include: a) cases withdrawn by the govt. during investigation, b) cases withdrawn by the govt, c) cases compounded or withdrawn, d) cases not investigated or in which investigation was refused, e) cases declared false on account of mistake of fact or of law

Note: Do feel free to comment on the article. Your views will be appropriately responded and/or the article will be suitably modified.