Even amid all the darkness of 2020, there were instances that helped us break the shackles of suppression of patriarchy. There came certain judgments that were women centric and strived to give women equal rights. Let us look at some of these:
1. Equal rights of daughters in coparcenary property
In the landmark judgment of Vineeta Sharma v. Rakesh Sharma, a three-judge bench of the Supreme Court held that daughters and sons have equal coparcenary rights in a Hindu undivided family (HUF) property.
In its decision, the Supreme Court clarified that coparcenary rights are acquired by daughters on their birth; and that fathers need not have been alive when the 2005 amendment to the Hindu Succession Act 1956 was passed.
This means that when a daughter is born, she also steps into the coparcenary as that of a son. However, a daughter born before can claim these rights only with effect from the date of the amendment, i.e., September 9, 2005, with savings of past transactions as provided in the proviso to Section 6(1) read with Section 6(5).
2. Breaking the glass ceiling in the Indian Army
As a measure to pave the way for gender equality in defence services, the Supreme Court in The Secretary, Ministry of Defense v. Babita Puniya and Ors, ordered the government to grant permanent commission to women officers in the Army’s non combat support units on par with their male counterparts should they wish to continue with it after completing their short-service commission.
The court said that all women army officers are eligible to be appointed in commanding roles and are also entitled to permanent commissions. It said the submissions made by the Ministry of Defense, “are based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women. Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women.”
The statement added the army is committed to providing equal opportunities to all personnel including women officers to serve the country.
3. Reproductive Choice of Woman Is a Fundamental Right
A Division Bench of the Rajasthan High Court has upheld the notion that the reproductive choice of a woman is a fundamental right encompassed under the umbrella of Article 21 of the Constitution of India. This was after a petition seeking permission for termination of pregnancy by a minor girl who was sexually assaulted whereby she conceived.
The medical board was of the opinion that there was no serious threat to the mother if the pregnancy is terminated. However, the Single Judge Bench of the High Court (Rajasthan) held that the fetus in the womb has the right to life as enriched under Article 21 of the Constitution of India.
When the matter was appealed to the division bench, the bench set aside the impugned judgment and held, “There is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on the use of contraceptive methods.”
4. Excluding Married Daughter From Seeking Benefit Of Compassionate Appointment Is Unconstitutional
Observing that marriage does not determine the continuance of a relationship between parent and child, the Karnataka High Court held that excluding a married daughter from consideration for appointment on compassionate grounds is unconstitutional.
The Court passed the ruling while allowing a writ petition moved by a daughter against the denial of appointment on compassionate grounds to her deceased father's job on account of her being a "married" woman.
The court held, “Marriage does not determine the continuance of the relationship of a child with the parent, whether son or a daughter. Son continues to be a son both before and after marriage and a daughter also should continue to be a daughter both before and after marriage. This relationship does not get affected by the fact of marriage, as marriage does not sever the relationship of the daughter with the parent.”
5. Prostitution is not an offence; An adult woman has the right to choose her vocation
Observing that prostitution was not a criminal offence under the law, the Bombay High Court held that prostitution is not an offence under Immoral Traffic (Prevention) Act, 1956.
As per the Act, the sexual exploitation or abuse of a person for commercial purposes is punishable. The court was hearing a plea by three women who were detained and later moved to a shelter home after they were arrested during a raid.
The court held that an adult woman has the fundamental right to choose her profession and cannot be forced to live in a correction home. The court said that prostitution, by itself, is neither a criminal offence under the law.
6. Two Finger Test violates the victim’s right to privacy, dignity and integrity
Gujarat High Court while analysing the present set of appeals stated that the two-finger test on a rape victim violates her right to privacy, and asked the government to provide better medical procedures to confirm sexual assault.
The court observed that the two-finger test (also called ‘PV’ – Per Vaginal), conducted during the course of medical examination in which the doctor puts two fingers inside a woman’s vagina to examine whether the victim was sexually active or not is one of the most unscientific and intrusive methods of physical examination. Two-finger test has no forensic value in the context of sexual assault.
The court further held that “Whether a survivor is habituated to sexual intercourse before the assault has absolutely no bearing on whether she consented when the rape occurred. Section 155 of the Indian Evidence Act, does not allow a rape victim’s credibility to be compromised on the ground that she is “of generally immoral character. The two finger test is unconstitutional. It violates the right of the victim to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, give rise to a presumption of consent.”
7. Sexual Harassment At Workplace Is An Affront to Women’s Fundamental Rights
In Punjab and Sind Bank & Ors v Mrs Durgesh Kuwar, the apex court while rescinding a transfer order of a woman bank employee who had alleged sexual harassment by a senior colleague held that, “sexual harassment at work violates women’s fundamental right to equality, their right to live with dignity and to practise any profession.”
The court held that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted to provide protection against sexual harassment of women at the workplace as well as for prevention and redressal of such complaints.
Sexual harassment at the workplace is an "affront" to the fundamental rights of a woman to equality, her right to live with dignity and to practice any profession or carry out any occupation, the Supreme Court has said.
(Edited by Saheli Sen Gupta)