Impact of Judgements of Supreme Court of India and High Courts on gender justice, women empowerment and family laws: A critical analysis

November 30, 2023

INTRODUCTION

This paper on family law endeavors to recapitulate the recent developments in the field of Hindu and Muslim Law with special emphasis on gender justice and women empowerment in view of the various judgments of the Hon’ble Supreme Court of India and the High Courts.

Over a period of time, the changing demographics, world order, technology and the evolving laws in India have resulted in rising need of women empowerment, changes in scope of their rights and gender justice. The Supreme Court too has widened the scope and interpreted the family laws, thereby further strengthening the condition and status of women in the society. The Hon’ble Supreme Court and the High Courts have now and then passed various judgments in this area which had a very deep and long lasting impact in defining the rights of women across all the sects and religions.

The Judgments pertaining to rights of women as per Hindu Marriage Act, 1955; the Hindu Succession Act, 1956 and the consistent amendments to the Christian Marriage and Divorce Act which has also been amended in 2005 have enabled women from different communities to obtain legal justice to a considerable extent, however no improvement or amendment to the Shariat Application Act, 1937[1] has taken place till date. Muslim women continue to suffer due to illegal practices like halala, polygamy, custody of children and inheritance despite appropriate Quranic injunctions.

“There is no doubt that it is around the family and the home that all the greatest virtues, the most dominating virtues of human, are created, strengthened and maintained” – Wiston S. Churchill

Family is the first and foremost fundamental unit of the society, yet the most powerful one owing to ‘blood is thicker than water’ concept. If family is happy, individual is happy. When family prospers, the nation prospers. But, if family life is disturbed and be distressful, it affects the prospect of the nation as disturbed family only begets ‘problem child’ who will create every sorts of problem in the society and thereby endanger the peace, progress and prosperity of the nation. That’s why, the courts in India prefer resolving the family issues rather than adjudicating it. Hindus and Muslims constitute over ninety percent of the population of India. It is widely said that Personal laws of various religions in India have contributed to and perpetuated gender inequality.

“When you look at your life, the greatest happiness are family happiness” – Joyce brothers

In recent times, many families across the world are crumbling and tearing apart because of degradation in family values and other reasons like unnecessary arguments among family members, disagreement among spouses & parents, failure to manage and balance home & work life, miscommunication between family members, failure to properly organize and manage the chores of family, illness (both mental and physical) of any family member, hectic schedule etc. The aforesaid problems and issues in the family result in unnecessary fights and altercation among family members. Spouses start living separately, which leads to stunted and truncated growth of children, endowing more problem child to the society.

With the rapid rise of urbanization & Industrialization resulting in the emergence of nuclear families, resultantly floodgates of litigations have opened up between spouses & among other family members. Due to changing demographics, socioeconomic conditions, technical and political impact, laws of the land for women empowerment, and recognition of women rights in the property of the parents, more initiatives are required to be taken, both by Legislative and the Executive, apart from the role enacted by the Judiciary. The role of courts invariably becomes highly crucial and the courts in India prefer resolving these issues rather than adjudicating it.

Indian judiciary has significantly contributed to restore peace, harmony and equality especially gender equality in families in India particularly in the field of marriage, divorce, guardianship and custody of children, maintenance, inheritance of property etc. In recent years, there has been a progressive interpretation of laws in order to promote gender justice and women empowerment. Courts in India have definitely given a broader interpretation to statutes, thereby emphasizing the spirit of gender equality and social justice.

An attempt has been made in the present article to analyze the recent developments and decisions in the following areas of law:

Women’s right to Inheritance
Scope and interpretation of Marriages under various laws
Matrimonial remedies under different family laws
Right to equality and gender justice
Muslim women protection of rights on divorce and the dissolution of Muslim marriages acts

Women’s Right to Inheritance:

The rights to inheritance are governed by the respective laws according to the religion and customary rights:

Hindu Laws
Muslim Laws
Parsi Laws
Other family laws
Customary rights

In “Arunachala Gounter (D) by LRS Ponnusamy”[2], the Hon’ble Supreme Court of India gave primacy to the right of the sole daughter to inherit the self-acquired property of her father, in the absence of any other legal heir having inheritable rights before commencement of the Hindu Succession Act, 1956 in comparison to the father’s brother’s son by survivorship.

In a recent path-breaking and landmark judgment, titled as “Vineeta Sharma v/s Rakesh Sharma”[3] by a bench consisting of three judges”, the Supreme Court of India has ruled that Hindu women are entitled to coparcenary rights from the moment they are born meaning thereby that daughters have equal rights in ancestral property, even if the father died before the Hindu Succession (Amendment) Act, 2005.

Further, in “Arshnoor Singh v/s Harpal Kaur & Ors.”[4], the Supreme Court of India reiterated the law already laid down by the Supreme Court in Shyam Narayan Prasad v/s Krishna Prasad[5], wherein it was held that the property inherited by a male Hindu from his father, father’s father or father’s father’s father is an ancestral property. It was further held that essential features of ancestral property, according to mitakshara law, is that the sons, grandsons, and great grandsons of the person who inherit it, acquire an interest and the rights attached to such property at the moment of their birth.

In a path-breaking and landmark case titled as “Mrs. Sujata Sharma v/s Sh. Manu Gupta”[6], Hon’ble Delhi High Court while taking the 2005 reforms in the Hindu Succession Act to its logical conclusion, held that the Hindu Woman governed by Mitakshara school can be ‘karta’ of a family, thereby recognizing the equal status to a woman.

In “Karunanidhi Vs Seetharana Naidu & Ors”[7], the Supreme Court of India held that once a heir becomes absolute owner of property by virtue of a Will, he/she is entitled to alienate such property by any mode permissible in law to anyone.

The question that whether the effect of Hindu Succession Amendment Act, 2005 would be retrospective or prospective in nature is in dispute for a long time. The Hon’ble Apex court in “Ganduri Koteshwaramma & Anr. Vs. Chakiri Yanadi & Anr”[8] held that the court always has power to revise the preliminary decree or pass another preliminary decree if the situation in the changed circumstances so demand. A suit for partition continues after the passing of preliminary decree and the proceedings in the suit get extinguished only on passing of the final decree. Hence, it could be safely concluded that a suit for partition was filed before 2005, but was pending before the Court for its final decree. Then in such suits, the daughter’s right to the property is also created by the virtue of her being alive after the amendment was enforced.

The Hon’ble Apex Court in the case “Danamma @Suman Surpur v. Amar Singh”[9] held that;

“…the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12-2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.”

However the Hon’ble court in “Ms. Vaishali Satish Ganorkar & Anr. v. Mr. Satish Keshaorao Ganorkar & Ors”[10] held that the act is prospective in nature. It held that:

“Reading the operative part of the section alongside the sub clause (a) shows that the daughter “shall become” a coparcener by virtue of her birth in a coparcenery property. This future tense is consistent with the operative words “on and from”. Hence on and from 9 September 2005 a daughter shall become a coparcener in a coparcenery property by birth.”

Further the full Judge bench of the same court in “Shri Badrinarayan Shankar Bhandari & Ors. v. Ompraskash Shankar”[11] followed the decision in Ganduri Koteshwaramma’s case (supra) while holding that the act is retroactive in nature. It held that;

“Two conditions necessary for applicability of Amended Section 6(1) are:

(i) The daughter of the coparcener (daughter claiming benefit of amended Section 6) should be alive on the date of amendment coming into force;

(ii) The property in question must be available on the date of the commencement of the Act as coparcenary property.”

The Court held that the amendment is retroactive in nature and will be applicable to all those daughters who were born prior and after 17th June 1956 but before 9th September 2005, conditioned to only one fact that at the time of the commencement of the 2005 Amendment, the daughter was alive.

In “Dincy Devassy v/s United India Insurance Company & Ors.”[12], High Court of Delhi, while interpreting Section 6 of Hindu Widows Remarriage Act, also held that simply because a woman has now remarried, her claim to property in her previous matrimonial home does not abate or lessen.

Right to Equality and Gender Justice: Over a period of years, Indian courts have repeatedly struck down discriminatory laws and practices that perpetuated gender inequalities in India. In “Vishaka v. State of Rajasthan”[13] brought to the attention of the Supreme Court of India, “the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places.” The Hon’ble Apex Court recognized sexual harassment at the workplace as a violation of a woman’s fundamental rights and used its power under Article 32 for enforcement of the fundamental rights of the women thereby laying down specific guidelines for its prevention and redressal in the case.

This landmark judgment proved to be a milestone in protecting working women from sexual harassment and to make their fundamental rights meaningful. It paved the way for enactment of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Act came into force from 9 December 2013 and superseded the Vishaka Guidelines for Prevention of Sexual Harassment (POSH). Apart from the guidelines the Act also provides safeguards against false or malicious charges. The Act defines sexual harassment at the work place and creates a mechanism and framework for redressal of complaints.

Recently the High court of Delhi took suo moto cognizance of in W.P.(C) 10542/2023 [14] of an alleged sexual assault in South Delhi’s Hauz Khas, when Hon’ble Mr. Justice Subramonium Prasad brought to the notice of the Hon’ble Court, a news item published in the Times of India in respect of a three year old girl child who was sexually assaulted by a school cleaner in South Delhi.

Matrimonial Remedies under different Family Laws in India: Marriages in Islam are considered a civil contract and can be put to en end by various modes[15]:

By the will of the Husband (Talaq)
By an agreement between husband and wife for a consideration paid or to be paid:
1. At instance of Wife (Khula)
1. Mutual consent (Mubarat)
By a judicial decree at the instance of Husband or wife (Faskh)

While the Apex Court in “Shamim Ara Vs. State of U.P.”[16] had already declared that triple talaq was held as just one talaq, and thereby revocable, however the unlawful practice of Triple Talaq was still continuing in India. Further already 23 countries worldwide had already banned Triple Talaq, including its neighbours i.e. Pakistan, Bangladesh and Sri Lanka[17].

Various cases were continuously being reported in India, of husbands whereby they had sent messages or letters or voice notes or even pictures to utter talaq thrice and divorce their wives. The cases were brought before the courts to solve this matter. TheBharatiya Muslim Mahila Andolan report[18] on the issue of deteriorating condition of Muslim women in the Indian society and the prevalent practices like Nikah Halala, Triple Talaq and Polygamy showcases the plight of Muslim women who were rendered homeless overnight, and left destitute with no help for the children, only due to the gross misuse of Islamic Law by Muslim men. According to a national study, “Seeking Justice Within Family”[19], out of a sample of 4,710 women, 525 have been divorced. Of these 525 women, majority i.e. 346 women were divorced orally, while 40 women were sent a letter of divorce by their husbands, 18 women were divorced on phone, one via SMS, three through email and 117 through other methods. 78% of these women had been divorced unilaterally. In the same study, 92% respondents had called for a legal ban on the practice of oral, unilateral or triple divorce by Muslim men. It is reported that more than 1 million Indian Muslim women had signed a petition to end the Triple Talaq practice[20].

In the year 2017, the Supreme Court of India in a landmark case titled as “Shayara Bano Vs Union of India & Ors”[21] has declared unconstitutional the prevalent mode of divorce (Talaq-ul-biddat), popularly known as “Triple Talaq” in Muslim law, thereby protecting the rights of Muslim women from instant divorce by prohibiting this practice of divorce by uttering three times “Talaq” word by their husband while it did not pronounce a judgment on halala and polygamy which had also been challenged in the court. The Apex Court announced its decision declaring the practice of Triple Talaq, to be unconstitutional by a majority of three to two.

The judgment by Justice Khehar and Nazeer held that if religious family law is permitted to be challenged on Constitutional grounds, it would open up a plethora of challenges to family laws for vested interests and intended not to interfere in the religious practice of the Muslims and only the Parliament can regulate the matter in this regard. It specifically held that “Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion.”

This Judgment can thus be criticized for drawing distinction between ‘followers of the faith’ and ‘rationalists of the same faith’. The category ‘rationalists of the same faith’ is held to be devoid of faith whose opinion should not be taken into account when deciding matters of religious practice. It can further be criticized for denying the legitimacy of Muslim women’s bodies as representatives of their faith and denying them to have a role in the interpretation of Muslim family laws, while giving official recognition to only the male dominated bodies such as AIMPLB and Islamic traditions such as Barelvis and Deobandis.

The second judgment by Justice Nariman and Justice Lalit held that those religious family laws on which the state has legislated upon and hence given a statutory form is subject to constitutional scrutiny, however the same has its own limitations and implementation challenges in terms of religious barriers of existing religious family laws.

The third judgment by Justice Kurian Joseph invalidated the practice, solely on religious ground while holding that a Talaq by a Muslim husband can be valid only if it complies with Quranic injunctions. This judgment however in turn validates practices which may be unjust but have religious sanction.

Due to differences in the opinions and reasoning in its judgment, it cannot however be concluded that the Apex Court has declared ‘Triple Talaq’ to be unconstitutional. While there is no denying the fact that Triple Talaq goes against the spirit of the Constitution being unjust and inhuman, however a more thoughtful approach was required with respect to deciding the issue of its constitutional validity. Talaq-e-ahsan and talaq-e-hasan have not been touched by the court and they remain in place as it is, thereby allowing the Muslim men to retain their right to divorce their wives by pronouncing ‘Talaq’ over a period of a few months while they being unilateral in nature, also do not fulfill the standards of gender equality. Further the judgment does not provide a clear road map for dealing with other discriminatory aspects in the personal law system in the future. The outcome of judgment for Muslim women in India has been a mixed one. According to some, the divorce rate among Muslims after the Triple Talaq Act has come down by about 96 percent[22]. While some sections of Muslim women have welcomed the decision and believe it to have made a profound impact on the lives of Muslim women and children, others have criticized it to be non-effective[23].

This judgment further led Union of India to pass the Muslim women (protection of rights on marriage) Act, 2019 to protect the rights of married Muslim women and to prohibit divorce by pronouncement of Talaq by Muslim husband by uttering ‘Talaq’ thrice. Not only that pronouncing Talaq by Muslim husband as aforesaid has been made a cognizable and punishable offence, if proved, he can be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. There has been an attempt to restrict unilateral divorce among Muslim community similar to the Hindu community wherein the grounds of divorce as enumerated under Section 13 of the Hindu Marriage Act are majorly circumstances of cruelty, adultery, conversion of any other religion, desertion, and renouncement of world, or by consent of both the spouses.

The Muslim women (protection of rights on marriage) Act, 2019 has criminalized a civil wrong, and the criminalization is in itself void ab-initio because the Act has already made the very pronouncement of ‘Talaq’ as void and illegal in the first place. Moreover the issues of providing a subsistence allowance to wife while the husband is still in jail, and further the distorted husband-wife relationship after the Husband is sent to jail must be addressed. The validity of the Act has been challenged before various Courts and the decision is pending.

Further the Act has its own set of challenges in terms of implementation and enforcement. Recent surveys show that only about half of the Muslim women are aware of the act and even those who are familiar with the Act do not know the detailed implications of the Act, and till date divorces are also taking place on the basis of ‘agreement’ outside the purview of family courts. According to a report[24] by BBC, in view of the recent developments in this area, not only the cases of desertion by the husbands of Muslim women have gone up but more and more husbands are now asking their wives to seek “Khula”. While the judgment and the Act are steps in the right direction, however there is no denying the fact that a lot still needs to be done in order to secure basic rights and justice for Indian Muslim women.

The High Court of Jammu and Kashmir and Ladakh at Srinagar in “Showkat Hussain Vs. Naziya Jeelani”[25] has held that the judgment of Shayara Bano (Supra) has retrospective application and can be invoked to declare null and void the Triple Talaq pronounced before Shayara Bano’s judgment. Along the same lines, the High Court of Andhra Pradesh in “Shaik Jareena v. Shaik Dariyavali”[26] has held that;

“A perusal of Shayara Banu’s case (2017) (supra 1) shows that there is no indication in this judgment that the principles laid down therein would operate prospectively. Therefore, by virtue of the principle laid down in P.V.George’s case (2007) (supra 2), the ratio in Shayara Banu’s case (supra 1) should be understood as one that is retrospective in nature.”

The Kerala High Court Double Bench of HMJ A. Muhamed Mustaque & HMJ C.S. DIAS recently in case “XXXXX Vs. XXXXX”[27] has held that Islamic law recognizes Muslim woman’s right to demand divorce and husband’s consent is not needed. The Court has dealt with the true procedure to be followed for divorce at the instance of the wife (khula). It further recognized a Muslim woman’s rights in “Khula” (a procedure through which a woman can give divorce to her husband in Islam, by returning the dower) and the issue raised by the appellants of a Muslim woman having a right to demand divorce of her own will, but no absolute right to pronounce ‘khula’ like the right of her counterpart to pronounce ‘talaq’ was also dealt with in detail and settled by the Hon’ble Court. The court while assuming the argument of the review petitioner to be good that there exists no mechanism in the country to recognize the termination of marriage at the instance of the wife when the husband refuses to give consent, held that the court can simply hold that ‘khula’ can be invoked without the conjunction of the husband.

In “Munavvar – ul – Islam v/s Rishu Arora @ Rakhsar”[28], High Court of Delhi while interpreting Section 2(ii) 2(viii)(a) and 2(ix) of Dissolution of Muslim Marriage Act, 1939 and second proviso to Section 4 of the said Act, held that a non-Muslim woman who converts to Islam prior to marriage but reconverts to her original faith can dissolve the marriage on the ground of apostasy.

The Supreme Court of India in “Krishna Veni Nagam Vs Harish Nagam”[29], involving issue of transfer of matrimonial case, has issued some guidelines and made video conferencing mandatory. However in “Santhini Vs Vijaya Venketesh (2017)”[30], the three judges bench of the Supreme Court overruled the Krishna Veni judgment (Supra) on certain aspects and held that matrimonial dispute must be conducted in camera, however video conferencing can be provided only on joint application of the party, where settlement between them has failed.

The Marriage Laws (Amendment) Bill, 1976 [31] was introduced in Rajya Sabha to amend the Hindu Marriage Act 1955 and the Special Marriage Act, 1954. The main objective behind the bill was:

(1) To liberalise the provisions relating to divorce

(2) to enable expeditious disposal of proceedings under the Act; and

(3) to remove certain anomalies and handicaps that have come to light after the passing of the Acts

The Law Commission of India in late 1970s had recommended the amendment of Hindu Marriage Act in order to insert irretrievable breakdown of marriage as a ground for divorce. After about 30 years, again in year 2009 it recommended that irretrievable breakdown of marriage should be incorporated as a ground for granting divorce in light of several Supreme Court judgments. Further, the Marriage Laws (Amendment) Bill, 2010 was also subsequently introduced and passed in the Rajya Sabha which sought an amendment to the Act to incorporate irretrievable breakdown of marriage as a ground for divorce. However, the Bill lapsed as the Parliament’s session also lapsed and was thereafter never introduced.

The case “Rupa Ashok Hurra v/s Ashok Hurra And Anr.(2002)”[32] involved the issue of validity regarding the decree of a divorce which was followed by the withdrawal of consent by Rupa Ashok Hurra while she had given her consent for mutual divorce earlier and it was a case of irretrievable breakdown of marriage. The court observed that second marriage during the pendency of proceeding is a criminal offence under Section 494 of the IPC, 1860 and ordered a sum of rupees ten lakh to be paid by the appellant (Ashok Hurra) to the respondent, Rupa Ashok Hurra.

Further in the landmark judgment Rupa Ashok (Supra) wherein almost all the previous judgments involving the powers of the Supreme Court with respect to its jurisdiction and issuance of writ in such cases have been elaborately discussed, the Supreme Court has decided the very important aspect of providing “Complete Justice” to the individual when the review petition against the final judgment has also been dismissed by the Supreme Court. In a separate judgment on the same case by Justice U.C. Banerjee [33], it has been held that in order to prevent the misuse of its process, to settle the question of bias against the presiding judge, and prevent any incident of miscarriage of justice and manifest illegality, the Supreme Court could reconsider its judgment within the limits of its power.

It was held that in such a case when the review petition was already dismissed, the parties cannot approach the Supreme Court under Article 32, but the Court can hear the plea under article 142 of the constitution. It was further held that the apex court would not issue a writ under Article 32 to a High Court because the High Courts are not constituted as inferior courts in the constitutional scheme of India and the jurisdiction and orders of a High Court are liable to be corrected by the Supreme Court in its appellate jurisdiction under Articles 132[3], 133[4] and 134[5] as well as under Article 136[6] of the Constitution. It was specifically held that the article 32 can be invoked only for the purpose of enforcing the fundamental rights conferred in Part III and further that it is settled law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III. The scope of the petition must be limited and it can be recommended for hearing only if:

It has been established that there has been a violation of the principles of natural justice, and/ or
The petitioner was not heard by the court when passing the judgment.

In view of the above, the Supreme Court invoked its special and extraordinary discretion under article 142 of the constitution, which gives the wide and capacious power to the Supreme Court to do ‘complete justice’ in such cases and the concept of ‘Curative Petition’ was thus born. Over a period of years, some of the curative petitions have also been allowed by the Supreme Court include “National Commission for Women v Bhaskar Lal Sharma”[34] and “Navneet Kaur v State of NCT of Delhi”[35].

Recently, the Apex court in “Shilpa Sailesh vs Varun Sreenivasan”[36] unanimously cautioned that grant of divorce by the Supreme Court on the ground of irretrievable breakdown of marriage was “not a matter of right, but a discretion which is to be exercised with great care and caution”. The Apex Court further held that its extraordinary discretion under Article 142 of the Constitution can be used to not only do “complete justice” for couples trapped in bitter marriages by granting them divorce by mutual consent, thus sparing them the “misery” of waiting for six to 18 months for a local court to declare the annulment final, but also to quash and set aside other proceedings and orders, including criminal proceedings.

The Supreme Court in “Sh. Rakesh Raman Vs. Smt. Kavita”[37] has held that irretrievably broken down marriage can be read as the ground of “cruelty” under Section 13 (1)(ia) of the Hindu Marriage Act for dissolution of marriage.

Further, the Hon’ble Apex Court in “Rajib Kumar Roy Vs. Sushmita Saha”[38] held that keeping parties together despite irretrievable breakdown of marriage amounts to cruelty on both sides. The aforesaid judgment was also followed by the division bench of Kerala High Court in Ramanadhan @ Ramanathan Vs. Raji[39] wherein it has been held that that retaining the marriage itself is a cruelty to both the parties and no meaningful purpose would be served if marriage is not dissolved.

In “Roopa Soni vs. Kamalnarayan Soni”[40] on a petition filed by the estranged wife seeking divorce, the Supreme Court said that the word ‘cruelty’ under Section 13(1)(ia) of the Hindu Marriage Act gives wide discretion to Courts ‘to apply it liberally and contextually’. The Apex court held that;

“We would like to emphasize that an element of subjectivity has to be applied albeit, what constitutes cruelty is objective. Therefore, what is cruelty for a woman in a given case may not be cruelty for a man, and a relatively more elastic and broad approach is required when we examine a case in which a wife seeks divorce. Section 13(1) of the Act of 1955 sets contours and rigours for grant of divorce at the instance of both the parties. Historically, the law of divorce was predominantly built on a conservative canvas based on the fault theory. Preservation of marital sanctity from a societal perspective was considered a prevailing factor. With the adoption of a libertarian attitude, the grounds for separation or dissolution of marriage have been construed with latitudinarianism.”

In the case “Badshah vs Sou. Urmila Badshah Godse & Anr.”[41], the Apex Court distinguished the case of “Dwarika Prasad Satpathy vs. Bidyut Prava Dixit & Anr.” to hold that;

“No doubt, it is not a case of second marriage but deals with standard of proof under Section 125 Cr.P.C. by the applicant to prove her marriage with the respondent and was not a case of second marriage. However, at the same time, this reflects the approach which is to be adopted while considering the cases of maintenance under Section 125 Cr.P.C. which proceedings are in the nature of summary proceedings.”

The court further considered the judgment “Chanmuniya vs. Virendra Kumar Singh Kushwaha & Anr.” and observed that the Court has held that the term “wife” occurring in Section 125, Cr.P.C. is to be given very wide interpretation to include even those cases where a man and woman have been living together as husband and wife for reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C.

The Hon’ble Apex Court held that in case a man who marries for the second time while his first marriage subsists or lives in with another woman as husband for a long time without getting divorced from the first wife, and suppresses the said factum of first marriage from the second wife or the woman with whom he has been living for long as a husband, then in that eventuality, the victim i.e. the second wife or the woman with whom the man is in a live-in relationship as a husband for a long time, is entitled for maintenance under section 125 Cr.P.C. The court held that at least for the purpose of Section 125 Cr.P.C., the second wife would be treated as the wife of the petitioner, going by the spirit of the two aforesaid judgments. The court specifically emphasized that while dealing with the application of destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalized sections of the society. The purpose is to achieve “social justice” which is the Constitutional vision, enshrined in the Preamble of the Constitution of India.

In “Amardeep Singh Vs Harveen Kaur (2017)[42]”, the Supreme Court of India has held that the cooling-off period between first and second motion for divorce by mutual consent, as mentioned in Section 13B (2) of the Hindu Marriage Act, 1955 is not mandatory.

High Court of Delhi, particularly in the field of family law has held in “Mrs. Anil Singh Vs Dr. Narender Singh”[43], has held that the allegation of adultery by one spouse on the other spouse amounts to cruelty if the allegation of adultery is not proved. The Delhi High Court further held that allegation of adultery has a consequence of damaging one’s reputation, taking away the dignity of that person in the eyes of his family, friends and society. The burden of proving adultery is placed on the spouse who alleges it.

Non-registration of marriages causes several consequences in the form of harassment to women and child marriage cases. The Supreme Court accordingly in “Smt Seema v. Ashwani Kumar”[44] held that registration of marriages of all the religions in their respective States is mandatory and issued certain guidelines for making rules of such Registration.

High Court of Delhi in year 2021 in a habeas-corpus case “Parveen Bano Vs. Chandra Shekhar SDM South West”[45] also held that if an officer / marriage registration authority sends notice to family of interfaith couple wanting to get married under Special Marriage Act, he shall be liable to be punished for contempt of the court, as the Delhi High Court in 2009 has banned the marriage registration authority to send notice to family of interfaith couples in order to ensure the safety of prospective husband and wife under Special Marriage Act.

In a very recent judgment titled as “Azizurrahman v/s Hamidunnisha”[46], the Allahabad High Court has held that a Muslim wife cannot be compelled by courts to live with her husband against her wishes while second marriage of the husband subsists.

A division bench of Kerala High Court in a recent judgment titled as “Ramla vs Abdul Rahuf”[47] has held that unequal treatment of wives is a valid ground for divorce for Muslim women in view of section 2(iv) and Section 2(viii) (a) and (f) under the grounds for decree for dissolution of marriage in the Dissolution of Muslim Marriages Act, 1939.

Section 2(iv) states as follows: “that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.”

Section 2(viii) (a) and (f) states as follows: “that the husband treats her with cruelty, that is to say-

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran.”

The Court held that refusal to cohabit and perform the marital obligations with the previous wife is tantamount to the violation of the Quranic injunctions which commands equal treatment of the wives if the husband contracts more than one marriage and granted divorce under Sections 2(iv) and 2(viii) (f) of the Act.

The Hon’ble Apex Court in “Sanjana Kumari Vs. Vijay Kumar”[48] observed that a Hindu marriage can be dissolved through a customary divorce deed, provided the existence of such a customary right is established. It held that:

“There can be thus no doubt that the party who places reliance on customary divorce deed is obligated to establish that such custom is allowed by a practice that has been uniformly observed for a long time and such custom is not unreasonable or opposed to public policy and thus the validity of such customary divorce is duly protected by the exception carved out in Section 29(2) of the 1955 Act.”

Child marriages and marriages of women below 18 years of age across Muslims and Hindus: According to the report “Ending Child Marriage – A profile of progress in India”[49] by the United Nations’ children agency, UNICEF, one in three of the world’s child brides live in India. Of the country’s 223 million child brides, 102 million were married before turning 15. As per UNICEF, each year, at least 1.5 million girls under 18 get married in India[50], while a lot of progress has been made in curbing the child marriages in the last few years. Further as per the report and analysis [51] of the Census data, it is revealed that 84% Of 12 Million Married Children under 10 Are Hindus, followed by Muslims at about 11%.

Further it is well known that across State of Rajasthan, many of the girls are married as early as aged 9 or 10 years, which practice is still continuing as on date. As per the Centre for Women’s Development Studies report [52], majority of the marriages took place in Rajasthan villages when the women were between 6-11 and 12-15, with the frequency rising as high as 80.6% in some villages. Further the report titled as “India Child Marriage and Teenage Pregnancy”[53] based on NFHS-4 (2015-16) conducted by Young Lives India and NCPCR (2018) also very well highlights the very fact that this trend though is on a decline, but is still very worrying.

The Child Marriage Restraint Act, 1929 [54] only restrains a marriage of minors, but it does not prohibit marriage rendering it illegal or invalid. The validity and the legality of the marriage are in view of the Hindu Marriage Act. As per the Hindu Marriage Act 1955, the marriages are void only if they take place in contravention of section 5 (i), (iv) and (v). Moreover, in contravention of the section 5 (iii) of the Hindu Marriage Act 1955, very few/ nil criminal cases have been registered for marriage of a minor girl, while as per law the marriage shall even be held valid if it is not repudiated within 3 years of marriage before turning 18 years. The law is also absolutely inconsistent in view of the fact till date, because such a marriage which takes place after the girl turns 15 years old shall still be a valid marriage as per law, and the girl shall not be in a position to repudiate the marriage after she turns 18 years of age, and it shall not be a ground for divorce also, while the groom and the bride shall still be liable for prosecution for contravention of section 5(iii) of the Hindu Marriage Act.

Further, the ground of divorce in view of the age of Muslim women, as per the Dissolution of Muslim Marriages Act, 1939 is prescribed under section 2 (vii) as:

“(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated;”

Accordingly, the Prohibition of Child Marriage (Amendment) Bill, 2021 [55] has been introduced in Lok Sabha to amend the Prohibition of Child Marriage (Amendment) Act, 2006 [56].

[57]The Bill, inter alia, seeks to achieve the following objectives:

To raise the minimum age of marriage for women to 21 years (from the present 18 years), thereby bringing women at par with men in terms of marriageable age.
To prohibit child marriage irrespective of any law, custom, usage or practice governing the parties.
To amend the Prohibition of Child Marriage Act, 2006 by reinforcing its application, overriding all other existing laws, including any custom, usage or practice in relation to marriage.

Under the Act, a person married below 18 years of age could apply for annulment within two years of attaining majority (i.e., before 20 years of age). The Bill proposes to increase this to five years (i.e., 23 years of age).

While introducing the Prohibition of Child Marriage (Amendment) Bill, 2021 in Lok Sabha on 21.12.2021, the Union Minister of Women and Child Development Smt. Smriti Zubin Irani made the following statement:

“… that the age of marriage should uniformly be applicable across all religions, all castes, and all creeds overriding any custom or any law which seeks to discriminate against women…

She further added that enactments like the Indian Christian Marriage Act, 1872, the Parsi Marriage and Divorce Act, 1936, the Muslim Personal Law (Shariat) Application Act, 1937, the Special Marriage Act, 1954, the Hindu Marriage Act, 1955 and the Foreign Marriage Act, 1969 do not have concurrence relating to age of marriage…”

During the debate in the House on 21.12.2021, Members demanded that the Prohibition of Child Marriage (Amendment) Bill, 2021 needed to be scrutinized and all the stakeholders should be consulted. In view of this, the Bill was referred for examination to the Departmentally Related Standing Committee on Education, Women, Children, Youth and Sports. The Report of the Standing Committee is awaited.

The key issues are:

Whether prohibiting marriage for persons between 18 and 21 years is a reasonable restriction on their right to marry as marriage between adults (18 years) is a fundamental right?, and
Whether the increase in minimal age would have any significant impact on the incidence of child marriages since about a quarter of 20-24 year old women are married before the age of 18 years?[58]

In month of December 2022, National Commission for Women (NCW) had filed a petition in Supreme Court of India to make the minimum age of marriage for Muslim women at par with persons belonging to other faiths. The NCW has argued that the practice of marrying below the age of 18 would expose Muslim women to abuse and harassment, and that such a practice was arbitrary and discriminatory. The Supreme Court has already issued notice and asked for reply from the Government of India on this matter[59].

On the same lines, the Supreme Court of India in January 2023, on a petition challenging a High Court ruling by NCPCR, has decided to examine the issue that whether the young Muslim girls aged about 15 years on attainment of puberty can enter into wedlock on the basis of custom or personal law when such marriages constitute an offence in statutory law. NCW and NCPCR both had raised the question whether personal law could override statutory provisions of POCSO, etc. Notice has also been issued to the Government in this matter as well[60].

However the Delhi High Court had in the case titled as “Fija Vs. State of Delhi^”[61] observed that a Muslim man who had sexual intercourse with his wife was not guilty under the POCSO Act as the personal law has an overriding effect on special laws. It also held that a minor girl can marry without parents’ consent on attaining puberty and has right to live with husband even when below 18 years of age.

And again on the contrary, the Kerala High Court in a recent judgment titled as “Khaledur Rahman Vs. State of Kerala”[62] has held that POCSO Act overrides the personal law in case of minor Muslim girl’s marriage. The bench of Justice Bechu Kurian Thomas said that if one of the partners in the marriage is a minor, offences under POCSO Act will apply and further that the validity of the marriage would not be considered in such cases. Further on the same lines, the Karnataka High Court in “Aleem Pasha v. State of Karnataka”[63] observed that the POCSO Act is special legislation to protect children from sexual offences and therefore, it will have an overriding effect on Muslim personal law. The Hon’ble Court further noted that a person will be held guilty of penetrative sexual assault under the POCSO Act if the wife is under the age of 18 even if the sexual intercourse took place in the course of a valid marriage.

The said controversy was finally settled by the Hon’ble Supreme Court in the case titled as “Independent Thought vs. Union of India”[64] which clearly stated that there must be no differentiation between a married and an unmarried girl under the age of 18 for the purpose of Section 375 IPC. Another issue which was settled in the said judgment was with respect to the inequality which arises from the situation that the effect of discrimination among girls below 18 years, creates inequality on the basis of religion thereby violating Article 14 of the Constitution. Further, the Supreme Court has already in the landmark judgment titled as “Indian Young Lawyers Association & Ors. Versus The State of Kerala & Ors.”[65] (the famous Sabarimala Case) laid down that the personal laws can be tested on the ground of violation of the fundamental rights. Therefore, the judgment of the Delhi High Court in Fija (Supra) was held to be per incuriam to the law laid down by the Hon’ble Apex Court in Independent Thought (Supra) and the views expressed by the Karnataka High Court in Aleem Pasha (Supra) were stated to hold the constitutional spirit of liberty and dignity and was made the law of the land. The Supreme Court stated that the application of the POCSO Act must have an overriding effect on Muslim personal law. However recently, the High Court of Delhi while upholding the acquittal of a Muslim man, the Delhi High Court noted that his physical relationship with a 15-year-old wife cannot be termed as rape.[66] The High Court bench stated, “We find that since the child victim was the wife who was almost fifteen years of age, the physical relationship of the respondent with the victim, cannot be termed as rape. The respondent has been rightly acquitted.”

Hence in view of the above, on one hand it is clear that not only there exist clear contradictions and inconsistencies in both the personal laws of Muslims and Hindus, even the Judiciary is not at all consistent on its view and opinions, which require deep and thoughtful consideration, while the country is on the verge of development and implementation of Uniform Civil Code since long.

Adoption of children and gender equality: When the Hindu Guardianship and Minorities Act 1956 was enacted the Hindu Adoptions and Maintenance Act 1956 was nowhere in sight, which later on corrected the legal status of adopting a daughter by law. Earlier, the adoption of daughters was allowed only according to custom and not as per codified law. “Adoption” now includes both the adopted son and the adopted daughter in the scope of natural guardianship.

The Supreme Court over a plethora of judgments has observed that the rights of the parents are irrelevant when a Court decides the issue of custody of their minor child. The Hindu Minority and Guardianship Act, 1956 is supplementary to and not in derogation to Guardians and Wards Act, 1890.

Section 17 of the Guardians and Wards Act, 1890 provides matters to consider while appointing a guardian. It specifically states that the court shall make decisions for the welfare of the minor, the minor’s rights and the circumstances of the case. Similarly, Section 13 of the Hindu Minority and Guardianship Act specifically states that welfare of the Hindu minor is of paramount consideration and all the measures taken by the guardian and any judgment rendered by the Court must be for the welfare of the child.

Very recently Supreme Court, in “Rajeshwari Chandrasekhar Ganesh Vs State of Tamilnadu & Ors.”[67], while interpreting the provision of Guardian and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956, has held that a child’s welfare and not the legal rights of parents is the paramount concern in a custody battle between wife and husband. Further the Supreme Court while emphasizing the employment of the writ of Habeas Corpus in child custody cases to be independent of any statute has held that;

“The primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably be advanced.”

Further the Apex court considering the best interest of the child to be of paramount importance has held in “Ruchi Majoo Vs. Sanjeev Majoo”[68] that the Interest and welfare of the minor being paramount, a competent court in this country is entitled and indeed duty bound to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication.

The said principle has been followed across the nation, with the High Court of Telangana very recently holding that while dealing with custody matters of children with foreign nationality, Indian courts should only take the findings of a foreign court as input in matters concerning the welfare of children and must conduct an independent enquiry to arrive at a decision in the best interest of the child.

In a landmark and path-breaking judgment titled as “Mohd Shahnawaz Zaheer Vs Govt of NCT of Delhi”[69], High Court of Delhi granted custody of two Hindu kids (whose both parents were dead and there was no immediate relative willing to take their responsibility) to a Muslim man under Guardian and Wards Act, 1890.

The Supreme Court addressed the issue of gender equality and recognized the rights of single mothers to be the guardians of their children. In “Gita Hariharan v. Reserve Bank of India”[70] the Supreme Court had ruled that interests of the child are of paramount importance, and consequently, a mother can be considered a guardian. Secondly it was also ruled that for privacy reasons, the woman has a fundamental right to conceal the identity of the father. Similarly, in “Jijabhai v. Pathankhan”[71], it was ruled that the mother could be considered as the natural guardian of minor girl as in that peculiar case, the mother and father had fallen out and were living separately and the minor daughter was under the care and protection of her mother.

The Supreme Court of India in “Neha Tyagi Vs Lt. Col. Deepak Tyagi”[72], which was a maintenance case involving the provision of Section 125 of the Cr.P.C., held that it is father’s duty to maintain his minor son until he reaches the age of majority. The Supreme Court further held that a child should not be made to suffer for reasons of conflict between husband and wife.

The landmark judgment titled as “Danial Latifi & Anr. v. Union of India”[73] recognized a Muslim woman’s right to seek maintenance under the Code of Criminal Procedure, irrespective of personal laws. The Supreme Court held that the law settled in Shah Bano case is still a good law while upholding that Muslim Women can claim maintenance under section 125 Cr.P.C. and that reasonable and fair provisions, include provision for future of the divorced wife (including maintenance) and it does not confine itself to the iddat period only. The Supreme Court while upholding the constitutional Validity of the Muslim Women (Protection of Rights on Divorce) Act 1986, held that a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act. It further held that a divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.In a recent case, a division bench of Supreme Court has held that deserted wives and children are entitled to alimony/ maintenance from the husbands from the date they apply for it in a court of law. Further, the Supreme Court of India in “Rajneesh Vs Neha & Ors.”[74], framed some guidelines on certain aspects pertaining to the payment of maintenance in matrimonial matters.

Last but not the least, one must not forget the judgment titled as “Joseph Shine V. UOI”[75], whereby Section 497 IPC has been struck down for considering and treating the woman as chattel and thereby ensuring the dignity of women in the Indian society.

Protection Against Domestic Violence: The Government of India had introduced the Protection of Women from Domestic Violence Act in 2005. It can be seen as the significant step towards addressing domestic violence and went a long way in providing legal protection to women. Accordingly the Indian judiciary has also played a crucial role in interpreting and implementing the law effectively. Courts have recognized the right of women to live violence free life and have passed orders pertaining to their protection, residence, and monetary compensation.

Increased Access to Justice: The Indian judiciary has taken several initiatives to enhance women’s access to justice. Initiatives such as free legal aid, fast-track courts for women in cases of sexual offenses, and the addition of more female judges to the existing bench strength have gone a long way in creating a conducive environment for women seeking justice. Thus courts in India besides maximizing happiness and lessening bitterness in the family are endeavoring to put the women at par with men.

CONCLUSION

While the Indian judiciary has made significant strides in the field of family law, gender justice, and women empowerment, there is still a lot of work to be done in this area. Challenges such as implementation gaps, continuing child marriages, social attitudes, religious differences, cultural norms, less reporting of cases, poor investigation, time taken to dispose off the cases and differences of opinions among the courts continue to hinder the full realization of women empowerment, gender equality and access to justice.

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