The Role of the Judiciary in the Empowerment of Indian Women

(Speech by Hon’ble Mrs. Justice B.V. Nagarathna, Judge, Supreme Court of India,
in the 28th Justice Sunanda Bhandare Memorial Lecture, organized by
Justice Sunanda Bhandare Foundation, New Delhi on 5th January, 2024*)

Namaskar and a very Good Evening to All.

Hon’ble Shri Justice Manmohan, Acting Chief Justice, Delhi High Court, who was my classmate in the Campus Law Centre, Delhi University between the years 1984 and 1987,

Shri Fali S.Nariman, learned Senior Advocate, who, besides being a sterling constitu-tionalist, has also been a forthright votary of gender justice,

Shri M.C.Bhandare, learned Senior Advocate and life long companion of Justice Sunanda Bhandare and his family.

Justice Madan B. Lokur, Former Judge, Supreme Court of India and the Chairman of the Justice Sunanda Bhandare Foundation, along with its other office bearers, Rahul Bhandare (Justice Bhandare’s son) and Manali Singhal (Justice Bhandare’s daughter).

Hon’ble Judges who are present – Both Sitting & Retired

Learned Senior Advocates and Members of the Bar,

Distinguished invitees,

Members of the Media,

Ladies and Gentlemen and all present through digital media.

I deem it a privilege to deliver the 28th Sunanda Bhandare Memorial Lecture and make my humble contribution to the stream of socio-legal thinking that this memorial lecture series signifies.

I thank the office bearers of Justice Sunanda Bhandare Foundation and particularly Mr.Murlidhar Bhandare and his family for this opportunity because I have always believed that a legal culture that would not remember its icons would recede into what, Dr.Upendra Baxi observes, a ‘world of unjust amnesia - a world without memory or history.’¹

Born on 1st November 1942, Justice Bhandare was a trailblazer. She wasrecommended for appointment as an Additional Judge at the young age of 42 on 1st June 1984 and as Permanent Judge on 12th March 1985. I fondly remember that Late Justice Bhandare and Sri Muralidhar Bhandare had visited our home in Delhi and met my father just before her elevation as a Judge of the Delhi High Court. I have known of the illustrious legacy of Justice Bhandare as a Judge and an advocate who, through her exemplary virtues of head and heart, demonstrated an unsurpassable combination of excellence and empathy. She was not only a compassionate and strong judge and a versatile lawyer, but also a remarkable daughter, a doting daughter-in-law, a loving wife, and a mother. She considered the law as an instrument of social progress and judiciary as an active facilitator of the progressive realisation of human rights.²

It is said that even a monarch has to obey when fate summons. Even though she did not live for long, she has left behind her a great legacy to be continued by her family and well-wishers. I think that but for her untimely demise, she would have perhaps become the first woman to grace the office of the Chief Justice of India.

While still an undergraduate in Bombay, Sunanda married Murlidhar. She graduated after their first child, Rahul, a son was born. The birth of a daughter Manali, followed soon after and it was only then that she joined the Law College, subsequently getting a first division in her law examination.

Justice Sunanda Bhandare was a young mother of two when she was enrolled on the rolls of the Maharashtra Bar Council. She shattered the widely held belief that a woman succeeds at work only at the cost of her home. Maintaining a fine balance between professional and personal life, she went on to make exemplary contributions to the legal profession and jurisprudence. Speaking at a seminar on the problems and concerns of women organized by the United Lawyers Association she remarked, “A woman’s place in society marks the level of civilization.”

Since she was both vivacious and versatile, her collection of art was only rivalled by her deep immersion in the world of music, especially classical music.

Since the family’s move to New Delhi in 1970, Sunanda began practising in the Supreme Court. She was a popular member of the Bar and was elected to the Supreme Court Bar Association as Vice President with the highest percentage of votes ever in favour of any candidate. One of the most impactful contributions that Justice Bhandare made as an advocate was in the Bai Tahira v. Ali Hussain Fissalli Chothia case³ in which Justice Krishna Iyer ruled that a divorced Muslim woman was entitled to maintenance from her former husband.

The true measure of a Judge’s character and personality is through her judgments. Before proceeding to deliver my lecture, I deem it fit to mention a few judgments of Justice Bhandare that have not only endured the test of time and circumstance but contributed to the glowing constellation of judicial opinions that have preserved constitutionalism and the rule of law.

Justice Bhandare’s judgments on criminal law and procedure reflect a strong ethical commitment to constitutional rights that ought to be essential guard rails in any prosecution. She allowed a writ petition challenging the order of preventive detention in Harbhajan Singh Jaura @ Doctor v. Union of India 46 (1992) DLT 82 by propounding a relief-realizing construction to the word “as soon as may be” occurring in Article 22(5) of the Constitution. Deprecating the delay caused by the bureaucratic practice of calling for comments from different departments and secretaries, Justice Bhandare asserted that the representation made by a detenue seeking reasons for detention should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay.

It is no wonder that she is remembered today as a Judge who was humane and independent. She believed passionately in the dignity of individuals and the right to equality.

Her judgment in service law is testament to the golden rule that the “the history of personal liberty is largely the history of insistence upon procedure.”⁴ Authoring the opinion for the Full Bench of the Delhi High Court in Ex.Major N.R.Ajwani v. Union of India (55 (1994) DLT 217), Justice Bhandare held, that persons subject to the Army Act are entitled to certain procedural safeguards in the matter of termination of their services. Notwithstanding the textual exclusion of defence services from the protective umbrella of Article 311 of the Constitution, Justice Bhandare reasoned that the doctrine of camouflage being a safeguard against punitive termination, would be a facet of judicial review. Hence, the court was empowered to determine the true character of the order under challenge where it apprehended that power was used for a collateral purpose. Therefore, even though defence personnel served at the pleasure of the President in terms of Section 18 of the Army Act, their right to non-arbitrariness would be deserving of judicial protection.

Justice Bhandare delivered this judgment just two days before she left for her last treatment to England. Her act of delivering this erudite judgment amidst extreme pain and with a body ridden with disease is perhaps monument of all the personal discomfort and sacrifice that judges endure to uphold the oath of their office in full measure.⁵ It is a matter of relief, her judgment came to be affirmed by the Supreme Court, one week after her death.

Having paid my tribute to the living memory of Justice Bhandare, I shall speak on the ‘Role of the Judiciary in the Empowerment of Indian Women.’

Freedom Movement

Before elaborating on the subject, it is essential to underline the aspirations that our Founding Mothers had for our Constitutional Republic, and how these aspirations shaped the grundnorm of our polity. I begin by quoting from a speech made by a legendary freedom fighter Rajkumari Amrit Kaur in 1932, at Jalandhar:

“The women of India are no longer willing to submit to standards, whether local, political or ethical, which have been set for them by the male conscience of the community; we are passionately aware that such standards have often been allowed to imply the complete subordination or even degradation of whole classes of women; we are aware of the necessity of finding and being judged by our own standards of free human beings, voluntarily accepted; we are determined to face the facts of life, to fight the battles of our sex and take the risks.” ⁶

This solitary statement is a roaring reflection of the socio-political churn that crystallised into the constitutional values of gender equality and justice. As a student of history, I have always viewed the anti-colonial struggle as not merely a quest for political independence but a mission of social transformation and moral and spiritual recovery. Gender justice, as reflected in the concomitant struggles for abolition of sati, widow remarriage and women’s education, was nothing short of the cornerstone of this moral mission.

The freedom movement and our founders imagined a new Indian woman with ‘a complete individuality and self-sufficiency.’ A bare glance at the preamble as well as the chapters on Fundamental Rights and the Directive Principles of State Policy shows that our Constitution sought to break the shackles of gender-based discrimination and disadvantage.

1.  The preamble, read with Article 25(2)(b) and Article 38 accentuates the crying need for a just social order.

2.  The right to equal protection and right against non-discrimination under Articles 14, 15(1), 15(2) and 23 outlaw all forms of prejudice, stigma, stereotypes and exploitation against women;

3.  Article 15(3), read with Articles 39(a), (d), (e) and 42 (maternal health) reflects a strong commitment towards special measures to ensure equality within both the public and private spheres, a concept which has been given an impetus by none other than the Hon’ble Chief Justice of India Dr.D.Y.Chandrachud.

4.  Article 16 and 46, concerning equal opportunity and advancement of weaker sections, further deepen the resolve to enhance women’s voice and participation in public services and education.

The Indian judiciary has played a yeoman’s role in the noble national endeavour for gender equality. The institutional role of the judiciary in this quest has three distinct, yet intersecting dimensions:

First,the judiciary has subjected gender-biased laws, policies and norms to constitutional scrutiny. Thus, the courts – as guarantors of equal protection - have played a critical role in ensuring that non-discrimination and fairness emerge as the central governing principle of state policy in all spheres of public life.

Second,the judiciary has amplified special laws and policies enacted for women by accentuating the constitutional intent. Therefore, it has assumed the role of ‘affirmative action enabler’ by ‘reading up’ statutes which protect and preserve women’s rights and striking down those laws which discriminate against women.

Third,the judiciary has crafted creative remedies to redress systemic injustice and exploitation of women and taken up the role of an initiator of societal reform and transformation.

Guarantors of equal protection

The concept of equal protection requires greater elucidation. Article 14 of the Constitution goes beyond guaranteeing equality before the law which is of quintessence to any republic but also prohibits the State from denying to any person the equal protection of the laws.

What is critical is that the state law or practice aggravates or perpetuates the subordinate position of a specially disadvantaged group.⁷ Another problem area which arises is from state action that in fact discriminates among persons: the discrimination is based on a criterion that seems innocuous on its face and yet nonetheless has the effect of disadvantaging women.

In V.Tulasamma v. Sesha Reddy,⁸ the Supreme Court emphasised how the advent of independence necessitated a transition where old human values assumed a new complex. Thus, in the context of succession by a Hindu woman, the Supreme Court held that abolition of discrimination based on right to property is the prime need of the hour and temper of the times.

The decision of the Supreme Court in C.B.Muthamma v. Union of India⁹  is highly instructive in this regard. The great Justice Krishna Iyer, rendered a judgment finding such disabilities based on marriage to be a facet of stark bias against women, and observed that,

“If the family and domestic commitments of a woman member of the Service is likely to come in the way of efficient discharge of duties, a similar situation may well arise in the case of a male member.”

Personally speaking, I find cultural norms that see women as inferior to men to be highly unscientific, irrational and inefficient.

It naturally follows that equal protection is quite distinct from protectionism. Protectionist laws and practices are those which seek to ‘protect the woman’ or ‘their family’ or‘their community’ by imposing restrictions on the exercise of their rights. However, such so-called ‘protectionist’ laws are bound to suffer judicial scrutiny for violating equal protection of the law.

In a case challenging Section 66 of the Factories Act, 1948, R.Vasantha v. Union of India¹⁰, the Madras High Court unequivocally held that women cannot be excluded from employment during night shifts when they are being employed in the same factory during the two day shifts and denial of employment on the sole ground of sex is violative of Art. 15 and it is discriminatory and therefore unconstitutional.

The Supreme Court had the occasion to scrutinise such protectionist stereotypes in Anuj Garg v. Hotel Association of India¹¹ which concerned Section 30 of the Punjab Excise Act prohibiting the employment of any man under 25 and ‘any woman’ (presumably, on grounds of decency) in premises in which liquor is consumed. The Apex Court held that instead of prohibiting women employment in the bars altogether, the State should focus on factoring in ways through which unequal consequences of sex differences can be eliminated.

Of recent vintage is a case where restrictions upon exercise of right to freedom of profession were struck down for disproportionately impacting women. In Indian Hotel and Restaurant Association v. State of Maharashtra¹² the petitioners had challenged Sections 33A and 33B of Bombay Police Act which prohibited dance performances in eating houses, permit rooms, beer bars, and other places, except three-star hotels and government associated places on the ground that it created unreasonable classification of women employed in bars and three star hotels was violative of their right to work under Article 19(1)(g). The Supreme Court held the provisions were violative of Article 14 because there was no justification for treating women differently.

Relatively recently, the Supreme Court scrutinised administrative requirements rooted in stereotypes about women’s ability and physiological characteristics in the Babita Punia and Lt. Col. Nitisha’s cases ¹³  relating to female defence service personnel. The judgments not only protect the right of women to equal opportunity to serve the armed forces at senior positions but as Justice Chandrachud presently the Chief Justice reasoned, it rescues “the true spirit of the equality” from being rendered “superficial and symbolic.”

In a similar vein recently in a judgment that I happened to author, in the case of Association of Old Settlers of Sikkim v. Union of India, I found that the marital status of Sikkimese woman marrying a non-Sikkimese man on or after a particular date was made a basis for denial of income tax exemption meant for Sikkimese subjects. It was noted that no such restriction existed vis-à-vis a Sikkimese man marrying a Sikkimese or a non-Sikkimese woman. Thus, it was held that when a benefit is being given to a Sikkimese individual which would include all genders under the provision, a certain category of married Sikkimese women cannot be deprived of the said benefit of exemption.

Affirmative Action Enabler

Another facet of the judiciary’s role in furthering the cause of gender equality is emphasising the constitutional mandate of laws and policies enacted for the empowerment and emancipation of women, or for prevention of violence and exploitation against them.¹⁴ Equality would be reduced to a mere slogan in the absence of persistent and targeted state action for the empowerment of women. It bears repetition that despite social reform and progress, the social structure remains biased against women. Such bias is pernicious that it afflicts women from womb to tomb.

At the same time, it needs to be mentioned that the enlightened commitment of the Parliament and the Political Executive to its constitutional mandate is manifest in special laws enacted to protect women. The Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 (for short, “PCPNDT Act”) reflects this commitment to preventing female foeticide. In this regard, the judiciary is duty-bound to strengthen the hand of other organs of the State to optimize the achievement of the hallowed constitutional objective of equality of women.

Affirmative action to enhance the representation of women in all spheres of public life is a bounden duty of all organs of the State. The cornerstone of the constitutional mandate of affirmative action are the provisions for equitable representation of women in the political realm, and most importantly in local self-governance institutions. One of the achievements that every Indian can be proud of is that we have the largest number of elected women representatives in the world. Judiciary has played a key role in reinforcing the principles of representative governance.

In Karnataka, not less than 50% of the representatives in local bodies must be women. Therefore, 50% is the minimum threshold of membership. In a 2011 judgment authored by me while in Karnataka High Court in T.Venkatesh v. State of Karnataka¹⁵ and State of Karnataka v. Vishwanath¹⁶, - led to the change of the discriminatory Rule 13
of the Karnataka Municipalities (President and Vice-President) Election Rules that forbade two women from holding the office of President and Vice-President in local bodies simultaneously.I found that such a bar was not applicable when it came to reservation in the male category. It was reasoned that when a separate reservation for women had to be compulsorily complied with, in furtherance of Article 15(3) there could not be a further discrimination in that regard. I observed:

“If the intention of the legislation is that 50% of the seats in taluk Panchayat must be reserved for women candidates and 50% of the post for Chairpersons must also be reserved for women candidates, then, the restrictions that two women cannot hold the post of Chairpersons in a Taluk Panchayat simultaneously and two women cannot hold the post of Chairperson consecutively irrespective of the category to which they belong are unreasonable restrictions and antithetical to empowerment of women in a democracy and particularly in the context of local self-government.”

As held by the Apex Court in Madhu Kishwar v. State of Bihar,¹⁷ Article 15(3) of the Constitution of India positively protects such special policies.

Property is one of the important endowments or natural assets to accord opportunity, right to equal status and dignity of person.

Therefore, the Parliament enacted the amendments to the Hindu Succession Act in the year 2005. Supreme Court’s judgment in Vineeta Sharma’s case¹⁸ held that the daughters are entitled to equal share with that of the son in the coparcenary properties. Further, the Supreme Court has clarified in the said judgment that Section 6 is retroactive and not prospective. Therefore, even if partition has taken place but till the actual division of the property is by leaps and bounds, the amended provision can be applied for a recalculation of the shares and for division of properties on an equal footing between the sons and daughters.

Another instance of this commitment towards women, is in the enactment of the Protection of Women from Domestic Violence Act 2005 (‘D.V. Act’, for short). Women MPs especially emphasized how it was critical to ensure access to justice for women to strengthen ‘democracy in our household.’¹⁹

Equal property rights can promote greater social equality between men and women. This can help to reduce harmful gender norms that contribute to domestic violence, such as the belief that men have the right to control women.

I had the privilege of authoring the Supreme Court’s view in Prabha Tyagi v. Kamlesh Devi,²⁰ where the right to a shared household under Section 17 of the DV Act was held to be an independent right and a remedy being available under the Act. The right to reside was interpreted not to be conditional upon the existence of domestic violence, given the social reality of dependence of women, especially young brides in their matrimonial family, on shelter and finance, if they have no independent source of income.

There is no gainsaying the fact that the most enduring protection against economic exploitation within households is the financial independence of women. I often say that women can get into formal workforce but are often hindered from getting up in the profession or career due to the lack of sharing of household duties and responsibilities such as bringing up children or carrying out domestic chores. That is why the 2023 Global Gender Gap report pegged the gender gap score at 68.4%, and said it would take 131 years to equalise earnings between men and women at the current rate of progress.

To correct this mischief of unequal compensation for equal contribution, the Parliament enacted the Equal Remuneration Act, 1976 to mandate that employers to make equal payments to men and women for the equal work done by them. While the gap still persists, it has shrunk from 84% in 1979 to 56% in 2019.

In Mackinnon Mackenzie & Co. Ltd. v. Audrey D’ Costa²¹, the Supreme Court held that the petitioner company therein had an unequal pay structure for male and female stenographers which violated the Equal Remuneration Act, 1976. Justice Venkataramiah concluded that the company’s justification for the pay disparity, namely, female stenographers’work was “confidential” was not a valid reason for paying them less.

But unfortunately, the Supreme Court’s judgments in Nergesh Meerza²²  and Air India Cabin Crew Assn. v.Yeshaswinee Merchant²³  on discriminatory service conditions of female flight attendants leaves much to be desired and calls for a course correction.

After all, learned Senior Advocate Fali S.Nariman, has emphasised that while laws may provide a framework for change, societal attitudes play a more significant role in shaping the professional landscape for women.

The judiciary has advanced the protection of the Maternity Benefit Law to ensure that women don’t have to strike a bargain between motherhood and employment. That is why child care rooms or playrooms for children in offices and child care leave would go a long way for young mothers to balance between their office work/profession and attending to the needs of their children.

Delhi High Court judgment in Inspector (Mahila) Ravina v. Union of India ²⁴  concerned a Writ Petition by a female police inspector who had challenged her omission from the promotion list on the ground that her participation in the pre-promotion course had been delayed because she was pregnant while similarly-placed employees in her batch underwent it. The Delhi High Court held pregnancy could not be considered an impediment for a female employee’s promotion in service.

When I was in the Karnataka High Court, we had a case where a Judicial Officer who was recruited, could not take oath as she had delivered a child on the day of the oath. Question was whether she would lose her seniority. Some of my male colleagues were of the opinion that she would lose her seniority as she had not taken oath on the day she was asked to take. However, on my insistence, the Hon’ble Chief Justice agreed to my view point that a woman should not be deprived of her career prospects merely because of her pregnancy and delivery of the child. The Judicial Officer took oath on the 5th day after her delivery and her seniority was restored in terms of her merit in the recruitment.

I am informed that recently the High Court of Karnataka permitted lady candidate who was over eight months pregnant to write the Karnataka State Judicial Services Exam at her home town so as to avoid travelling to the examination center owing to her delicate phase of pregnancy. It is such sensitivity which would go a long way in empowering woman who, by their physiological and biological nature are the ones who bear and rear a child. Similarly, grant of earned leave after the completion of the maternity leave would go a long way in aiding a young mother to make a transition between nascent motherhood and return to work or engage in her professional duties.

These instances where the judiciary has enabled affirmative action for women should further the march of the law towards gender equality and justice.

Initiator of Social Reform

The Judiciary’s role as the protector of fundamental rights is not limited to checking State action but also in some circumstances, initiating a transformative social dialogue as a part of transformative constitutionalism.

In the landmark Vishaka v. State of Rajasthan²⁵, the Supreme Court facilitated the evolution of a grievance redressal mechanism for survivors of sexual harassment at the workplace by invoking Article 142 of the Constitution. The Supreme Court emphasized the fundamental right to carry on any occupation, trade or profession depends on the availability of a “safe” working environment.

Vishakhawas successful in securing wide ranging protections for women at workplacesagainst sexual harassment, a hitherto unprotected area, with the enactment of the Prevention of Sexual Harassment of Women at the Workplace [‘PoSH’] Act, 2013.

I need not detain this enlightened audience of the critical role that the Judgement of the Supreme Court in Shayara Bano’s case which led to invalidation of the Triple Talaq, and culminated in the filling of the legislative vacuum in that regard.

Similarly, the unanimous conclusion in Joseph Shine has not only decriminalised adultery but also initiated a progressive conversation about status of women in marital relationship.

Another subject on which the judiciary has initiated robust social dialogue and reform is the question of marital rape. In 2017, the Supreme Court in Independent Thought v. Union of India²⁶ read down Exception 2 to Section 375 of the IPC, and raised the age of consent to 18 for married girls.

At this juncture, I must highlight one of the path-finding initiatives of the Supreme Court which is set to further the cause of gender inclusion and justice. The publication of the Handbook on Gender Stereotypes would further deepen public trust by correcting pernicious anti-woman prejudice that continues to haunt the legal profession and women’s quest for justice through the judicial process.

Grant of due value and recognition to household work is another frontier of gender justice where the judiciary has been leading a transformative conversation.

Every society in the world is built on the unpaid or underpaid work of women. In spite of women stepping into the paid work sphere, they continue to be presumed to be managers of the household. Therefore, even if a woman works similar hours as her brother, husband and father, and contributes to the income of the household, she returns home to do another shift of work, typically invisible, all alone, and usually unassisted by the male members of the family. Corporates and even the legislature has recognised over the years that women’s dual burden needed to be addressed and ameliorated. Thus, it would not be out of place to delineate what constitutes the double shift that women work.

The de-facto responsibilities of women include mundane and essential household chores including cleaning and laundry. A woman has to devote a certain duration of time, all days of the week, all year round without any break, unless she has fallen ill or has other pressing obligations to address at the same time.

Women are also obliged to perform caregiving duties irrespective of their engagement in the public work sphere. Women also manage important miscellaneous activities such as maintenance of bank accounts, planning meals and purchasing groceries, shopping, paying for utilities, sending invites for occasions, buying gifts for ceremonies, and getting odd jobs fixed to optimize the family’s well-being all on a strict budget so as to save from the family’s finances.

Thanks to the progressive jurisprudence emanating from courts across the institutional hierarchy, this unpaid domestic and care work of homemakers has come to be counted in cases pertaining to compensation under the Motor Vehicles Act, 1988 i.e., only when a house wife dies in a road traffic accident. In National Insurance Co Ltd. v. Minor Deepika, 2009 (1) TN MAC 671(D.B.) the High Court of Madras, speaking through another trailblazer, Justice Prabha Sridevan, provided compensation to a deceased housewife’s daughter, while stating that unpaid domestic and care work was the foundation of human experience, and that it must be valued by the Courts.

For many centuries – the institution of marriage and family – has been nurtured by the toiling labour and incommensurable care work of women – as mothers, wives, sisters, daughters, aunts, and so forth.

Widespread perceptions persist that an ideal marriage match is one between an “educated and well-trained” man and a woman with the kind of education and background in domestic skills that would make her a good homemaker.

Both women and men must realise that they are the pillars of the institution of marriage. Different pillars serve different but equally important purposes. No family can subsist without a healthy balance of economic or care work. A condescending attitude towards women in the family is the cause of the cracks and, domestic violence and infidelity are the outcome of the emerging cracks.

I would like to emphaise that it is high time that the institution of marriage and family is protected and sustained in our country and that, its very sustenance is dependent upon happiness, comfort and well-being of women and everybody in the family must make concrete efforts towards that objective.

Just as the erosion of the proper and just function of an organ of the State can have damaging consequences on the entire structure of governance, the erosion of the identity of women, in whatever capacity in the family, is bound to cause eventual breakdown of family and marriage.

It is often said that behind a successful man is a woman but I would say that behind a successful woman should be a family.

If it is a mother’s responsibility to provide necessary psychological and emotional support for a child’s learning and education in all realms. It is also her children, including her male children’s obligation to ensure her all-around well-being.

Further a narrow view of marriage, between a dominating “male person to a subordinated female” is now acknowledged as a significant cause of subordination of women and their resultant exploitation in society, especially within the private confines of their household. It is when men fail to realise that education and financial independence of women make them empowered and that they cannot be dominated upon, that cracks develop in a marriage leading to abuse, mudslinging, leading to a discord and sometimes a separation. This vitally affects their children who are victims of marital discord.

I would like to also emphasise that education and financial independence of women cannot result in a woman trying to dominate her husband or other male members of her family. Education should result in development of tolerance and resilience within the family and not lead to ego, vanity and looking down upon others. Respect for the other members of the family and cultivation of a sense of humility would go a long way in sustaining marriage and families. To be humble is not a sign of weakness but one of strength and is antithetical to arrogance.

The path-braking work of last year’s Nobel Laureate in Economics, Prof.Claudia Goldin speaks poignantly to the grim labour market outcomes of women in India. Intra-household dynamics have a lot to say about whether women work or not.²⁷

Therefore, all this requires a greater understanding between the spouses and one should not always look at it as a sacrifice by the wife vis-à-vis her career/profession for the sake of the welfare of the family. A woman, being a home-maker has to face several challenges such as being punctual for others and having no spare time for herself and if she is not recognized for all her commitments towards her family, I can only feel sad for the men. At the same time spouses living in different places for the sake of work and meeting during weekends/holidays is also gaining acceptance. This is owning to the women making their presence felt in their workplace due to their knowledge and skills on the one hand and the need for additional income for the family on the other. Such adjustments by spouses would go a long way for providing better education for children and having a higher standard of life for the family.

Conclusion

Women have come a long way but we are yet to reach a point where a woman like her male colleagues or her husband/brother/father will be able to enjoy the satisfaction of having a secure, stable work-life and a healthy family.

Before I conclude, I must emphasise an issue that remains critical to improving the quality of judicial review and adjudication that, We, the People, and more importantly, We, the Women, of India, deserve. There is an urgent need for all organs of the state, institutions engaged in the regulation and growth of the legal profession and institutions engaged in legal education to work within their mandate to make the Indian judiciary more inclusive and diverse. Having more women on the bench can contribute to a more effective space for the delivery of justice in India. I will only point to three reasons for this.²⁸

1.    the first, is the matter of the credibility and legitimacy of courts,

2.    the second, is about the language and vocabularies of judgments and the

3.    third, is the administration of courts and the need for different experiences to ensurecourts become more gender-neutral spaces.

The participation of women in the judiciary is not only a constitutional imperative but also a necessary step to achieve the goal of robust, transparent, inclusive, effective and credible judicial process.

In many ways, that would be the best tribute to the memory of Late Justice Sunanda Bhandare.

I express my gratitude to Shri Muralidhar C.Bhandare and his family and Justice Sunanda Bhandare Foundation for giving me the opportunity to share a few of my thoughts.

I thank you for your kind attention.

Namaskar.

Foot Notes

*     This speech is reproduced with permission from Her Ladyship Hon’ble Mrs.Justice B.V.Nagarathna, Judge, Supreme Court of India.

1.   Upendra Baxi, 25th Sunanda Bhandare Memorial Lecture.

2.   In 1989 she presented a paper on “Judges as Instruments of Social Change” at the Conference of National Association of Women Judges in Washington.

3.  1979 KLT OnLine 1021 (SC) = AIR 1979 SC 362.

4.   ADM Jabalpur v Shivkant Shukla, (Khanna J.).

5.   Source: Write Up received from Sunanda Bhandare Foundation.

6.Amrit Kaur, Speech Delivered in Jullundur, 1932, in Kaur, Challenge to Women, 15. Cf.Achyut Chetan, Founding Mothers of the Indian Republic: Gender Politics of the Framing of the Constitution (Cambridge University Press, 2022) 88.

7.   Owen Fiss, ‘Groups and the Equal Protection Clause’ Philosophy & Public Affairs, Vol.5, No.2 (Winter, 1976), pp.107-177.

8  1977 KLT OnLine 1107 (SC) = (1977) 3 SCC 99.

9  1979 KLT OnLine 1008 (SC) = AIR 1979 SC 1868.

10.2000 (3) KLT OnLine 1030 (Mad.) = 2000 SCC OnLine Mad 856.

11.2008 (2) KLT SN 69 (C.No. 83) SC = (2008) 3 SCC 1.

12.2019 (1) KLT OnLine 3159 (SC) = 2019 SCC OnLine SC 41.

13. 2021 (2) KLT OnLine 1034 (SC) = 2021 SCC OnLine SC 261.

14.Tarunabh Khaitan, ‘Constitutional Directives: Morally-committed Political Constitutionalism’     (2019) 30(1)Modern Law Review 1.

15.2014 SCC OnLine Kar.12291.

16.2017 SCC OnLine Kar.6551.

17.1996 (1) KLT OnLine 1024 (SC) = (1996) 5 SCC 125.

18..Vineeta Sharma v. Rakesh Sharma (2020 (4) KLT OnLine 1009 (SC) = (2020) 9 SCC 1).

19.. Shrimati Sumitra Mahajan, Debate dated 23.08.2005, Lok Sabha Fifth Session, No. 20, Fourteenth Series, Vol.XII, Date of Publication: August 23, 2015.

20. 2022 (6) KLT SN 1 (C.No.1) SC = 2022 (3) KLT OnLine 1007 (SC) = (2022) 8 SCC 90.

21. 1987 (1) KLT OnLine 1008 (SC) = (1987) 2 SCC 469.

22. 1981 KLT OnLine 1007 (SC) = (1981) 4 SCC 335.

23. . 2003 (3) KLT SN 20 (C.No. 30) SC = (2003) 6 SCC 277.

24. 2015 (3) KLT OnLine 1150 (Del.) = W.P.(C) No. 4525/2014.

25.1997 (2) KLT SN 72 (C.No. 72) SC = (1997) 6 SCC 241.

26.2017 (4) KLT SN 37 (C.No. 42) SC = (2017) 10 SCC 800.

27.Claudia Goldin, Career and Family: Women’s Century-Long Journey Toward Equity (Princeton University Press, 2021).

28.Siddharth Peter de Souza and Medha Srivastava-Kehrer, ‘The Lack of Women in the Indian Judiciary: The Inadequacies of the Judicial Appointment Process’, in Tanja Herklotz and Siddharth Peter de Souza (eds.) Mutinies for Equality Contemporary Developments in Law and Gender in India (2021).

Two-finger Application – A Preparatory for Judicial Surgery

(By Sajeer H., Court Officer, Kerala State Consumer Disputes Redressal Commision,                                                                                                           Thiruvananthapuram)

A salutary judgement of the Apex Court in State of Jharkand v. Shailendra Kumar Rai, reported in 2022 (6) KLT 194 (SC), which declared the two-finger application or two-finger test or per vaginum examination is an aggression into the privacy of a victim. It led to upholding the dignity of the victims of sexual violence. A victim complained of sexual violence before the authorities expecting relief but authorities, without heed to her voice, subjecting her to undergo a preparatory for judicial surgery is a violation of the dignity of the victim and pushed her more traumatized than the trauma she faced. Hence the Apex Court held that testing the hymen of the victim, to testify about her chastity is a foolish journey to judicial surgery.

The facsimile of the case is that the accused entered the house of the victim and pushed her to the ground and committed rape upon her while threatening to kill her if she sounded an alarm. She called out for help, at which point the accused poured kerosene on her and set her on fire with a matchstick. Her cries for help led her grandfather, mother, and a village resident to come to her room. The accused have fled the scene upon seeing them. The victim’s family (along with the villager) extinguished the fire and took her to Hospital, where she was admitted and underwent treatment for the injuries sustained by her. Later she succumbed to her injuries. Section 307,341,376,448 and later 302 IPC were charged upon the accused.

To understand the preparation for judicial surgery of the victim of every sexual assault, we must first look into the methodology of evidence collection. Here she has to undergo a medical examination though such examination is another form of mental torture to the victim. The doctors are indeed shown a sympathetic approach towards the victims and her consent is the most vital to it, the mode and methodology are to push her more traumatised than the trauma she faced.

The methodology of evidence collection from victims of sexual assault especially from rape victims is of extreme privacy and is to be done by a female Registered Medical Practitioner. The examination is of with the consent of the victim alone. If no female Medical Practitioner is there, then a male Medical Practitioner can examine with the permission of the victim. If that event occurs, a lady relative should be present at the time of examination. But if the victim is below the age of 18 years then the examination shall be done by a female registered Medical Practitioner. It is mandated that no reference shall be made by the examining doctor to another hospital on any flimsy or other reasons or no refusal for examination would be made.

The two-finger test is an explicit and intrusive physical examination wherein a doctor inserts two fingers inside the vagina of rape victims to check whether the hymen is intact and to determine the laxity and rugosity of vaginal muscles. It is done by inspecting the size of the vaginal opening and for tears in the hymen to determine if the women have engaged in or have been subjected to sexual intercourse.

Before moving to the methodology of evidence collection, let us examine what are the tools used for this procedure.

The first tool is three different coloured vacutainers. It is to be used for the collection of blood samples. A vacutainer is a sterile glass or plastic test tube with a coloured rubber stopper (tip) that creates a vacuum seal. Out of which, a Gray top vacutainer is used for the collection of blood. Whenever we have a suspicion that the victim has been intoxicated with certain drugs, the blood contained in this vacutainer is to be sent for chemical analysis to find out whether a possibility of any intoxication. Secondly, the violet top vacutainer is used for the collection of blood for the use of examination for DNA analysis. Finally, the red top vacutainer is used for all other purposes.

Four number coloured churidars or other like materials in Medium, Small, Large, and Extra-Large sizes and innerwear of different sizes were kept in the examination room. At the time of examination, the victim is to be requested to remove the entire dress including the underwear and all the same are to be packed and sealed by the examiner for further evidence. The victims are to be provided with a full set of new dresses instead of one she removed.

Another tool is four numbers of 5 Cubic Centimeter syringes. It is meant for drawing the blood from the victim and the accused for sending for examination.

A pair of hand-powderless gloves is another tool which is used by the examiner at the time of examination.

A bowl with normal saline or distilled water is also prepared to dip the swab stick for moisture. Because the dry swabs will not pick up evidence.

Toluidine blue solution can be used to improve the visibility of injuries. Sometimes the injuries are not visible as lesion injuries, especially on the body of the external genital area.To improve the visibility, the examiner is expected to apply 1% toluidine blue solution with a cotton tip swab. The application of toluidine solution in the genital area is of sufficient light, then only the lesions of injuries became more visible.

If the woman had unprotected sexual intercourse then she is likely to become pregnant. To avoid this, if the survivor comes within three days (i.e., 72 hours) of the incident, then these contraceptives shall be provided to her free of cost. This is a single pill that has to be taken within three days of unprotected sexual intercourse. It prevents unwanted pregnancy.

Another tool is NACO, National Aids Control Organization’s colour-coded kit. It supplies five different colour-coded kits and depending on the suspicion of the clinical features to prevent sexually transmitted infections as part of unprotected sexual intercourse. Out of which a grey kit contains two Tablets. Tab.Azithromycin 1g(1) and Tab.Cefixime 400 mg(1) are those. While examining the victim, if any trace of Urethral Discharge (UD), Cervical discharge (CD), Ano-Rectal Discharge (ARD), or Painful Scrotal Swelling (PSS)
Presumptive treatment (PT) then the above tablets are to be advised. The Green colour-coded kit contains Tab.Secnidazole 2mg(1) and Tab.Fluconazole 150 mg(1). While examining the victim if any trace of Vaginal Discharge (VD) then these tablets are to be advised. White colour-coded kit contains Inj. Benzathine penicillin 2.4 MU(1) and Tab. Azithromycin 1g(1) and Disposable syringe 10 ml with 21 gauge needle (1) and Sterile water 10ml(1) which are to be advised if there is any trace of Genital Ulcer Disease- Non-Herpetic (GUD-NH). Blue coded kit contains Tab. Doxycycline 100mg (30) and Tab. Azithromycin 1g(1) and if any trace of Genital Ulcer Disease-Non-Herpetic (GUD-NH) – for patients allergic to penicillin then these medicines are advised. Finally, the Red colour-coded kit contains a Tab. Acyclovir 400 mg. These tablets will be advised for Genital Ulcer Disease- Herpetic (GUD-H).

A nail cutter, scissors and empty covers are some other tools in the hand of the examiner.

In addition to the tools, some envelopes are also in the hands of the examiner. It contains a white sheet.The woman is requested to stand on the white sheet and directed to undress herself. While she is undressing and then opening up the scalp hair,there is some possibility of falling dry leaves or mud, if the alleged incident has happened in the outside area of the home. All the same is to be collected in the debris sheet and folded back and kept in the envelope. It is the first step of evidence collection. For this purpose,strict privacy has to be maintained for the survivor. Speculums and slides are other tools.

Now let’s examine the protocol and procedure for the collection of evidence.

Two slides of vulva swabs are to be collected for evidence from the survivor. The
vulva is the part of the female genitalia on the outside of the body. It includes labia, clitoris, vaginal opening, and the opening to the urethra. Collecting the swab from this area is most important for proving the case of sexual intercourse before a court of law.

The procedure for taking the vulva swab from this area is, first to direct the victim to lay on the procedure table and then to fold her legs at 90 degrees or place her legs on the table stand. Then gently separate the vulva with the left hand of the examiner. Then a cotton tip swab is to be taken and moistened with saline water and then rolled from the top left side to the last down point of the vulva.It is very important to swab from the top to last downpoint of the vulva.After the roll, the same is to be smeared on the glass slide. This procedure is to be followed on the right side of the vulva with another swab stick and smear it into another glass slide noted as the right side of the vulva swab. After taking the vulva swab the glass slides should be left to dry then promptly put the slide in the slide box.After taking the vulva swab the swab sticks are to be properly put into the folder provided in the examination kit.

The next procedure is urethral swab collection. The urethra is nothing but a small hole through which the urine is passed. For a collection of urethral swabs, a cotton-tipped swab is to be used. Soak it into the saline water and then the excess of the saline is to be squeezed out. Then gently separate the urethra and gently pass the swab stick and then turn it in a clockwise direction to remove. After removing it, smear it on the glass
slide. Then the glass slide is kept for some moments to allow it to dry and then it is placed in the slide box.

The next procedure is for the collection of vaginal swabs. To collect vaginal swabs, two types of speculums are used. One is a round speculum and the other is Sim’s vaginal Speculum. Select the smallest one if the victim is young. The speculum is to be selected to suit the age of the victim and the nature of her physical status. Before this procedure, the victim is to be informed about the examination and its procedure and then obtain her consent. After that, the procedure is to be explained to her and leave 5 to 10 minutes for her own decision. Thereafter, if she gives consent then ask her to relax for some moment. Thereafter complete privacy is ensured for examination. The victim is again directed to lie on the procedure table and place her legs on the procedure stand fixed on the table. Then gently separate the vulva with the left hand and gently place the speculum after its sterilisation and turn it ninety degrees. Thereafter, took another one and gently placed and turned it in the opposite ninety-degree direction. If the speculum is expandable with hinges then there is no need to turn. Now the cervix and the upper vagina can be visualised clearly. If the woman is married or sexually active then a round speculum can be used. Three cotton-tipped swabs after moisturising with saline,are placed at the mouth of the vulva then go below it and gently turn around. The swab is to be wiped in a glass slide and leave the glass slide to air dry. The second swab stick is to be wiped out below the cervix and the swab is to be wiped in the glass slide. The third swab is to be used to collect swabs from the inner side of the cervix.So the swab is to be collected one from the above portion of
the cervix one from the below portion of it and the last one is through the cervix.

Another envelope is meant for the collection of scalp hair. In that envelope, a form is attached and a comb is placed inside. The victim is advised to scrub her hair and the loose hair is collected and placed in the envelope.

The hair present in the vulva is to be collected. The victim is requested to comb her pubic hair and the hair placed either in the comb or from the procedure table is to be collected.

The fussed hair present in the vulva is to be identified. It is the hair which stuck to each other due to the sexual relationship. The same is severed gently by using scissors and place in the envelope for cut strands of public hair.

Loose pubic hair collection is another method for evidence collection. It is the most important envelope meant for the collection of foreign pubic hair. The collected foreign pubic hair is to be placed in the envelope for loose foreign pubic hair.

A nail cutter is also provided in the examination kit. The nail clippings of the victims of all the fingers of the hand are to be collected and put in the envelope.

A nail prong is also provided to the examiner. The nail scrapings of the victims are to be collected with the help of the nail prong and the same is to be put into the envelope provided for the purpose. The nail scraping is to be collected from all the fingers of the hands.

The collection of nail stains is another mode of evidence collection. If any stain is found on the nail beds then with a swab stick after dipping it in the saline, roll it on the nail bed and apply over the glass slides. Thereafter the glass slices are placed for air drying and put in the box.

The next most important evidence collection is the buccal swab collection. Buccal relates to cheek. The buccal swab is not a routine thing if a history of suggestive oral sex then we are expected to collect the buccal swab from the right side of the mouth and thereafter the left side of the mouth. For this,the examiner requested the survivor to open her mouth widely and to swipe from the left cheek. After obtaining the swab smear it to the glass slide and allow it to air dry. The above steps are to be repeated on the other cheek.

After examination, the instruments which have been used are to be disposed of. All instruments are dipped into a 5 per centchlorine solution.The confidential report of the medico-legal examination is to be provided to the police for investigation and a copy is to be retained in the hospital for further reference.

These are the cumbersome procedures for evidence collection from the victim. It is regretful to say that being subjected to these types of examinations by the victim may lead a mental trauma for her. The finger test and the examinations are preparatory for judicial surgery. Though these types of evidence collections are water-tight compartments to prove the case of the prosecutions some slight contradictions may lead to the acquittal of the accused. Several victims were carried out after the incident. The contraceptives are only advisory to the victims and not a compulsory one. If the lady reports the incident after the incubation period then the contraceptives have no use at all. No pregnancy tests are directive and under the realm of medical examination.

It is highly necessary and essential to subject all the victims of sexual assault to pregnancy tests and if they are found positive, immediately subject them to Medical Termination of Pregnancy to avoid unwanted children. Moreover, it is high time to pass a judicial directive or an executive order to flexibly the rigidity of MTP to the victims of sexual assault.

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2023 (6) KLT 420 –Rajappan Assari v.State of Kerala – Boon to Fraudsters?

(By P. Rajan, Advocate, Thalassery)

The judgment shown above relates to the Criminal Revision arose out of a misappropriation case in which the trial court and the appellate court had convicted the revision petitioner (accused No.1) under S.406 IPC and in the Cr.Revision, High Court has set aside the conviction and sentence holding that no criminal breach of trust has been proved by the complainant to attract Sections 405 and 406 of IPC, as entrustment of the amount by the complainant to the accused (revision petitioner) with a stipulation to give high rate of interest - ultimately the accused failed to pay the deposited amount and even interest. This being the case of the prosecution, High Court reversed the judgment of the lower courts holding that prosecution has not succeeded in proving the guilt of the revision petitioner.

Facts Discernible

Acceptance of the amount and failure to return the same to the unwary depositor was not in dispute. Accused has not disproved these aspects as the burden of proof he could have discharged under S.102 of the Indian Evidence Act. The point to be considered is whether such an entrustment and subsequent mis-appropriation/swindling of money by the accused would come within the purview of the penal provision. It is evident that the complaint was under Ss.420 r/w 120B IPC also but the trial court convicted the accused under S.406 IPC only presumably the ingredients of S.420 having not been proved. It is pertinent to note that even a charge under S.420 IPC in the case could have been established if the prosecution had attempted to prove that the representation of the accused at the initial stage itself was false knowingly made – no intention to fulfil, on that promise the complainant happened to part with the amount believing the promise to be true, later on the assurance of return of the amount proven to be with fraudulent intention coming within the definition of cheating as defined in Ss.415 and 420 IPC. Lack of evidence, required to prove that charge might be the reason to disallow a finding favouring the complainant for the offence of cheating.

In the reported judgment of the High Court, court has mainly relied upon a Supreme Court judgment reported in 2023 KLT OnLine 1041 (SC) = AIR 2023 SC 228 - Deepak Gaba
& Ors. v. State of U.P. to hold that no offence under S.406 IPC is made out by the com-plainant - accepting the observations made in that judgment. It is held that when deposit of amount is made to derive interest, failure to return the amount will not attract criminal liability under S.406 IPC, ruled the High Court.

The facts of the case decided by the Supreme Court relied upon the High Court are evidently different – just like chalk and cheese. Supreme Court has given such an observation under S.406 IPC on a totally different set of facts. The facts of the case before the top court are per se of a civil dispute, that is the reason why the court has made such observations mainly basing on the pleadings in that case in order to quash the criminal proceedings. In Deepak Gaba’s case, supply of goods and failure to pay the amount for the goods received by the indictee, giving of blank cheque are undisputed facts but led to a complaint under Ss. 405, 420, 471 r/w 120 B IPC. It is contended by the accused/petitioner before the Supreme Court that there was a demand to take back the defective goods supplied by the complainant, also requested to adjust the amount of that goods against the outstanding liability. Averments in the complaint and documents produced were sufficient to hold that the dispute between the parties is undoubtedly was of civil nature and at the most as a cheque was given, complaint under S.138 NI Act 1988 would suffice, if any legally enforceable debt or liability existed. The court also made mention about the cryptic order of the Magistrate to summon the accused, proof regarding claim and counter claim surfaced as detailed in Paragraphs 20 and 23 of the judgment. Supreme Court has explained facts of the case in detail to decide in favour of the petitioner therein who requested to terminate the proceeding under S.482 Cr.PC. Judicial discipline demands acceptance of Supreme Court’s judgments by the lower courts as the precedent insist as stated under Article 141 of the Constitution but if facts totally vary Court can give its own finding irrespective of the Supreme Court’s observation or order which may not apply to a case being decided by the lower courts on totally different set of facts, sometimes may lack even persuasive value. In the reported judgment High Court also discussed about the Explanations 1 and 2 under S.405 IPC which speak of an employer’s liability under the provisions of Provident Funds and Miscellaneous Provisions Act 1952 and Employees’ State Insurance Act 1948 which are applicable against an employer when he refuses to pay the employees contribution after deducting it from the wages/salary and retains the same-which amounts to entrustment. These explanations are introduced to safeguard the interest of oblivious employees, and no way relates to the reported judgment.

In the ruling rendered by the High Court there is no dispute or contra evidence regarding acceptance of money by the accused thus entrustment is proved. Promise to pay interest is not a point to be considered in favour of the swindler to hold that proof under S.405 is absent. Failure to repay the amount after receiving it makes out a case of breach of trust and the burden is only on the accused to disprove the case of prosecution.

Money laundering across the State by deceitful means is on the rise even in the cooperative sector. Enforcement Directorate takes up investigation when crores of rupees are misappropriated. Bogus companies and persons to get cash deposits with tempting promise of timely return of huge profit or interest luring greedy depositors, face prosecutions under the BUDS Act 2019 is no news now. Judgment of the High Court is a bolt from the blue to many who managed to wangle depositors and here the despair of the complainant is perceivable but Rajappan Assari the revision petitioner has the last laugh.

Co-Parenting – Need of the Day

(By Leela R., Advocate, High Court of Kerala)

Marriage, the family and reproduction has been a key element of Civil society.
“Marriage” attempts to hold a man and woman to collective social standards including responsibility for the women they impregnate and the children they father, while also stringently hedging in the woman’s sexuality. In short, marriage has always demanded that both men and women sacrifice a considerable measure of individual freedom to act in the interest of the family. However, with the advance of progressivism and advent of post modern multiculturalism, divorce rates are increasing, making it vital to openly discuss and address the challenges that arise, especially when children are involved.

In this article, an attempt is being made to bring out the rights of the child in a broken marriage for parenthood and the right of the child for co-parenting benefits, having regards to the present law and in comparison with the right of the child guaranteed under the United Nations Convention on the Rights of the child.

While divorce legally ends a marriage, it doesn’t mean the end of the family for the child. It’s crucial to view divorce as the separation of partners, not the separation of a family unit. A child thrives in a healthy family environment, regardless of the parent’s marital status. Post-divorce, parents must work together to maintain a supportive and nurturing atmosphere for their children’s well-being.

In India, most often couples fighting for divorce forget about what’s best for the child and take on single parenting in rigidity against their spouse. Unfortunately, the power of the Court to make an order of guardianship under the Guardian’s and Wards Act grants power to the Court only to declare ‘a person’ as guardian. Hence, once the couple are estranged the custody is put with one of the party by the Courts generally and thus, denying the right of the other parent to be with the minor child and support the upbringing of the child.

Co-parenting after divorce can provide a healthy chance of living a normal life for the children. In India, where divorce reasons are mostly because of abuse or desertion, parents are always at fighting ends. This affects the upbringing of the child to a great extent. One should be very careful that the conflicts and anger between spouses should in no way affect the growth of child mentally. If the latest Census are taken the rate of use of drugs, alcohol among the young generation - the youngsters who are addict for drugs and alcohol are mostly from broken families. The broken family has also resulted in many youngsters deviating from good paths and ending into criminal activities. Broken family has been a cause for several disasters including child abuse. On many occasions, fighting parents only to satisfy their egos and gain support of the child, yield to any of their demands without noticing that they are moving on a wrong path. Many a times, genuine parents are denied even visitorial custody on account of the other parent who is having the custody of the child instigating into the minor mind vengeance against the other parent. The parent who so instigates vengeance in the minor mind forgets that instigating such vengeance also instigates poisons thoughts into the minor mind making him a socially deviant person.

The Apex Court and the various High Courts in the country have time and again come up with the question of custody and have expressed that “the child would perhaps be happiest if he could have both his parents, unfortunately the parents are unable to resolve their differences and stay together. Be that as it may, the child has a right to access both parents, and get the love and affection of both parents.”

In Anuj Chaturvedi v. Jyoti ¹ the Apex Court held that the child has the right of love and affection of both parents and to have access of both their parents. The same was reiterated and confirmed by the Apex Court in the recent judgment in Himanshu Chordia v. Arushi Jain.²

In T.S.Ramesh v. Krithika,³ the Madras High Court has held that the child is bound to have the father’s love and guidance and mother’s care and affection which are the birth rights of every child.

THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD

The United Nations convention on the rights of the child is an important agreement which envisages on the rights of the child in the world. The convention explains who children are, what are the rights of the children and the responsibilities of the Government to protect the rights of the children. The convention envisages that all rights are equally  important and the same cannot be taken away from any child.

“The Convention on the Rights of the Child (CRC) was approved by the General Assembly of the United Nations on 20 November 1989. The Convention was formally opened for ratification on 26 January, 1990, the Government of India ratified the CRC on 11 December, 1992. It, however, has signed the Convention, thereby indicating general support for its principles and an intention not to take actions that would actively undermine those principles. The CRC is the most complete statement of child rights ever made. It takes the ten principles of the 1959 Declaration of the Rights of the Child, and expands them to 54 articles, of which 41 relate specifically to the rights of children, covering almost every aspect of a child’s life” ⁴ .

Article 6 of the United Nations Convention on the Rights of the Child lays emphasis on the life, survival and development of the child to ensure the life and safety of the children. Legislations such as Juvenile Justice Act, Prohibition of Child Labour Act, Guardians & Wards Act have been framed in the Indian Legislation. To ensure the survival and maintenance of the child Section 125 of the Code of Criminal Procedure Code, provisions on the Hindu Marriage Act, Hindu Maintenance & Adoption Act have been framed. Section 24
of the Guardians & Wards Act casts duties of the guardian to look and support for the health and education and such other matters of the child.

Article 9 of the United Nations Convention on the Rights of the Child specially provides the children shall not be separated from their parents against their will except by competent authority, if such separation is on the best interest of the child. It is with this object that the Juvenile Justice Act 2015 was created with special incorporation “child in need of care and protection” and “child in conflict with law”. Further, the Central Adoption Resource Authority (CARA) the nodal body for adoption of Indian Children is mandated to monitor and regulate “in-country and inter-country” adoptions. The provisions in the Juvenile Justice Act also creates space to ensure that even the parents of the children do not misuse the children for their personal use or abandon their children. The provisions are also made to codify all personal laws regarding adoption, maintenance and guardianship.

Article 10 of the Inter National Conventions provides that the children whose parents live in different countries should be allowed to move between those countries so that parents and children can stay in contact.

Article 18 of the Inter National Conventions provides that both parents have common responsibility for upbringing and development of their children. The best interest will be the basic concern.

Article 19 of the Inter National Conventions lays emphasis on the State to take legisla-tive, administrative, social and educational measures to protect all forms of violence, physical or mental injury or abuse, neglect, maltreatment or exploitation including sexual exploitation when alone or while in the care of the parents or any other person who has the care of the child.

India who is the signatory to the convention of the Rights of the Child has made effort to protect the right of the child by making appropriate changes in the existing legislation as well as bringing up new legislations to ensure the safety of the child in accordance to the convention on rights of the child.

National Laws and the Inter National Conventions envisage and try to protect the rights of the children. But if the parents are head on hoer against each other despite there being laws and provisions to take care of the rights of the children practically it will fail and violate the rights of the child guaranteed under the Inter National Conventions and the National Legislations. The children who are the sufferers in broken marriage are often made to suffer by sitting for long hours in the court premises, made to face the Judges, the Lawyers and the Police in their uniforms, bound to carry on their mental trauma and torture of prolonged fights between their parents inside the court premises as well as during custody hours. Unfortunately, no provisions has been made in the Family Courts Act or in the Rules governing the Family Court to protect such hardships being faced by the children who for no fault of theirs are constrained to undergo such traumas.

The present system does not provide for any Child Psychologist and the children who are unable to speak their heart fearing the wrath of the erring parent in whose custody they may presently be often end up suppressing their true emotions which neither their near and dear ones ever realised. This sometimes results in triggering the other parent from expressing his love, support to the child which often leads for the improper growth of the child, measures like Section 125 Cr.P.C. add fury sometimes when the custody of the children are refused to the father by the mother or vice versa. Often the custody of the children are not disturbed by the Courts and this leads to the battle of egos between the parents which devast the future of the child.

CONCEPT OF CO-PARENTING

If a good citizen or member of a society has to be made it is possible by the parents alone and not by others including surrounding circumstances. A single parent cannot discharge the responsibilities of the parents as what is expected from each of the parents is different as a role of each of the parents is also distinct. The foreign nations have always looked into and appreciated the concept of family in Indian society only because of the understanding that for a better future of the nation, investment in the younger generation is what is needed and most necessarily bringing the character in the younger generation is what will built a better world. However, in India due to the advent of western culture more number of nuclear family and more and more of divorce are leading to broken families and in-secured children who are torn between two warring parents with regard to the guardianship.

Divorced couples should take up joint custody of the child, putting aside their differences for the sake of the upbringing of the child.

Generally, after a divorce or judicial separation, the children need to be given a definite place of residence with either of the parents in case of children below the age of 18 years.

Every parent has certain rights and duties towards their children, which becomes the main point of contention on separation.

Under the Indian Law, the welfare of the child is given the utmost importance in settling a matter of child custody. The parents can present their version of events and project their case from their perspective. But the Judge will eventually rule on the basis of what is “in the best interest of the child” and which one of the parents is most suited to address those needs. The parent who can provide the child with better financial support is usually the one who is granted custody of the child. But there may be other instances where the child may have special needs which are being addressed by one among the particular parent, in such cases, the Judge may award a more customised custody solution. This however, restricts the custody to one parent and denies the right of the other. The child’s fundamental right of the love and affection of both the parents cannot be equally satisfied or sometimes equated by a judicial order. This in turn actually results in trauma to some children. But, it is unavoidable as the Courts have to come to some conclusion with the available materials and for “the best interest of the child”.

Types Of Child Custody

Physical custody:

The court declares either of the parents to be the custodial parent. It is this parent with which the child will live and be brought up. Usually, if the divorce is amicable or mutual, then the parent who has not been granted physical custody is allowed certain visitation rights.

Joint Physical Custody:

This type of custody is a product of more recent developments. When both the parents come to a consensus as far as raising the child is concerned, the Judge may award legal custody to both the parents. However, the physical custody is overtaken by either of the parents, making that parent the primary caretaker.

Sole Custody:

In cases where one parent is declared unfit by the court for obvious reasons the other parent receives exclusive and sole custody of the child. In such cases, visitation rights for the secondary spouse is not usually allowed.

Third-party custody:

In certain cases, it may be proven that neither parents are fit to raise the child or rather there is a third party, who is usually a close relative, who is capable of taking better care of the child and is voluntarily willing to do so, then the court may grant custody to the third party.

The concept of sole custody is not much promoted in Indian Judiciary. Similarly, the concept of third party custody also is not promoted. The concept of third party custody is given or utilized by the court only in cases of Juveniles in conflict with law and in certain cases, when it comes to child in need of care and protection. The Child Welfare Committees are mostly concerned with the third party custody.

The need for evolution and incorporation of co-parenting as law in custody matters “Co-parenting” (sometimes called “shared parenting”) is when both parents work together as a team to raise their children, even after the marriage or romantic relationship is over.

The main reason to work at co-parenting is that it helps children deal with all the changes that happen when their parents are no longer together.

The Supreme Court, in 2019, ruled that ‘a child has the right to affection of both his parents’.

In this context, the concept of shared parenting can help the child. However, it is not an option in India, due to the archaic laws.

Shared parenting is when children are brought up with the love and guidance of both parents following a separation.

All children need the love and support of both their mother and father. Parents who live apart can still provide these things if they work together and put anger and conflict aside.

How to make co-parenting a reality?

Communicating With the Other Parent

All kids are part mom and part dad, so hearing hurtful things about either parent, especially hearing them from a parent, can hurt the kids’ self-esteem. Remember that the kids love both their parents and don’t want to hear bad things about either of them.

• Even though the marriage or romantic relationship is over, one can focus on the parenting relationship. What matters most now is –The KIDS!!

• Arguing about the old relationship only makes it harder to work together as parents for the kids.

Hence, the first and the foremost step for co-parenting is to take an effort to communicate with the other spouse, forgetting the differences and only concerned about the children. The parting parents for the sake of children should sacrifice their egos and communicate the details of the children with each other, so that the child does not stand as a mouthpiece for both.

All kids need both dad and mom to participate actively in their lives.

• All kids will do better and be happier when they have the love and support of both parents, even if it’s from two different houses.

• All kids need to see that parents can talk with respect to each other.

• Communicating for the sake of children can double check what the kids are telling the parent - Sometimes children in this situation will say things that may not be true about what goes on in the other parent’s home - like, they get to use curse words at dad’s house, or that mom thinks that school is a waste of time. Communicating often with the other parent will help one determine whether or not these things are true.

• Parents will both feel more involved in their kids’ lives that by time the egos will slowly shed and will lead to a better quality in the child as a future citizen. Staying in communication helps to know what the kids are up to, even when they’re with the other parent.

• Regular communication can help the parent keep little misunderstandings from becoming big conflict

• Respect, or at least try to tolerate, the other parent’s parenting decisions – Sometimes the parent who is not having the regular custody may be the one who could emotionally or financially aid what’s best for the kids.

• Set up a regular time to talk with the other parent about the kids and permit the kids to talk freely with the other parent. This may not be fun or convenient, but it’s important.

• Remember to make important decisions about the kids together.

By establishing a collaborative approach, divorced parents can create a nurturing and stable environment for their children. One of the most significant benefits of co-parenting after divorce is providing emotional stability for children. When both parents actively participate in their child’s life, it reinforces the sense of security and love. Children are less likely to feel abandoned or neglected, as they can maintain a close relationship with both parents. This stability helps them cope better with the divorce and build healthy relationships in the future. The co-parenting will also help to reduce the risk of the child falling into the trap of drug/sexual abuse. A regular check and communication between the divorced parents for the sake of children will surely instil in the mind of the child a safety and security as well as a fear of being found if he chooses the wrong way that the children do not tend to choose the wrong path. Broken families have been the cause for rise in crime rates. If the system of co-parenting is effectively introduced a risk of children getting involved into criminal activities can be reduced to a great extent.

Shared Parenting Responsibilities:

Co-parenting involves shared parenting responsibilities, which can alleviate some of the burdens of single-parenting. By working together, parents can divide tasks such as school pickups, extracurricular activities, medical appointments, and other obligations. This arrangement allows both parents to have quality time with their children while also fostering a sense of equality in parenting. The concept of shared parenting will also ease the mind of the child as it will not give an insecure feel for the child or tension of loosing the other parent’s love and affection.

Consistency and Routine:

Co-parenting helps the children to thrive in a stable and consistent environment. Co-parenting encourages the development of routines and consistent rules between households. When parents collaborate and maintain similar schedules, expectations, and values, children can adapt more easily to the new family dynamic. Consistency in parenting styles helps children feel secure and minimizes confusion and conflict.

Effective Communication and Conflict Resolution:

Successful co-parenting requires effective communication and conflict resolution skills. As already discussed above, by learning to communicate respectfully and openly, parents can discuss important matters regarding their children’s well-being. This includes sharing information about school, health, and emotional needs. When conflicts arise, a collaborative approach allows parents to find compromises and prioritize the best interests of their children.

Positive Role Modelling:

When we speak about co-parenting it is not an easy in all cases, for instances, when one of the partner is an abuser (physical/sexual), narcissistic or a person with personality disorder, then it is not easy to communicate or discuss the concept of co-parenting with such partners. In such cases, the concept of sole parenting is the only way out. However, in other cases, where the divorce has resulted only on account of ego clashes/family interferences etc., ignoring the differences and incompatibilities if the parents are ready and willing to opt co-parenting, then Co-parenting provides an opportunity for parents to be positive role models for their children, even after divorce. By demonstrating co-operation, respect, and compromise, parents can teach their children valuable life skills. Children who witness healthy co-parenting are more likely to develop strong relationships, effective communication skills, and problem-solving abilities.

Co-parenting is not easy in all cases.

Co-parenting problems can be triggered or turn out to be ineffective on certain specific issue, such as:

a. One of the parent wants to relocate overseas with the children leaving the other parent feeling marginalised and cut off from their children

b. A parent meeting a new partner or getting remarried

c. A parent having another child with a new partner so upsetting the family dynamics and routines

d. A child experiencing health issues such as an eating disorder or a child questioning their gender

e. A child saying that they dislike a parent’s partner or his or her children

f. One parent getting a new job that means the family will need to move house making a change in contact arrangements necessary

g. A parent losing their job and experiencing financial hardship or worrying about the cost of living crisis.

In situations discussed above, it may not be practical to effectively implement the concept of Co-parenting. However, if the parents have the will to opt for Co-parenting, by certain sacrifices and adjustments, it can turn into a reality.

Modes for making Co-parenting a reality

Be practical– Parents can fall out about the basics so think about handovers, school uniforms (who is washing it), who is helping with the school homework, the communication (sometimes there are complaints about daily texts and in other cases complaints about lack of communication) and house rules (bedtimes, screen times, homework rules, food, and diet). Communicate on the needs of the child and make practical outcomes to fill the gaps during exchange of children. Do not consider the children as property, but as human beings who need the love, security and affection of both parents.

Think long term – While the parent having the major custody of the child, may be struggling to just get through the week because of work and childcare commitments, it can be best to think long term of how to reach an agreement over sharing school holidays, birthdays, Christmas, and other special or religious occasions so that the children know in advance their holiday schedules as well as can plan their holidays, enjoy the company of the other parent.

Be flexible – There may be times when the parent to whom custody is given falls sick, meets with accident, looks job etc., and may need the help of other parent to take care of the child be flexible don’t stick to previous arrangement.

The Apex Court has recently held that “a child has the right to love and affection of both parents and to have access to both their parents”.

Co-parenting is a concept which does not now find a place in “Guardians and Wards Act” presently. However, the Apex Court and all the High Courts have in the verdicts considering “Welfare of the child as the paramount interest” held that love and affection of both parents is the fundamental right of the child. India is a party to the Convention on the Rights of the Child. Article 19 of the United Nations Convention on the Rights of the Child casts a duty on the State to make legislations to protect the rights guaranteed under the Convention. Right to family reunification is a Right guaranteed under the United Nations Convention on the Rights of the Child. The other nations upholding the right have ensured to keep co-parenting as an essential system. In India also we have laws to protect the Rights of the Children for family. However, practically when a custody order is passed, the other parent ignoring the concept of co-parenting tries to hold the child as an independent property and refuses to share the child with the other parent often that unless the usage of the term co-parenting is expressly brought into legislation as well as incorporated in the custody orders, the Right of the Child for family reunification will often remain in papers and the child will be bound to suffer the trauma in the Court premises till he attains majority. Co-parenting is the need of the day with educated parents and broad minded Courts. It is not far that the Law on “Co-parenting” becomes a reality.

Foot Note

1.  2019 (4) KLT OnLine 3330 (SC) = 2019 Latest Caselaw 964 (SC).

2.  2022 (3) KLT OnLine 1228 (SC).

3.  2023 KLT OnLine 2163 (Mad.) = 2023 Latest Caselaw 2027 (Mad.).        

4.Report of the Sub Committee on United Nations Convention on the Rights of the Child.