Role of The Kerala Judiciary Towards The Empowerment of Women

(By Sathyashree Priya E. Advocate, Cochin)

Power means 'the ability to do anything physical, mental, spiritual & legal".

Further definition of the term 'Power' — Strength, energy, right to command, authority,rule, influence, control, potentially a wielder of authority, strong influence, or rule..........andso on and so forth.

The empower means to clothe with all such things quoted supra.

Empowerment of women means "to give women such power of authority, rule, influence, command, etc. etc.". Nature has gifted women with all such gifts in abundance. Probability in the long run of human race these would have been slowly and gradually snatched away from them. The reason behind this could be many. But the result is that women were looked down upon as a piece of chattel to be owned and possessed with no personality, with no voice, without much say, either in the household affairs or in the affairs of the State. This was the position of a woman in the beginning of 20th Century (though in the Vedic and pre-Vedic times the scenario was totally different!)

Women were not allowed to own, possess, buy or sell properties, were deprived of individual means of livelihood, (even if permitted to earn) were deprived of equal wages for the equal nature of work, were cut off from the political process, denied of education; they did not even have a right of choice in their own matrimony.

Recognising the unequal status of our women folk, the framers of our Constitution have introduced certain enabling provisions so as to uplift them and enable them to achieve equality on par with her counterparts. Various enactments have been enacted by both the Centre as well as State Government for the empowerment of women and for the purpose of their equal participation in all walks of life. There are certain provisions in our statutes which take into consideration the status of women in our society. For example, the Code of Civil Procedure protects a woman from arrest or detention in execution of a money decree. This provision was challenged as unconstitutional. But it's constitutionality was upheld in Cyril Britto v. Union of India and others as reported in AIR 2003 Ker. 259. The role of the judiciary towards empowering women could be to identify their rights and upheld the same and also in interpreting the rights in a beneficial manner wherever possible.

Marumakkathayam -- A Special Mention

Though the State of Kerala is very small in territorial extent, we do not find elsewhere in India, as in this State, such a miscellaneous collection of communities with such a variety of customs and usages in their family relations especially relating to women. This peculiar feature of Kerala presents complicated problems in the application of personal laws in the administration of Justice. This is perhaps the only State in India where the Marumakkathayam or the 'matrilineal system of descent' was practiced. The matrilineal line of descent is the essence of the Marumakkathayam and the Aliyasantana systems. Descendants of the family line is through one of common ancestress. The marriage of a girl never operates as severance of her membership from the family of her birth.

But the properties were administered usually by the eldest 'male' member of the family and the female members did not possess a right of alienation. Even in the matrilineal system this was the position of law! In patriarchal system as well, which is generally practiced elsewhere, women were not allowed to possess or alienate property except the 'stridhana' offered to her or promised to be offered to her at the time of marriage. Thus resulted in lowering of the status of women in the society as she was not financially empowered!!

Gender Justice

One of the methods of empowering women is through Gender Justice. The Courts in Kerala are quite alert to those rights. Unfortunately the number of cases filed in the realm of Gender Justice is abysmally low. However, there are quite a few landmark judgments, which try to uphold the rights of the women, which are discussed below. Gender Justice includes Social Justice, Political Justice and Economic Justice as well.

Rights of Women

There are various rights available for the empowerment of women through various legislations. Some of the major rights recognized under law are

(1) Right to life

(2) Right to equality

(3) Right to education

(4) Right to equal pay for equal work

(5) Right to Maternity Benefits

(6) Right against sexual harassment at work places

(7) Right against exploitation

(8) Right to property

(9) Right to maintenance

(10) Right to participate in the political process etc. etc.

Women and Property Rights:

No doubt, the right of women recognized under Hindu Women's Right to Property Act. 1937'. to own and alienate property created a revolution in the status of women and was considered as a big leap towards empowerment of women. It was declared by Justice Balakrishnan in Kamalakshi v. Pankajakshan as reported in ILR 1991 (3) Ker. 500 that a widow has statutory right to get a share equal to that of the share due to the son. The right to property is governed through various personal laws. The Hindu's are governed by Hindu Succession Act and as far as Christians are concerned Indian Succession Act is applicable to them.

Prior to S. 14(1) and (2) of the Hindu Succession Act women had only a limited estate in properties. However in Rohini & Ors. v. Janaki & Ors., 1988 (1) KLT 889, Pareed Pillai, J. declares that S. 14( 1) of the Hindu Succession Act has very wide amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and any property acquired by inheritance, partition or arrears of maintenance or gift. He further declares that such estate is an absolute one and is indefeasible and its ambit cannot be diminished or extinguished by any text or rule of Hindu law or by any presumption or any legal fiction.

Further in interpreting S.18 of the Act Justice Krishnamoorthy, J. in Narayanan v. Pushparajini, 1990 (2) KLT 286, holds that the Act never intended to make any difference between a man or a woman and the relationship to be reckoned is in terms of the degrees of ascent or descent or both.

Moving one step ahead, Justice Kalliath in Sadasivan v. Vasumathi, 1987 (1) KLT 592, interprets S.23 of the Hindu Succession Act in such a way that female heirs could claim partition of the dwelling house where there is only one such male heir involved (and if there is no plurality of male heirs).

As far as Christians are concerned in Mary Roy v. State of Kerala, 1986 KLT 508 (SC), the Supreme Court declared that intestate succession to the property of Indian Christians in the territories of the former State of Travancore is governed by the provisions contained in Chapter II of Part V of the Indian Succession Act, 1925. Since S.33 of the Indian Succession Act provides for equal share of the property to wife and the lineal descendants of the male dying intestate, it goes without saying that daughters also have an equal right in the property as to that of sons.

Dowry

In dealing with provisions under Dowry Prohibition Act, 1961 Justice .K.Balasubramaniam as reported in Rani v. Sasidharan, 2002 (1) KLT 194, categorically lays down that though gift is executed in favour of son-in-law after the marriage if terms and conditions of the gift are settled before the marriage took place then such a transaction could be termed as 'dowry' and is illegal. No right could be claimed based on such an illegal transaction.

Right to Maintenance

The need to provide reliefs of maintenance emanate from social ethics and personal economics and this need is sought for both on the moral and secular grounds. This has been laid down in a Division Bench ruling (V.V. Kamat, J. & P.K. Balasubramaniam, J. in Joy v. Usha & Ann, AIR 1996 Ker. 191).

In proceedings under S.125 of the Criminal Procedure Code the Kerala High Court in Sreedharan v. Pushpa Bai, 1978 KLT 26, has held that the standard of proof required for a marriage in such proceedings is not so high as is required in connection with proceedings under Indian Divorce Act or in a prosecution for bigamy. This position has been reiterated by Justice Kurian Joseph in Selvaraj v. Jaya Kumary & Ann, 2000 (3) KLT 519. His Lordship has held that in a petition for maintenance by a distraught wife standard of proof of a marriage is not so high as required in other proceedings. Also in Hymakrishnadas v. Krishnadas, 1985 KLT (SN) 53, it has been held by our High Court that pleadings in proceedings under S. 125 is to be liberally construed. Thus while interpreting such beneficial legislations in a liberal manner, the Courts come to the rescue of the hapless women who are otherwise unable to help themselves financially and are left high and dry by their husbands! Further it has been laid down in 'Narayanan v. Parvathy', 1980 KLT 605, that no wife can be compelled to submit to the indignity and icy neglect such as the petitioner has shown and to continue to suffer the ordeal of her animal existence in his house merely because of the food and shelter that is available there.

S.18 of the Hindu Adoptions and Maintenance Act, 1956, clearly lays down that for sufficient reasons a Hindu wife shall be entitled to live separately form her husband without forfeiting her claim to maintenance. S.24 and 25 of the Hindu Marriage Act, 1955 provides for alimony to a Hindu wife. According to S.20 of the Act a Hindu is bound to maintain his or her aged or infirm parents and his or her legitimate or illegitimate children.

These Sections have received a liberal interpretation in the judgment of Sukumaran, J. (as he then was) in Radhakumari v. K.M.K. Nair as reported in 1982 KLT 417. It was laid down here that the fact that the wife was being supported by her parents was no ground for a husband to claim immunity from liability to pay maintenance. Social status, age, educational and other requirements of children were relevant factors in fixing quantum of maintenance. His Lordship by way of obiter, continued to express anguish over the Family Courts not being set up till that point of time. He chided the Courts below in applying their minds mechanically in family related disputes. In paragraph 32 of the above quoted decision he criticizes the Trial Court Judges while observing that a woman or a wife was treated as a chattel or as 'stolen articles'. He also had stressed that Courts with presiding officers well trained to deal with such disputes in a human way ought to be appointed to hear disputes relating to the family. Further his Lordship in E.V. Kunhimariam v. Oormaveettil Mamm, AIR 1985 Ker. 239, chides the attitude of a Indian male in para 32 of his judgment. Reverting to the facts of the case (where a Muslim woman married as a second wife to her husband and subsequently deserted by him after having an infant child to look after) he observes that this case perhaps demonstrates the extremely harsh and rigorous attitude of Indian mind towards women so unfortunately situated as the Indian divorced wives often are, even in the nineteen eighties.

Yet another landmark decision rendered by a Full Bench of the Kerala High Court in Mary Sonia Zacharia v. Union of India, 1995 (1) KLT 644 (FB)) deserves a special mention here. It was declared here that there is no constitutionally justifiable reason for denying a right of dissolution of marriage on the ground of cruelty coupled with desertion to Christian wives alone when spouses belonging to all other religions are granted dissolution on those grounds also independent of adultery and that S.10 of the Indian Divorce Act would remain without the words "insectuous" and "adultery coupled with" as these were held to be violative of Arts. 14, 15 and 21 of the Constitution of India.

In fact this decision subsequently paved way for the much needed reforms in the Indian Divorce Act which stands amended now.

The Kerala High Court has upheld the right of a Muslim woman to claim fair provisions for her future use beyond the iddat period in Kunhammed v. Amina, (M.M. Pareed Pillay, J. and T.V. Ramakrishnan, J.) as reported in 1995 (1) KLT 765 (DB) have held that the former husband of a divorced woman under S.5(3) of the Muslim Woman (Protection of Rights on Divorce) Act, 1986 is liable to make a fair and reasonable provision for her livelihood even for post iddat period apart from his liability to pay maintenance during the iddat period. This decision of their Lordships was later affirmed by the Hon'ble Supreme Court in a later judgment Danial Latif v. Union of India as reported in 2001 (3) KLT 651 (SC)(FB) rendered by it.

Indian Divorce Act:-

While dealing with S.10 of the Indian Divorce Act, Justice Lakshmikutty as reported in Philip v. Susan Jacob, 2001(1) KLT 890, has categorically laid down that "The most cruel thing that can be done against a woman is to question her chastity without any basis". Hence judicial separation cannot be ordered in a petition by the husband for the reason that wife is separately living on this ground.

Equality in Employment Opportunities:-

Regarding equality in employment opportunities Vijayamma v. State of Kerala (as reported in 1977 KLT 677, proves to be a landmark judgment. It has been held that if the effect of the law or an executive order is such that by its operation he or she is denied of the fundamental right only on the basis of his or her sex, the same would be unconstitutional. It was further held here that Art.l5(l) prohibits classification of citizen on the basis of sex for any purpose and Art. 16(2) in matters relating to public employment. In the instant case the petitioner had not been considered for promotion as stenographer in the police department only because she was a woman, wherefore according to the respondents she was unsuitable for that work because of its peculiar nature namely, 'touring along with officers and working at odd hours'. The real and substantial reason for, and the direct and immediate ground of her ineligibility for promotion was that 'she is a woman'. In Rajamma v. State, 1983 KLT 457, the Courts have even gone one step further. In fact this case was one among the foremost in the High Court of Kerala in recognizing the rights of women. This was a case where prescription of cycling qualifications for women for appointment to posts peons was considered as not supportable on logic or reason. Justice Subramanian Potti (Ag. C.J. as he then was) on his behalf and on behalf of his brother Judge Paripoornan, J. held here that 'the right of women should not be denied on fanciful assumptions of what work the women could do and could not do. Whether the work is of an arduous nature and therefore unsuitable for women must be decided from the point of view of how women feel about it and how they would assess it'. Hence denial of appointment to women in Last Grade Service on the sole ground that they are women is violative of Arts. 14 and 15. Such denial is irrational and militates against the guarantee of equality. This decision has resulted in creating a positive scenario in the work force. A lot of lady employees are absorbed as peons as well and are able to earn a decent livelihood of their own!

Also in Omana Oommen v. F.A.C.T. Ltd., 90(l) KLT614, his Lordship Sivaraman Nair,J. had held that the denial of appointment to ladies on the ground that they have to work in night shifts is entirely on the basis of sex and is violative of Art. 14 and 15 of the Constitution of India.

In Mariamma v. Hindustan Latex Ltd. his Lordship Justice K.G. Balakrishnan (as he then was) as reported in 1993 (1) KLT 899 has held that denial of promotion to lady employee working as Head Guard to that of Assistant Security Inspector on the ground that she is a lady is violative of Art. 16 of the Constitution of India. In Hindustan Latex Ltd. v. Mariamma, 1994 (2) KLT 111, it has been held that the 'Special Provision' in favour of women under Art. 15(3) can be made whether by the legislative wing or by executive or any other authority. Also, Justice Mohammed in writing down the judgment further emphasized that the validity of a law apparently offending Art. 14 can be upheld if it falls within the ambit of Art. 15(3).

These decisions have helped in the long run towards higher percentage of employment of women in the labour force.

This, so far, has been the role played by the Kerala Judiciary towards empowerment of Women. The Judiciary is quite alive to the promotion of Gender Justice and we wish our judiciary could produce more landmark judgments (as and when the judiciary is approached) to wipe away the tears shed in silence by many woman so that God's dwell in God's own country.

KERALA HIGH COURT ON CO-OPERATIVE LAW --

A DIGEST OF CASES -- 2004

(By R. Muralidharan, Secretary, Pondicherry Public Servants Co-operative Society, Pondicherry)

It is amazing that Kerala continues to contribute, inter alia, in the field of co-operative law and it is evident from not from the mere number of cases decided by the Kerala High Court but more interestingly from the trend it sets. Kerala High Court is, therefore, a trendsetter in every respect. In this article, the judgments rendered by Kerala High Court on co-operative law are discussed chapter-wise. The Kerala Law Times published these judgments during the year 2004. The sections and rules quoted in this article are that of Kerala Co-operative Societies Act and the Rules made thereunder.

Membership and General Body

Whether failure to pay additional share value would result in cessation of membership is decided in negative in Kadakam Service Co-op. Bank v. Narayana Bhat, 2004 (2) KLT 179, by the Division Bench. The Court held that the only effect of the member's failure to pay the additional share value is that until he pays the additional share value, he will not be entitled to exercise any of the rights of a member of the bank. Since the first respondent has not been removed from the membership either under R.16(3) or under R.16(4), the Bank could not have refused to accept the difference in share value, even though it was submitted by him belatedly. At the same time until he pays the additional share value, the first respondent cannot exercise the right of a member. The expression "such payments to the society in respect of membership" found in R.19 includes the extra amount to be paid by a member on account of any subsequent amendment to the bye-laws increasing the share amount.

Holding that the representative general body has power to amend the bye laws and dismissing the Writ Appeal, the Division Bench in Anil Akkara v. Registrar of Co-op. Societies, 2004 (2) KLT 805, has ruled that exercise of any power by the representative general body is subject to such restrictions and conditions as may be specified in the Rules or the bye laws. Even though the power to make or amend the bye laws of a society is ordinarily vested in the general body, where a representative general body has been constituted as per S.27(2), the representative general body is competent to amend the bye-laws of the society except the bye-laws relating to its own constitution or powers and the exercise of such power to amend the bye-laws is only subject to the restrictions and conditions, if any, specified in the Rules or the bye-laws. By impugned amendment, the term of office of the committee was enhanced from three years to five years and the said enhancement was made applicable to the existing committee. There is no merit in the contention that the representative general body of the bank had no power or competence to make the impugned amendment to the bye-laws which were registered by the Joint Registrar.

In the absence of any enabling provision in the bye-laws, only the general body can propose amendment to determine the area/constituency to be reserved is the decision of the Division Bench in Udayakaran v. Ahammedkannu, 2004 (2) KLT 969. The authority competent to make an amendment to the bye-laws is the general body of the society. S.27 of the Act also says that subject to the provisions of the Act, the Rules and the bye laws, the final authority of the society shall vest in the general body of the members. Therefore, in the absence of necessary provisions in the Act specifying the authority and the criteria to determine the ward/ constituency for reservation under S.28A, it is for the general body of a society to make necessary provisions in the bye-laws of the society for reservations contemplated under S.28A. Managing committee is not competent to determine the area/constituency to the reserved unless specified in the bye-laws.

If the committee of the society did not convene the special general meeting, it is open to the petitioner to approach the Registrar under sub-s.(2) of S.30. By merely marking a copy of the representation to the Deputy Director of Dairy Development, the petitioner cannot contend that a representation was submitted to the authority and he has to act upon it. This decision is from Kanjoor Ksheera Ulpadaka Co-op. Society v. Pappachan, 2004 (3) KLT (SN) 94.

Management

R.44(l)(i) prohibits persons associated with running business identical to those run by the society from being elected to the managing committee. The principal executive of a company running a particular business is disqualified to be in the managing committee of a co-operative society running the very same business, vide Pushkaran v. Joint Registrar of Co-op. Societies, 2004(1) KLT (SN) 3.

A member who has committed default cannot take shelter that his loan was a secured one and the society was entitled to set-off the loan against his property. In Surendran Nair v. Stale of Kerala, 2004 (1) KLT 407, before the Division Bench the sum and substance of the contention of the appellant is that the Bank could have recovered the debt by selling the hypothecated properties. The appellant who was in default to the bank is not entitled to contend that the Bank could have realized the amount due to it in accordance with law. It cannot be a defence to a petition filed for disqualifying him under R.44(2)(c). The question is whether the appellant was 'in default' or was a 'defaulter' as defined under the Rules at the relevant time. When the appellant was in default to the bank on the date of election, he is disqualified.

The disqualification is attracted not only when a member of a particular society is in default to that society but also when he is in default to another society of which he is not a member.

The Division Bench in Porinchu v. Joint Registrar, 2004 (1) KLT 281, has observed that an interim Administrator appointed under S.33 has no power to enroll new members. The law was, thus, declared by the Apex Court in T.A. Kultappan's case, while approving the judgment of the Full Bench in Hassan's case, 1998 (2) KLT 746 (FB). The High Court has no power of prospective overruling. Once it is held that the Administrator appointed under S.33 of the Act has no power to enroll new members, no court other than the Hon'ble Supreme Court can hold that the law declared will be applied prospectively.

While interpreting the observations in Cherthala Agricultural Rural Devpt. Bank's case, 2000 (1) KLT 730 (FB), the Division Bench has held that the second Full Bench has moulded the relief on the fact of the cases considered by it and did not lay down any general proposition that in all such cases membership of persons enrolled by the Administrator before Hassan's case cannot be challenged.

In the matter of the competency of the Administrator to appoint new members, couple of decisions rendered by the Court is really path breaking. The Court is of the view that the dictum of the Apex Court and Full Bench cannot be applied mechanically to all cases. In Aomanathan v. Dy. Director, Dairy Devpt. Society, 2004 (2) KLT 887, an Administrative Committee had been appointed so as to revive an ailing society. Only by enrolment of new members, life could have been injected to it. To contend that even though specifically appointed for the said purpose the committee could not have enrolled members would be begging the question. As the situation revolves on a vicious circle, it requires to be clarified that at least in certain cases, we have to recognize the powers of an Administrator for enrolling members. Otherwise, the result would have been that the purpose, for which the Administrative Committee had been appointed, would have got itself defeated.

In Shaji v. State Co-operative Elections, 2004 (2) KLT 1084, the Court has held that in appropriate cases, administrator will have to be conferred with power to admit members, taking note of the contingencies. When the administrator is in office for over two years, it is not conceivable that for years together, every operation has to be kept in hibernation. The receipt of application and grant of membership are regular and routine business transactions and does not amount to any matter of policy. The indication of the Act is quite otherwise. The parameters of membership have been laid down by S.16 and so long as a person satisfies it and satisfies the conditions of the bye-law. The decision is administrative in character. To allege that it may change the character of a committee to be elected in future is pure absurdity, totally irrelevant and cannot be countenanced. One should not miss the woods by only noticing trees.

The effect of amendment made in S.20 of the Act, permitting all the members to participate in the election of the society was brought out by the Division Bench in Rajendran v. State Co-Operative Election Commission, 2004 (1) KLT 1026. The Court found that pursuant to the amendment of S.20, no corresponding amendment was effected either in R.28 or in R.35A(4). Even then as per the proviso to R.28 and 35A(4), only the active members shall be eligible to vote. But the said provisions in the Rules have no legal force, as they are contrary to the provisions contained in S.20 of the Act. Therefore, notwithstanding the apparent conflict in the Act and the provisions in the Rules, every member of a society shall have one vote in the affairs of the society.

Circular issued by the State Co-operative Election Commission directing that in the case of preliminary/final voters list published on or after 4.5.2002, the election shall be conducted only after including all the eligible members of the society in the voters' list is valid. Election proceedings stopped after publishing the preliminary voters' list and before publishing the final voters list due to amendment of S.20 giving voting rights to all members and not active members alone. The society cannot continue the election proceedings from the stage where it was stopped. It is necessary to pass a fresh resolution and a fresh notification.

Supersession of the Committee

It is consistently seen that the Kerala High Court never minces the words when the supersession of the committee is found to be a colourable exercise of power. The following decisions say it all.

The Division Bench in Bhaskaran v. Jose Joseph, 2004 (1) KLT 91, has laid down that having regard to the provisions in the Act and the Rules, it cannot be said that merely because a notice under S.32(l) of the Act has been issued proposing to supersede the Board of Directors, the Board cannot pass a resolution under R.35A(1) of the Rules, fixing the date, time and place for the conduct of election to the new committee. It should be remembered that even if a notice under S.32(l) of the Act has been issued, the Registrar can drop the proposal to supersede the Board after considering the explanation offered by the Board. Therefore, issuance of a notice under S.32(l) of the Act does not disentitle the Board to exercise its rights or powers under the Act and Rules.

What is the real import of consultation with financing bank and circle co-operative union is succinctly brought out by the Division Bench in Sahadevan v. Padmariabhan, 2004 (1) KLT 192. The consultation contemplated under sub-s.(2) of S.32 of the Act can be effective and meaningful only if the show cause notice issued under S.32(l), the explanations/objections given by the committee to such show cause notice and the tentative findings arrived at by the Joint Registrar after considering such explanation/objections are also forwarded to the Financing Bank and the Circle Co-op. Union requesting them to offer their views on the proposal to supersede the committee. When such a consultation process has not taken place, the provisions of sub-s.(2) of S.32 have been violated. A mere forwarding of the show cause notice to the Financing Bank and Circle Co-operative Union is not sufficient. To creep up this conclusion, the decisions reported in AIR 1982 Ker. 12 and 1997 (2) KLT 85 were relied on.

When the order of supersession is declared illegal, subsequent election is to be nullified. This is brought out in Sooryanathan v. State of Kerala, 2004 (1) KLT 383. The Managing Committee was removed from the office by an illegal order. That illegality has been declared by the Government. Therefore, the subsequent election and the assumption of charge by the present committee being dependent proceedings must fall to ground in view of appellate order of the Government.

In the said case when the delay in disposal of appeal was questioned, the Court held that the petitioner who is a stranger couldn't complain of the delay in disposing of an appeal. The delay between hearing and passing final orders is considered as an illegality for violating the principles of natural justice. Violation of the principles of natural justice gives rise to a cause of action only to the parties concerned and not to a stranger to the proceeding like the petitioner.

Where the erstwhile committee has committed serious lapses and the President and majority of the Board Members are re-elected, the new committee can be superseded if the new committee has not rectified the faults and lapses, vide Mohanan v. State of Kerala, 2004 (2) KLT 873.

Dispensing with notice should be only an exception and cannot be converted as a routine. This word of caution is given in Mohanachandran Nair v. Andoorkonam Service Co-op. Bank, 2004 (2) KLT 1062. Under S.32(l) the Registrar has to satisfy himself as to the merits of the case, whereas under S.32(3) he has also to form an opinion as to the impracticability of the procedural formality of giving an opportunity to the committee to state its objections. Notice is not an empty formality to be casually dispensed with. It is a notice to state objections. Therefore, only if in view of a situation of immense or emergency which cannot brook the delay due to notice and situations where it is for feasible or practicable to service notice, the same can be dispensed with. In any case, being an extremely rare situation, the Registrar should record the reasons for the opinion on impracticability. In the instant case committee was superseded on the allegation that directions of the judgments are not implemented. Judgment was taken in Writ Appeal and the appeal was filed in time. In view the above, the Court has set aside the order of supersession and the committee was reinstated.

Arbitration and Execution

In Trivandrum Co-op. Agricultural Rural Development Bank v. State of Kerala, 2004 (2) KLT 68 (SN), it was held that the possession of an award could not have operated to the disadvantage of a creditor. R.52 prescribe the methods by which enforcement could be carried out as specified in S.37. Since the rights are secured by S.37, a defaulting person cannot be permitted to get away out of the liability, especially when he had entered into an agreement fully knowing the consequences that arose from such agreement.

In Umadevi v. Asst. Registrar, 2004 (3) KLT 450, the question before the Division Bench was whether the dispute should be only in respect of a matter touching the business of the society. In this case, the society was letting out room to one of its members and the latter committed default in the payment of rent. It is a dispute for the purposes of S.69(l). Such a claim need not arise from any matter touching the business of the society. According to S.2(i) a "dispute" includes a claim in respect of any sum payable to a society, whether such claim be admitted or not. It is not stated in S.2(i) that such claim should arise from any matter touching the business of the society. In S.62(2)(a) also it is not stated that the claim by the society for any demand due to it from a member should be in respect of a matter touching the business of the society.

Revision and Review

The delay in presenting a Revision Petition can be stated in the Revision Petition itself and for good and sufficient cause the Tribunal can condone the delay. It has been held in Thajuddin Shammer v. Secretary, Coastal Urban Co-op. Bank, 2004 (1) KLT 909, that if a Revision Petition is filed beyond a reasonable time limit, say 90 days, the petitioner should explain in the revision, the reason for the delay. Since there is no limitation prescribed, there need not be any separate petition to condone the delay. The facts, which will explain the reasons for the delay, should be pleaded in the Revision Petition. If the Tribunal is satisfied that the petitioner was prevented by good reasons from approaching it earlier, the revision can be entertained.

And some more

Following the decision of the Apex Court in Regional Provident Fund Commissioner v. Shiv Kumar Joshi, 2001 (1) SCC 98, it was held that the Kerala State Co-op. Employees Pension Board comes within the purview of the Consumer Protection Act, 1986. The Board is providing service and retired employees of co-operative societies who are members of the Scheme are consumers under the Act, vide Kerala State Co-op. Employees Pension Board v. Consumer Disputes Redressal Forum, 2004 (1) KLT 111.

In the matter of obtaining a certified copy, the Division Bench in Abbas v. Joint Registrar of Co-operative Societies, 2004 (1) KLT 182, has held that R.24(l) provides that any person may obtain a certified copy of any public document not being a document privileged under the Indian Evidence Act, filed in the office of the Registrar, on payment of fees prescribed. He shall be entitled to copy only when he satisfies the Registrar that he requires it to seek redress in any matter in which he is aggrieved or for any other lawful purpose. When the impugned report is not a privileged document, R.24 does not in any way bar rendering a certified copy of a public document. More so, it is only a report obtained on the petition submitted by the petitioner himself.

The Act confers powers under S.66 to supervise the functioning of the society. The Registrar has got ample powers to ensure that the society is functioning in accordance with the Act, Rules and its bye-laws. Further R. 176 expressly confers power on the Registrar to rescind any resolution of the society, which is passed in violation of the provisions of the Act, Rules or bye-laws or which is against the best interest of the society. From the sweep of the power, the resolutions concerning the service matters of the employees are not excluded. (Poonjar Service Co-op. Bank v. State of Kerala, 2004 (1) KLT (SN) 40).

R.185 governs the grant of exemption from the prescribed qualification. The Government cannot issue a circular prescribing how the power under R.185 should be exercised. None of the statutory provisions also enable the Government to issue such a direction. The bank is authorized to take the decision and the JR is authorized to grant approval to the said decision. These authorities are entitled to exercise these powers uninfluenced by any direction issued by the Government. Of course, the Government can amend the Rules, providing guidelines for grant of exemption. (Kuttipuram Service Co-op. Bank v. State of Kerala, 2004 (2) KLT 73)

In Shanmukhan v. Jt. Registrar, 2004 (2) KLT 1015, it was held that the petitioner is eligible to get subsistence allowance, as provided in the Kerala Service Rules, in the light of R. 198(6). The said right to get subsistence allowance does not depend upon the gravity of the charges levelled against him. The retrospective compulsory retirement cannot be pressed into service, as a ground for denial of subsistence allowance.

Application under R.176 does not lie to rescind a decision of a sub-committee of the society, Vide Abraham v. Elikulam Service Co-op. Bank, 2004 (3) KLT 25.

IS THERE MUCH VULGARITY...........?

(By Anzil Zachariah, Advocate, Pullad)

An MMS of two school students engaging in oral sex was the topic of day. Hue and cries are now raised that fashion shows and cinematic dances held in colleges and schools is pornographic and problematic. It is decreed as obscene, derogatory of womanhood and patently in bad taste. Our public morality is falling down. A lot of ink has been poured and throats have become sore demanding urgent passage of banning mobiles and internet cafes and to strengthen the present laws and especially cyber laws. The article attempts to find an answer whether such laws are necessary to achieve morality?

The State may impose restrictions on internet cafes. The authorities may put curbs on the use of mobile phones in schools and colleges. A number of questions sprinkle in our mind. Can it restrict the mushrooming of internet cafes in the State? Can it tackle cyber crimes on campuses? Are cafes and campuses only centre for assessing and disseminating pornographic materials? Is there only vulgarity on cafes, campus and television?

In the pornographic debate the law enforcement machinery i.e., the State acts as the super cop of morality. The law embraces still the fog of Victorian morality. In the Victorian era sex was shameful and to be hidden. The main difficulty is to adjudicate on whether a publication, photograph or any literary form is obscene or not. There is very little agreement as to exactly what is obscene. The offence of indecent representation or obscenity was made punishable by the Indian Penal Code. Ss.292,293 and 294 of the Indian Penal Code are laws relating to obscenity in India. A book, pamphlet, paper writing, drawing, painting, representation, figure or any other object is considered obscene if it is lascivious or if it tends to deprave and corrupt persons who are likely to read, see or hear the matter contained in it (S.292ofIPC.).

The Indecent Representation of Women (Prohibition) Act, 1986 was enacted to have a separate legislation to effectively prohibit the indecent representation of women through advertisements, books and pamphlets. 'Indecent representation of women' means 'the depiction in any manner of the figure of a woman, her form or body or any part of it in such a way as to have the effect of being indecent, or derogatory to. or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals".

The legal provisions dealing with obscenity are ineffectual. S.292 of IPC and S.3(7) of the Indecent Representation of Women (Prohibition) Act did not define obscenity. The section leave a lot to the Judges to decide what is obscene. Obscenity definitely being a subjective matter is difficult to explain. The Supreme Court and other Courts in India adopted the test of obscenity laid down by Cockburn, J. in Hickinson case: ".......Whether the tendency of matter charged as obscenity is to deprave and corrupt those minds are open to such immoral influences and.......k is quiet certain that it would suggest the minds of the young......thoughts of most impure and libidinous character". In the case of Virendra v. State of Punjab (AIR 1957 SC 896) the Supreme Court declared that obscene means "offensive to modesty or decency, lewd, filthy and repulsive".

There is no clear-cut definition for obscenity. Radical changes in our social attitudes and community standards alter the concepts of obscenity. What was considered as unethical and illegal in past may not be the same in 21 st century. The change in attitude towards D.H. Lawrence's novel Lady Chatterley's Lover is a classic example. The Supreme Court of India in Ranjit Udeshi v. State of Maharashtra (AIR 1965 SC 881), condemns the said novel as obscene. In England too a case was filed under the Obscene Publication Act, 1959 (R. v. Penguin Books, 1961) . Later an expurgated version appeared in America in 1959 and in Britain in 1960. The novel is now prescribed as a study text for graduate and post graduate literature students.

Another controversial issue raised is who is best qualified to interpret what is vulgarity. Who decides what is moral and good for community? Can the Court be an arbiter of good taste? The Supreme Court in Samaresh Bose v. Amal Mitra provided that in judging the question of obscenity the Judge should place himself in the position of the author, the reader of every age group and there after to apply his judicial mind. The remark made by Justice Stable poses an apt question:— Are we (Judges) to take our literary standards as being the level of something that is suitable for 14 year old girl"? (R. v. Seeker and Warburg (1954))

In the process of applying the test of obscenity the arguments are always based on mere political discourses. The definition of obscenity, freedom of speech and expression and others fill the agenda of discussion. Unfortunately the attention of legal minds are never focused about gender relations, women and children, sexual and reproductive health needs of young people and others. The right of an adult to experience the world, the right of the gays, lesbians and bisexuals to see their own sexuality represented in the movies and literature were always excluded from the framework of discussion.

In reality the nudity and porn literature is problematic and vulgar to adults rather than children. Only a pedophile can find anything of a sexually provocative nature in pictures of naked children. It is an open confession that our responses to images of nudity or semi nudity cannot be trusted and are liable to corruption, which will allow perverted and depraved sexuality to emerge from the sophisticated self. No longer can one boast about the control over sexual desires.

The banning of mobiles and cinematic dances would just create opportunities for more national and international seminars, and pious declarations. How would the law be enforced? Would it penalize the college authorities where the cinematic dance is held? Would it fine parents for sending their children to school with a mobile? How would the poor parents pay the fines? Would it then imprison them? Just one parent or both?

Would the law ever be properly and consistently applied? Who would bear the burden of arbitrary enforcement? The proponents never raise the issues of enforcement. They want to claim to have done something for the argument sake without really doing anything just by passing a law.

One must not forget the distinction between laws and morals. No society has been able to legislate moral behaviour. We are no different. Our experience with other good-intention laws against child labour, dowry and other social ills does confirm this outcome. Those who want to practice these have rarely been deterred. And any positively development in these areas could hardly be attributed to these laws.

Total ban is impossible. The world history of prohibition stands as a guide. A total ban on the movies, magazines, mobiles, cafes is not practical. The legal avatars of anti porn movement succeed in criticizing porn by demonizing, criminalizing and illegalizing it.

Criminalizing porn only drives the business underground. The fruits of illegality will be crime, exploitation, black market. There will be rise of the mafia, street violence to capture markets, corruption of the police, legal system, and the bureaucracy.

In the final analysis, prohibition has done more damage, not just to the treasury, which is of the least consequence, but to families and communities, the alleged beneficiaries of the ban. The law of unintended consequences is far more potent in case of good intention laws.

The case study of heroin is a good illustration. Until the seventies any doctors in England could prescribe heroin for patients. There were fewer than 500 addicts. In 1971 heroin was outlawed. Today the number of heroin addicts in England is beyond belief. The black-market exploded and dealing heroin became a profitable business.

In short, the law looks at technology and media of 21st century with the punitive system of 19th century to create a very suppressive and conservative sexual morality. The police and legal forces wrongly assume its role as a super cop of the morality and their task is to bring culprits to Courts thereby pitting officials against media. A complete transformation is required in our jurisprudential thought where the agenda of the Judiciary, Censor Boards, media representatives should be to strengthen civil society. If not, the argument continues .... and it remains forever as a matter of controversy.

Novel Chief Examination (O.18 R.4 of Amended C.P. Code) -- Implications Examined

(By M.V.Shanker Bhat, Advocate, Mangalore)

Prologue:

1. Ever since the establishment of law courts of British system in India, trial Court lawyers knew examination-in-chief only as mentioned in Ss. 137 and 138 of Indian Evidence Act, which itself is of the year 1872. After 130 years of accustomed practice, suddenly, Parliament enacts the novel method of Chief Examination by affidavit. This change is brought about in the name of avoiding delay in legal proceedings. An attempt made to challenge the vires of the amendment having failed before the Supreme Court in the case of Salem Advocate Bar Association1  until there is another decision reversing it, - as it is not uncommon in our system (!),-- or until there is legislative change either in State level by each High Court by virtue of its rule making power under S. 122 of C.P. Code, or the Parliament itself rectifies, the novel procedure of chief examination has come to stay. Its ramifications are examined in this composition.

2. Already the High Courts of Kerala2,Karnataka3,Bombay4,  Rajasthan5  and Delhi6  have rendered rulings on his subject. High Court of Madras has now contributed its share7

What is the change in law?

3. One of the major changes in the amendment to C.P. Code is found in O.18, R.4, relating to recording of evidence. The Section relating to Repeal and Savings in the Amendment Act does not otherwise provide for it. Being procedural change it, therefore, applies to pending proceedings.

4.O.18, R.4, originally existed thus: "The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge". Rr. 5 and 13 of 0.18 indicated how the evidence should be taken in appealable and unappealable cases respectively.

5.O.18, R.4 was first amended in 1999 in a particular way. In effect that Amendment laid down that the evidence in chief shall be by affidavit; and the cross-examination shall be on commission.

6. But in the rule enacted during 1999 there was a Proviso to the effect that the Court may, for reasons to be recorded in writing, direct that the evidence of any witness shall be recorded by the Court in the presence and under the personal direction and superintendence of the Judge.

7. After the agitation of advocates, when the Parliament brought about further corrective amendments during 2002, this Proviso was taken away. In this amendment, while retaining the provision of chief examination by affidavit, the cross-examination could be done either in Court or by commission. The amendment provided for the decision by the Court regarding the proof and admissibility of the documentary evidence introduced by affidavit. But the amendment of 2002 omitted the Proviso mentioned above. The sub-r.(3) of R.4 contemplates the Court (or the Commissioner) recording evidence either in writing or by mechanical process, in the presenceof the Judge. (Please note that the rule uses the word 'mechanically' in the presence of the Judge," probably knowing what actually happens in real life! (This is in lighter vein).

8. If the old R.4 contemplated open Court proceedings, the amended rule has, in effect, converted the recording of evidence in chief as office proceedings.

Imagine the situation, as where the affidavit can be attested by Advocate, (eg. in Tamilnad, Kerala) the chief examination will partake the character of a totally private affair! How far, in the light of the provisions contained in the Oath Act of 1969, such affidavit can be treated as evidence, is very doubtful. But that is not relevant now.

Contentions advanced and decided so far:

11. In Salem Advocate Bar Association case it was argued that the witness summoned may not oblige to give affidavit and hence the rule is unworkable. The Supreme Court, after making a distinction between a witness who attends on summons and a witness who may be brought to Court by a party, stated that with regard to summoned witness the principle incorporated in R.4 can be waived.

In effect, the Supreme Court has asked us to read the R.4 by adding the phrase, "except when the witness appears by summons issued under 0.16 R.1", after the phrase "every case", occurring in it.

12. The cases decided by the various High Courts, cited above, will disclose that under different circumstances, by citing existing R.5 of 0.18 of C.R. Code the propriety of R.4 was attacked. It is the contention that R.5 lays down that in cases in which an appeal is allowed, the evidence shall be taken down or written or recorded by mechanical process as directed by and in the presence of the Judge. The amended R.4 requires that in 'every case' the examination in chief of the witness shall be on affidavit. Therefore, there is conflict in the rules.

13. Except the High Court of Rajasthan, all the other High Courts have, broadly speaking, adopted the view of reconciling R.4 with R.5 by applying the rule of harmonious construction. According to the said view, the R.5 will become applicable from the stage after receiving chief examination by affidavit. That is, when the cross-examination takes place the procedure of R.55 will become applicable. Rajasthan High Court has taken the view that R.4 has to be read with R.13 relating to unappealable cases, and not relating to appealable cases. The Rajasthan view has been referred and dissented by other High Courts. The recent decision of the Supreme Court in the case of Ameer Trading Corp. Ltd8  approves the above view of majority of High Courts and disapproves the Rajasthan view.

14. On careful reading of all the rulings one can make out the strain with which the Courts tried to reconcile the rules, all in the name of speedy trial.

15. One aspect, which may be mentioned in support of such view, is that R.4 refers to the manner of leading chief examination and Rr. 5 and 13 relate to the method of recording oral evidence, depending upon the nature of the case. The manner and method of recording evidence is not mentioned in the sections of the C.P. Code.

16. The sub-r.(3) of R.4 as amended indicates the mode of recording oral evidence, either by the Court or by the Commissioner. It is apparent that the old Rr. 5 and 13 were not taken note of while framing the new R.4. The new R.4 is sufficiently comprehensive to cover both manner and method of the chief examination and cross examination and admissibility of the documentary evidence. Actually Rr. 5 and 13 of 0.18 have become otiose. Therefore, the end result achieved by the Courts cannot be found fault with.

The real objection for retaining amended R.4 stated:

17. R.4 violates the scheme of trial in courts as per Evidence Act. Therefore, it is not valid. Chief Examination by affidavit also gives unfair advantage in the manner of trial.

18. It may be noted that the entire Code of Civil Procedure does not deal with the subject of proof of facts in civil cases. Though S.30 of the Code deals with issue of summons to witness and proof of facts by affidavit, it does not contain any other section dealing with the manner and method of giving evidence in suits.

19. 0.18 of C.P. Code really owes its origin to S.135 of the Evidence Act, which was enacted in 1872, much before the Code of 1908. Chapter X of Evidence Act deals with the various provisions relating to the examination of witness. S.135 deals with the order of production and examination of witnesses. It lays down that the law and practice for the time being relating to Civil and Criminal Procedure respectively, shall regulate the order in which witnesses are produced and examined and, in the absence of any such law, by the discretion of the Court. S.136 indicates that the Judge shall decide the admissibility of evidence. Ss. 137 and 138 deal with the question of examination-in-chief, cross-examination and re-examination, and its order. S. 154 deals with treating the witness as hostile and allowing him to be cross-examined by the party calling such witness. Under S.161 the adverse party has got the right to insist on production of any document, which might have been used for refreshing the memory of the witness when he gave evidence, as contemplated by Ss. 159 and 160. In substance it may be stated that the "evidence" which enables the Court to give decision consists of oral evidence as collected in the manner contemplated by the Evidence Act. (We are now not concerned with documentary evidence at this stage of the discussion.)

20. S.l of Evidence Act clearly excludes Affidavits from the purview of the Act When R.4 was amended, this important aspect was totally overlooked.

21. No doubt, in the Civil Procedure Code, as per S.30 and O.19, there always existed provision for proving facts by affidavit. This could be done by specific order of the Court as contemplated by O.19, R. 1 of the Code. But the proviso to R. 1 clarifies that if the witness is required to be cross examined, and such witness can be produced, then the Court shall not allow the affidavit to be given for proof of fact. In other words, where there is no scope to cross-examine a witness, his affidavit may be received by specific order of the Court. This rulefurther strengthens the argument that where the suit is contested, then, facts cannot be proved by affidavit.

22. There were occasions in the past when Courts ordered fresh trial, after finding fault with the trial Court for allowing affidavit in evidence in contested cases. The reason was that the S.l of Evidence Act did not allow proof of facts by affidavit9.

23. The chief-examination by affidavit is wholly unsatisfactory, particularly because there is no guideline as to what it should contain. No doubt, O.19, R.3 of the Code may be cited as containing the guidelines regarding what the affidavit should and should not contain. But, once the affidavit is showed into court there is no way of pruning it. What with computer facility, the chief examination will contain the repetition of the pleadings, including the cliche first sentence of the written statement to the effect that the suit is false and vexatious and what not!

24. The few months of trial given to the operation of R.4, will as any trial Court lawyer/ Judge will confirm, indicate that new procedure under R.4 consumes more time than reducing delay. On one date affidavit will be filed, on another date admissibility of documents will be considered and then another date for cross-examination! The remedy is proving to be worse than the disease!

25. Even from practical point of view, affidavit evidence keeps the trial Judge in dark about what was deposed in examination-in-chief, and consequently he cannot effectively deal with the state of cross examination. Either it is curtailed or allowed to go on and on!

26. As regards the deponent-witness, he would not be familiar with what is recorded in it. It turns out more like the statement given before Police in criminal case! If witness is asked whether he knows what he has stated in his affidavit, normally he will say he does not know! Probably the cross-examination will become easier this way! On the whole, one can say that by introducing amended R.4, the trial is more a mockery than oriented to render justice. Sooner the old R.4 is restored, so much the better. If statistics regarding delay in litigation is gathered one would not be able to say that merely by oral evidence being given in Chief Examination in Court, trial gets delayed. Therefore, there is no justification to retain amended R.4 in the teeth of violation of the Evidence Act.

Epilogue:

27. The procedural change introduced regarding recording of evidence is wholly not satisfactory. Merely allowing Chief Examination to be done at home will not cure. The real culprit of delay is not the procedural law, but may be found elsewhere! If the law is not set right by amendment, at least the Rules of Practice should be framed, laying down the guidelines for preparing, filing and considering the chief examination by affidavit.

Foot Note:

1. 2002 (3) KLT 920 (SC)

2. Palode Ravi v. Mangode Radhakrishnan, 2002 (3) KLT 557

3. Ibrahim F. Karjgi v. Kasimkhan, 2003 (1) KLT 104

4. Madhur Industries Ltd. v. M.V. Orient Commerce, Air 2003 Bom

5. Laxman Das v. Deoji Mal AIR 2003 Raj. 74

6. Kamal Kumar Modi v. Krishnan Saigal AIR 2003 Delhi 349

7. 2003 (3) L.W. 679, 684 & 668.

8. AIR 2004 SC 355

9. Firm S. Rajkumar v. Bharat Oil Mills, AIR 1964 Bom. 38; Parekh Bros v. Karthichandra AIR 1968 Cal.532.

ENGENDERING LAW -- TO RENDER GENDER JUSTICE

IN THE WAKE OF SURYANELLI VERDICT BY KERALA HIGH COURT

(By Manjeri Sunder Raj, Advocate, High Court of Kerala)

The recent judgment of the High Court of Kerala in Suryanelli case has invited criticism from several quarters, political and feminine. Some Activist Women leaders have even threatened direct action in front of the High Court. One women's lib leader declares "the judgment is Anti women". Lawyer Politicians have jumped in to the fray with crisp comments against the judgment. All these are for the simple reason that all accused except one are set free in this much publicized sex scandal case.

Protecting the woman was the concern of all time Society. Protection was not to be used by man as a means for establishing supremacy over the woman. The woman is quiet, perseverant, tolerant and all the same time capable of severe pain bearing. "Protection of the woman means protection of culture". Just like you say, "when you teach a woman, you are not teaching her alone but teaching a whole family"; when the woman is protected not only she but the prevalent culture also is protected.

Amidst these much ado about nothing, these loud mouths have forgotten to give heed to the call of the learned Judges rendering the verdict for the need for law reform, essential amendments to the Penal provisions at present available. In these calls one should not omit to hear the wail of helplessness. When provisions of law fall short of social requirements of contemporary times Judges are constrained to perform their duty within the ambit of presently operative law. Instead of wasting time on raising voice against this judgment these forces especially Women's organizations have to take the cue from the judgment to fight and get the provisions of law updated to suit the occasion and to protect the hapless women in the society.

We all talk too much of Human Rights these days. More often they are mostly concerning Man's Rights. While taking about the rights of women it is our bounden duty to discern how humane are the laws to the rights of women. Are not then the laws remaining a dead letter when it comes to the question of their implementation:

Sri Upendra Baxi, currently Professor of Law, University of Warwick writes in his book "Engendering Law"—

"The lived reality of sex trafficking, sweat labour, argotic serfdom, workplace discrimination, sexual harassment, dowry murders, rape in peace time as well as war as a means of doing 'polities', torture of women and experimental medicalization of their bodies indecent representation in the media print and visual all these and related devices of State and society present problems of routinisation of terror. While feminist scholarship has demonstrated the power of story telling, the social theory of human rights has yet to conceive of ways and means of investing individuals biographies of the violated with the powers of social texts".

He is critic even about the CEDAW -- Convention for Elimination of all forms of Discrimination Against Women 1979, he wrote:

"Unsurprisingly the more severe the violation of human rights, the more the orders of power declares their loyalty to the regime of human rights. The near universality of ratification of CEDAW for example betokens no human liberation of women; it only endows the State with the power to tell more Nietzschein lies". Nietzschein had said, "State is the name of the coldest of all cold monsters. Coldly it tells lies too, and this lie grows out of its mouth. I, the State, am the people".

In another work entitled "The reason for Human Rights: the unreason for Globalization" (First AR Desai Memorial Lecture) he writes:

"The Current campaign based on the Motto "Women's rights are Human Rights" is inspired by a massive history of local struggles all around. The historic birthplaces of all Human Rights are the Hearth and the Home, the church and the castle, the prison and the police precinct, the factory and the farm".

It is well known that the Government can pass special provisions of law favouring women. Thus, the courts upheld reservation of seats for women in an election to the municipality. A rule enabling women to be released from jail on bail, but not men in the same circumstances, was also held valid. Punishment for outraging the modesty of a woman was held valid though there is no such law for men. Where admission to a mixed college was restricted not merely to the ground of sex but also to develop a women's college in that own, the restriction was held valid. The rule that service of Court summons can be served only on an adult male member of the family was also held valid as it favoured women. Therefore, it is well established that the Government can discriminate in favour of women, but it cannot discriminate against women.

In considering the rights of women, including their right to protection as a unique section (not weaker section) we have to separately approach various spheres of her action. The home, the workplace and in public.

Gone are the days of Manu, who declared that woman requires no freedom because during infant hood she is protected by parents, during youth by her husband and in old age by her offspring. In present day society such type of protection is less and less given and wanted. Domestic violence, work place harassment and public outrage are even on the increase. These are caused not by one section of society alone it is the combined result of deterioration of our cultural values and personal relationships. In a cosmetic rich society even feminism becomes a cosmetic rhetoric.

Age of 16 is no more the protective barrier for women against wrongful force on her, when even woman aged 54 gets raped in public. When social barriers have broken legal bars are of no use. Women folk individually and collectively have to awake to these realities and not anymore languish in the hope of getting protection from some quarter.

But social exposure, cordial interaction, bold expression of ideas and the like by the woman lead to better understanding. Social security of woman is a growing necessity. The present laws are insufficient, even the recent Act against Domestic Violence is only a cry in the wilderness. Even after several years of Vaisaka case and the Hon'ble Supreme Court's mandatory directives the Centre and the State Governments continue to fail in their onerous duty to promulgate statutes for protecting working women against sexual and other harassments.

Right to privacy, right to equal pay, right to special leave and privileges during maternity though guaranteed in the letter, in practice they are always flouted. Recent alteration in the labour policy of the Central Government has opened floodgates of confusion over women's security. She can now be asked to work overtime and also to do night shifts as a matter of compulsory obligation and without any protective measures. In the matter of right to property, certain communities still manage to keep women at bay by denying them rights on par with their male folk.

Noble laureate in Economics Sri Amartya Sen in his famous work 'Development of freedom' while writing on gender inequality refers to the phenomenon of 'missing women'. He has referred to excess morality and artificially lower survival rates of women in many parts of the world. The artificially higher female morality rates reflect a very important capability deprivation of women. Despite the statutory ban on pre natal diagnostic scan of the gender of the foetus, the female child is found out and eliminated, even today. Sati deaths still occur by forcing the widow to jump into her husband's pyre. And the pushers go unpunished by Courts of law. The demand for one-child-family can lead to the neglect of infants thereby increasing the infant morality rate. A policy of allowing only one child per family is particularly detrimental for girls.

In a society ridden with not only gender inequalities but also more with social and economic disparities, women's freedom and clamor for her rights are sheer wild goose chases.

As William Cowper says "Freedom has a thousand chances to show, that slaves, however contended, never know ". Whatever freedom and rights we may speak of women and however contended they are, women shall never know or see any one of the thousand chances of true freedom, unless they open their own eyes and see.

So my dear sisters come ye all around, gather all your strength and fight with all your might and stop not till the goal is reached; the goal being the passing of "The Women's (Protection of Rights) Act". If not Suryanellis would go on repeating themselves.