Justice delivery to hapless gender

Judge clarifies the Law for gender justice.

Justice C S Karnan’s judgment (Judge of the Madras High Court) was indeed praiseworthy and comes at a time when gender justice was conspicuous by its absence. The male dominated society always frowned on the female with superiority. The judge was careful in the use of words, 21 year old ‘bachelor’ and 18 year or more ‘spinster’ had pre-marital sex with intention to worry and subsequent to this, the man deserts the woman, the victim woman can approach for criminal filing of proceedings in a court having criminal jurisdiction, but also can avail civil remedy, by substantiating her claims in a legal manner.

The Judge has clearly used the word, ‘Bachelor’ which has the dictionary meaning of ‘unmarried’. In the word context, ‘Bachelor has connotation in the case of a married man divorced/widowed, and when in a state that there is no wife in the legal terms, he is described as the person who can be punished in the judgment. A divorced/widowed woman is called divorcee or widower, hence spinster means, one who has never married.

       This is an excellent concept, persons who came under the provisions of benefit under the judgment or the wrong doer is clearly identified in the judgment.

       Kudos to the judge for opening up new vistas in the judicial made justice operational.

       The Judge had candidly admitted the law to proceed criminally against the wrong doer male on a complaint by the aggrieved woman, and the courts taking cognizance of the case can award exemplary punishment. But there is no provision in law, which enables the woman to remove her social stigma, nor any enabling provision for compensation. Though there is no provision, the judge recalls in this erudite Judgment that the High court is the apex court of the state and Constitutional authority which can impart natural justice, gender justice and genuine justice. The Court has, therefore, intervened, to right a wrong by awarding her civil remedy by treating the contract of entering into a marriage by two connected parties having social relevance, and having pre-marital sex with the premise that before long they would become man and wife.

       But the provision of ‘marriage’, which has a distinct law in force, and the Indian Penal Code and Criminal Procedure Code, and Code of Civil procedure, under which any married women is given alimony, etc, do not support the Judge’s judgement, however, worthy it may be.  Solemn ties of marriage as well as specific contract for marriage in the case of pre-marital sex are one and the same in the eyes of Law. Why is the  legislature in  India, feel shy of changing the provisions of Cr.PC, Civil Procedure Code, IPC, etc to incorporate these provisions so that legislature passed laws can become operational, while judge espousing a law can at best remain a law, only till it is challenged and a divisional bench quashes it. The famous example for this was the sensational Sarita Vs Venkatasubbiah case by the Andhra Pradesh High Court against the orders of the Cuddapha Court. This Case brings out to the fore, the inadequacies of the Hindu Marriage Act of 1955.

The case is listed in the citation AIR 1983 AP 356, is a judgment by Hon’ble Justice P Choudhary most poignant. One Venkitasubbah, married Sarita, a young grown up girl at Tirupathi on 13-12-1975. Thereafter, she resided with him who had agricultural gardens in Cuddapha for about 6 months. Later she left for Madras, stayed with her parents. Later she became very famous and most wanted heroine, made Crores of Rupees. At this stage, Venkatasubbiah moved an application under Sec 9 of the Hindu Marriage Act for restoration of conjugal rights by filing a case at Cuddapha, Andhra.  

The Judge of the Cuddapha after protracted argument decreed upholding Sarita to pay heed to Venkatasubbiah’s petition to restore his conjugal rights. Aggrieved by this, she filed an appeal in the Hon’ble High Court, arguing two important points. She argued that Cuddapha Court did not have jurisdiction because Sec 19 talked about permanent residence or couple resided last, where they married, or where there was irrevocable separation to invoke jurisdiction. She said she had no residence in Cuddapha but resided which is not the terminology used by the Section in the Hindu Marriage Act, and Madras was the place she and he co-habited, and hence Cuddaph magistrate was wrong jurisdictional aspect. Her second point went deeper, pointing at the validity of Sec 9 of the Hindu Marriage Act which was in direct conflict with Article 14, 19, 21 of the Indian Constitution. Conjugal rights are in deferment of right to liberty, right to life itself, human dignity and decency. Order 21 Rule 32 of CPC and sub para 2 and 3 contemplated that any judgment which permits restoration of conjugal rights, if failed to be performed, then, the person committing the crime can be sent to prison, property can be  attached and so on. Order 21, Rules 32 and 33 enforces financial sanctions. In this respect, when drawing up the Hindu Marriage Act of 1955, the Conjugal Rights enforced by Ecclesial law of England which was enforced in India prior to independence were retained. However, it should be remembered that England under Sec 20 of Matrimonial Proceedings and property Act of 1970 removed the right to claim conjugal rights. The learned Judge, therefore, held that Secrtion 9 of the Act was in direct violation under items 5 of the list III and VII Schedules of the Indian Constitution as  it infringed the Chapter III right embodied in the Constitution and offended, the inviolability of the body and the mind subjected to the decree and offends dignity  of a human-being. The judge claimed that it was a parody that males moved courts asking for restitution of conjugal rights, while no woman had ever filed a petition. 

We have to reason with this judgment and compare it with the averments of Justice C S Karnan’s well diagnosed judgment.

However, when a Judge delivers his judgment in the precincts of the Court, it becomes Law unless challenged at a higher forum. However, a Judge who had delivered judge releases a statement for public consumption justifying his reasons and conclusions by which he delivered the judgment was unnecessary. The Judge is answerable to no one for his judgment except his allegiance to the constitution. This statement would cause unnecessary public debate. It was not necessary.

Kudos to the Judge who gave gender its justice. Women should rejoice. People like Sonia Gandhi and Sushma Swaraj, Jayalalitha, Mamata, should make common cause to make the Government of India change the outdated anarchic clauses of the Cr PC,Cvl PC,IPC, and/or other Acts.