GENDER-NEUTRAL MAINTENANCE NEEDED: REVISITING SECTION 125 OF CR.P.C - The Daily Guardian
Connect with us

Legally Speaking

GENDER-NEUTRAL MAINTENANCE NEEDED: REVISITING SECTION 125 OF CR.P.C

Published

on

The gender-neutral movement primarily aims to eradicate the gender-based distinction enumerated in the laws. It asserts that each law which intends to guarantee social equity should not stay limited to a particular sexual orientation. For example, the movement contends to eradicate the male-female paradigm attached to rape in Indian laws in which only men and women can be perpetrators and victims respectively. Section 125 of Cr.P.C. 1973 entitles every legally wedded wife and divorced woman to claim maintenance from her husband. Albeit section 125 of Cr.P.C. has been considered a very significant step towards establishing social justice, it is discriminatory in nature as it abstains husband to claim maintenance from his wife.

Till today, there is no established judicial precedent that discussed the constitutionality of section 125 of Cr.P.C. 1973. But there were constitutional challenges made against section 488 of Cr.P.C. 1898 which contained the similar provision and objectives as section 125 contains.

In the cases of Thomsi Goundan v. Kanni Ammal and Gupteshwar Pandey v. Smt. Ram Peari Devi the courts found section 488 of Cr.P.C. 1898 constitutionally valid under Article 15(3) of the Indian Constitution, which empowers legislative bodies to make laws giving special protection to women and children. Recently, a petition was filed by Mr. Vivek Bhatia contending that it violates the fundamental rights of men and a prayer was made to make this section gender-neutral.

OBJECTIVE OF THE PROVISION AND ITS CONTEMPORARY RELEVANCE

The most primary objective behind granting maintenance power to legally wedded wives and divorced woman is to prevent vagrancy and destitution. The same objective was further enunciated by J. Krishna Iyer in Bai Jahira v. Ali Hussain Fissall where his lordship enunciated that the purpose of maintenance under section 125 of Cr.P.C. is to ameliorate the economic condition of the neglected wives separated or divorced. HMJ K. Subba Rao also said that the objective behind granting maintenance power is to protect the weaker section of the society i.e. Women.

In spite of the fact that the goals expressed above can be viewed as sensible when it was stated, it neglects to peer with the contemporary status of the general public. Today, in 2020, it is incorrect to categorize women as a weaker segment of society because numerous legislations and judicial precedents have been enacted which have helped in decreasing disparity between men and women. For example, The Commission of Sati (Prevention) Act 1987, Protection of Women from Domestic Violence Act 2005, Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act 2013 and judicial decisions like Shayara Bano v. Union of India where the SC declared the practice of Triple Talaq unconstitutional, giving retrospective effect to coparcenary rights granted to women by the Hindu Succession Amendment Act 2005 in Vineeta Sharma v. Rakesh Sharma, etc. has significantly helped to women to attain special protection.

The above-mentioned developments assert that the rationale given by the Hon’ble courts in Thomsi Goundan case and Gupteshwar Pandey case is unjustified and hence, restricting men to claim maintenance under section 125 of Cr.P.C. stands discriminatory in nature.

EVALUATING ON THE TOUCHSTONE OF FUNDAMENTAL RIGHTS

1) Violative of Article 14 of the Indian Constitution

Every Indian citizen is guaranteed the right to equality under Article 14 of the constitution. This right ensures every citizen to avail equality and raises voice against inequality, which prima facie is injustice and against the concept of equal protection before the law. The objective of this article is also to restrict the state to pass any such legislation which is manifestly arbitrary for citizens of the country. Any legislation or provision of the legislation found against the objectives of Article 14 in the judicial review process shall be declared unconstitutional.

Section 125 of Cr.P.C. 1973 stands unconstitutional as it violates Article 14 of the Indian constitution because it fails to provide equal protection of law to men by allowing only women to claim maintenance from their husband. By not allowing men to claim maintenance, this section presumes that only women can face any such possibility where maintenance becomes quintessential, negating the same possibility for men.

Furthermore, this section stands contrary to the precedent established by the Apex Court of India in Preeti Srivastava (Dr.) V. State of M.P. in which it held that every legislation must be in the public interest and should not be manifestly prejudicial on the part of any segment of the society. It is also submitted that the section fails to pass the reasonable classification test under article 14 of the Indian constitution as it fails to provide any rationale for not providing the right to maintenance to husbands.

2) Violative of Article 15 of the Indian Constitution

For ages, discrimination based on sex, religion, caste, etc. Has been quite pervasive in Indian society and our constitution framers found it very imperative to eradicate this social menace by prohibiting the same. Henceforth, Article 15 was included in the constitution which prohibits the act of discrimination based on religion, race, caste, sex, or place of birth.

Section 125 of the Cr.P.C. violates article 15 of men by discriminating against them based on sex as it draws an unreasonable differentiation by allowing the right to maintenance to women only. Furthermore, its legitimacy can’t be asserted by contending article 15(3) which grants the state the right to make special provisions for women and children for the following reasons:

1. Section 125 of Cr.P.C. is uniform and, as opined in Mohammad Ahmed Khan v. Shah Bano Begum, secular in nature. Abstaining someone from claiming maintenance under the said section based on sex blatantly violates their right guaranteed under article 15. There appears no reasonable contention under this article by which the legitimacy of the gender-based character of section 125 can be held constitutional.

2. It is affirmatively acknowledged that the patriarchal notion attached to Indian society still exists and that necessitates special protection to women. In pursuit of the same, there exist such legislation that exclusively protects women from injustice and to establish social justice. Pertinently, those acts also include maintenance and other monetary relief clauses under which women can claim maintenance if it appears that they have no means to support their livelihood. This substantiates the need to provide special protection to women but doesn’t justify the gender-based provision of maintenance under Cr.P.C.

GENDER-NEUTRAL MAINTENANCE AND HUMAN RIGHTS

While making the maintenance claim under section 125 of Cr.P.C. 1973 gender-neutral with the aid of fundamental rights, it is imperative that this should be substantiated with the approach to human rights enshrined in various international human rights instruments. International human rights instruments have been accepted as a legitimate source for regulating state laws, especially those relating to criminal justice.

Section 125 of Cr.P.C. remains with the conventional male-female model in which only the wife faces a condition where maintenance is quintessential, imposing a legal responsibility on the husband to keep his wife intact. Section 125’s gender-based nature violates the fundamental human rights of men.

The Universal Declaration of Human Rights, passed by the UN in 1948, is one of the most important instruments governing human rights in the entire world. The Preamble of UDHR per se states “recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world”. Article 2 of UDHR entitles everyone to claim every right provided in the declaration without drawing differentiation on any ground including sex. Furthermore, article 7 of UDHR asserts that everyone is equal before the law and is entitled to equal protection of the law. Article 8, contextually most important, provides everyone with an equal right to avail effective remedy from courts of law in case they face injustice in any manner whatsoever.

Furthermore, Yogyakarta Principles, launched in 2007, has become a guiding force to eradicate all the distinctions present in the laws based on gender identity and sexual orientation. It asserts that all human beings have the equal right to enjoy every right guaranteed to them under legal instruments without facing discrimination on any ground including sexual orientation and gender identity.

The initial lines of the Preamble enunciate that every person is entitled to live life with dignity and enjoy the same rights and no differentiation should be made out on any ground whatsoever. It further recognizes the significance attached to human rights in formulating legislation, particularly criminal law legislation. Its Principle 1 provides that a person of any sexual orientation and gender identity is entitled to enjoy basic human rights and further obligates the State to amend the criminal law to make it consistent with rights guaranteed under international human rights instruments. Principle 2 prohibits discrimination based on gender identity and sexual orientation and Principle 3 provides an equal right to recognition before the law to everyone. Most importantly, Principle 28 provides that everyone is entitled to avail effective remedy in case any of his rights are violated and obligates the State to set up such tribunals where remedies could be implemented timely and effectively.

Notably, the above-mentioned rights showcase deliberate use of gender-neutral language, showcasing its uniform implementation. India being a signatory of the Yogyakarta Principles needs to amend or nullify all those laws which are prima facie discriminatory in nature. The reference of Yogyakarta principles has been positively affirmed by the Supreme Court while deciding the matter of Navtej Singh Johar.

CONCLUSION

It is important to acknowledge that certain remarkable judgements have been given by the Apex Court of India which has helped to bring gender-equality in Indian society. In Navtej Singh Johar v. Union of India, the SC decriminalized the consensual intercourse between homosexuals under section 377 of the IPC, 1860 by declaring it manifestly arbitrary and violative of Article 14 of the Indian constitution.

In another landmark case Joseph Shine v. Union of India, the SC declared section 497 of the IPC 1860 read with section 198(2) of Cr.P.C which criminalized adultery, violative of article 14, 15, and 21 of the Indian constitution. It is only under a few personal laws which provide provisions for maintenance rights to husbands. Gender-neutral maintenance provision under section 125 of Cr.P.C. 1973 would provide men with an opportunity to avail social justice when they would be left with no means to maintain themselves and live a life of dignity.

While asserting the need of making the maintenance provision gender-neutral, it is asserted that it should not be interpreted that it aims to restrict women’s right to maintenance, rather, it only aims to increase the ambit of the right of maintenance provided in section 125 of Cr.P.C. There appears no reasonable rationale behind restricting men to claim maintenance and in fact, not allowing violates various constitutional rights and basic human rights of men as discussed above. It is hoped that the SC of India would be affirmative in accepting the contentions arose in the petition by Vivek Bhatia asserting the need of allowing husbands to claim maintenance and thereby, mark this case as an important development in the maintenance jurisprudence.

The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.

For the latest news Download The Daily Guardian App.

Legally Speaking

‘The crime committed has to be considered in the remission or premature policy of the state’

Published

on

The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission which is applicable in the State and the pre­mature release in terms of the policy

The Court noted while hearing the writ petition that in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release, as the case may be, in the instance case. under Section 432(7) CrPC, there cannot be a concurrent jurisdiction of two State Governments, can be either the Central or the State Government of the appropriate government.

in terms of Section 432(7) CrPC, the trial was to be concluded in the same State and ordinarily in the State of Gujrat the crime in the instant case was admittedly committed. by an order 06.08.2004., the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State i.e., the State of Maharashtra, observed by the bench of Apex Court.

As mentioned by the petitioner in the plea that by judgment impugned dated 17.07.2019., the application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat and His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. under Sections 433 and 433A of the Code of Criminal Procedure, 1973, the petition was filled by the petitioner for premature release further the petitioner stated that that he had undergone under the custody of more than 15 years 4 months.

Section 302, 376(2) (e) (g) and reading it with Section 149 IPC, Shah was found guilty for the offence, the offence committed by him in the State of Gujrat.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

Continue Reading

Legally Speaking

Seeking reduction of qualifying the percentile for admission in ayurveda course: A plea in Supreme Court

Published

on

The Supreme Court in the Case Amit Kumar v UOI & Or’s observed in Ayurveda course in view of large number of vacancies and for seeking reduction of qualifying percentile for admission, an ayurveda aspirant who appeared in NEET 2021 has approached the Court.

the court had observed that lowering the minimum marks and reducing the percentile for admission to first year BDS Course would not amount to lowing the standards of Education and further the Court directed to lower the percentile mark by 10 percentiles for admission in first year of BDS Course for academic year 2020-2021, with regards to substantive the contentions made by the petitioner by referring the judgement passed in the case in Harshit Agarwal & Or’s v Union of India.

the percentile may also be reduced for Ayurveda programme enabling the Petitioner to take admissions then If percentile is being reduced/considered for reduction for BDS course was further stated by the petitioner in the plea, while referring to an order dated 04.29.2022. Thereafter the top Court had asked Centre to consider lowering the percentile for BDS Courses.

Seeking the Centre’s response in a plea by filing a counter affidavit, noted by the Top Court specifying the above-mentioned information:

after deducting the admission granted for MBBS Courses (BDS Courses), the total number of Candidates.

in All India Quota and State Quota, the totals number of vacant seats.

in government colleges on one hand & private/deemed colleges on the other hand, the number of seats which are remaining.

the petition was filed through AOR Neeraj Shekhar and for the petitioner Advocate Shivam Singh appeared.

Continue Reading

Legally Speaking

Bank case rejected by Supreme Court against farmer

Published

on

The Supreme Court in the case Bank of Maharashtra & Or’s v Mohanlal Patidar observed an order given by the High Courts of directing the bank the OTS proposal given by a farmer who had availed a loan from the bank, the court further pulled up the Bank of Maharashtra for challenging the order.

The Bank shall complete remaining formalities and provide all consequential benefits flowing therefrom to the petitioners, the court further stated that it is needless to emphasize The OTS proposal given by the petitioners in both the cases shall be accepted by the Bank and ‘sanction letters’ be issued forthwith, the court allowed the petitioner plea.

The petitioner not only promptly challenged the said order, it is noteworthy that petitioner never acceded to the unilateral decision dated 25th August 2021 and even otherwise the letter dated 25th August 2021 is held to be illegal by us, clause-7 of policy cannot take away the fruits of OTS benefits, within two months from the date of issuance of order dated 22th September 2021, the petitioner filled the instant petition and further the court directed we are unable to give stamp of approval to the impugned orders and action of the Bank, observed by the bench comprising of Justice Sujoy Paul and the justice Dwarka Dhish Bansal while setting aside the impugned orders of the bank.

In an order dated 03.09.2021 it was stated and it showed that the petitioner was required to pay minimum 10% of the OTS amount within stipulated time and that he had deposited Rs.35,00,000/- out of Rs.36,50,000/- within the stipulated time, it was argued before the court by the counsel.

As full and final settlement of the dues, he will be required to deposit Rs.50.50 lakhs as he was informed by the Asset Recovery Branch of the Bank.

Whole law comes into place when a matter of farmers come as the down payment were also accepted and it was further stated by the bench in an oral remark You don’t file cases against the ones who loot 1000s of crores.

The respondent had obtained a loan and intended to pay it in terms of a One Time Settlement which was quantified as Rs 3650000/-. in furtherance thereof the respondent had deposited Rs 35,00,000 with the bank, in the above-mentioned matter.

The bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme, contended by the counsel further the counsel stated that the bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme.

The bench comprising of Justice DY Chandrachud and the justice Surya Kant observed and remarked while dismissing the plea assailing Madhya Pradesh High Court’s order dated 02.21.2022 Such a litigation in Supreme Court will spoil the families of farmers financially, Go after bigger fish.

Continue Reading

Legally Speaking

In Company Law the duomatic principle is applicable even in Indian context: Supreme Court

Published

on

The Supreme Court in the case Mahima Datla vs Renuka Datla observed and stated that it will be applicable even in the Indian context, if the same is consented by all members ‘strict adherence to a statutory requirement may be dispensed with if it is demonstrated in the Duomatic Principle.

It was therefore held that G.V. Rao never seized to be a Director of the Company in view of the acquiescence by Dr. Datla and he had withdrawn his resignation prior to its acceptance, the resignation dated 6th April 2013 was clearly not accepted by Mr. G.V. Rao, as it is clearly being showed by her conduct and there is overwhelming evidence to show that Dr. Datla had accepted Mr. G.V. Rao back into the Board, in this case the court noted.

anything the members of a company can do by formal resolution in a general meeting, they can also do informally, if all of them assent to it, as stated briefly in the Duomatic Principle as derived from the decision In Re: Duomatic Ltd further the court noted the case of Salmon v. Salmon Co. Ltd, as it was held in that case if a company is bound in a matter intra vires by the unanimous agreement of its members. As In Re the court noted that the Duomatic Principle as derived from the decision.

Mr. G.V. Rao continued to carry on as the Director in view of the acquiescence by Dr. Renuka Datla? And weather can the Duomatic Principle can be invoked to state that the issue of resignation of the Director had lapsed, as one of the issues being raise in the appeal filled before the Apex Court.

The High Court of Judicature at Hyderabad for the State of Telangana and Andhra Pradesh allowed the Company appeal filed by Dr. Datla and the court further issued the various directions as this petition was dismiised by the Board as only to ensure Dr. Datla doesn’t have sufficient shareholding to maintain a petition under Sections 397 and 398 of the Companies Act, 1950, as it was being approached by Dr. Datla to the Company Law Board complaining that the holding of board meetings was illegal as an attempt was made to increase the number of members in the Company.

there is no protest by Dr. Renuka Datla regarding attendance of Mr. G.V. Rao. Dr. Renuka Datla also participated in the Board Meetings dated 22nd August 2013 and 25th September 2013, without any protest for continuation of Mr. G.V. Rao as its Director as in the resolution passed. The latter which was placed in the meeting of the Board on 9th April 2013, seeking withdrawal of his resignation as on 6th April 2013, G.V Rao submitted his resignation letter and further which it was later withdrawn by G.V Rao on 9th April 2013. As on 20th March 2013 the late Dr. Vijay Kumar Datla as the directors of the Company were Biological E. Ltd are Dr. Renuka Datla and one G.V Rao.

The bench comprising of Justice Vineet Saran and the justice JK Maheshwari clarified that the said principle is only applicable in those cases wherein bona fide transactions are involved and that ‘Fraud’ is a clear exception.

Continue Reading

Legally Speaking

SUPREME COURT ASKS WEST BENGAL GOVERNMENT TO LOOK INTO REPORT OF OLDER WOMEN PUSHED INTO PROSTITUTION AFTER COVID IN SOUTH 24 PARGANAS

Published

on

The Supreme Court in the case Budhadev Karmaskar v. State of West Bengal and Or’s observed that women of older age groups are being forced into prostitution after the onset of the COVID-19 pandemic and further the court ordered the State of West Bengal to look into the issue that in South 24 Parganas District of West Bengal.

The traffickers who were finding it difficult to get hold of young women due to the lockdown had shifted focus and by taking advantage of their acute poverty which was being worsened by the pandemic engaged older women from West Bengal’s costa regions in prostitution. An article was referred by the Amicus, The Article covered the plight of the women in the Sunderban Delta region of West Bengal and stated and noted that the pandemic coupled with climate change is now pushing older women and even the grandmothers into the trade, the Article was published on the website of The Print.

The pandemic that has stretched on for more than two years, it was said by the activists working in the area and this made them vulnerable to traffickers who found it difficult to procure young women and minor girls and shifted focus to middle aged women from West Bengal’s coastal regions due to their abject poverty.

No precautionary measure are taken by the State Government though the State Government is aware it further request the State Government to look upon the issue as due to the pandemic In South 24 Parganas (West Bengal), aged women are being used for this purpose for their poverty.

The Bench asked the Counsel representing the State of West Bengal to look into this issue and respond when the matter is put up for hearing on 05.17.2022., At the request of the Amicus the bench directed.

The Bench Comprising of Justice L. Nageswara Rao and the justice B.R. Gavai observed that the older women in South 24 Parganas District of West Bengal, from poor families, especially after the onset of the pandemic, are being pushed into prostitution and the Amicus further alleged though the State Government aware of the same but the State Government have not taken any precautionary measures. The Bench noted while hearing a plea seeking various benefits for sex workers across the country, Amicus Curaie, Mr. Piyush K. Roy apprised it that, as per news reports.

Continue Reading

Legally Speaking

Supreme Court sets aside POCSO conviction; TN custom is of marriage of girl with maternal uncle

Published

on

The Supreme Court in the case K Dhandapani vs State observed while hearing a plea that after noticing that he had married the prosecutrix and had two children, a man accused in a POCSO case, the court set aside the conviction.

The Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix. Thereafter the Court said that it has been informed of the custom in Tamil Nādu of the marriage of a girl with the maternal uncle. if the accused-appellant does not take proper care of the prosecutrix, she or the State on behalf of the prosecutrix can move for modification of this Order, further being clarified by the Court. The bench is of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court, while considering the facts and circumstances of the Case.

The Court observed, while allowing the appeal that the marriage between the accused and the prosecutrix is not legal and it was submitted by the state in an appeal that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and the second child was born when she was 17 years.

the prosecutrix stated that she has two children and they are being taken care of by the appellant and she is leading a happy married life, the statement given by her was being noticed by the Court. the allegations submitted by the

the appellant against him was that he had physical relations with the prosecutrix on the promise of marrying her and that he married the prosecutrix and they have two children, submitted before the Apex Court.

Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012 and reading with the Sections 5(j)(ii) read with Section 6, 5(I) read with Section 6 and 5(n). the maternal uncle of the prosecutrix who is the accused in the said case was being convicted under the said sections and was sentenced to undergo rigorous imprisonment for a period of 10 years by the Madras High Court.

The Bench comprising of Justice L Nageswara Rao and the justice B R Gavai observed while rejecting the objection raised by the State which contended that the marriage might be only for the purpose of escaping punishment that the court have been informed about the custom in Tamil Nādu of the marriage of a girl with the maternal uncle and on the ground of reality and to disturb the happy family life of the appellant and the prosecutrix, The Court cannot shut its eyes.

Continue Reading

Trending