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.