Nature has endowed women with every perceivable bliss/ gift of Nature but ironically society has not recognised her worth and she has been discriminated by society and treated as inferior /subservient to men. Things have, however, changed with time and there is considerable improvement in the status of women today. Law has played a pivotal role in this direction but since prejudice and perception of inferiority of females has all through been inextricably woven in the mindset of the society there have existed (and still exist) several laws which fall foul of Constitutional mandate of equality and non -discrimination based, inter alia, on gender. While an analysis of such laws/ provisions would require a full-fledged thesis, reference may be made of a few disconcerting orders with equally, if not more, disconcerting observations made by the courts therein. For instance, the denial of right of residence to a married daughter, in natal dwelling house, (as was the law under section 23 of the Hindu Succession Act 1956 prior to 2005) was justified on the ground, inter alia, that it would encourage the married daughters to desert their husbands and come and live in the natal dwelling house where the class 1 male heirs along with their families are residing.
( Kalamma v Veramma, 1992 Karnataka). In Alok Saha v Bina Ghosh (1999 Calcutta) a married daughter residing in the premises of her deceased father, was denied restoration of electricity connection ( which was got disconnected by her brother) on the ground that she being a married daughter was not a bonafide occupier of the premises and grant of electricity connection in her favour would be improper. Likewise in regard to adoption, the proviso to section 7 of the Hindu Adoption and Maintenance Act, 1956, HAMA) and which enjoins upon a male Hindu to obtain the wife’s consent for adoption was viewed as a ” drastic encroachment” on the right of a male Hindu to adopt prior to the coming of the HAMA when wife’s consent was not required.( Ramachandra Khairnar v Pandu Chila, Bombay ) Equally disconcerting is the apex court upholding in 2011, a Bombay High Court order in Dadasaheb Shewali v Dadasaheb Bindu (2010) which held that after divorce a woman cannot use her former husband’s surname. If there are apprehensions of misuse of his name (as alleged by the husband in this case), there are other legal options/ remedies available to stop that but a blanket ban on continuance of a surname she might have been using during married state, is unfair.Thus a woman is dammed if she does not affix her husband’s surname after marriage and she is estopped from using the same if the marriage unfortunately, fails. She might have built up her own identity around that name; it would be most unjustified to strip her of that. It would however be unfair not to recognise and applaud some recent judgements where the courts have played a very positive and progressive role in granting female petitioners’ relief and lamented the discrimination and hardships suffered by them due to unequal statutory provisions or regressive interpretation/ application of laws. In Savita Samvedi v Union of India (1996 Supreme Court) father and married daughter both working in Railway Department were residing in a quarter allotted by the Department to the father. After father’s retirement the daughter applied for regularisation of the quarter in her name. Her application was turned down on the ground that she being a married daughter was not entitled to regularisation of the quarter in view of Railway Circular of 1982 which completely excluded married daughter for out of turn allotments. In 1992 the Department made some changes in the Rules and included a married daughter as well, for out of turn allotment provided the retiring official has no son or where the married daughter is the only person who is prepared to maintain her parents. Thus, if there is a son a married daughter cannot claim allotment. This Rule was struck down by the court as being discriminatory on ground of gender, as well as on ground of marital status. The following observations of the court are very pertinent; “we see no reason why the choice be not left with retiring official’s judgement on the point and be not respected by railway authorities, irrespective of the gender of the child”. A very significant, progressive and pragmatic order of the Karnataka High Court in Bhuvaneswari Puranik v State of Karnataka ( December 2020) needs a special mention here. The exclusion of married daughters from the ambit of “family “under Karnataka Civil Services (Appointment on Compassionate Grounds) Rules 1966 was held to be illegal being ultra vires articles 14 and 15 of the Constitution. To state the facts in brief, a married daughter made a representation for job on compassionate grounds after the death of her father who was working in the office of Agriculture Produce Marketing Committee and died in harness leaving a widow, a son and the applicant daughter. The son already had a government job and so was not interested in the job; the mother did not want the job due to health reasons and thus the only member left was the applicant married daughter. Her application however was rejected on the ground that under the Rules a married daughter was not eligible to apply for compassionate appointment. She challenged the order on the ground that it was discriminatory and violative of articles 14 and 15 of the Constitution; it is significant to note that the widowed mother resided with the applicant. After an analysis of law, constitutional provisions and judicial pronouncements the court granted the daughter’s claim. Very strong, significant and emotional observations were made by the court (Justice M Nagaprasanna), Viz
Marriage does not determine the continuance of the relationship of a child with the parent, whether son or daughter. Son continues to be son both before and after marriage and a daughter should [ also] continue to be a daughter both before and after marriage. This relationship does not get effaced by the fact of marriage as marriage does not severe the relationship of the daughter with the parent……If the marital status of a son does
not make any difference in law to his entitlement for seeking appointment on compassionate grounds, the married status of a daughter should make no difference as the married daughter does not cease to be part of the family and law cannot make an assumption that married sons alone continue to be part of the family” This according to the court is ” impermissible discrimination”. It lamented
“It should be remembered nature bestows so much on women, the law cannot bestow too little”. And further, ” If the offending provision is left as it is, it would be putting the clock back from where the law has progressed over the years”. Thus, the court declared the impugned Rules to be ultra vires the Constitution. Both male and female are equal except that Nature has endowed each with different capacities and capabilities. This does not make any one superior or inferior to the other. It is important that statutory law as well as judicial interpretation should move with changing times and should be progressive and not regressive. We have come a long way; there are however, still miles to go.
Kusum
Former Professor,
Indian Law Institute
