Blog: ALL ABOUT GENDER NEUTRALITY IN INDIAN LAW |CASE LAWS

INTRODUCTION

The Constitution grants equality to women, ensures equality before the law, and prohibits discrimination against any citizen on the basis of religion, race, caste, sex or place of birth. It also allows ‘personal’ laws, however, resulting in a dual system that allows forms of discrimination against girls and women. Under civil law, for example, the minimum age for marriage is 18 years for women and 21 years for men,

India launched the National Mission for Empowerment of Women (NMEW) in 2010, mandated to facilitate the coordination of all programmes related to women’s welfare and their socio-economic development across all ministries and departments. The government leads specific initiatives focused on gender equality and other programmes that, though not focused exclusively on girls and women, benefit them nonetheless, including its push to enhance access to clean water and sanitation.

 WHAT IS ADUTERY AND WHY IT GOT DECRIMINALIZED?

It was on September 28, 2018, that the apex court unanimously struck down Section 497 of IPC which was relating to adultery. The bench comprised of the then Chief Justice Deepak Misra, Justice Nariman, Justice Chandrachud and Justice Malhotra.

The 158-year-old law of colonial era was struck down by the court which it said treated a woman as the property of a man. It was the second colonial-era law which was struck down by the Supreme Court in the span of a month. It had previously overturned another 157-year-old colonial law which criminalised gay sex in India.

Section-497 of Indian Penal Code previously punished adultery making it a criminal wrong. However, the legislative intent behind the enactment of Section 497 of IPC is quite different from the one which is perceived by the critics.

The Law Commission of India was given the responsibility of redrafting the Penal Code in 1847. At the time of redrafting the penal code, the commission rendered only men liable for the offence of adultery and this was done keeping in mind the position of women at that point of time and duty was cast on the law to protect the interest of women.

The critics on the other hand, argue that 497 of IPC tries to dictate and intervene in the lives of two consenting adults and it tends to forget or oversee the fact of how adultery wrecks the life of other individuals. The people voicing their opinion in support of decriminalising adultery in India are the ones who define morality should be based on individuals’ whims and fancies.

Adultery was rightly decriminalised as it was not gender neutral. If two persons want to get into consensual sex, it is no one’s concern to stop them from doing so. In the eyes of law, it should just be two adults who had consensual sexual intercourse.

Further, there should be no confusion between personal laws and community laws, because when it comes to legalising community laws, they are done so considering the moral fabric of the society and the same is not true for personal laws. In the 1950-55 when the Hindu Code bills and the Dowry Prohibition Acts (1961) were passed, the popular sentiment was that men are the ones who commit wrong and hence, there is a need to give a special layer of protection for women’s condition as they were in a vulnerable condition in the society at that time.

But now women are literate, independent, aware of their rights, and hence, there is no need for such a law in the present scenario legal system should not regulate whom one should sleep with but rather regulate the process of separation if one of the two partners violate the sanctity of marriage. Moreover, the criminalisation of broken trust in a marriage neither leads to a couple coming back to a blissful way of life nor does it change the social behaviour of the society.

MISUSE OF SECTION 498A

Section 498A of IPC came as a significant addition to the Indian Penal Code, 1860, which was introduced in 1983 to safeguard the rights and empowerment of women. Under Section 498A of the Indian Penal Code, extortion of any form of property by subjecting a woman to cruelty is punishable.

The Government of India amended the Indian Penal Code, 1860 (IPC) by way of the Criminal Law (Second Amendment ) Act, 1983 on 26 December 1983, and inserted a new Section 498(A) under Chapter XX-A, Of Cruelty By Husband Or Relatives Of Husband.

A violation of this section is done by women by creating frivolously false allegations against their husbands with the goal of getting some money or just paining the family. This section’s abuse is increasing chop-chop and therefore the ladies usuall apprehend their husbands.

Thus, one who brought 498A into action conceiving it as a shield against cruelty for women, i.e., the Supreme Court, is now considering it as legal terrorism. Because misuse of Section 498A diminishes its true credibility. That is one of several reasons for calling it an anti-male law. Although there are widespread complaints, and even large-scale misuse has been recognized by the judiciary, there is no reliable data based on the empirical study regarding the extent of the alleged misuse.

In case of, Savitri Devi v. Ramesh Chand & Ors, the Hon’ble Court specifically regulates the abuse connected with the manipulation of the laws to such an extent that it was totally influenced by the influence of marriage itself and thus found not to be intelligent for the welfare of the giant community. The court considered that authorities and lawmakers had to review the case and the legal provisions to prevent it from happening.

In the case of, Saritha v. R. Ramachandran, the Court noted the reverse trend and requested a non-cognizable and bailable offence from the Law Commission and Parliament. However, it was the court’s requirement to condemn wrongdoing and to shield the victim from what happens once the victim becomes the abuser. Here is what remedy the husband will have.

On this ground, the lady gets to divorce her husband and remarry or in the form of compensation may gain cash.

Hence, the question is what remedial steps can be taken to discourage misuse of the well-intentioned clause. Just because the provision is constitutional and intra vires, it does not allow unscrupulous people to wreck personal vendetta or unleash harassment.

Thus, it may become necessary for the legislature to find ways to deal appropriately with the makers of frivolous complaints or allegations. Until then, under the current system function, the Courts have to take care of the situation.

Because of the false accusations and the immoral exercise of section 498A, the innocent, i.e., the husband and his family, are exponential to suffer. Some of the men give up and commit suicide during this period of hardship and ignominy. Here the law must exercise the power with thorough investigation and cross-examination of the whole matter in a just manner.