Along the years we have witnessed the Indian courts playing a vital role in
asserting women equality. A nation which has been marred by patriarchy in
countless pages of its history has been able to redeem itself from its
regressive mindset because of the impeccable judicial system. A judgement in its
truest sense is an amalgam of rules and values. A judgement, among many other
factors, is also influenced by the kind of understanding of values we have
inherited as a part of our society.[i]
However, in a country like ours where male dominance has been rather a
tradition, it isn't at all unlikely that we come across such judgements which
are detrimental to the progress the society has made in respect to women
autonomy. Nevertheless the incumbent courts have not failed to deliver justice,
though at times this did come at price: the underlying patriarchal tone which
was a result of the ideologies and beliefs of the presiding bench[ii].
Perhaps one of the most unsettling facts is that of women representation in
courts. With only 27.6% of women representation out of 15,806 judges across
India[iii], it is hardly convincing whether India is actually ready for women to
fill in the shoes in judiciary leadership. Where a majority of cases related to
women are decided by male judges, we often come across various lacunae in the
judgements which could have been avoided if it was viewed through a woman's
eyes. This does not advocate that only women can comprehend the kinship
problems, rather puts forth a suggestion that addition of female judges'
perspectives can enunciate the concurrent rationes.
In context of spousal and familial relationship
A woman has always been seen through the lens of relationships. Be it mother,
wife or sister; we have not discharged the practice of subduing a woman's role
in a family. This discrimination is a distant praxis. A woman's role as an
active member in a family has been subject to subjugation for over centuries.
This has also been reflected in various judgements over the years since the
inception of court system in India.
One of the earliest cases where we witness the embedded patriarchy in our
culture is through the Rukhmabai[iv] case. Justice Pinhey, in an era of
prevalent narrow-mindedness, had rendered a judgement truly ahead of its time.
He ordered in favor of the defendant whereby he made a concise statement that as
a woman she carried a right to choose her partner and deny conjugal rights to
her husband whom she had married as a child. This case also had an impact on the
way marriage was perceived more as contract[v].
Restitution of Conjugal Rights (RCR hereafter) has had its origin in common law
and views women as possession of their husbands[vi]. This particular law can act
as a double-edged sword in India where marital rape is not an offence. In 1983,
the apex court stated in the case of Harvinder Kaur v Harminder Singh
it was highly improbable that a nexus between constitutional principles and
family law can exist. Constitutional principles, which are a safeguard against
any arbitrary discrimination, were observed to destroy the privacy of
This precedent was upheld in the following year, where the Supreme Court again
made an observation undermining women in Smt. Saroj Rani v Sudarshan Kumar
. In this case, it was observed that a divorced woman is in a
materially disadvantageous position when it comes in context of social reality
of Indian society. A judgement which was progressive in thought lacked in words
by reiterating how the society pictures a divorced woman to be helpless[viii].
This does not imply that the Supreme Court has a perpetual marginalized approach
in rendering judgements. In the case of State of Rajasthan v Shri Narayan[ix],
the Court overturned the order by the Rajasthan High Court which was extremely
casual about the way it viewed the perpetrator's actions and was callous to the
hesitant shown by the victim in lodging an FIR as she wanted to avoid the
humiliation. The concern raised is not only in context of patriarchal judgements
overall but in many of the virtuous ones as well; we see that the judges have
had an underlying tone of patriarchy in their observations.
In the case concerned with inheritance[x], it was observed that a wife was a
part of the husband's body and had the right to her property until she remained
chaste. The observation a part of husband's body
inflicting damage on a woman's personal liberty and her choice of
partner, it cannot go unnoticed that even a good valued judgement has its share
of patriarchy lodged in it. It was noted:
As the wife is in a sense a part of the body of her husband, she becomes
co-owner of the property of her husband though in a subordinate sense.………….yet
the wife can enforce this right by moving the Court for passing a decree for
maintenance by creating a charge. This right is available only so long as the
wife continues to be chaste
In context of article 15
Through Article 15 we have been bestowed s such rights and privileges as
citizens which help us combat any instance of inequality. Though what we have
attached to the interpretation of article 15 is only formal, with few
substantive interpretations when it is concerned with the equality of women.
Equality of women has been touched upon so many times in the history of the
Progressive judgements have been furnished in the favor of women so as to
realize the equality of women not only on paper but in practicality as well.
However, to err is human. The error that is being addressed here isn't decreeing
a judgement against women's claims rather it is the kind of language employed in
the order and the narrow interpretation of statutes which left the rights and
In the case of Anjali Roy v State of West Bengal
[xi], the narrow
interpretation of Article 15 posed as a major challenge to the claims of women.
Chakravatti, Ag. CJ observed, …….or was born at a particular place or is
of a particular sex and on no other ground. Discrimination based on one or more
of these grounds and also on other grounds is not hit by the Article.
The bench attached a single dimension approach to the word ‘ground' which
meant that multi-grounds claim could not be caught by article 15 and single
ground claim was only viable. The dire need to voice her plight receded to the
back in light other considerations. In this particular judgement, there was
nothing substantial coupled with sex, rather it was sex coupled with
organizational considerations that muffled the claims[xii].
Then again in the case of Dattatraya Motiram More v State of Bombay[xiii], concerned
with reservation of seats in elections with respect to women; we see the same
kind of interpretation being employed along with such language which paints the
interests of women with a protectionist tone. Though the judgement was in favor
of women, the words and thoughts hinted at disparity in the backdrop of the
courtrooms. The judiciary instead of weeding the stereotype out unintentionally
The Court in Air India v Nergesh Meerza
[xiv], delivered a remarkable
judgement by striking out certain employee regulations which set out
restrictions over a woman's choice to get married and . The court pointed out
that the provisions were in contravention to Article 14. However the court did
not consider the provision of termination of job contract after four years of
marriage. This particular provision was seen as reasonable and justified on
basis of family planning, healthcare and other economic considerations such as
training and recruitment. This again raised a question over the liberty and
autonomy of a woman and her right to be independent and living by her choices[xv].
However, the court in Vasantha R. v Union of India
[xvi], struck out
certain regulations which prohibited women from working late hours and night
shift. The court has played an active role in the recognition of women rights in
this country. In recent years, there have been numerous judgements which has
helped level out the irregularities in the society when it comes to the
recognition of women' liberty. But there also has been inconsistency in the
As Sri V.R. Krishna Iyer had observed that, given the disproportionate
representation of women in judiciary and a stagnant masculine approach
eventually results in a lack of passion to protect women's rights in every
strata of the legal structure[xvii].
A lot of changes have been brought in through historic cases and judgements. Sakshi
v Union of India
[xviii], Triple Talaq case[xix], Josephine Shine v Union
[xx] have had a deep impact and helped the society to rethink its
norms and values. But we must accept that there is still left much to do.
Judicial history has witnessed an oscillated course through grey judgements and
righteous ones. In recent times, the Supreme Court has delivered judgements of
paramount importance in context to women. With a dynamic jurisprudence which has
evolved through catena of cases, we have been assured time and again that the
judiciary will never fail to deliver justice.
- Meera Mathew, Relevance of Value Judgements in Law, Vol.24 National
School of Law India Review No.1, 147-48, (2012
- Kalpana Kannabiran, Judicial Meanderings in Patriarchal Thickets:
Litigating Sex Discrimination in India, Vol.44 Economic and Political Weekly
No.44, 88-90, (2009).
- Skewed Gender Ration in Judiciary present world over and not just India,
The New Indian Express, (May 10, 2020, 15:45), https://www.newindianexpress.com/thesundaystandard/2020/feb/23/skewed-gender-ration-in-judiciary-present-world-over-not-just-india-2107117.html
- Dadaji Bhikaji v Rukhmabai, (1885) ILR 9 Bom 529.
- Sudhir Chandra, Rukhmabai: Debate over Woman's Right to her Person, Vol.31
Economic and Political Weekly No.44, 2937-43, (1996).
- M. Gangadevi, Restitution of Conjugal Rights: Constitutional
Perspective, Vol.45 Journal of Indian Law Institute No.3/4, Family Law Special
Issue, 453-455, (2003).
- AIR 1984 Delhi 66, 
- AIR 1984 1562
- AIR 1992 SC 2004, .
- V Telusamma & Ors. v V Seshi Reddi (Dead), 1977 AIR 1944.
- AIR 1952 Cal 825
- Shreya Atrey, Through the Looking Glass of Intersectionality: Making Sense
of Indian Discrimination Jurisprudence under Article 15, Vol.16 Equal Rights
- AIR 1953 Bom 311
- 1981 AIR 1829.
- Supra note 4, 88-91
- (2001) IILLJ 843 Mad.
- Nandita Haksar, Review: Human Rights and the Law by V.R. Krishna Iyer,
Vol.27 Journal of Indian Law Institute No.2, (1989).
- Writ Petition (crl.) 33 of 1997.
- Writ Petition (C) No. 118 of 2016.
- Writ Petition (Criminal) NO. 194 OF 2017