An Open Letter to Chief Justice of India
India has been a progressive society and country. It is one of the top growing economies in the world. It has achieved this status by the progressive thought with focus on education, adopting best practices in the world, abandoning old thoughts and practices. Indians have been very fast and even surpassed world top countries in adopting technologies. It is now the largest digital payment economy. Our old beliefs have given way to newer thoughts and ideas to bring this change. We have integrated with world in every way and are progressing towards 5 trillion dollar economy. We are able to dream about it because we have the population of 66.77 percent into the age group of 15-64 years. We have the literacy rate of 74.04%. Over the past decades India has progressed due to its willingness, determination to progress. Indian pillars like Industry (IT revolution), Agriculture(Green revolution), Pharma, Space technologies everywhere we have progressed.
But the only pillar which has been the most out dated is the Judiciary system. It has so many issues which it is carrying on that we can’t expect any changes in the coming decades. Much has been talked, discussed, and written on the Slow system, back-log, lack of Judges, Processes etc. But one point which has not been caught the attention is the regressive thinking of the higher court judges. They simply don’t allow the changing face of society to be reflected in their thoughts and judgement unless it heavy backed by lobby.
Country is thriving for 5 trillion dollar economy, government is trying to increase the base on Income tax collection. It is running multiple social programs like Jan Dhan Yojana, Beti Bacho Beti Padaho, Skill India, Make in India, asking country to be self-reliant. Young generation is getting aligned with it and trying to make it success. Women aren’t behind either. Women are making in-roads to Corporate world, IT industry, Entrepreneurship, Journalism (totally dominated by Women) and what not. The intend of all these is to make every Indian Independent and work towards attaining self-reliance. In urban and rural women are working along with their male counterparts from Rocket Science to Farming fields.
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But the Indian judiciary still denied the Women the status of being capable and Independent. It still consider them to be liability of father and then after her husband.
Justice P. Velmurugan, Feb 2019 Madras High Court Judgement
It is the duty of every father to pay for expenses incurred towards the upkeep of his children until they attain majority and in the case of daughters such duty would extend not just till the girls attain majority but until they get married and settle down with their husbands.
It clearly shows the how Judges view daughters. It implicitly denies women the status of independence. It assumes either father or husband is the one who will feeds her for life. But in case of Son he will be capable just on attaining the majority (18 years). He might also not been settled just by turning 18. This kind of thoughts and judgment are discriminatory both to the son and the daughter. Even in 2019 the Indian Judges view is that Women is never expected to be independent. Just contrary to Indian society, where women also being encouraged, motivated and provided free education to girl child. And look at the irony, boys are not provided free education till Post graduation(in many Government policies. Totally opposite views and fact (of the Judges , Society and Government) .
Another proof of the Higher Judiciary mindset towards women are the various judgements on: Sex on false promise of marriage is rape: Supreme Court of India
The judgment implicitly assumes that even an adult Women is not mentally capable of entering any relationship or assess the prospects of relationship. She is treated as in-competent of being held responsible for her actions and decisions. While the male is assumed to be responsible for his actions. It’s quite possible that women may back-off from marriage, so can boy file a criminal case against the girl??. The Indian old school judges don’t view Women as competent decision maker and cannot be held responsible(This status is only given to Minors, so adult Women’s are being treated as Minors??). This view is totally regressive and is not a sign of a progressive Indian society. This judiciary is again passing the message to society and denying the Women her status in the society as competent to decide, act and held responsible for her actions as an adult. Interestingly Indian judiciary recognized Live-in relationship. So when a live-in relationship turns sour, It leads to allegations of rape in many cases creating bruised society and lack of trust amount the young couples. Blame who for this social problem??. No prizes for guessing. Side effects of such judgments, Women are being treated as Minors, with no status in the society and hell lot of social, legal issues for young couples. And in many cases even boys end being black mailed by many women. Both genders losing the trust.
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In fact, perturbed by the high number of such cases, Justice Pratibha Rani of Delhi High Court said in 2017 that women use rape laws for “vendetta” when a relationship sours. Indian Women judges are fighting with the higher Male dominated SC bench against this biased approach towards Women of this country. They sent a message that Women should be given the status as responsible adults and competent decision makers. But you know these old school male dominated bench never allow Women judges to rise up and get a fair share of the bench.
Many Indians believe rape laws should not be used to regulate intimate relationships, especially in cases where women have agency and are entering a relationship by choice. Indian society understands it and speaks openly that both Women and Men enter into relationship on their own will. Both being adults know what are the risks, chances, and other aspects of the relationship. But Indian Judiciary is being leaded by a century old peoples sitting at that positions.
- Husband’s Foremost Duty is to Maintain Wife & Child- He may Beg, Borrow or Steal- Punjab & Haryana HC. Case name: Rajesh v. Sunita & ors
- Wife Entitled To Maintenance Even If She Runs A Business & Earns Income … Bombay High Court
- Wife entitled to maintenance only until her 2nd marriage – Bombay High Court
This again denies the Women the right to be recognized in the society as capable, independent and competent. It implicitly says Men is superior than Women and hence she should always be tagged as dependent on husband, even though she has worked, proved, established and earned a status of capable of maintaining herself (and being treated equal to a Men). Parents educate their daughters (send them to colleges), daughter study and outshine boys every year (be it in boards exam of 10th and 12th or MBBS toppers). But ultimately the Judiciary sees and treats girls as second class citizens who are always shown in the society as inferior to Men and dependent on them for their living. She is expected and assumed to be dependent on male members.
Countries have adopted many concepts of “Rehabilitative Alimony” for the deprived women to live with dignity. Generally, rehabilitative alimony is used to support the spouse during a period of retraining or re-education for re-entry into the workforce, thereby enabling the spouse to become self-supporting in the not too distant future.
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This not only prevent hardship to the spouse but also guides her towards self-reliance and live a life of dignity for life by become independent. In contrast the concept of permanent maintenance adds a stigma of dependent for life.
Till date Judiciary has not taken a stand on Joint custody of Kids in failed marriage , so that both husband and Women can be equally given the responsibility of kids and both can share responsibility, enjoy the status in society and respect of being capable.
Alimony As Concept Is Flawed
NPR’s Jennifer Ludden writes,
Alimony dates back centuries. The original idea was that once married, a man is responsible for a woman till death. But that notion has shifted in recent decades, as more women have jobs and their own money. Now, a number of states have modified laws to end lifetime alimony.
Instead, most countries have modified permanent alimony to allow the receiving spouse time to become financially independent, at which time the payments will cease. The intent is empower the spouse rather than making a second class dependent citizen for life.
Permanent alimony was created at a time when families usually had one financial contributor and one homemaker. As women have joined the workforce and become increasingly more educated, the need for permanent alimony has significantly decreased, prompting many states to entirely end the practice.
Beti Bacho, Beti Padaho, is meaningless unless daughters are not treated as competent , capable and responsible.
Some statements by Supreme Court of India
- Secretary, Ministry of Defence v. Babita Puniya & Ors. observed that reliance on the “inherent physiological differences between men and women” rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the “weaker‟ sex and may not undertake tasks that are “too arduous‟ for them: SC
- “Notion That Women Are ‘Weaker Sex’ Constitutionally Flawed”: SC
Judges make such big statements just to be enter headlines and History books, but they don’t believe. There is hell lot of contradiction in Judiciary itself, which stand exposed every day in every judgement.
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Blog | ‘Judge Asked Woman To Stand In Court For 7-Hrs As Punishment For Filing False Gang Rape Case’
Walk the talk Judges, we can’t wait to let these old choler judges in SC and HC across the country to retire before we see the new generation of judges to correct the mess the current Judiciary is creating for the newer India.
‘In every case the Court must consider a termination of spousal maintenance with a transition to independence as soon as it is just and reasonable. A term should be considered unless the recipient would be unable to adjust without undue hardship to the ending of payments. A degree of (not undue) hardship in making the transition to independence is acceptable.’
Detach Religion From Marriage
We need to take religion, the embarrassing terminology, and the gush out of marriage. It should be fashioned into an institution that works in a modern society with equality laws, a society that treats women not as breeders, home makers or chattels, but as contributing partners in a business.
I don’t see why some could not be encouraged to retrain or be paid to find a way to re-enter the workforce. Perhaps the way forward is to only apply changes in maintenance to new marriages and to means test all those applying for it.
About The Author
Gagan Sharma is a software engineer by profession, but born as a free thinker and fights for justice for every human on earth. Actively involved to clear the air in hysterical crowd and make them think logical. Gagan tweets at @Vsharma02747131
The views expressed by the author are his own.