Lack of Gender sensitivity in the Court Judgments

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Synopsis:   Lack of gender sensitivity by the judiciary is one of the fundamental reasons for the worsening security of Women in India. The judiciary in many cases enforced societal attitudes towards women.

The worsening state of security of women in India:
  • India rated as the most dangerous country for women, as per the Thomson Reuters Foundation survey 2018.
  • According to a National Crime Records Bureau report (2019), as many as 32,032 rapes were reported in 2019 (88 incidents of rape a day).
  • Every hour, 39 instances of crime against women including four instances of rape are committed in India.
Judgments lacking gender sensitivity:
  1. First, instances where marital rape was not acknowledged as a crime.
    • One, SC recently granted bail to a government servant who is accused of repeated rape and torture of a 16-year-old child.
      • During this hearing, CJI questioned that “When two people are living as husband and wife, however brutal the husband is, can the act of intercourse between them be called rape?”
    • Two, a few years ago, the supreme court orally asked a convict who had molested a girl 10 years ago to fall at her feet and that if she forgave him, the Court would limit his sentence of imprisonment to the period already undergone.
    • Three, the Nagpur Bench of the Bombay High Court also issued a similar order. It ordered that the sentence of the ‘rape convict can be cut if he agrees to pay ₹1 lakh to the victim.
    • Four, In the Bhanwari Devi case (1995), the Rajasthan court acquitted the accused. The reasons given were not gender sensitivity at all such as
      • Higher caste man cannot rape a lower caste woman for reasons of purity
      • Men who are 60-70 years old cannot commit rape
      • One relative cannot commit rape in front of another relative
  2. Second, instances when the court has upheld the superiority of society’s attitude toward women against the rights of Women.
    • One, in 2020 the Guwahati High Court said that refusal of applying sindoor (vermilion) and wearing conch shell bangles (shaka) as sufficient basis to grant a divorce to the husband.
    • Two, the Madras High Court had earlier stated that divorcees too should maintain sexual purity to claim alimony.
    • Three, In Narendra vs K. Meena (2016), the SC said that under Hindu traditions, a wife after marriage is supposed to fully integrate herself with her husband’s family.
      • Refusal of women to live with in-laws amounts to cruelty. Therefore, the husband would be entitled to divorce her under the Hindu Marriage Act.
  3. Third, instances when women protection laws are diluted without considering the sensitivity of the issue. For example,
      • In Rajesh Sharma vs The State of Uttar Pradesh (2017), the complainant accused that her husband had harassed her for Dowry. And, the trauma faced by the victim has resulted in the termination of her pregnancy
      • It has to be noted that an offense under Section 498A is non-bailable and non-compoundable. Also, a police officer is legally allowed to make an arrest without a warrant from the court.
      • However, the court issued a number of directions in favor of the accused, Such as
        • there should be no automatic arrests on charges of cruelty.
        • Also, no arrest should be done till the newly constituted Family Welfare Committee submit its report.
  4. Fourth, instances when the court has intervened against the right of a woman to marry according to her will. For example, the infamous Hadiya (2017) case.
      • The woman’s father accused her that she was forcefully converted to Islam. Though, Hadia had denied it repeatedly.
      • The court ordered an investigation by the National Investigation Agency for looking into the matter of marriage of two adults.
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