Interview-Arif Mohammed speaks on Triple Talaq
NEW DELHI: A daughter-in-law has no right to continue to occupy the self-acquired property of her parents-in-law against their wishes, the Delhi high court has held in a significant order.
Justice A K Pathak in a recent verdict, made it clear that a self-acquired property doesn’t fall under the definition of a “shared household” enunciated in the Domestic Violence Act and a daughter in law can’t enforce her right in such a property.
In fact, HC went a step further, holding that even an adult son or daughter has no legal right to occupy the self-acquired property of the parents against their consent.
“Daughter-in-law cannot assert her rights, if any, in the property of her parents-in-law wherein her husband has no right, title or interest. She cannot continue to live in such a house of her parents-in-law against their consent and wishes. In my view, even an adult son or daughter has no legal right to occupy the self-acquired property of the parents; against their consent and wishes. A son or daughter if permitted to live in the house occupies the same as a gratuitous licensee and if such licence is revoked, he has to vacate the said property,” the court noted in its order.
HC was hearing an appeal by the daughter-in-law against a trial court’s verdict directing her to hand over peaceful and vacant possession of the property to her estranged father-in-law. In her plea in HC the woman said she is a legally wedded wife and has a right to live in the property from where her father-in-law wants her evicted.
She claimed that the property was purchased out of joint family funds. Accusing the father-in-law and husband of harassing her for dowry, she informed HC that she is living separately from her husband due to matrimonial discord and divorce proceedings are on. Under DV Act, the property is a shared household where she has the right to reside, the wife maintained.
But the father in law through advocate Prabhjit Jauhar told HC that he is sole owner of the self-acquired property. Jauhar also convinced the court that the property was not purchased from joint family funds and his son had no share in it.
The father-in-law furnished before the court proof that he disowned his son in 2010 who has since then been living separately.
Justice Pathak concluded that the legal position “which can be culled out from the above reports is that the daughter-in-law has no right to continue to occupy the self -acquired property of her parents-in-law against their wishes more so when her husband has no independent right therein nor is living there, as it is not a “shared household” within the meaning of Section 17(1) of The Protection of Women from Domestic Violence Act, 2005.”
HC also took into account lack of evidence to show that suit property was purchased from joint family funds.
Sexual harassment and women lawyers
The Sexual Harassment of Women at Workplace Act, 2013, uses the definition of sexual harassment,as laid down by the Supreme Court of India in the famous Vishakha case of 1997. The very court that gave this innovative law held back on its implementation for 16 long years.
It’s easy to imagine a time early on in one’s legal career when women faced sexual harassment in some form or the other. Thirty years ago we weren’t equipped to respond to a senior lawyer making some implied sexual advance as if it were a norm. Or to a client, say an ageing chairperson of a reputed public undertaking who, with shameless ease and mild amusement, could lean forward and suggest we “sort it out at my place”.
It never seemed to cross the mind of the now proverbial man “old enough to be my father” that this and so much more, was not only professionally inappropriate but sexually offensive. For him or others like him, it was well… just the way things are. And why should we have been equipped? Why couldn’t we take for granted that we, like our male counterparts, could go to court, undertake a legal brief, or enter a contractual negotiation free from the experience of being groped, sexually belittled, ogled, touched, or otherwise sexually demeaned or harmed without fearing the stigma or being perceived as prudish? Because then, unlike now, it was about moral wrongs and not equality rights.
Equality denied: By not implementing Vishakha guidelines by the Supreme Court of India
Many women have encountered sexual harassment at the workplace, but when you are a lawyer, few are willing to admit it. In a study carried out by Sakshi (NGO) on judicial perceptions of women who come to the court in situations of violation, 80 women lawyers in 5 metros were interviewed. 64 per cent of women lawyers surveyed said they often felt patronised, ignored, demeaned, harassed or treated like an outsider both in subtle and overt ways in the course of their professional life. When specifically asked if they had ever experienced physical or verbal sexual harassment by judges, lawyers, court personnel or others, 54 per cent of female lawyers reported verbal and physical sexual harassment from both judges and other lawyers. Off the record, many more women advocates interviewed admitted to have experienced some form of sexual harassment. For the sake of their careers they didn’t complain. That was 1996.
Then came Vishakha. A landmark shift reminding us that we didn’t have to be sexually violated to make a living. It introduced us to the contemporary idea that constitutional equality at work raised the human status of those unequal experiences. And unlike the legalese (legal lexicon) that often mangled our experience of sexual violations through incomprehensible law reform, Vishakha made the beneficiary matter. It was user friendly. It prioritised prevention, called on workplaces to raise awareness about sexual harassment, created an innovative redress model and ensured that the responsibility for compliance would lie with the employer. Or so we thought.
Not for legal eagles
16 years post Vishakha, the very court that gave us an innovation, held back on its implementation. With that inexcusable omission, it knowingly allowed a vacuum to prevail which would foster workplace sexual harassment in the legal profession. In this context, a revelation this November by a legal intern of sexual harassment by a retired judge of the Supreme Court was simply a classic case waiting to happen. And the skeletons continued to tumble out with a second intern posting she had been “at the receiving end of unsolicited sexual advance [sic] more than once” by the same judge. Three other cases and four others by instances of young lawyers being sexually harassed by other judges surfaced. Alongside those revelations came Tehelka and Vishakha revived.
Overnight sexual harassment in the profession was no longer about whispers in the corridors of a court, a gripe or some prudish resistance by a woman, but a legitimate grievance. One that was visible, audible and relevant. Or at least its exposure was. By abandoning a Vishakha compliant workplace at the Supreme Court itself, it was only matter of time for an increasing population of young women law professionals to no longer bear the cost of silence, and opt to speak up. Blindfolded by the inevitable consequences of its own complacency, the opportunity seemed ripe for the Court to comply with Vishakha. Surprisingly it didn’t.
Instead, the CJI(Chief Justice of India) invoked an entirely independent committee of 3 Supreme Court Judges, one woman and two men, to look into the matter. Why? Six days later, a petition signed by women practising at the Supreme Court, led by the Additional Solicitor General called upon the CJI to constitute the Committee in accordance with the Vishakha judgement – 50 per cent women and an external member familiar with the legal implications of sexual harassment. Again, it didn’t.
Courts above law?
We were left instead to the assurances of the CJI “that justice will be done in all respects” and that he had promptly constituted a Committee to look into “an incident of alleged aberration.” Aberration? How did the very Court which gave historic recognition and expression to women’s experience of inappropriate sexual behaviour as workplace sexual harassment which violated our Constitutional equality rights, reduce such recognition to an “aberration”? An approach echoed in the Tehelka journalists’ complaint of alleged “sexual violation” by Tarun Tejpal, which was projected by its feminist Managing Editor, as an “untoward incident”. Pattern anyone?
On the 7th of December, the CJI published his conclusions on the report of the Panel that probed the intern incident. For the first time, the real purpose of this entire exercise became obvious. According to the statement, the CJI took up the matter because of the “fact that such allegation against a Supreme Court Judge will have a direct bearing on the Institution’s reputation and credibility”. In other words, it was never about the impact of sexual harassment on the intern, but the potential impact (read “fall-out”) for the Institution. The statement goes on to share that the role of the Panel was to “ascertain the truth of the allegations.” Seven sittings and three affidavits later, lo and behold, they figured out what we all knew from just reading the blog. She was actually telling the truth. No wonder the intern described her experience before the Panel as “being looked at with suspicious eyes”. The CJI goes on to accept that the intern’s statements and her witnesses, “prima facie discloses an act of unwelcome behaviour (unwelcome verbal/non-verbal conduct of sexual nature) by Justice (Retd.) A.K. Ganguly with her in the room in hotel Le Meridien on 24.12.2012 approximately between 8.00 P.M. and 10.30 P.M.”
Self-preservation of the court
Then, in an inexplicable twist, the statement quickly concludes that as the intern was not on the rolls of the Supreme Court and the Judge had retired `no further action is required by the Court`. Did one of the Panel or the CJI bother to read the blog? Those facts were already in the public domain. If the Panel had no jurisdiction over either the intern or Justice Ganguly in the first instance, then why even bother with a finding? Yet having found a prima facie case of sexual harassment by Justice Ganguly towards the intern, the CJI should have logically followed through with the Vishakha equation. Was there a legal injury to the intern’s equality rights? Given the unequal power dynamic between the intern and the Judge, the answer was an unequivocal yes. That finding alone would have nudged “workplace sexual harassment” that much closer to transforming social inequality of women lawyers into their status of equality.
Which makes me ask- who then actually benefited from this outcome? Net, net, the Supreme Court. Not only was it an occasion for them to close the door on complaints about retired judges, it brought relief to a Court clearly worried about a stray media headline suggesting one of its own as the potential offender. The entire episode was never about justice for the intern. Rather, it was a blatant exercise in self-preservation. After 16 years of non-compliance with Vishakha and increasing public pressure to act on “workplace sexual harassment,” this was an occasion that cried out for the Court- at the very least — to communicate a tough zero tolerance message on sexual harassment of women in the legal profession, be the offender a clerk, a client, a lawyer, a judge, retired or not. It didn’t.
|“While headlines on such appointments (women appointed in senior positions) make visible the obvious contribution women are making within the legal profession, the trickle of numbers betrays an underlying subtext of systemic bias within which decision-making about such appointments (be it the Bench or the Bar) continues to take place.” — Naina Kapur|
Subtlety of the sub- text
Despite such a disappointing outcome, it’s fair to ask — has anything changed with Vishakha? Yes. Experiences of sexual violations at work have a name — workplace sexual harassment — and the status of those affected by such experiences are no longer just about moral wrongs, but about fundamental rights. The stigma and fear of thirty years ago in the profession is perhaps lessening. Where violations of equality arise as a result of workplace sexual harassment, there are more places to complain about it. On the same date as the CJI washed his hands of the intern matter, a group of junior women lawyers petitioned the High Court of Allahabad alleging sexual harassment by their male colleagues. That petition has been admitted and a Committee being set up.
In the end the lesson from Vishakha versus the CJI’s inaction is a recurring one — at the end of every legal intervention is a beneficiary. How and if they benefit depends on what’s at the beginning of every legal intervention — an attitude.
For the “persons” who are women
In 1915, having completed all the necessary qualifications in law, Regina Guha applied to be a pleader at the Calcutta Bar, where a four-judge bench had to determine whether “persons” admitted as “pleaders” included women.
Degrees in law could be conferred on both men and women in Calcutta University. But the bench was adamant for letting a woman be a pleader.
According to a 2013 list of Senior Advocates designated by the Supreme Court of India since 1955, only five out of 309 advocates have been women.
Of the 200-plus lawyers appointed as Senior Advocates in Delhi and Mumbai over a period of twenty years (up to 2011), only three were women.
The writer runs a virtual law firm “Preventive Law & Equality Compliance.” She was the lead instructing counsel for Vishakha v. St. Of Rajasthan, 1997, Supreme Court of India. “
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Put all new FIRs online: Delhi HC
The landmark order, passed by a division bench comprising Chief Justice Dipak Misra and Justice Manmohan, said it’s the duty of the police to provide information and the accused does not need to move court to get a copy of an FIR.
“Fair and impartial investigation is a facet of Article 21 of the Constitution and presumption as regards the innocence of an accused is a right. Therefore, a person booked under criminal law has a right to know the nature of allegations so that he can take necessary steps to safeguard his liberty,” the bench said.
Earlier, additional solicitor general A S Chandiok and amicus curie Arvind Nigam submitted their suggestions on the matter.
The counsel had said that recording of an FIR was an official act of a public official in discharge of his or her official duties and, therefore, it was a public document within the meaning of Section 74 of the Evidence Act, 1872.
The court said an accused was entitled to get a copy of the FIR earlier than what’s prescribed under Section 207 of the Criminal Procedure Code (which says the FIR would be supplied through a magistrate’s order after the accused moves court).
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SC defines rules for live-in couples
To get benefits of marriage, a live-in bond has to be more than a one-night stand
New Delhi, October 21
The Supreme Court today ruled that each and every live-in relationship could not be categorised as a “relationship in the nature of marriage” which entitles women to maintenance.
“In our opinion a ‘relationship in the nature of marriage’ is akin to a common law marriage” recognised in some countries in the absence of a formal marriage, a Bench comprising Justices Markandey Katju and TS Thakur said.
The Bench laid down five conditions for recognising a relationship as a “relationship in the nature of marriage.”
“Merely spending weekends together or a one-night stand would not make it a domestic relationship. In our opinion, not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefits, the conditions mentioned by us must be satisfied, and this has to be proved by evidence,” the Bench ruled.
Writing the verdict for the Bench, Justice Katju further explained that “if a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage.”
The Bench acknowledged that its view would exclude many women who “have had a live-in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law.”
The Court took upon itself the trouble of laying down
the conditions as Parliament while enacting the law in 2005 had used the expression “relationship in the nature of marriage” and not “live-in relationship,” the Bench explained. Section 125 of CrPC provided for maintenance only to the legally-wedded wife, dependent parents and children. But the Domestic Violence Act expanded the scope to relationship “in the nature of marriage.” The Bench said it felt the need for interpreting it because a large number of cases of this nature would be coming up before various courts in the country. “In our opinion, Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and a relationship in the nature of marriage, and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act.”
Talking about the changes sweeping the society, the Bench said in feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror. This was depicted in Leo Tolstoy’s novel “Anna Karenina,” Gustave Flaubert’s novel “Madame Bovary” and the novels of the great Bengali writer Sharat Chandra Chattopadhyaya.
“However, Indian society is changing, and this change has been reflected and recognised by Parliament” by enacting the law against domestic violence, the apex court opined. The Bench laid down the definition in a case by a man challenging the claim of a woman that she was his wife.
The parameters for live-in couples
z They must be of legal age to marry.
z They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a ‘significant period of time’. (The Bench underlined the words “for a significant period of time” without specifying any time period).
z The couple must have lived together in a “shared household”, as defined in Section 2(s) of the Protection of Women from Domestic Violence Act, 2005
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New Delhi, August 27
The Delhi High Court on Friday held that an unemployed man cannot be forced to pay maintenance to his estranged wife as, in an era of equality of sexes, a person cannot be compelled to maintain the other if the spouse is on an equal footing.
“Under prevalent laws, a husband is supposed to maintain his unearning spouse out of the income he earns. No law provides that a husband has to maintain his wife, living separately from him, irrespective of the fact whether he earns or not,” Justice S.N. Dhingra said.
The court passed the order while setting aside the order of a family court which had directed the husband, who was unemployed, to pay a maintenance of Rs 5,000 to his wife. The court said the wife, who was equally qualified as her husband and was working in an MNC, cannot ask for maintenance from her husband who lost his job.
“The court cannot tell the husband that he should beg, borrow or steal but give maintenance to his wife, more so when the husband and wife are qualified and capable of earning and both of them claimed to be gainfully employed before marriage,” the court said while granting relief to the husband who was an NRI working in Angola.
“We are living in an era of equality of sexes. The Constitution provides equal treatment to be given irrespective of sex, caste and creed. An unemployed husband who is holding an MBA degree cannot be treated differently to an unemployed wife who is also holding an MBA degree,” the court said. “Since both are on equal footing, one cannot be asked to maintain the other unless one is unemployed and the other is employed,” it said. — IANS
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