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On Nov. 7, a Supreme Court Bench comprising Justices Thakker & D.K. Jain held that an abortion by a woman without her husband’s consent will amount to mental cruelty and a ground for divorce. To quote the Hon’ble Bench,

Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of the other for a long time may lead to mental cruelty. A sustained course of abusive and humiliating treatment calculated to torture, discommode or render life miserable for the spouse.

Cruelty is laid down as a ground for divorce in the Hindu Marriages Act, 1956. That the SC has gone beyond the realm of physical abuse to recognize recurring instances of mental cruelty in marriages is welcome news indeed. Nonetheless, one may observe with deference that linking abortion (without the husband’s prior consent) to mental cruelty is perhaps not in consonance with the female partner’s freedom of choice and decision-making.

At the onset, it is pertinent to note that there is no constitutionally guaranteed right to abortion in India. The limited ambit of this right stems from the Medical Termination of Pregnancy Act, 1971, where S. 3(2) provides for the ‘termination of pregnancy’ in certain cases. The statutory right is extremely constricted, and the abortion cannot be by mere demand but by concurrence from medical practitioners in good faith. The provision itself is an expression of society’s widespread belief that women are incapable of making judicious and independent choices. The conditions laid down in the Act permitting such termination would seem more technical and patronizing in intent, and certainly not reflective of a rights-oriented paradigm.

Arguments before Courts on the matter are invariably convoluted with the right to life of the unborn foetus. In a head-on collision between the rights to life and abortion, there are no prizes for guessing what the activist judiciary will favour. Having said that, it is also important to observe that the Supreme Court, in abortion cases before it, has held the condition, opinion and consent of women in high regard. However, those were all instances of women refusing to abort; not of active affirmation to do the same (See cases like Dr. Nisha Malviya and Anr. Vs. State of M.P, Shri Bhagwan Katariya and others Vs. State of M.P. 2000.)

In an already tapered-down scenario, it is humbly stated that the SC through its recent judgment in Suman Kapur v. Sudhir Kapur(Nov. 7, 2008) has further exacerbated the submissive condition on women in our society. The Hon’ble Court has virtually stated that the husband’s consent is mandatory before a foetal abortion is made: by linking the absence of consent to mental cruelty, the Apex Court has given the already-dominant male partner a trump-card of sorts to enforce his preferences on a matter critically relevant to women. Perhaps the Hon’ble Court may have been guided by the pressing need to endorse consensual decisions in the family. However, the judgment cannot be read in isolation from prevalent societal circumstances, and one can regretfully point out the existence of anything but a level-playing field.

It is perhaps fitting to conclude with the words of Dr. Betty Friedman in her Keynote speech during the 1st National Conference for repeal of Abortion Laws held in Chicago (1969):

There is no freedom, no equality, no full human dignity and personhood possible for women until they assert and demand control over their own bodies and reproductive process…………The right to have an abortion is a matter of individual conscience and conscious choice for the women concerned.

Four years later, the U.S Supreme Court responded bravely and echoed her sentiment in Roe v. Wade. Is it not time we embraced the same reality?

The Kerala Law Reforms Commission, under the able guidance of Hon’ble Justice V.R. Krishna Iyer has mooted a draft legislation that may have far-reaching implications in the State and beyond; titled the Secular Norms for Administration of Places of Public Worship Bill, the draft seeks to ensure public access to all places of worship. Apart from such a step, the Bill ushers in sweeping changes in areas hitherto untouched by State machinery. It is pertinent to note its salient features and the ‘unsettling’ impact it may have on the polity.

Firstly, the Bill ensures access to all persons regardless of their faith, to all public places of worship belonging to various religions. The access is however, subject to the “solemn obligations consistent with the dignity, decorum, reverence and submission to the sublime conditions prescribed by respective religious authorities”. A very dubious provision, indeed. At the outset, there are problems in granting a statutory right to all persons the right of access to public places of worship; perhaps on a high moral ground, it might indicate our receptive religious traditions. However, the Reforms Commission, knowing well that an unconditional right might create problems with religious bodies and authorities, has sought to mask this right by subjecting it to their respective conditions. Such a submission would ensure prevalence of status quo; people have been refused entry by religious organizations on a host of grounds and since the Bill does not lay down a standard for the “sublime conditions” mentioned above, such organizations can continue to put their foot down on these matters. Not only would this fuel litigation between the right-holder and the largely administrative religious bodies in charge of places of worship, but result in unnecessary judicial intervention in each and every minor incident.

Secondly, the Bill attempts to establish an institute that will impart training to persons aspiring to become priests in performing pujas and other holy functions in all Hindu places of worship, irrespective of caste differences. This seemingly absurd provision, quite regrettably, ignores the ground realities existent in society today. Priesthood in India (by and large) is not in the nature of a vocation that applicants/job-seekers “aspire” to become. Mostly traditional and hereditary in character, priesthood is seen as a right by many that is the result of a sanctimonious life adherent to rituals. How can Government norms be the yardstick to measure the qualification of a priest?

Further, the training will cater to Hindu Philosophy, based on Vedas, Upanishads and other great teachings of Hindu theology. In a scenario where no single, uniform interpretation of these texts is prevalent, one wonders what the State would seek guidance from. Evidently, subscribing to the interpretation of one caste/sect can have disastrous implications, going contrary to the very soul of this draft.

Thirdly, the Bill envisages the formation of a Board that would lay out the “course of study” in these training institutions. The Board will comprise presidents of all Devaswom Boards and three “outstanding” Hindu religious personalities; the inclusions of Devaswom presidents, all of whom occupy purely administrative posts, leave much to be desired. The Bill also leaves any question as to the criteria for diversified selection of outstanding religious personalities in the dark. Inviting discontent among religious segments that are unhappy with the selection process may threaten our secular fabric itself. Moreover, with most Board members likely to belong to upper castes, reconciliatory measures that accomodate the opinion of oppressed lower castes must be taken into account.

Fourthly, the Government is also to frame rules prescribing minimum qualifications for admission to the institutions and the service conditions for teaching. Apart from the problems aforementioned, this provision also runs the risk of commodifying the entire norm of priesthood, the sanctity of which is undisputed in society. This proposition is further accentuated by the fact that the admission process is directed to take “due representation to Hindu Dalits, conventionally considered Sudras and Andhyodaya communities”. The provision is prima facie evidence of State-sponsored upward social mobility measures: when affirmative action policies face so much opposition, it is needless to outline the problems that such interference in religious ‘posts’ might create.

The Bill also vests the Board with powers to direct disposal of dakshina and presents that priests receive from devotees and temple-visitors. This disposal is subject to the emoluments due to the priests for improving facilities for worshippers and other temple requirements. Once again, the Bill adopts a very commercial outlook to the entire system, quite antagonistic to the concept of dakshina.

Fifthly, with regard to judicial remedies, the constitution of a Tribunal headed by a judicial officer in the rank of a Dist. Judge is envisaged in the Bill. The Tribunal will have jurisdiction to entertain complaints and initiate appropriate proceedings for violation of Bill provisions. An appeal against the Board’s decision may also be preferred before the Dist. Court with territorial jurisdiction. Quite certainly, many issues shall arise that concern the “right” interpretation and meaning of religious texts. Whereas the Supreme Court’s attempts to interpret the Quran in Shah Bano generated huge controversy, it would not be prudent to let the judiciary indulge in its own versions of the texts.

Lastly, another cause for concern is the absence of any similar regulatory provisions for other religions in the State. While this would not only expose the Bill to allegations of discriminatory treatment, but might also fall short of Constitutional requirements of equality. The very purpose of the Bill is to ensure greater public access regardless of faith, and it would surely then, be necessary to adopt regulatory measures that pertain to all religions?

In conclusion, one must say that the Bill must be subjected to intensive public scrutiny and debate. When matters concerning the realm of religion are at hand, it is imperative to juxtapose the law with secular norms as mandated by our Founding Fathers in the Constitution. While a strict divide between the Church and State is certainly not what Indian secularism is all about, the extent of State intervention in religion is an aspect to be given ample thought.

On June 5, the Supreme Court of India in a significant ruling, held that the Muslim Women (Protection of Rights on Divorce) Act, 1986 would not hinder a divorced Muslim woman’s right to maintenance under Section 125 of the Code of Criminal Procedure (CrPC).

Prior to delving into the importance of this judgment, it is imperative that the gamut of events, triggered with the Shah Bano verdict, be explained. In 1985, the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum, upheld the maintenance claim of Shah Bano, a divorced Muslim woman of 60 years, under S.125 of the CrPC; the Section provides for relieft to a wife (among others), “unable to maintain herself”. However, this judgment created a huge outcry from the Islamic orthodoxy in India. The Rajiv Gandhi-led Government in power, passed the Muslim Women (Protection of Rights on Divorce) Act, to appease the outraged sentiments. The Act, quite ironically, curtailed the rights of Muslim women rather than protecting them. It limited the Muslim husband’s responsibility to maintain his divorced wife to the period of iddat. Over the past decade, the Act has challenged over various grounds of Constitutional validity. The apex Court’s decision in Daniel Latifi v. Union of India was instrumental in clearing the fog of confusion. The Court in that instance, gave a liberal interpretation of the Act,(specifically S. 3(1)) in so far as the “fair and reasonable” provisions to the divorced Muslim woman shall include maintenance for her future extending beyond the iddat period.

Earlier this month, the two judge-bench comprising Justic Arijit Pasayat and D.K. Jain in the case of Iqbal Bano v. State of Uttar Pradesh overruled the Allahabd High Court’s order on the same matter; the H.C had held that the divorced wife is not entitled to maintenance under the CrPC in lieu of the existing Act of 1986. There were questions raised as to whether the divorce effected was proper; to which the Court answered in the negative. While the Act only deals with divorced women the CrPC, in the opinion of the Hon’ble Court, is of broader ambit.  A relevant passage from the judgment is quoted below:

Under the 1986 Act the husband has two separate and distinct obligations, viz. to a make a reasonable and fair provision for his divorced wife [for her residence, food, clothes and other articles], and to provide maintenance for her. Though it may look ironical that the enactment intended to reverse the decision in the Shah Bano case it actually codifies the very rationale contained therein.

 A judgment is certainly a step in the correct direction to secure the rights of divorced Muslim women unable to maintain themselves, and relieve them of their plight perpetrated by legal instruments such as the Act of 1986.