Women as senior advocates, any takers?

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Bombay High Court : Since 1991, there have been only 3 women among 81 designations

MEENA MENON IN THE HINDU

There have been only three women among the 81 senior advocates designated by the Bombay High Court from 1991 to 2010. Since 2006, no women have been designated as senior advocates; this year too, there were none among the 15 names decided by the High Court.

This year, only one woman, a senior lawyer with over 35 years’ experience, had applied, and she was not selected. Women are diffident about applying for the senior advocates’ designation and even if they do, they are not sure of getting it. And the whole process is shrouded in secrecy. S B Shukre, Registrar General, Bombay High Court, refused to give any details regarding the selection process, the number of applicants and how many women had applied for the designation of senior advocate. Saying that the information was confidential, he suggested that an application may be filed under the Right to Information Act. Rajani Iyer, who was made senior advocate in 2006 along with Ms. K.V. Sirpurkar, says: “I waited to apply till I was invited/asked to apply. I didn’t want to do so otherwise. Perhaps I got lucky when I was appointed.” In addition to a certain amount of diffidence, there is a lack of women applicants. It is a two way-street, she explains. “Why don’t senior women advocates apply for this position despite having a well-rounded practice?” she asks. To be appointed senior advocate is prestigious. “You don’t have to draft petitions and you are given sole responsibility for the case. It’s exciting and challenging,” Ms. Iyer says.

When asked if there was discrimination in the selection process, she points out that the question of discrimination can arise only if women are denied from among a large number of applicants. “The bias or inequity is in the number of women applying. How many women can get recommendations from four senior advocates for the application? That is also the question. Also there are so few women from the criminal side. Freny Ponda was the last advocate from the criminal side.” So far there have been only eight women senior advocates in Mumbai, and among them are Indira Jaising, Sujata Manohar and Phiroza Anklesaria.

To apply for the position, one must have four recommendations from senior advocates, at least 15 years standing as an advocate, reference to at least ten reported judgments in cases in which the applicant has appeared as arguing counsel and contributed to the making of law, among other things. The proposals from advocates are vetted by the Registrar General and then decided upon by the Full Court. The acceptance of the Full Court shall be accorded only if not less then two-thirds of the judges present in the meeting vote in favour of the applications from the advocates.

‘Election, not selection’

A senior lawyer who was turned away after applying for the position in 2011 says, on condition of anonymity, that the voting is done in a secret ballot and is an election, rather than a selection. And the results and number of votes each candidate gets is not made public. While a list had been put up on the high court website, the rejected candidates had not been informed. They cannot apply for two years now. The applicant must know how many votes he or she has got. The whole process, the senior lawyer says, lacks transparency and is vitiated by this secrecy.

A senior woman lawyer, who does not wish to be named, too says the process lacks transparency and that there has to be some objective criteria. If deserving people do not get elevated, then the whole systems suffers, she feels. As a woman lawyer, she herself has not experienced discrimination like many others. However, she concedes that there is a low opinion in general about women lawyers, who lack ambition, albeit that was changing now. She adds that family connections matter in the appointments to the senior counsel.

The appointment of senior counsels is one area where women find no place. Male lawyers never let you feel like an insider; women remain outsiders, according to a young lawyer. Another senior lawyer said there were fewer women lawyers out there but that they were bright. However, many drop out due to various reasons and the judiciary has its own caste system and hierarchy, which was perpetuated everywhere. Women have no place in this. “You join a particular chamber so you go ahead in your career. Women can’t even get into these places,” he says. There are few women judges and if they are appointed it’s a quota.

In addition to this, it is difficult for women, sometimes, who have families to look after, and the court offers no flexibility in terms of time and place, according to a yound woman lawyer. Once you take a break it is difficult to re-establish yourself and not many women make it through the first 20 years of their practice. Things could also be changing with more women coming into the profession determined to stick it out.

Meanwhile, when advocate M.P. Vashi filed a PIL petition in the Bombay High Court on the selection of senior advocates under section 16 of the Advocates Act, he was told to file it in the Supreme Court. Mr. Vashi said the rules setting the criteria for senior advocates went against the principles of making legal aid available cheaply. To apply for the position of senior advocate one had to have an annual income of Rs.7.5 lakh. “The idea is to make legal aid cheaper and here the rules are encouraging the lawyers to charge more fees,” he said. He said there was no clear criteria to judge the competence of those who would be selected for the position of senior advocate and the whole practice must be done away with.

Source: http://www.thehindu.com/news/national/article2482763.ece

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Hindu marriages: HC ruling upsets settled law

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ANIL MALHOTRA IN THE TRIBUNE

THE recent judgement of the Bombay High Court setting aside the parallel proceedings for divorce of the Family Court, Pune, and upholding a divorce decree passed by the Court of Oakland, State of Michigan, USA, dissolving a Hindu marriage on the principle of breakdown, has evoked a new stream of thought with which this writer differs. The verdict, Kashmira Kale vs. Kishore Kumar Mohan Kale, 2011 (1) Hindu Law Reporter (HLR), 333, lending sanctity to a US Divorce decree in preference to proceedings under the Hindu Marriage Act between the same parties upsets the settled law.

The parties married in Mumbai in 2005 according to Hindu rites lived in the US and intermittently visited Mumbai and Pune. In September 2008, the wife filed divorce proceedings in the US whose jurisdiction was challenged by the husband in the US. Simultaneously, in October 2008, the husband filed a divorce petition in the Pune Family Court, claiming it to be the competent forum for adjudication of their dispute. The husband did not pursue the wife’s divorce petition in the US any further and in January 2009, the US court dissolved the marriage and divided the assets of the parties.

However, the Pune Family Court in September 2009 held that it still had the jurisdiction to try the husband’s petition for divorce in India. In appeal, the Bombay High Court set aside the Family Court order and upheld the US divorce decree dissolving the Hindu marriage.

The conclusions drawn by the Bombay High Court that the parties were domiciled in the US and hence the Hindu Marriage Act (HMA) cannot apply to them is per se erroneous. The HMA’s non-application to Hindus was misconstrued and the application of the breakdown principle without considering the written statement of the husband challenging the US court’s jurisdiction were factors which did not lend a imprimatur to the foreign decree which did not take into consideration the HMA’s provisions under which the parties were married.

Noticing that Section 1 (2) of the HMA applies only to Hindus in the territories to which it applies but not considering that it also “applies to Hindus domiciled in the territories to which this Act extends who are outside the said territories” left the contention only half noticed. In addition, Section 2 of the HMA prescribing application of the Act to Hindus, irrespective of domicile, nationality or citizenship, renders the judgement fallacious. Earlier precedents on the point enunciated by different High Courts stipulate that the HMA applies to all Hindus irrespective of domicile or residence if they have married in India according to Hindu rites. Thus, it has been held that the HMA has extra-territorial application as a Hindu carries with him his personal law of marriage and courts in India have jurisdiction to try their matrimonial disputes regardless of change of nationality or new domicile.

The Bombay High Court in Sondur Rajini Vs. Sondur Gopal, 2006(2) HLR 475, had held that the HMA provisions do not cease to apply on change of domicile which is determined when the parties tie the nuptial knot under the HMA and not on the date when an application is made for matrimonial reliefs. In Naveen Chander Advani Vs. Leena Advani 2005 (2) HLR 582, the Bombay High Court held that the Pune Family Court wrongly declined to entertain a matrimonial petition relating to a marriage where parties who last resided and married in the US according to Hindu rites and ceremonies as the Family Court has jurisdiction to deal with matters under the HMA.

Equally flawed is the Bombay High Court’s view that since the parties last resided together in Michigan, the US court has territorial jurisdiction to decide their divorce dispute. This conclusion falls foul of the settled law laid down by the Supreme Court in Jagir Kaur vs. Jaswant Singh, AIR 1963 SC 1521 that prescribing the limits of jurisdiction, speaking of last residence of a person with his wife, can only mean his last residence in India. It does not imply his residing with her in a foreign country for an Act cannot confer jurisdiction on a foreign court.

The Bombay High Court in Meera vs. Anil Kumar 1992 (2) HLR 284 held that “last resided” in Section 19 of HMA implies last residence in India and the High Court in India within whose jurisdiction the parties last resided together can take cognisance of the matter.

Flowing from the same stream of thought, the Punjab and Haryana High Court has held that any temporary residence would confer jurisdiction to try the matrimonial dispute. This settled view militates against the erred conclusion of the Bombay High Court that temporary stay at Pune or Mumbai could not mean last residence in India as parties last resided together in the US.

Above all, the Bombay High Court’s view disagrees with the Supreme Court’s celebrated view in Y. Narasimha Rao vs. Y. Venkata Lakshmi, 1991 (3) SCC 451 that the jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married.

Three exceptions were culled out to this rule by the Supreme Court. First, permanent foreign residence and invoking of relief on a ground available in matrimonial law under which parties were married. Secondly, voluntary submission to foreign jurisdiction coupled with contest on merits abroad on grounds available under matrimonial law under which parties were married. And thirdly, parties unconditionally consent to grant of relief although the jurisdiction of foreign court is not in accordance with the provisions of matrimonial law of parties.

The Apex Court in Neerja Saraph vs. Jayant Saraph 1994 (6) SCC 641, thereafter had suggested feasibility of a legislation to hold that “no marriage between an NRI and an India woman which has taken place in India may be annulled by a foreign court”. Not noticing the Supreme Court’s above precedent, the recent view of the Bombay High Court per se appears to be disagreeable if not per incuriam.

With due deference, the Bombay High Court order does not agree with the precedent, adapt to Hindu law of marriage of the parties or is it conclusive. Parties may be treated as divorced in the US and still married in India. The line of action adopted in a number of matrimonial disputes in the Punjab and Haryana High Court is most useful to quote. Limping marriages are taken before the Mediation and Conciliation Centre at the High Court premises where the hatchet is peacefully buried and matters are amicably compromised to convert the matrimonial feuds to divorce petitions by mutual consent. Matters thereafter rest without contest on written settlements. Warring claims are put to sleep harmoniously.

This is the better path than allowing foreign courts to decide on Hindu marriage disputes without conflict of laws. Indian courts are better suited to decide them without foreign interference. Domestic law must prevail.

Author of “India, NRIs and the Law”, and co-author of “Acting for Non-resident Indian Clients,” the writer is Supreme Court Advocate and Member, UT NRI Cell, Chandigarh.

Judges, judgments and women’s rights

KALPANA SHARMA

When it comes to women’s issues and the law, the courts continue to send contradictory signals…

As much as police officers, doctors also need to be taught a rape survivor’s rights.

Two courts. Two judgments. Two attitudes. In the contrast lies the story of what Indian women continue to face when they turn to the law.

On October 21, the Supreme Court, in the context of a case before it, held that a woman in a “live-in relationship” could not claim maintenance in the event of abandonment by the man as such a relationship could not pass as a “relationship in the nature of marriage” as described under the law for arrangements outside formal marriage. The Court held that if the woman was a “keep” of the man, who looked after her financially but “uses mainly for sexual purpose and/or as a servant”, then such a woman was exempted from claiming any benefits of maintenance under the Protection of Women Against Domestic Violence Act 2005 on grounds of abandonment. The ruling led to a justifiable outburst by India’s first woman Additional Solicitor General Indira Jaisingh, who also happens to be one of the main movers of the Domestic Violence Act. Ms. Jaisingh ticked off the judges for using a term like “keep” which she held was derogatory to women and was “male chauvinistic”.

Wrong precedent?

Ms. Jaisingh’s statements in court made it to the front pages of most newspapers. But one wonders how many will pause and think about why she felt she had to raise her voice at the use of such a term in the judgment. It was, as she herself emphasised, because the ruling of the Supreme Court sets a tone and a precedent for future judgments that affect women. One of its judgments in what is called the Vishakha case is even today used as the standard for judging all matters relating to sexual harassment in the absence of a specific law. By using a term like “keep”, you disregard and virtually excuse the responsibility of the man in an arrangement in which two people are involved and where one, the woman, is most likely the more vulnerable. Once this becomes the precedent, any man can go to court and challenge the right of a woman with whom he has a relationship outside marriage, and who demands compensation when abandoned, by claiming that she was merely his “keep”. Therefore, Ms. Jaisingh’s intervention needs to be appreciated, as also her courage for speaking out in the highest court of the land where some others might have felt intimidated.Apart from the Vishakha judgment, the Supreme Court has also passed several orders that make it clear that in a rape case, the woman’s character will not be part of the proceedings during the trial and that it is immaterial to the case. This is also an important precedent in the context of women’s rights. Yet, as is evident from another judgment, in another court in Delhi, the practice continues.

Pronouncing judgment in a rape case on October 23, Additional Sessions Judge Kamini Lau drew attention to an outdated and barbaric practice that continues to be used in rape cases while collecting forensic evidence. Rather than help the survivor, this particular test, called the “finger test” or the Per Vagina (PV) test, traumatises the survivor and gives the defence in such cases a stick with which to intimidate and demoralise her in court.When a woman reports rape, she has to go to the police who then send her to a government hospital for a medical examination. The report by the doctor who conducts this test is supposed to be part of the medico-legal evidence that the prosecution presents in a rape case. Yet, although such a test has long been discarded elsewhere, in India doctors are trained to test whether the rape survivor is “habituated to sexual intercourse” by inserting two fingers inside her vagina. Why is this of any relevance to a case where the facts of rape and sexual assault are being determined? Does this mean married women cannot be raped? Does it mean an unmarried woman who has had sex cannot be raped? What does this absurd test actually establish when the woman’s character, or sexual habits, are of no consequence in the matter before the court?

It is heartening to read of at least one judge who was incensed enough to speak out against this test. Judge Lau said, “The test is violative of the fundamental right to privacy of the victim.” She went on to say, “State action cannot be a threat to the constitutional right of an individual. What has shocked my conscience is that this test is being carried out in a routine manner on victims of sexual offences (even minors) by doctors.”

The judge recommended that police officers be sensitised to this issue. But as much as police officers, doctors also need to be taught a survivor’s rights and informed that such a test is simply not allowed. According to a recent report by Human Rights Watch titled, “Dignity on Trial: India’s Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors”, the “finger test” remains standard practice in many parts of India including Mumbai and Delhi. In fact, in Mumbai, three leading government hospitals, where hundreds of rape survivors are examined each year, still use this test. The HRW report also reveals that outdated medical textbooks recommending this test are still being used. As a result, each succeeding generation of doctors continue to follow the practice without thinking twice about its relevance or the trauma they are causing the rape survivor.

Intimidating practice

Worse still, because the practice continues, many survivors lose their cases in court because they get demoralised, confused or intimidated when sections from the medical report relating to this test are used by the defence to undermine their testimony. Yet, the survivor’s testimony is supposed to be enough in a rape case and the forensic evidence is only secondary. This is especially so because survivors often wait before they go to the police and as a result valuable evidence is lost. As a result, several court rulings have emphasised that delay in filing a complaint should not be held against the survivor. Judge Kamini Lau has drawn attention to an extremely important aspect of the procedures followed in rape cases. Unless something like this is addressed urgently, convictions in rape cases, already abysmally low, will never improve. And women who are sexually assaulted will continue to hesitate before turning to the law.

Email the writer: sharma.kalpana@yahoo.com

Source: http://www.hindu.com/mag/2010/10/31/stories/2010103150090300.htm