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Equations and Gender Justice - A Case Analysis of Mary Roy v. State of Kerala

By: Manas Agrawal *|

Introductory Remarks:

Gender-Inequality, Adjudication, and Justice- In a patriarchal society like India, the best way to harmonize these three aspects is by understanding them in the order above mentioned. That means that the starting issue is gender inequality and the end goal is gender justice. So, the primary function of adjudication should be to act as a means to an end.

That is (Gender Inequality+ Adjudication = Gender Justice) - (A).

This is something which ought to be but it is not. Gender inequality occurs most frequently in Personal Laws. One such area is Succession and this is precisely the scope of this paper. In this paper, I will critically examine the focal point of intestate succession among the Christian communities of Travancore in Kerala. That is the case of Mary Roy v. State of Kerala (‘judgement’). Through this critical analysis, the article shall illustrate the impact of the judgement on women’s right to equality and property.

[A] De Jure and De-facto Equality or only De-Jure Equality – The effect of the Judgement on Equality

Two issues arose for consideration before the Supreme Court (“SC”). The First, was of deciding on the constitutionality of the Travancore Christian Succession Act, 1916 (“TCSA”). Second, was of adjudicating whether TCSA is a law in force after the advent of Part B State (Laws) Act, 1951 (‘B Act’) (¶1 of SCC copy).

The first issue is straight- forward. The petitioner challenged sections 24, 28, and 29 of TCSA on the anvil of the right to equality. For this paper, let us look at section 28. The effect of this section was that an intestate’s whole property can be equally divided among the sons. Furthermore, daughters would be only entitled to a mere streedhanom (which can attain a maximum value of only ¼th of the share of a son). This amounts to discrimination based on sex.

The second issue was relatively complex. It was argued by the petitioner that TCSA is no longer a law in force. This argument has multiple layers. Firstly, in 1949, the Maharaja of Travancore and Cochin signed the Instrument of Accession to India. So, these two states become “Part B State of Travancore and Cochin”.Secondly, the Parliament enacted ‘B Act’ in 1951. Now Section 3 of the act extends the enactments mentioned in the Schedule of the Act to Part B States. Furthermore, Section 6 states that if an act (which is in force before the appointed day) corresponds to any enactment mentioned in the Schedule of B Act, then that act will be repealed. Thirdly, the Indian Succession Act, 1925 (‘ISA’) is one such act that was mentioned in the Schedule. Hence, it was extended to Part B States (Section 3). So; TCSA which was a law in force corresponded with ISA. Hence, it should stand repealed (Section 6) (¶3-4 of SCC copy).

Between the two issues, SC gave the verdict only on the issue of repeal. SC conjunctively interpreted sections 3, 6, and Schedule of the ‘B Act’ and delivered the judgement in favour of the petitioner (¶8 of SCC copy). From a gender-justice perspective, it becomes imperative to analyze the omission of SC before coming to the verdict. The SC ignored the issue of constitutionality altogether (¶1 of SCC copy). It gave the justification that as TCSA is not a law in force, it is redundant to test it on the anvil of unconstitutionality. However, I argue that the omission was an incorrect exercise of adjudication. This can be proved by putting forward three points.

[1] The issue came to the SC by a writ petition filed under Article 32 which is a fundamental right. In such a writ petition, the petitioner has to mandatorily state the fundamental right which is getting infringed because of the impugned law. Furthermore, adjudication has to mandatorily take into consideration the issue of fundamental rights even if the validity of an enactment is in question (¶44-45 of SCC copy). The irony in the present case is that the petitioner followed the procedure but the judges did not. To summarize, the judgement is procedurally incorrect. Adjudication mentioned in equation (A) must be interpreted purposively and not just as any erroneous adjudication.

Hence, (Gender Inequality + Procedurally Incorrect AdjudicationGender Justice) - (B).

[2] One contention is that even if the judgement was procedurally incorrect, it had a just outcome. That is because under ISA, sons, and daughters are at an equal footing in matters of intestate succession. If the issue was confined to the fundamental right question, then equality would have been achieved prospectively (after the date of judgement). However, by repealing TCSA, the effect is that equality has been achieved retrospectively (from the appointed day). This contention holds no weight because there is a difference between ‘only’ and ‘necessarily’. My argument is that the judgement should have necessarily dealt with the rights question at the first step. After deciding the rights question, the judgement should have dealt with the repeal question at the second step. This is permissible as the day from which ISA is applicable has a direct bearing on the purpose of article 32 (that is remedial measure for infringement of a fundamental right) (¶45 of SCC copy). To summarize, SC had the opportunity to achieve two pro-gender measures. This could have been achieved if the SC had adopted the two-step method of adjudication proposed. Those pro-gender measures are [a] gender justice [b] from the appointed day.

[3] The most forceful contention is that it was redundant to adjudicate on the rights issue. The reason is that if one ignores the procedural discrepancy, the effect of the judgement is that of establishing gender justice. To simplify, the counter is that,

(Gender Inequality + Procedurally Incorrect Adjudication = Gender Justice) – (C) (in the present situation)

Even if we assume that the procedural unfairness should be waived off, still the contention is misplaced. This can be proved by understanding the reason behind the flagrant omission of SC. Personal laws are heavily based on the sentiments of the community. The enactment of TCSA specifically proves this point. A committee was formed to report if any legislation is necessary for governing Travancore Christian Intestate Succession. The Committee admitted that “introduction of the Indian Succession Act, 1865 is the best thing” However, “it is better to bring about the second best thing … rather than go against the sentiments of community”. So, to avoid facing the brunt of the community the committee suggested measures based on the sentiments of the majority. Later on, the suggestions were enacted as TCSA with minor changes.

Moreover, even judges avoid entering the “domain of sacred and personal”. The adoption of a ‘case by case’ approach instead of a universalized approach for testing personal laws against fundamental rights proves this. The reason is that adjudication on a social matter causes destabilization of the status quo. This can cause a huge uproar within the community. Hence, judges resort to the rights issue only if no other escape is possible.

However, the judgement established a bad precedent by striking down TCSA only on grounds of technicality instead of rights and technicality. That is because it missed a golden opportunity to establish that the judiciary is committed to removing gender imbalance even if the social costs are high. Hence, the decision is not only procedurally incorrect. Instead, it is also incorrect as it failed to pave a way for gender justice in personal laws in the long run. To read a judgement in isolation is an erroneous analysis as each judgement holds a great precedential value.

To conclude, the judgement at best achieved de jure equality (equation (C)). However, the equation is fallacious as it ignored the rights issue. Hence, the judgement failed to achieve de-facto equality. Though the arguments are sufficient, yet there is another point to prove my argument. This is based on the impact of the judgement on women’s right to property. Hence, let us understand the second aspect of the paper.

[B] Prima Facie and Deeper Impact – The effects of the judgement on Property

Firstly, let us understand these impacts.

[1] Prima facie, there were two main pro-gender justice impacts on women’s right to property because of ISA. Firstly, Mary Roy herself said, “The official worth of a Syrian Christian daughter (sic) was one quarter that of a Syrian Christian son (sic), or …Rs. 5,000”. However, after the judgement the official worth has achieved an equal value. Secondly, after the coming of ISA, a daughter is not disqualified from inheriting the property even if streedhanom is paid. However, notice that coming to a conclusion based on only prima facie impacts (equation (C)) is incorrect. The correct expression can be derived only after understanding the deeper impacts

[2]The TCSA was declared invalid merely because it was interpreted by the SC to be invalid. Hence a giant loophole has been created as an amendment can be made to the TCSA or ISA to validate TCSA. The effect would be that Christian women of the Travancore region would go back to square one of gender inequality. Hence, the potential adverse consequences of the judgement cannot be overlooked. Furthermore, this is a not mere claim in the air. This can be proved by being cognizant of the aftermath of the judgement.

The two sections of the Christian community that were most furious with the outcome of SC were the patriarchal population and the Church. The Church was furious because it apprehended that the practice of streedhanom will now be discontinued. Hence, the Church’s claim (passaram) out of a percentage of streedhanom would have been defeated. So, the two sections based on preposterous claims started a campaign to at least negate the retrospective effect of the judgement. To that effect, even a bill was passed by the Kerala State Government but luckily it got defeated by want of presidential assent. One can only imagine the dreadful situation if the President had given assent due to political pressure. Now, one can argue that these are only speculated harms which did not get translated into reality even after three decades. Admittedly that is true; however, techniques such as giving away the whole property to the sons by way of wills, coercing the daughters to sign release deed, and mala fide family settlements are used to exclude daughters from their claim to the property. There have been decisions that have quashed some of these techniques. But none of them have been able to quash them on the anvil of the right to equality. Hence, in reality, some techniques are still practiced.

However, if the judgment had been decided on the anvil of the right to equality, then it would have set a mark for subsequent issues to be adjudged on the touchstone of gender justice. Thus, women would have been less susceptible to the whims of the political and patriarchal landscape. To conclude, the deeper impacts serve as my second argument to the question of redundancy. So, “the socio-legal impact of the judgement is not of romanticizing the petitioner as heroine but that of social ostracism of the petitioner” by the patriarchal community. The decision is good as ISA is now in force but it could have been great if the rights issue was not ignored.

Concluding Remarks

Judgements such as Mary Roy dangerously impact the rights of a woman. These judgements are disguised as promoting equality; however, in reality, these judgements miss the golden opportunity of establishing equality. The judiciary’s tendency to strike a balance between respect for personal laws and equality is noble but done incorrectly. This is because judgements such as Mary Roy show that respect for personal laws outweighs equality. Hence, prima facie everything seems balanced, however on delving deeper, one realizes that imbalance exists. Thus, the need of the hour is that adjudication in cases of gender justice considers the socio-legal impacts on women’s right to equality and property. To state it in one sentence, ‘socio-legal soundness should be the hallmark of correct adjudication in cases of gender justice’.

Furthermore, firstly, the judgement was procedurally incorrect. Moreover, it was erroneous from a gender-justice perspective. That is because [a] it did not establish de –facto equality. [b] The aftermath of the judgement proves that the impact of the judgement is not conducive for women's right to property in the long run. Secondly, the judgement should have first declared TCSA unconstitutional on the touchstone of equality. Then, it should have been declared that TCSA stands repealed from the appointed day (¶8.12, ¶8,8B). Lastly, equation (A) is the best way to achieve gender justice. However, it can be expressed more authoritatively by the following expression.

Gender Inequality + Adjudication (Procedurally Correct and Pro- Gender Balance) = Gender Justice (Short run and Long run)


*The author is a student at National Law School of India University, Bengaluru.


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