Dear Editor,
The Supreme Court’s ruling allowing women to enter the Sabarimala temple in Kerala, irrespective of their age, shows a will for society to be an equal place for men and women. Earlier, women between the ages of 10 and 50 were denied entry. The ruling shows that we are striving to be a society in which both men and women are equal partners.
Yet, laws that were originally crafted for the protection and upliftment of women, but discriminate against men, continue to be on our statute books. Is it not time to re-evaluate the necessity of these laws?
Unintended results
A prime example is section 56 of the Civil Procedure Code, 1908 (CPC), which says that a court shall not order the arrest or detention of a woman in a civil prison for the execution of a decree for the payment of money. This makes loan recovery from women a challenge as there is no fear of arrest. Well aware that they are protected under this section, some women – and men – seek to exploit it.
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As borrowings can carry a lower interest rate for women, they are typically the primary applicant or co-applicant for home loans, even in cases where they are not the actual recipient of the loan. Similarly, there are instances of some women running up large overdues on credit cards and women, who are directors of companies or partners in entities, borrowing in their names instead of the company’s name. This causes losses to financial institutions as the propensity to repay loans taken in this manner is far lower.
Rethink required
Why are there such double standards even as we work to bring about gender parity in all spheres of activity? Is such protection for women still relevant? It has worked to protect women who gain their livelihood from small-scale and self-owned businesses. However, section 56 works largely to the advantage of people looking to game the system.
The issue of the constitutionality of section 56 in the CPC has been questioned in several public interest litigations. The section, which provides special provisions for women, is clearly relatable to article 15 (3) of the constitution that reads, “Nothing in this article shall prevent the state from making any special provisions.”
The law gives the defaulter a chance to explain why they should not be detained, as is evident from a plain reading of the procedure for execution in the CPC order XXI rule 37, 38 and 40. If the judgment debtor has means to pay but refuses or neglects the obligation to do so, the person can be sent to civil prison. However, this will only happen after the court is satisfied that there was an element of bad faith, “not mere omission to pay, but an attitude of refusal on demand of the obligation under the decree”.
Therefore, even without the protection of section 56, a woman who is a judgment debtor will get a chance to explain why she should not be detained, and if the reason is genuine, the law is there to support her. While attempting to protect women, section 56 discriminates against men and it is time to initiate a debate for it to be set aside.
Kurian Joseph
A lower courts lawyer
Kerala
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