CASE STUDY - C.B. MUTHAMMA V.

UNION OF INDIA

JURISPRUDENCE II

N.A

TABLE OF CONTENTS

1.
2.
3.
4.
5.
6.
7.

Introduction
Facts of the case
Arguments Advanced ....
Held ..
Analysis of Judgment
....
Further developments ...
Conclusion.

BIBLIOGRAPHY

INTRODUCTION

We dismiss the petition but not the problem. This statement, delivered by Justice Krishnaiyer
in the case of C.B. Muthamma v. Union of India 1, served as the conclusion to the judgment but
became the commencement of a thought provoking struggle for the Indian Judiciary to battle the
evils of Gender discrimination in India. Although, the Constitution of India bestows the Right of
Equality2 upon all its citizens, there still exists the notion of gender discrimination among the
citizens and authorities of the country. Justice Sathasivam said the discrimination against women
stems not from legislative insufficiency, but can be attributed to the deep-rooted social values
and ethics involved in the establishment of Indian society.exploitation of women is a "reality"
in India and gender justice a "fragile myth", attributing the evil to social prejudices.3
This centaury has witnessed the growth of participation of women in sector of economy,
education, management and what not. The independence of Women did not completely set
them at liberty the position of women is still vulnerable. The Constitution of India is framed in
a backdrop of emerging concept of Equality during post war period. Equality which had until
then been politically and legally unattainable under colonial rule, now became an important
national goal. Which in fact gave a greater emphasis on gender equality in India. In course of
time it gave in a new era in the history of India when women stepped out from the backdrop of
purdha in par with men.
The fight for Gender justice has been a long prevailing phenomenon in India. Discrimination on
the grounds of gender, though theoretically unconstitutional, remains the harsh reality of the
society even today. Though the women, who constitute nearly half the population of the country,
work round the clock, they are met with a step motherly treatment and meager earnings when
compared to the male gender, thus remaining victim of inequality and injustice owing to the
patriarchal prejudices of the society. This anomaly is, now, being openly questioned and the
underlying discrimination is seriously challenged. The Supreme Court took an imperative
approach in the case of C.B. Muthamma v. Union of India, giving a diverse and constitutionally
1 1979 AIR 1868, 1980 SCR (1) 668
2 Article 14 of the Constitution of India, 1950
3 http://articles.timesofindia.indiatimes.com/2011-11-10/india/30381515_1_genderjustice-justice-sathasivam-myth Justice P Sathasivam.
3

binding opinion on this age long practice of gender discrimination while considering the
pragmatic requirements of the society.

FACTS OF THE CASE

The facts of the case were such that, the petitioner, a senior member of the Indian Foreign
Service complained that she had been denied promotion to Grade Iof the Indian Foreign Service
on unreasonable and gender discriminatory grounds.
The petitioner further challenged two rules namely rule 8(2) of Indian

Foreign Service

(Conduct and Discipline) Rules 1961 and Rule 18(4) of the Indian Foreign Service
(Recruitment, Cadre Seniority and Promotion) Rules 1961, which in short states that a woman
member of the service shall obtain permission in writing of the Government before marriage and
the woman member may be required to resign any time after marriage if the Government is
satisfied that her family and domestic commitments will hamper her duties as a member of the
service and under the second rule no married woman shall be entitled as of right to be appointed
to the service. The petitioner's remaining grievance is that during the interval of some months
between her first evaluation and the second, some officers junior to her, have gone above her and
her career would be affected.

ARGUMENTS ADVANCED
The petitioner argued that she had been denied promotion to Grade I of the Indian Foreign
Service on the grounds that:
1. There was a long standing practice of hostile discrimination against women.
2. She had to undertake on joining the foreign service that if she got married she would resign
from her post
3. She had to face the consequences of being a woman and thus suffered discrimination
4. The members of the appointment committee were basically prejudiced as a group.
4

She also submitted that the rules that no married woman has the automatic right to be appointed
to the Service and that a woman employee must get written permission to marry and may be
forced to resign if the Government decides that her marital commitments will hamper her work
were unconstitutional. Furthermore she set out that during the period between her first and
second evaluations, some officers junior to her had been promoted over her, adversely affecting
her career.

HELD:
Although, the issue at hand was addressed with utmost care, the petition was dismissed as the
said provisions which were found to be discriminatory were already in the process of being
deleted, and that the petitioner had been promoted subsequent to her complaint and therefore,
pursuing the petition would yield no use. However, the Court directed the respondent to review
the petitioner's case with particular focus on seniority vis-a-vis those junior to her who
have been promoted in the interval of some months. It was further impressed upon the
respondent the need to overhaul all service rules to remove the stains of sex discrimination,
without waiting for ad-hoc inspiration from Writ Petitions or gender charity.

ANALYSES OF THE JUDGMENT:

Regarding the facts of the case and the situation at hand with utmost scrutiny, the three appeal
judges presented unanimous findings. JK Iyer Krishna delivered the 2 decision, first commenting
that: sex prejudice against the Indian womanhood pervades the service rules even a third of a
century after Freedom. There is some basis for the charge of bias in the rules and this makes the
ominous indifference of the executive to bring about the banishment of discrimination in the
heritage of service rules. If high officials lose hopes of equal justice under the rules, the legal lot
of the little Indian, already priced out of the expensive judicial market, is best left to guess. The
Court then analysed the individual rules, finding that: If a woman member shall obtain the
permission of Government before the marriage, the same risk is run by Government if a male
member contracts a marriage. If the family and domestic commitments of a woman member of
the service is likely to come in the way of efficient discharge of duties, a similar situation may
5

well arise in the case of a male member If a married man has a right, a married woman, other
things being equal, stands on no worse footing. Freedom is indivisible, so is justice. The Court
found that, since of the rules in question had been or where in the process of deletion, there was
no need to address or attack them. In addition, the petitioner had been promoted subsequent to
her complaint, so further examination of it was pointless. The Court also noted that: The Central
Government states that although the petitioner was not found meritorious enough for promotion
some months ago, she has been found to be good now, has been upgraded and appointed as
Ambassador of India to The Hague, for what that is worth. The Court dismissed the petition but
directed the Government to review the petitioner's case in light of the only remaining element of
her complaint that relating to the promotion of people junior to her. The Court emphasized the
need to overhaul all service rules to remove discrimination.

FURTHER DEVELOPMENTS:
Though the petition in this case was dismissed, the judgment served as a precedent in numerous
other situations of gender discrimination that further arose and were brought forth in front of the
judiciary. Some such cases were:
In Air India v. Nergesh Meerza 4
Service Regulation 46

provided that air hostess would retire from the services of the

Corporation upon attaining the age of 35 years or on marriage, if it took place within four years
of service, or on first pregancey, whichever occurred earlier. Under regulation 47, Managing
Director was vested with absolute discretion to extend the age of retirement until the employee
attains 45 years.
Justice Fazal Ali It seems to us that the termination of the service of an air hostess under such
circumstances is not only a callous and cruel act but an open insult to Indian womanhood.
why should be a woman be penalized for bearing a child and be made to give up her job? the
court queried therefore, if some disqualifications are attached to the condition of being a
woman, it amounts to discrimination which is in violation of Article 14
4 AIR 1981 SC 1829
6

In 1986 another petition came before the Court of law questioning the Economic independence
of a women.

Maya Devi v. State of Maharashtra 5

Court emphasized the importance of economic independence of women, in overcoming
traditional disadvantages. The requirement that married women obtain their husbands consent
before applying for public employment was successfully challenged as a violation of Articles 14,
15 and 16.

CONCLUSION:
In the words of Pandit Jawarharlal Nehru, you can tell the condition of a nation by looking
at the status of its women
This case proved to be an eye-opener for the judiciary on the gender bias that takes place in spite
of the laws being made in support of the constitutional measure of gender equality.
Indian Constitution was amazingly drafted which stood the test of time. Judiciary played an
important role in adapting the Constitutional ideas to the present generation. With every question
of law which struck the every concept of gender justice have widened the scope and gave a larger
platform for women to exercise their rights in par with their counter parts.
The Constitutional Provisions were proved to be a house of the protection for women of India
from the clutches of male chauvinism.

5 1986 1 SCR 743

7

BIBLIOGRAPHY
Main Sources:

C.B. Muthamma v. Union of India 1979 AIR 1868, 1980 SCR (1) 668
The Constitution of India 1860.

Books Referred:
Constitutional law

D r. J.N.Pandey, The Constitutional Law of India, 7th Ed Central Law Agency.

M.P.Singh, Shuklas Constitutional Law of India, Ed 1977

Women and Law

Lalita Dhar Parihar, Women &Law, from Impoverishment to Empowerment- A

Critique. Eastern Book Company,

Family Law
Flavia Agnes , Family Laws and Constitutional Claims Oxford Press Vol 1
Flavia Agnes, Marriage, Divorce, and Matrimonial Litigaiton. Oxford Press Vol II
Profefesor Kusum, Fmily Law I 3rd Ed Lexis Nexis.

Articles online

Gender Justice a Myth, http://articles.timesofindia.indiatimes.com/2011-1110/india/30381515_1_gender-justice-justice-sathasivam-myth

Unfinished Business: GENDER JUSTICE

8