Women and Justice: Keywords

Domestic Case Law

Latifi v. Union Of India Supreme Court of India (2001)

Domestic and intimate partner violence, Gender discrimination

The Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWPRDA, 1986) seemed to overrule the Supreme Court’s decision in Mohd. Ahmed Khan v. Shah Bano Begum. Pursuant to a prima facie reading of the MWPRDA, 1986, a Muslim husband was responsible to maintain his divorced wife only for the iddat period and after such period the onus of maintaining the woman would shift on to her relatives. The matter resurfaced before the Supreme Court in Danial Latifi v. Union Of India when the constitutional validity of the MWPRDA, 1986 was challenged on the grounds that the law was discriminatory and violative of the right to equality guaranteed under Article 14 of the Indian Constitution as it deprived Muslim women of maintenance benefits equivalent to those provided to other women under Section 125 of Criminal Procedure Code, 1973. Further, it was argued that the law would leave Muslim women destitute and thus was violative of the right to life guaranteed under Article 21 of the Indian Constitution. The Supreme Court, on a creative interpretation of the MWPRDA, 1986, upheld its constitutionality. It held that a Muslim husband is liable to make reasonable and fair provision for the future of his divorced wife extending beyond the iddat period. The Court based this interpretation on the word “provision” in the MWPRDA, 1986, indicating that “at the time of divorce the Muslim husband is required to contemplate the future needs [of his wife] and make preparatory arrangements in advance for meeting those needs” (at 11). This case is important because, it established for the first time that a Muslim husband’s liability to provide maintenance to his divorced wife extends beyond the iddat period, and he must realize his obligation within the iddat period, thereby striking a balance between Muslim personal law and the Criminal Procedure Code, 1973.

International Case Law

The Case of Durmaz v. Turkey European Court of Human Rights (2015)

Domestic and intimate partner violence

The applicant, Ümran Durmaz, is a Turkish national who was born in 1955 and lives in ?zmir, Turkey. The case concerned her complaint of the authorities’ failure to carry out an effective investigation into the death of her daughter. Ms Durmaz’ daughter, Gülperi O., died in July 2005 in a hospital in ?zmir – where she had been working as a nurse – after her husband had taken her to the emergency department, informing the doctors that she had taken an overdose of two medicines. The doctors pumped her stomach but were unable to save her. When questioned by the police, her husband, who worked at the hospital’s pharmacy, also stated that the couple had had a row on the same day and he had hit her. Gülperi O.’s father subsequently lodged a complaint with the prosecutor, stating that she had not been suicidal, and alleging that her husband was responsible for her death. In the course of the ensuing investigation, a forensic medical examination found no trace of medicines or other drugs in Gülperi O.’s blood or in other samples taken from her body, but it noted that there was an advanced oedema in her lungs. In February 2006, the prosecutor decided to close the investigation, concluding that Gülperi O. had committed suicide. An objection by Ms Durmaz – stating, in particular, that the prosecutor had failed to question her late daughter’s husband, despite the fact that by his own admission he had beaten her, and that the prosecutor’s conclusion ran contrary to the findings of the forensic examination – was dismissed by the courts. Relying in particular on Article 2 (right to life), Ms Durmaz complained that the investigation into the death of her daughter had been ineffective. In particular, further expert reports would have been required, and the prosecutor should have investigated whether the cause of Gülperi O.’s death could have been an internal hemorrhage caused by the blows inflicted by her husband.

Sawhoyamaxa Indigenous Community v. Paraguay Inter-American Court of Human Rights (2006)

Abortion and reproductive health rights, Gender discrimination, International law, Property and inheritance rights

This case involved issues involving the exposure of vulnerable members of indigenous communities, particularly children, pregnant women, and the elderly. A petition was filed against Paraguay on behalf of the Sawhoyamaxa Indigenous Community, alleging violations of, among other things, the right to fair trial and judicial protection, the right to property and the right to life. The petition noted that these violations placed children, pregnant women and the elderly in particularly vulnerable situations. The Court found Paraguay to be in violation of Articles 1(1), 2, 3, 4(1), 8, 19, 21 and 25 of the American Convention on Human Rights. The Court ordered Paraguay to formally and physically convey to the Sawhoyamaxa their traditional lands, to establish a community development fund, to pay non-pecuniary damages, to provide the Sawhoyamaxa with basic necessities until their lands were restored, to provide the Sawhoyamaxa with the necessary tools for communication to access health authorities, and to domestically enact legislation creating a mechanism for indigenous communities to reclaim their traditional lands.