Serving summons to only male member of the family discriminatory: Supreme Court issues notice to Attorney General

A Supreme Court division bench comprising the Chief Justice of India ('CJI') Dr. D.Y. Chandrachud and Justice Hima Kohli today issued notice to the Attorney General for India ('AGI'), R. Venkataramani to appear for the hearing of a petition that challenges Section 64 of the Code of Criminal Procedure, 1973 ('CrPC') in Kush Kalra versus Union of India & Anr.

Under section 64 of the CrPC, if the person summoned cannot be found, even after due diligence has been exercised, then the summons may be served by leaving one of the duplicates to some adult male family member residing with him.

The petitioner, represented by advocate Jyotika Kalra, has challenged section 64 because it disentitles women or families headed by females to receive a duplicate copy of the summons.

Before issuing notice, the division bench told the petitioner that a 'similar' petition was dismissed by an order passed by another bench of the court presided over by Justices Sanjiv Khanna and J.K Maheshwari in Yashdeep Lakra versus Union of India (2020).

In that case, the bench made the following order: "We are not inclined to issue notice and entertain the writ petition, but leave it open to the petitioner to either make a representation to the government or to take recourse to alternative remedy under Article 226 of the Constitution of India. Recording the aforesaid and without expressing any opinion, the writ petition is dismissed as not entertained under Article 32 of the Constitution of India."

The counsel, therefore, suggested that since the previous petition did not essentially deal with section 64, the current petition merits a fresh hearing by the bench.

The CJI then suggested that the person who is aggrieved must come to the court. He said, "How are you aggrieved in this petition? You are just an advocate. Let somebody who is aggrieved come here."

The counsel replied that there is a delay in the justice delivery system when summons are not issued to the female head of the household.

The bench eventually agreed to hear the case by issuing notice to the AGI.

Jyotika Kalra told The Leaflet, "In the petition, I am not just agitating the equality issue. The justice delivery system is also getting delayed. There are various reports which say that non-service of summons – due to the non-availability of a male member in the family – leads to the delay in the matters."

Further, she said that the Madras high court in G. Kavitha versus Union of India (2006) has made a direct reference to the discriminatory nature of this provision. But it had disposed of the petition on the ground that it deals with larger questions of law that must be dealt with by the Union Government.

In G. Kavitha, while the high court left the issue to be dealt with by the legislature, it had observed, "When there is no restriction for the mother to receive a summons in civil cases, I do not understand the reason for denial of the same in a criminal case. There should be uniformity, equality in treating both."