LEGAL PROTECTIONS OF WOMEN UNDER THE CONSTITUTION OF INDIA BY TEZOSWIE DOWARAH

LEGAL PROTECTIONS OF WOMEN UNDER THE CONSTITUTION OF INDIA

DISSERTATION SUBMITTED TO THE DIBRUGARH UNIVERSITY AS A PARTIAL FULFILMENT FOR B.A.LL.B DEGREE, 2010

SHRI TEZOSWIE DOWARAH CENTRE FOR JURIDICAL STUDIES DIBRUGARH UNIVERSITY 2010

ACKNOWLEDGEMENT The role that women play in society is becoming increasingly more important. Their proper development is essential to the functioning of the nation. There is no doubt that we are in the midst of a great revolution in the history of women. The evidence is everywhere; the voice of women is increasingly heard in Parliament, courts and in the streets. Indian experience provides cautionary tales and constructive insights that may prove useful to those who advocate the incorporation of women‘s rights into the scheme of constitutional law. The Indian Constitution contains the most explicit constitutionalization of women‘s rights. It is no accident that the Indian Constitution singles out women for special protections. The Constitution of India guarantees equality of sexes and in fact grants special favours to women through Article 14, 15(3) and 16. As a part of B.A.LL.B., Course, I had the opportunity to work out a project on legal protections of women under the Constitution of India‘. While I set the work in operation, first, I had to take help of my guide Dinamoni Thakuria, Lecturer, Centre for Juridical Studies, Dibrugarh University. I am very grateful to Dinamoni Thakuria for his kind guidance and supervision on my performance. I am also grateful to Professor M. N. Das, Director i/c, Centre for Juridical Studies, Dibrugarh University, for his valuable suggestions. Moreover, I am also grateful to all the teaching personnel who very frequently offered their suggestions to carry out the work. I am also thankful to all those non-teaching staff of the Centre for Juridical Studies, Dibrugarh University, for their encouraging words and keen interest and affection shown to me from the beginning of the work. I cannot keep apart expressing my thanks to the authors, editors and publishers of the books, magazines, journals, newspapers etc. from where I collected required information. I must convey my gratitude to my parents for their encouragement and assistance in completion of the work. I also express my thanks to the other members of my family and my friends who helped me in each and every step towards the completion of the work. Tezoswie Dowarah

Centre for Juridical Studies Dibrugarh University

Dinamoni Thakuria Lecturer, Centre for Juridical Studies Dibrugarh University, Dibrugarh, Assam Ref:……………………………….

Date:

01-06-2010

Certified that Shri Tezoswie Dowarah, a student of 8th Semester of Centre for Juridical Studies, Dibrugarh University, Dibrugarh, bearing Examination Roll No. D.U. 58/06 and Registration No. 00829 of 2006-2007 of Dibrugarh University, has carried out the work entitled ―LEGAL PROTECTIONS OF WOMEN UNDER THE CONSTITUTION OF INDIA‖, under my guidance. He has submitted the work to the Dibrugarh University, Dibrugarh, as a partial fulfillment for B.A.LL.B Degree, 2010. To the best of my knowledge, this dissertation as a whole or any part thereof has not been submitted to any other University or institution for any other degree or diploma.

(Dinamoni Thakuria) Lecturer, Centre for Juridical Studies, Dibrugarh University

CONTENTS Page ACKNOWLEDGEMENT

Chapter- I

INTRODUCTION

I

01-07

1.1

Background to the Study

01

1.2

Justification

03

1.3

Objectives of the Study

04

1.4

Scope of the Study

04

1.5

Research Methodology

04

1.6

Organization of the Study

06

Chapter- II

HISTORY AND DEVELOPMENTOF WOMEN’S RIGHTS

08-27

2.1

Feminism

08

2.2

Women‘s Rights and its Development

12

2.3

The United Nations and Women‘s Rights

18

2.4

Women in India

22

Chapter- III WOMEN’S CONSTITUTIONAL AND HUMAN RIGHTS

28-71

3.1

Constitutional Provisions in India

29

3.2

Women‘s Rights are Human Rights

45

Chapter- IV OTHER LEGISLATIVE MEASURES ON PROTECTION OF WOMEN RIGHTS IN INDIA

72-157

4.1

Personal Rights relating to Women

72

4.2

Women and Industrial Law

125

4.3

Women and Criminal Laws

135

4.4

Jurisdictional Procedural Protection of Women

154

Chapter- V

GOVERNMENT’S INITIATIVES TOWARDS WOMEN EMPOWERMENT

158-176

5.1

National Commission for Women

158

5.2

National Policy for the Empowerment of Women (2001)

168

5.3

Women‘s Reservation Bill India

175

Chapter- VI CRITICAL STUDY ON WOMEN PROTECTION MEASURES IN INDIA

177-189

Chapter- VII SUGGESTION AND CONCLUSION

190-197

BIBLIOGRAPHY

198-199

CHAPTER - I

INTRODUCTION

1.1

Background to the Study It is a fact of nature that women are on the average physically weaker than

men. Moreover, they pay the physical price for perpetuating the human species; during their child-bearing and child nurturing years they are especially weak and vulnerable. It seems that an advanced civilization would compensate women for these physical differences and responsibilities by granting those superior rights, including higher wages for equal work. At present, women have become sex objects and are widely treated as interior to men in different spheres of life. In the rural areas, wife-beating, torture of unmarried daughters, sisters and other female relatives is common phenomenon. Girls are perceived as a burden on the family, because of the huge amounts of money required for their weddings. Girls are generally not encouraged to take up even middle or higher education. There is huge discrimination between men and women in the sphere of education and the reason attributed to such gender bias is the feeling of people that girls should be confined to the house. Humiliation, harassment, torture and exploitation of women is as old as is the history of family life. In India, women are way ahead of women elsewhere in the matter of social legislation but the implementation of laws granting rights to women has been so slow, lopsided and haphazard that socially, economically and politically women lag far behind men. The role that women play in society is becoming increasingly more important. Their proper development is essential to the functioning of the nation. There is no doubt that we are in the midst of a great revolution in the history of women. The evidence is everywhere; the voice of women is increasingly heard in Parliament, courts and in the streets. While women in the West had to fight for over a century to get some of their basic rights, like the right to vote, the Constitution of India gave women equal rights with men from the beginning. Unfortunately, women in this country are mostly unaware of their rights because of illiteracy and the oppressive

tradition. Names like Kalpana Chawla: The Indian born, who fought her way up into NASA and was the first women in space, and Indira Gandhi: The Iron Woman of India was the Prime Minister of the Nation, Beauty Queens like Aishwarya Rai and Susmita Sen, and Mother Teresa are not representative of the condition of Indian women. Indian experience provides cautionary tales and constructive insights that may prove useful to those who advocate the incorporation of women‘s rights into the scheme of constitutional law. The Indian Constitution contains the most explicit constitutionalization to date of women‘s rights. It is no accident that the Indian Constitution singles out women for special protections. The Constitution of India guarantees equality of sexes and in fact grants special favours to women through Article 14, 15(3) and 16. All these are fundamental rights. Therefore, a woman can go to the court if one is subjected to any discrimination. When we talk about constitutional rights of women in India, we mainly pertain to those areas where discrimination is done against women and special laws formulated to fight those bigotries. The most important issues stand as those pertaining to marriage, children, abortion, crimes against women, and inheritance. Directed and guided by the Constitution various revolutionary laws giving equal status to women with men have been enacted in order to remove all disparities, dissimilarities and discriminations against women, for instance, the Equal remuneration Act, 1976, the National Commission for women Act, 1990 which has been entrusted with the task of presenting to the Central Government, the problems of women, the deprivation of their rights, and report as to their progress and development. Various protection measures have been enacted and enforced, such as the Commission of Sati Prevention Act, 1987, Indecent Representation of Women (Prohibition) Act, 1986, Dowry Prohibition Act, 1961, Muslim Women‘s (Protection of Rights of Divorce) Act, 1986, Suppression, of Immoral Traffic in Women and Girls Act, 1956, the Family Court Act, 1984 Protection of Human Rights Act, 1993, Indian Penal Code, 1860, Code of Criminal Procedure, 1973, Indian Evidence Act, 1872, Industrial laws, Personal laws etc.

Crimes like rape, kidnapping, eve teasing and indecent exposure can be grouped as crimes against women. There are many women in India, who are caught in these types of violence. Thus, there are a number of laws to protect women, but what is the use of having these laws when no one follows them? In fact, the people whose business it is, to enforce these laws are the ones who publicly flout them. Besides, not many women are conversant with law and few are aware of the rights and privileges accorded to them by the constitution. So they suffer all forms of discrimination, passively. It is high time to make critical assessment of the available legal protection conferred by the Constitution and other statutes to the women and their proper implementation.

1.2

Justification Indian women treated as second citizens in India, though the principle of gender equality is enshrined by the country‘s Constitution. It is claimed that from the Fifth Five Year Plan (1974-78) onwards, there has been a marked shift in the approach to women‘s issues from welfare to development. Whether there has been any shift in the approach of women welfare to women development as aimed? Besides, is there any significant change in the status of rural women after the Fifth Five Year Plan? Laws such as the Immoral Traffic (Prevention) Act, Sati Prevention Act, Dowry Prohibition Act and Indecent Representation of Women (Prevention) Act, Domestic Violence Act protect women from the more ―traditional‖ crimes such as rape, abduction, dowry, torture, molestation, sexual harassment and selling of girls into slavery. But, it is seen that these Acts failed to restrict these social crimes completely. Only 50% of Indian women are literate as compared to 65.5% men. Women generally earn a far lower wage than men doing the same work.

The National Commission for women has no concrete legislative powers. It only has the powers to recommend amendments and submit reports which are not binding on state or Union Governments. The Commission does not have the power to select its own members. This power is vested with the Union Government and in India‘s volatile political scenario the Commission may be politicized. It is essential to address these problems, so that, this Research-Work can be done with proper justification.

1.3

Objectives of the Study 1. To know and analyze the present position of women in India and their rights conferred by Constitution of India and other legislative measures. 2. To explore the main causes in increasing the crimes against women in India. 3. To understand the existing law in India pertaining to combat such crimes. 4. To know where the government machinery is failed to control the same.

1.4

Scope of the Study This study may contribute meaningfully in creating awareness among the

women about their rights and privileges accorded by the Constitution. Nevertheless, the study may help in the development of further research activity/ works in this field which could help in motivating the thinking of Indian society. Although, due to the very nature of the course curriculum the work may not be able to do justice in developing a full proof action plan, effort has been made to study precisely all the relevant parameters as much as possible and to suggest some recommendations to overcome the problems relating to women. 1.5

Research Methodology Legal research is defined as the process of identifying and retrieving

information that is required for supporting legal decision-making. It can be performed by lawyers, law librarians, paralegals or anyone who wants legal information. This

legal information can be collected from printed books, online legal research websites and information portals that can be accessed. Legal research generally involves:  Finding primary authority (cases, statutes, regulations)  Finding secondary authority about a specific legal topic  Finding non-legal sources for supporting information. Method is the way of doing something. Methodology is the science or study of a particular subject. Research methodology is a systematized investigation to gain new knowledge about the phenomena or problems. It provides standards which the researcher uses for integrating data and reaching conclusions. There are many different approaches to doing legal research and there is no hard and fast rule to be followed while doing legal research. Method adopted the preparation of B.A. LL.B. degree thesis on the subject ‗Legal Protection of Women under the Constitution of India‘, comprises the following: 

Primary Sources: These are the opinions on several persons involving in this particular field, identify all the facts and details of the people, place, and the acts involved besides familiarizing oneself with the related jargon. A proper understanding of all issues that is to be got via the research has to be made at the outset itself. Also one must identify the different legal theories, procedures and know about the specific relief that is being sought.



Secondary Sources: These consist of material collected from research article, journal, books, and internet etc. The research is both Empirical and Doctrinal. Doctrinal Research: A Doctrinal Research means a research that has been

carried out on a legal proposition or propositions by way of analyzing the existing statutory provisions and cases by applying the reasoning power. The doctrinal legal research attempts to verify the hypothesis by a firsthand study of authoritative source. It should know how to use the law library, for the major

portion of his research methodology concerns with the identification of authoritative sources and use the techniques to find them out. Empirical Research: Conducting empirical research in law of recent origin. Empiric means relying solely on observation and experiment, not on theory. It is carried out by collecting and gathering data or information relating to universe by a firsthand study. A legal researcher undertaking empirical research typically takes either some aspect of the legal decision process or the people and institutions supposedly regulated by law as the focus of his study. Empirical research is an inquiry that attempts to discover and verify the general rules allowing us to understand why human beings behave the way they do. The methods like observation, interview, questionnaire, survey and case study are used to discover the human conduct. The Empirical Research approach is followed in this research work, on the topic ‗Legal Protections of Women under the Constitution of India‘. The present study is based on both primary and secondary data like crime reports, journals, books and internet surveys etc.

1.6

Organization of the Study The Chapter-I is an introductory one. It consists of background of the study,

justification, objectives and scope of the study and research methodology. The Chapter-II deals with the history and development of women‘s rights. In this chapter the concept of feminism and its development, women‘s rights and its development, United Nations and women‘s rights, position of women in Indian society are discussed. Chapter-III deals with the women‘s constitutional and human rights. In this various rights and privileges conferred by the Indian Constitution are discussed and also discuss various rights conferred to women by various conventions and declarations as human rights.

Chapter-IV relates with the other legislative measures on protection of women rights in India. Under which personal laws, industrial laws, criminal laws and procedural protection relating to women are discussed. Chapter-V related with Government‘s initiatives towards women empowerment. On which the discussion deals with National Commission for women, national policy for the empowerment of women and Reservation Bill. Chapter-VI is a critical study on women protection measures in India, where an assessment is given to the measures which are related with women in India. Chapter-VII deals with the part of suggestion and conclusion of this paper. Some recommendations are given under this.

CHAPTER - II

HISTORY AND DEVELOPMENT OF WOMEN’S RIGHTS

2.1

Feminism Feminine jurisprudence is a misnomer of equality of women with men in law,

provided and guarded, in all spheres of life and well afforded by various statutes. The term ‗feminism‘ can be used to describe a political, cultural or economic movement aimed at establishing equal rights and legal protection for women. Feminism involves political, cultural and sociological theories, as well as philosophies concerned with issues of gender difference. It is also a movement that advocates gender equality for women and campaigns for women's rights and interests. According to Maggie Humm and Rebecca Walker, the history of feminism can be divided into three waves.1 The first feminist wave was in the nineteenth and early twentieth century‘s, the second was in the 1960s and 1970s, and the third extends from the 1990s to the present.2 Feminist theory emerged from these feminist movements. It is manifest in a variety of disciplines such as feminist geography, feminist history and feminist literary criticism. Feminism has altered predominant perspectives in a wide range of areas within Western society, ranging from culture to law. Feminist activists have campaigned for women's legal rights (rights of contract, property rights, voting rights); for women's right to bodily integrity and autonomy, for abortion rights, and for reproductive rights (including access to contraception and quality prenatal care); for protection of women and girls from domestic violence, sexual harassment and rape; for workplace rights, including maternity leave and equal pay; against misogyny; and against other forms of gender-specific discrimination against women. Although the terms ‗feminism‘ and ‗feminist‘ did not gain widespread use until the 1970s, they were already being used in the public parlance much earlier; for instance, Katharine Hepburn speaks of the ‗feminist movement‘ in the 1942 film Woman of the Year. 1

Humm, Maggie (1990). The dictionary of feminist theory. Columbus: Ohio State University Press. pp. 278, Walker, Rebecca (1992), "Becoming the Third Wave", Ms (January/February, 1992): 39–41. 2 Krolokke, Charlotte; Anne Scott Sorensen (2005). "Three Waves of Feminism: From Suffragettes to Grrls". Gender Communication Theories and Analyses: From Silence to Performance. Page. pp. 24.

Feminists and scholars have divided the movement's history into three ‗waves‘. The first wave refers mainly to women‘s suffrage movements of the nineteenth and early twentieth century‘s (mainly concerned with women‘s right to vote). The second wave refers to the ideas and actions associated with the women‘s liberation movement beginning in the 1960s (which campaigned for legal and social rights for women). The third wave refers to a continuation of, and a reaction to the perceived failures of, second-wave feminism, beginning in the 1990s.3 First Wave First-wave feminism refers to an extended period of feminist activity during the nineteenth century and early twentieth century in the United Kingdom and the United States. Originally it focused on the promotion of equal contract and property rights for women and the opposition to chattel marriage and ownership of married women (and their children) by their husbands. However, by the end of the nineteenth century, activism focused primarily on gaining political power, particularly the right of women's suffrage. Yet, feminists such as Voltairine de Cleyre and Margaret Sanger were still active in campaigning for women's sexual, reproductive, and economic rights at this time. In 1854, Florence Nightingale established female nurses as adjuncts to the military. In Britain, the Suffragettes and, possibly more effectively, the Suffragists campaigned for the women‘s vote, with Emmeline Pankhurst the leader of the movement. In 1918 the Representation of the People Act, 1918 was passed granting the vote to women over the age of 30 who owned houses. In the United States, leaders of this movement included Lucretia Mott, Lucy Stone, Elizabeth Cady Stanton, and Susan B. Anthony, who each campaigned for the abolition of slavery prior to championing women‘s right to vote; all were strongly influenced by Quaker thought. American first-wave feminism involved a wide range of women. American first-wave feminism is considered to have ended with the passage of the Nineteenth Amendment to the United States Constitution (1919), granting women the right to vote in all states.4

3

Ibid. Freedman, Estelle B. (2003). No Turning Back: The History of Feminism and the Future of Women. Ballantine Books. p. 464. 4

Second Wave Second-wave feminism refers to the period of activity in the early 1960s and lasting through the late 1980s. The scholar Imelda Whelehan suggests that the second wave was a continuation of the earlier phase of feminism involving the suffragettes in the UK and USA.5 The scholar Estelle Freedman compares first and second-wave feminism saying that the first wave focused on rights such as suffrage, whereas the second wave was largely concerned with other issues of equality, such as ending discrimination.6 Third Wave Third-wave feminism began in the early 1990s, arising as a response to perceived failures of the second wave and also as a response to the backlash against initiatives and movements created by the second wave. Third-wave feminism seeks to challenge or avoid what it deems the second wave's essentialist definitions of femininity, which (according to them) over-emphasize the experiences of upper middle-class white women. A post-structuralist interpretation of gender and sexuality is central too much of the third wave's ideology. Third-wave feminists often focus on "micro-politics" and challenge the second wave's paradigm as to what is, or is not, good for females.7 Third-wave feminism also contains internal debates between difference feminists such as the psychologist Carol Gilligan (who believes that there are important differences between the sexes) and those who believe that there are no inherent differences between the sexes and contend that gender roles are due to social conditioning.8 Post-Feminism Post-feminism describes a range of viewpoints reacting to feminism. Postfeminists believe that women have achieved second wave goals while being critical of third wave feminist goals. The term was first used in the 1980s to describe a backlash against second-wave feminism. It is now a label for a wide range of theories that take 5

Whelehan, Imelda (1995). Modern feminist thought: from the second wave to "post-feminism". Edinburgh: Edinburgh University Press. 6 Supra n.4 7 Supra n.4 8 Gilligan, Carol (1993). In a different voice: psychological theory and women's development. Cambridge, Massachusetts: Harvard University Press. pp. 184.

critical approaches to previous feminist discourses and includes challenges to the second wave‘s ideas.9 Other post-feminists say that feminism is no longer relevant to today's society.10 French Feminism French feminism refers to a branch of feminist thought from a group of feminists in France from the 1970s to the 1990s. French feminism, compared to Anglophone feminism, is distinguished by an approach which is more philosophical and literary. Its writings tend to be effusive and metaphorical, being less concerned with political doctrine and generally focused on theories of ―the body.‖11 Pro-Feminism Pro-feminism is the support of feminism without implying that the supporter is a member of the feminist movement. The term is most often used in reference to men who are actively supportive of feminism and of efforts to bring about gender equality. The activities of pro-feminist men‘s groups include anti-violence work with boys and young men in schools, offering sexual harassment workshops in workplaces, running community education campaigns, and counseling male perpetrators of violence. Profeminist men also are involved in men's health, activism against pornography including anti-pornography legislation, men‘s studies, and the development of gender equity curricula in schools. This work is sometimes in collaboration with feminists and women‘s services, such as domestic violence and rape crisis centers. Some activists of both genders will not refer to men as ―feminists‖ at all, and will refer to all pro-feminist men as ―pro-feminists‖.12 Anti-Feminism Anti-feminism is opposition to feminism in some or all of its forms.13 Writers such as Camille Paglia, Christina Hoff Sommers, Jean Bethke Elshtain and Elizabeth

9

Wright, Elizabeth (2000). Lacan and Postfeminism (Postmodern Encounters). Totem Books. Modleski, Tania (1991). Feminism without women: culture and criticism in a "post feminist" age. New York: Routledge. pp. 188. 11 Moi, T. (1987). French feminist thought: a reader. Blackwell. 12 Lingard, Bob; Douglas, Peter (1999). Men engaging feminisms: pro-feminism, backlashes and schooling. Buckingham England: Open University Press. 13 ―Anti-feminist.‖ The Oxford English Dictionary. 2nd ed. 1989 10

Fox-Genovese have been labeled ―anti-feminists‖ by feminists.1415 Daphne Patai and Noretta Koertge argue that in this way the term ―anti-feminist‖ is used to silence academic debate about feminism.16 Marriage rights advocates criticize feminists like Sheila Cronan who take the view that marriage constitutes slavery for women, and that freedom for women cannot be won without the abolition of marriage.17

2.2

Women’s Rights and its Development

The term women’s rights refer to freedoms and entitlements of women and girls of all ages. These rights may or may not be institutionalized, ignored or suppressed by law, local custom, and behavior in a particular society. These liberties are grouped together and differentiated from broader notions of human rights because they often differ from the freedoms inherently possessed by or recognized for men and boys and because activists for this issue claim an inherent historical and traditional bias against the exercise of rights by women and girls.18 Issues commonly associated with notions of women‘s rights include, though are not limited to the right: to bodily integrity and autonomy; to vote (suffrage); to hold public office; to work; to fair wages or equal pay; to own property; to education; to serve in the military or be conscripted; to enter into legal contracts; and to have marital, parental and religious rights. Women and their supporters have campaigned and in some places continue to campaign for the same rights as men.19 According to Dr. Jamal A. Badawin ―the status which women reached during the present era was not achieved due to the kindness of men or due to natural progress. It was rather achieved through a long struggle and sacrifice on woman‘s part

14

Stacey, Judith (Summer 2000). "Is Academic Feminism an Oxymoron?‖ Signs 25 (Feminisms at a Millennium): 5. 15 Kamarck Minnich, Elizabeth (Spring 1998). "Review: 'Feminist Attacks on Feminisms: Patriarchy's Prodigal Daughters'". Feminist Studies 24 (1): 26. 16 Patai, Daphne; Noretta Koertge (2003). Professing Feminism: Education and Indoctrination in Women's Studies. Lanham: Lexington Books. 17 Poloma M. M., Garland T. N. (1971). "The Married Professional Woman: A Study in the Tolerance of Domestication". Journal of Marriage and the Family 33 (3): 531–540. 18 Hosken, Fran P., 'Towards a Definition of Women's Rights' in Human Rights Quarterly, Vol. 3, No. 2. (May, 1981), pp. 1-10. 19 Lockwood, Bert B. (ed.), Women's Rights: A "Human Rights Quarterly" Reader (John Hopkins University Press, 2006).

and only when society needed her contribution and work, more especial; during the two world wars, and due to the escalation of technological change.‖20 Ancient Civilizations

Hindu scriptures describe a good wife as follows ―a woman whose mind, speech and body are kept in subjection, acquires high renown in this world, and, in the next, the same abode with her husband.‖ In ancient Athens women were always minors and subject to a male, such as their father, brother or some other male kin. A women‘s consent in marriage was not generally thought to be necessary and women were obliged to submit to the wishes of her parents or husband. Ancient Rome subjects all legitimate children, regardless of age or sex to the authority of their Pater Familias while he lived, and they would only acquire any legal independence when he died. The Pater Familias could grant any of his children or slaves a Peculium, but that belonged to him and they were merely allowed to use it. All transactions made by a child in power regardless of age or sex had to be directly approved of by their Pater Familias. All children inherited equally from their Pater Familias regardless of age or sex; by the Imperial Period of Roman history even bastards were included as intestate heirs. Early in the Republic women were subject to Manus Marriage, but the custom died out by the Late Republic in favor of marriage without Manus which did not grant the husband any rights over his wife. When married without Manus a woman was not only free of her husband‘s legal authority, but could divorce him as she pleased without any reason required. Women in Ancient Rome when no longer under the control of their Pater Familias could and did contract, work for wages (usually without many other options), own property, and perform some (but not all) legal functions. Early Reforms under Islam

Efforts to improve the status of women in Islam occurred during the early reforms under Islam between 610 and 661, when Arab women were given greater rights in marriage, divorce and inheritance. In 622 the Constitution of Medina was drafted by the Islamic prophet Muhammad, outlining many of Muhammad's early reforms under Islam, including an improved legal status for women in Islam, who 20

Dr. Badawi, Jamal A. (September 1971), "The Status of Women in Islam", Al-Ittihad Journal of Islamic Studies 8 (2)

were generally given greater rights than women in pre-Islamic Arabia and medieval Europe.21 22 The general improvement of the status of Arab women included prohibition of female infanticide and recognizing women‘s full personhood.23 ―The dowry, previously regarded as a bride-price paid to the father, became a nuptial gift retained by the wife as part of her personal property.‖ Under Islamic law, marriage was no longer viewed as a ―status‖ but rather as a ―contract‖, in which the woman‘s consent was imperative.24 ―Women were given inheritance rights in a patriarchal society that had previously restricted inheritance to male relatives.‖25 The Middle Age

According to English Common Law, which developed from the 12th Century onward all property which a wife held at the time of a marriage became a possession of her husband. Eventually English courts forbid a husband‘s transferring property without the consent of his wife, but he still retained the right to manage it and to receive the money which it produced.26 In the 16th century, the Reformation in Europe allowed more women to add their voices, including the English writers Jane Anger, Aemilia Lanyer, and the prophetess Anna Trapnell. Despite relatively greater freedom for Anglo-Saxon women, until the mid-nineteenth century, writers largely assumed that a patriarchal order was a natural order that had existed.27 In the late 18th Century the question of women‘s rights became central to political debates in both France and Britain. At the time some of the greatest thinkers of the Enlightenment, who defended democratic principles of equality and challenged notions that a privileged few should rule over the vast majority of the population, believed that these principles should be applied only to their own gender and their own race. The philosopher Jean Jacques Rousseau for example thought that it was the order of nature for woman to obey men. He wrote ―Women do wrong to complain of

21

Esposito (2005) p. 79. Majid Khadduri, Marriage in Islamic Law: The Modernist Viewpoints, American Journal of Comparative Law, Vol. 26, No. 2, pp. 213-218. 23 Esposito (2004), p. 339. 24 Supra. n. 21, 22, 23. 25 Supra. N. 21 26 Supra n. 20. 27 Maine, Henry Sumner. Ancient Law 1861. 22

the inequality of man-made laws‖ and claimed that ―when she tries to usurp our 28

rights, she is our inferior.‖

In 1791, the French playwright and political activist Olympe de Gouges published the Declaration of the Rights of Woman and the Female Citizen,29 modelled on the Declaration of the Rights of Man and of the Citizen of 1789. The Declaration is ironic in formulation and exposes the failure of the French Revolution, which had been devoted to equality. It states that: ―This revolution will only take effect when all women become fully aware of their deplorable condition, and of the rights they have lost in society‖. The Declaration of the Rights of Woman and the Female Citizen follows the seventeen articles of the Declaration of the Rights of Man and of the Citizen point for point and has been described by Camille Naish as ―almost a parody... of the original document‖. De Gouges also draws attention to the fact that under French law women were fully punishable, yet denied equal rights.30 19th Century

In his 1869 essay The Subjection of Women the English philosopher and political theorist John Stuart Mill described the situation for women in Britain as follows: ―We are continually told that civilization and Christianity have restored to the woman her just rights. Meanwhile the wife is the actual bondservant of her husband; no less so, as far as the legal obligation goes, than slaves commonly so called.‖31 During the 1800s women in the United States and Britain began to challenge laws that denied them the right to their property once they married. Under the common law doctrine of coverture husbands gained control of their wives‘ real estate and wages. In the 1840s, state legislatures in the United States and the British Parliament began passing statutes that protected women‘s property from their husbands and their husbands‘ creditors. These laws were known as ‗the Married Women's Property Acts‘. 28

Lauren, Paul Gordon (2003). The evolution of international human rights: visions seen, University of Pennsylvania Press. pp. 29 & 30. 29 Macdonald and Scherf, "Introduction", 11–12. 30 Naish, Camille (1991). Death comes to the maiden: Sex and Execution, 1431-1933. Routledge. p. 137. 31 Supra n. 20.

During the 19th Century women began to agitate for the right to vote and participate in government and law making.32 The ideals of women's suffrage developed alongside that of universal suffrage and today women's suffrage is considered a right (under the Convention on the Elimination of All Forms of Discrimination Against Women). In Britain women's suffrage gained attention when John Stuart Mill called for the inclusion of women's suffrage in the Reform Act of 1867 in a petition that he presented to Parliament. Initially only one of several women‘s rights campaign, suffrage became the primary cause of the British women‘s movement at the beginning of the 20th Century. At the time the ability to vote was restricted to wealthy property owners within British jurisdictions. This arrangement implicitly excluded women as property law and marriage law gave men ownership rights at marriage or inheritance until the 19th century. Although male suffrage broadened during the century, women were explicitly prohibited from voting nationally and locally in the 1830s by a Reform Act and the Municipal Corporations Act. Throughout the 19th century women had organized through various groups until, by 1903, the National Union of Women‘s Suffrage Societies and the Women‘s Social and Political Union had emerged. In 1918 the British Parliament passed a bill allowing women over the age of 30 to vote, and the voting age for women was lowered to 21 in 1928.33 The Seneca Falls Convention of 1848 formulated the demand for women's suffrage in the United States of America and after the American Civil War (1861– 1865) agitation for the cause became more prominent. In 1869 the proposed Fourteenth Amendment to the United States Constitution, which gave the vote to black men, caused controversy as women‘s suffrage campaigners such as Susan B. Anthony and Elizabeth Cady Stanton refused to endorse the amendment, as it did not give the vote to women. Others, such as Lucy Stone and Julia Ward Howe however argued that black men were enfranchised, women would achieve their goal. The conflict caused two organizations to emerge, the National Woman Suffrage Association, which campaigned for women's suffrage at a federal level as well as for married women to be given property rights, and the American Woman Suffrage Association, which aimed to secure women's suffrage through state legislation. In 32

Krolokke, Charlotte and Anne Scott Sorensen, 'From Suffragettes to Grrls' in Gender Communication Theories and Analyses: From Silence to Performance (Sage, 2005). 33 Phillips, Melanie, The Ascent of Woman: A History of the Suffragette Movement (Abacus, 2004).

1920 the Nineteenth Amendment to the United States Constitution gave women the right to vote.34 20th Century In the 20th century, women‘s rights again became an important issue by the movement ‗feminism‘ or ‗women‘s liberation‘. Reformers wanted the same pay as men, equal rights in law, and the freedom to plan their families or not have children at all. Their efforts were met with mixed results.35 In UK, a public groundswell of opinion in favour of legal equality had gained pace, partly through the extensive employment of women in what were traditional male roles during both world wars. By the 1960s the legislative process was being readied, tracing through MP Willie Hamilton's select committee report, his Equal Pay For Equal Work Bill, the creation of a Sex Discrimination Board, Lady Sear's draft sex anti-discrimination bill, a government Green Paper of 1973, until 1975 when the first British Sex Discrimination Act, an Equal Pay Act, and an Equal Opportunities Commission came into force.36 In USA, the National Organization for Women was created in 1966 with the purpose of bringing about equality for all women. This was one important group that fought for the Equal Rights Amendment. This amendment stated that ―equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex.‖37 But there was disagreement on how the proposed amendment would be understood. Supporters believed it would guarantee women equal treatment. But critics feared it might deny women the right be financially supported by their husbands. The amendment expired in 1982 because not enough states had ratified it.38 Over the course of the 20th century, women took on greater roles in society such as serving in government. In the United States some served as U.S. Senators and others as members of the U.S. Cabinet. Many women took advantage of opportunities in higher education. In the United States at the beginning of the 20th century, less than 20% of all college degrees were earned by women. By the end of the century this 34

"Women‘s Suffrage". Scholastic. Retrieved 20 July, 2009. http://www.jofreeman.com/feminism/suffrage.htm. 36 The Times, 29 December 1975 "Sex discrimination in advertising banned". 37 http://www.now.org/history/purpos66.html. 38 National Organization for Women: Definition and Much More from Answers.com. 35

figure had risen to about 50%.39 Progress was made in professional opportunities. Fields such as medicine, law, and science opened to include more women. At the beginning of the 20th century, about 5% of the doctors in the United States were women. As of 2006, over 38% of all doctors in the United States were women, and today, women make almost 50% of the medical student population. While the numbers of women in these fields increased, many women still continued to hold clerical, factory, retail, or service jobs.40

2.3

The United Nations and Women’s Rights From the very beginning UN has taken numerous steps to ensure legal equality

for women and setup a Commission on Status of Women in 1946 to protect the interest of women. Originally as the Section on the Status of Women, Human Rights Division, Department of Social Affairs, and now part of the Economic and Social Council (ECOSOC). Since 1975 the UN has held a series of world conferences on women‘s issues, starting with the World Conference of the International Women‘s Year in Mexico City. These conferences created an international forum for women‘s rights, but also illustrated divisions between women of different cultures and the difficulties of attempting to apply principles universally. The other measures which sought to provide equal rights to women include the Convention on the Political Rights of Women adopted by the General Assembly in 1952; the Convention on Nationality of Married Women adopted by General Assembly in 1952; the Convention on Consent to Marriage, Minimum age for Marries and Registration of Marriages adopted in 1962. UN also created a United Nations Development Fund for Women and International Research and Training Institute for Advancement of Women which worked for improvement of the condition of women. United Nations Development Fund for Women In 1976, the United Nations created a voluntary fund for known as United Nations Development Fund for Women which provide direct technical and financial support to women‘s initiatives in developing countries. The fund also seeks to bring

39 40

WIC – Women‘s History in America. Ibid.

women into mainstream development planning and decision-making. It seeks to improve the quality of life for all people by helping women to achieve equality through economic and social development. This Fund basically works in three program areas: agriculture and food security; trade and industry; and macro policy-making and national planning. It seeks to promote women‘s access to training, science and technology, credit, information and other tool for development. It also links grass-roots women to national and international policy making bodies and into global debate on issues such as poverty alleviation, the environment and human rights. The finance for the activities of the UNIFEM comes through contribution from the national committees of the UNIFEM, women organizations, foundations, corporations and individuals. International Research and Training Institute for Advancement of Women This institution was set up on the recommendation of General Assembly in 1975 which is an autonomous body within UN and carries out research, training and information activities throughout the world to promote women as a key agent of development. The institute is founded by voluntary contributions from UN member states, inter and non-governmental organizations, foundations and private sources. The institute focuses on issues concerning women through research, training and information activities. Institute has in the main concentrated on four themes: empowerment of women; women, environment and sustainable development; statistics and indicators on women; and women and communications. Though its activities the institute has been able to empower women and remove gender bias. Convention on the Elimination of All Forms of Discrimination Against Women The Universal Declaration of Human Rights, adopted in 1948, enshrines ―the equal rights of men and women‖, and addressed both the equality and equity issues. In 1979, the United Nations General Assembly adopted the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Described as an international bill of rights for women, it came into force on 3rd September 1981. The United States is the only developed nation that has not ratified the CEDAW. The Convention defines discrimination against women in the following terms:

―Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.‖ The Convention is regarded as a comprehensive charter which protects and promotes the human rights of the Women. It emphasizes that discrimination against women in the economic and social fields hampers the economic growth and prosperity, and has a detrimental effect on society in general. The Convention emphasized the importance of education of both men and women to bring about a change in their attitudes so that the prevailing prejudices and practices based on old traditions can be overcome. To monitor the implementation of the Convention a Committee on the Elimination of Discrimination against Women was set up.41 It also establishes an agenda of action for putting an end to sex-based discrimination for which states ratifying the Convention are required to enshrine gender equality into their domestic legislation, repeal all discriminatory provisions in their laws, and enact new provisions to guard against discrimination against women. They must also establish tribunals and public institutions to guarantee women effective protection against discrimination, and take steps to eliminate all forms of discrimination practiced against women by individuals, organizations, and enterprises.

The International Convention on Civil and Political Rights, 1966 This convention appears tending to bind the plenipotentiary States who have confirmed the provisions of the covenant through its Parliament or Sovereign power. Under Article 3, it has been stated that the State Parties to the present covenant undertake to ensure the equal rights of men and women to the enjoyment of all civil and political rights set forth in the present covenant. Through Article 23, it has been provided:

41

Prakash Chandra & Prem Arora: Comparative Politics and International Law, Cosmos Bookhive‘s (P) Ltd.

1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2) The right of men and women of marriageable age to marry and to found a family shall be recognized. 3) No marriage shall be entered into without the free and full consent of the intending spouses. 4) State Parties to the present covenant shall take appropriate steps to ensure equality of rights and responsibility of spouse as to marriage, during marriage and at its dissolution. In case of dissolution, provision shall be made for the necessary protection of any children. The International Convention on Economic, Social and Cultural Rights, 1968 In this particular Convention, Article 10 declared that: 1) The State Parties to this covenant recognize that the widest possible protection and assistance should be accorded to the family, which is the natural and fundamental unit of society particularly for its establishment and while it is responsible for the care and duration of dependent children. Marriage must be entered into with the free consent of the intending parties. 2) Special protection should be accorded to mothers during a reasonable period before and after child- birth. During such period working mothers should be accorded paid leave or leave with adequate security benefits.

The Convention for the Suppression of the Traffic Persons and the Exploitation of the Prostitution of others, 1949 As to immoral trafficking of women and girls, the League of Nations had brought International Convention for the Suppression of the Traffic of Women and Children, of 1921, and thereafter the International Convention for the Suppression of the Traffic in Women of Full age of 1933. The United Nations Organization, in 1949, consolidated in a single convention on international instrument which were adopted by the League of Nations.

By this Convention, the States Parties agreed to punish any person who procures or enters another person for the purpose of prostitution or who keeps or manages or knowingly finances or takes part in financing a brothel or knowingly lets or rents a building or other place or any part thereof for the purpose of prostitution of others. The States Parties further agrees to take all necessary measures to repeal or abolish any existing law, regulation or administrative provisions by virtue of which persons are engaged in such activities. This convention came in force on July 25, 1951. Maputo Protocol The Protocol to the African Charter on Human and Peoples‘ Rights on the Rights of Women in Africa, better known as the Maputo Protocol, was adopted by the African Union on 11 July 2003 at its second summit in Maputo42, Mozambique. On 25 November 2005, having been ratified by the required 15 member nations of the African Union, the protocol entered into force.43 The protocol guarantees comprehensive rights to women including the right to take part in the political process, to social and political equality with men, and to control of their reproductive health, and an end to female genital mutilation.44

2.4

Women in India Jawaharlal Nehru, the first Prime Minister of India, said, ―You can tell the

condition of a nation by looking at the status of its women‖. The Beijing Declaration at the Fourth World Conference on Women (1995) point 13 says, ―Women‘s empowerment and their full participation on the basis of equality in all spheres of society, including participation in the decision-making process and access to power, are fundamental for the achievement of equality, development and peace.‖ The status of women in India has been subject to many great changes over the past few millennia. From a largely unknown status in ancient times through the low

42

African Union: Rights of Women Protocol Adopted, press release, Amnesty International, 22 July 2003 43 UNICEF: toward ending female genital mutilation, press release, UNICEF, 7 February 2006 44 The Maputo Protocol of the African Union, brochure produced by GTZ for the German Federal Ministry for Economic Cooperation and Development

points of the medieval period, to the promotion of equal rights by many reformers, the history of women in India has been eventful. There are very few texts specifically dealing with the role of women; an important exception is the ‗stridharmapaddhati’ of ‗Tryambakayajvan‘, an official at ‗Thanjavur‘. The text compiles strictures on womenly behaviour dating back to the Apastamba sutra.45 The opening verse goes as: the primary duty of women is enjoined to be service to one‘s husband. Ancient India Scholars believe that in ancient India, the women enjoyed equal status with men in all fields of life.46 However, some others hold contrasting views.47 Works by ancient Indian grammarians such as Patanjali and Katyayana suggest that women were educated in the early Vedic period.4849 Rigvedic verses suggest that the women married at a mature age and were probably free to select their husband.50 Some kingdoms in the ancient India had traditions such as ‗nagarvadhu’ (bride of the city). Women competed to win the coveted title of the ‗nagarvadhu’. Amrapali is the most famous example of a nagarvadhu. According to studies, women enjoyed equal status and rights during the early Vedic period. However, later (approximately 500 B.C.), the status of women began to decline with the Smritis (Manusmriti) and with the Islamic invasion of Babur and the Mughal empire and later Christianity curtailing women‘s freedom and rights.51 Although reformatory movements such as Jainism allowed women to be admitted to the religious order, by and large, the women in India faced confinement and restrictions. The practice of child marriages is believed to have started from around sixth century. 45

The perfect wife: strIdharmapaddhati (guide to the duties of women) by Tryambakayajvan (trans. Julia Leslie), Penguin 1995 46 Mishra, R. C. (2006). Towards Gender Equality. Authorspress. 47 Pruthi, Raj Kumar; Rameshwari Devi and Romila Pruthi (2001). Status and Position of Women: In Ancient, Medieval and Modern India. Vedam books. 48 Varttika by Katyayana, 125, 2477. 49 Comments to Ashtadhyayi 3.3.21 and 4.1.14 by Patanjali. 50 R. C. Majumdar and A. D. Pusalker (editors): The history and culture of the Indian people. Volume I, The Vedic age. Bombay: Bharatiya Vidya Bhavan 1951, p.394 51 ―Women in History‖. National Resource Center for Women.

Medieval Period The Indian woman‘s position in the society further deteriorated during the medieval period when Sati, child marriages and a ban on widow remarriages became part of social life in India.52 The Muslim conquest in the Indian subcontinent brought the ‗purdah‘ practice in the Indian society. Among the Rajputs of Rajasthan, the ‗Jauhar‘ was practised. In some parts of India, the ‗Devadasis‘ or the temple women were sexually exploited. Polygamy was widely practiced especially among Hindu Kshatriya rulers. In many Muslim families, women were restricted to ‗Zenana‘ areas. In spite of these conditions, some women execeled in the fields of politics, literature, education and religion.53 Razia Sultana became the only woman monarch to have ever ruled Delhi. The Gond Queen Durgavati ruled for fifteen years, before she lost her life in a battle with Mughal emperor Akbar‘s general Asaf Khan in 1564. Chand Bibi defended Ahmednagar against the mighty Mughal forces of Akbar in 1590s. Jehangir‘s wife Nur Jehan effectively wielded imperial power and was recognized as the real force behind the Mughal throne. The Mughal princesses Jahanara and Zebunnissa were well-known poets, and also influenced the ruling administration Shivaji‘s mother, Jijabai was deputed as Queen regent, because of her ability as a warrior and an administrator. In South India, many women administered villages, towns, divisions and heralded social and religious institutions.54 The Bhakti movements tried to restore women‘s status and questioned some of the forms of oppression. Mirabai, a female saint-poet, was one of the most important Bhakti movement figures. Some other female saint-poets from this period include Akka Mahadevi, Rami Janabai and Lal Ded. Bhakti sects within Hinduism such as the Mahanubhav, Varkari and many others were principle movements within the Hindu fold to openly advocate social justice and equality between men and women. Shortly after the Bhakti movement, Guru Nanak, the first Guru of Sikhs also preached the message of equality between men and women. He advocated that women be allowed to lead religious assemblies; to perform and lead congregational hymn singing called Kirtan or Bhajan; become members of religious management 52

Ibid. Ibid. 54 Jyotsana Kamat (2006-1). ―Status of Women in Medieval Karnataka‖. 53

committees; to lead armies on the battlefield; have equality in marriage, and equality in Amrit (Baptism). Other Sikh Gurus also preached against the discrimination against women. Modern Period European scholars observed in the 19th century Hindu women are ‗naturally chaste‘ and ‗more virtuous‘ than other women.55 During the British Raj, many reformers such as Ram Mohan Roy, Ishwar Chandra Vidyasagar, Jyotirao Phule etc. fought for the upliftment of women. While this list might suggest that there was no positive British contribution during the Raj era, that is not entirely so, since missionaries‘ wives like Martha Mault née Mead and her daughter Eliza Caldwell née Mault are rightly remembered for pioneering the education and training of girls in south India - a practice that initially met with local resistance, as it flew in the face of tradition. Raja Rammohan Roy‘s efforts led to the abolition of the Sati practice under Governor-General

William

Cavendish-Bentinck

in

1829.

Ishwar

Chandra

Vidyasagar‘s crusade for the improvement in condition of widows led to the Widow Remarriage Act of 1856. Many women reformers such as Pandita Ramabai also helped the cause of women upliftment. Kittur Chennamma, the Queen of the princely state Kittur in Karnataka, led an armed rebellion against the British in response to the Doctrine of lapse. Abbakka Rani the Queen of coastal Karnataka led the defence against invading European armies notably the Portugese in 16th century. Rani Lakshmi Bai, the Queen of Jhansi, led the Indian Rebellion of 1857 against the British. She is now widely considered as a nationalist hero. Begum Hazrat Mahal, the co-ruler of Awadh, was another ruler who led the revolt of 1857. She refused the deals with the British and later retreated to Nepal. The Begums of Bhopal were also few of the notable female rulers during this period. They did not observe purdah and were trained in martial arts. Chandramukhi Basu, Kadambini Ganguly and Anandi Gopal Joshi were few of the earliest Indian women to obtain educational degrees. In 1917, the first women‘s delegation met the Secretary of State to demand women‘s political rights, supported by the Indian National Congress. The All India 55

Dubois, Jean Antoine and Beauchamp, Henry King, Hindu manners, customs, and ceremonies, Clarendon press, 1897

Women‘s Education Conference was held in Pune in 1927. In 1929, the Child Marriage Restraint Act was passed, stipulating fourteen as the minimum age of marriage for a girl through the efforts of Mahomed Ali Jinnah.56 Though Mahatma Gandhi himself married at the age of thirteen, he later urged people to boycott child marriages and called upon the young men to marry the child widows.57 Women played an important part in India‘s independence struggle. Some of the famous freedom fighters include Bhikaji Cama, Dr. Annie Besant, Pritilata Waddedar, Vijayalakshmi Pandit, Rajkumari Amrit Kaur, Anjali Ammal, Aruna Asaf Ali, Sucheta Kriplani and Kasturba Gandhi. Other notable names include Muthulakshmi Reddy, Durgabai Deshmukh etc. The Rani of Jhansi Regiment of Subhash Chandra Bose‘s Indian National Army consisted entirely of women including Captain Lakshmi Sahgal. Sarojini Naidu, a poet and a freedom fighter, was the first Indian woman to become the President of the Indian National Congress and the first woman to become the Governor of a state in India. Women in India now participate in all activities such as education, politics, media, art and culture, service sectors, science and technology, etc. 58 The Constitution of India guarantees to all Indian women equality (Article 14), no discrimination by the State (Article 15(1)), equality of opportunity (Article 16), equal pay for equal work (Article 39(d)). In addition, it allows special provisions to be made by the State in favour of women and children (Article 15(3)), renounces practices derogatory to the dignity of women (Article 51(A) (e)), and also allows for provisions to be made by the State for securing just and humane conditions of work and for maternity relief (Article 42).59 The feminist activism in India picked up momentum during later 1970s. One of the first national level issues that brought the women‘s groups together was the Mathura rape case. The acquittal of policemen accused of raping a young girl Mathura in a police station, led to a wide-scale protests in 1979–1980. The protests were widely covered in the national media, and forced the Government to amend the Evidence Act, the Criminal Procedure Code and the Indian Penal Code and introduce 56

Ambassador of Hindu Muslim Unity, Ian Bryant Wells Jyotsna Kamat (2006-12-19). "Gandhi and Status of Women" 58 Supra n. 50 59 Kalyani Menon-Sen, A. K. Shiva Kumar (2001). "Women in India: How Free? How Equal?". United Nations. 57

the category of custodial rape.60 Female activists united over issues such as female infanticide, gender bias, women health, and female literacy. Many Indian Muslim women have questioned the fundamental leaders' interpretation of women's rights under the Shariat law and have criticized the triple Talaq system.61 In 1990s, grants from foreign donor agencies enabled the formation of new women-oriented NGOs. Self-help groups and NGOs such as Self Employed Women's Association (SEWA) have played a major role in women‘s rights in India. Many women have emerged as leaders of local movements. For example, Medha Patkar of the Narmada Bachao Andolan. The Government of India declared 2001 as the Year of Women‘s Empowerment (Swashakti).62 The National Policy for the Empowerment of Women was passed in 2001.63 It may be observed that compliance with human rights of women is not only good for the women but for the whole community. Without women‘s full and equal contribution the society will be the poorest the judiciary is expected to play a special role in ensuring that women are treated with dignity and have equal access to justice. In fact, the judiciary can play more effective role in ensuring gender justice than the Parliament and administration.

60

Ibid. ―InfoChange women: Background & Perspective‖. 62 Ibid. 63 ―National Policy For The Empowerment Of Women (2001)‖ 61

CHAPTER - III

WOMEN’S CONSTITUTIONAL AND HUMAN RIGHTS

The reality of women‘s lives remains invisible to men and women alike and this invisibility persists at all levels beginning with the family to the nation. Although geographically men and women share the same space, they live in different worlds. The mere fact that ―Women hold up half the sky‖- does not appear to give them a position of dignity and equality. True, that over the year‘s women has made great strides in many areas with notable progress in reducing some gender gaps. Yet, ‗the afflicted world in which we live is characterized by deeply unequal sharing of the burden of adversities between women and men‘. Sprawling inequalities persist in their access to education, health care, physical and financial resources and opportunities in the political, economic, social and cultural spheres.64 The India polity more or less has a always tried to cope with the contemporary need – based development of laws for the specified purposes. It may be in the field of Human Rights, Politics, Civil Rights, Constitutional Rights or Social Transfer. Still the judicially always inspires directly or indirectly to meet the challenges as per need, either by precedents, directions or suggestions etc. The Supreme Court in a case observed that ―it is well accepted by thinkers, philosophers and academicians that if JUSTICS, LIBERTY, EQUALITY and FRATERNITY, including social, economic and political justice, the golden goals set out by the Preamble of the Constitution, are to be achieved; the Indian polity has to be educated and educated with excellence. 65 This is because the Constitution is not to be construed as a mere law, but as the machinery by which laws are made. The Constitution is a living and organic thing which, of all instruments has the greatest claim to be constructed broadly and liberally. India has pledged itself to gender equality through several Articles of the Constitution.

64 65

The Status of Women: A reality check, www.swayam.info. Khan Kamaluddin, Constitution of India and Women Empowerment: A Brief Study

3.1

Constitutional Provisions in India

Constitutional Privileges: (I) Article 14: Equality before the law. Equality before law for women. Men and women to have equal rights and opportunities in the political, economic and social spheres. (II) Article 15(1): The State not to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. This Article Prohibits discrimination against any citizen on the grounds of religion, race, caste, sex etc. (III) Article 15(3): The State to make any special provision in favour of women and children. Special provision enabling the State to make affirmative discriminations in favour of women. (IV) Article 16: Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Equality of opportunities in matter of public appointments for all citizens. (V) Article 39(a): The State to direct its policy towards securing for men and women equally the right to an adequate means of livelihood. By this provision the State shall direct its policy towards securing all citizens men and women, equally, the right to means of livelihood. (VI) Article 39(d): Equal pay for equal work for both men and women. (VII) Article 39A: To promote justice, on a basis of equal opportunity and to provide free legal aid by suitable legislation or scheme or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. (VIII) Article 42: The State to make provision for securing just and humane conditions of work and for maternity relief. (IX) Article 46: The State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation. (X) Article 47: The State to raise the level of nutrition and the standard of living of its people and the improvement of public health. (XI) Article 51(A) (e): To promote harmony and the spirit of common brotherhood

amongst all the people of India and to renounce practices derogatory to the dignity of women. (XII) Article 243 D(3): Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat to be reserved for women and such seats to be allotted by rotation to different constituencies in a Panchayat. (XIII) Article 243 T (3): Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality to be reserved for women and such seats to be allotted by rotation to different constituencies in a Municipality.

Article 14 and 16 of the Constitution intend to remove social and economic inequality to make equal opportunities available. In reality the right to social and economic justice envisaged in the Preamble and elongated in the Fundamental Rights and Directive Principles of the Constitution, in particular Articles 14, 15, 16, 21, 38, 39 and 46 are envisaged to make the equality of the life of the poor, disadvantaged and disabled citizens of the society, meaningful. Further the Preamble which is invoked to determine the ambit of both Fundamental Rights and Directive Principles as observed by the Supreme Court in Various cases embraces all the new laws after make Constitution. This reason, the Government organs owe origin to the Constitution and derive their authority from and discharge their responsibilities within the framework of the Constitution. The Supreme Court in some cases held that the social justice enables the courts to uphold legislations to remove economic inequalities, to remove economic inequalities, to provide a decent standard of living to the working people and to protect the interests of the weaker sections of the society.

The democratic socialism aims to end poverty, ignorance, disease, and inequality of opportunity. This socialistic concept ought to be implemented in the true spirit of the Constitution. Article 14 is to be understood in the light of directive principles. Articles 14 guarantees equal treatment to persons who are equally situated. Clause (3) of Articles 15, which permits special provision for women and children, has been widely resorted to and the courts have upheld the validity of special measures in legislation or executive orders favouring women. For example, special seating arrangement for women in buses and trains is not unconstitutional. Similarly, reservation of some seats for women in college or establishment of educational institution exclusively for women is not hit by Article 15. Article 15(3) recognizes the fact that the women in India have been socially and economically handicapped for centuries and, as a result thereof, they cannot fully purpose participate in the socioeconomic activities of the nation on a footing of equality. The purpose of Article 15(3) is to eliminating this socio-economic backwards of women and to empower them in such a manner as to bring about effective equality between men and women. The object of Article 15(3) is to strengthen and improve the status of women. Article 15(3) thus relieves the state from the bondage of Article 15(1) and enables it equality to women. The scope of Article 15(3) is wide enough to cover the entire range of state activity including that of employment. Article 15(3) is a special provision in the nature of proviso qualifying the general guarantees contained in Articles 14, 15(1), 15(2), l6(1) and 16(2). A doubt has been raised whether Article 15(3) saves any provision concerning women, or saves only such a provisions as in their favour.66 The better view would appear to be that while the state can make laws containing special provisions for women and children, not discriminate against them on the basis of their gender only. This appears to be the cumulative effect of Articles 15(1) and 15(3). Although there can be no discrimination in general on the basis of sex, the constitution itself provides for special provision being made for women and children by virtue of Article 15(3).

66

Mukherji, J., in Mahadeb v. Dr. Sen, AIR 1951 Cal 563. Also, Anjali v. State of West Bengal, AIR 1952 Cal 825; Cf. Bose, J.

According to Section 497 of Indian Penal Code the offence of adultery can be committed only by men and not by women and therefore women cannot be prosecuted even as abettors. This section makes special provision for women and is valid under Article 15(3).67 Section 497 of Criminal Procedure Code, 1898 (Section 437 of Criminal Procedure Code, 1973) prohibits release of a person accused of a capital offence on bail except women, children under age of 16 years or sick or infirm persons. In Choki v. State of Rajasthan,68 the Court has held it valid on the ground that it makes special provision for women and therefore, it is protected under Article 15(3). In particular, provisions in the criminal law, in favour of women, or in the procedural law discriminating in favour of women have been upheld. In Walter Alfred Baid, Sister Tutor (Nursing) Irwin Hospital v. Union of India,69 a rule making male candidates ineligible for the post of Senior Tutor in the School of Nursing was held to be violative of Article 16(2) and was not saved by Article 15(3). The Delhi High Court took the view that the matter relating to employment falls under Article 16 and not under Article 15(3). ―The equality of opportunity in the matter of employment between the sexes and the corresponding prohibition against discrimination is absolute in nature and no exception has been carved out of it in Article 16 unlike in Article 15." The Court refused to read Article 15(3) into Article 16 so as to restrict the scope of the prohibition contained in Article 16(2). On the other hand, the Punjab & Haryana High Court took a different view in Shamsher Singh v. State of Punjab.70A rule granting a special allowance to the women principals working in a wing of the Punjab Educational Services was challenged on the ground that their male counterparts were not given the same benefit although both performed identical duties and were part of the same service. The constitutional validity of the rule was challenged under Article 16(2). The High Court upheld the impugned rule under Article 15(3), holding that even though the discrimination was based on the ground of sex, it was saved by Article 15(3). The court ruled that Article 15(3) could be invoked for 67

Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321. AIR 1957 Raj. 10. 69 AIR 1976 Del 302. 70 AIR 1970 P & H 372. 68

construing and determining the scope of Article 16(2). According to the court Article 15(3) extends to the entire field of state activity, including the field of public employment which has been specifically dealt with in Article 16. The Court stated that if a particular provision squarely falls within the ambit of Article 15(3), it cannot be struck down merely because it may also amount to discrimination solely on the basis of sex. ―Article 14, 15 and 16, being the constituents of a single code of constitutional guarantees, supplementing each other, clause (3) of Article 15 can be invoked for construing and determining the scope of Article 16(2).‖ The Court however ruled that ―only such special provisions in favour of women can be made under Article 15(3), which are reasonable and do not altogether obliterate or render illusory the constitutional guarantee enshrined in Article 16(2).‖ The most significant pronouncement on Article 15(3) is the Supreme Court case Government of Andhra Pradesh v. P. B. Vijay Kumar,71 The Supreme Court has ruled in the instant case that under Article 15(3), the State may fix a quota for appointment of women in government services. Also, a rule saying that all other things being equal, preference would be given to women to the extent of 30% of the posts was held valid with reference to Article 15(3). It was argued that reservation of posts or appointments for any backward class is permissible under Article 16(2) but not for women and so no reservation can be made in favour of women as it would amount to discrimination on the ground of sex in public employment which would be violative of Article 16(2). Rejecting this argument, the Supreme Court has ruled that posts can be reserved for women under Article 15(3) as it is much wider in scope and covers all state activities. While Article 15(1) prohibits the State from making any discrimination inter alia on the ground of sex alone, by virtue of Art. 15(3), the State may make special provisions for women. Thus, Article 15(3) clearly carves out a permissible departure from the rigours of Article 15(1). The Court has emphasized that an important limb of the concept of gender equality is creating job opportunities for women. Making special provisions for women in respect of employment or posts under the state is an integral part of Article 15(3). ―To say that under Article 15(3), job opportunities for women cannot be created would be to cut at the very root of the underlying inspiration behind this

71

AIR 1995 SC 1648.

Article. Making special provisions for women in respect of employment or posts under the state is an integral part of Article 15(3). This power conferred by Article 15(3) is not whittled down in any manner by Article 16. What does the expression ―special provision‖ for women mean? The ―special provision‖ which the state may make to improve women‘s participation in all activities under the supervision and control of the state can be in the form of either affirmative action or reservation. Thus, Article 15(3) includes the power to make reservations for women. Talking about the provision giving preference to women, the Court has said that this provision does not make any reservation for women. It amounts to affirmative action. It operates at the initial stage of appointment and when men and women candidates are equally meritorious. Under Article 15(3), both reservation and affirmative action are permissible in connection with employment or posts under the state. Article 15 is designed to create an egalitarian society. The Supreme Court has explained the relationship between Articles 15 and 16 as followings Article 15 deals with every kind of state action in relation to Indian citizens. Every sphere of state activity is controlled by Article 15(1) and, therefore, there is no reason to exclude from the ambit of Article 15(1) employment under the state. Article 15(3) permits special provisions for women. Articles 15(1) and 15(3) go together. In addition to Article l5(1), Article 16(1) places certain additional prohibitions in respect of

a specific area of state activity, viz., employment under

the state. These are in addition to the grounds of prohibition enumerated under Article 15(1) which are also included under Article 16(2). The Court has observed: ―Therefore, in dealing with employment under the state, it has to bear in mind l

both

Articles 15 and 16 the former being a more general provision and the latter, a more specific provision. Since Article 16 does not touch upon any special provision for women being made by the state, it cannot in any manner derogate from the power conferred upon the state in this connection under Article 15(3). This power conferred by Article 15(3) is wide enough to cover the entire range of state activity including employment under the state.‖ It may be noted that Article 16(2) is more limited in scope than Art. 15(1) as it is confined to employment or office under the state. The prohibited grounds of discrimination under Article 16(2) are somewhat wider than those under Article 15(2)

because Article 16(2) prohibits discrimination on the additional grounds of descent and residence apart from religion, caste, sex and place of birth. The Constitution provides equal opportunities for women implicitly as they are applicable to all persons irrespective of sex. However, the Courts realize that these Articles reflect only de jure equality to women. They have not been able e Aerate de facto equality to the extent the Constitution intended. Reflecting this in Dimple Singla v. Union of India72 the Delhi High Court expressed its apprehension that unless attitudes change, elimination of discrimination against women cannot be achieved. There is still a considerable gap between constitutional rights and their application in the day-to-day lives of most women. At the same time it is true that women are working in jobs which were hitherto exclusively masculine domains. But there are still instances which exhibit lack of confidence in their capability and efficiency. There remains a long and lingering suspicion regarding their capacities to meet the challenges of the job assigned. Such doubts affect of the working women. In C. B. Muthamma v. Union of India, 73 a provision of Service Rule regarding a female employee, was required to obtain the permission of' the Government before the solemnization of her marriage. Government denied her right of promotion on the ground that she was married woman. In this case the provision of' service rule declared to be discriminatory against woman. In this case the petitioner was denied promotion to grade I of Indian Foreign Service only on this round. However the Court made it clear that it does not mean that the men slid women are equal in occupations and in all situations and do not exclude the need of pragmatise where the requirements of particular employment, the sensitives of sex or the peculiarities of social sector of the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern. In Air India v. Nargesh Mirza,74 the petitioner challenged the validity of service rule under which they could retire at the age 35 years or on the first pregnancy.

72

(2002) 2 AISLJ 161 AIR 1979 SC 1868 74 AIR 1981 SC 1829. 73

The court held that the provision of the service rules is discriminatory and violative of Articles 14, 15 and 16 of the Constitution. Article 21 spells that no person shall be deprived of his life or personal liberty except according to procedure established by law. This Article if read literally is a colorless Article and would be satisfy, at the moment, it is established by the State that there is a law which provides a procedure which has been followed by the impugned action. But the expression ―procedure established by law‖ in Article has been judicially constructed as meaning a procedure which is reasonable, fair and just. The right to life and the right to personal liberty in India have been guaranteed by a constitutional provision, which has received the widest possible interpretation. Under the canopy of Article 21 of the Constitution, so many rights have found shelter, growth and nourishment. An intelligent citizen would like to be aware of the development in this regard as they have evolved from precedents of courts. This Article provides that no person shall be deprived of life or personal liberty, except according to procedure established by law. This Article, hence gives a positive effect by judicial interpretation. This right is a fundamental right, enforceable against the State, and Judicial decisions have imposed, on the State, several positive obligation. A question arises while going through the constitutional provisions that why a constitutional provision arises on various subjects. Is the ordinary law not enough? To the answer it is true that Indian Penal Code contains adequate provision to punish a person who takes away or attempts to take away the life of another. But, the impact of constitutional provisions to take away the life of another. But the impact of constitutional provision lies in this respect, that by being elevated to the pedestal of a fundamental right, the right is placed beyond the reach of ordinary legislation inspired by political motives. Hence it can be said that the enumerative rights can derive from Article 21.

Right to live with Dignify Gender equality becomes elusive in the absence of right to live with dignity. In Neera Mathur v. LIC 75, the court recognized that privacy was an important aspect of personal liberty. In this case, the Supreme Court was shocked to learn that an LIC questionnaire sought information

as

about

the dates of menstrual periods and past pregnancies, and the petitioner was terminated for not providing correct information to the LIC. The Supreme Court held that the questionnaire amounted of providing correct to invasion of privacy and that; therefore, such probes could not be made. The right to personal liberty guaranteed under Article 21 included the right to privacy. Information about health could be sought where such information was relevant it was relevant for selling insurance cover but not for the person seeking employment. In Gautam Kundu v. State of West Bengal,76 the Apex Court ensured that an application for a blood test to disprove paternity of a child in a maintenance suit was rejected. It was held that a child born of a married woman is deemed to be legitimate unless the contrary is proved. Such a presumption could be re butted by a strong preponderance of evidence and not a mere balance of probabilities. The court laid down the following principles: (a) that courts in India cannot order a blood test as a matter of course; (b) An application for subjecting a child to a blood test, made in order to have a roving inquiry, cannot be entertained; (c) There must be a prima facie case for suspecting the fatherhood of a child which can be established by proving non-access; ( d ) The court must carefully examine as to what would be the consequences of ordering a blood test; whether it would have the effect of branding a child as a bastard and its mother as an unchaste woman.

75 76

(1992) 1 SCC 286. (1993) 3SCC 418.

The Court observed that such a demand for subjecting the child to a blood test was contrary to the right to personal liberty guaranteed by Article 21 of the Constitution and said: ―Permitting blood tests to prove or disprove paternity unless there is a strong case and access was ruled out would be slanderous, embarrassing and humiliating for the woman.‖

Sexual Harassment The Supreme Court has made a novel use of Article 21 viz., to ensure that the female workers are not harassed by their male co-workers at their places of work. In Vishaka v. State of Rajasthan, 77 the Supreme Court has declared sexual harassment of a working woman at her place of work as amounting to violation of rights of gender equality and right to life and liberty which is a clear violation of Articles 14, 15 and 21 of the Constitution. Article 21 guarantees right to life with dignity. Accordingly, the Court has observed in this connection: ―The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse.‖ Sexual harassment also violates the victim's fundamental right under Article 19(1)(g) ―to practice any profession or to carry out any occupation, trade or business‖. Thus, Article 32 is attracted. Further, the Court has accepted the proposition that the international conventions and norms are to be read into the fundamental rights when there is no inconsistency between them, and there is a void in the domestic law. According to the Court: ―It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for con struing domestic law when there is no inconsistency between them and there is a void in the domestic law.‖78

77 78

AIR 1997 SC 3011 : (1997) 6 SCC 241. LIC of India v. Consumer Education & Research Centre, AIR 1995 SC 1811, 1818.

In the absence of any domestic law relating to sexual harassment in India, the Supreme Court has itself laid down under Article 32 some directions for prevention of such harassment. These directions are binding and enforceable and are required to be strictly observed in all work places until suitable legislation is enacted to occupy the field. 79 The Visakha ruling has been reiterated by the Supreme Court in Chopra 80 where the Court has observed: ―There is no gainsaying that each incident of sexual harassment, at the place of work, results in violation of the fundamental right to gender equality and the Right to life and liberty the two most precious Fundamental Rights guaranteed by the Constitution of India. In our opinion, the contents of the fundamental rights guaranteed in our constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated....‖ The directions issued by the Court place certain obligations on the employers or other responsible persons in work places and other institutions ―whether in the public or private sector.‖ These persons are required to take appropriate steps to prevent sexual harassment. This means that in the area of sexual harassment, the Court has used Articles 14, 15, 19(1)(g), 21 and 32 of the Constitution not only against the government and its instrumentalities but even against private parties and private employers. This portends that, in course of time, the coverage of certain Fundamental Rights may be expanded by the Supreme Court so as to bring within their scope even private parties and nongovernment organizations.

Rape Rape has been held to be a violation of a person's Fundamental Right guaranteed under Article 21. ―Right to Life‖ means ―the Right to live with human dignity‖. ―Right to Life‖ would therefore, include all those aspects of life which go to make a life meaningful, complete worth living.‖ 79 80

AIR 1997 SC at 3017 Apparel Export Promotion Council v. A. K. Chopra, AIR 1999 SC 625 : (1999) 1 SCC 759.

Rape is a crime against basic human rights and is also violative of the victim‘s most cherished of the Fundamental Rights, namely, the Right to life contained in Article 21. In Bodhisattwa Gautam v. Subhra Chakraborty, 81 the complainant, a student, was induced by the accused, a teacher, on false assurance of marriage to cohabit with him. He not only made false assurance of marriage but also fraudulently went through marriage ceremonies. When she became pregnant the accused made her undergo an abortion. When she asked him to maintain her, he disowned her on the ground that there was no marriage. He was prosecuted under various sections of the IPC. The Supreme Court refusing to quash the prosecution ruled that rape was not only an offence under the Penal Code but was also a violation of a woman‘s right to live with dignity and personal freedom. ―…. It is a crime against basic human right and it is also violative of victim‘s most cherished of Fundamental Rights, namely, the right to life contained in Article 21. To many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrading and humiliating women.‖ In State of Maharashtra v. Madhukar N. Mardikar, 82 the Supreme Court said with reference to rape, that unchastity of a woman does not make her ―open to any and every person to violate her person as and when he wis hes‖. Even a prostitute has a right to privacy under Article 21 and no person can rape her just because she is n woman of easy virtue. Another dynamic judgment with reference to Article 21 is Chairman; Railway Board v. Chandrima Das,83 The Court in this case observed that the word `life' as used in the Universal Declaration must get the same meaning as in Article 21. Its meaning cannot be narrowed down. Here relief was provided to a Bangladeshi woman who was raped. The term life in the International Conventions relating to Human Rights and Article 21 were interpreted to mean life worth living, meaningful and dignified.

81

(1996) 1 SCC 490. (1991) 1 SCC 57. 83 (2000) 2 SCC 465: AIR 2000 SC 988. 82

Care Homes In Vikram Deo Singh Tomar v. State of Bihar,84 the Supreme Court has taken note of the pitiable conditions prevailing in care homes maintained by the State of Bihar for women and children and has directed the State to improve matters in these homes and provide at least the minimum living conditions ensuring human dignity. The Court has emphasized that India is a welfare state and the Indian Constitution lays special emphasis on the protection and well being of the weaker sections of the society including women and children. Article 21 envisages a quality of life consistent with his human personality. The right to live with human dignity is the fundamental right of every Indian citizen.‖ In Upendra Baxi v. State of Uttar Pradesh, 85 the Supreme Court gave directions to the State Government seeking improvement of the living conditions in the government protective home at Agra.

Prostitutes Article 23 of the Constitution specifically prohibits traffic in human beings. Trafficking in human beings has been prevalent in India for a long time in the form of prostitution and selling and purchasing of human beings. This includes the devadasi system prevalent in Andhra Pradesh. To give meaning to Article 23 various laws have been passed to prevent exploitation of human beings in varied forms. The Immoral Traffic (Prevention) Act, 1956 and the A.P. Devadasis (Prohibition of Dedication) Act, 1988 are legislations which prohibit the practice of prostitution and dedication of devadasis respectively. Parliament has enacted the Suppression of Immoral Traffic in Women and Girls Act, 1956 with the object of inhibiting or abolishing the immoral traffic in women and girls. The Act is known as the Immoral Traffic (Prevention) Act, 1956. The Act aims at suppressing the evils of prostitution in women and girls and achieving a

84 85

AIR 1988 SC 1782: 1988 Supp SCC 734. (1986) 4 SCC 106: AIR 1987 SC 191. Also, Upen Baxi v. State of U. P., (1998) SCC 622.

public purpose, viz., to rescue the fallen women and girls to stamp out the evils of prostitution and also to provide an opportunity to these fallen victims so that they could become decent members of the society. In spite of this Act and other legal provisions found in the Indian Penal Code, the evil of prostitution still prevails. This malady is not only a social but also a socio-economic problem. The malady can be eradicated only if the law enforcing authorities take a very severe and speedy action against all erring persons. Accordingly, in Vishal Jeet v. Union of India,86 the Supreme Court has directed the State Governments to instruct their law enforcing authorities to take action under the law to eradicate child prostitution. The question of rehabilitation of prostitutes and their children was again brought before the Supreme Court in Gaurav Jain v. Union of India,87 through a public-interest-litigation under Article 32. A two Judge Bench took cognizance of the matter. The Court issued several direction relating to the rehabilitation of the children of the prostitutes, child prostitutes and establishment of juvenile homes for them. Article 39 (a) among other things provides that the State shall in particular; direct its policy towards securing that all citizens, men and women equally have the right to an adequate means of livelihood. This Article has been described as having the object of securing a welfare state may be utilized for construing provisions as to fundamental rights. According to Article 39(d), the state has to ensure that there is equal pay for equal work for both men and women. Parliament has enacted the Equal Remuneration Act, 1976, to implement Article 39(d). The Act provides for payment of equal remuneration to men and women workers for the same work, or work of a similar nature and for the prevention of discrimination on grounds of sex. The Act also ensures that there will be no discrimination against recruitment of women and provides for the setting up of advisory committees to promote employment opportunities for 86

AIR 1990 SC 1412 : (1990) 3 SCC 318.

87

AIR 1997 SC 3021 : (1997) 8 SCC 114.

women. Provision is also made for appointment of officers for h earing and deciding complaints regarding contravention of the provisions of the Act. Inspectors are to be appointed for the purpose of investigating whether the provisions of the Act are being complied by the employers. Non-observance nee of the Act by government contractors has been held to raise questions under Article 14.88 Besides the principle of gender equality in the matter specifically embodied in Article 39(d), the Supreme Court has extracted the general principle of equal pay for equal work by reading Articles 14, 16 and 39(d). The Supreme Court has emphasized in Randhir Singh,89 referring to Article 39(d), that the principle of ―equal pay for equal work‖ is not an abstract doctrine but one of substance. Though the principle is not expressly declared by the Constitution to be a Fundamental Right yet it may be deduced by construing Articles 14 and 16 in the light of Article 39(d). The word ‗socialist‘ in the Preamble must at least mean ―equal pay for equal work‖. The Supreme Court has observed in Grih Kalyan Kendra v. Union of India: 90 ―Equal pay for equal work is not expressly declared by the Constitution as a Fundamental Right but in view of the Directive Principles of State Policy as contained in Article 39(d) of the Constitution ―equal pay for equal work‖ has assumed the status of Fundamental Right in service jurisprudence having regard to the constitutional mandate of equality in Articles 14 and 16 of the Constitution.‖ In Uttarakhand Mahila Kalyan Parishad v. State of U. P.91 it was held that female teachers are entitled to the same salary as is paid to the male teachers of the same institution. Article 42 requires the state to make provision for securing just and humane conditions of ark and for maternity relief. Article 42 provides the basis of the large body of labour law that obtains in India. Referring to Articles 42 and 43, the Supreme Court has emphasized that the 88

People‘s Union jnr Democratic Rights v. Union of India, AIR 1982 SC 1473. Randhir Singh v. Union of India, AIR 1982 SC 879. 90 AIR 1991 SC 1173, 1176: (1991) 1 SCC 619. 91 AIR 1992 SC 1965 89

Constitution expresses a deep concern for the welfare of the workers. The courts may not enforce Directive Principles as such, but they must interpret laws so as to further and not hinder the goals set out in the Directive Principles.92 In D.B.M. Patnaik v. State of Andhra Pradesh, 93 the Supreme Court has suggested that Article 42 may ‗benevolently‘ be extended to living conditions in jails. The barbarous and subtle forms of punishment, to which convicts and under trials are subjected to, offend against the letter and spirit of our Constitution. The Delhi Municipal Corporation granted maternity leave to regular female workers but denied the same to female workers on muster roll on the ground that their service not having been regularized; they were not entitled to any such leave. Invoking Article 42, and the concept of social justice, the Supreme Court has conceded the demand of these female workers for maternity leave. The Court has emphasized that a just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due.94 Further Article 51A (e) imposes that duty of every citizen in India to renounce practices derogatory to the dignity of women. Section 14 of the Hindu Succession Act, 1956 should be construed harmoniously with the constitutional goals of removing gender based discrimination and effectuating economic empowerment of Hindu women. The right to elimination of gender based discrimination so as to attain economic empowerment, forms part of Universal Human Rights. Article 2 (f) of CEDAW States are obliged to take all appropriate measures; including legislation, to abolish or modify gender based discrimination in the existing laws, regulation, customs and practices that constitute discrimination against women. Article 15(3) of the Constitution of India positively protects such acts or actions. Moreover the Constitution of India is a basic document which provides for women empowerment within the framework of the plenary provision of Articles 14, 15 (3), 21, 39 (a), 51A (e) and Preamble. The courts always try to interpret the cases 92

U.P.S.E. Board v. Hari Shankar, AIR 1979 SC 65 : (1978) 4 SCC 16 AIR 1974 SC 2092: (1975) 3 SCC 185. 94 Municipal Corporation of Delhi v. Female Workers (Muster Roll), AIR 2000 SC 1274: (2000) 3 SCC 224 93

which are detriment to women within the area of social justice with these Articles. A woman can go to the court if one is subjected to any discrimination. 3.2

Women’s Rights are Human Rights Human rights are the basic dignity of every human person.

They are

universal. They are rights held simply by virtue of being a human person. And they are rights, not concessions. They cannot be withdrawn or undermined or watered down. Nor do rights depend on our status as citizens. They extend also to the noncitizen because it is they who most need them. For human rights if they mean anything have to be for the marginalised, the poor, the disregarded. And while certain basic human rights are fundamental to human nature, they are not static. The ongoing progress of human nature and society allows for the development of future rights. The slogan ‗women‘s rights are human rights‘ is one which has now taken off worldwide. The force of the slogan is in its simplicity. It makes the simple point that laws and customs that deny women equal life chances are an affront to their very humanity. When we talk about women‘s rights then, what we are really talking about are human rights. The United Nations is committed to the principle of equality of men and women, meaning equality in their dignity and worth as human beings as well as equality in their rights, opportunities and responsibilities. In its work for the advancement of women, the entire United Nations system has dedicated itself to ensuring the Universal recognition, in law, of equality of rights between men and women and to exploring ways to give women, in fact, equal opportunities with men to realize their human rights and fundamental freedoms. It is indeed very surprising to learn that woman, who was exploited the world over, was chosen to be the earliest entity to voice the classic example of inalienable rights of human beings. In Greek literature, Sophocles talks about inalienable human rights of a citizen through a woman in a play, a Greek tragedy.95

95

―A Fast Forward through human rights history and present status‖-Dr R. Varhadi; Random House, Compact Unabridged Dictionary, 1820, p. 91.

The impoverished status of women is in sharp contrast to an otherwise developing milieu in which social change does not accompany the rapid modernization process. The prevalent gender bias, being offensive to human dignity and human rights, has emerged as a fundamental crisis the world over. Human rights can be taken as those minimal rights which every individual must have against the State or other public authority by virtue of his being a ‗member‘ of the human family, irrespective of any other consideration. Democracy, development, respect for human rights and fundamental freedoms are interdependent and have mutual reinforcement. The human rights for women are therefore an inalienable, integral and indivisible part of human rights. The full development of personality, fundamental freedom and equal participation by women in political, social, economic and cultural scenarios are con commitment for international as well as national development, social and family stability and growth-culturally, socially and economically. All forms of discrimination on grounds of gender are, thus, violative of fundamental freedom and human rights. Gender injustice and insensitiveness manifests itself in the form of discrimination, crime and violence against women. Taking cognizance of this repression all over, the United Nations passed various instruments with a focus on women‘s emancipation and with the object of enhancing the dignity of women all over the world. The United Nations has come a long way from being a security agency to become an organization concerned with human rights, justice and equality. In the area of women‘s issues it has gathered enormous support whereby it has promoted and protected women's rights and women‘s empowerment. Throughout the world the United Nations has prescribed ‗common minimum standards‘ to be adopted by member countries for eradicating gender discrimination. Advancement of right of women has been the concern of world community since the end of Second World War. The Preamble to the Charter of the United Nations mentions the determination of the peoples of the United Nations ―to the reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women‖ and to employ international machinery for the promotion of the economic and social advancement of the people.‖ Similarly provisions are also incorporated in the Charter of the United Nations and other human rights instrument which provide for the protection and advancement of the rights of women.

It is relevant here to list the achievements of the UN in the field of women‘s rights since 1945. Besides the adoption of the UN Charter in 1945, the following achievements deserve mention: Establishment of the Commission on Status of Women in 1946 to promote women‘s political, economic and social rights. Adoption of the Convention for the Suppression of the Traffic in Persons and Exploitation of Prostitutes and Others by the General Assembly in 1949. Adoption of Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value by the ILO in 195 1. Adoption of the Convention on Political Rights of Women including the Right to Vote by the General Assembly in 1952. Adoption of the Convention on the Nationality of Married Women in 1957 granting women the right to retain or change their nationalities regardless of their husbands‘ actions. Adoption of the Convention Concerning Discrimination in respect to Employment and Occupation in 1960. Adoption, by the General Assembly in 1962, of the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages. Adoption of Declaration on the Elimination of Discrimination Against Women in 1967. Adoption of the First World Plan of Action and Proclamation of First World Decade for Women: With themes of Equality, Development and Peace by World Conference of Women in Mexico City in 1975. Establishment of Voluntary Fund for the UN Decade on Women (UNIFEM) and the UN International Research Institute for the Advancement of Women (INSTRAW) by the General Assembly in 1976. Adoption of the Convention on the Elimination of All Forms of Discrimination Against Women in 1979. Second World Conference on Women at Copenhagen in 1980. Third World Conference on Women at Nairobi in 1985. Adoption of Forward-looking Strategies for the Advancement of Women to the Year

2000 and Voluntary Fund for UN decade for women became UN Development Fund for Women (UNIFEM), an autonomous organization within the UN Development Program. In 1986 First World Survey on the Role of Women in Development was published. In 1991, the World's Women: Trends and Statistics, a compilation of data on the global situations of women was published. Key Role of Women in Sustainable Development was recognized in the UN Conference on Environment and Development, 1992 held at Rio do Janerio. In 1993, the Declaration on Elimination of Violence Against Women was adopted by the General Assembly. Empowerment of women was seen as an integral part of development for the first time in the International Conference on Population and Development (Cairo) in 1994. The Fourth World Conference on Women held at Beijing, 1995 reviewed and debated critical areas of concern and adopted a proposed platform for Action. Declaration of the International Year for the Empowerment of Women in 2001. Copenhagen Declaration and Platform for action of the Fourth World Conference on Women. Draft Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, 2001. The Beijing Plus Five UN General Assembly Special Session, 2000. The Commission on the Status of Women: It is a functional Commission of the Economic and Social Council. Initially, it was established as a Sub-Commission of the Commission on Human Rights, but in June 1946, the Economic and Social Council conferred upon if the status of full Commission and since then is known as Commission on the Status of Women. In the initial period, this Commission was particularly concerned (i) with the improvement of the Status of Women in law, particularly private law and (ii) with the advancement of Women‘s enjoyment of their rights to education, employment and health care. It made valuable suggestions to the Commission

on Human Rights and the Economic and Social Council at the time when the Universal Declaration of Human Rights and the two International Covenants on Human Rights, were under the process of being drafted. In addition, this Commission has performed following important functions: 1. The Commission, has initiated studies on several questions relating to the life of Women, such as equal access to education at all levels, equal economic rights and opportunities for Women; equal pay for equal work and various aspects of family law and property rights. It has made recommendations on these questions which have resulted in the adoption of many resolutions with the aim to promote the Status of Women and to establish the principle of equality of rights for men and Women. In addition the Commission has prepared following Conventions and Declarations: (a) The Convention on the Political Rights of Women, which was adopted and opened for signature and ratification by the General Assembly, on 20 December, 1952. (b) The Convention on the Nationality of Married Women adopted by the General Assembly in 1957. (c) The Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage, adopted by the General Assembly in 1962. This Convention was followed by Recommendation on the same subject adopted by the General Assembly in 1965. (d) The Declaration on the Elimination of Discrimination against Women made by the General Assembly in 1967. It was followed by the Convention on the Elimination of All Forms of Discrimination against Women, adopted and opened for signature, ratification and accession by the General Assembly in 1979. II. The Commission has served as the preparatory body for the International Women‘s Year (1975) and the United Nations Decade for Women (1976-1985). III. The Commission has served as the preparatory body for the World Conferences on Women, held in Mexico City (1975), Copenhagen (1980), Nairobi (1985) and Beijing (1995).

IV. It has been now assigned with ―the functions of promoting the objectives of equality, development and peace, monitoring the implementation of measures for the advancement of Women, and reviewing and appraising progress made at the national, sub regional, regional sectoral and global level.‖96 International Women’s Year 1975- The General Assembly adopted a resolution on 18 December, 1972, providing for following two things: (i) that all the Members States, and all International organizations should take steps to ensure the full realization of the rights of Women and their advancement on the basis of the Declaration on the Elimination of Discrimination against Women, and (ii) the observance of International Women Year. The General Assembly decided to observe 1975 as International Women‘s Year with following objectives: (a) To promote equality between men and Women; (b) To ensure the full integration of Women in the total development efforts, especially by emphasizing Women‘s responsibility and important role in economic, social and cultural development at the national, regional and International levels, particularly during the second United Nations Development Decades; (c) To recognize the importance of Women‘s increasing contribution to the development of friendly relations and cooperation among States and to the strengthening of world peace. The Social and Economic Council authorized the Secretary-General, on 16 May 1974 to convene an International conference during the International Women's Year for following purposes97: (a) To examine the extent to which the organization of the United Nations system had implemented the recommendation for the Elimination of discrimination against Women made by the Commission on the Status of Women since its establishment;

96

United Nations Action in the field of Human Rights, United Nations. Newyork and Geneva, 1994, p. 197, para. 1678. 97 Ibid N. 33, P. 200, para. 1695.

(b) To launch an International program including short term and long-term measures aimed at achieving the integration of Women as full and equal partners with men in the total development effort and eliminating discrimination on grounds of sex; (c) To achieve the widest involvement of Women in strengthening International peace and eliminating racism and racial discrimination. World Conference of the International Women’s Year-The World Conference of the International Women‘s Year was held at Mexico City from 19 June to 2 July 1975.98 The conference adopted. (i) The Declaration of Mexico on the Equality of Women and Their Contribution to Development and Peace 1975. (ii) the World Plan of Action for the Implementation of the Objectives of the International Women‘s Year (iii) regional plan of action; (iv) 35 resolutions and (v) decision recommending the observance of United Nation Decade for Women and the convening of a second world conference in 1980.99 The Declaration of Mexico on the Equality of Women and Their Contribution to Development and Peace, 1975 incorporated following important principles: Equality between men and Women; Equal rights and responsibilities family and society; Equal access to education and training; The right to work and equal pay for work of equal value; The right of couples and individuals to determine the number and spacing of children; The right of every Women to decide freely whether to marry; The right to participate in and contribute to the development effort; The full participation of Women in the economic, social and cultural sectors; 98 99

Ibid No. 1 P. 200-1, para. 1696. Ibid para. 1697.

The role of Women in promotion of international cooperation and peace; The role of Women in promoting human rights of all peoples and; The need to eliminate violation of human rights committed against Women and girls. The emphasis was laid on the creation of just society in which the men. Women and children may live in dignity, freedom, justice and prosperity. The World Plan of Action for the implementation of the objectives of the International Women‘s Year was designed to stimulate national and International action for solving the problems of underdevelopment and of the socio-economic structures for the reasons of which Women were placed in an inferior position. The Plan was concerned with the promotion of equality between Women and men and to this end, recommended to the Governments to ensure equality before law for both men and Women, equality of opportunities of education and training, equality in condition of employments, including remuneration and adequate social security. United Nations Development Fund for Women- The United Nations Development Fund for Women (UNIFEM) was established on 1 July 1985 is an autonomous association with UNDP. This Fund is contributed by Government, International organizations, national committees on the Fund and individuals and governed by UNDP and the Fund jointly. There is constructive cooperation between the UNDP and the Fund. The main concern of the Fund lies with the identification and study of emerging issues relating to Women, more particularly, the issue of violence against the Women and assistance to refugee Women. The issue of violence against Women has been brought to the agenda of Fund by the Women themselves. The Fund, in its effort to eliminate the violence against Women is examining the problem from crosscultural perspectives. It has also sponsored Women from developing countries for enabling them to participate at appropriate International events where they can highlight the problem of violence in its true perspectives.100

100

Ibid para. 1710.

So far as the problem of refugee Women is concerned, the Fund is being aware of the fact that 75 per cent of refugees are Women and children, making effort to enable the refugee Women to become self-reliant by adopting skill building measures. It has established projects to provide assistance to the refugee Women in Africa, Asia-Pacific and the Latin America-Caribbean region. The project includes provisions for food security, shelter and income-earning activities. In this way the Fund is providing assistance to the refugee Women in Liberia displaced by the fighting, in Jordan Lebanon and Yemen affected by the economic disruption caused by the Gulf war and in Cambodia, El Salvador, Peru and Malawi101, where Women are in distress. International Research and Training Institute for the Advancement of Women- The World Conference of the International Women‘s Year recommended for the established of an International Training and Research Institute for the Advancement of Women. This institute was supposed to work in collaboration with appropriate national, regional and inter regional economic and social research Institutes and the specialized agencies. The aim of the Institute was described as follows.102 (a) Undertaking Research and the collection and dissemination of information as the basis for the formulation of programs and policies for the effective participation of Women; (b) Assisting in the design of Research for the monitoring of changes in the situation of Women and the impact on their lives of economic, social and technological changes; (c) Develop, adopt and provide Training programs of Women, in particular those of the developing countries, which would enable them to undertake national Research, to assume leadership roles within their own societies and to increase their earning possibilities. The International Research and Training Institute for the Advancement of Women has been established at Santo Domingo in pursuance of an agreement concluded between the Government of the Dominion Republic and the United Nations

101 102

Ibid para. 1711 and 1712. Ibid para. 1714 and 1722.

which was approved by the Economic and Social Council on 6 May, 1981. This Institute has been established as an autonomous body under the auspices of the United Nations, and Funded by the voluntary contributions. The Economic and Social Council has laid down the following guidelines for the Institute: ―(a) It should work in close collaboration with all relevant organizations within the United Nations system and national and regional Centres and Institutes which have similar objectives; (b) That it should take the activities of those organizations fully into account and coordinate its activities with theirs; (c) That it should direct its activities with special attention to the need of Women by developing countries and their integration in the development process; and (d) That it should maintain close cooperation with the Commission on the Status of Women.103 The permanent headquarter of the Institute is at Santo Domingo, and it works in accordance with the provisions of Statute of the Institute. The Institute is engaging itself in Research on the contribution of Women to development, including the work of Women in the informal section of the economy, and the elaboration of special methodologies for the monitoring and evaluation of programs and projects for Women. The Institute is also playing constructive role in applying innovative Training strategies with a view of strengthening national Training capabilities, particularly in developing countries. United Nations Decade for Women Equality, Development and Peace, 1976-1985- The General Assembly decided on 15 December 1975 to observe the period from 1976 to 1985 as ―United Nations Decade for Women Equality Development and Peace‖. This decision was taken in pursuance of the recommendation of the World Conference of the International Women Year 1975 and its objective was the effective implementation for the resolutions of the world Conference. The General Assembly also decided to convene a world Conference in 1980 in accordance with the recommendation of the World Conference of the International Women Year. Its

103

Ibid para, 1717.

purpose was to review and evaluate the progress made in implementing the objectives of the International Women‘s Year. World Conference of the United Nations Decade for Women Equality development and peace- The World Conference of the United Nations Decade for Women Equality, Development and Peace was held at Copenhagen from 14 to 30 July 1980.104 Since the Conference was held at the mid-point of the United Nations decade for Women its works was divided into two parts. The First Part was concerned with review and evaluation of the progress made and obstacles encountered in attaining the objectives of the Decade at the national regional and International level from 1975 to 1980.105 In addition it considered the impact of apartheid on Women in southern Africa and the effects of Israeli occupation on Palestinian Women inside and outside the occupied territories. It was realized that the World Action Plan could not be realized within a short span of time. The Second Part, of its work was concerned with the formulating ―the program of action for the second half of the United Nations Decade for Women, 1980-1985‖. The program of action so formulated laid emphasis upon the promotion of three main objectives i.e. equality development and peace, with special concern for employment, health and education as they constitute important factors in the process of development. Keeping in view, that human resources cannot attain their full potential without integrated socio-economic development emphasis was laid upon the development by removing those constraints which hamper the Women‘s full and equal participation in the development. It was also emphasized that those problems of under development and of the socio-economic structure which place Women in an inferior position should be solved. The importance of this Conference lies in the fact that it made, on one hand, constructive contribution by appraising the progress achieved and the obstacles encountered in the implementation of the objectives of the decade and prepared and adopted, on the other hand, a program for the next five Years.

104 105

Supra N. 33. P. 203, para. 1726. Ibid para. 1728.

World Conference to Review and Appraise the Achievements of the United Nations Decade for Women- Another World Conference to Review and Appraise the Achievements for the United Nations Decade for Women : Equality, Development and Peace" was held at Nairobi from 15 to 26 July 1985. 106 This Conference was held in pursuance of the General Assembly resolution of 11 December 1980. The Conference took following two substantive items for consideration: A. ―Critical review and appraisal of progress achieved and obstacles encountered in attaining the goals and objectives of the United Nations Decade for Women: Equality Development and Peace 107 with special emphasis upon employment, health and education in the light of guidelines laid down at the World Conference of the International Women‘s Year held at Mexico City and the ―World Conference of the United Nations Decade for Women: Equality Development and Peace‖ held at Copenhagen. B.

―Forward-looking

strategies

of

the

implementation

for

the

advancement of Women for the period up to the Year 2000, and concrete measures to overcome obstacles to the achievement of the goals and activities of the United Nations Decade for Women: Equality, Development and Peace 108 in the special context of Employment, Health and Education. The text of the paragraphs to be incorporated in the Forward looking Strategies were prepared by the two main committees established for this purpose and these tarts of forward-looking strategies were adopted by the Conference on 26 July 1985, by consensus. This is known as the ―Nairobi Forward looking Strategies for the Advancement of Women‖ It was endorsed by the General Assembly on 13 December 1985, with the hope that its implementation will bring Elimination of' all forms of inequality between men and Women and will promote integration of Women into the Development process. It was emphasized by the General Assembly that complete integration of Women in the political economic, social and cultural life of their countries is necessary for strengthening Peace and security in the world. 106

Supra N. 33. P. 204, para. 1734. Ibid para. 1735. 108 Ibid. 107

The agenda adopted at the Nairobi for the advancement of Women was though ambitious but realistic. The Commission on the Status of Women, in order to cope with the new challenges set forth by the Nairobi Forward looking Strategies, reshaped and refined its work and reaffirmed its central role in matters related to the Advancement of Women. The Commission restructured its agenda along functional lines, developed a systematic long-term of program of work and made improvement in the system of supporting monitoring and appraising the implementation of the Forward looking Strategies. 109 Along with the Commission on the States of Women, the Center for Social Development and Humanitarian affairs of the secretariat, the United Nations Development Fund for Women and International Training and Research Institute for the Advancement of Women were also assigned with important roles in the implementation of Nairobi Forward-looking Strategies.

UNIVERSAL DECLARATION ON HUMAN RIGHTS In 1948, the Universal Declaration on Human Rights has exercised a powerful influence both internationally and nationally. As per the Declaration of Human Rights, women along with men are entitled to all rights and the terms ‗no one‘ and ‗everyone‘ include both men and women. The Declaration has 30 Articles. Articles 2 to 21 have been referred to as civil and political rights and Articles 22 to 27 deals with different social and economic rights. Article 2 of the Declaration states that, ―Everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or other status‖. No discrimination shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs. Under Article 16 of the Declaration, men and women of full age without any limitation due to race, nationality or religion, have the right to marry and to form a family. They are entitled to equal rights as to marriage, during marriage and its 109

Ibid P. 205, para 1740.

dissolution. Marriage shall be entered into only with the free and full consent of the Intending spouses. The family is the natural and fundamental group unit of society ford is entitled to protection by society and State. Articles l and 3 of the Declaration are very important. As per Article 1 of the Declaration, all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. According to Article 3 of the Declaration everyone has the right to life, liberty and security of person. Article 7 of the Declaration states that all are equal before the law and are entitled without any discrimination to equal protection of law. The International Covenant on Civil and Political Rights, 1966 declares in Article 3 that: ―The State Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present covenant.‖ The International Covenant on Economic, Social and Cultural Rights, 1966 declares the same thing in Article 3: ―The State parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present covenant.‖ CONVENTION ON THE POLITICAL RIGHTS OF WOMEN, 1953 The Convention was adopted by the General Assembly on 20th December, 1952110 and came into force on 7th July, 1954. The Convention desires to implement the principle of equality of rights for men and women contained in the Charter of the United Nations. The Convention also recognized that everyone has the right to take part in 110

Opened for signature on 31st March, 1953.

the government of his country directly or indirectly through freely chosen representatives and has the right to equal access to public service in his country, and desiring to equalize the status of men and women in the enjoyment and exercise of political rights in accordance with the provisions of the Charter of the United Nations and Universal Declaration of Human Rights. According to Article I of the Convention, women shall be entitled to vote in all selections on equal terms with men, without any discrimination. Women will also be eligible for election to all publicly elected bodies, established by national law, on equal terms with men, without any discrimination (Article II). They will also be entitled to hold public office and to exercise all public functions established by national law on equal terms with men without discrimination (Article III).

CONVENTION ON THE NATIONALITY OF MARRIED WOMEN, 1957 In 1949 the Commission on the Status of Women expressed the view that a convention on the nationality of married women should be prepared and concluded as soon as possible for it would assure women of equality with men, especially with respect to the right to a nationality, and prevents them from becoming Stateless upon marriage or at its dissolutions. Subsequently, the draft of the Convention was prepared by the Commission and in 1957; the General Assembly adopted the Convention on the Nationality of Married Women. The contracting State Parties of the Convention have undertaken the following Commitments111: (i)

Neither the celebration nor the dissolution of a marriage between

one of its nationals and an alien, nor the change of nationality by the husband during the marriage, shall automatically affect the nationality of the wife. (ii)

Neither the voluntary acquisition of the nationality of another State

nor the renunciation of its nationality by one of its nationals shall prevent the retention of its nationality by the wife of such national. (iii)

The alien wife of one of its nationals may, at her request,

acquire the nationality of her husband through specially privileged naturalization 111

S.K. Kapoor: Human Rights under International Law & Indian Law.

procedures. However, the grant of such nationality may be subject to such limitations as may be imposed in the interest of national security or public policy. (iv)

The present Convention shall not be construed as affecting legislation

or judicial practice by which the alien wife of one of its nationals may, at her request, acquire her husband‘s nationality as a matter of right.

DECLARATION ON ELIMINATION OF DISCRIMINATION AGAINST WOMEN, 1967 The General Assembly of the United Nations adopted the Declaration on Elimination of Discrimination Against Women on 7th November, 1967. This Declaration was a precursor to the Convention on the Elimination of All Forms of Discrimination against Women, 1979. Some of the important Articles are related to equal remuneration, equal rights in the fields of economic and social life. The Preamble to the Declaration states that despite various instruments extensive discrimination against women continues to exist. It recalled that discrimination against women violates the principles of equality of right and respect for human dignity. Article 10 of the Declaration directs that all appropriate measures shall be taken to ensure to women, married or unmarried, equal rights with men in the fields of economic and social life and, in particular: The right without discrimination on grounds of marital status or any other grounds to receive vocational training to work, to free choice of profession and employment advancement. The right to equal remuneration with men and to equality of treatment in respect of work of equal value. The right to leave with pay, retirement privileges and provisions for security in respect of unemployment, sickness, old age or other incapacity to work. The right to receive family allowance on equal terms with men. 112 In order to prevent discrimination against women, on account of marriage or maternity and to ensure their effective work, measures shall be taken to prevent 112

Dr. S. R. Myneni: Women & Law, Asia law House, Hyderabad, 2002.

their dismissal in the event of marriage or maternity and to provide paid maternity leave with guarantee of returning to former employment and to provide the necessary social service, including child care facilities. However, measures taken to protect women in certain types of work for reasons inherent in their physical nature shall not be regarded as discriminatory.

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN, 1979 The General Assembly on November 7, 1967 adopted a Declaration on the Elimination of Discrimination Against Women, and in order to implement the principle set forth in the Declaration, a Convention on the Elimination of All Forms of Discrimination Against Women was adopted by the General Assembly on December 18, 1979. The Convention often described as an ‗International Bill of Rights for Women‘, came into force in 1981. As on June 3, 2005, the Convention had 180 States Parties. It was noted in the Convention that State parties to the International Covenants on Human Rights have the obligation to ensure the equal rights of men and women to enjoy all economic, social, cultural, civil and political rights. There are also resolutions, declarations and recommendations adopted by the United Nations and the specialized agencies promoting equality of rights of men

and

women.

However,

despite

all

these

instruments,

extensive

discrimination continues to exist against women which violate the principles of equality of rights and respect for human dignity. This discrimination is also an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries hampers the growth and the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity. It was also considered that in situations of poverty, women have the least access to food, health, education, training and opportunities for employment and other needs. The State parties were convinced that the establishment of the new international economic order based on equity and justice will contribute

significantly towards the promotion of equality between men and women. It was also emphasized that the eradication of apartheid, all forms of racism, racial discrimination, colonialism, neo-colonialism, aggression, foreign occupation and domination and interference in the internal affairs of States is essential to the full enjoyment of the rights of men and women. The full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields. It was also realized that a change in the traditional role and role of women in society and in the family is needed to achieve full equality between men and women. According to Article 1 of the Convention, the term ‗discrimination against women‘ means any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, social, cultural, civil or any other field. The Convention under Part III lays down a number of fields where States Parties are required to take steps to eliminate discrimination against women which includes the following: 

Education-The Convention under Article 10 provides that women

shall be provided same conditions for careers and vocational guidance as to that of men. They shall be provided same access to studies for the achievement of diplomas in educational establishments of all categories in rural as well as in urban areas. This equality shall be provided in pre-school, general, technical, professional and higher technical education, as well as in all types of vocatio nal training. Women shall have access to the same curricula, the same examinations, teaching staff with qualifications of the same standard and school premises arid equipment of the same quality as to that of men. Women shall be provided same opportunities as to men in matters relating to scholarship and other Study grant. They shall have same opportunities for access to program of continuing education including adult and functional literacy programs. They shall have same opportunities to participate actively in sports and physical education.

 Employment- The Convention under Article 11 provided that States Parties shall take all appropriate measures to eliminate discrimination against woman in the field of employment providing same rights, in particular, (a) the right to work; (b) right to same employment opportunities; (c) right to free choice of profession and employment; (d) right to equal remuneration including benefits and to equal treatment in respect of work of equal value as well as equality of treatment in the evaluation of the quality of work; (e) the right to social security particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave; (f) right to protection of health and to safety in working conditions. There shall be no discrimination against women on grounds of marriage or maternity.  Health Care- The Convention under Article 12 provides that States Parties shall take steps to eliminate discrimination against women in the field of health care, access to health care services, including those related to family planning.  Economic and Social Life- Article 13 of the Convention provides that discrimination against women shall be eliminated in other areas of economic and social life. They shall be provided; the same rights as to that of men in particular (a) the right to family benefits; (b) the right to bank-loans, mortgages and other forms of financial credit; (c) the right to participate in recreational activities, sports and all aspects of cultural life.  Women in Rural Areas- Article 14 provided elimination of discrimination against rural areas. States Parties are required to ensure such women the right (a) to participate in the elaboration and implementation of development planning at all levels; (b) to have access to adequate health care facilities, including information, counseling and services in family planning; (c) to benefit directly from social security programs; (d) to obtain all types of training and education, formal and nonformal, including that relating to functional literacy, as well as, inter alia, the benefit of all community and extension services, in order to increase their technical proficiency; (e) to organize self-help groups and cooperatives in order to obtain equal access to economic opportunities through employment or self-employment; (f) to participate in all community activities; (g) to have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in land resettlement schemes; and (h) to enjoy adequate living conditions.

 Equality before Law- Article 15 of the Convention provides that ‗States Parties shall accord to women equality with men before the law‘. Women shall have equal rights to conclude contracts and to administer property and States Parties shall treat them equally in all stages of procedure in courts and tribunals. States Parties agree that all contracts and all other private instruments of any kind with a legal effect which is directed at restricting the legal capacity of women shall be deemed null and void. States Parties shall accord to men and women the same rights with law relating to the movement of persons and the freedom to choose their residence and domicile.  Marriage and Family Relations- Article 16 provides that States Parties shall take all measures to eliminate discrimination against women in all matters relating to marriage and family relations. Women shall be provided (a) the same right to enter into marriage; (b) the same rights, and responsibilities during marriage and at its dissolution; (c) the same rights and responsibilities as parents, in matters relating to their children. In all cases the interests of children shall be paramount; (d) the same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise their rights; (e) the same rights and responsibilities with regard to guardianship, ward-ship, trusteeship and adoption of children; (f) the same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation; (g) the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration. States Parties to the Convention condemned discrimination against women in all its forms and agreed to pursue by all appropriate means to eliminate discrimination against women and, to this end they undertook: (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein; (b) To adopt appropriate legislative and other measures prohibiting all discrimination against women;

(c) To establish legal protection of the rights of women on an equal basis with men; (d) To refrain from engaging in any act or practice of discrimination against women; (e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise. (f) To repeal all national panel provisions which contribute discrimination against women. Implementation Procedure The Convention under Article 17 made a provision for the establishment of a Committee on the Elimination of Discrimination Against Women for the purpose of considering the progress made in the implementation of the provisions of the Convention. The Committee shall consist of eighteen members (at the time of entry into force of the Convention) and twenty-three members (after ratification or accession to the Convention by thirty-five States). The members shall be experts of high moral standing and shall possess competence in the field covered by the Convention. The experts shall be elected by States Parties from among their nationals and shall serve in their personal capacity. The States Parties shall report periodically to the Committee a report on the legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the Convention. The Committee examines reports submitted by States Parties and makes its suggestions tool recommendations based on their considerations. It may also invite United Nations specialized agencies to submit reports for consideration and may receive information from nongovernmental organizations. Thus, the Committee acts as a monitoring system to oversee the implementation of the Convention. The Committee shall report annually to the General Assembly through the Economic and Social Council on its activities and may make suggestions and general recommendations based on the examination of reports and information received from the States Parties. A Committee on the Elimination of Discrimination Against Women was

established in 1981 when the Convention entered into force. It is composed of 23 independent experts. The Committee meets only for two weeks a year, which is clearly inadequate. The States Parties are required to report periodically to the Committee on the legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the Convention. Thus, the Convention is implemented by means of State‘s Parties report. The Committee submits its annual report to the General Assembly, through the Economic and Social Council, on its activities and may make suggestions and general recommendations based on the examination of reports and information received from the States Parties.

DECLARATION ON THE ELIMINATION OF VIOLENCE AGAINST WOMEN, 1993 The Preamble to the Declaration on the Elimination of Violence Against Women, 1993113 states that the Declaration on the Elimination of Violence against Women is the first international human rights instrument to exclusively deal with the issue of violence against women. It affirms that violence against women violates, impairs or nullifies women's human rights and their exercise of fundamental freedom. Article 1 of the Declaration on the Elimination of Violence Against Women and the Platform for Action from the Fourth World Conference on Women both define violence as: ―Any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.‖ Thus, the Declaration gives a broad definition to the word violence and includes psychological harm inflicted on women.

OPTIONAL PROTOCOL TO THE CONVENTION ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN, 1999

113

General Assembly Resolution No. 48/104, United Nations Document No. A/48149.

It was recalled in this Protocol the Convention on the Elimination of All Forms of Discrimination Against Women (the Convention) in which the State Parties thereto condemned discrimination against women in all its forms and agreed to pursue by all appropriate means and without delay a policy of eliminating discrimination against women. The States also reaffirmed their determination to ensure the full and equal enjoyment by women of all human rights and fundamental freedoms and to take effective action to prevent violations of these rights and freedoms. The Protocol provided under Article 2 that a communication may be made to the Committee either by individuals or group of individuals in writing and may not be anonymous. Before the complaint is considered, the Committee must determine that all available domestic remedies have been exhausted and the complaint has not been examined neither by the Committee nor it has been or is being examined under another procedure of international investigation or settlement. Further, a complaint is admitted only if it is compatible with the provisions of the Convention. When the communication has been admitted, th e Committee has the option of contacting the State Party with w, urgent request that the State Party take steps to protect the alleged victims from irreparable harm. The State Party is given six months time to provide a written explanation or statement to the complaint. The Committee‘s views and recommendations are transmitted to the Parties concerned. The State Party is given six months time to consider the views of the Committee and to provide a written response, including remedial steps taken. The Protocol also provided the inquiry procedure that allows the Committee to initiate a confidential investigation by one or more of its members when it has received reliable information of grave or systematic violations by a State Party of rights enshrined in the Convention. The Committee may visit the territory of the State Party if so required with the consent of the State Party. Findings, comments or recommendations of the Committee are transmitted to the State Party. After the six months‘ period, the State Party may be invited to provide the Committee the details of any remedial efforts taken following an enquiry. Recognition of the competence of the Committee to initiate and conduct an enquiry is optional and may be refused by the States Parties at the time of

ratification of the Protocol by making a declaration. However, the declaration may be withdrawn at a later time. The Protocol would enable victims of discrimination and other abuses of right to communicate the Committee.

COMMISSION ON THE STATUS OF WOMEN The Commission on the Status of Women is a functional commission of the Economic and Social Council (ECOSOC) established by the Council in 1946. The functions of the Commission are: 1. To prepare recommendations and report to the ECOSOC on promotion of women's rights in political, economic, civil, social and educational fields; and 2. To make recommendations to the Council on urgent problems requiring immediate attention in the field of women's rights with the object of implementing the principle that men and women shall have equal rights and to develop proposals to give effectt to such recommendations. Originally the Commission on the Status of Women was composed of 15 members. Subsequently the membership increased to 21 and then to 32 and finally to 45. Thus, at present, the Commission is composed of 45 representatives of the UN members elected by the ECOSOC for a three year term. It meets biennially for its session of three weeks. As in the case of the Commission on Human Rights, the Commission on the Status of Women adopts its own resolutions and recommends draft resolutions and declarations for adoption by the ECOSOC. The Commission submits a report on each session to the Council.114 Vienna Conference The Commission on the Status of Women has done valuable work for promoting the rights of women in political, economic, civil, social and educational fields. It has also ensured achievement of the goal of women having rights equal to those of men. The First World Conference on Women was held in Mexico City in 1975 which highlighted the themes of ―Equality, Development and Peace‖. The Second World Conference on Women convened in Copenhagen in 1980, added three sub-themes: ―Education, Employment and Health‖. In Nairobi, the Third World Conference was held to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development and Peace (1976-1985). The goal

114

S.K. Kapoor: Human Rights tender International and Indian Law.

was set here for the adoption of ―Forward-looking Strategies for the Advancement of Women to the Year 2000‖. In its Thirty-third Session which was held at Vienna,115 the Commission stressed that a drastic effort must be made to revive a flagging campaign for women‘s advancement because there was sufficient evidence to indicate that advances towards women‘s economic and political rights were slow or had actually stopped. Unless something was done, said the Commission, the achievement of the goal century was at risk. The 32 member Commission also adopted 23 texts on a wide variety of subjects such as AIDS, aging, refugee and displaced women, poverty and apartheid and sent the drafts for final approval to the ECOSOC. In its Thirty-seventh Session held at Vienna,116 the Commission on Status of Women unanimously approved a draft declaration on the elimination of violence against women. This declaration, which was submitted to the Forty-eighth Session of the General Assembly for adoption, stated that violence against women is an obstacle to the achievement of equality, development and peace-the three main goals of the UN to advance the status of women. It may be noted here that earlier117 a UN Experts Group had proposed a draft declaration on violence against women to be considered by the Committee on Status of Women in 1992. Thus, it was for the first time that the issue of physical, sexual and psychological violence against women was addressed explicitly. It was proposed that, if necessary, an Optional Protocol to the 1979 Convention on the Elimination of All Forms of Discrimination Against Women be adopted. It was adopted in 1999. Fourth World Conference on Women The United Nations convened the Fourth World Conference on Women on 415 September 1995 in Beijing, China. Delegates had prepared a Declaration and Platform for Action that aimed at achieving greater equality and opportunity for women. The official name of the Conference was ―The Fourth World Conference on Women: Action for Equality, Development and Peace‖. 189 governments and more than 5,000 representatives from 2,100 non-governmental organizations participated in the Conference. 115

From 29th March to 7th April, 1989 17-26th March, 1993. 117 November 1991. 116

The principal themes were the advancement and empowerment of women in relation to women‘s human rights, women and poverty, women and decision-making, the girl-child, violence against women and other areas of concern. The resulting documents of the Conference are The Beijing Declaration and Platform for Action. The overriding message of the Fourth World Conference on Women was that the issues addressed in the Platform for Action are global and universal. Deeply entrenched attitudes and practices perpetuate inequality and discrimination against women, in public and private life, in all parts of the world. Accordingly, implementation requires changes in values, attitudes, practices and priorities at all levels. The Conference signaled a clear commitment to international norms and standards of equality between men and women; that measures to protect and promote the human rights of women and girl-children as an integral part of universal human rights must underlie all action; and that institutions at all levels must be reoriented to expedite implementation. Governments and the UN agreed to promote the ―gender mainstreaming‖ in policies and programs. This outcome of the Beijing Conference is an agenda for women‘s empowerment. It aims at accelerating the implementation of the Nairobi ForwardLooking Strategies for the Advancement of Women. It deals with removing the obstacles to women‘s public participation in all spheres of public and private lives through a full and equal share in economic, social, cultural and political decisionmaking. The Platform for Action sets out a number of actions that should lead to fundamental changes by the year 2000 - the Five Year Review of the Beijing Conference at a Special Session of the UN General Assembly (Beijing +5). Implementing the Beijing Platform for Action is mainly a responsibility of governments, but also of institutions in the public, private and non-governmental sectors at the community, national, sub-regional, regional and international levels. The Platform acknowledges that significant progress will depend on building strategic partnerships and involving all stakeholders in the efforts towards change. The Beijing Declaration and Platform for Action were adopted by consensus on 15 September 1995. The Declaration embodies the commitment of the

international community to the advancement of women and to the implementation of the Platform for Action, ensuring that a gender perspective is reflected in all policies and programs at the national, regional and international levels. The Platform for Action sets out measures for national and international action for the advancement of women over the five years until 2000. If implemented, the Platform for Action will enhance the social, economic and political empowerment of women, improve their health and their access to relevant education and promote their reproductive rights. The action plan sets time-specific targets, committing nations to carry out concrete actions in such areas as health, education, decision-making and legal reforms with the ultimate goal of eliminating all forms of discrimination against women in both public and private life. The issue of global advocacy for abortion rights was controversial, with the United States and the Holy See publicly disagreeing over the issue.118 Besides all these international initiatives, the South Asian Association for Regional Cooperation or SAARC, consisting of seven South Asian Countries, is meeting at regular intervals to work united for the cause of women. In the Eleventh Summit of the SAARC in January 2002, a convention on Preventing and Combating Trafficking in Women and Children for Prostitution was adopted to effectively deal with the various aspects of prevention, interdiction and suppression of trafficking in women and children. Under Article 3 it is stated that State parties to the convention shall take effective measures to ensure that trafficking in any form is an offence under their respective criminal law and shall make such an offence punishable by appropriate penalties.119

118 119

New York Times article. SAARC/SUMMIT, 11/3, Kathmandu, January 4-6, 2002.

CHAPTER - IV

OTHER LEGISLATIVE MEASURES ON PROTECTION OF WOMEN RIGHTS IN INDIA 4.1

Personal Rights relating to Women Marriage is an institution which evolved out of gradual processes.

Though it was initially based on practice it finally entered into the state of legal recognition. The institution of marriage is viewed from many different angles, for it is intimately connected with the crude customs of a locality. Any broad definition of marriage is, thus, liable to exclude one or other form of the institution. Generally speaking, marriage is the act of marrying that confers status on a union of a man and woman, for some legal purposes. Marriage, as understood in the Christian world, means the voluntary union for life of one man and one woman, to the exclusion of all others, entered into some form recognized by the lex loci. 120

HINDU LAW There was some divergence of opinion on the question whether under Hindu law, as applied by courts in India; marriage was a sacrament or both, a sacrament and a contract. That it was a sacrament was not questioned, but the demarcation between religious and legal precepts was rather thin. The Act overrode all rules of law of marriage, whether by virtue of any text or rule of Hindu law or any custom or usage having the force of law in respect of all matters dealt with in it. The Act does not use the expression `sacramental marriage' but speaks of a Hindu marriage solemnized in accordance with the customary rites and ceremonies of either party. A Hindu marriage does not refer to Hinduism as a religion but relates to all persons who are Hindus in the wide connotation of the expression. Before modern Hindu laws were passed, child marriages were the norms, inter-caste marriages were banned, the girl became a part of the husband's family, and polygamy was common. In the 19th century, the British rulers passed several laws to 120

Hyde v. Hyde, (1866) 1 P&D 130; Baindali v. Baindail, (1946) P (CA) 122.

protect customs and traditions while abolishing detestable practices like Sati. Some such revolutionary laws were Hindu Widows Remarriage Act 1865 and the Brahmo Samaj Marriage Act 1872, the forerunner of the present Special Marriage Act. In the beginning, the Act sets four essential conditions for a valid Hindu marriage. Section 5 of the Hindu Marriage Act, 1955 lays down the conditions for a valid marriage. These conditions are: Monogamy: Clause (i) of the section introduces monogamy which is essentially the voluntary union for life of one man with one woman to the exclusion of all others. Monogamy means that one is permitted to have only one wife or husband at one time. Polygamy was permitted among Hindus before the Act was passed in 1955. However, after the act was passed, any man marrying again while his wife is living will be punished with fine and imprisonment up to seven years. Section 5(i) prohibits bigamy, Section 11 makes a bigamous marriage void and Section 17 makes it a penal offence under Sections 494 and 495, IPC. Section 5(i) of Hindu Marriage Act states: ―(i) neither party has a spouse living at the time of the marriage;‖ In Priya v. Suresh121, it was held by the Supreme Court that the second marriage cannot be taken to be proved by the mere admission of the parties, essential ceremonies and rites must be proved to have taken place. In Yamuna Bai v. Anantha Rao122, it was held by the Supreme Court that the fact that the husband has been treating a woman as his wife and did not inform her of his previous marriage is immaterial and the principle of estoppels cannot be invoked to defeat the provisions of law. The expression ―spouse living‖ is to be understood as the existence of a legally-wedded spouse in the eyes of the law. In the case a spouse is unheard of for more than seven years, a presumption can be drawn under Section 108 of the Indian Evidence Act that such a spouse is dead and in such an event the surviving spouse can marry a second time on the ground that the former marriage is dissolved by the civil death of the other spouse.123

121

(1971) 1 SCC 864. (1988) 1 SCC 530. 123 Sodha v. Mansharan, 1971 HP 27. 122

Sound mind: This clause lays down as one of the conditions for a Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder, insanity or epilepsy and Section 12(1)(b) renders, at the instance of a party, the marriage voidable, if the other party was suffering from any such infliction at the time of the marriage. This clause was substituted by the Marriage Laws Amendment Act, 1976 for the original clause which read ―neither party is an idiot or a lunatic at the time of the marriage‖. Under the old law, mental incapacity was considered a bar to a marriage to some extent depending upon the degree of unsoundness of mind. The words ‗Idiot‘ and ‗Lunatic‘ are not defined in the Act. But the word ‗Lunatic‘ is defined in the Indian Lunacy Act, 191222 as an idiot or a person of unsound mind. The word ‗unsound mind‘ is more comprehensive than lunacy and includes other species of mental aberration. In Smt. Alka Sharma v. Avinash Chandra, 124 the Madhya Pradesh High Court held that the word ‗and‘ between expression unfit for marriage and procreation of children in Section 5(2)(b) should read as ‗and‘, ‗or‘. The court can nullify the marriage if either condition or both conditions contemplated exist due to mental disorder making living together of parties highly unhappy. Similarly the provisions of section 5(2) (c) of the Act emit doubtful inferences. Would it be necessary that a person who had been a victim of lunacy or epilepsy for some time before his marriage or ever had been a victim of hysteric fits becomes unfit to have marital relations? It is very strange that clause (a) of sub-section 2 of Section 5 speaks of giving a valid consent to marriage whereas clause (c), thereof contains nothing of the sort. It leads to an inevitable inference that this sub-section did not require any amendment at all. On the contrary the amendment brought into it has given rise to certain degree of ambiguity and anomaly. Marriageable age: Section 5(3) prescribed the age of the bridegroom as eighteen years and that of bride as fifteen years but by the Child Marriage Restraint (Amendment) Act, 1978 the words ‗the eighteen‘ and ‗fifteen‘ stand substituted by twenty one and eighteen respectively. Now for a valid marriage the bridegroom must have attained the age of 21 years and the bride of 18 years at the time of marriage. But the breach of this pre-requisite did not affect the validity 124

AIR 1991 M.P. 205.

of marriage, but on the other hand rendered it as an offence, inviting penal consequences to the erring parties. The guilty party to such marriage or the parent or guardian concerned who is responsible for getting the marriage solemnised, or negligently fails to prevent it from being solemnised shall be liable for simple imprisonment up to 15 days or a fine of Rs. 1000/- or both under Section 18 of the Act. Before the aforesaid amendment the consent of the guardian of the girl was necessary if she was below eighteen years of age. If the consent of the guardian was obtained by force or fraud the aggrieved party could under Section 12(1) (c) of the Act have the marriage declared void by making a petition to this effect. A marriage solemnised in violation of Section 5(iii) would not be void although the person guilty of the stipulated condition as to the minimum age would be liable to be punished under Section 18(a) of the Act. 125 Formerly, child marriages were common. The Child Marriage Act of 1929 was not very effective as such marriages were continued to be performed. Now, however, the bridegroom must be 21 years old and the bride 18 years. Under the old Hindu law the marriageable age of the bride was between 8 and 12 years and that of the bridegroom within 25 years, but the Child Marriage Restraint Act, 1929, as amended by the Act of' 1949, re-determined the age of marriage and prohibited the same between a bride less than 15 years of age and a bridegroom below 18 years. It was essential to have the consent of the bride's guardian if she was less than 18 years of age. But where the parties voluntarily chose to continue the marital relations as such after the marriage the necessity of the guardian's consent fell to the background.126 In Pinniti Venkatarama v. State,127 the Andhra Pradesh High Court laid down that any marriage solemnised in contravention of cl. (iii) of Section 5 is neither void nor voidable, the only consequences being that the persons concerned are liable for punishment under Section 18. Thus a marriage in contravention of Section 5(3) does not render the marriage null and void.'' But where a bride had been married before completion of her fifteenth year and on 125

Mohinder Kaur v. Major Singh, AIR 1972 P & H 184. Kunthu Devi v. Sri ram, 1963 Punj. 235. 127 AIR 1977, A.P. 43. 126

attaining that age repudiates the marriage, she would be entitled to a decree of divorce under Section 18(2) (iv) of the Act which was inserted by the Marriage Laws (Amendment) Act, 1976. The option of getting a decree of divorce would be available till the completion of her eighteenth year. Barring these two consequences, one arising under Section 18 and the other arising under clause (iv) of the sub-section (2) of Section 13, there is no other consequence whatsoever, resulting from the contravention of the provisions of clause (iii) of Section 5. The parties should not be too closely related: Section 5(iv) lays down the condition that the parties to a Hindu marriage should not be within the degrees of prohibited relationship while under clause (v) the parties should not be sapindas of each other unless the custom or usage governing each of them permits a marriage between the two. According to Section 5(iv) and 5(v): ―(iv) The parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;‖ In Shakuntala Devi v. Amarnath128, it was held that a marriage between persons within the prohibited degree of relationship or sapinda relationship was not permitted, unless custom or usage permits such a marriage. Explaining the sanction by custom the Court said in Balusami v. Balakrishna 129 that wherever a custom is relied upon it must be a valid custom as defined in Section 3(a) of this Act. A custom permitting marriage with a maternal uncle‘s daughter was recognized in Venkata v. Subhadra.130 But in Balusami Reddiar v. Balakrishna Reddiar 131, where a custom was pleaded for marrying a daughter‘s daughter it was held illegal on the ground of immorality although there was a custom in the Reddiar Community of Tirunalveli District to that effect. Under these provisions when a custom is pleaded in relation to the rule of the prohibited degrees for the purpose of marriage or of sapinda relationship, each of the spouses should be governed by that custom. It follows that even if one of the spouses is not governed by such a custom the marriage cannot be held to be valid. A marriage in contravention of any of these two 128

AIR 1982 Punj. 221 AIR 1984 AP 225. 130 ILR (1884) 7 Mad 548. 131 AIR 1957 Mad. 97. 129

clauses is a void marriage under Section 11 and those indulging in it are liable for punishment under Section 18(b) of the Act. It was held in Kamakshi v. Mani 132 that proving one instance where marriage took place in contravention of either of these clauses is not sufficient to prove a custom. Section 9 of the Hindu Marriage Act, 1955 deals with restitution of conjugal rights. The foundation of the right to bring a suit for restitution of conjugal rights is a fundamental rule of matrimonial law that one spouse is entitled to the society and comfort-consortium-of the other spouse and where either spouse has abandoned or withdrawn from the society of the other, without reasonable excuse or just cause, the court should grant a decree for restitution. The Act has been amended by the Marriage laws (Amendment) Act, 1976 which added an explanation providing that when a question arise4s whether there has been reasonable excuse for withdrawal, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society of the other. Section 10 of the Hindu Marriage Act, 1955 declares the right of either spouse to a marriage to obtain judicial separation and provides for the same. Though such remedy for obtaining judicial separation was unknown under Hindu law, the courts of British India by their pronouncements established that a suit for judicial separation is maintainable on certain grounds. As a consequence, the Indian divorce Act, 1869 was passed and was made applicable to all communities in the country. This provision is a statutory recognition of the right to judicial separation among Hindus.133 By the Marriage Laws (Amendment)) Act of 1976, Section 10 of the Act was radically changed and now the ground, for both the husband and the wife are the same as the grounds for divorce contained in Section 13(1) of the Act. They are adultery, cruelty, desertion, conversion, unsound mind, venereal disease, Incurable leprosy, renunciation of the world, presumption of death and failure to comply with a decree of restitution of conjugal rights, etc. All these grounds are available equally to the husband and the wife.

132 133

(1970) 2 MLJ 477 Mayne: Hindu Law and Usage.

Apart from the aforementioned ground, a Hindu wife may invoke any of the following grounds available exclusively to her, namely, remarriage by husband, husband being found guilty of rape, sodomy or bestiality, non-resumption of cohabitation in spite of a decree for maintenance of wife and option of puberty i.e. at the option of the wife if her marriage was performed before she reached the age of 15 years and she repudiates the marriage alter shaming the age of 15 yeas bill before she reaches 18 years of age. These special grounds have been provided to a Hindu wife exclusively by the Marriage Laws (Amendment) Act of 1976 which amended Sections 10 and 13. The object of this provision is basically to give time to the spouses for approachment and reconciliation. Thus, a wife can proceed against the husband on more special grounds than those available to him. This provision places Hindu wife on a higher pedestal than a Muslim or a Christian wife. Under the Textual Hindu law, divorce was not allowed since marriage was a Sanskar or sacrament and not a contract, and the marriage tie was unbreakable. But now divorce has been introduced, after much hue and cry, through the enactment of the Hindu Marriage Act, 1955 since this Act does not recognized marriage as a Sanskar. The grounds for judicial separation for both the husband and wife are the same as the grounds contained in Section 13(1) of the Act. They are adultery, cruelty, desertion, conversion, unsoundness of mind, veneral disease, incurable leprosy, renunciation of the world, presumption of death and failure to comply with a decree of restitution of conjugal rights. Apart from the grounds mentioned, a Hindu wife may invoke any of the special grounds, namely, remarriage by husband, husband being guilty of rape, sodomy or bestiality, non resumption of cohabitation by the spouses in spite of a decree for maintenance of wife and option of puberty. These special grounds have been incorporated by the marriage laws (Amendment) Act, 1976 which amended Section 10and 13 of the Hindu marriage Act. Thus a Hindu wife is granted certain special grounds against the husband which places her in a better position as compared to a Muslim or Christian wife. Section 13-B providing for divorce by mutual consent was added by the Amendment Act of 1976. In order to take the benefit of this section the spouses

should have been living separately for a period of one year or more, must not have been able to live together and must have mutually agreed that the marriage should be dissolved. The underlying idea of divorce by mutual consent may be traced to the principle that if the marriage under most of the Matrimonial Acts is a civil contract, and it is based on certain conditions with the mutual consent of the parties, then the parties must be given discretion to end that contract of marriage if the conditions for the contract is breached or broken by either of the party to the contract. Section 24 of the Hindu Marriage Act makes a provision for grant of Maintenance pendent lite and expenses of proceedings to either spouse and Section 25 contains similar provisions regarding payment of permanent alimony and maintenance. The object of Section 24 is to ensure that a party to a proceeding does not suffer during the pendency of the proceeding by reason of his or her poverty. The party standing in need of such relief may either be the petitioner or the respondent and prima facie there is no reason why Parliament should try to make no distinction in this context. The fact that under Section 24 relief can be granted to both the wife and the husband indicated that the legislature intended to make no such distinction. In Ishwar Singh v. Smt. Hukum Kaur,134 the Allahabad Court held that it would not be reasonable to confine the relief under this section only to the party who had initiated the original proceeding before the Court. So long as the marriage is subsisting a spouse cannot get any maintenance under the Act. By Section 25 of the Hindu Marriage Act, 1955 the courts are empowered to direct the opposite party at the time of decree or subsequently to pay the petitioner maintenance. The court shall take into account the status of the opposite party in awarding the amount of maintenance. Powers also have been given to the court to rescind or modify the order at any subsequent stage. The section was amended by Section 17 of the Marriage Laws Amendment Act, 1976, before which the liability to pay maintenance was restricted to the period during which the applicant remained unmarried. Numerous marriages take place within India and in foreign countries which are outside the ambit of various personal laws as well as they cannot be governed by the general and common law of civil marriages for the reason of not having been 134

AIR 1965 All 464.

formally solemnized or registered under it. Though these enactments are meant equally for all communities of India, yet they contain few provisions which greatly inhibit people of certain communities to avail them. In 1954 the first Special Marriage Act of 1872 was repealed by and replaced with a new law bearing the same title. This is an optional law, an alternative to each of the various personal laws, available to all citizens in all those areas where it is in force. Religion of the parties to an intended marriage is immaterial under this Act; one can marry under its provisions both within and outside one‘s community. For the Hindus, Buddhists, Jainas and Sikhs marrying within these four communities the Special Marriage Act, 1954 is an alternative to the Hindu Marriage Act. The Muslims too have choice between their uncodified personal law and the Special Marriage Act, 1954. But the issue of availability of the Special Marriage Act, 1954 for a marriage, both parties to which are Christians, remains unresolved. The Special Marriage Act does not by itself or automatically applies to any marriage; it can be voluntarily opted for by the parties to an intended marriage in preference to their personal laws. It contains its own elaborate provisions on divorce, nullity and other matrimonial causes and, unlike the first Special Marriage Act of 1872, does not make the Divorce Act 1869 applicable to marriages governed by its provisions. For the Hindus, Buddhists, Jains and Sikhs marrying within these four communities the Special Marriage Act 1954 is an alternative to the Hindu Marriage Act 1955. The Muslims marrying a Muslim have a choice between their uncodified personal law and the Special Marriage Act. The Indian Christian Marriage Act 1872, however, says that all Christian marriages shall be solemnized under its own provisions [Section 4]. The issue of availability of the Special Marriage Act for a marriage both parties to which are Christians thus remains unresolved. In view of the conflicts of various personal laws, all equally recognized in India, it will be in the fitness of things that all inter-religious marriages (except those within the Hindu, Buddhist, Sikh and Jaina communities) be required to be held only under the Special marriage Act, 1954. Even if such a marriage has been solemnized under any other law, for the purpose of matrimonial causes and remedies the Special Marriage Act, 1954 can be made applicable to them. Such a move will bring all inter-

religious marriages in the country under uniform law. This will be in accordance with the underlying principle of Article 44 of the Constitution of India relating to uniform civil code. The present linkage between civil marriages and the applicable law of succession greatly inhibits or discourages certain communities for opting for a civil marriage under the Special Marriage Act, 1954 as it would deprive them of their laws of succession. The Muslims and Parsis give utmost importance to their personal laws of succession and they do not make use of the Special Marriage Act, 1954. There seems to be no reason why the Special Marriage Act, 1954 should have a provision regarding succession law to be applied in case of civil marriages. The matrimonial relief of restitution of conjugal rights has been dealt with under Chapter V of the Special Marriage Act. 1954. Section 22 of the Act says that when either the husband or the wife has, without reasonable excuse withdrawn from the society of the other, the aggrieved party may apply for the restitution of conjugal right by a petition to the district court and if the court is satisfied of the truth of the statements made in such petition and if there is no legal ground why the application should not he granted. may decree restitution of conjugal rights. Where a question amts whether there has been reasonable excuse for withdrawal from the society of the other spouse, the burden of proof is on the person who withdraws to prove reasonable excuse.135 In cases of judicial separation a petition may he presented to the district court either by the husband or the wife under Section 23 in any ground specified tin which a petition for divorce can be presented under Section 27. Judicial separation can also be granted on the ground of failure to comply with a decree of restitution of conjugal rights on being satisfied on truth of the statements and that there is no legal disability in granting judicial separation. Consequent to the decree of judicial separation, it shall not be obligatory for the petitioner to cohabit with the respondent but the court may on application by petition of either party also, rescind the decree. It can only be done it the Court considers it just and reasonable to do so. 135

Section 22. Explanation inserted by Amendment Act of 1976.

Suction 27-A powers have been given to the court to give alternative relief on a petition for dissolution of marriage by a decree of divorce. The Court may if it considers it just with regard to the circumstances of the case may pass instead of decree for judicial separation. As per Section 27 of the Special Marriage Act, 1953, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent: (a) has after marriage, had voluntary sexual intercourse with any person other than his spouse; or (b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or (c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in Indian Penal Code; or (d) has since the solemnization of marriage treated the petitioner with cruelty; or (e) has been of incurably unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Here mental disorder means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia and the expression psychopathic disorder means a persistent disorder or disability of mind (whether or not including sub normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent and whether or not it requires or is susceptible to medical treatment; or (f) has been suffering from venereal disease in a communicable form; or (g) has been suffering from leprosy, the disease not having been contracted from the petitioner; or (h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if he/she had been alive.

A wife may also present a petition for divorce under Section 27(I-A) to the district court on the ground: (i) that the husband has, since solemnization of the marriage, been guilty of rape, sodomy or bestiality; (ii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding Under Section 125 of the Criminal Procedure Code, 1973 or under the corresponding Section 488 of tile Criminal Procedure Code, 1898, a decree or order, as the ease may be has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; (iii) subj e ct to the provisions of this Act, either party to a marriage, whether before or after the commencement of the Special Marriage (Amendment) Act. 1970 may present a petition for divorce to the district court on the ground that there has been no resumption of cohabitation between the parties to the marriage for a period of one year or more after the decree for judicial separation or a decree for restitution of conjugal rights in proceedings in which they were parties. It was held in Sulekha Mahapatra v. Nabendu Sengupta,136 that persistent drunkenness despite protests amounts to cruelty which is enough for entitling a wife to relief under this section. A petition for divorce may be presented by both the parties together on the ground that they have been living separately for a period of one year or more. In this petition to the district court Under Section 28 of the Special Marriage Act they can assert that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. On motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in Section 28(1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the district court shall, on being satisfied, after hearing the parties and

136

AIR 1989 NOC 205 (Cal)

inquiring, pass a decree declaring the marriage to be dissolved with effect from the date of the decree. The Special Marriage Act, 1954 provides for a special form of marriage which can be taken advantage of by any person in India and by all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess. The consequential reliefs are provided in the Act itself. The provisions regarding maintenance and alimony are contained in Sections 36 and 37 of the Special Marriage Act, 1954. It is provided in Section 36 of the Special Marriage Act that where in any proceedings under restitution of conjugal rights and judicial separation or nullity of marriage and divorce it appears to the district court that the wife has no independent income sufficient for her support and necessary expenses for the proceeding, it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding and weekly or monthly during the proceeding such sum as, having regard to the husband‘s income, it may seem to the court to be reasonable. Section 37 lays down the provisions relating to permanent alimony and maintenance. The section lays down that any court exercising jurisdiction under a petition of restitution of conjugal rights and judicial separation or of nullity of marriage and divorce may at the time of passing of any decree or subsequent to the decree, on application, order that the husband shall provide to his wife maintenance and support, if necessary, by a charge on the husband's property such gross sum or such monthly or periodical payment of money for a term not exceeding her life, as, having regard to her own property, if any, her husband's property and ability, the conduct of the parties and other circumstances of the case, as may seem to the court to be just. Section 37(2) says further that if the district court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under Section 37(1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as may seem to the court to be just. For maintenance in the light of chastity of the wife Section 37(3), lays down that if the district court is satisfied that the wife in whose favour an order has been made

under this section has remarried or is not leading a chaste life, it may, at the instance of the husband vary, modify or rescind any such order and in such manner as the court may deem just. In Ramachandran Anand

Suryavanshi v.

Kalindi

Ramachandran

Suryavanshi137it was held that even when a husband's petition for divorce is dismissed, the wife is entitled to make an application for permanent alimony under Section 37 of the Special Marriage Act. Under Section 18, Hindu Adoptions and Maintenance Act, the right of a wife to claim maintenance is an incident of the status of matrimony and if the relationship of husband and wife is established as a matter of course the wife is entitled to maintenance. This section confers aa statutory right on a Hindu wife to live separately without forfeiting her claim for maintenance during the lifetime of her husband if living separately on the grounds provided therein. Section 18 deals with the maintenance of a wife. It is therefore clear that the person claiming maintenance must have the status of a wife, i.e. she must be legally married to the person against whom the claim is made. But , in O.K. Reddy v. P.V. Lakshamma 138, it was held that the expression ―Hindu wife‖ in Section 18 would ―include a wife whose marriage is solemnised, though the marriage is void‖. In this case, the claimant was married at a time when the husband had another wife ―living‖ and hence her marriage was void. The court however observed that if the expression ―Hindu wife‖ was interpreted as a wife whose marriage is valid, it would render Section 18(2)(d) otiose as there could be no legally-wedded wife if another wife was living. Section 18 confers a statutory right on a Hindu wife to claim maintenance in ordinary circumstances, i.e. living with the husband or living separately from the husband in exceptional cases. A wife‘s first duty to her husband is to fulfil her marital obligations and to remain under his roof and protection. Thus, as a rule, a wife is not entitled to separate residence from her husband, unless she proves that by reasons of his misconduct or refusal to maintain her in his own

137 138

AIR 1991 Bom 315 1976 HLR 165: (1975) 2 AP LJ 187 (HC)

place of residence or other justifying cause she is compelled to live apart from him.139 Even prior to the Hindu Adoptions and Maintenance Act, a right to separate residence and maintenance was conferred on married Hindu women under the Hindu Married Woman‘s Rights to Separate Residence and Maintenance Act, 1964 on almost similar grounds. According to Section 18(2), a Hindu wife can claim maintenance from her husband even while living separately in the following cases: (a) If he is guilty of desertion, (b) If he treats her with cruelty, (c) If he is suffering from a virulent form of leprosy, (d) If he has another wife living, (e) If he keeps a concubine in the same house, (f) If he is converted to another religion, (g) If there is any other cause justifying her living separately. Although there is a divergence of opinion among different High Courts on the question whether interim maintenance can be granted to a wife in a suit filed claiming maintenance under the section, there is a definite tilt towards granting interim maintenance. The Kerala High Court in Shanti Swaroop v. Usha Devi 140 held that there being no specific provision in the Act for interim relief, the court may resort to its inherent powers under Section 151, CPC to give interim relief if the circumstances of the case so require and the Court is satisfied that thereby it tends to promote the ends of justice. ―The inclusive definition of maintenance,‖ it was held in A.S. Mude v. N.A. Mude 141, “is indicative of the fact that in the very nature of things if the absolute right of maintenance granted by the legislature to a Hindu wife is to be effective, then, the court must necessarily have the power to pass ad interim and interim orders even though there is no express provision to that effect.‖ A revolutionary change has been made in law of adoption by the Hindu Adoption and Maintenance Act, 1956. Under this Act a female Hindu is capable to take a son or daughter in adoption. A male Hindu may also take a daughter in adoption besides having a son natural or adopted. Similarly a women 139

Siddingappa v. Sidana, (1878) 2 Mad 684. 1979 KLJ 149 141 AIR 1998 Bom 234 140

being a mother or guardian of a son or daughter may give in adoption her son or daughter. The Hindu Widow’s Remarriage Act, 1856 was brought to remove all legal obstacles to the marriage of Hindu widows. The Act was intended to render remarriage of Hindu widows valid to legalize the legitimacy of children. It conferred a benefit on those who could not remarry, but at the same time imposed a restriction on them. It was not intended to deprive those who already possessed the right to remarry of whatever rights they enjoyed in their deceased husband‘s properties. It is an enabling Act which removed the disability under which the Hindu widows were suffering and allowed them to remarry. They were given a right which they could not avail before. The property rights of the Hindu women are highly fragmented on the basis of several factors apart from those like religion and the geographical region which have been already mentioned. Property rights of Hindu women also vary depending on the status of the woman in the family and her marital status: whether the woman is a daughter, married or unmarried or deserted, wife or widow or mother. It also depends on the kind of property one is looking at: whether the property is hereditary/ ancestral or self-acquired, land or dwelling house or matrimonial property. Prior to the Hindu Succession Act, 1956 ‗Shastric‘ (Hindu Canonical) and customary laws that varied from region to region governed the Hindus. Consequently in matters of succession also, there were different schools, like Dayabhaga in Bengal in eastern India and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat in the western part and Marumakkattayam or Nambudri in Kerala in far south and Mitakshara in other parts of India, with slight variations. The Hindu Succession Act enacted in 1956 was the first law to provide a comprehensive and uniform system of inheritance among Hindus and to address gender inequalities in the area of inheritance – it was therefore a process of codification as well as a reform at the same time. Prior to this; the Hindu Women‘s Rights to Property Act, 1937 was in operation and though this enactment was itself radical as it conferred rights of succession to the Hindu widow for the first time, it

also gave rise to lacunae which were later filled by the Hindu Succession Act. It was the first post-independence enactment of property rights among Hindus – it applies to both the Mitakshara and the Dayabhaga systems, as also to persons in certain parts of South India previously governed by certain matriarchal systems of Hindu Law such as the Marumakkatayam, Aliyasantana and Nambudri systems. The main scheme of the Act is: 1. The hitherto limited estate given to women was converted to absolute one. 2. Female heirs other than the widow were recognized while the widow‘s position was strengthened. 3. The principle of simultaneous succession of heirs of a certain class was introduced. 4. Even the unborn child, son or daughter, has a right if he/she was in the womb at the time of death of the intestate, if born subsequently. Under the old Hindu Law only the ―streedhan‖ (properties gifted to her at the time of marriage by both sides of the family and by relatives and friends) was the widow‘s absolute property. and she was entitled to the other inherited properties only as a life-estate with very limited powers of alienation, if at all. Even under the 1937 Act, the concept of ―limited estate‖ continued. Section 14 of the Hindu Succession Act removed the disability of a female to acquire and hold property as an absolute owner, and converted the right of a woman in any estate already held by her on the date of the commencement of the Act as a limited owner, into an absolute owner. The provision is retrospective in that it enlarged the limited estate into an absolute one even if the property was inherited or held by the woman as a limited owner before the Act came into force. In the case of V. Tulasamma & Ors. versus V. Sesha Reddi142 the Supreme Court of India clearly laid down the scope and ambit of Sections 14(1) and (2) of the Hindu Succession Act, in which a fine distinction was made by the court recognizing the woman‘s right to property through her pre-existing right to be maintained. The Hindu Succession (Amendment) Act., 2005 has widely affected the concept of Mitakshara Hindu coparcenary. Hindu Succession Amendment Act, 142

(1977) 3 SCC 99

2005 has totally damaged the concept of Mitakshara coparcenary because the daughter has been treated like a son under the Hindu Succession Amendment Act of 2005. She becomes entitled to a share in coparcenary by birth. She by birth becomes a coparcener in her own right in the same manner as the son. She is not only conferred the coparcenary right as the son; she has been given all the right possessed by son in the coparcenary and similarly she is also bound by the similar liabilities as a son. The major achievement lies in including all daughters especially married daughters, as coparcener in joint family property. The 2005 Act does not touch separate property (except broadening the Class I heirs). But it includes daughters as coparceners in the Mitakshara joint family property, with the same rights as sons to shares, to claim partition and (by presumption) to become Karta (Manager), while also sharing the liabilities. In addition, the Act makes the heirs of predeceased sons and daughters more equal, by including as Class I heirs two generations of children of predeceased daughters, as was already the case for sons. The main significant change malting all daughters (including married ones) coparceners in joint family property is also of great importance for women, both economically and symbolically. It undermines the notion that after marriage the daughter belongs only to her husband‘s family. If her marriage breaks down, she can return to her birth home by right, and not on the sufferance of relatives. This will enhance her self-confidence and social worth and give her greater bargaining power for herself and her children, in both parental and marital families. Under the 2005 Amendment Act, married daughters will also benefit by the deletion of Section 23, of Hindu Succession Act, 1956, since now they will have residence and partition rights in the parental dwelling house. In particular, women facing spousal violence will have somewhere to go. The only negative aspect is that allowing partition could increase the vulnerability of elderly parents. A preferred alternative would have been to bar both sons quid daughters from seeking partition during their parents life-times, if the family had only one dwelling.

MUSLIM LAW Islamic Law has a unique history of development. In most system of the world, the individual has the freedom to marry or to remain celibate. Marriage is regarded all

over the world as a social institution. Under the Muslim Law it is a contract creates mutual rights and obligation which confers the status of husband and wife on the parties and of legitimacy of the children of marriage. There are certain formalities for contracting a valid marriage. If any of these requirements are not fulfilled the marriage becomes either void or irregular as the case may be. These essentials are: (1) Proposal and Acceptance: Marriage, like any other contract, stands on the pillars of proposal and acceptance. One party to the marriage makes a proposal to the other party. Nikah is complete only when the offer is accepted by the other party. The proposal and acceptance must be in the presence of the other party or in the presence of their agents so that the contract is understood before acceptance is given. It is necessary that the transaction must be completed at one meeting in the presence of witnesses. (2) Competence of Parties: Every Muslim who is entering into a contract of marriage must be competent to marry, i.e. must: (a) be of sound mind, (ii) have attained puberty. (3) No Matrimonial Prohibitions. There should also not be legal impediments or legal disabilities which means existence of certain circumstances under which marriage is not permitted. These prohibitions are: Absolute incapacity/impediment, Relative impediment, Prohibitive incapacity, Directory incapacity. In case of Muta Marriages which is observes by Shias. The agreement however has to be accompanied by an amount of dower which is specified, otherwise the agreement is void. Also, if there is no time-limit prescribed the marriage is presumed to be permanent. The children born out of muta marriages are legitimate, capable of inheriting from the father. Muta marriage is a marriage for a temporary but fixed period specifying dower. The legal incidents of muta marriage are, that no mutual inheritance rights are created, the marriage is dissolved on the expiry of the fixed period or by mutual consent or death, divorce is not recognized and if the marriage is consummated the wife is entitled to get full dower. During the period of muta marriage the

husband cannot terminate the marriage treaty but he can make a gift of the unexpired period. At the same time the husband also possesses the right to deduct a reasonable amount of mehr if the wife leaves the matrimonial home without his authority. The legal effects of a valid marriage, as given by Fyzee are: sexual intercourse becomes lawful and the children born of the union are legitimate; the wife becomes entitled to her dower; the wife becomes entitled to maintenance; the husband becomes entitled to restrain the wife‘s movement in a reasonable manner; mutual rights of inheritance are established; the prohibitions regarding marriage due to the rules of affinity come into operation; the wife is not entitled to remarry after the death of her husband or after the dissolution of her marriage, without observing iddat; where there is an agreement between the parties, entered into either at the time of the marriage or subsequent to it, its stipulations will be enforced, insofar as they are consistent with the provisions or policy of the law; and neither the husband nor the wife acquires any interest in the property of the other by reason of marriage. The Muslim Law provides various remedies for breach of the obligations of the contract of marriage. The remedies which are available to husband against wife are Divorce; Refusal of maintenance; i) Civil suit for restitution of conjugal rights and remedies which are available to wife against husband are Suit for maintenance; Refusal to live together; Claim under Section 125, Cr.P.C. When either the husband or the wife has, without lawful cause, withdrawn himself or herself from the society of the other, the aggrieved party may bring a suit for restitution of conjugal rights. A suit for restitution is basically a suit for specific performance of the contract of marriage. There is not much significance of the matrimonial relief of judicial separation in Muslim law because unbridled powers are given to a Muslim husband relating to divorce. The law however recognizes certain grounds where the wife refuses to live with the husband and will be entitled to judicial separation. In Shah Abu Liyas v. Ultaf143, it was said that a wife who has attained an age at

143

(1896) 19 All 50.

which she can render conjugal rights to her husband is entitled to stay separately while the marriage subsists. A Muslim woman was allowed to enter into a contract that the husband shall dot contract a second marriage, not remove her from conjugal domicile, pay dower within the stated period, pay fixed maintenance or shall live with her in a specified place. In case the husband is a defaulter in fulfilling the terms, a Muslim wife could live separately. In the pre-Islamic period, the husband possessed an unlimited power to divorce which included divorcing wives anytime, for any reason or even without any reason. They could revoke their divorce and divorce again as many times they preferred, accuse their wives of adultery, dismiss them and leave them, while they themselves would go exempt from any formal responsibility of maintenance or legal punishment. After the advent of Islam, the Prophet looked upon these customs of divorce with extreme disapproval. At the same time it was impossible to abolish them entirely. Therefore, a limited power of divorce was allowed, i.e. under certain conditions. He permitted to divorced parties three distinct and separate periods within which they might endeavour to become reconciled; but should all attempts at reconciliation prove unsuccessful, then in the third period the final separation became effective. The reforms of Prophet Mohammed marked a new era in the history of Eastern legislation.144 An effective check placed by Islam on frequent divorce and remarriage was that, in case of irrevocable separation, it is essential for a remarriage that the wife should marry another man and this marriage should be consummated before divorce and the wife should observe the period of iddat. It intended to control one of the most sensitive nations of the earth by acting on the strongest feeling of their nature, the sense of honours. There are many classifications given for dissolution of a Muslim marriage. However, the best classification is given by Fyzee. The death of the parties, i.e. husband or wife leads to the dissolution of nikah with the right given to husband 144

Khalid Rashid: Muslim Law, Eastern Book Co., Lucknow.

that he may marry immediately but to the wife to wait till the expiry of the period of iddat, i.e. 4 months and 10 days and if pregnant till delivery. According to the Fatwa-i-Alamgiri, when married parties disagree and are apprehensive that they cannot observe the bounds prescribed by the divine laws, the woman can release herself from the tie by giving up some property in consideration of which the husband is to give her khula. Tyabji says that marriage may be dissolved by an agreement between the parties for a consideration paid or to be paid by the wife to the husband. Such an agreement where the wife alone is desirous of having the marriage dissolved is called a khula. Mulla considers khula as divorce by mutual consent but Paras Diwan differs saying that it would be proper to call it a divorce at the instance of the wife. In Moonshee Buzul-ul-Raheern v. Luteefut-on-Nissa145 it was held that divorce by khula is complete from the moment the husband repudiates the wife. There is no period during which such a divorce can be repudiated. As regards the property which can be given in consideration of the release by the husband, all agree that it can be everything that can be given as dower. The Hedaya refers to the word mubara’at as meaning an act of freeing one from another mutually. It is mutual discharge from the marriage tie.146 As Fyzee puts it, while in khula the request proceeds from the wife to be released and the husband agrees for certain consideration usually the Mehr, in Mubara’at apparently both are happy at the prospect of getting rid of each other. 147 Khula and Mubara'at are irrevocable divorce and it is necessary for a wife to observe the period of iddat and she is entitled to maintenance. In Jani v.Mohd. Khan,148 it was held that Muhara’at is also a form of dissolution of the marriage contract, it signifies a mutual discharge from marriage claims. In this form, the aversion is mutual as both the sides desire separation. Thus it involves an element of mutual consent. Talak-e-Tafwid (Delegated Divorce) 145

(1861) 8 MIA 379. Hedaya, Vol. 1, p. 322. 147 Fyzee, p. 156. 148 AIR 1970 J&K 154. 146

This kind of talaq is unique to Muslim law and has no parallel in other systems and finds favour in both important schools of Muslims, i.e. the Shias and the Sunnis. According to Baillie, as a man may in person repudiate his wife so he may commit the power of repudiating her to herself or to a third party.15a That is, the husband may delegate the power of divorce to his wife. He may do so at the time of the marriage contract or at any time he likes. Fyzee says that the husband has the power to delegate his own right of pronouncing divorce to the wife. In Buffatin v. Salim149, a stipulation that under certain specified conditions the wife can pronounce divorce upon herself has been held to be valid, provided, first, that the option is not absolute and, secondly, that the conditions are necessary and not opposed to public policy. The delegation of the power to divorce is technically called tafweez. Tafweez is of three kinds: (a) lkhtiar (choice) giving her the authority to talaq herself, (b) Ambriyad leaving the matter in her own hand, and (c) Mashiat (pleasure) giving her the option to do what she likes. Lian The right of a wife to get a divorce on the husband‘s imputing a false charge of adultery is known as lian. The Quran and Hadith both guarantee dissolution of marriage by way of lian. If the husband has falsely and baselessly charged the wife with adultery, Islam guarantees to the wife a right to such dissolution of her marriage. According to Tyabji, if a Muslim adult husband who is of sound mind, makes a statement that his wife has been guilty of adultery he gives his wife an option of applying to the court to put the husband upon the alternatives of (a) retracting his statement, or (b) swearing four times by God that she is guilty of adultery, and imprecating upon himself the curse of God if he accuses her falsely.The mere charge levied by the husband will not dissolve the marriage automatically. A dissolution decree by a court is necessary for the termination of marriage. Faskh The term Faskh in Arabic means cancellation, revocation, abrogation. It means cancellation of marriage on account of physical defects in husband or wife. It is a

149

AIR 1950 Cal. 304.

dissolution of marriage by Kazi (Law Courts). Before the passing of the Dissolution of Muslim Marriages Act, 1939, a Muslim woman was not allowed to seek dissolution of her marriage, however she could apply for dissolution under the doctrine of Faskh on the following grounds: (a) Irregular marriage, (b) Khyar-ul-Bulugh, (c) Marriage within prohibited degrees, (d) Post-marriage conversion of the parties to Islam, (e) Impotency of husband, or (f) Lian. In K.C. Moyin v. Nafeesa150, the court held that under no circumstances could a Muslim woman unilaterally repudiate a marriage by fasklr, it had no legal sanction without seeking the intervention of the court. Finding no option to repudiate undesired marital bonds, Muslim women were forced to renounce their faith. With the passing of the Dissolution of Muslim Marriages Act, 1939, a woman married under Muslim law was entitled to obtain a decree for dissolution on the grounds provided under the Act. The Act consolidates and clarifies the Muslim law relating to suits for dissolution of marriage by women but recourse to ordinary process of the civil courts of the country must be taken. An appeal against an order of the subordinate courtt is competent under Section 96 of the Code of Civil Procedure. Under the Dissolution of Muslim Marriages Act, 1939, Section 2 mentions the grounds on which a Muslim woman may obtain a decree of divorce. These are: (i) that the whereabouts of the husband have not been known for a period of four years; (ii) that the husband has neglected the wife or failed to provide for her maintenance for a period of two years; (iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards; (iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years; (v) that the husband was impotent at the time of the marriage and continues to be so; (vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;

150

AIR 1973 Ker 176.

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage at the age of 18 years (i.e. before attaining 18 yrs): Provided that the marriage has not been consummated; (viii) that the husband treats her with cruelty, that is to say(a)habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical illtreatment, or (b) associates with women of evil repute or leads an infamous life, or (c) attempts to force her to lead an immoral life, or (d) disposes of her property or prevents her exercising her legal rights over it, or (e) obstructs her in the observance of her religious profession or practice, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Koran; (ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim law: Provided that (a) no decree shall be passed on ground (iii) until the sentence has become Final; (b) a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfies the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and (c) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground. In Mohd. Abdul Zalil Ahmed v. Marina Begum151, a wife filed an application for divorce under the Dissolution of Muslim Marriages Act, 1939. The main grounds for relief were husband's failure to perform, without reasonable cause, his marital obligation and cruelty, i.e. physical torture and ill-treatment making her life miserable.

151

AIR 1999 Gau 28.

The Act was passed to give certain rights to married woman and was not against the tenets of the Quran. The grounds for dissolution of marriage under Section 2 are, inter alia, the husband failed to perform, without reasonable cause, his marital obligation for a period of three years, the husband treats her with cruelty, that is to say, habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment. After the wife‘s petition, both the parties filed a joint petition for a decree in terms of the application filed by the wife. The family court, however, did not allow this on the ground that mutual consent was not a ground available under the Act. Against this the husband went in appeal. The Gauhati High Court, allowing the petition, held that even though there is no provision for divorce by mutual consent under the Muslim Act of 1939, it should be borne in mind that the parties can compromise on such a matter and a decree may be passed in terms of the compromise if otherwise it does not militate against the grounds as reinforced in Section 2 of the Dissolution of Muslim Marriages Act, 1939. The husband in this case had already remarried and the wife‘s marriage had been fixed up. Without divorce, she could not have married again. In view of this, the court held, ―it will not be just and proper to keep her hanging in the air‖. A decree for divorce was accordingly passed.

Iddat It is incumbent upon a woman whose marriage has been dissolved by divorce or death of her husband to remain in seclusion and to abstain from marrying another man for a certain period. This is known as the period of iddat. The most approved definition is given by Fyzee. According to him, Iddat is the term by completion of which a new marriage is rendered lawful. Ameer Ali says that it is ―an interval which the woman is bound to observe between the termination by death or divorce of one matrimonial alliance and the commencement of another‖. The object of iddat is to ascertain the pregnancy of a wife so as to avoid confusion of parentage. When a person dies leaving a widow she is prohibited from marrying before the expiration of 4 months and ten days. If the widow is pregnant at the death of her husband the iddat will not terminate until delivery or miscarriage. If delivery or its miscarriage comes before 4 months and 10 days, the remaining period will have to he observed.

The period of iddat in cases of talaq is three courses, if the woman is subject to menstruation; otherwise three lunar months. If the woman is pregnant at the time of divorce, the iddat will not terminate till delivery. If marriage is not consummated no iddat is required. If consummation has not taken place, the marriage is irregular and parties have separated, there is no iddat. But if consummation has taken place the wife is bound to observe iddat. Where a husband had divorced his wife and has died before the completion of iddat, the woman is required to undergo a fresh iddat for four months and ten days from the date of her husband‘s expiry. The period of Iddat to be observed starts from the date of divorce or death and not from the date on which information has been received. In case of death of either party during the period of iddat the other is entitled to inherit. The wife becomes entitled to maintenance, deferred dower and also prompt dower, if not paid. Mehr The custom of dower or Mehr originated in ancient times with the payments which the husband often made to their wives as a means of support and as a protection against the arbitrary exercise of the power of divorce. According to Tyabji ‗mehr or dower is a sum that becomes payable by the husband to the wife on marriage either by agreement between the parties or by operation of law‘. Mulla says, 152 ‗Mehr or dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage ‘. In Baillie’s Digest,153 it is stated that, dower is not exchange or consideration given by the man to woman for entering into contract but an effect of the contract imposed by the law on the husband as a token of respect to the woman. Abdur Raheem154 says that it is wrong to say that under Muslim law dower is a consideration proceeding from the husband for the contract of marriage, in reality it is an obligation imposed by Muhammadan law as a mark of respect for the wife. In Nusrat Begum v. Rizwan155, it was held by the court that it is a part of the consideration of her 152

agreement

to become her husband‘s wife by

Mulla: Mohammedan Law, p. 227. Baillie’s Digest, Vol. I, p.91. 154 Abdur Raheem: Muhammadan Jurisprudence, p. 334. 155 AIR 1980 All 118. 153

consummating. Even after the marriage the amount of dower may be increased by the husband during coverture; 156 and indeed in this, as in some other respects, the dower of the Mohammedan law bears a strong resemblance to the donatio propter nuptias of the Romans which has subsisted in the English law under the name of marriage settlement. In this sense, and in no other, can dower under the Muhammadan law be regarded as consideration for connubial intercourse and ―if the authors of the Arabic textbooks of Muhammadan law have compared it to price in the contract of sale, it is simply because marriage is a civil contract under that law, and sale is the typical contract which Muhammadan jurists are accustomed to refer to in illustrating the incidents of other contracts by analogy‖.157 This analogy with sale was criticisd by Sir Shah Sulaiman in Anees Begum v. Mohd. Istefa158, and Wajid Ali Khan v. Shaukat Ali Khan 159: ―It is quite obvious that the analogy of sale cannot be carried too far. The marriage cannot be regarded as purely a sale of the person by the wife in consideration for the payment of dower.‖ Mehr can be either specified or unspecified. If the amount of Mehr is settled by the parties at the time of marriage or after, it is called specified dower. The husband may settle any amount he likes by way of dower upon his wife but he is bound to pay the amount of the specified dower, however excessive or beyond his financial capacity it may be. The specified dower may either be prompt or deferred. Prompt dower is payable on demand and deferred dower is payable on the dissolution of marriage, by death or divorce. Prompt dower does not become deferred after consummation of marriage and a wife has absolute right to sue for recovery of prompt dower even after consummation but the deferred dower could not be so demanded after consummation. Instead of refusing to decree the suit for restitution of conjugal rights to which the husband is entitled, if the marriage is consummated, the court may pass a conditional decree for restitution on payment of dower. As the essential feature of prompt dower is that it is payable 156

Baillie‘s Digest, p. 111. Khalid Rashid: Mohammadan Law. 158 ILR 1933 All 743. 159 (1912) 15 Oudh Cases 127. 157

on demand, limitation begins to run on demand and refusal. The period of limitation is three years. 160 Dower which is payable on dissolution of marriage, by death or divorce is known as deferred dower. According to Ameer Ali, deferred dower is a penal sum with the object of compelling the husband to fulfill a marriage contract in its entirety. The wife is not entitled to demand payment of deferred dower but the husband can treat it as prompt and pay or transfer the property in lieu of it. The wife may also relinquish her dower and such remission is known as Hiba-e-mehr. In case it is not settled how much of the dower is prompt and what part is deferred, Shia law holds that the whole of dower is prompt whereas in Sunnis only a part is held to be prompt. In cases where the dower has not been specified at the time of marriage, it is fixed with respect to the position of the wife‘s family, beauty, status of the family, the family traditions. According to Hedaya, the wife‘s age, beauty, intellect and virtue will also be considered in fixing the dower. The Supreme Court did connect dower with the sum envisaged by Section 127(3)(b), the Court did not hold dower to be a compensation or a consideration for divorce. In Mohd. Ahmed Khan v. Shah Bano Begum 161, the Court divorced dower from divorce. The most important question raised under the case was whether under Muslim law any sum was payable ‗on divorce‘. Appellants‘ argument was that mehr was the sum payable by the husband to the wife on divorce. It was rejected and the court held, ―The fact that deferred mehr is payable at the time of dissolution of marriage, cannot justify the conclusion that it is payable on divorce. Divorce may be a convenient point of time for identifying the time at which it is payable. But the payment is not occasioned by the divorce which is what is meant by the words ‗on divorce‘ under Section 127. If mehr is the amount which the wife is entitled to receive from the husband in consideration of marriage that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves marriage. Therefore, no amount which is payable in consideration of marriage can possibly be described as an amount payable 160 161

Aquil Ahmad: Text book of Mohammedan Law. (1985) 2 SCC 556: 1985 SCC (Cri) 245.

on consideration of divorce.‖ The Court further commented that: ―The provision contained in Section 127(3) (b) may have been introduced because of the misconception that dower is an amount payable ‗on divorce‘. But that cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce.‖ The Muslim Women (Protection of Rights on Divorce) Act, 1986 further specifies through Section 3 that dower is not an amount payable on divorce or for divorce. Section 3(1)(c) says: ―Mehr or other properties of Muslim woman to be given to her at the time of divorce: (1) Notwithstanding anything contained in any other law for the time being in force, a divorced Muslim woman shall be entitled to(c) an amount equal to the sum of mehr or dower agreed to he paid to her at the time of her marriage or at anytime thereafter according to Muslim law.‖ The widow has a right of retention of estate against the unpaid dower. However, the widow‘s right of retention does not create any right of the widow on the property. She can simply retain the possession and appropriate the usufruct until her dower debt is satisfied. The widow cannot be made to account for the projects of the estate without being allowed reasonable compensation; this compensation may be allowed in the form of interest upon dower. In Maina Bibi v. Chaudhri Vakil Ahmed162 it was made clear that the possession of the property being once and lawfully acquired, the right of the widow to retain it till her dower debt is paid is conferred upon her by the Muslim law. About the fact whether the widow‘s right of retention is transferable and heritable there is a plethora of conflicting judicial opinions. It has been contended that the Mohammaden law as to maintenance is a law of imperfect obligation imposing a moral and not a legal obligation. According to Tyabji, the Muslim law of maintenance suffers in point of definiteness and this was remedied by giving extended powers to the Kazis. However, since present-day law courts do not possess such vested powers, there is a lack of definiteness in the law of maintenance.

162

(1924) 52 IA 145.

A Muslim husband is bound to maintain his wife, it is incumbent on him whether she be Muslim or kitabiyyah, poor or rich, young or old. It is only in the case of a wife that the obligation to maintain is absolute. Under Muslim law, the husband is bound to maintain his wife as long as she is faithful to him and obeys his lawful and reasonable orders. The marriage however should be a valid marriage and not one which is void or irregular. Also, the obligation does not commence if the wife has not attained puberty but commences on attainment of puberty. In Amir Mohammed v. Bushra163 it was held that if the husband has not paid prompt dower the wife does not lose her right to maintenance. Similarly in Badruddin v. Aiyasha Begum164, it was held that where a husband marries a second wife or keeps a mistress, the wife may refuse to live with the husband and still claim maintenance. A woman thus does not lose her right of maintenance if she refuses access to her husband on some lawful ground (like husband keeping a concubine or treating her with cruelty or marriage cannot be consummated owing to husband not attaining age of puberty or his absence from her without her prior permission, his illness or malformation). On the contrary, she loses her right when she is a minor, incapable of consummation, refuses free access to the husband at all reasonable times, is disobedient, never visits his house, refuses to live with him, deserts him or elopes with another person. The husband and wife or their guardians may enter into an agreement whereby a wife is entitled to recover maintenance from her husband on the happening of some specified event such as ill-treatment or disagreement or husband's second marriage, etc. On the contrary, an agreement in the marriage contract that a wife would not be entitled to maintenance is void as it is a rule that agreement should not be opposed to public policy as envisaged under Muslim law. In Bai Fatima v. Ali Mahomed Aiyeb165, a person who had a wife living and wanted to marry another had entered into an agreement with his first wife that he would pay her a certain allowance as maintenance if any disagreement took place between her and him thereafter. The agreement here was treated as opposed to public policy because it encouraged a separation between the husband and wife. 163

AIR 1956 Raj 102. (1957) All LJ 300. 165 (1912) 37 Bom 280. 164

The agreement in Muin-ud-din v. Jamid Fatima166, was executed before marriage in order to restrain the prospective husband from ill-treating his wife or behaving improperly towards her or capriciously turning her out. In view of the circumstances established, the agreement did not offend Section 23 of the Indian Contract Act, 1872 or encouraged or facilitated a separation between the plaintiff and her husband. The agreement therefore was upheld. It is customary amongst Muslims of higher rank to give the wife some sum of money periodically for her personal expenditure under the deed of marriage called Kabinnama. This is known as betel allowance or Kharch-e-pandaan or allowance for dry fruits or Mewa Khori. These are not opposed to public policy and, thus, such agreements even entered into by the guardians of minor parties to a marriage are valid and binding on the husband. Under Cr.P.C. an effort to provide maintenance is also made under Section 125, Cr.P.C. The old Section 488 of the Code of the Criminal Procedure conferred a aright on the wife to claim maintenance independent and irrespective of her personal law. The Magistrate could compel the husband to pay an allowance as per the provisions there under. In Badruddin v. Aisha Begum167, and Sarwari v. Shaft Mohammed,168 the Allahabad High Court had held that the Shariat Act of 1937 did not affect the provisions of the Cr.P.C. In case of Property Laws of Muslim women, Indian Muslims broadly belong to two schools of thought in Islamic Law: the Sunnite and the Shiite. Under the Sunnite School which is the preponderant school in India, there are four sub categories; Hanafis, Shafis, Malikis and Hanbalis. The vast majority of Muslims in India, Pakistan, Afghanistan, and Turkey are Hanafis. The Shiites are divided into a large number of sub schools, the two most important of which, so far as India is concerned are the Ismailis and the Ithna Asharis, but they form a smaller section of the Indian Muslim population. The usual practice in this sub-continent is to use the terms ‗Sunni‘ law or ‗Shia‘ law. Strictly speaking, this is inexact; by the former is meant the Hanafi Law and by the latter, the Ithna Ashari school. Broad principles of inheritance in Muslim law: Till 1937 Muslims in India 166

(1921) 43 All 650. 1957 All LJ 300. 168 (1957) 1 All 255. 167

were governed by customary laws which were highly unjust. After the Shariat Act of 1937 Muslims in India came to be governed in their personal matters, including property rights, by Muslim personal law as it ―restored‖ personal law in preference to custom. However this did not mean either ―reform‖ or ―codification‖ of Muslim law and till date both these have been resisted by the patriarchal forced in the garb of religion. Broadly the Islamic scheme of inheritance discloses three features, which are markedly different from the Hindu law of inheritance: (i) the Koran gives specific shares to certain individuals (ii) the residue goes to the agnatic heirs and failing them to uterine heirs and (iii) bequests are limited to one-third of the estate, i.e., maximum one-third share in the property can be willed away by the owner. The main principles of Islamic inheritance law which mark an advance vis-à-vis the pre-Islamic law of inheritance, which have significant bearing on the property rights of women, are: (i) the husband or wife was made an heir (ii) females and cognates were made competent to inherit (iii) parents and ascendants were given the right to inherit even when there were male descendants and (iv) as a general rule, a female was given one half the share of a male. The newly created heirs were mostly females; but where a female is equal to the customary heir in proximity to the deceased, the Islamic law gives her half the share of a male. For example, if a daughter co-exists with the son, or a sister with a brother, the female gets one share and the male two shares. The doctrine of survivorship followed in Hindu law is not known to Mohammedan law; the share of each Muslim heir is definite and known before actual partition. Rights of inheritance arise only on the death of a certain person. Hence the question of the devolution of inheritance rests entirely upon the exact point of time when the person through whom the heir claims dies, the order of deaths being the sole guide. The relinquishment of a contingent right of inheritance by a Muslim heir is generally void in Mohammedan law, but if it is supported by good consideration and forms part of a valid family settlement, it is perfectly valid. The rule of representation is not recognized, for example, if A dies leaving a son B and a predeceased son‘s son C, the rule is that the nearer excludes the more remote and, there being no representation, C is entirely excluded by B. There is however no difference between movable property and immovable property. Some of the features of the Hanafi School are being pointed out here to get a glimpse into the broad structure of the property rights of Muslim women in India. The

Hanafi jurists divide heirs into seven categories; three principal and four subsidiaries. The 3 principal heirs are Koranic heirs, Agnatic heirs (through male lineage) and uterine heirs. The 4 subsidiaries are the successor by contract, the acknowledged relative, the sole legatee and the state by escheat. The following 12 heirs constitute Class I heirs (Koranic Heirs): (a) Heirs by Affinity - Husband and Wife (b) Blood Relations - Father, True Grandfather (howsoever high), Mother, True Grandmother (howsoever high), Daughter, Son‘s Daughter (howsoever low), Full sister, consanguine sister, uterine brother, and uterine sister. Rules of Exclusion: The husband and wife are primary heirs and cannot be excluded by anyone, but they also don‘t exclude anyone either. Law fixes the share of the spouses; if they exist they reduce the residue which may be taken by the Agnatic or Uterine heirs, but they do not exclude either wholly or partly any heir. The father does not affect the share of any Koranic heir except the sisters (full, consanguine or uterine) all of whom he excludes. The mother excludes the grandmother, and the nearer grandmother excludes the more remote. The mother‘s share is affected by the presence of children or two or more brothers or sisters. Her share is also greatly affected by the existence of the husband or wife and the father. In the case of a daughter she is the primary heir. She partially excludes lower son‘s daughters, but one daughter or son‘s daughter does not entirely exclude a lower son‘s daughter. As far as the sisters are concerned, one full sister does not exclude the consanguine sister, two full sisters however exclude the consanguine sister. The uterine brother or sister is not excluded by the full or consanguine brother or sister. Another rule that requires consideration is that, ‗a person though excluded himself, may exclude others.‘ For example, in a case where the survivors are the mother, father, and two sisters: the two sisters are excluded by the father; and yet they reduce the mother‘s share to 1/6th. Class II heir (Agnatic heir): Their classification is done as follows; Males (Group I)- the agnate in his own right, Group II (females)-the agnate in the right of another, Group III – the agnate with another. The first group comprises all male agnates; it includes the son, the son‘s son, the father, the brother, the paternal uncle and his son and so forth. These in pre-Islamic law were the most important heirs; to a large extent they retain, in Hanafi law, their primacy,

influence and power. The second group contains four specified female agnates, when they co-exist with male relatives of the same degree, namely, daughter (with son), and son‘s daughter howsoever low with equal son‘s son howsoever low, full sister with full brother and consanguine sister with consanguine brother. The third group comprises the case of the full sister and consanguine sister. For example if there are two daughters and two sisters, here the daughter is preferred as a descendant to the sister who is a collateral; thus the daughter would be placed in Class I and she would be allotted the Koranic share and the residue would be given to the sister as a member of Class II. Under this system the rule that is followed is first the descendants, then the ascendants and finally the collaterals. The agnatic heirs come into picture when there are no Koranic heirs or some residue is left after having dealt with the Koranic heirs. Class III (Uterine heir): This class is constituted mainly by the female agnates and cognates. Classification is group I- descendants, which are daughter‘s children and their descendants and children of son‘s daughters howsoever low and their descendants, Group II-ascendants, which are false grandfather‘s howsoever high and false grandmothers howsoever high, Group III- collaterals, which are descendants of parents and descendents of grandparents true as well as false. Members of this class succeed only in the absence of members of Class I and Class II. They also succeed if the only surviving heir of Class I is the husband or the widow of the deceased. Property rights through marriage: The Supreme Court of India has laid down in Kapore Chand v Kadar Unnissa169, that the mahr (dower) ranks as a debt and the widow is entitled, along with the other creditors of her deceased husband, to have it satisfied out of his estate. Her right, however, is the right of an unsecured creditor; she is not entitled to a charge on the husband‘s property unless there is an agreement. The Supreme Court has laid down that the widow has no priority over other creditors, but that mahr as debt has priority over the other heir‘s claims. This right is known as the widow‘s right of retention. Will: There is a provision against destitution of the family members in the Islamic law in

169

(1950) SCR 747

that it is clearly provided that a Muslim cannot bequeath more than one third of his property. However if he registers his existing marriage under the provisions of the Special Marriage Act, 1954 he has all the powers of a testator under the Indian Succession Act, 1925. CHRISTIAN LAW The law relating to solemnization in India of marriages of persons professing Christian religion was spread over two Acts of the English Parliament and three Acts of the India Legislature. To reduce into a smaller compass and to simplify the then prevalent law on this subject by the consolidation of different enactments, the Indian Christian Marriage Act, 1872 was passed. The Act is divided into eight parts with the Preliminary section defining the expressions Church of England, Church of Scotland, Church of Rome, Church and, inter alia, Christians. In Part I of the Act (Sections 4-9) certain conditions have been laid down for a marriage to be valid under the Act. The parties to the marriage must be Christians as defined under Section 3 of the Act or at least one of them must be a Christian and the marriage must have been solemnized in accordance with the provisions of Section 5 of the Act by a person duly authorized to do so. The State Governments have been authorized to grant and revoke licences, granted in favour of certain persons, for the solemnization of marriages under the Act. As per the provisions contained in the Act, the marriage must be performed in a particular form and duly entered in the marriage register maintained for this purpose. The factum of marriage can be proved by producing entries from this register. Other evidence can also be produced for this purpose. It has been held that versions of eyewitnesses to the marriage and subsequent conduct of the couple living as husband and wife can also be good pieces of evidence to prove the factum of a Christian marriage. A Christian marriage can also take place at the house of the bride‘s mother and in that case the signing of the Marriage Register is not essential under the Act.170 A Christian marriage, even if one of its parties is a Hindu, cannot be dissolved by a decree of divorce under Section 13 of the Hindu Marriage Act.171

170 171

AIR 1960 Ori 164. (1993) MLJ 31.

A marriage performed under the Christian Marriage Act and validly registered under the provisions of Special Marriage Act is legal if the conditions laid down in that section are fulfilled.172 If a party to a marriage is a minor, the consent of the father, if he is living, or, if the father is dead, the consent of the guardian of the person of such minor, or, if there is no guardian, that of the mother is essential before marriage. The marriage of a minor without such consent is not valid.173 Sections 27-37 are included in Part IV of the Indian Christian Marriage Act, 1872. It deals with the registration of marriages solemnized under this Act between Indian Christians. These marriages should be in conformity with the rules laid down marriages are to be solemnized by clergymen of the Church of England who shall send quarterly returns to the Archdeaconry containing all entries of marriage. Each entry of such marriage is to be signed by both the parties and the person solemnizing the marriage and shall be attested by two credible witnesses. Part V contains Sections 38-59 of the Act which deal with marriages solemnized by, or in the presence of, a Marriage Registrar. When a marriage is intended to be solemnized by, or in the presence of, a Marriage Registrar, notice shall be given by one of the parties to the marriage in the format given in the First Schedule to any Marriage Registrar of the district or districts of their residence. The issuance of a certificate is essential before a marriage can be solemnized. The certificate is issued by the Marriage Registrar which lapses on the expiry of two months if marriage has not been solemnized. Then a new notice is , required to be issued. Once a Marriage is solemnized it is to be registered and entry recorded in certificate and marriage register book signed by both the parties and the Marriage Registrar. It should also be duly attested by two credible witnesses. Part VI of the Act deals with marriage of Indian Christians. This part containing Sections 60-65 lays down that there is no need of giving preliminary notice but it must be proved that the ages of the bridegroom and bride are not below 21 years and 18 years respectively, and that neither of the persons intending to be married has a wife or husband still living. 172 173

(1995) MLJ 492. AIR 1952 Punj. 277.

In Part VI for the solemnization of marriages between persons both of whom were Indian Christians but it was not so for marriages between persons of whom only one was an Indian Christian. The persons licensed under Section 9 of the said Act in diverse parts of India, through ignorance of law, permitted marriages under Part VI between persons of whom one was an Indian Christian and the other was not. Thus the Marriages Validation Act, 1892 was passed to validate such marriages solemnized in good faith. The Indian Divorce Act, 1869 regulates the law relating to divorce of persons professing the Christian religion and also other matrimonial clauses. This Act is applied if one of the parties to the proceedings is a Christian. The Act is modeled on the English law of divorce (Section 7). Part III, Section 10 of the Act provides the grounds on which a husband or a wife may petition for dissolution of marriage. The Indian Divorce Act, enacted a century ago contained certain harsh

and

discriminatory

provisions,

for

example,

there

is

gender

discrimination since for obtaining divorce husband only has to prove adultery on the part of wife whereas the wife has to prove an additional matrimonial offence like cruelty, desertion, conversion or bigamy along with adultery. Thus a need for reform in the Indian Divorce Act was long felt by jurists and even the Supreme Court and the Law Commission. In 1953, Section 10 of the Act which provides for the grounds for divorce was challenged - unsuccessfully - in Dwarka Bai v. Nainan 174. The Court dismissing the case held: ―... I consider that Section 10 as it stands is not prima facie repugnant to Articles 13 and 15 of the Constitution. It appears to be based on a sensible classification and after taking the abilities of the man and woman and the results of their acts, and not merely based on sex, when alone it will be repugnant to the Constitution....‖ However, the Supreme Court made a strong plea for introducing a change in the archaic law in Jorden Diengdeh v. S.S. Chopra,175 The constitutionality of the controversial Section 10 was again challenged in M.S. Zachariah v. Union of

174 175

AIR 1953 Mad 792. (1985) 3 SCC 62.

India176 where the court directed the Union to take a decision towards amending the Act within 6 months. The Kerala High Court in Ammini E.J. v. Union of India177 again not only highlighted the discrimination but struck down certain phrases in order to give meaningful relief to the petitioners. The court quashed the provision which requires a Christian wife to prove that her husband had been indulging in ―incestuous adultery‖ or ―adultery coupled with cruelty or desertion‖" in order to obtain divorce. Taking into consideration the above views, the Indian Divorce (Amendment) Act, 2001 was passed by which certain amendments were introduced in the Act. Section 10 of the Act was substituted by new provision and a new Section 10-A was inserted. In Part III of the Act which deals with dissolution of marriage and Part IV relating to nullity of marriage, amendments were introduced by this Amendment Act of 2001. The new Section 10 [substituted by the Amendment Act, 2001] runs as follows: “10. Grounds for dissolution of marriage- (1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the district court either by the husband or the wife would be dissolved on the ground that since the solemnization of the marriage, the respondent: (i) has committed adultery; or (ii) has ceased to be Christian by conversion to another religion; or (iii) has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; or (iv) has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or

176 177

(1990) 2 DMC 119 (Ker) AIR 1995 Ker 252.

(v) has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or (vi) has not been heard of as being alive for a period of' seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; or (vii) has willfully refused to consummate the marriage and the marriage has not therefore been consummated; (viii) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the respondent; or ix) has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or (x) has treated the petitioner with such cruelty injurious as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent. (2) A wife may also present petition for the dissolution of her marriage on the ground that the husband has, since the solemnization of the marriage, been guilkty of rape, sodomy or bestiality.‖ Instead of the old provision according to which only the adulterer could be a co-respondent under the newly- substituted Section 11, on a petition for dissolution of marriage presented by a husband or wife on the grojund of adultery the petitioner shall make the alleged adultery or adultress a co-respondent, unless the petitioner is excuse by the court from doing so on any of the following grojunds, namely— a) that the wife, being the respondent , is leading the life of a prostitute, or the husband, being the respondent, is leadind an immoral life and that the petitioner knows of no person with whom the aultry has been committed, or b) that the name of the alleged adulterer or adulteress is known to the petitioner, although the petitioner has made due efforts to discover it,

(c) that the alleged adulterer or adulteress is dead. Section 13 of the Act says that in case the Court on the evidence in relation to any such petition is satisfied that the petitioner's case has not been proved, or is not satisfied that the alleged adultery has been committed, or finds that the petitioner has, during the marriage been accessory to, or connived at, the going through of the said form of marriage, or adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with either of the respondents, then in any of the said cases the court shall dismiss the petition. According to Section 14 of the Act, the Court shall pronounce a decreedeclaring such marriage to be dissolved in case tile Court is satisfied on the evidence that tile case of the petitioner has been proved and does not find that the petitioner has been in any manner accessory to or connived at, the g-oing through of the said form of marriage, or the adultery of the other party to the marriage or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with either of the respondents. But, the Court shall not be bound to pronounce such decree if it finds that the petitioner has, during the marriage, been guilty of adultery, or if the petitioner has, in the opinion of the Court been guilty of unreasonable delay in presenting or prosecuting such petition, or of cruelty towards the other party to the marriage or of having deserted or willfully separated himself or herself from the other party before the adultery complained of and without reasonable excuse or of such willful neglect or misconduct of or towards the other party as has conduced to the adultery. In this connection no adultery shall be deemed to have been condoned within the meaning of this Act unless where conjugal cohabitation has been resumed or continued. In Nalini v. C.H. Issac178 where it was the respondent husband who created the situation resulting in the breakdown of the marriage by developing illicit intimacy with another woman and by deserting the petitioner wife it was held that as the respondent had created such circumstances which compelled the

178

AIR 1977 MP 266.

petitioner also to commit adultery, she was entitled to a decree of dissolution of marriage even though she herself was guilty of committing adultery. As per Section 15 of the Act, in any suit instituted for dissolution of marriage, if the respondent opposes the relief sought on the ground, in case of such a suit instituted by a husband, of his adultery, cruelty, or desertion or, in case of such a suit instituted by a wife, on the ground of her adultery or cruelt y or desertion, the court may in such suit give to the respondent, on his or her application, the same relief to which he or she would have been entitled to in case he or she had presented a petition seeking such relief, and the respondent shall be competent to give evidence of or relating to such adultery and cruelty or desertion. Part IV of the Indian Divorce Act deals with nullity of marriage. Any husband or wife under Section 18 may present a petition to the District Court, praying that his or her marriage may be declared null and void omn any of the following grounds (Section 19): 1) Impotency of the respondent at the time of marriage and institution of the suit. 2) Parties being within the prohibited degree of consanguinity [natural or legal or affinity]. 3) Either party is a lunatic or idiot at the time of marriage. 4) Former husband or wife of either party was living at the time of the marriage and the marriage was in force. (5) Consent of either party was obtained by force or fraud. In B.D. Cardoza v. Glady B. Cardoza179, where a wife obtained consent by concealing the fact that by operation her fallopian tubes were removed and she was incapable of giving birth to a child the petition for declaration of annulment of marriage was allowed and decree passed. A Christian wife enjoys similar rights of maintenance as a Hindu wife; but there is nothing in this Act relating to restitution of conjugal rights, judicial separation and divorce like as these rights are provided in the Hindu Marriages

179

AIR 1977 Bom 175

Act, 1955. These provisions are made in a separate Act, namely, the Indian Divorce Act, 1869. This Act applies exclusively to the Christians. Section 36 of the Indian Divorce Act provides for alimony pendente lite, that in any suit under this Act, whether it be instituted by a husband or wife, and whether or not she has obtained an order of protection, the wife may present a petition for alimony pending the suit. Such petition shall be served on the husband, and the Court, on being satisfied of the truth of the statements therein contained, may make such order on the husband for payment to the wife of alimony pending the suit as it may deem just: But alimony pending the suit shall in no case exceed one-fifth of the husband's average net income for the three years next preceding the date of the order, and shall continue, until the decree is made absolute or is confirmed, as the case may be. Section 37 of the Act provides for permanent alimony that the High Court may, if it thinks fit, on any decree absolute declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife, and the District Judge may, if he thinks fit, on the confirmation of any decree of his declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife, order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it thinks reasonable; and for that purpose may cause a proper Instrument to be executed by all necessary parties. It has been further provided in Section 37 that in every such case the court may make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the court may think reasonable: But if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the court to discharge or modify order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in part as the Court deems fit.

In Ivan Erasmus v. Zena Erasmus180 the court ruled that the object of Section 36 of the Indian Divorce Act was to enable the wife to live and to defend and prosecute the case until the rights of the parties are finally decided by the court and not to settle scores between the parties. Section 38 provides that the Court may direct payment of alimony to wife or to her trustee. In all cases in which the Court makes any decree or order for alimony, it may direct the same to be paid either to the wife herself, or to any trustee on her behalf to be approved by the Court, and may impose any terms or restrictions which to the court seem expedient, and may from time to time appoint a new trustee, if it appears to the court expedient so to do. The laws of succession for Christians and Parsis are laid down in the Indian Succession Act, 1925 (ISA). Sections 31 to 49 deal with Christian Succession. The Indian Christian widow‘s right is not an exclusive right and gets curtailed as the other heirs step in. Only if the intestate has left none who are of kindred to him, the whole of his property would belong to his widow. Where the intestate has left a widow and any lineal descendants, one third of his property devolves to his widow and the remaining two thirds go to his lineal descendants. If he has left no lineal descendents but has left persons who are kindred to him, one half of his property devolves to his widow and the remaining half goes to those who are of kindred to him. Another anomaly is a peculiar feature that the widow of a pre-deceased son gets no share, but the children whether born or in the womb at the time of the death would be entitled to equal shares. Where there are no lineal descendants, after having deducted the widow‘s share, the remaining property devolves to the father of the intestate in the first instance. Only in case the father of the intestate is dead but mother and brothers and sisters are alive, they all would share equally. If the intestate‘s father has died, but his mother is living and there are no surviving brothers, sisters, nieces, or nephews, then, the entire property would belong to the mother.

180

AIR 1982 ALL 194

A celebrated litigation and judgment around the Christian women‘s property rights is Mary Roy v. State of Kerala & others181 in which provisions of the Travancore Christian Succession Act were challenged as they severely restricted the property rights of women belonging to the Indian Christian community in a part of south India formerly called Travancore. The said law laid down that for succession to the immovable property of the intestate is concerned, a widow or mother shall have only life interest terminable at death or on remarriage and that a daughter will be entitled to one-fourth the value of the share of the son or Rs 5000 whichever is less and even to this amount she will not be entitled on intestacy, if streedhan (woman‘s property given to her at the time of her marriage) was provided or promised to her by the intestate or in the lifetime of the intestate, either by his wife or husband or after the death of such wife or husband, by his or her heirs. These provisions were challenged as unconstitutional and void on account of discrimination and being violative of right to equality under Article 14 of the Constitution. The Writ Petition was allowed by the Supreme Court and the curtailment of the property rights of Christian women in former Travancore was held to be invalid on the ground that the said state Act stood repealed by the subsequent Indian Succession Act of 1925 which governs all Indian Christians. However, the provisions were not struck down as unconstitutional since the Court felt that it was unnecessary to go into the constitutionality issue of the provisions as they are in any case inoperable due to the overriding effect of the Act. PARSI LAW Parsis are governed in the matters of marriage and divorce by the Parsi Marriage and Divorce Act, 1936. This Act has been amended by the Parsi Marriage and Divorce (Amendment) Act, 1988 to change the archaic provisions which were discriminatory in nature. The Act is divided into six chapters and deals with marriage between Parsis, matrimonial courts, matrimonial suits, children of the parties and miscellaneous provisions. Section 3 gives the requisites to validity of Parsi Marriages. According to this section no marriage shall be valid if181

AIR 1986 SC 1011: (1986) 2 SCC 209)

(a) the contracting parties are related to each other in any of the degrees of consanguinity or affinity set forth in Schedule I; or (b) such Marriage is not solemnized according to Parsi form of ceremony called ―Ashirvad‖ by the priest in the presence of two Parsi witnesses other than such priest; or (c) in the case of any Parsi (whether such Parsi has changed his or her religion domicile or not) who, if a male, has not completed twenty-one years of age and if a female, has not completed eighteen years of age. However, legitimacy has been conferred by sub-section (2) which says that notwithstanding that a marriage is invalid under any provisions of sub section (1), any child of such marriage, who would have been legitimate if the marriage had been valid, shall be legitimate. Under Section 4 of the Act, no Parsi (whether such Parsi has changed his or her religion or domicile or not) shall contract any marriage under this Act or any other law in the lifetime of his or her wife or husband, whether a Parsi or not, except after his or her lawful divorce from such wife or husband or after his or her marriage with such wife or husband has lawfully been declared null and void or dissolved, and, if the marriage was contracted with such wife or husband under the Parsi Marriage and Divorce Act, I865, or under this Act, except after a divorce, declaration or dissolution as aforesaid under either of the said Acts. Every marriage contracted contrary to the above provisions shall be void. As per Section 5 of the Act, every Parsi who during the lifetime of his or her wife or husband, whether a Parsi or not, contracts a marriage without having been lawfully divorced from such wife or husband, or without his or her marriage with such wife or husband having legally been declared null and void or dissolved shall be subject to the penalties provided in Sections 494/495, IPC for the offence of marrying again during the lifetime of a husband or wife. For the purposes of this Act, Section 7 prescribes that a Registrar shall be appointed within the local limits of the ordinary original civil jurisdiction of a High Court by the Chief Justice of such court, and without such limits by the State Government.

In Sections 4, 12, 13, 14, 15, 16 penalties have been provided for solemnizing marriage contrary to Section 4, neglect of requirements of Section 6, omitting to subscribe and attest certificate, issuing false certificate, failing to register certificate, secretly destroying or altering register. Chapter IV of the Act deals with matrimonial suits. Section 30 lays down that in any case in which consummation of marriage is from natural causes impossible, such marriage may, at the instance of either party thereto, be declared to be null and void. Under Section 31 of the Act, if a husband or wife shall have been continually absent from his or her wife or husband for the space of seven years and shall not have been heard of as being alive, within that time by those persons who would have naturally heard of him or her had he or she been alive, the marriage of such husband or wife may at the instance of either party thereto be dissolved. Under Section 32 of the Act any marriage may be dissolved on a suit by any person on any one or more of the following grounds, namely: (a) that the marriage has not been consummated within one year after its solemnization owing to the willful refusal of the defendant to consummate it; (b) that the defendant at the time of the marriage was of unsound mind and has been habitually so up to the date of the suit. The plaintiff under this ground has to prove that the plaintiff, (i) was ignorant of the fact at the time of marriage, (ii) has filed the suit within three years from the dale of marriage; (c) that the defendant has been incurably of unsound mind for a period of two years or more immediately preceding the filing of the suit or has been suffering continuously or intermittently from mental disorder of such kind and to such an extent that the plaintiff cannot reasonably be expected to live with the defendant. The term mental disorder, psychopathic disorder has been explained in the section. Mental disorder means mental illness, arrested or incomplete development of mind, psychopathic or any other disorder or disability of mind and includes schizophrenia. The term psychopathic disorder means a persistent disorder or

disability of mind (whether or not including sub normality of intelligence) which results in abnormally aggressive behaviour or seriously irresponsible conduct on the part of the defendant and whether or not it requires or is susceptible to medical treatment; (d) that the defendant was at the time of the marriage, pregnant by some person other than the plaintiff. But, divorce shall not be granted on this ground unless: (i) the plaintiff was at the time of the marriage ignorant of the fact alleged, (ii) the suit has been filed within two years of the date of marriage, and (iii) marital intercourse has not taken place after the plaintiff came to know of the fact; (e) that the defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offence. But, divorce shall not be granted on this ground if the suit has been filed more than two years after the plaintiff came to know of the fact; (f) that the defendant has since the solemnization of marriage treated the plaintiff with cruelty or has behaved in such a way as to render it in the judgment of the court improper to compel the plaintiff to live with the defendant. However, under this ground it shall be at the discretion of the court to grant a decree for divorce or for judicial separation only; (g) that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease or, where the defendant is the husband, has compelled the wife to submitt herself to prostitution. The divorce shall not be granted on this ground if the suit has been filed more than two years: (i) after the infliction of the grievous hurt, or (ii) after the plaintiff came to know of the infection, or (iii) after the last act of compulsory prostitution; (h) that the defendant is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code. However, the

divorce shall not be granted on this ground unless the defendant has prior to the filing of the suit undergone at least one year's imprisonment out of the said period; (i) that the defendant has deserted the plaintiff for at least two years; (j) that an order has been passed against the defendant by a Magistrate awarding separate maintenance to the plaintiff, and the parties have not had marital intercourse for one year or more since such decree or order; (k) that the defendant has ceased to be a Parsi by conversion to another religion. The divorce on this ground shall not be granted if the suit has been filed more than two years after the plaintiff came to know of the fact; (l) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passin g of a decree for judicial separation in a proceeding to which they were parties; or (m) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or more after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. No decree for divorce shall be granted under the above-mentioned clause if the plaintiff has failed or neglected to comply with an order for maintenance passed against him under Section 40 of this Act or Section 488 of the Code of Criminal Procedure, 1898 or Section 125 of the Code of Criminal Procedure, 1973. Section 32-B added by the Amendment Act of 1988 provides for divorce by mutual consent. It says that, subject to the provisions of the Act, a suit for divorce may be filed by both the parties to a marriage together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. A suit under this section can only be filed after one year has lapsed since the date of the marriage.

The court after hearing the parties and after making such inquiry as it thinks fit; to ascertain that the consent of either party to the suit was not obtained by force or fraud, pass a decree declaring the marriage to be dissolved with effect from the date of decree. The provisions oi maintenance are contained in the Parsi Marriage and Divorce Act, 1936. The same were substituted in Sections 39 and 40 by the Amendment Act of 1988. Section 39 of the Parsi Marriage and Divorce Act, 1936, which contains provisions of alimony pendente lite says: ―Where, in any suit under this Act, it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the suit, it may, on the application of the wife or the husband, order the defendant to pay to the plaintiff the expenses of the suit and such weekly or monthly sum, during suit, as, having regard to the plaintiff‘s own income and the income of the defendant, it may seem to the court to be reasonable.‖ The provisions regarding permanent alimony and maintenance are contained in Section 40 of the Parsi Marriage and Divorce Act, 1936, which states that: ―(1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on an application made to it for the purpose by either the wife or the husband, order that the defendant shall pay to the plaintiff, for her or his maintenance and support, such gross sum or such monthly or periodical sum, for a term not exceeding the life of the plaintiff, as having regard to the defendant's own income and other property, if any, the income and other property of the plaintiff, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the movable or immovable property of the defendant. (2) The Court, if it is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the

instance of either party, vary, modify, or rescind any such order in such manner as the court may deem just. (3) The Court if it is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.‖ These provisions are as amended by the Amendment Act, 1988. The Parsi law provides for payment of alimony to the wife or her trustee under Section 41 of the Parsi Marriage and Divorce Act, 1936. It says that in all cases in which the court shall make any decree or order for alimony, it may also direct that the same be paid either to the wife herself or to any trustee on her behalf to be approved by the court. The Amendment further provides that the court may direct the said to be paid to the guardian appointed by the court on imposition of such terms which may seem expedient to the court. The court also has power to appoint a new trustee or guardian ;; from time to time. The laws of succession for Christians and Parsis are laid down in the Indian Succession Act, 1925 (ISA). Sections 50 to 56 deal with Succession for Parsis. Prima facie the property rights of the Parsis are quite gender just. Basically, a Parsi widow and all her children, both sons and daughters, irrespective of their marital status, get equal shares in the property of the intestate while each parent, both father and mother, get half of the share of each child. However, on a closer look there are anomalies: for example, a widow of a predeceased son who died issueless, gets no share at all. The Code of Criminal Procedure, 1973, a secular code, provides a comprehensive scheme for the maintenance of wife, children and aged parents. The provisions are contained in Sections 125-128, CrPC. The proceedings under this section are not punitive but of a civil nature. The remedy provided under the sections are in the nature of civil rights.182 The object of the provisions of Chapter IX, CrPC is

182

Zahid Ali v. Fahmida Begum, 1988 (3) Crimes 373 (Bom).

to provide a speedy remedy by a summary procedure to enforce liability in order to avoid vagrancy.183 It was held in Mani v. Jay Kumari184 that provisions of Chapter IX, CrPC should be liberally construed as the primary object is to give social justice to women and children and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves to do so. These provisions provide a speedy remedy to those who are in distress. They are intended to achieve this social purpose. This section gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves. Its provisions apply and are enforceable whatever may be the personal law by which the persons concerned are governed.185 This section is a measure of social justice and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of, the Constitution of India.186 In Shah Bano case the Supreme Court has clearly explained the rationale behind Section 125, CrPC to make provision for maintenance to be paid to a divorced Muslim wife and this is clearly to avoid vagrancy or destitution on the part of a Muslim woman.187 In Malan v. Balasaheb Bhimrao Gawade188, it was held that it is not intended to provide for a full and final determination of the. status and personal rights of the parties. The proceedings are simple in nature, providing a speedy and simple remedy. Where the wife proves performance of certain marriage ceremonies, it is immaterial whether the same satisfies all the requirements of a valid marriage. It is for the husband to have gone to a competent civil court and got his marriage annulled. In the absence of a declaration by a civil court about the legality or otherwise of the marriage the court has to presume that the said marriage is legal. It was observed that an applicant had to wait for several years for getting relief from the court. Therefore it was felt that the following provisions should be made by the CrPC (Amendment) Act, 2001.

183

Madhavi v. Thupran, (1987) 3 Crimes 183 (Ker), 1998Cr LJ 3708 (Mad) 185 Nanak Chand v. Chandra Kishore, (1969) 3 SCC 802: 1970 SCC (Cri) 127. 186 Captain Ramesh Chander v. Veena Kaushal, 1979 Cr LJ 3. 187 (1985) 2 SCC 556. 188 1989 Cr LJ 675 (Bom). 184

(1)

Provision for interim Maintenance Allowance. During the pendency of

the proceedings the Magistrate may order payment of interim maintenance allowance and such expenses of the proceedings as the Magistrate considers reasonable, to the aggrieved person. (2) Ceiling on Maintenance Allowance abolished. The ceiling of rupees five hundred has been repealed as with the cost of living index consistently rising, retention of a maximum ceiling is not justified. If a ceiling is prescribed and retained, it would require periodic revision taking into account the periodic inflation which would unnecessarily be time consuming. Accordingly consequential changes mere made to remove the ceiling of maintenance allowance. The Law Commission in its 59th report recommended the institution of a family court. The Commission mentioned in its report the efforts of other countries to create a separate family court. The constant demand for gender justice also fuelled the demand for family courts. The object of the family court is to promote conciliation and secure speedy settlement of domestic disputes relating to marriage or family affairs. The family court movement believes that ordinary civil courts with their conservative atmosphere are not fit to deal with family dispute.189 In India the Family Courts Act, 1984 was passed to provide for the establishment of family courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs. Delving into the object of the Act the A.P. High Court in P. Srihari v. K.P. Sukunda held that the object and intendment of the Family Courts Act is to try the family matters arising out of marriages of the parties including the maintenance and adoption of the children as also the dispute relating to property and that is clear from the preamble of the Act itself.

4.2

Women and Industrial Law

Women constitute a significant part of the workforce in India but they lag behind men in terms of work participation and quality of employment. According to

189

Mathew, P.D. and Bakshi, P.M.: Family Courts, Indian Social Institute Delhi, 1986.

Government sources, out of 407 million total workforce, 90 million are women workers, largely employed (about 87 percent) in the agricultural sector as labourers and cultivators. In urban areas, the employment of women in the organized sector in March 2000 constituted 17.6 percent of the total organized sector. The Equal Remuneration Act was passed in 1976, providing for the payment of equal remuneration to men and women workers for same or similar nature of work. Under this law, no discrimination is permissible in recruitment and service conditions except where employment of women is prohibited or restricted by the law. (Section 4). The deciding factor in cases of equal wages is the "same or similar work" principle. However this principle leads to adoption of indirect means for fixing lower wages for women like dividing the jobs into Grade I and Grade II and then employing women in the lesser grade, thus overriding the equal remuneration provision. In Air-India v. Nargesh Meerza190, the air hostesses of Air-India brought a case against their employers, contending that they were being discriminated against assistant flight pursers who did more or less the same kind of work on flights but had better service conditions, later date of retirement and other facilities. In order to set at rest all doubts with regard to violation of the provisions of the Equal Remuneration Act, the government issued a notification which unequivocally stated that the ―differences in regard to pay, etc. of these categories of employees are based on different conditions of service and not on the difference of sex‖. This notification was issued in pursuance of Section 16 of the Equal Remuneration Act, 1976 which empowers the appropriate government to make a declaration subsequent to a close consideration of circumstances that discrimination in remuneration is based on a factor other than sex. The differential thus arising is not punishable. The Supreme Court accepted this declaration and held that if at the threshold die basic requirements of two classes are absolutely different and poles apart even though both the classes may during the flight work as cabin crew, they would not become one class of service. In Mackinnon Mackenzie v. Audrey D’Costa191, the court held that in deciding whether the work is of same or similar nature and in ascertaining whether the differences are of any practical importance the authority should take a broad view of 190 191

(1981) 4 SCC 335. (1987) 2 SCC 469.

the matter. This is because the very concept of similar work implies "differences in detail". These differences should not defeat the claims of equality on trivial grounds but look at the duties actually performed and not those theoretically possible. According to Section 5 of the Equal Remuneration Act, no employer shall, while making recruitment for the same work or work of a similar nature, make any discrimination against women unless employment of women is prohibited or restricted by any law. Thus in the matter of recruitment or any condition of service subsequent to recruitment such as promotions, training or transfer the employer is prohibited from making a discrimination against women only on grounds of sex. This prohibition is similar to the one contained in-Article 16(1) of the Constitution. For the purpose of implementation of the provisions of the Act and providing increased employment opportunities to women, the appropriate Government shall constitute one or more Advisory Committees and appoint Inspectors. All cases of contraventions of the provisions of the Act or claims or complaints for discriminatory payment are to be heard by the appropriate Government or by such other officer as it may appoint in this behalf. After analyzing the Act it is clear that the Equal Remuneration Act, 1976 provides for equal pay for men and women doing the same or similar work. It also forbids discrimination on the basis of sex at the time of recruitment. The Act, however, does not apply to the unorganized sector where most women work. The unorganized sector is that where there is no formal or informal structure which gives labourers an identity for the purposes of bargaining or decision-making against the employer or government administrations like construction workers, domestic workers, etc. According to Section 16 (b) of the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, in categories of other facilities, it shall be the duty of every contractor employing inter-State migrant workmen in connection with the work of an establishment to which this Act applies to ensure equal pay for equal work irrespective of sex. The Maternity Benefit Act, 1961 is an Act passed with the object of regulating the employment of women in certain establishment for certain periods before and after child birth and to provide for maternity benefit and other benefits. According to Section 5 every woman is entitled to maternity benefit for the period of her actual absence before delivery and six weeks after delivery. The rate of

benefit is the average of the woman's wages during the three months preceding such absence or Re. one a day, whichever is higher. In B. Shah v. Labour Court, Coimbatore,192 the question whether Sunday also must be computed in calculating the amount of maternity benefit came for the consideration of the Supreme Court. It was held that in the light of Section 5, subsections (1) and (3), the term week signifies a cycle of 7 days including Sundays. The Legislature intended that computation of maternity benefit is to be made for the entire period of the woman worker's actual absence which includes Sundays and such other wage less holidays falling within that period of absence and that the benefit is not confined to the intermittent periods of six days excluding the Sundays. The two periods occurring in Section 5(i) seems to emphasize the continuous running of time and recurrence of the cycle of 7 days. The computation ensures that the woman worker gets for the said period not only the amount equaling 100 per cent of the wages which she was previously earning in terms of Section 3(n) of the Act but also the benefit of the wages for all the Sundays and rest days falling within the aforesaid two periods which would ultimately be conducive to the interest of both the woman workers and her employer. A woman will be eligible to maternity benefit only if she has actually worked for not less than 160 days during the 15 months preceding the date of her expected delivery. Those days in which she was laid off are also included in this 160 days. Maximum period of maternity benefit is fixed for 12 weeks ; six weeks before the delivery and six weeks after the delivery. If the woman dies during this period the maternity benefit will be confined to date of her death. If she dies after delivering the child then the maternity benefit continues to the entire period. If the child also dies then the benefit will extend to the date of death of the child. Every woman entitled to payment of maternity benefit under this Act shall, notwithstanding the application of the Employees State Insurance Act, 1948, to the factory or other establishment in which she is employed, continue to be so entitled until she becomes qualified to claim maternity benefit under Section 50 of the E.S.I. Act. Every woman (a) who is employed in a factory or other establishment to which the provisions of the Employees State Insurance Act, 1948, apply; (b) whose

192

AIR 1978 SC 12.

wages (excluding remuneration for overtime work) for a month exceed Rs. 1,000 per month; and (c) who has actually worked in an establishment for a period of not less than 160 days in the 12 months immediately preceding the date of expected delivery, shall be entitled to the payment of maternity benefit under this Act. Under Section 6 a woman entitled to maternity benefit may give notice to her employer claiming the amount and giving date of availing of the leave. The employer shall permit her absence till the expiry of the six weeks after delivery. The employer is bound to pay maternity benefit amount in advance for the period before the delivery on proof of pregnancy. The amount towards the subsequent six weeks must be paid within 48 hours of the production of proof that she delivered a child. The authority to give notice will not deprive the woman of her right to maternity benefit or any other amount under the Act if she is otherwise entitled to such benefit or amount. If the woman who is entitled to maternity benefit or any other amount under the Act dies before receiving such benefit or amount, the benefit or amount shall be payable by the employer to her nominee or legal representative as the case may be. Under Section 8 every woman entitled to maternity benefit under the Act, was also entitled to receive from her employer a medical bonus of Rs. 25 in case no prenatal confinement and postnatal care is provided for by the employer free of charge. Under Section 9 in case of miscarriage a woman shall be entitled to leave with wages at the rate of maternity benefit for a period of six weeks immediately following the day of her miscarriage. The liability arises only on production of such proof of miscarriage and that such miscarriage is not one punishable under the Indian Penal Code. Under Section 10 a woman is entitled to leave for one month with maternity benefit over and above the leave under Section 6, on proof of illness due to pregnancy, delivery, premature birth or miscarriage.2 Under Section 11 the employer is required to give two nursing breaks every day to a woman worker who has delivered a child until the child attains the age of 15 months. Section 12 prohibits the employer from discharging or dismissing a woman worker due to her absence permitted by this Act. Such dismissal or discharge will not deprive the woman of her right to maternity benefit and medical bonus. However, if the dismissal is due to the proved misconduct of the woman, she will not be entitled to

the above right. The woman can prefer an appeal against such dismissal or termination of employment order. Section 13 makes it clear that the usual daily wages of a woman entitled to maternity benefit should not be reduced due to assignment to her of less arduous work under Section 4(3) or due to the giving of two nursing breaks under Section 11. The Employees’ State Insurance Act, 1948 is to provide for certain benefits to employees in case of sickness, maternity and employment injury and to make provisions for certain other matters like funeral expenses, dependants' benefit, medical benefit and disablement benefit. The main object of the Act is to evolve a scheme of socio-economic welfare, making elaborate provisions in respect of it. This Act extends to the whole of India. As per this Act, insured women workers get sickness benefit, disablement benefit, dependants' benefit, medical benefit and funeral expenses along with insured men workers. In addition to the above benefits insured women workers also get maternity benefit. The Act states that periodical payments to an insured woman in case of confinement or miscarriage or sickness arising out of pregnancy, confinement, premature birth of child or miscarriage, such women being certified to be eligible for such payments by an authority specified in this behalf by the regulations, is hereinafter referred to as Maternity Benefits. The maternity benefit is payable for confinement, miscarriage sickness arising out of pregnancy, confinement, premature birth of child, or miscarriage, and death. Under Section 50 of the Employees’ State Insurance Act, 1948, the qualification of an insured woman to claim maternity benefit, the conditions subject to which such benefit may be given; the rates and period thereof shall be or such as may be prescribed by the Central Government. The Central Government made the Employees' Slate Insurance (General) Regulations, 1950 in exercise of powers conferred by Section 97 of the Employees’ State Insurance Act, 1948. The Factories Act, 1948 has aim to consolidate and amend the law and regulate labour in factories. This Act is complete from all points of view and implements several provisions of international conventions like the ILO‘s Code of Industrial Hygiene and periodical examination of young persons. The Act makes detailed provisions regarding health, safety and welfare of workers. Separate provisions are made for employment of young persons. Exclusive provisions have

been made for employment of women in Factories. Thus, the Factories Act is a labour welfare enactment codified with a view lo regulates working conditions in factories and to provide health, safety and welfare measures. The Factories Act, 1948 contains some provisions especially for the welfare of women. Section 27 of the Factories Act, 1948 says that no woman or child shall be employed in any part of a factory for pressing cotton in which a cotton opener is at work. However, if the feed end of a cotton opener is in a room separated from the delivery end by a partition extending to the roof or to such height as the inspector may in any particular case specify in writing, women and children may be employed on the side of the partition where the feed end is situated. The requirement is not met if there is a door made in a partition between the portions of the room and that the door is shown to be open at a particular time or even although it is shut yet it is not locked or other effective means taken to prevent it from being opened by a woman or child wishing to go into the press room. It has been provided under Section 19(1) of the Factories Act that (a) sufficient latrine and urinal accommodation of prescribed types shall be provided, conveniently situated and accessible to workers at all times when they ale at the factory. (b) separate enclosed accommodation shall be provided for male and female workers which shall be adequately lighted and ventilated and no latrine or urinal shall, unless specially exempted in writing by the Chief Inspector, communicate with any workroom except through an intervening open space or ventilated passage. These accommodations shall be in a clean and sanitary condition at all times. Sweepers shall be employed whose primary duty would be to keep the latrines, urinals and washing places clean. Section 48 of the Factories Act, 1948 specifically provides that in every factory where more than 30 women workers are ordinarily employed they should be provided with suitable rooms for the use of their children below six years of age. Such rooms should provide adequate accommodation along with adequate light and ventilation. The employer has been made responsible to maintain such rooms in a clean and sanitary condition. He should appoint a well-trained woman to take care of the children and infants. In this context the State Government may make rules prescribing the location, standards in respect of construction, accommodation, furniture and other equipments of the rooms of creches. It may also require additional facilities to be given for the care of children belonging to women workers including

suitable provisions for washing and changing their clothing, free milk or refreshment and the facility for the mothers for feeding their children. According to Section 22(2) of the Factories Act, 1948 no woman or young person shall be allowed to clean, lubricate or adjust any part of a prime mover or of any transmission machinery while the prime mover or transmission machine is in motion or to clean, lubricate or adjust any part of any machine if the cleaning, lubrication or adjustment thereof would expose the woman or young person to risk of injury from any moving part either of that machine or of any adjacent machinery. According to Section 66 the provisions of this chapter shall be supplemented by the further restrictions that no woman shall be required or allowed to work in any factory except between the hours of 6 a.m. and 7 p.m. The State Government in this regard has been given powers to vary the limits but even such variation shall not authorize the employment of any woman between the hours of 10 p.m. and 5 a.m. The State Government has also been authorized to make rules providing for exemption from restrictions of working women in fish-curing or fish-canning factories where employment of women beyond the hours of work specified is necessary to prevent damage to or deterioration of any raw material. If in the manufacturing process or operation carried on in a factory, any person employed in it is exposed to any risk of bodily injury, poisoning or disease, the State Government vide Section 87(b) can make rules relating to prohibiting or restricting the employment of women, adolescents or children. The rights of the workers have been elaborated in Section 111-A of the Factories Act, 1948. According to Section 111-A of the Factories Act, 1948, every worker either male or female shall have the right to: (1)

obtain from the occupier information relating to workers' health and

safety at work, (2)

get trained within the factory whenever possible, or, to get himself or

herself sponsored by the occupier for getting trained at a training centre or institute, duly approved by the Chief Inspector, where training is imparted for workers' health and safety at work, (3) represent to the Inspector directly or through his or her representative in the matter of inadequate provision for protection of his/her health or safety in the factory.

Chapter VI of the Buildings and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 related with hours of work, welfare measures and other conditions of service of building workers. Section 35 deals with Creches. In which In every place wherein, more than fifty female building workers are ordinarily employed, there shall be provided and maintained a suitable room or rooms for the use of children under the age of six years of such female workers. Such rooms shall (a) provide adequate accommodation; (b) be adequately lighted and ventilated; (c) be maintained in a clean and sanitary condition; (d) be under the charge of women trained in the care of children and infants. Under the Mines Act, 1952, a separate Section 46 deals with matters relating to employment of women in mines. As per Section 46 of the Mines Act, 1952: (1)

No woman shall, notwithstanding anything contained in any other law,

be employed— (a) in any part of a mine which is below ground; (b) in any mine above ground, except between the hours of 6 a.m. and 7 p.m. (2)

Every woman employed in a mine above ground shall be allowed an

interval of not less than eleven hours between the termination of employment on any one day and the commencement of the next period of employment. (3)

Notwithstanding anything contained in sub-section (1), the Central

Government may by notification in the Official Gazette vary the hours of employment above ground of women in respect of any mine or class or description of mine, so however, that no employment of any woman between the hours of 10 p.m. and 5 a.m. is permitted thereby. The prohibition of employment in a mine which is below ground is made in the interest of women as the process or activity in mines is hazardous and causes material impairment to the health of women. In the Plantations Labour Act, 1951 following Provisions can be noted down: Section 9: Conservancy- (1) There shall be provided separately for males and females in every plantation a sufficient number of latrines and urinals of prescribed types so situated as to be convenient and accessible to workers employed therein. Section 12: Creches- (1) In every plantation wherein fifty or more women workers (including women workers employed by any contractor) are

employed or were employed on any day of the preceding twelve months, or where the number of children of women workers (including women workers employed by any contractor) in twenty or more, there shall be provided and maintained by the employer suitable rooms for the use of children of such women workers. Explanation- For the purposes of this sub-section and sub-section (1-A), ―children‖ means persons who are below the age of six years. (1-A) Notwithstanding anything contained in sub-section (1), if, in respect of any plantation wherein less than fifty women workers (including women workers employed by any contractor) are employed or were employed on any day of the preceding twelve months, or where the number of children of such women workers is less than twenty, the State Government, having regard to the number of children of such women workers deems it necessary that suitable rooms for the use of such children should be provided and maintained by the employer, it may, by order, direct the employer to provide and maintain such rooms and thereupon the employer shall be bound to comply with such direction. (2) The rooms referred to in sub-section (l) or sub-section (1-A) shall(a) provide adequate accommodation; (b) be adequately lighted and ventilated; (c) be maintained in a clean and sanitary condition; and (d) be under the charge of a woman trained in the care of children and infants. (3) The State Government may make rules prescribing the location and the standards of the rooms referred to in sub-section (l) or sub-section (1-A) in respect of their construction and accommodation and the equipment and amenities to be provided therein. Section 25: Night work for women and children- Except with the permission of the State Government, no woman or child worker shall be employed in any plantation otherwise than between the hours of 6 a.m. and 7 p.m. Provided that nothing in this section shall be deemed to apply to midwives and nurses employed as such in any plantation. Section 32: Sickness and maternity benefits- (1) Subject to any rules that may be made in this behalf, every worker shall be entitled to obtain from his employer-

(a) in the case of sickness certified by a qualified medical practitioner, sickness allowance, and (b) if a woman, in case of confinement or expected confinement, maternity allowance, at such rate, for such period and at such intervals as may be prescribed. (2) The State Government may make rules regulating the payment of sickness or maternity allowance and any such rules may specify the circumstances in which such allowance shall not be payable or shall cease to be payable, and in framing any rules under this section the State Government shall have due regard to the medical facilities that may be provided by the employer in any plantation. The Beedi and Cigar Workers (Conditions of Employment) Act, 1966 defined that beedi and cigar making is an area where a large number of women and children are employed. They are then subjected to exploitation in terms of wages and working hours. Long hours of work and fewer wage compelled the Government to enact the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 which provided benefits to women workers. Under Section 25 of the Act it has been laid down that no woman or young person shall be required to work on any industrial premises except between 6 a.m. and 7 p.m. This has been provided to ensure the welfare and safety of women workers. The Shops and Establishment Act is a state legislation act and each state has framed its own rules for the Act. The object of this Act is to provide statutory obligation and rights to employees and employers in the unauthorized sector of employment, i.e., shops and establishments. This Act is applicable to all persons employed in an establishment with or without wages, except the members of the employers‘ family. This Act lays down the following rules: Working hours per day and week. Guidelines for spread-over, rest interval, opening and closing hours, closed days, national and religious holidays, overtime work. Employment of children, young persons and women. Rules for annual leave, maternity leave, sickness and casual leave, etc. Rules for employment and termination of service. In respect of occupational hazards concerning the safety of women at workplaces, in 1997 the Supreme Court of India in the case of Vishakha vs. State of

Rajasthan [(1997) 6 SCC 241] held that sexual harassment of working women amounts to violation of rights of gender equality. As a logical consequence it also amounts to violation of the right to practice any profession, occupation, and trade. The judgment also laid down the definition of sexual harassment, the preventive steps, the complaint mechanism, and the need for creating awareness of the rights of women workers. Implementation of these guidelines has already begun by employers by amending the rules under the Industrial Employment (Standing Orders) Act, 1946.

4.3

Women and Criminal Laws In the penal laws of all countries, sexual offences against women occupy a

significant place and out of all the crimes, the one which shocks the conscience, and shakes its roots, and is the most heinous, is rape. The only crime, perhaps, where instead of being sympathized with a victim is socially ostracized and morally degraded with a lifelong stigma on her dignity and character. The mental torture is deep and agony unbearable. In such a state, the victim tries to get justice by appealing to the courts, holding the provisions of the penal laws close to her heart and hoping against hope that justice will be rendered to her. Indian Penal Code, 1860 Under Section 294 the obscene act or song must cause annoyance. Though annoyance is an important ingredient of this offence, it being associated with the mental condition, has often to be inferred from proved facts. However, another important ingredient of this offence is that the obscene acts or songs must be committed or sung in or near any public place. Section 304-B- Dowry death—(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected lo cruelty or harassment by tier husband or any relative of her husband for. or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death.

In Premwati v. State of M.P.193 it was held that Section 304-B(1) would be attracted not only when the death is caused by someone but also when die death occurs ―unnaturally‖. If occurrence of death is preceded by cruelty or harassment by in-laws for or in connection with a dowry demand and if me connection between the two is established, mere occurrence of death is enough though death may not have been caused by the in-laws. Sections 312 and 316 of the Indian Penal Code deal with abortion as crime. Section 313 deals with abortion without the consent of the woman. The punishment could even be life imprisonment. In cases where an indecent assault is made upon the person of a woman, but where rape is not committed- the culprit is charged with Section.354 of IPC, because unless the Court is satisfied that there was determination in the accused to gratify his passion at any cost, and inspite of all resistance, such person is not charged with rape. Section.354 of the IPC prescribes punishment for anyone who assaults or uses criminal force to any woman with intent to outrage her modesty. Kidnapping is of two kinds, kidnapping from India and kidnapping from lawful guardianship (Sec. 359). Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorized to consent on behalf of the person, is said to kidnap that person from India (Sec 360). Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such person of unsound mind, without the consent of such guardian is said to kidnap such minor or person from lawful guardianship. In this concern, the words "lawful guardian" include any person lawfully entrusted with the care of such minor or other person. But this Section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good'faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose (Sec 361). Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct (hat person (Sec 362).

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1991 Cri LJ 268 (MP)

Whoever kidnaps any person from India or from lawful guardianship shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine (Sec 363). Kidnapping, abducting or inducing woman to compel her marriage, etc.- (Sec 366)- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine, and whosoever, by means of criminal intimidation as defined in this Code, or of abuse of authority or any method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another shall also be punishable as aforesaid (Sec 366). Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine (Sec 366-A). Whoever imports into India from any country outside India or from the State of Jammu and Kashmir, any girl under the age of twenty-one years with intent that she may be, or knowing it likely to be that she will be forced or seduced to illicit intercourse with another person, shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine (Sec 366-B). Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc. (Sec 367)- Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to put in danger of being subjected to grievous hurt or slavery, or to unnatural lust of any person, knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Wrongfully concealing or keeping in confinement kidnapped or abducted person (Sec. 368)-Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same

manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose that with or for which he conceals or detains such person. The ingredients of this offence are: (i) that the person has been kidnapped; (ii) that the accused knew that that person had been kidnapped; (iii) that the accused having such knowledge, wrongfully conceals or confines that person. As to the second ingredient, an inference has to be drawn by Court from different circumstances, whether there has been wrongful confinement or concealment is a matter which may be considered from the facts and circumstances of the case. Kidnapping or abducting child under ten years with intent to steal from its person (Sec 369)-Whoever kidnaps or abducts any child under the age of ten years with the mtenhon of raking dishonestly any movable property from the person of such child, shall be punished with imprisonment of either description for term, which may extend to seven years and shall also be liable to fine. Buying or disposing of any person as a slave (Sec 370) Whoever imports, removes, buys or disposes of any person as a slave, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Habitual dealing in slaves (Sec.371)-Whoever habitually imports, exports, removes, buys, sells, traffics or deals in slaves, shall be punished with imprisonment for life, or with imprisonment of cither description for a term not exceeding ten years, and shall also be liable to fine. Selling minor for purposes of prostitution (Sec.372)— Whoever sells, lets to hire, or otherwise disposes of any person under the age of eighteen years with intent that such person shall, at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any lawful and immoral purpose, or knowing it to be likely that such person will, at any age, be employed or used for any such purposes, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. When a female under the age of eighteen years is sold, let for hire or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel the person so disposing of such female shall, until tile contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution.

In this context, ―illicit intercourse‖, means sexual intercourse between persons not united by marriage, or by any union of which, though not amounting to a marriage, is recognized by the personal law or custom of the community to which they belong or, where they belong to different communities, or both such communities as constituting between them a quasi-marital relation. Buying minor for purposes of prostitution etc. (Sec. 373) — Whoever buys, hires or otherwise obtains possession of any person under the age of eighteen years with intent that such person, shall, at any age, be employed or used for the purpose of prostitution or illicit Intercourse with any person or for any unlawful purpose, or knowing 1 lo be likely that such person shall be punished with imprisonment of either description for a term which may extend lo ten years, and shall be liable to fine. Any prostitute or any person keeping or managing a brothel, who buys, hires, or otherwise obtains possession of a female under the age of eighteen years shall, until contrary is proved, be presumed to have obtained possession of such female with that intent that she shall be used for the purpose of prostitution. In this context also, ―illicit intercourse‖ has the same meaning as in Section 372 mentioned above. This section (Sec. 373) aims at the punishment of those persons who are buyers or hirers in any such transactions as those provided in Section 372. However, this section (Sec. 373) does not apply to a case where a man solicits a girl to have sexual intercourse with him. Rape (Sec 375)- A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions;— 1.Against her will; 2. without her consent; 3. with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt; 4. with her consent, when the man knows, that he is not her husband, that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married; 5. with her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or, the administration by him personally or through another of any stupefying or unwholesome substance she is unable to understand the nature and consequence to that to which she gives consent; 6. with or without her consent when she is under sixteen years of age.

Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. Punishment for rape has been provided in Section 376- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: But, however, the Court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for term of less than seven years. (2) Whoever,(a) being a police officer commits rape— (i) within limits of the police station to which he is appointed; or (ii) in the premises of any station-house whether or not situated in the police station to which he is appointed; or (iii) on a woman in his custody or in the custody of a police officer subordinate to him; or (b) being a public servant, 'takes advantage of his official position; and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or (c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women‘s or children‘s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or (d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e) commits rape on a woman knowing to be pregnant; or (f) commits rape on a woman when she is under twelve years of age; or (g) cornmits gang rape— shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: However,

the Court may, for adequate and special reasons to be mentioned of either description for a term of less than ten years. Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape. In this context, ―women‘s or children‘s institution‖ means an institution whether called an orphanage, or a home for neglected women or children or a widows‘ home or by any other -name which is established and maintained for the reception and care of women or children and ―Hospital‖ means the precincts of the hospital

and

includes

the precincts of any institution for the reception and

treatment of persons during convalescence or of persons requiring medical attention and rehabilitation. (3) Notwithstanding anything contained in sub-section (2), whoever commits rape on a woman when she is under ten years of age shall be punishable with death. (4) Notwithstanding anything contained in this section whoever, being a relative of a woman commits rape on such woman when, she is under eighteen years of age, shall be punishable with death. Intercourse by a man with his wife during separation (Sec. 376-A)- Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage, without her consent, shall be punished with imprisonment of either description for a term, which may extend to two years and shall also be liable to fine. Intercourse by public servant with woman in his custody (Sec. 376-B)Whoever being a public servant takes advantage of his official position and induces or seduces, any woman, who is in his custody as such, public servant or in the custody of a public servant subordinate to him, to have sexual intercourse with hint, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of cither description for a term which may extend to five years and shall also be liable to fine. Intercourse by Superintendent of jail, remand home, etc. (Sec. 376-C)Whoever being the Superintendent or manager of a jail, remand home, or other place of custody established by or under any law for the time being in force or of a women‘s or children‘s institution takes advantage of his official position and induces or seduces any female inmate of such jail, remand home, place or institution to have sexual intercourse with him, such sexual intercourse not amounting to the offence of

rape shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine. ―Superintendent‖ in relation to a jail, remand home or other place of custody or a women‘s or children‘s institution includes a person holding any other office in such jail, remand home, place or institution by virtue of which he can exercise any authority or control over its inmates. Intercourse by any member of the management or staff of a hospital with any woman in that hospital (Sec. 376-D) - Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse, with any woman in that hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine. In Delhi Domestic Working Women’s Forum v. Union of India,194 suggested the formulation of a scheme for awarding compensation to rape victims at the time of convicting a person found guilty of rape. The Supreme Court suggested that the Criminal Injuries Compensation Board or the Court should award compensation to the victims by taking into account pain, suffering and shock as well as loss of earning due to pregnancy and the expenses of childbirth if this occurs as a result of rape. Unnatural offences (Sec.377) - Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine Penetration is sufficient to constitute the Carnal intercourse necessary to the offence described in this section. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage (Sec.493) — Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description which may extend to ten years and shall also be liable to fine. Marrying again during life time of husband or wife (Sec. 494) - Whoever having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. This section does not intend to any person whose

194

(1995) 1 SCC 14.

marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife at the time of the subsequent marriage, shall have been continually absent from such person for (he space of seven years, and shall not have been heard of by such a person as being alive within that time; provided the person contracting such subsequent marriage shall, before such marriage, takes place, inform the person with whom such marriage is being contracted, of the real state of facte so far as the same was within his or her knowledge. Section 495 provides that whoever commits the offence defined above in the preceding section, having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Marriage ceremony fraudulently gone through without lawful marriage (Sec. 496)- Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married, knowing that he is not hereby lawfully married, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Adultery (Sec 497) - Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe, to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine or with both. In such a case, the wife shall not be punishable as an abettor. Enticing or taking away or detaining with criminal intent a married woman (Sec. 498)- Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife, of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals, or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both. Section 509 of IPC, comes into effect when there is an intention to insult the modesty of any woman by the offender by uttering any word, making any sound or gesture or by exhibiting any object, with the intention that such word or such sound be

heard, or that such gesture or object be seen by such a woman, or by intruding upon the privacy of such a woman. Section 498A- Husband or relative of husband of a woman subjecting her to cruelty: Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Satvir Singh v. State of Punjab195 reflected me scope of die sections in the IPC. The Court held that Section 306 IPC, read with Section 113-A of the Indian Evidence Act has only enabled the court to punish a husband or his relatives who subjected a woman to cruelty as envisaged in Section 498-A. IPC and such woman commits suicide within seven years of her marriage. It is immaterial for Section 306. IPC whether cruelly or harassment was "soon before her death" or earlier. If it was "soon before her death" the special provision in Section 304-B, IPC would be invokable, otherwise Section 306, IPC can be resorted to. Immoral Traffic (Prevention) Act, 1956.

Prostitution has been in vogue in human society throughout the world since times immemorial. But in ancient societies it was not a trade or profession. No woman was compelled to prostitution. The prostitutes were called Ganikas, that is, the wife of the people. It might have been as a social need of those persons, who could not be married or remained unmarried, and it might have been a State necessity since neither man nor woman can check their sexual lust which is natural and rampant. But in due course, monied persons or persons in position began to satisfy their sexual lust as a luxury with the prostitutes and prostitution homes developed and organized by brothel keepers who exploited the prostitute ladies like their slaves compelled to indulge in the profession. Initially the prostitutes were made the daughters, sisters or mothers of the prostitution traders who developed as a class of prostitutors generally known as Bedhias, solely living on prostitution and doing no work except to bring customers and supply prostitutes at brothels, hotels and other places. They began to purchase girls and supply them to brothels. They kidnap even the minor girls and press them in brothels for running their prostitution trade, which practice has become brutal and

195

(2001) 8 SCC 633.

satanic and the industry of prostitution is flourishing due to the benevolence of the rich traders and great personages in the key posts of the State with the help of the police who take the industry a great fruitful source of getting corrupt money. This hellish state of affairs needed some drastic legislation to check this demonic industry of prostitution. Under Section 3, 4, 5, 6, 7, 8 and 9 of Immoral Traffic (Prevention) Act, 1956, punishes for keeping a brothel, for allowing premises to be used as brothel, for living on the earning of prostitution, for procuring, inducing or taking person for the sake of prostitution, for detaining a person in premises where prostitution is carried on, for prostitution in or in the vicinity of public places, seducing or soliciting for prostitution, custodial seduction.

Where a female offender is found guilty of an offence under Section 7 or Section 8 and the character, state of health tad mental condition of the offender and the other circumstances of the case are such that it is expedient, it shall be lawful for the court lo pass in lieu of a sentence an order for detention in a corrective institution for correction for not less than two years and not more than five years. However, the court shall after giving an opportunity to the offender to be heard record reasons for such order (Section 10). The Magistrate, under Section 20 may on receiving information and after issuing notices and making inquiry conclude that a person is a prostitute and it it is in the interest of the general public, he may order removal of such prostitute from a particular place and prohibit her/his re-entry. In Bholanath Tripathi v. State of U.P.196, public interest litigation was filed alleging that a woman was held in confinement and was being used for earning money by prostitution. The Supreme Court directed the Commissioner appointed to make enquiry and if satisfied prima facie about the allegations, to remove her to a safe place and secure her production before the Court. The police and other authorities of the State Government concerned were also directed to afford assistance to the Commissioner. The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994

196

1990 Supp SCC 151

The objectives of this Act is to It was proposed to prohibit pre-natal diagnostic techniques for the determination of sex of foetus for the purpose of female fetecide. Such abuse of scientific techniques was found discriminatory against female sex and also affecting the dignity and status of women. Hence, legislation was required to regulate the use of such techniques and to provide deterrent punishment to stop such inhuman act. Chapter II of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 provides that no Genetic Counseling Centre, Laboratory or Clinic shall conduct or employ any person who does not possess the prescribed qualification to help in conducting activities relating to prenatal diagnostic techniques unless (hey arc registered under the Act. Such techniques have also been prohibited to be conducted at a place other than the registered place. (Section 3) Section 4 of Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 permits the use of prenatal diagnostic techniques only for detecting chromosomal abnormalities. genetic metabolic diseases, hsemoglobinopathies. sexlinked genetic diseases, congenital anomalies or any other abnormality that may be specified. Section 4 also mentions the conditions on the fulfillment of any one of it only the prenatal diagnostic technique shall be used by the person qualified. The conditions are: (1) When the pregnant woman is above 35 years of age. (2) Where the pregnant woman has already undergone two or more spontaneous abortions or foetal loss. (3) Where the pregnant woman has been exposed to potentially dangerous agents like drugs, radiation, infection or chemicals. (4) Where the pregnant woman has a family history of mental retardation or physical deformities such as spasticity or any other genetic disease. The Act keeps it open for any other condition to be added as essential. Thus the regulations provide that if a woman is pregnant and is tested Rh +ve pre-diagnostic technique may be legally applied to determine whether the child is also positive or not. If there is any chromosomal deformity this technique is permitted and

may be of use to find out any foetal abnormality. Because the conditions have been specified, no relative or husband can seek or encourage the conduct of any prenatal diagnostic techniques. Section 6 prohibits Genetic Centres. Laboratories and Genetic Clinics from conducting any prenatal diagnostic technique tests including ultrasonography for determining the sex of a foetus. The same prohibitions apply to an individual also. When otherwise, for determining any abnormality, the prenatal diagnostic techniques arc used and the sex of the foetus is known Section 5 specifically prohibits communication of sex of foetus to the pregnant woman or her relatives. Any form of communication by words, signs, etc. is prohibited. Thus. Sections 5 and 6 prohibit the determination or communication of the sex of the foetus Section 5 lays down certain conditions which have to be fulfilled before carrying out a prenatal diagnostic technique on a pregnant woman. These are: (1) Obtain her consent after giving her an explanation in the language she understands. (2) Give her a copy of her written consent. (3) Explain the side effects and consequences of using the technique on the pregnant woman. It has been specified that unless and until these conditions are fulfilled no prenatal diagnostic test can be carried out. Section 22 of the Act provides that, no person, organization or Genetic Centre should advertise in any form facilities available for prenatal determination of sex at such centres or laboratories. Therefore, no publicity can be given as to the existence or availability of the facility. Publicity includes publishing or distribution of notices, circulars, labels, wrappers or other documents and includes visible representations made by light, sound, smoke or gas. If an advertisement is given in contravention of the above provision, the same is punishable with imprisonment up to 3 years or with fine up to Rs 10,000.

In CEHAT v. Union of India197, further directions were issued by the Supreme Court. The Centre and State Governments were directed to issue advertisements to create awareness in the public that there should not be any discrimination between male and female child, and to publish annually the reports of appropriate authorities for the information of the public. National Monitoring and Inspection Committee is to continue to function for the effective implementation of the Act. Certain Slates were directed to appoint State Supervisory Boards and multi-membered appropriate authorities. The Medical Termination of Pregnancy Act, 1971 is an Act, which provides for the termination of certain pregnancies by registered medical practitioners and matters connected therewith or incidental thereto. It was enacted by the Parliament in the twenty-second year of the Republic of India in 1971.

The Indecent Representation of Women (Prohibition) Act, 1986 This Act was brought to check the increasing immoral reproduction of women as a means of advertisement, film productions, publications and other means of spreading business or trade by unfair allurements. The society is rushing forward by leaps and bounds to exhibit obscenity by unfair and ugly representation of women which encourages illicit corruption and immorality in the society. Provisions relating to obscenity have been included in Sections 292-294 of the Indian Penal Code, I860. They deal with sale, hire, distribution, public exhibition circulation^ import, export or advertisement- etc. of any matter which is obscene. Sections 292 and 293, IPC were amended in 1969 to make the existing laws more definite in explaining the term obscenity. In order to make the law relating to publication of obscene matters deterrent, the section provided enhanced punishment. The main features of the Act are to check indecent representation of women in any way tending to derogate or to degrade women by their business propaganda as a means of advertisement creating attraction to the public at large to the obscene display of the body of a female. This Act checks and puts restraints on all such immoral advertisements, publications and sale of such goods on the covers of which ugly display of women's body is displayed. 197

(2003) 8 SCC 396.

Prohibition of advertisements containing indecent representation of womenNo person shall publish, or cause to be published, or arrange or take part in the publication or exhibition or, any advertisement which contains indecent representation of women in any form (Section 3). Prohibition of publication or sending by post of books, pamphlets, etc. containing indecent representation of women—No person shall produce or cause to be produced, shall, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form (Section 4). Penalty for contravention of the prohibitions under this Act— Section 6 provides that any person who contravenes the provisions of Section 3 or Section 4 shall be punishable on first conviction with Imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and in the event of a second or subsequent conviction with imprisonment for a term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lac rupees. In Neelam Mahajan Singh v. Commissioner of Police198 it was held: ―We need not to attempt to bowdlerize all literate am) thus rob speech and expression. A balance should be maintained between freedom of speech and expression and public decency and morality but when the latter is substantially transgressed the former must give way.‖ The Commission of Sati (Prevetnion) Act, 1987

In emotional idiocy women burnt themselves to death with their husbands' dead bodies. This was an evil tradition in ancient India. Raja Ram Mohan Rai opposed this custom because not only the women themselves out of their free will committed this evil suicide, but their relatives abetted them to become sati and sometimes they forcefully got this evil act of suicide committed by die widows whom they did not want to maintain in their families. This evil custom had spread throughout India and in order to prevent this evil, the Commission of Sari

198

1996 Cri LJ 2725 (Cal).

(Prevention) Act, 1987 was brought by the Central Government in the Parliament and got passed. Punishments for offences relating to sari—are provided in Sections 3,4 and 5 of the Act These offences are:— (1) Attempt to commit Sati, (2) Abetment of Sati, and (3) Glorification of Sati. Attempt to commit Sati- is made punishable in Section 3, that notwithstanding anything contained in the Indian Penal Code, 1860, wherever any person attempts to commit sati and does any Act towards the commission of sati shall be punishable with imprisonment for a term which may extend to one year or with fine or with both: But the special Court trying an offence under this Section shall, before convicting any person, take into consideration the circumstances leading to the commission of the offence, the act committed and the state of mind of the person charged with the offence at the time of the commission of the act and all other relevant factors. Abetment of Sati- Section 4 of the Act relates to all those who take pan in burning or burying the woman, whether as sightseers or as organizers. They are the principal accused in a case of the most heinous kind of murder. The section makes punishable: (a) abetment of commission of Sati, (b) abetment of attempt to commit Sati. In cases of abetting commission of Sati, death or imprisonment for life along with fine is provided. The abetment of attempt to commit Sati has been provided with a punishment of imprisonment for life and fine. Glorification of Sati- Section 5 makes the act of glorification of sati punishable. It provides that whoever does any act for the glorification of sati shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and with fine which shall not be less than five thousand rupees, but which may extend to thirty thousand rupees. Persons convicted of an offence under Section 4 to be disqualified from inheriting properties. Section 18 lays down that a person convicted of an offence under Section 4(1) in relation to the commission of Sati shall be disqualified from inheriting the property of the person in respect of whom such sati has been committed

or the property of any other person which he would have entitled to inherit on the death of the person in respect of whom such sati has been committed. The Dowry Prohibition Act, 1961 The Dowry Prohibition Act is a small penal statute consisting of only ten sections. Punishment is prescribed for both giving and taking of dowry' 6 and it was laid down that dowry if given was to be treated as a trust in favour of the bride for whose benefit it was given. The offences were made non-cognizable, bailable and non-compoundable under the Act. The Central Government was authorized to make rules for carrying out the purposes of the Act. Section 3(1) of the Dowry Prohibition Acl thus imposes a punishment on a person who gives or takes or abets the giving or taking of dowry. The 1984 and 1986 amendments have introduced significant changes. They enhanced the punishment from six months to two years and fine from Rs 5000 to Rs 15,000. Abetment of a dowry offence will include not only instigation but also conspiracy and aiding in the commission of the offence. A mere association with an offender without any instigation is however not abetment. The Dowry Prohibition (Maintenance of the Lists of Presents to the Bride and the Bridegroom) Rules, 1985 provide for the listing of the following: a) Presents given to the bride, which is to be maintained by her. (b) Presents given to the bridegroom to be maintained by him. Rule 2(3) further provides that— (i) The list should be in writing; (ii) The list should contain the following information: (1) Brief description of each present; (2) Approximate value of present; (3) Name of the giver of present; (4) If related, a description of relationship with the bride. It is the option of the bride or the bridegroom to obtain the signatures on the list of ihe other party or any relation or any other person(s) present at the time of the marriage. The above provisions help a woman in recovering her stridhan after she leaves or is forced to leave her matrimonial home. Section 4 of the Dowry Prohibition Act prescribes for penalty for demanding dowry directly or indirectly. The amendment has brought two changes, namely, the minimum and maximum punishments have been prescribed and no sanction of the Stale Government is required for the prosecution of die offender.

S. Gopal Reddy v. State of A.P199, held that the demand, even if made before die marriage, amounts to an offence under Section 4 of the Act. In this case the court held that mere demand of dowry is sufficient to bring home the offence to an accused and that any demand of money, property or valuable security made from the bride or her parents or other relatives by the bridegroom or his parents or vice versa would fall within the mischief of dowry under the Act. Section 4-A has been introduced to prohibit open lenders for dowry through advertisements or display of any present made at the lime of marriage in the form of cash, ornaments, clothes or any other articles. Section 5 says that any agreement for the giving and taking of dowry is void and it shall not have any value in the eyes of the law. Therefore, a suit for recovery of such amount agreed to be given as dowry is not maintainable and cannot be decreed. The Domestic Violence Act, 2005 The Act is an extremely progressive one not only because it recognizes women who are in a live in relationship but also extends protection to other women in the household, including sisters and mothers thus the Act includes relations of consanguinity, marriage, or through relationships in the nature of marriage, adoption, or joint family thus, 'domestic relationships' are not restricted to the marital context alone. In fact the Act has given a new dimension to the word abuse because unlike the primitive notion abuse includes actual abuse or threat of abuse, whether physical, sexual, verbal, economic and harassment by way of dowry demands. The information regarding an act or acts of domestic violence does not necessarily have to be lodged by the aggrieved party but by ―any person who has reason to believe that‖ such an act has been or is being committed which means that neighbours, social workers, relatives etc. can all take initiative on behalf of the victim. [Chapter III - Sec. 4.] This fear of being driven out of the house effectively silenced many women and made them silent sufferers. The court, by this new Act, can now order that she not only reside in the same house but that a part of the house can even be allotted to her for her personal use even if she has no legal claim or share in the property. [Chapter IV- Sec. 17]

199

(1996) 4 SCC 596.

Section18 of the same chapter allows the magistrate to protect the woman from acts of violence or even ―acts that are likely to take place‖ in the future and can prohibit the respondent from dispossessing the aggrieved person or in any other manner disturbing her possessions, entering the aggrieved person's place of work or, if the aggrieved person is a child, the school. The respondent can also be restrained from attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral, written, electronic or telephonic contact. The respondent can even be prohibited from entering the room/area/house that is allotted to her by the court. (Section 18d) The Act allows magistrates to impose monetary relief and monthly payments of maintenance. The respondent can also be made to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of domestic violence and can also cover loss of earnings, medical expenses, loss or damage to property and can also cover the maintenance of the victim and her children. (Section 20) Section 22 allows the magistrate to make the respondent pay compensation and damages for injuries including mental torture and emotional distress caused by acts of domestic violence. Section 31 gives a penalty up to one year imprisonment and/or a fine up to Rs. 20,000/- for and offence. The offence is also considered cognizable and non-bailable.

4.4

Jurisdictional Procedural Protection of Women The fight by various women‘s organizations for reforms of the law of rape

revolved around many issues. One of the ardent demands was for in camera trials. Section 327 of the Code of Criminal Procedure, 1973, stipulates that a trial should be in an open court where the general public should have access to it. A majority of rape cases went unreported because of this section of the Cr.P.C. In a number of eases, the trauma of humiliation in the process of cross-examination was unbearable. Also in certain cases, the projection of rape victims as offenders by glamorizing the offender and romanticizing the victim cast aspersion on die victim. In such cases a balance had

to be maintained between freedom of speech and expression and preserving the dignity of woman as well as giving a fair trial. Section 174, CrPC specially empowers police officers lo make investigation into cases of suicides and other unnatural or suspicious deaths. The object of the proceeding is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what the apparent cause of the death is. Section 174(3) gives discretion to a police officer not to send a body for postmortem examination only in one case, namely, where there can be no doubt as to the cause of death. The amendment introduced by the Criminal Law (Second Amendment) Act, 1983, makes it mandatory for the police officer to send the body for post-mortem examination if: (a) the case involves suicide by a woman within seven years of her marriage; (b) the case relates to the death of a woman within seven years of her marriage in circumstances raising reasonable suspicion that the woman was the victim of an offence; (c) that any relative of the woman made a request in mat behalf when she died within seven years of her marriage; and (d) there is any doubt regarding the cause of death. Section 176, CrPC provides for inquiry by Magistrates into cause of death in police custody and into other cases of unnatural or suspicious deaths. The 1983 amendment similarly empowered the Magistrate to have, in these four situations, an inquiry into the cause of her death either instead of or in addition to. the investigation held by the police officer. By amending the First Schedule lo the Code of Criminal Procedure, the offence of dowry death has been made cognizable, non-bailable and triable by the court of session. Dowry offences are made cognizable for the purpose of investigation of such offences and for the purposes of matters other than matters referred to in Section 42, CrPC and the arrest of a person without warrant or without an order of Magistrate. The Law Commission in its 84th Report, went into various questions relating to ―Rape and its Allied offences: Some questions of Substantive Law and Procedure‖. The Commission weighed die pros and cons of the demand for an in camera trial in the light of the fact that an open court is an essential ingredient of a fair trial but at die same time recommended an amendment in Section 327, Cr.P.C. The government

drafted the Criminal Law (Amendment) Bill, 1980 on the basis of the Law Commission's recommendations and in 1983, publishing or making known the identity of a rape victim became an offence under Section 228-A of the Indian Penal Code, I860, Section 228-A thus prevents social victimization or ostracism of the victim of a sexual offence. In R. Lakshmi Pathi v. S. Ramalingham200, the accused was alleged to have revealed die name of the rape victim in their newspaper for which the complaint was filed. It was held that the complaint was valid but the publisher was exonerated as publication was at the instance of a recognized welfare Institution. To make the amendments in the IPC more effective, amendment in the Indian Evidence Act, 1872 was considered to be necessary. Thus, Section 113-B. which raised presumption as to dowry death was added. Section 113-B runs as: ―113-B. Presumption as to dowry death.—when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death, such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. The provisions of this section, although mandatory in nature, simply enjoin upon the court to draw such presumption of dowry death on proof of circumstances mentioned therein which amounts to shifting the onus on the accused to show that the married woman was not treated with cruelty by her husband soon before her. This was held in Krishna Lal v. Union of India201. Where the death was caused by strangulation and evidence available (in Hem Chand v.

State of Haryana202) showed that dowry was being demanded and the

accused husband was also subjecting his deceased wife lo cruelty, it was held that the presumption under the section applied with full force. By insertion in the Criminal Law (Amendment) Act, 1983 of Section 114-A, the recommendation of the Law Commission‘s 84th report was implemented. The Law Commission therefore recommended a new Section 114-A to be inserted under the Indian Evidence Act which runs as follows: ―In a prosecution for rape under clause (a) to clause (f) of sub-section (2) of Section 376 of IPC (45 of 1860), where sexual intercourse by the accused is proved 200

1998 Cri LJ 3683 (Mad) 1994 Cri LJ 3472 (P&H) 202 (1994) 6 SCC 727 201

and the question is whether it was without ihe consent of die woman alleged to have been raped and she states in her evidence before die Court that she did not consent, the Court shall presume that she did not consent.‖ In Nawab Khan v. State of M.P.203, the prosecutrix stated in her evidence that she did not consent to the sexual intercourse. The Court accordingly held that by virtue of this section the burden of proving consent shifted to the accused. The section comes into play on proof by the prosecution that sexual intercourse had, in fact, taken place and on the victim girl saying before the Court that there was no consent on her part. Section 112 of the Evidence Act provides that the fact that any person was born during continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

203

1990 Cri LJ 1179.

CHAPTER - V

GOVERNMENT’S INITIATIVES TOWARDS WOMEN EMPOWERMENT

5.1

National Commission for Women It is often said that the status and position of women in society is the best way

to understand a civilization, its progress and its shortcomings. In case of India, women have come a long way from women sages and scholars in the Rig Vedic period to women in the armed forces, IT sector, politics, industry and other significant areas while balancing their role as a daughter, wife and mother. This journey towards modernization has not been easy. Women have had to fight the traditional Indian male-dominated society to emerge as stronger and independent entities. While all these are positive developments, cases of rape, harassment at workplace and dowry deaths are rampant. Illiteracy and ignorance about their rights are still prevalent among a majority of the women. It was in this background that the Committee on the Status of Women in India (CSWI) recommended nearly two decades ago, the setting up of a National Commission for Women to fulfill the surveillance functions to facilitate redressal of grievances and to accelerate the socio-economic development of women. The principle of gender equality is enshrined in the Indian Constitution. The Preamble, promotes ―Equality of status and of opportunity‖; the Fundamental Rights enshrined in Part III of the Indian Constitution and Directive Principles enshrined in Part IV of the Constitution all promote gender equality. The Constitution not only grants equality to women but has also made special provisions for ensuring equality Thus, as per the recommendations of the CSWI and in order to uphold the mandate of the Constitution, in January 1992, the National Commission for Women (NCW), was set up as a statutory body under the National Commission for Women Act, 1990 (Act No. 20 of 1990 of Government of India) to carry out the mandate set by the Act as well as CSWI to review the constitutional and legal safeguards for women; recommend remedial legislative measures, facilitate redressal of grievances and advise the Government on all policy matters affecting women.

Importance of The Commission Women as a class neither belong to a minority group nor are they regarded as a backward class. India has traditionally been a patriarchal society and therefore women have always suffered from social handicaps and disabilities. It thus became necessary to take certain ameliorative steps in order to improve the condition of women in the traditionally male dominated society. The Constitution does not contain any provision specifically made to favor women as such. Though Article 15(3), Article 21 and Article 14 are in favor of women; they are more general in nature and provide for making any special provisions for women, while they are not in themselves such provisions. The Supreme Court through interpretive processes has tried to extend some safeguards to women. Through judgments in cases such as Bodhisattwa Gautam v. Subra Chakraborty ( AIR 1996 SC 922) and the Chairman Rly Board v. Chandrima Das( AIR 2000 SC 988) case, where rape was declared a heinous crime, as well as the landmark judgment in Visakha v. State of Rajasthan, (AIR 1997 SC 3011) the courts have tried to improve the social conditions of Indian women. But these have hardly sufficed to improve the position of women in India. Thus, in light of these conditions, the Committee on the Status of Woman (India) as well as a number of NGOs, social workers and experts, who were consulted by the Government in 1990, recommended the establishment of a apex body for woman. The lack of constitutional machinery, judicial ability and social interest formed the impetus and need for the formation of the National Commission for Women. It is apparent from the prior mentioned conditions and problems that women in India, though in a better position than their ancestors, were handicapped to a great extent in the early 1990s and these handicaps and injustices against Indian women prompted the Indian Government to constitute the first National Commission for Women in 1992. The Constitution of the Commission The National Commission for Women Act, 1990 (Act No. 20 of 1990 of Government of India) constituted the National Commission for Women as a statutory body. The first commission was constituted on 31st January 1992 with Mrs. Jayanti Patnaik as the Chairperson.

The Act of 1990 under Section 3 provides for the constitution of the commission. This section lays down that the commission will consist of one Chairperson, who is committed to the cause of women, five members from various fields and a member secretary who shall be an expert in the fields of management, organizational structure, sociological movement or a, member of the civil service of the Union. All the members of the commission are nominated by the Central Government. Each person holds office for a period of five years or till he attains the age of seventy. At least one member each of the Commission must belong to a Scheduled Caste or Scheduled Tribe. In addition to the abovementioned members of the Commission, the Commission has the power to set up committees with members from outside the Commission. Mandate of the Commission Section 10(1) of the Act of 1990 provides a fourteen-point mandate for the National Commission for Women. A general overview of the mandate has been provided and a few significant clauses have been discussed. Broadly speaking the Commission‘s mandate can be divided under four heads– (a) Safeguard of rights of women granted by the constitution and laws, (b) Study problems faced by women in the current day and make recommendations to eradicate these problems, (c) Evaluating the status of Indian women from time to time and (d) Funding and fighting cases related to women‘s rights violations. (a) Safeguard Rights of Women: these are enshrined in sub clauses (a) – (e) of Section 10 (1) of the Act. They expect the Commission to examine the safeguards for women provided by the law and the Constitution. The Commission is to submit reports about these safeguards and make recommendations about the implementation of the same.

The Commission is also expected to review these safeguards periodically to identify and remedy any lacunae and inadequacies. The Commission is also empowered to take up cases involving the violation of the cases. (b) Study of problems faced by women: these are mainly enshrined in sub clauses (g) – (i) of Section 10 (1) of the Act. According to these sub clauses, the Commission is to carry out studies involving the problems arising out of discrimination against woman and provide remedies for these problems. As per this part of the mandate, the Commission is also expected to advise the government about the socio – economic development

of

women

based

on

these

studies.

(c) Evaluating status of Indian women - sub clauses (j) – (n) of the aforementioned section of the Act deals with these responsibilities of the Commission. The Commission, according to these guidelines, has the responsibilities of the evaluating the status of Indian women under the Union Government and State Governments. It is to inspect and evaluate the conditions of detention homes and other such facilities in which women may be detained and deal with the appropriate authorities in order to improve the condition of such places. These evaluations are to be submitted to the Government through periodic reports and recommendations. Fighting cases related to women‘s rights violation: certain clauses in the mandate also empower the Commission to take up cases related to discrimination against women, women‘s right violation and fund cases which involve the rights of a large number of women. Sub clause (f) of Section 3 of the Act of 1990 empowers the Commission to take suo- moto notice of matters relating to women‘s right deprivation, non – implementation of laws enacted to protect women and non – compliance of policies and guidelines for mitigating hardships of women, in such matters the Commission is empowered to approach the appropriate authorities and seek remedies. Functions of the Commission As violence and discrimination against women is multi – faceted in nature, the Commission has adopted a multi – pronged strategy to combat the problem. This strategy is broadly divided into three categories – the counseling, the legal and the research functions of the Commission.

1. Complaint and Counseling Functions: As the problem of violence against women is multifaceted, the NCW has adopted a multi-pronged strategy to tackle the problem. The Commission has initiated generation of legal awareness among women, thus equipping them with the knowledge of their legal rights and with a capacity to use these rights. It assists women in redressal of their grievances through pre-litigation services. To facilitate speedy delivery of justice to women Parivarik Mahila Lok Adalats are organized in different parts of the country to review the existing provisions of the Constitution and other laws affecting women and recommending amendments thereto, any lacunae, inadequacies or shortcomings in such legislations. It organizes promotional activities to mobilize women and get information about their status and recommend paradigm shift in the empowerment of women. The Complaints and Counseling Cell of the commission processes the complaints received oral, written or suo moto under Section 20 of the NCW Act. The complaints received relate to domestic violence, harassment, dowry, torture, desertion, bigamy, rape, refusal to register FIR, cruelty by husband, deprivation, gender discrimination and sexual harassment at work place. The ―core‖ unit of the Commission is considered to be the Complaint and Counseling Cell and it processes the complaints received oral, written or suo moto under Section 10 of the NCW Act. The complaints received relate to domestic violence, harassment, dowry, torture, desertion, bigamy, rape and refusal to register FIR, cruelty by husband, derivation, gender discrimination and sexual harassment at work place. During 1999, the Commission received 4329 complaints related to the above types of crimes against women. This cell adopts a three-point method to deal with the mentioned problems: Investigations by the police are expedited and monitored. Family disputes are resolved or compromised through counseling. In case of serious crimes, the Commission constitutes an Inquiry Committee, which makes spot enquiries, examines various witnesses, collects evidence and submits the report with recommendations. Such investigations help in providing immediate relief and justice to the victims of violence and atrocities.

The implementation of the report is monitored by the NCW. There is a provision for having experts/lawyers on these committees. A number of such inquiry committees have been set up over fourteen years in order to combat many serious problems. Committees were set up to investigate the alleged police atrocities and misbehavior with girl students of Kurukshetra University the case of rape of a 30 year old woman in Safdarjung Hospital, the case of a gang rape of 15 years old girl at Lucknow and other such serious and heinous crimes against women. The number of complaints registered with this cell has increased from a total of 4293 in 1999 – 2000 to a total of 5462 in 2003 – 04. This increase may be interpreted as a positive sign and one signaling the success of this wing of the Commission. It also indicates the increasing trust that women are investing in the Commission as a whole. The NCW holds public hearings on issues affecting large sections of women such as crime against women, women in unorganised labour sector, women in agriculture and women of minority groups. The deposition at these enquiries helps in appreciating the problems and initiating remedial action. As a measure of arousing public awareness and breaking bureaucratic apathy, public hearings under vigilant activists like Justice V.R. Krishna Iyer and Swami Agnivesh were held to understand problems and expedite solutions in the case of Kol women of Bundelhekhand; deserted women of hill districts in U.P., rape case of girl children of Tamil Nadu , unorganised women labour and minority communities of Tamil Nadu; creche workers‘ enquiry and tribal women of Dindigul, Tamil Nadu. 2. Legal Functions: As mentioned in 2.3, a large part of the Commission‘s mandate is related to legal research for safeguards of women, legal interventions, recommendations on bills and similar matters relating to the legal system of India. The legal cell of the Commission was set up in order to deal with these functions. The activities of this cell can be divided into three categories:

(a) Legal amendments proposed (b) New laws and bills proposed and (c) Court interventions. (a) Legal Amendments: the Commission‘s mandate requires that it analyze and improve existing laws from time to time. The Commission has proposed sixteen amendments till date The commission has sought to amend the Indian Penal Code, 1860 in order to curb the sale of minor girls; the Hindu Marriage Act, 1955, in order to omit epilepsy as grounds for divorce; the Dowry Prohibition Act of 1961, in order to bring the problems of Dowry deaths in to the lime light and deal with them appropriately and the NCW Act, 1990, in order to gain greater autonomy and jurisdiction within the country. In addition to these there are a number of other Acts and Bills, which the Commission has sought to, amend but due to the paucity of space the researcher is unable to discuss them here. (b) News Bills Proposed: in the course of fourteen years the Commission has proposed a total of seven bills and has drafted one convention for SAARC relating to trafficking of women and children. Amongst other bills the Commission proposed the Marriage Bill, 1994; the Criminal Laws (Amendment) Bill, 1994 (with reference to child rape); the Criminal Laws (Amendment) Ordinance, 1996 and the Domestic Violence to Women (Prevention) bill, 1994. The Protection of Women from Domestic Violence Bill was passed in 2005. (c) Court Intervention: the Commission has intervened in numerous court cases, in order help women whose rights have been violated, of these cases the researcher will only be able to mention few of the more prominent ones. The Commission intervened in Bhateri gang rape case and supported the victim and provided for her protection. In the Maimon Baskari's Nuh case the Commission fought for the right of the victim to marry a person of her own choice and against out dated customs. In the matter of Fakhruddin Mubarak Shaik v. Jaitunbi Mubarak Shaik the Commission intervened to seek maintenance beyond the iddat period for Muslim women. The Commission was also partly responsible the actions taken in the Imrana and Marine Drive rape cases.

NCW tackles the problems by ensuring that investigations by the police are expedited and monitored. Family disputes are resolved or compromised through counseling. The NCW also constitutes Expert Committees for dealing with such special issues as may be taken up by the Commission from time to time. Some important issues taken up by the NCW include sexual harassment at workplace, women in detention, anti-arrack movement, issues concerning prostitution and political and technological empowerment of women in agriculture. As per the 1997 Supreme Court Judgment on Sexual Harassment at Workplace, (Vishakha Vs. State of Rajasthan) every employer is required to provide for effective complaints procedures and remedies including awarding of compensation to women victims. In sexual harassment complaints, the concerned organizations are urged to expedite cases and the disposal is monitored. For serious crimes, the Commission constitutes an Inquiry Committee which makes spot enquiries, examines various witnesses, collects evidence and submits the report with recommendations. The implementation of the report is monitored by the NCW. The complaints received by the NCW show the trend of crimes against women and suggest systemic changes needed for reducing them. The complaints are analysed to understand the gaps in the routine functioning of government in tackling violence against women and to suggest correctional measures. The complaints are also used as case studies for sensitization programs for the police, judiciary, prosecutors, forensic scientists, defense lawyers and other administrative functionaries. 3. Research Functions: The research cell of the Commission is that organ of the Commission that looks into the emerging problems of Indian women due to discrimination and gender bias. This cell is also responsible for educating women about their rights through a variety of seminars, workshops, conferences and public hearings. This cell has also organized various special studies and set up expert committees to look into and suggest remedies for problems, which have evolved recently. Currently the cell is dealing with issues related to Gender and Law Enforcement, Impact of Displacement

of Women, Sexual Harassment at Workplace, Issues concerning Prostitution and Political Empowerment of Women. The three aforementioned organs of the Commission have been quite successful in carrying out the mandate which the Commission was given by the Act of 1990. Amongst the three cells, it is perhaps the Counseling cell which has been most successful because it is that cell of the Commission which is in direct contact with the people. The other cells, while equally successful, deal more with the different agencies of the Government and are thus not so widely acclaimed. From time to time the Commission conducts seminars, workshops and conferences and sponsors such events by providing financial assistance to research organizations and NGOs. The important areas so far covered include women in detention, violence against women; sexual harassment at work place; educational, health and employment aspects; women in agriculture and panchayati raj sector; custodial justice and mental health institutions. Special studies are conducted by the NCW on social mobilization, maintenance and divorced women, panchayat raj in action, women labour under contract, gender bias in judicial decisions, family courts, gender-component in various Commissions‘ reports on women, violence against women, women‘s access to health and education in slums to help in formulation of NCW‘s policies for recommendations. Special studies of NCW focus on development of health facilities among women belonging to the scheduled tribe communities; women of weaker sections - socio-economic development of scheduled caste women; mentally disabled women; credit needs of women - the Gramin Banks and the widows of Vrindavan. To meet the information needs of the Commission and various interested individuals and organizations, the NCW started its own Library in 1994. It has now evolved as a de facto Resource Centre for research scholars/ activists with a collection of nearly 2300 books covering different issues relating to women‘s advancement. Besides, the library collection includes important reference books, like encyclopedia, Directories of NGO‘s as well as the complete set of Halsbury‘s Laws of England ( 4th Edition ).

Achievements of the Commission: The complaints and counseling cell of the Commission is perhaps the most successful organ of the organization, in illustration: Ms. Rupali Jain was reinstated as a teacher, due to the actions of the Commission, after her services were terminated at a school run by a non – governmental organization, without any substantial reasons. In another matter, Smt. Savitri, approached the Commission regarding exploitation of her deaf and dumb daughter, who, along with her child, has been deserted by her husband and in laws, allegedly due to her disabilities. The Commission took up the matter and the husband was located, counseled and is currently agreed to rehabilitate with his wife and daughter. The Commission was also successful in securing the release of Mrs. Sudha Bala (name changed) who was allegedly gang-raped by BSF personnel in early 2002. The victim along with her young daughter was wrongly detained in Presidency Jail in Kolkata, after the alleged rape. The matter was taken up by the Commission for the release of rape victim from the jail. The Commission‘s actions resulted in the release of Mrs. Das from jail, who was given into safe custody to her brother. Besides these achievements, the Legal Cell of the Commission has proposed amendments to a number of Acts and has proposed a number of new bills. The Commission has proposed amendments to the Hindu Marriage Act, 1955, Medical Termination of Pregnancy Act, 1971 and the Indian Penal Code, 1960. The Commission has also proposed bills such as the Marriage Bill of 1994, the Domestic Violence to Women (Prevention) Bill of 1994 and the Prevention of Barbarous and Beastly cruelty against Women Bill, 1995 amongst others. Some of these bills, such as the Domestic Violence to Women (Prevention) Bill, have recently been passed. The Commission has also intervened in a number of court cases and these have been mentioned in the chapter dealing with the functions of the Commission. The Research Cell of the Commission has carried out a number of studies pertaining to topics such as social mobilization, maintenance and divorcee women, women labour under contract, gender bias in judicial decisions, family courts, violence against women, women access to health and education in slums and similar topics. A number of inquiry commissions have also been established by the Commission, under Section 8 (1) of the Act of 1990, to look into matters such as Law and legislation, Political

empowerment, Custodial justice for women, Social security, Panchayati Raj, Women and media, Development of Scheduled Tribe Women, Development of women of weaker sections, Development of women of minority communities, Transfer of technology in agriculture for development of women. Among other highlights are included the anti child marriage agitations in Rajasthan, Madhya Pradesh, Andhra Pradesh and Uttar Pradesh. Public hearings on problems of Muslim women, impact of globalization on women, on land related problems, economic empowerment of tribal women have been successfully organized by the have been organized by the Commission all over the country. Within the short span of fourteen years, the Commission has fulfilled managed to fulfill most of the responsibilities laid down in its mandate. The different public hearings, outreach programs, counseling and legal function have definitely improved conditions of the Indian woman. The Commission undertakes visits to evaluate the progress of development of women in various states. It has so far covered Tamil Nadu, Andhra Pradesh, Rajasthan, Uttar Pradesh, Orissa, Sikkim, Madhya Pradesh, Assam, Tripura and Manipur. Women‘s movement in the country was brought to the forefront by the efforts of NGOs. The Commission interacts and networks with NGOs and the State Commissions for ensuring gender equality and empowerment of women. The Commission also interacts with the media, social activists and academics to suggest ways of ensuring due representation of women in all spheres. Individuals interested in getting in touch with the Commission may contact at its Complaints Cell.

5.2

National Policy for the Empowerment of Women (2001) The principle of gender equality is enshrined in the Indian Constitution in its

Preamble, Fundamental Rights, Fundamental Duties and Directive Principles. The Constitution not only grants equality to women, but also empowers the State to adopt measures of positive discrimination in favour of women. Within the framework of a democratic polity, our laws, development policies, Plans and programs have aimed at women‘s advancement in different spheres. From the Fifth Five Year Plan (1974-78) onwards has been a marked shift in the approach

to women‘s issues from welfare to development. In recent years, the empowerment of women has been recognized as the central issue in determining the status of women. The National Commission for Women was set up by an Act of Parliament in 1990 to safeguard the rights and legal entitlements of women. The 73 rd and 74th Amendments (1993) to the Constitution of India have provided for reservation of seats in the local bodies of Panchayats and Municipalities for women, laying a strong foundation for their participation in decision making at the local levels. The Policy also takes note of the commitments of the Ninth Five Year Plan and the other Sectoral Policies relating to empowerment of Women. The women‘s movement and a wide-spread network of non-Government Organizations which have strong grass-roots presence and deep insight into women‘s concerns have contributed in inspiring initiatives for the empowerment of women. However, there still exists a wide gap between the goals enunciated in the Constitution, legislation, policies, plans, programmes, and related mechanisms on the one hand and the situational reality of the status of women in India, on the other. This has been analyzed extensively in the Report of the Committee on the Status of Women in India, ―Towards Equality‖, 1974 and highlighted in the National Perspective Plan for Women, 1988-2000, the Shramshakti Report, 1988 and the Platform for Action, Five Years After- An assessment.‖ The goal of this Policy is to bring about the advancement, development and empowerment of women. The Policy will be widely disseminated so as to encourage active participation of all stakeholders for achieving its goals. Specifically, the objectives of this Policy include: (i) Creating an environment through positive economic and social policies for full development of women to enable them to realize their full potential. (ii) The de-jure and de-facto enjoyment of all human rights and fundamental freedom by women on equal basis with men in all spheres – political, economic, social, cultural and civil. (iii) Equal access to participation and decision making of women in social, political and economic life of the nation.

(iv) Equal access to women to health care, quality education at all levels, career and vocational guidance, employment, equal remuneration, occupational health and safety, social security and public office etc. (v) Strengthening legal systems aimed at elimination of all forms of discrimination against women. (vi) Changing societal attitudes and community practices by active participation and involvement of both men and women. (vii) Mainstreaming a gender perspective in the development process. (viii) Elimination of discrimination and all forms of violence against women and the girl child; and (ix) Building and strengthening partnerships with civil society, particularly women‘s organizations. Legal-judicial system will be made more responsive and gender sensitive to women‘s needs, especially in cases of domestic violence and personal assault. New laws will be enacted and existing laws reviewed to ensure that justice is quick and the punishment meted out to the culprits is commensurate with the severity of the offence. At the initiative of and with the full participation of all stakeholders including community and religious leaders, the Policy would aim to encourage changes in personal laws such as those related to marriage, divorce, maintenance and guardianship so as to eliminate discrimination against women. The evolution of property rights in a patriarchal system has contributed to the subordinate status of women. The Policy would aim to encourage changes in laws relating to ownership of property and inheritance by evolving consensus in order to make them gender just. Women‘s equality in power sharing and active participation in decision making, including decision making in political process at all levels will be ensured for the achievement of the goals of empowerment. All measures will be taken to guarantee women equal access to and full participation in decision making bodies at every level, including the legislative, executive, judicial, corporate, statutory bodies, as also the advisory Commissions, Committees, Boards, Trusts etc. Affirmative action

such as reservations/quotas, including in higher legislative bodies, will be considered whenever necessary on a time bound basis. Women–friendly personnel policies will also be drawn up to encourage women to participate effectively in the developmental process. Globalization has presented new challenges for the realization of the goal of women‘s equality, the gender impact of which has not been systematically evaluated fully. However, from the micro-level studies that were commissioned by the Department of Women & Child Development, it is evident that there is a need for reframing policies for access to employment and quality of employment. Benefits of the growing global economy have been unevenly distributed leading to wider economic disparities, the feminization of poverty, increased gender inequality through often deteriorating working conditions and unsafe working environment especially in the informal economy and rural areas. Strategies will be designed to enhance the capacity of women and empower them to meet the negative social and economic impacts, which may flow from the globalization process. Action Plans All Central and State Ministries will draw up time bound Action Plans for translating the Policy into a set of concrete actions, through a participatory process of consultation with Centre/State Departments of Women and Child Development and National /State Commissions for Women. The Plans will specifically including the following:i) Measurable goals to be achieved by 2010. ii) Identification and commitment of resources. iii) Responsibilities for implementation of action points. iv) Structures and mechanisms to ensure efficient monitoring, review and gender impact assessment of action points and policies. v) Introduction of a gender perspective in the budgeting process. In order to support better planning and program formulation and adequate allocation of resources, Gender Development Indices (GDI) will be developed by

networking with specialized agencies. These could be analyzed and studied in depth. Gender auditing and development of evaluation mechanisms will also be undertaken along side. Collection of gender disaggregated data by all primary data collecting agencies of the Central and State Governments as well as Research and Academic Institutions in the Public and Private Sectors will be undertaken. Data and information gaps in vital areas reflecting the status of women will be sought to be filled in by these immediately. All Ministries/Corporations/Banks and financial institutions etc will be advised to collect, collate, disseminate and maintain/publish data related to programs and benefits on a gender disaggregated basis. This will help in meaningful planning and evaluation of policies. Institutional mechanisms, to promote the advancement of women, which exist at the Central and State levels, will be strengthened. These will be through interventions as may be appropriate and will relate to, among others, provision of adequate resources, training and advocacy skills to effectively influence macropolicies, legislation, programmes etc. to achieve the empowerment of women. National and State Councils will be formed to oversee the operationalization of the Policy on a regular basis. The National Council will be headed by the Prime Minister and the State Councils by the Chief Ministers and be broad in composition having representatives from the concerned Departments/Ministries, National and State Commissions for Women, Social Welfare Boards, representatives of NonGovernment Organizations, Women‘s Organizations, Corporate Sector, Trade Unions, financing institutions, academics, experts and social activists etc. These bodies will review the progress made in implementing the Policy twice a year. The National Development Council will also be informed of the progress of the program undertaken under the policy from time to time for advice and comments. National and State Resource Centres on women will be established with mandates for collection and dissemination of information, undertaking research work, conducting surveys, implementing training and awareness generation programs, etc. These Centers will link up with Women‘s Studies Centres and other research and academic institutions through suitable information networking systems.

While institutions at the district level will be strengthened, at the grass-roots, women will be helped by Government through its programs to organize and strengthen into Self-Help Groups (SHGs) at the Anganwadi/Village/Town level. The women‘s groups will be helped to institutionalize themselves into registered societies and to federate at the Panchyat/Municipal level. These societies will bring about synergistic implementation of all the social and economic development programs by drawing resources made available through Government and Non-Government channels, including banks and financial institutions and by establishing a close Interface with the Panchayats/ Municipalities. Availability of adequate financial, human and market resources to implement the Policy will be managed by concerned Departments, financial credit institutions and banks, private sector, civil society and other connected institutions. This process will include: (a) Assessment of benefits flowing to women and resource allocation to the programmes relating to them through an exercise of gender budgeting. Appropriate changes in policies will be made to optimize benefits to women under these schemes; (b) Adequate resource allocation to develop and promote the policy outlined earlier based on (a) above by concerned Departments. (c) Developing synergy between personnel of Health, Rural Development, Education and Women & Child Development Department at field level and other village level functionaries. (d) Meeting credit needs by banks and financial credit institutions through suitable policy initiatives and development of new institutions in coordination with the Department of Women & Child Development. The strategy of Women‘s Component Plan adopted in the Ninth Plan of ensuring that not less than 30% of benefits/funds flow to women from all Ministries and Departments will be implemented effectively so that the needs and interests of women and girls are addressed by all concerned sectors. The Department of Women and Child Development being the nodal Ministry will monitor and review the progress of the implementation of the Component Plan from time to time, in terms of both quality and quantity in collaboration with the Planning Commission.

Efforts will be made to channelize private sector investments too, to support programmes and projects for advancement of women. Legislation: The existing legislative structure will be reviewed and additional legislative measures taken by identified departments to implement the Policy. This will also involve a review of all existing laws including personal, customary and tribal laws, subordinate legislation, and related rules as well as executive and administrative regulations to eliminate all gender discriminatory references. The process will be planned over a time period 2000-2003. The specific measures required would be evolved through a consultation process involving civil society, National Commission for Women and Department of Women and Child Development. In appropriate cases the consultation process would be widened to include other stakeholders too. Effective implementation of legislation would be promoted by involving civil society and community. Appropriate changes in legislation will be undertaken, if necessary. In addition, following other specific measures will be taken to implement the legislation effectively. (a) Strict enforcement of all relevant legal provisions and speedy redressal of grievances will be ensured, with a special focus on violence and gender related atrocities. (b) Measures to prevent and punish sexual harassment at the place of work, protection for women workers in the organized/ unorganized sector and strict enforcement of relevant laws such as Equal Remuneration Act and Minimum Wages Act will be undertaken, (c) Crimes against women, their incidence, prevention, investigation, detection and prosecution will be regularly reviewed at all Crime Review forum and Conferences at the Central, State and District levels. Recognized, local, voluntary organizations will be authorized to lodge Complaints and facilitate registration, investigations and legal proceedings related to violence and atrocities against girls and women.

(d) Women‘s Cells in Police Stations, Encourage Women Police Stations Family Courts, Mahila Courts, Counseling Centers, Legal Aid Centers and Nyaya Panchayats will be strengthened and expanded to eliminate violence and atrocities against women. (e) Widespread dissemination of information on all aspects of legal rights, human rights and other entitlements of women, through specially designed legal literacy programs and rights information programs will be done. Panchayati Raj Institutions The 73rd and 74th Amendments (1993) to the Indian Constitution have served as a breakthrough towards ensuring equal access and increased participation in political power structure for women. The Panchayati Raj Institutions will play a central role in the process of enhancing women‘s participation in public life. The Panchayati Raj Institutions and the local self Governments will be actively involved in the implementation and execution of the National Policy for Women at the grassroots level.

5.3

Women’s Reservation Bill India Women’s Reservation Bill or the The Constitution (108th Amendment) Bill,

is a pending bill in India which proposes to provide ‗33% of all seats in the Lower house of Parliament of India the Lok Sabha and state legislative assemblies shall be reserved for women. The Upper House Rajya Sabha passed it on 9 Mar 2010. The seats to be reserved in rotation will be determined by draw of lots in such a way that a seat shall be reserved only once in three consecutive general elections. Women get 33% reservation in gram panchayat and municipal elections. There is a long-term plan to extend this reservation to parliament and legislative assemblies. In addition, women in India get reservation or preferential treatments in education and jobs. Certain men consider this preferential treatment of women in India as discrimination against them in admissions to schools, colleges, and

universities. For instance, several law schools in India have a 30% reservation for females. Progressive political opinion in India is strongly in favour of providing preferential treatment to women in order to create a level playing field for all of its citizens. The Women‘s reservation Bill was passed by the Rajya Sabha on 9 March 2010 by a majority vote of 186 members in favour and 1 against. It will now go to the Lok Sabha, and if passed there, would be implemented. Possible benefits:  More women participation in politics and society.  Social norms in India strongly favour men, therefore, reservation for women is expected to create equal opportunity for men and women.  Due to female foeticide and issues related to women's health, sex ratio in India is alarming at 1.06 males per female. It is expected this will change the society to give equal status to women.  Women are supposedly more resistant to corruption. Therefore, this bill might prove to be a factor restraining the growth of corruption.

CHAPTER - VI

CRITICAL STUDY ON WOMEN PROTECTION MEASURES IN INDIA The reality of women‘s lives remains invisible to men and women alike and this invisibility persists at all levels beginning with the family to the nation. Although geographically men and women share the same space, they live in different worlds. The mere fact that ―Women hold up half the sky‖- does not appear to give them a position of dignity and equality. True, those over the year‘s women have made great strides in many areas with notable progress in reducing some gender gaps. Yet, ‗the afflicted world in which we live is characterized by deeply unequal sharing of the burden of adversities between women and men‘. Sprawling inequalities persist in their access to education, health care, physical and financial resources and opportunities in the political, economic, social and cultural spheres. ‗Gender inequality holds back the growth of individuals, the development of nations and the evolution of societies to the disadvantage of both men and women‘. Gender issues are not simply talking about women‘s issues. Understanding gender means understanding opportunities, constraints and the impact of change as they affect both men and women. The impact of inequality is reflected in the status of women worldwide and in India. The country can boast of a decade of reforms. But of what consequence? Most of these programs remain limited to the urban population. The rural belts as well as the unskilled urban wage workers go unnoticed and unaffected. The government has proposed and launched a number of programs for the empowerment of women, including the observance of the year 2001 as the year of women‘s empowerment. It was said, ―Our vision in the new century is of a nation where women are equal partners with men.‖ Many new projects were launched like Swa Shakti and Stree Shakti for women‘s empowerment; Swayamsidha to benefit 100,000 women through micro-credit programs and Balika Samridhi Yojana for the girl child. However, apart from a lot of hoopla and the accompanying verbal diarrhoea, not much was registered. There are those who point to an unfounded development in the social position of women through the achievements of the likes of Indra Nooyi. However, one swallow alone doesn‘t make a summer. We cannot deny that there have been changes. These

changes have been limited to the upper crust of the social order. What we need to realize is that any new program has to overcome the centuries-old hold of subjugation and marginalization of women. The female population of the country rose marginally from 48.1 per cent of the total population in 1991 to 48.3 percent of the total population in 2001. In absolute numbers, this implies an increase by 89.4 million from 407.1 million in 1991 to 496 million in 2001. The growth rate of female population for the 1991-2001 decade was 23.08, slightly higher than the male population decennial growth rate of 22.26. The expectancy of life at birth has been rising steadily for women. It increased from 58.6 in 1987-91 to 66.91 in 2001-06, and is higher than the male life expectancy of 63.87. However, demographic imbalances between men and women continue to exist, even worse, in certain regions. While the sex ratio improved slightly from 927 in 1991 to 933 in 2001, the Child Sex Ratio registered a startling decline. The 0-6 sex ratio plummeted from 945 in 1991 to 927 in 2001. The 2003-05 sex ratio at birth is even lower at 880. The child sex ratio for Muslims is much higher at 986, compared to 931 among SC/STs at 914 among other Hindus. The child sex ratio continues to fall and is below 900 in economically prosperous states like Punjab (793), Delhi (865), Haryana (820) and Gujarat (878). During the decade 1991-2001, 70 districts in 16 States and Union Territories have recorded more than 50 points decline in sex ratio. The lowest ratio recorded is 754 in Fatehgarh Sahib District in Punjab (2003, RGI Census Commissioner, India-missing-Mapping the Adverse Child Sex Ratio in India). As a result of this declining sex ratio, millions of girls/women are missing in India. While the mean age of marriage of women has increased from 15.5 years in 1961 to 19.5 in 1997, 44.5% of women are still married by the age of 18. Certain states have a much higher percentage of underage marriage in girls such as Jharkhand (61.2%), Bihar (60.3%) and Rajasthan (57.1%). The high rates of anemia, malnutrition, HIV/AIDS in women, MMR, IMR are a grave cause for concern. Within a period of seven years (1998-99 to 2005-06), anemia in pregnant women have risen from 49.7% to 57.9%, and in ever-married women from 51.8% to 56.2% as per NFHS-3. This disturbing trend has also exacerbated anemia in children by 5 percentage points to 79.2%. The high prevalence of anemia is also partially responsible for the high MMR. Moreover, only 22% of mothers consumed IFA tablets

for 90 days or more, and only half of them received at least 3 ante-natal care visits. Although MMR has fallen from 407 in 1998 to 301 in 2001-2003, states like Uttar Pradesh & Uttaranchal and Assam have MMRs as high as 517 and 490 respectively. There is also a growing feminization of the HIV/AIDS epidemic. NACO estimates that 1 in 3 persons living with HIV in India is a woman. The burden on women is also distressing – an NCAER survey shows that women account for more than 70% of the caregivers, 21% of whom are HIV positive themselves. A more daunting finding is that nearly 60% of HIV-positive widows are less than 30 years of age and live with their natal families as 91% of them receive no financial support from their marital homes. The 2001 Census recorded a significant increase in literacy rates (from 52.21% in 1991 to 65.38% in 2001) particularly female literacy rates which increased to 54.16% (Table-4). The increase in female literacy rates was 14.87% in 1991-2001 compared to 9.53% between 1981-1991. For the first time, the absolute numbers of illiterate women declined from 200.7 million in 1991 to 190 million in 2001. Similarly, the Gross Enrollment Ratio (GER) for girls has increased to 89.87%, compared to 96.91% for boys. Drop-out rates have also followed the same encouraging trend and have reduced at all levels of education. Nevertheless, dropout rates remain high and the increase dramatically with level of education. While dropout rate for girls was 25.4% at the primary level in 2004-05, they are as high as 63.88% at the secondary level. Dropout rates are substantially higher for categories like SC and ST girls at 75.5% and 81.2%. The number of women in higher education has also increased from 13.6 lakhs or 33% of students in 1990-91 to 34.4 lakhs or 40% of students in 2004-05. Disparities are most apparent in professional and higher education. For example of the total students from general category enrolled for B.A. degree in 2004-05, 41.2% were women category. Similarly, only 36.4% of the SC students and 34.4% of ST students enrolled in B.A were women during the same year. The gender gap between male (75.85%) and female (54.16%) literacy rates remains high at 21.70 as per 2001 Census. The gender gap is even more than 24 for SCs and STs. There is a marked rural-urban divide as the female literacy rate is higher in urban areas at 73% compared to 46% in rural areas. There are 253 districts in India where female literacy rate is below 50%. Inter-state variations also persist – Kerala

continues to have the highest female literacy rate of 87.7% whereas Bihar has the lowest at 33.1%. According to Social, Economic and Educational Status of the Muslim Community of India – A Report – November 2006, the educational status of Muslim and SC/ST women in particular is a major cause of concern. The literacy rate figures for Muslim, SC and ST women are 50%, 47.1% and 34.8% respectively. At the bottom of the rung are Muslim and SC/ST women in rural areas whose literacy rates are 43% and 36% respectively. It should also be noted that disparities increase with the level of schooling. At the basic level of literacy, Muslim women were 11% worse off than non-Muslims. However, the difference widened to 19% at the middle school level, 35% at Class- X, 45% at Class-12, and 63% for graduates and above as per Census 2001. There has been a slight increase in the female work participation rate both in rural and urban areas. It is estimated that 118 million workers or 97% of the female work force are involved in the unorganized sector. The non agriculture segment of the informal sector alone engages 27 million workers or 23% of the female work. Agriculture is, therefore, the main employer of women informal workers. 75% of the total female work force and 85% of rural women are employed in agriculture, as wage workers or workers on their own/contracted household farms. As men migrate and move to non-farm jobs, there has also been an increasing feminization of agriculture. 90% of those employed in the manufacturing and construction are also in the unorganized sector. The seasonality of work in these sectors and the lack of other avenues of work make women vulnerable to a range of exploitative practices. Although they make a huge contribution to the national economy, these women remain the poorest and most vulnerable. Around 57% of women also fall into the category of home-based workers. Lack of qualifications and training, absence of childcare support, loss of formal employment, social and cultural constraints and absence of alternatives are some of the reasons women turn to home based work. With home based work being the only alternative for the poorest communities, it is not confined only to women but also involves children, especially girls. There are far fewer women in the paid workforce than there are men. Women work is undervalued and unrecognized. Women work longer hours than men, and carry the major share of household and community work,

which is unpaid and invisible. Women generally earn a far lower wage than men doing the same work. In no State do women and men earn equal wages in agriculture.

Every form of violence against women has been increasing steadily including cases of rapes, abduction, trafficking, dowry deaths, domestic violence and witchhunting. Rape cases accounted for 22% of total crimes against women during 2005. In 84-89% of the rape cases in the years 2002-04, the victim knew the offenders. In 9% of the cases, the offenders included the father or another family member or close relatives. Dowry deaths also rose from 6822 in 2002 to 7026 in 2004. Cases of dowry deaths in 2005 have been highest in Uttar Pradesh, followed by Bihar and Madhya Pradesh. Nevertheless, the conviction rate for rape cases remains low at around 25%. For a country that registers two million cases of female infanticide and nearly 5000 dowry deaths ever year, the less spoken on the status of its women, the better. On the face of it, the current president‘s ‗greetings and felicitations (on the occasion of International Women‘s Day) to all Indian women for shaping the destiny of the country rings hollow. Looking back we find an ancient Bharat set up on the principles laid down by Manu who saw women as ‗worthy of worship‘. Even today most of the Hindu deities are female figures that are hailed as ‗mata‘ or ‗maa‘. But that is about it. Steer away from the altars and come down to the concrete houses to find a very different reality. When it comes to conviction against the cases registered the situation is still alarming. On an average conviction rate against the cases registered is in the range of 18 to 35 in major crimes like kidnapping and abduction, dowry deaths, rape, molestation, cruelty by husband and relatives etc. Around 37% of women are victims of spousal violence. More than half of all Indian women believe that husbands can beat wives if they have an appropriate reason for doing so. In Constitution of India, gender equality is provided under the provisions. If the principle of gender equality is enshrined in the Indian Constitution, then why are Indian women treated as second citizens in their own country? The Constitution officially grants equality to women and also empowers the State to adopt measures of positive discrimination in favour of women. However, the varied forms of discrimination that women in India are subject to are far from positive.

It is claimed that from the Fifth Five Year Plan (1974-78) onwards, there has been a marked shift in the approach to women‘s issues from welfare to development. Where is the development? Yes, the status of the urban woman has shown some improvement but the changes in their lifestyle were not coupled by changes in the general mindset of the people in our patriarchal society. Thus, some laws should have been framed for the protection of the newly emancipated and urbanized Indian women. What is the percentage of urban women in India, anyway? What about the rest? These privileged few would have prospered with or without the laws. Has there been any significant change in the status of rural women after the Fifth Five Year Plan? The National Commission for Women was set up by an Act of Parliament in 1990 to safeguard the rights and legal entitlements of women. ―The 73rd and 74th Amendments (1993) to the Constitution of India have provided for reservation of seats in the local bodies of Panchayats and Municipalities for women, laying a strong foundation for their participation in decision making at the local levels.‖ These reserved seats often go unoccupied or are taken up by male candidates because women rarely contest for such seats. Why? The mere existence of laws cannot automatically bring about a revolutionary change in the society. In a country where women have no control over their own lives and do not even have the decisionmaking power in their own household, do you think they will be encouraged to join local governing bodies? In India gender disparity is found everywhere. The declining ratio of the female population, in the last few decades is a proof of this. The stereotypical image of a woman haunts her everywhere. Domestic violence is commonplace. The underlying causes of gender inequality are related to the socioeconomic framework of India. As a result, the women belonging to the weaker sections of the society i.e. the Scheduled Castes/Scheduled Tribes/ Other backward Classes and minorities, do not have easy access to education, health and other productive resources. Therefore, they remain largely marginalized, poor and socially isolated. Article 14 in the Indian Constitution ensures equality in political, economic and social spheres. Article 16 provides for equality of opportunities in matters of public appointment for all citizens. However, the ratio of women in Politics is far less as compared to men. How many women hold positions of power in government run institutions? Single women do not get jobs easily because the employers fear that they

might get married and quit. They also find it hard to get rented accommodation whereas that is not the case with single men. Cricket is a religion in India. Is the government promoting cricket for women or any other form of team sport for women for that matter? Article 15 prohibits discrimination against any citizen on the grounds of religion, race, caste, sex etc. There are certain places of worship in South India where women are not allowed entry. Advertisements of 'Fairness' creams are aired on television without any restrictions. It is shown in these ad-films that the 'brown' Indian woman can't get a job, can't find a man and is generally looked down upon by everyone but when she becomes fairer, the story changes. There has been an alarming rise in the atrocities committed against women. While the constitution guarantees equal opportunity, patriarchy asserts itself through legal loopholes to consolidate the age-old domination. India has a long history of activism for women's welfare and rights. A range of government programs have been launched to increase economic opportunity for women, although there appear to be no existing programs to address the cultural and traditional discrimination against women. Be it education, health care, nutrition, property rights, acknowledgment of labour or life security, women find themselves at the lower rungs of the ladder. Article 15 (3) of the Indian Constitution allows the State to make any special provision for women and children. Wife bashing is a favorite sport in India. Women are subject to physical and mental torture by their husbands and their families. Women and children are always under the control of the ‗Male‘ head of the family. A child is identified by his father‘s name in this country. Whereas in western countries, the mother's name forms, the middle name, of a child. Article 39(a) mentions that the State will direct its policies towards securing all citizens, men and women, the right to means of livelihood while Article 39 (c) ensures equal pay for equal work. When a male government employee is transferred from one place to another, is his wife given a new job in the new place? Her career goals are of little importance to anyone. She can be displaced and uprooted anytime! The daily wages of women labourers in India are lesser than that of male menial workers. Bollywood Actresses also get less money as compared their male counterparts. Article 42 directs the State to ensure just and humane working conditions. More often than not, women are exploited by their bosses. It is believed that women who keep their bosses happy get promotions very easily in the Corporate world! What

about the others? Male colleagues never fail to make passes at women. Women have to put up with their bawdy jokes, lascivious remarks and glares, all the time. The plight of women labourers at construction sites, tea and rubber plantations etc, cannot even be described. The constitution imposes a fundamental duty on every citizen through Article 51 (A) (e) to renounce practices derogatory to the dignity of women. What is the government doing about eve-teasing? Can a woman spend an entire day on the streets of the National capital without getting a series of comments, derogatory to her dignity? Another law that protects women against a seemingly milder crime is Section 509 of the IPC. This law punishes individuals who have insulted the modesty of a woman. Offensive language, sounds, gestures and intrusion of a woman's privacy are punishable under this law. Outraging the modesty of a woman is also punishable under Section 354 of the IPC. Under this law, an individual who has assaulted a woman, used criminal force on her or outraged her modesty in any other way can be punished with imprisonment of up to 2 years. In fact the people who are employed by the State to ensure that people don‘t flout any rules, the policemen, are the ones who have given consequence to many crimes against women. Policemen are often found mouthing obscenities, glaring and passing bawdy remarks on women, not only on the roads, but also inside the police station. Many of our honourable politicians are also involved in all manner of crimes against women. The second article of the Fourteenth Amendment introduced the word "male" into the Constitution in respect to voting rights, nevertheless some women's rights advocates decided that they could make a case for women's rights including suffrage on the basis of the first article of the Amendment, which did not distinguish between males and females in granting citizenship rights. Myra Bradwell‘s case was one of the first to advocate for use of the 14th Amendment to defend women‘s rights. Myra Bradwell had passed the Illinois law exam, and a circuit court judge and a state attorney had each signed a certificate of qualification, recommending that the state grant her a license to practice law. However, the Supreme Court of Illinois denied her application on October 6, 1869. The court took into consideration the legal status of a woman as a ―femme covert‖ -- that is, as a married woman, Myra Bradwell was legally disabled. She was, under the common law of the time, prohibited from owning property or entering into

legal agreements. As a married woman, she had no legal existence apart from her husband. Myra Bradwell challenged this decision. She took her case back to the Illinois Supreme Court, using the Fourteenth Amendment's equal protection language in the first article to defend her right to choose a livelihood. In her brief, Bradwell wrote ―that it is one of the privileges and immunities of women as citizens to engage in any and every provision, occupation or employment in civil life.‖ The Supreme Court found otherwise. In a much-quoted concurring opinion, Justice Joseph P. Bradley write "It certainly cannot be affirmed, as a historical fact, that this [the right to choose one‘s profession] has ever been established as one of the fundamental privileges and immunities of the sex. Instead, he wrote, ―The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother.‖ While the Bradwell case raised the possibility that the 14th Amendment could justify women‘s equality, the courts were not ready to agree. Laws such as the Immoral Traffic (Prevention) Act, Sati Prevention Act, Dowry Prohibition Act and Indecent Representation of Women (Prevention) Act protect women from the more ―traditional‖ crimes such as rape, abduction, dowry, torture, molestation, sexual harassment and selling of girls into slavery. However trafficking of women is still very common in this poverty-stricken country. Women from economically backward families are kidnapped and forced into prostitution. Incidents of women being charred to death after their husbands‘ death, have been reported recently. Giving and taking dowry is officially, a crime but the practice goes on. In fact, it is taken for granted that if you want to get your daughter married you should arrange for her dowry first, even when your daughter is educated and financially independent. Female foeticide and infanticide are common practices in this country. If at all the girl is allowed to live, she is subject to all forms of torture in her own house. She is not allowed to go to school, instead she is forced to take up menial jobs and married off almost as soon as she enters teenage. People in rural areas fear that their daughters might be raped so it is better to get them married. Ironically, The Child Marriage Restraint Act specifies the cut-off age for marriage as 18 years, protecting women from child marriage. Women, be it urban or rural, face all forms of sexual harassment throughout their lives. So what is the use of these laws?

Gender-based violence in the form of rape, domestic violence, honour killing and trafficking in exacts a heavy toll on the mental and physical health of affected women. Increasingly, gender-based violence is being recognised as a major public health concern and a serious violation of basic human rights. According to a UN report, on an average, one rape happens every hour in India. Delhi is the sexual-crime capital. The reason for such statistics, according to many is the inefficacy of India‘s rape laws. Women‘s rights groups allege that the narrow and conservative outlook of Indian society is responsible for the lackadaisical attitude of authorities and the confidence of wrong doers. Indian families are closed to the concept of sex as a topic of discussion and hence avoid highlighting it in any way and rendering steps towards justice ineffectual. Around 60 to 70 per cent of cases of rape go unreported. The reasons are well known. To get a conviction, the victim has to prove in front of an open court that she was sexually penetrated by the rapist. Add to this the social stigma of the whole incident. In many cases, such girls/women are even unable to get husbands. They are shunned and ostracized by the society and if already married, even deserted. Of the few reported cases, convictions are rare. A 2005 United Nations report said that around two-thirds of married women in India were victims of domestic violence and one incident of violence translates into women losing seven working days in the country. ―Discrimination against girl child is so strong in the Punjab State of India that girl child aged two to four die at twice the rate of boys,‖ quotes a 2002 UNIFEM document. There are many women in India, who are caught in violent marriages. Owing to the social stigma attached to divorce, not many women have the courage to break free. Housewives account for 52% of the total female suicide cases in India. Section 306 of the IPC can punish the suicide victim's husband with up to 10 years imprisonment if found guilty. How many such men have been punished till now? Men were typically shown as contending with professional setbacks and disappointments in love. Women, on the other hand, had to face far more complex pressures ranging from disintegration of personal relationships and strangement of children to withstanding threats of personal assault and blackmail. l Working women were depicted as ambitious, neurotic, high-strung, eccentric in appearance or mannerisms, unscrupulous in their dealings, incapable of coping in their relationships and saddled with problem children. So exaggerated was the depiction that some of the critical issues they raised, such as sexual harassment, parenting and marriage, were all

distorted and trivialized. Children, particularly girls, were shown as victims of degenerative lifestyles, while others were shown as psychologically affected and unable to trust their partners and friends. The problem is not only external but intrinsic too. The socio-psychological makeup of most rural and many urban women has been shaped and moulded by more than a century of patriarchal beliefs and a family system where the man (in form of father or husband) is the equivalent of God. The feeling of inferiority has been embedded in their psyche so much so that far from condemning acts of violence against them they are more likely to throttle the voices in favour of them. This is part of the clichéd vicious circle of illiteracy and social backwardness that accounts for all the resultant backwardness of the gender. Unless social activism groups take these factors into consideration and delve deeper into the social realm of this problem, there is little that can be done. The government, police and the related authorities need to understand the poignancy of their role. Most of all, men and women need to be aware of the much hyped equality of sexes and need to respect the same. Since ours is not a gender-stratified society in the literal sense, both sexes needed to learn how to live in co-operation and harmony. The patriarchal heads of society need to answer what the poet PB Shelley asked centuries ago - ―Can man be free if woman be a slave?‖ The Domestic Violence Act, 2005 is criticized by men‘s organizations such as Save Indian Family and raamraaj.com have criticized the law since it is not gender neutral and abused men are not covered. Moreover, it might be abused by women and their families during family disputes. Renuka Chowdhury, the Indian Minister for Women and Child Development, agreed in a Hindustan Times article that ―an equal gender law would be ideal. But there is simply too much physical evidence to prove that it is mainly the woman who suffers at the hands of man‖. In a CNN-IBN Interview, she commented that ―this act won't hit good hubbies‖. The former Attorney General of India Soli Sorabjee has also criticized the broad definition of verbal abuse in the act. According to president of India in one of her speech, she said : ―Another disquieting trend has been that women themselves have not been innocent of abusing women. At times women have played an unsavory, catalytic role in perpetrating violence whether against the daughter-in-law, the mother-in-law or female domestic helps. Instances exist whereby protective legal provisions for the benefit of women have been subjected to distortion and misuse to wreak petty vengeance and to settle

scores. Some surveys have concluded that around 80 percent of dowry complaints are false and were registered primarily to settle scores. It is unfortunate if laws meant to protect women get abused as instruments of oppression.‖ Passing the Women‘ Reservation Bill may cause bias in the democratic process because of the following reasons: It may hurt the self respect of women who have come up on their own ability; it may result in lesser respect for women in the society. It may also bring down the quality of leaders. It is likely to begin/increase the hatred between genders as male may feel deprived of certain privileges, in turn create more social issues. Parties will be forced to find women whether or not the women identify with the overall party agenda and the rest of the issues concerning all citizens, as opposed to just women‘s issues. There are no provisions to prevent discrimination against men because of finding women who are inclined towards women‘s issues alone, or, in other words, biased against men. Powerful male members of parties will be tempted to find female relatives to ‗reserve‘ the seat for themselves during the following cycle. It is feared that reservation would only help women of the elitist groups to gain seats, therefore causing further discrimination and under-representation to the poor and backward classes (According to a National Election Study, 68 per cent of today‘s women MPs are crorepatis). The National Commission for Women has no concrete legislative powers. It only has the powers to recommend amendments and submit reports which are not binding on state or Union Governments. The Commission does not have the power to select its own members. This power is vested with the Union Government and in India‘s volatile political scenario the Commission may be politicized. The Commission is dependent on grants from the Union Government for its financial functioning and this could compromise the independence of the Commission. The Commission‘s jurisdiction is not operative in Jammu and Kashmir and considering

the present political unrest and human rights violations in the region, the Commission‘s presence there is vital. Thus, there are a number of laws to protect women, but what is the use of having these laws when no one follows them? In fact, the people whose business it is, to enforce these laws are the ones who publicly flout them. Besides, not many women are conversant with law and few are aware of the rights and privileges accorded to them by the constitution. So they suffer all forms of discrimination, passively. In assessing women‘s progress, one must also examine the interconnections between women‘s unfreedoms and several other factors. Social customs and attitudes, levels of literacy and health, patterns of economic growth, structures of private and public decision making, political commitment - all these combine to define the functional boundaries of freedoms and choice, equality and exploitation in our society.

CHAPTER - VII

SUGGESTION AND CONCLUSION

Jawaharlal Nehru, the first Prime Minister of India, said, ‗You can tell the condition of a nation by looking at the status of its women‘. The Beijing Declaration at the Fourth World Conference on Women (1995) point 13 says, ‗Women‘s empowerment and their full participation on the basis of equality in all spheres of society, including participation in the decision-making process and access to power, are fundamental for the achievement of equality, development and peace‘. There are many examples of how much women can achieve when given the opportunity. In India there are women political leaders, astronauts, athletes and writers, who are role models for young women. But poverty and social inequalities still prevent many women from fulfilling their potential. The principle of gender equality is contained in the Indian Constitution, legal system and government policies. However, there is still a wide gap between these principles and the reality of the status of women in many communities across India. This is shown by low female literacy rates and high maternal mortality rates, particularly in rural areas. Attitudes need to change at the level of the family. Parents need to ensure that girls as well as boys receive health care, education, training, opportunities and access to resources. The low value that society places on women and girls means they are less likely than men to receive timely medical treatment or adequate nutrition. Unequal access to food, heavy work demands, and special nutritional needs such as for iron, make women and girls more vulnerable to illness, particularly anaemia. Anaemia caused by lack of iron is widespread among Indian girls and women and affects the majority of pregnant women. Anaemic and malnourished women give birth to malnourished children. Many women work twice as many hours as men because they carry out most of the household responsibilities as well as working outside their homes. Their household work is unpaid and unrecognised. Equal sharing of responsibilities for the family by men and women will help improve the status of women in India. If

husbands show love and respect to their wives, and parents show they value their daughters equally to their sons, this will provide a good model for the next generation. The Committee on Status of Women viewed legislation in an overall perspective of major changes in the social order needed for bringing about advancement in the Status of Women. It submitted its report called, 'Towards Equality"- After the report, the Law Commission of India and the National Commission for Women, established in 1992, worked extensively on women-related laws.204 Their style of functioning was participative. The recommendations made by the NCW are extensive in the Fields of Criminal and Personal Laws. On Criminal Law The NCW proposed certain amendments in the Criminal Procedure Code. 1973. It recommended amendment of Sections 198 and 320 to remove restrictions on the lodging of complaints in respect of offences under Sections 494 and 495 of the Indian Penal Code and to make the offences under Section 498 of the Indian Penal Code compoundable. The NCW proposed the strengthening of the laws to curb the incidence of sale of minor girls and enhancing the punishment for outraging the modesty of a woman. In the Indian Evidence Act, 1872 the new recommended amendment of Section 54 to permit in rape cases prosecution to adduce evidence on previous bad character of accused and treat same as relevant; deletion of Section 155(4) which permits in rape/attempting to ravish cases adducing of evidence that the prosecutrix was generally of immoral character. The Dowry Prohibition Act had loopholes because of which the menace of dowry continues. It was proposed to transfer the substantive provisions under the Indian Penal Code; to exclude dowry givers from punishment; appointment of Dowry Prohibition Officers. The Commission recommended that marriage expenses should be limited to 20% of die annual income of the girl‘s parents or guardians. In the Immoral Traffic (Prevention) Act, 1956, it was recommended to devise a comprehensive mechanism for taking up correctional measures and also to rehabilitate women and children in prostitution.

204

Report of National Commission for Women, Towards Equality— An Unfinished Agenda, 2001.

The Commission recommended the amendment of Section I of the Indecent Representation of Women (Prohibition) Act, 1986 to make the definition of derogatory representation of women more stringent. It further proposed for the increasing of punishment to violators. It also proposed to add provisions that no woman shall allow herself to be photographed nude or semi-nude for the purpose of any book, periodical, etc. The offence of Sati was proposed to be called ―Sati Murder‖. It was suggested that the substantive provisions be transferred under the Indian Penal Code, Criminal Procedure Code and Indian Evidence Act. Burden of proof of non-commission of offence be shifted to the accused. Sati Murder was to be so defined as to include terminating life of the victim in any manner, not merely by burning or burying alive. Section 3 of the Act which makes attempt to commit suicide punishable was asked to be scrapped. In the Medical Termination of Pregnancy Act, 1971, it was proposed that the woman‘s consent must be obtained in every case. Stringent punishment should be provided to violators. Apart from the amendments, the NCW has proposed the initiation of new bills/laws for the belter protection of the rights of women. In the field of criminal law, a new Bill, the Criminal Laws (Amendment) Bill, has been recommended, seeking significant strengthening of penalties under the Indian Penal Code in cases of outraging modesty of minors and in cases of child rape and incest. Provisions of safeguards to be built into the CrPC and the Indian Evidence Act in the context of rape cases were also proposed. It also recommended provisions for examination of rape victims by women officers, investigation by women police officers, trial by women magistrates, provisions for presumptions regarding the commission of the final sexual act. For prevention of barbarous and beastly cruelly, NCW proposed a Bill to provide for death penalty in cases of commission of barbarous and beastly acts. Trial of such cases was proposed to be by special Courts to be set up in consultation with the Chief Justice of India or Chief Justices of High Courts.

On the basis of guidelines given by the Supreme Court in Vishaka v. Stale of Rajasthan205, the Sexual Harassment of Women in Workplace (Prevention) Bill was recommended.

On Personal Laws The NCW proposed to consolidate laws relating to marriage under a Uniform Marriage Bill. The Bill contains comprehensive provisions on conditions, performance, registration, voidance and dissolution of marriages, apart from maintenance, custody and maintenance of children and Family Courts. It was suggested by the NCW that offences under the Child Marriage Restraint Act, 1929 be made cognizable and penalties be made stringent. Marriage in certain circumstances be declared void. Appointment of Child Marriage Prevention Officers was also suggested. In the Guardianship and Wards Act, 1890, it was recommended mat all discriminatory provisions should be removed and its general applicability should be maintained. The Commission proposed the introduction of a new Bill, the Orphan and Destitute Children (Adoption Bill) which proposed for providing orphaned and destitute children opportunity for better life through adoption, provisions to protect adopted children, licensing of welfare institutions, district court approval of adoptions, mandatory consent of parents/guardians, etc. In the Foreign Marriage Act, 1969, the Commission has recommended for the stipulation of conditions for the performance of Marriage under this Act. The NCW has proposed that matters connected with this Act should be dealt with by family Courts. The NCW also expressed its concern about the undesirable development; and practices relating to marriages between Indian Women and NRIs. It stressed the need inter alia for registration of marriages. The Commission on the basis of the guidelines in the Vishaka case206, prepared the code of conduct at workplaces and also for students. It also prepared a scheme in pursuance of the Hon‘ble Supreme Court‘s judgment in Delhi Domestic

205 206

(1997) 6 SCC 241. (1997) 6 SCC 241.

Women’s Forum v. Union of India207, which provided for compensation, counseling and rehabilitation of women victims. It also recommended more powers to the NCW through the NCW (Amendment) Bill, 1998 giving it powers to appoint its own staff, Commissioners for women‘s rights, prosecution powers and extension of the Act to the State of J&K.208 Misuse of the act, like all such acts in India , cannot be ruled out. In fact, with a system as corrupt as ours, money, clout and muscle power will always call the shots. And as long as the woman stays a puppet or pawn in the hands of her male relatives, she will always be manipulated and used. The chances of the act being misused are enormous. We have seen in past how The Dowry Prohibition Act, 1961 has been misused from the side of the so-called aggrieved person. The definition of Domestic Violence is too wide for my liking. How can the court ensure that the complaints of the affected party are right or not? The presence of the Malafide intentions on part of one party to harass the other cannot be ruled out. Sometimes in camera proceedings can protect the aggrieved woman from a lot of humiliation and shame especially in cases where explicit acts of sexual abuse and violence are being discussed in an open court and it allows for her dignity and privacy to be maintained. But, we have also seen trials where the in camera proceedings only intimidated the aggrieved in favour of the respondent. This is especially so when the aggrieved is the only woman in court facing a completely male phalanx of hostile, sneering magistrates, lawyers, officials, police, male respondent etc. The solution is to change this section to only allow for in camera proceedings. Not when either party so desires but only if the aggrieved party so desires. Also, the aggrieved party should be allowed to be accompanied by any relative/woman social worker etc. of her choice for moral support. There is also a doubt as to whether this Act can be thoroughly implemented by the administrative bodies. Can the Police, Protection Officers and NGO‘s do their work efficiently? But there is no doubt that with this Act a whole Pandora‘s Box of litigation will be thrown open and all the degradation, brutality and cruelty to women 207

(1995) 1 SCC 14. Report of NCW, GOI, ―Towards Equality, The Unfinished Agenda—Status of Women in India, 2001‖. 208

that has been carefully swept under the carpet for centuries in our ‗old, rich heritage and civilization‘ is all going to be exposed - and about time. From the previous chapters, it may be said that in the short period of fourteen years the National Commission for Women has managed to fulfill the mandate, if not completely then to a great extent. The achievements mentioned in the prior chapter are only a few of many similar achievements and they are proof of the popularity and support the Commission is gaining from the Indian woman. There is no doubt about the effectiveness of the Commission and about the good work which it is doing for the women of India, however, there are certain shortcomings in the working of the Commission, which, if rectified, would lead to a more efficient and productive Commission. To overcome the aforementioned shortcomings, it may be useful to incorporate the following suggestion: • The Commission suggested that the chairperson of NCW be given the status of the Union Cabinet Minister and the Members that of Minister of State. The status of the National Commission of Women should be given as a ‗constitutional body‘ under the Constitution of India to fulfill its recommendations with a greater degree of force. • The Commission must be granted the power to select its own members. If needed a separate body, selected from within the Commission, should be constituted in order to carry these functions. • The Commission must be given allocated funds in the Union as well as the State Budgets in order facilitate smooth functioning. Currently funds are only allocated at the Central level and not the state level. • The atrocities in Jammu and Kashmir are common knowledge. Taking these acts into account the Commission‘s presence in the region is quite vital and should be allowed. On this context we also have to see that how much the government implements the above mentioned clauses and suggestions. More over its not only the

duty of the state but also it‘s the duty of the citizens as a whole to look into if such miss conducts in our society is taking place or not. There should me more public awareness and participation for the women oppression so as make the work of the National Commission for Women more justifiable. Certain Law Reforms also should be recommended:



Law should be formulated fixing equal domestic responsibility on both

the spouses. In the discussion that persued with respect to this suggestion after the presentation was made by the group the need was felt to be very mindful of limitations of law. It was thus thought that it is not advisable to enact such a law which enables the state to intrude so much into the house and which is extremely difficult to implement.



Marriage law should be amended, so that nobody can divorce his wife

except on stringent grounds of desertion only after living together for 5 years. Even this suggestion was discussed and debated a lot on the ground as to what purpose such a law which forcefully binds people to each other will serve. It was suggested that probably the better approach is to ensure that after divorce status quo ante is established. The wife‘s contribution in the creation of assets and wealth should be recognized and the matrimonial property should be equally divided among the separating spouses once the marriage dissolves. 

During the discussions the need was felt to strongly question the idea

of maintenance and dependency it creates and the necessity to overcome the urge to fight for increase in the amount of maintenance but rather demand right to equal matrimonial property. 

Rape Law: Definition, Consent, Fact and circumstances.



Requirement of Law on sexual harassment at work place as per

CEDAW.



Law on discrimination of prohibition against Dalits, Amendments in

Atrocities against SC/ST Act.



Law on prohibition of exploitation of labour in unorganized sector.

Women have now not only found their place in work places but are also party to governance. In recent years there have been explicit moves to increase women's

political participation. Women have been given representation in the Panchayati Raj system as a sign of political empowerment. There are many elected women representatives at the village council level. At the central and state levels too women are progressively making a difference. Today we have women Chief Ministers in five large states of India. The Women‘s reservation policy bill is stated to further strengthen political participation. Judicial pronouncements of the Apex Court and other High Courts on the protection of women‘s rights must be implemented through proper and effective legislation. The Government has undertaken various measures, through law, policies and programs in the last 7-8 years to address gender inequality and to eliminate discrimination against women and girl children. Many laws and programs are still being reviewed to repeal the discriminatory provisions. Development of Research activity, works of NGOs in this field and Government should provide facilities to integrate these works. With the general poverty level reducing to 26 per cent and the marked increase in female literacy level, slight improvement in sex ratio and the entry of women into decision-making bodies, the inequalities that exist between men and women have reduced. However gender discrimination continues to be a daunting challenge and the Government will continue to pursue all measures, in a concerted manner, to eliminate discrimination against women and to translate the de-jure rights into de-facto enjoyment of rights and equal results. The Government commits to pursue the National Policy on Empowerment of Women, 2001 and the Plan of Action that is being adopted to give effect to this policy, strengthen gender budgeting and the Women Component Plan and adopt planning strategies that enhance socio-economic gains for women, which in turn would lead to empowerment of women. In this respect motivation of thinking of the Indian society and creating awareness among the women about their rights and privileges accorded by the constitution is necessary.

BIBLIOGRAPHY Prof. Rai Kailash, ‗The Constitutional Law of India‘, Allahabad, Central Law Publications, 2005 (740). Pandey J. N., ‗Constitutional Law of India‘, (43rd Edition,), Allahabad, Central Law Agency, 2006 (754). Shukla V. N., The Constitution of India, (10th Edition), Lucknow, Eastern Book Company. Jain M. P., Indian Constitutional Law, (5th Edition), New Delhi, Wadhwa & Company, Nagpur, 2008 (1708). Dr. Agarwal H. O., ‗International Law & Human Rights‘, (13th Edition), Allahabad, Central Law Publications, 2006 (980). Dr. Kapoor S. K., ‗International Law & Human Rights (Nutshell)‘, (14 th Edition), Allahabad, Central Law Agency, 2008 (475). Dr. Chandra U., ‗Human Rights‘, Allahabad Law Agency. Myneni S.N., ‗Legal Research and Methodology‘, (4th Edition), Faridabad (Haryana), Allahabad Law Agency, 2009 (278). Chandra Prakash and Prem Arora, ‗Comparative Politics and International Relation‘, (26th Edition), Gurgaon, Cosmos Bookhive (P) Ltd., 2005 (512). Dr. Kesari U. P. D., ‗Modern Hindu Law‘, (5th Edition), Allahabad, Central Law Publications, 2006 (540). Batra Monjula, ‗Woman and Law and Law relating to Children in India‘, (2nd revised Edition), Allahabad Law Agency, 2003 (369). Rao Mamta, ‗Law relating to Women & Children‘, (1st Edition), Lucknow, Eastern Book Company, 2005 (475). Mishra O. P., ‗Law relating to Women & Child‘, (3rd Edition), Allahabad, Central Law Agency, 2006 (256). Prof. Pillai K. Madhavan, ‗Labour and Industrial Laws‘, (10th Edition), Faridabad (Haryana), Allahabad Law Agency, 2005 (548). Pandey Shruti, ‗Property Rights of Indian Women‘. Sen Kalyani Menon and A K Shiva Kumar, ‗Women in India how free? how equal?‘, Report commissioned by the Office of the Resident Coordinator in India, 2001, Mensa Computers Pvt. Ltd.

Mangoli R.N. and Ganapati M. Tarase, ‗Crime Against Women in India: A Statistical Review‘ International Journal of Criminology and Sociological Theory, Vol. 2, No. 2, December 2009, 292-302. Prathapan Supriya, ‗CONSTITUTIONAL RIGHTS OF WOMEN IN INDIA‘, Society/ Women‘s Issues (2009-04-30). Vaghela Joyce, ‗Status of women in India‘, (14 November 2007). EXPERT GROUP MEETING ON VIOLENCE AGAINST WOMEN DURING 1-3 OCTOBER, 2008 Bangkok, Thailand, COUNTRY REPORT: INDIA. Planning Commission, Government of India, ‗Report of the Steering Committee on Empowerment of Women and Development of Children for the Eleventh Plan‘. www.indiastudychannel.com www.legalserviceindia.com www.swayam.info india.mapsofindia.com http://books.google.com. http://www.britannica.com/EBchecked/topic/366305/Married-WomensProperty-Acts. http://muse.jhu.edu/journals/journal_of_womens_history/v012/12.2braukman. html. http://www.jofreeman.com/feminism/suffrage.htm. http://nrcw.nic.in. http://wikipedia.org http://www.infochangeindia.org/WomenIbp.jsp. www.twocircles.net/legal_circle

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