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 I

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

feminists 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. Pro-
feminist 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.
10
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
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.
22
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.
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.
35
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.
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
WIC – Women‘s History in America.
40
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.
53
Ibid.
54
Jyotsana Kamat (2006-1). ―Status of Women in Medieval Karnataka‖.
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
57
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.
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.
61
―InfoChange women: Background & Perspective‖.
62
Ibid.
63
―National Policy For The Empowerment Of Women (2001)‖
 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
The Status of Women: A reality check, www.swayam.info.
65
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 socio-
economic 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.
68
AIR 1957 Raj. 10.
69
AIR 1976 Del 302.
70
AIR 1970 P & H 372.
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
73
AIR 1979 SC 1868
74
AIR 1981 SC 1829.
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
(1992) 1 SCC 286.
76
(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
AIR 1997 SC 3011 : (1997) 6 SCC 241.
78
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 non-
government 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
AIR 1997 SC at 3017
80
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.
82
(1991) 1 SCC 57.
83
(2000) 2 SCC 465: AIR 2000 SC 988.
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
AIR 1988 SC 1782: 1988 Supp SCC 734.
85
(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.
89
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
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
93
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
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 non-
citizen 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
Ibid No. 1 P. 200-1, para. 1696.
99
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
Ibid para. 1711 and 1712.
102
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
Supra N. 33. P. 203, para. 1726.
105
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.
107
Ibid para. 1735.
108
Ibid.
 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 non-
formal, 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 non-
governmental 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 4-

15 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
116
17-26th March, 1993.
117
November 1991.
 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 Forward-
Looking 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 decision-
making.

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
New York Times article.
119
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.
122
(1988) 1 SCC 530.
123
Sodha v. Mansharan, 1971 HP 27.
 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.
126
Kunthu Devi v. Sri ram, 1963 Punj. 235.
127
AIR 1977, A.P. 43.
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
129
AIR 1984 AP 225.
130
ILR (1884) 7 Mad 548.
131
AIR 1957 Mad. 97.
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
(1970) 2 MLJ 477
133
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 co-
habitation 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
AIR 1991 Bom 315
138
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.
140
1979 KLJ 149
141
AIR 1998 Bom 234
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.
146
Hedaya, Vol. 1, p. 322.
147
Fyzee, p. 156.
148
AIR 1970 J&K 154.
 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 agreement to become her husband‘s wife by

152
Mulla: Mohammedan Law, p. 227.
153
Baillie’s Digest, Vol. I, p.91.
154
Abdur Raheem: Muhammadan Jurisprudence, p. 334.
155
AIR 1980 All 118.
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.
157
Khalid Rashid: Mohammadan Law.
158
ILR 1933 All 743.
159
(1912) 15 Oudh Cases 127.
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
Aquil Ahmad: Text book of Mohammedan Law.
161
(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.
164
(1957) All LJ 300.
165
(1912) 37 Bom 280.
 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.
167
1957 All LJ 300.
168
(1957) 1 All 255.
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
AIR 1960 Ori 164.
171
(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
(1995) MLJ 492.
173
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
AIR 1953 Mad 792.
175
(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
(1990) 2 DMC 119 (Ker)
177
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 if-

181
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),
184
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).
 (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
(1981) 4 SCC 335.
191
(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, sub-
sections (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).

193
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. sex-
linked 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 women-
No 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 post-
mortem 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)
201
1994 Cri LJ 3472 (P&H)
202
(1994) 6 SCC 727
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 re-
framing 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 macro-
policies, 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 Non-
Government 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 witch-
hunting. 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 decision-
making 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 socio-
economic 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
(1997) 6 SCC 241.
206
(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.
208
Report of NCW, GOI, ―Towards Equality, The Unfinished Agenda—Status of Women in India,
2001‖.
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.
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