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Women and law
As we know women constitute almost half of the world’s population. Their contribution at all levels of the social
milieu is immeasurable. Erstwhile treated as a weaker sex, women have fought for their rights, overcome barriers and
become force to be reckoned with. Today, women form a dominant proportion of the workforce in any field. From
holding together a household to running business empires and becoming nation builders, their role in all aspects of a
civilized society cannot be emphasized enough. Keeping that in mind, one would assume that discrimination against
women would now be a thing of the past. But that is not so. Despite their pivotal role in the world, women in general
are not treated equal to men in various aspects. Patriarchal ways of life render women at a socially disadvantageous
position. In terms of education, healthcare and overall growth they often get ignored. Deprived of even the most basic
necessities, women are often forced to live a life of subjugation and prejudice. Women often face bias at the
workplace particularly in male dominated spheres and in unorganized sectors. There is a significant gap in the
distribution of income and resources and the same is evident from the fact that women are often paid less than their
male counterparts. This goes against the basic principle of “equal pay for equal work”. Such inequalities have been
prevalent since long and are deep rooted to the extent that they have almost taken the shape of an accepted norm. Over
time, such differences have gotten ingrained in our social systems and sprouted various problems such as “Female
Foeticide, Sexual Offences against Women, Domestic Violence, Sexual Harassment at Workplace, Dowry Offences”
etc.
Women have always been perceived as a weaker gender, hence they are subjected to various forms of violence.
Women suffer and bear the pain of violence at physical as well as mental levels. Today the world scenario holds the
position in which crime against women is doubling with the passage of time.
There are certain factors which are responsible for the rising sexual crimes against women. In majority of Indian
households the way son is brought up differs from the way a daughter is raised. Boys are raised in most patriarchal
systems as rightful inheritors of this world. Girls are raised to play submissive and supportive role. This gets reflected
in gender attitude a man becomes the violator and the woman violated even when there is no clash of interests
between the genders. However in most of the western countries women are treated as equal to men in many places.
According to the report “Even in the 21st century women continue to be burdened by their very womanhood. They
continue to be suppressed, subordinated and discriminated in numerous ways and are regarded as second class
citizens. Usually women have a very little say in decisions affecting their own lives even after marriage. For most of
the Indian women marriage itself is not a matter of choice. Only few educated women from economically good
background have any role in deciding when and whom they will get married. It can be said that it is basically
manifestation of unequal power relation”.
According to the study conducted on married women “In India there are certain traditional norms which prescribe the
parents of girls as well as boys their responsibilities in getting their children married. In India marriage is considered
as alliance between two families rather than a mere union of two individuals. While selecting a life partners the
parents of the groom certainly consider such things as the girl’s family background, economic position, general
character, family reputation and dowry etc. Greater emphasis was placed specifically on the characteristics of fitness
and adjustability of the girl in the joint family. Hence it is only logical for the parents to assume the responsibility of
selecting spouses for their sons because the bride was part of the whole family environment rather than a wife only to
her husband.”
No doubt over the years all social institutions in India have undergone constant and gradual change and modifications.
Although the family is the most conservative institutions only next to religion, it has not remained untouched by the
process of modernization. As there is increase in education and other factors, traditional family structure in India has
drastically changed from joint family to nuclear family and changes within the family system. However the decision
making power of women has not yet changed as expected, nor do they can take independent decision on the matters
related to marriage practices. At the same time industrialization, urbanization, modernization and the recent
development in information technology has resulted in drastic change in the pattern of selection of mate, and allows
some freedom to the younger generation for their marriage. Due to the effect of globalization international marriages
are also not uncommon.
According to National Crime Report, “In recent times however certain malpractices have been seen in the social
mores with cases coming to light wherein dowry has been seen as a means accumulating wealth at the cost of the
bride’s parental family. In the year 2002, the National Crime Record Bureau registered 1878 cases under the Dowry
Prohibition Act, 1961 and 794 incidents of dowry deaths.” “The Dowry Prohibition Act”was enacted an early as
possible as 1960 but still this problem exists in our so called civilized society. The modernization of tradition from
19th century onwards did not help to improve things till date. Custom is still the same and the constitutional rights and
privileges have been able to create only an illusion of equality, liberty and dignity of women. Discrimination,
degradation and drudgery depict the deplorable situation of women. The changing social structure instead of
controlling gender violence has helped in institutionalizing women values and belief systems.
The past hundred years have witnessed the phenomenal evolution of the Indian women from participating in
nationalist movements to being pushed into the domestic household space , women who are active in politics who
make policies ,who have gone to space and have made their presence felt in every single area of public life. Even
though women have excelled in various areas over the years yet the world in which we live is characterized by the
deep sense of uneven sharing of the burden of adversities between a man and a woman. Extensive inequalities persist
in their access to education, health care, physical and financial resources as well as in opportunities in the political,
economic, social and cultural spheres.
In India there have been innumerable debates on gender over the past years. Much of it includes women’s position in
the society, their education, health, economic position, gender equality etc. What we can conclude from such
discussions is that women have always held a certain paradoxical position in our country. On one hand our country
has seen an increased percentage of literacy among women and now women are allowed to enter into professional
fields while on the other hand, the practices of female infanticide, foeticide, poor health conditions lack of education
are still persisting. Even the patriarchal ideology of the home being women’s real domain has not changed much. The
matrimonial advertisements shamelessly demanding girls with fair skin and slim figure are the few indicators of the
never changing regressive social moves.
Though a certain number of constitutional amendments were made for women’s social, economic and political
benefits yet they were never effective to bring a radical change in the situation. A few educated women began to see
themselves increasingly changed from a mere guardian of home to a legitimate participate in the discourse of life. The
country saw the first undercurrent of female discontent with the system. Many women began to have new dreams of
love, longing and new possibilities. In modern India women have adorned high offices including that of “the
President, Prime Minister, Speaker of Lok Sabha and leader of the opposition. In 2011 the President of India, the
speaker of the Lok Sabha and the leader of the opposition in Lok Sabha were all women”.
In protecting the women, Indian Judiciary has also played a very significant role. It has removed all the procedural
shackles and has completely revolutionarized the constitutional litigations. The judiciary has encouraged widest
possible coverage of the legislations by liberally interpreting the terms. It has shifted from doctrinal approach to the
pragmatic approach which is conducive to all interests of the society. The courts have shown greater enthusiasm in
granting the constitutional provisions for all women. The judiciary by its landmark judgements has filled up the gap
created by the legislative machinery. It has extended helping hands to the women when the legislature had denied.
“From the process of modernization and urbanization the violence against women has got increased in many forms
resulting in the form of increase in dowry deaths, domestic violence, sexual harassment at workplace, molestation and
eve teasing, increase in rape cases, child abuse, bigamy, abandoning of new born girl child and also declining sex
ratio.”
In Charu Khurana v Union of India the Supreme Court took notice of the gender inequalities prevalent in the Indian
film industry. Only men are allowed to be makeup artist. The reason as stated by the unions concerned is to ensure that
male members are not deprived of work since if female artist were allowed memberships male will not get any work.
The Supreme Court refused to let go this gender bias continue. The petitioner’s counsel pointed out this discriminatory
practice of depriving female make-up artists of their fundamental rights to work and earn livelihood guaranteed by
Article 14 and 19(1) g of the Constitution. The Court observed that these unions could not function like mafia in
keeping women out of the jobs although they were skillful and qualified.
The development of a nation solely depends on the social status of women and as we know women constitute almost
one half of the globe’s population. However women have been the victims of exploitations by male dominated society
and continue to be exploited but now it is required that women need to be empowered and men need to be oriented
about their obligations towards women. The position is same around the world whether developed, developing or
under developed nations. Women play major roles during various stages in their life as a daughter, mother, wife and
sister etc. In spite of her contribution to human being she still suffers social, political, economic and psychological
barriers and impediments. One side women is worshipped a s goddess and on the other side she is oppressed,
suppressed, depressed, exploited and victimized by the male dominated society.
A report of the United Nations say that “women constitute half of the world population perform nearly two thirds of
work hours, receive one tenth of the world’s income and own less than one hundredth per cent of the world’s property.
As we know that women is still suffering from discrimination, exploitation and victimization. The need of the hour is
empowerment of women. Empowerment essentially means decentralization of authority and power. It aims at getting
participation of deprived sections of people in decision making process. It means giving voice for voiceless.
Empowerment may mean equal status to women to develop her. Man should give women opportunity and freedom to
develop her educationally and economically. Women empowerment looks at basic woman rights and attempts in
organizing to attain them. Women empowerment can influence not only their own lives but also the lives of man and
children. Women empowerment may enhance their self confidence and their ability and willingness to challenge
oppression. Women empowerment aims at eliminating the discrimination and challenging gender inequality.
There is existence of gender bias over the world and it is the blatant violation of human rights of women. The full
development of her personality, fundamental freedom and equal participation by women in the political, social,
economic and cultural fields is necessary for national and international development. Life without inequality is a
human right yet millions of women and girls suffer inequality.
The law has always stood to favour of the women. For the Law recognizes their vulnerability for survival in the cruel
world. Women being a keeper of hearth in home need to be protected as they are the foundation of any society. If
women are exposed to physical abuses to sexual exploitation the very foundation of the society would begin to
weaken. It is only after recognizing their importance sociologically that the ancient Indian Seers had opined that
“Gods dwell only in those houses where women are respected”. Thus both the law and society recognise a moral and
legal duty of the husband to maintain the wife.
It is the failure of governments and societies to recognize the human rights of women. It is rooted in a global culture of
discrimination which denies women equal rights with men and which legitimizes the appropriation of women’s bodies
for individual gratification or political ends. Everyday all over the world women face gender specific persecution
including genital mutilation, sexual slavery, and forced prostitution ad domestic violence. At least one out of every
three women worldwide has been beaten, coerced into sex or otherwise abused in her life time.
Law has played an important role in defining and setting boundaries as to what women can and cannot do and in
upholding the social roles and norms about men and women. The imposition of roles on the basis of anatomical and
physiological differences between men and women is done by society and legal institutions have been used to support
the ordering of society on a gender role basis. Law thus is one among a number of important factors in trying to
understand the ways in which women are subordinated.
Pandit 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”. This statement revels that, “status of women of any nation is the mirror of its civilization. If
women enjoy good status, then it shows that the society has reached the level of maturity and sense of responsibility.
Indian Constitution has bestowed us with equal rights. But when it comes to position of women, we observe gender
bias and unequal treatment given to women. Women today have achieved success in all the possible fields and are in
no way less competitive than men. This is on one side. But the real story reflects the darker side of the status of
women. Gender disparity is obvious by the trend of continuously declining female ratio in the population. Social
stereo typing and violence at domestic and social levels are some of the manifestations.
The Indian Constitution has made several provisions for protecting the rights and dignity of a woman. If we take a
closer look it will reveal that state policies reflect the basic traditional attitudes. While holding violence as repugnant
our society not only accepts and tolerates it but also legitimizes it in certain prescribed form and given contexts in the
perpetuation of the existing social order and fundamental social institutions. Gender inequality leading to gender
violence is deeply embedded in the Indian social structure.
Since gender inequality and women’s disempowerment occur in different domains in which women and men interact
and function both concepts are multi dimensional, consequently, giving rise to a large number of potential indicators.
Indicators of gender equality or inequality are typically designed to compare the status of women and men on
particular characteristics of interest whereas by definition, indicators of empowerment/ disempowerment tend to be
relative. Instead, indicators of empowerment are designed to measure roles attitudes and rights of women and
sometimes of men
WOMEN AND RELIGION
Position of women varies from religion to religion and time to time. According to Christian bible wives were expected
to be submissive in many ways. They are asked not only to be submissive to their husbands but the church and God.
Christianity support that women should have a progressive role in Christianity. the first woman seen is Mary, the
Mother of Jesus. The fact that she is accorded the status of the mother of Jesus is important. She was a companion and
wife to Joseph and nurtured Christ and stood near his cross taking upon herself the ignomity and pain and accepting
the rejection of Christ by the Jews. Mary is the second Eve, according to the Christian theology and is the mother of
all the livings who believe in Jesus Christ. The Indian Christian woman brought up under the prevailing religions and
socio cultural patterns has lived in the false security of the male dominated church and church-related institutions.”
The Sikh doctrine brought revolutionary change in the status of woman and they fully participated in "Sangat" and
"Pangat" established by Guru Nanak. “The practice of Sati has been condemned. The purdah, veiling of woman's face,
was eradicated. Guru Nanak did not criticize any religion but deviated to the extent that he stressed on the practical
side of the life and attacked dogmatism and formalism and casteism. The taboo that for certain period after child birth
a house is polluted, is not accepted. The emphasis has been on self-restraint and continence, so that man should look at
woman, however attractive, as primarily either sisters, daughters or mother (except the woman whom he married).
Even within this broad perspective, the status of women in the Sikh community is again in a state of transition.”
Motherhood is considered as the greatest glory of Hindu Women. The taittiriya Upanishad teaches “ Matridevo Bhava
. Let mother be the God. The invasion of the country by Muslims in 11th Century brought about further deterioration
of the position of woman. Life became insecure. Restrictions on her rights and freedom and her resultant hardships
were aggravated. Women were forcibly taken away to be slaves or to marry into Muslim homes. The consequent
insecurity and instability further narrowed down woman's social liberties.
On the one hand, the foreign Muslim conquerors attempted to impose their coercive norms on the conquered Hindu
population, on the other hand, the Hindu society itself became more and more rigid curtailing thereby the rights and
freedom of the lower castes and women. Due to this two-fold reason, the post-puranic period is one of the darkest
periods for women in Indian history. The steady deterioration of her status continued till the 1911, century.”
Polygamy and the Purdah were two of the most important social institutions of the Muslim conquerors of India. Under
the purdah system, not only were women required to live in a secluded apartment in the house, but also they had to
dress in an apparel which completely covered their body excepting the eye.
Before the Muslim conquest, the Buddhism had not followed the custom of Sati. Social sanction for the selfimmolation of widows came in with Muslim invasion. Before Muslim rule, the practice of Sati and anumaranam did
occur off and on but not as a regular feature. As a result of repressive social and religious custom, a woman sometimes
even preferred Sati to widowhood.
Instances of Brahmin women who practiced Sati are also recorded in the 15th century and after the foreign chroniclers'
record, “the Hindu widows who did not observe Sati were held in great dishonour. The practice of sati was also
extended to the southern parts of India. The spectacle of the living widow consuming her body in fire was so
gruesome that Ibn Batuta actually fainted when he witnessed one such instance. The widow in the case was persuaded
to believe that her act of self- immolation was even more auspicious than the nuptial ceremony since it guaranteed the
continual association with her husband in life after death.
Due to lustful proposal of Arauddin Khilzi, Rani Padmavati with about 700 Rajput committed themselves to flames
which came to be known as "Jauhar Vrata". Gradually child marriages were preferred in the society and the death of a
widow was welcome news as she would not fall into evil hands. A woman in Hindu society has always been
considered an appendage to her husband. She has no life apart from him. Consequently, on her husband's death there
was no reason for her to live on. Also the husband was her sole protector. Once he was gone, who would protect her?
During foreign invasions by the Turks, Muslims and others when their menfolk were killed, the widows were very
naturally expected to commit sati.”
Hence, immolation of widows and killing of girl child infanticide started in a large number. Such wilful violence came
to be called a curse of the Hindu society. Child marriage, girl killing, widow burning all came to stay with the dignity
of the conventions in Hindu. society because the Hindus were destined to remain slaves for about thirteen centuries.
Even the Muslim were not spared this fate when they became subjugated by the white rulers of England. They
developed purdah, illiteracy, disease, legal discrimination and handicaps but the worst part of their fate is the male
dominance in their society and their century old dumbness.
POSITION IN VEDIC PERIOD
If we want to study socio economic structure of the Indian Society it is necessary to study position of woman in pre
Vedic and post Vedic period are of great relevance. Pre Vedic we mean 2500-1500 B.C and post Vedic 1500-500 B.C.
Literature on Indian history does not portray the exact picture on Status of Women. One side she is Ardhangini i.e
there was equality between men and women and on the other hand there are certain practices which show her
subordination.
The position of women during the Vedic period was glorious on account of freedom and equality. During this period
women participated in every walk of life .In Upanishad “ the wife has been regarded as a true companion of husband.
The wife has been called the root of prosperity, enjoyment and Dharma in Mahabharata. The man was not religiously
competent to perform religious duties without his wife. However the system of polygamy and dowry was only
prevalent in ruling class. No prohibition of remarriage and no such discrimination between boy and girl.”
This period was regarded as best of femine glory and also masculine sagacity and liberalism. According to Mac donell
and Keith- “The word Dampati often used in Vedas signifies the high status of women in Ancient India. Thus like the
status of women in the contemporary western world, the status of women in India was based on liberty, equality and
co-operation. In Vedas it is written that many high class women were highly educated and they actively participated in
intellectual and philosophical discussions. Both men and women had freedom to select their partners. The status of
women during the Vedic era was at par with men. She was adored, respected and recognized. She had the identity of
her own and received same respect as was given to males. In every social and religious ceremony she was associated.
The Vedic period is characterized by the absence of the purdah system, equal rights in selecting life partners,
polygamy being rare, mainly confined to the ruling class.
There is no mention of right to acquire property in our Vedas but daughter can only get property in the absence of
brothers. No doubt society was patriarchal but marriage is considered as necessary institution. Usually monogamy
exist in the society but in royal class polygamy exist. Widow remarriage is permitted. As patriarcy exist there is no
legal right to property to women this gives birth to importance of male child which later on became responsible for
decline in status of women. Historians places number of reasons one such reason is caste system as inter caste
marriages were not allowed if women were given freedom then there would have been mixing of castes.”
In post vedic period “Manu propounded certain hardships for women in Post Vedic Period. His intention was seting
up of male dominated society by increasing the authority of man. Birth of the girl child was treated as disaster for the
family. Education was denied to girls. Marriageable age of girls was lowered to 9-10 years. But it was the post Vedic
period the women’s right of property was recognised and the concept of stridhan prevailed .As Manu defined
Streedhan-“ that which was given to her before the nuptial fire in bridal procession on token of love and which she has
received from father, mother, brother and husband”.
In the post Vedic period the status of women suffered a setback when various restrictions were putt on women’s rights
and privileges by Manu. The role of women in later Vedic India began to be reduced to perform only one job namely
to bring progeny for men. The then society being mostly an agricultural society, required more men than women. In
Manusamriti, Manu keeps woman in high esteem when he says that “woman must always be honored and respected
by the father, brother husband and brother-in-law who desire their own welfare.” A look to Manusamriti creates the
following impression that is: “Manu was not prepared to allow any kind of independent activity to women without
consultation or permission of the male members of the family. She was subjected to guardianship of the father during
her childhood, of her husband during her youth, and of her sons after the death of her husband. She was not allowed to
do anything independently even in her own home. This condition could not improve even during the British rule. In
the later part of the 19th century, national leaders and social reformers tried their best to improve upon the status of
Hindu female.
The reformers thought that by giving women access to education and by enacting progressive legislation social change
could be initiated. “Raja Ram Mohun Roy , Ishwar Chandra Vidyasagar, M.G.Ranade and others from all parts of
India raised their voice against the unjust practices” .The formation of All India Women’s Conference in 1927, was a
crucial event in women’s march towards equality. After independence, the Constitution of India envisaged
socioeconomic equality to all Indian citizens, irrespective of caste, creed or sex.
The subservience of women is precisely summed up in the famous injunction of Manu, where it is stated that a woman
should never be independent. As a daughter she is under surveillance of her father as a wife of her husband and as a
widow of her son. It was said that women should be loved but added protected.It was still believed that where the
women are honoured there all deities are pleased and where they are dishonoured there all religious acts become
fruitless.
POSITION IN POST CONSTITUTION ERA
In keeping to the historical social and political realities of the patriarchies in India, Part III of the Constitution of the
country enumerates certain general as well as specific provisions to uplift the status of women in the country,
enforceable as constitutional or fundamental rights. The recognition of domestic violence as a social problem and
keeping in view the available statistics the government of India from time to time took following measures to address
domestic violence and curb the societal pressures leading to this form of violence against women.
Articles “14, 15, 16 and 21” of the Constitution attempts to give equal treatment of life and livelihood to both men and
women. Embodying the guiding principles of Equality before Law, Article 14 states that the State shall not deny to
any person equality before the law or the equal protection of the laws within the territory of India.
Equality before the law and equal protection of the law are guaranteed under Article 14 and 16. Article 21 guarantees
“ rights of life and personal liberties”. Equality of opportunity, prohibiting discrimination on the grounds of gender is
ensured. Equality before the law or equal protection of the laws means the rights to equal treatment in similar
circumstances
both
in
privileges
conferred
and
liabilities
imposed.
Article 15 states “that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them.” Article 15 (1) “prohibits differentiation on certain grounds mentioned. The Court
observed that this article is the extension of Article 14. Article 15(1) expresses a particular application of the general
principle of equality embodied in Article 14.”
Providing equal opportunities irrespective of sex, and prohibiting discrimination against women, Article 16 clearly
states, “ Equality of opportunity in matters of public employment—(1) There shall be equality of opportunity for all
citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on
grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be eligible for, or
discriminated
against
in
respect
of,
any
employment
or
office
under
the
State.
Enumerating the right to protection of life and personal liberty, Article 21 provides that No person shall be deprived of
his life or personal liberty except according to the procedure established by law.”
For upholding the fundamental rights and the democratic freedom an independent judiciary is also created. New
schemes, like legal Aid, Lok Adalat, public interest litigation have come into vogue with basic idea of eliminating the
delay in imparting justice .Several welfare legislation have been brought into force to protect and promote the rights of
women
and
readdress
their
grievances.
In view of the constitutional provision of Article 39 which specifically directs “the states to secure equal pay for equal
work for both men and women, the Parliament has enacted The Equal Remuneration Act 1976, which provides for
payment of equal remuneration to men and women workers for the same work or a work of a similar nature and for
the prevention of determination on grounds of sex. The notion of “equal work” depends on a number of various
factors such as responsibility, skill, effort and condition of work. In pursuance of the objectives of the state in order to
secure just and human conditions of work and for maternity benefits as enshrined in the Constitution of India, the
Parliament has enacted The Maternity Benefits Act of 1961”. This Act regulated the employment of women in certain
establishments for certain periods before and after child birth as well as provides for maternity and other benefits.
These legislative measures include the “Hindu Marriage Act, 1955, Hindu Succession Act, 1956 and Child Marriage
Restraint Act 1976”. Apart from these various welfare measures have been taken up by the government from time to
time to empower women. They are the support to training for Employment Programme (1987), Manila Samriddhi
Yojana (1993), the Rashtriya Mahila Kosh (1992-93), Indira Mahila Yojana (1995), DWACRA Plan (1997) and
Balika Samriddhi Yojana (1997).
Though the Indian Constitution provides “equality of status and of opportunity to women, discrimination is persisting
in one form or the other”. Discrimination against women continues to exist even today as it is so deep rooted in the
traditions of Indian society. The root cause for the discrimination of women is that most women are ignorant of their
basic human rights and position of equality assured to them under the Indian Constitution and other legal systems.
Enlightened women should fight to bring awakening in other women regarding their rights by bringing awareness
about their status in society as they constitute half of the population.
Over the past few decades, legal advancements and policy reforms have done much to protect women from all sources
of violence. Still the crimes against women are on the increase. As per the national crime record bureau “a total
3,27,394 cases were reported in 2015which show an increase over 43% in crime against women since 2011 when
2,28,650 cases were reported. A total of 3,27,394 cases of crimes against women were reported in our country. Uttar
Pradesh with 16.8% share of country’s female population has reported nearly 10.9% of total crimes committed against
women at all India level.”
In India al the wings of the government i.e legislature, judiciary, executive at the centre, state and local levels have the
responsibility towards empowerment of women in the light of Fundamental Rights and Directive Principles of State
Policy which give a ground for purposive interpretation to promote constitutional feminism. As it is the fundamental
duty of all citizens to renounce the derogatory practices to the dignity of women. Some of the cases amongst others
which project the concept of this type of feminism are “Vishaka v. State of Rajasthan, Nilima Priyadarshni v. State of
Bihar, Bodhisattwa Gautam v. Subhra Chakraborty, and State of Punjab v. Gurmeet Singh”.
A research was carried out by six Women’s Studies Centre sponsored by the Department of Women and Child
Development, Ministry of Human Resource Development, Government of India in 2005 for preparing a report on
developing Indian perspectives on Feminist theory. The report highlights the following points:
I. Feminist theory is a tool for contemporary intellectual enquiry. Its Indian perspectives have not been developed so
far though many scholars have express their dissatisfaction with the available analytical tools which have originated in
other cultures. The major gap is in academic reading material on women’s studies in India and on interpretations of
feminism.
II. A new knowledge base has to be created by placing at hand theoretical parameters and urging practitioners of
feminist discourse in India to re-interpret received banks of learning .
III. Issues of ethnicity and identity surfaced at many levels. Religion and customary practice jostle with Indian
versions of modernity.
Law is being used as an important instrument for transforming the status of women. The complex interaction between
law and public opinion must be explored in order to understand the true impact of public policies and the position of
women. Women all over the world have launched powerful movements to reverse centuries of discrimination and
injustice they are mobilizing against violence and oppression, they are demanding equal rights, greater opportunities
for development, equitable laws and control over their earnings and bodies. Feminism has become a global movement,
shaped by and reflecting the interests of women in every region of the world. Feminism symbolizes an awareness of
oppression on domestic, social, economic levels, accompanied by a willingness to struggle against such subjugation.
Leaders focus their attention on equalizing strategies, which represent attempts to improve women's access to.
Existing education, employment, health care, credit and other opportunities, and ultimately to make resources more
amenable to women's needs. UNO promoted the development of international feminism and women's movements by
creating national and international forums for action.
The UN in 1975 centered International Women's Year around three themes representing goals for women. These are
promotion of equal rights for men and women, integration of women in development, and women's role in
strengthening peace. The first two relate to work, and all three to status. This implies a re-examination in, every
country of women's present actual status, and the professional standing of women. The Director of the UN Division of
Human Rights has said, "The problem applies just as much to developing countries as to industrialized countries."
Implementation of rights in the wide and complex disparities of human society is a difficult task. In India, it would
relate to numerous aspects including domestic life, work value and work ethic. The Decade for Women (1976-85) and
UN Conferences in Mexico City, Copenhagen, Nairobi and Beijing, all nurtured the international linkages among
women in large and small ways.
Human right for women’s operational in the context of a certain kind of society. We envision a society where we can
act on our own behalf with dignity and freedom and support the development of others. Human rights for women has
been defined as the collective rights of a woman to be seen and accepted as a person with the capacity to decide or act
on her own behalf and to have equal access to resources and equitable social, economic and political support to
develop her full potential. It has been unanimously expressed that women's rights are human rights and that feminism
cannot be delinked from Human rights advocacy.
The Universal Declaration of Human Rights (1955) proclaims: "All human beings are born free and equal in dignity
and right." But women's freedom, dignity and equality are constantly denied all over the world on the basis of custom,
tradition, culture and religion in ways that men's rights are not. Advances in the recognition of this factor and women's
advocacy to establish that women are indeed human and therefore entitled to the enjoyment of rights accorded to all
human beings has a long history that encompasses almost a century of struggle.
The struggle has been waged through an interactive process that derived its impetus from the women's movement
nationally and globally. It involved governments and international organizations and created a local and international
dynamism that informed each other. In an attempt to address the inequalities and disadvantages suffered by women,
several interventions were put in place at the international level. Over the years, there have been three overlapping and
interactive developments.
During the first stage, specific legal rights of particular concern to women were promoted through conventions
relating to employment, maternity, trafficking in persons, nationality, civil and political rights, marriage, education,
and violence against women to which states at the local level contributed by acceding to them.
During the second stage, states succeeded in including sex as prohibited grounds of discrimination in such agreements
as the “ Universal Declaration of Human Rights and its two implementing Covenants, the Covenant on Civil and
Political Rights and the Covenant on Economic, Social and Cultural Rights, collectively called the Bill of Rights as
well as in the Regional Human Rights Covenants”.
The third stage of development addresses the pervasive and structural stature of violations of women's rights, through
the “Convention on the Elimination of All Forms of Discrimination against Women. The Convention, the most
comprehensive of all instruments, has been slow to achieve its potential”.
In the last two decades in particular, many other global initiatives had been taken to promote women's rights. They
include the declaration of the decade for women (1975-1985), four world conferences on women, the adoption by
consensus of the “Nairobi Forward Looking Strategies (1985) and the Beijing Declaration and Platform for Action
(1995). Other world conferences, particularly the Vienna Conference on Human Rights and the International
Conference on Population and Development have advanced the understanding and global commitment to women's
rights”.
The United Nations defines violence against women as any act of gender based violence that results in or is likely to
result in physical, sexual or mental harm or suffering to women, including threats of such acts of coercion or arbitrary
deprivation of liberty whether occurring in public or in private life. Some of the earliest steps taken in this regard were
Article 2 of the U N Declaration on Human Rights “which stated rights and freedoms irrespective of distinctions in
“race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other
status.” Article 1 and 3 of the declaration are important as article 1 states basic concept of freedom and equality in
dignity and rights .According to article 3 there should be right to life and liberty and security of person. There is
mention of equlity before law to all and all are entitled to equal protection of law without any discrimination. 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 at its
dissolution”.
After that Convention on Political Rights of Women, 1953 was passed. “This convention entiltles woman to vote in all
elections on equal terms with men without any discrimination. According to this article women will be eligible for
election to all publically elected bodies. There is mention of entitlement to hold public office and exercise of all public
functions on equal terms without any discrimination.”
This was followed by the Convention on the Nationality of Married Women,, “as need was felt to ensure women that
they did not become Stateless upon marriage, thus respecting the rights to their nationality. The contracting State
parties of the Convention have undertaken following commitments. Neither the celebration nor the dissolution of
marriage between one of its nationals and alien, nor change of nationality by the husband during the marriage shall
automatically affect the nationality of wife. The alien wife of one of its nationals may at her request acquire the
nationality of her husband through specially privileged naturalisation procedures. But this grant of such nationality
may be subject to such limitations as may be imposed in interest of national security or public policy”.
The International Covenant on Economic, Social and Cultural Rights, 1966 declares that, “the State parties to the
present Covenant undertake to ensure the equal rights of men and women to the enjoyment of all economic, social and
cultural rights set forth in the present covenant.”
Declaration on Elimination of Discrimination against Women, “This declaration laid down certain articles especially
equal remuneration, equal rights in the fields of economic and social life. The preamble of the Declaration states that
despite various instruments extensive discrimination against women continues to exist. Article 10 of the Declaration
directs that all appropriate measures shall be taken to ensure women, married or unmarried, equal rights with men in
the fields of economic and social life. This article is integral part of this declaration and it directs all appropriate
measures shall be taken to ensure women married or unmarried, equal rights with men in the fields of economic and
social life. In particular talks about right to work, free choice of profession without any discrimination on grounds of
marital status. The right to equal remuneration with men and to equality of treatment in respect of work of equal value
was also discussed.”
Subsequent conventions like “Declaration on the Elimination of the Violence Against Women in 1993”, “Optional
Protocol to the Convention on the Elimination of Discrimination Against Women in 1999” and others have been
modelled on the recommendations and implications of the CEDAW. In a multi country report by WHO in the year
2013 it states that mental health and suicide evidence suggests that women who are abused by their partners suffer
higher levels of depression, anxiety and phobias than non abused women. In this report violence during pregnancy is
also discussed and effects on children including anxiety, depression, poor school performance and negative health
outcomes. Declaration on Elimination of Violence Against Women, 1993 “it is the first International Human Rights
instrument to exclusively deal with the issue of violence against women. This is the Declaration which gives broad
definition or word violence.
PROVISIONS UNDER INDIAN CONSTITUTION
3.2.1 Preamble
“We, the people of India, having solemnly resolved to constitute India into a sovereign, socialist , secular, democratic ,
republic and to secure to all its citizens:
Justice, social, economic and political;
Liberty of thought, expression, belief, faith and worship;
Equality of status and of opportunity; and to promote among them all
Fraternity assuring the dignity of the individual and the unity and integrity of the Nation”
The significance of three concepts of Liberty, Equality and fraternity in the preamble, it is liberty of thought
expression, belief, faith and worship, equality of status and of opportunity and to promote among all fraternity
assuring the dignity of individuals. Dr. Ambedkar observed “in his closing speech in constituent assembly on
November 25, 1949,the principles of liberty, equality and fraternity are not to be treated as separate items in a trinity.
They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy.
Liberty cannot be divorced from equality; equality cannot be divorced from liberty. Nor can both be separated from
fraternity. Without equality liberty would produce the supremacy of the few over many. Equality without liberty
would kill individual initiative.”In India we have democracy and every man and women is governed by the
Constitution. Women should enjoy same rights as men.
3.2.2 Fundamental Rights
As Dicean concept rule of law in Britain. Justice Thommen in Indra Sawhey v. Union of India the constitution of
India guarantees the Right to equality through 14 to 18 “ Equality is one of the magnificent corner- stones of Indian
democracy. Article 14 has been given a highly activist magnitude in recent years by the courts and thus it generates a
large number of court cases. In Badappanavar v. State of Karnataka it is stated that equality is a basic feature of the
Constitution of India and any treatment of equals unequally or unequals as equally will be violation of basic structure
of constitution of India.
Article 14 states that: The State shall not deny to any person equality before law or equal protection of laws within the
territory of India. In Faridabad C.T Scan Centre v. D.G.Health Services we are a country governed by rule of law.
Our Constitution confers certain rights to citizens. Every person is entitled to equality before law and equal protection
of the laws. Article 15 specifically bars “ the State from discriminating against any citizen of India on grounds only of
religion, race, caste, sex, place of birth or any of them. Article 15(3) the State is not prevented from making any
special provision for women and children.”
The Constitution insists on equality of status to females and it negates gender bias. With the virtue of Article 15(3)
State is permitted despite of Article 15(1) to make “special provision for women. Article 15(3) recognises the fact that
the women in India have been socially and economically handicapped for centuries they cannot participate in the
socio-economic activities of the nation on a footing of equality. Reason behind Article 15(3) is to eliminate this socioeconomic backwardness of women and to empower them in such a manner as to bring about effective equality
between men and women .Sole objective of Article 15(3) is to strengthen and improve the status of women. This
article makes clear that State may discriminate in favour of women against men it may not discriminate in favour of
men against women.”
Article 16 and 14 are closely interconnected Article 14 applies to all persons, “citizens as well as non citizens whereas
Article 16 applies only to citizens and not to non citizens. This Article guarantees equality of opportunity to all
citizens in matters relating to employment or appointment to any office under the State. According to Article 16(2) no
citizen can be discriminated against or be ineligible for any employment or office under the State on the grounds only
of religion, race, caste , sex , decent, place of birth or residence or any of them”.
In the case of Apparel Export Promotion Council v. A.K. Chopra court held that An incident of sexual harassment of a
female at the place of work, amounts to violation of her fundamental right to gender equality under Article 16(2).
3.2.3 Directive Principles of State Policy
Article 39(d) of the Indian Constitution is provision relating to principal of gender equality
Article 42 requires the State to make provisions for securing just and human conditions of work and for maternity
relief. U.P.S.E Borad v. Hari Shankar Referring to Article 42 and 43 the Supreme Court has emphasized that the
Constitution express 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 goals set out in Directive Principles.
Article 47 obligates the “State to regard as among its primary duties the raising of the level of nutrition and standard of
living of its people and the improvement of public health. In particular the State is to endeavour to bring about
prohibition of the consumption except for medicinal purposes of intoxicating drinks and drugs which are injurious to
health. Lately the Supreme Court has read Article 47and 21 together and has culled out there from the obligation on
the state to provide better health services to the poor”.
The Constitution 42nd Amendment Act, 1976 breaks new ground by introducing the concept of fundamental duties of
Indian citizens in the Constitution. Part IV consisting of Article 51A has been added to Constitution which talks about
renouncing practices derogatory to dignity of female. Despite all these provisions the position of women is still very
sympathetic. She is not treated well by her in laws, family members and discarded in the every field of the society.
Only reason behind such is non-implementation of the laws. Very little effort has been made by the State to curb
violence despite of having legislations and bye-laws. Lack of awareness among women is the main cause of nonaccessibility of these rights.
POSITION OF WOMEN UNDER PERSONAL LAWS
Our country is secular as it has no religion of its own. The State has an important Constitutional obligation to protect
all religions but cannot interfere in religious matters. In certain personal matters like marriage, divorce and
maintenance personal laws are to be followed. As personal laws are different and there is no Uniform Civil Code,
different religions confer different rights on females.
3.3.1 Position under Hindu Marriage Act, 1955
Marriage is essential because all the religious ceremonies and rites are to be performed by a Hindu in the
companionship of his wife. It is religious sacrament and obligatory duty. The institution of marriage is one of the
sound social institutions to bring harmony and integration in social fabric.
In Hindus marriage is considered to be religious duty and a sacrament has undergone a change and it lost religious
sanctity under Hindu Marriage Act, 1955 which came into force on 18th May 1955. Certain conditions have been laid
down in this Act which needs to be complied namely:
I Monogamy
II Soundness of mind
III Age
IV Prohibited degrees
V Sapinda relationships
There is a right to judicial separation among Hindu spouses . It is a statutory right as contemplated in section 10 of
Hindu Marriage Act. “A Hindu wife may invoke special grounds for judicial separation by Hindu Marriage
Amendment Act,1976 a wife can invoke special grounds under section 10 and 13 of the Act. These are special
grounds exclusively available to her for seeking decree of judicial separation”. These are as under:I . Remarriage by husband.
II. Husband found guilty of rape, sodomy and bestiality.
III. Cohabitation between the parties has not been resumed for one year or upwards.
IV. That her marriage whether consummated or not was solemnised before she attained the age of 15 years and she
has repudiated the marriage after attaining that age but before attaining the age of 18 years. This provision is called
option of puberty.
There is also a provision for compulsory registration of marriage .The National Commision for Women opined that
the Commission since its inception supported the proposal for legislation on compulsory registration of marriage.
Such a law would be of critical importance to various women related issues such as:
I. Prevention of child marriages.
II. Prevention of marriage without consent.
III. To check bigamy.
IV.Prevention of trafficking of Women.
The right of a wife for maintenance is an incident of the status or estate of matrimony. In general, therefore the
husband is bound to defray the wife’s costs of any proceeding under the Act and to provide for her maintenance and
support pending the disposal of proceedings. The Doctrine of alimony in strict sense means allowance due to wife
from husband or separation from certain causes has its basis in social conditions in England. It is on these principles
that law relating to matrimonial causes provides for rule for maintenance pendente lite.Section 24 of Hindu Marriage
Act talks about maintenance pendente lite.
The court exercises a wide discretion in the matter of granting alimony pendente lite but discretion is judicial and not
arbitrary or capricious. Section 25 of the same Act vests wide power in the court making orders for maintenance and
support of one spouse by the other where it passes any decree for restitution of conjugal rights ,judicial separation
,dissolution of marriage by divorce or annulment of marriage on the ground that it was void or voidable .
The provision of maintenance of wife is also given under section 18 of Hindu Adoption and Maintenance Act, 1956.
“This section confers a statutory right on a Hindu wife to live separately without forfeiting her claim for maintenance
during the life time of her husband if living separately on the grounds provided in this section:I. If he is guilty of desertion.
II. If he treats her with cruelty.
III. If he is suffering from virulent form of leprosy.
IV. If he has another wife living.
V. If he keeps a concubine in the same house”.
3.3.2 Position under Muslim Law
According to the established traditions of the Prophet, marriage is considered to be a religious duty although the
Muslim conception of marriage differs radically from the original Hindu conception which provides for indissolubility
of marriage even after death. According to Fitzgerald “although a religious duty marriage is emphatically not
sacrament in Islam nor it is coverture. Remedies available to husband against wife are divorce, civil suit for restitution
of conjugal rights. Remedies available to wife against husband are suit for maintenance, refusal to live together and
claim under section 125 of Cr.P.C. If the husband has a right to restitution of conjugal rights then there is a
corresponding duty which he has towards the wife to provide her suitable accommodation and maintain her.
There is a concept of Delegated Divorce i.e Divorce -by-wife , this kind of talaq is unique to Muslim Law and has no
parallel in other systems and finds favour in both schools I.e Shias and Sunnis. The delegation of the power to divorce
is technically called tafweez and is of three kinds:I. Ikhitiar (choice) i.e giving her authority to talaq herself.
II. Ambriyad i.e leaving the matter in her own hand.
III. Mashiat (pleasure) i.e giving her the option to do what she likes.
Although the power to give divorce belongs primarily to the husband , he may delegate the power to the wife or to a
third person, either absolutely or conditionally and either for particular period or permanently. The person to whom
the power is thus delegated may then pronounce the divorce accordingly.
As we know the practice of triple talaq (talaq-e biddat) has been abrogated by almost all the countries of the world. In
India constitutional validity of the practice of triple talaq among Muslims are challenged through petitions in the
Supreme Court by five judges bench. The bench of the Supreme Court has held by 3:2 majority that the practice of
triple talaq was unconstitutional and violative of Article 14 of Constitution. The majority took notice of the fact the
correct law of talaq as ordained by the Holy Quran is that talaq must be for reasonable cause and be preceded by
attempts at reconciliation between the husband and the wife by two arbitrators .Given the fact that triple talaq is
instant and irrevocable it is obvious that any attempt at reconciliation between husband and wife which is essential to
save marital tie cannot ever take place. It is clear fact that this type of talaq is arbitrary and it is not any essential
practice hence not protected under Article 25 of Constitution.
An agreement made either before of after marriage by which it is provided that the wife should be at liberty to divorce
herself in specified contingencies is valid, if the conditions are of a reasonable nature and are opposed to the policy of
Mohamedan Law. When such an agreement is made the wife may at any time after happening of any of the
contingencies repudiate herself in the exercise of the power and a divorce will then take effect to the same extent as if
talaq has been pronounced by the husband.
If we talk about maintenance under Muslim Law, husband is bound to maintain his wife. According to Fatwa-IAlamgiri maintenance comprehends food, raiment and lodging though in common parlance it is limited to the first.
According to Hedaya “all those things which are necessary to support of life such as food, clothes and lodging may
confine it solely to food. Thus a person is entitled to maintenance if he has no property, is related to obligor within
prohibited degree, the obligor is in the position to support him.”
Under Muslim law husband is bound to maintain his wife during continuance of marriage 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.
Muslim law commentrators like Mulla, Tyabji were of the view that “on expiration of the period of iddat, the
husband’s obigation to maintain the wife ceases to resolve the controversary between personal law and section 125 of
Cr.P.Cwhich states that wife included a woman who has been divorced by or has obtained a divorce from her husband
and not remarried, Muslim Women (Protection of Rights on Divorce)Act, 1986 was passed stating the objects and
reasons that Shah Bano decision led to some controversy as to the obligation of the Muslim husband to pay
maintenance to his divorced wife.”
In Danial Latifi v. Union of India the constitutionality of Muslim Women (Protection of Rights on Divorce) Act, 1986
under which section 125 Cr.P.C “ providing for maintenance of wives, including divorced women by their former
husbands was made inapplicable to divorced Muslim women was challenged and it was decided that the provisions
under the Act do not offend Articles 14,15 and 21 of Indian Constitution.” A Muslim husband is liable to make
reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well.
Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within iddat
period and the liability of a Muslim husband to his divorced wife arising under the Act is not confined to the iddat
period.
An ante-nuptial agreement between a Mohomedan and his prospective wife, entered into with the object of securing
the wife against ill treatment and of ensuring her suitable maintenance in the event of ill-treatment is not void as being
against public policy
3.4 PROVISIONS UNDER INDIAN PENAL CODE, 1860
3.4.1 Dowry Death
Married woman are killed at their matrimonial homes by her husband and relatives for dowry. It is the gravest evil of
the society. Section 304-B of Indian Penal Code. Essential ingredients of offence:I. When death of women is caused by burns or bodily injury.
II. Death occurs otherwise than under normal circumstances.
III. Such death should have occurred within 7 years of her marriage .
IV. She has been subjected to cruelty and harassment by her husband or relatives of husband.
V. Such cruelty or harassment should be for or in connection with demand of dowry.
VI. Such cruelty or harassment is shown to have been meted out to the women soon before her death.
Standard of proof- The conviction can be sustained only when there is clear evidence beyond reasonable doubt. The
accused cannot be convicted on the ground that in all probabilities the accused may have committed. Bakshih Ram v.
State of Punjab a perusal of section 113 of Evidence Act and section 304-B of Indian Penal Code shows that “there
must be material to show that soon before her death victim was subjected to cruelty or harassment. If the alleged
incident of cruelty is remote in time and has stale enough not to disturb the mental equilibrium of he woman
concerned it would be of no consequence”. Term Dowry is defined in section 2 of Dowry Prohibition Act, 1961
according to that “dowry means any property or valuable security given or agreed to be given either directly or
indirectly -By one party to a marriage to the other. By the parents of either party to marriage or by any other person to
either party to marriage or to any other person. This exchange of property must be for consideration of marriage”.
Cruelty
Cruelty in the form of Domestic Violence may be physical or mental, criminal or civil. However four types of cruelty
are considered as offence as provided under section 498-A of Indian Penal Code.
I. Intentional conduct which is likely to drive the women to commit suicide.
II. Intentional conduct which is capable to cause injury to the limb, life or health of women.
III. Forcing woman with the view to get some property.
IV. Harassment because the woman at her marriage her relatives did not give some property.
“A single act of physical violence or a series of small acts of violence amounts to cruelty. It may be physical or mental
however constant nagging, false accusation of unchastity etc. are treated as mental cruelty. Term includes relative of
husband”.
By no stretch of imagination a girl friend or even a concubine in an etymological sense would be a relative of husband
of a woman in terms of section 498-A IPC. The term must assigned a meaning which would include father, mother,
blood relations of husband but not a girlfriend or a concubine. V. Suvetha v. State Mental or Physical torture should
be continuously practiced by the accused on wife. Whether one spouse has been guilty of cruelty of the other is
essentially a question of fact. The impact of complaints ,accusation or taunts on a person amounting to cruelty depends
on various factors like the sensitivity of individual victim concerned ,the social background, the environment,
education etc.
In Mohd. Hoshan v. State of Andhra Pradesh, every act of cruelty or harassment is not made a crime under section
498-A IPC. The prosecution has to establish that the cruelty or harassment was unabated, incessant and persistent and
being grave in the nature unbearable and same was with the intention to force the woman to commit suicide or to
fulfill illegal demand of dowry of husband or her-in-laws.
It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the
moment over trivial issues without proper deliberations. Courts come across a large number of such complaints which
are not even bona fide and are filed with oblique motive.
3.4.3 Rape
Sexual offences constitute an altogether different kind of crime which is the result of perverse mind. The perversity
sometimes results in rape. Those who commit such crimes are psychologically sadistic persons exhibiting the
tendency in rape forcibly committed by them. An attempt has been made in the section 375 of Indian Penal Code,
1860 to define rape . The crux of the offence of rape under section 375 is sexual intercourse by a man with a woman
against her will and without her consent under any of the six circumstances mentioned in section. Thus a woman
cannot be liable for rape. However a woman can be liable for abatement of rape.
In 2013 a drastic change was brought about in punishment of rape. So, as to deter people from committing such a
heinous crime. Section 376 has been divided into two sub sections to fix punishment taking into account gravity and
special nature of case in question.
3.4.4 Bigamy
The offence mentioned in section 495 I.P.C is extension of section 484 and is also aggravated form of bigamy
provided in section 494 I.P.C. The circumstance of aggravation is concealment of the fact of the former marriage to
the person with whom the second marriage is contracted. Moreover a married man who by passing himself off as
unmarried induces an innocent man to become, as she thinks his wife, but in reality his mistress, commits one of the
grossest forms of frauds known to law and therefore severe punishment is provided in section 495 of Indian Penal
Code. Non-filing of the complaint under 494 or 495 of Indian Penal Code by the first wife does not mean that offence
is wiped out. Section 494 and 495 provides that: “husband who has a wife alive and married again and second
marriage is void, first marriage has not been pronounced as void by Court.”
It is noted that if a person is Hindu, Sikh, Jain, Buddhist, Christain or Parsi will be subjected to penal action if he
marries second time. However if the husband is Muslim he is permitted to marry more than once as he is governed by
Muslim Personal Law.
3.5 PROVISIONS UNDER CODE OF CRIMINALPROCEDURE, 1973
Under Code of Criminal Procedure, 1973 there are provisions specifically for women. Section 125 makes a provision
for “awarding maintenance by criminal courts to wife, parents and children. The object of this section is to prevent
vagrancy. The section has been enacted with the object of enabling discarded wives, helpless children and disabled
parents to secure them much needed and urgent relief”.
According to the Supreme Court Section 125 of the Code of Criminal Procedure, 1973 is a measure of social justice
and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) and
reinforced by Article 39. There is no doubt that Section 125 to 128 of the Code calling for interpretation by the courts
are not specified but vibrant words with social functions to fulfil.
The object of the provision being to prevent vagrancy and destitution, it has to be found out as to what is required by
the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the
status of the family. The needs and requirements of the wife for a moderate living, the earnings of the husband and his
capacity to earn and commutability are relevant factors while determining the quantum of maintenance.
The Supreme Court in Shail Kumari Devi & Another v. Krishan Bhagwan Pathak alias Kishun B. Pathak, observed
that it carries a summary remedy to secure reasonable sum by way of maintenance subject to a decree passed by a
competent Civil Court However, in absence of express ban or prohibition, by necessary implication, the Magistrate is
empowered to make interim order of maintenance. It is so, in view of the object and purpose of maintenance viz. to
secure relief to deserted and destitue will discarded and neglected children and disabled and helpless parents. In the
present case the Supreme Court ruled that no fault found with Magistrate granting interim maintenance. It could have
been granted even before amendment of 2001.
The primary object of the section is to prevent starvation and vagrancy of persons and enable a discarded wife and a
helpless child to get the much needed and urgent relief in one or the other of the forms convenient to them. It is the
public policy that the a wife or a child or father or mother, who is unable to maintain herself or himself, should be paid
maintenance allowance by the husband or father concerned, who can afford. Section 125(1) “ Explanation (b) makes it
abundantly clear that a woman who has been divorced by her husband or who has obtained divorce from her husband
is entitled to maintenance. Section 125(4) of the Code provides that wife shall not be entitled to receive an allowance
from her husband if she is living in adultery.”
Proceedings for maintenance in a criminal court are in nature of civil proceedings. It is a quasi criminal proceeding
and is applied for the purpose of summary and speedy disposal in the interest of society so that the helpless wife,
children and parents are not left on the road while those who are liable to maintain them have capacity to do so.
Wife means legally wedded wife. A woman not lawfully married is not a wife within the expression of this section. As
such however desirable it may be to take the note of the plight of unfortunate woman, who unwillingly enters into
wedlock with a married man, is not the wife of such a man
In Kesuram v. Saraswathy and others,it was held that the wife who finds herself insecured in her husband's house
lives separately is entitled for maintenance. A wife would be justified in refusing to live with her husband where she
receives a letter from him to the effect that she should come back to him, otherwise the letter would be treated as
divorce. If there is a clear threat to the wife to return to the husband on the pain of being divorced, such an
unreasonable threat would constitute a sufficient reason for the wife to refuse to live with her husband.
As Section 125 of the Codes stands the wife has also been brought to the same level as that of legitimate or
illegitimate minor child that she is also unable to maintain herself to claim maintenance from her husband.
The Supreme Court in Rohtas Singh v. Smt. Ramendri,held that for the purpose of claiming maintenance a divorced
woman will continue to have a status of wife irrespective of the ground in which the divorce was granted. The
husband in that case will be bound of provide maintenance if she becomes destiture and cannot maintain herself or
remains unmarried, she would be entitled to maintenance from divorce husband. In the present case the Supreme
Court observed that the claim for maintenance under the first part of Section 125 Cr.P.C. “ is based on the subsistence
of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to
sub-section (1) of Section 125 Cr.P.C. If the divorced wife is unable to maintain herself and if she has not remarried,
she will be entitled to maintenance allowance. A woman after divorce is entitled to claim maintenance from divorced
husband if she remained unmarried. However, wherein divorce was obtained on the ground of desertion cannot be a
ground to reject the application for maintenance.”
Another provision under Code of Criminal Procedure is right to Privacy while recording statement- Under section 164
of Cr.P.C, “a woman who has been raped can record her statement before District Magistrate when the case is under
trial and no one else needs to be present. Alternatively, she can record the statement with only one police officer and
woman constable in a convenient place that is no crowded and does not provide any possibility of the statement being
overheard by the third person. Another provision is section 164-A which provides for medical examination of victim
of rape.”
There is provision of search by another woman only under section 51(2) of Cr.P.C, “when an accused is a woman
another woman should make search with strict regard to decency. In case search of a female is necessary it shall be
made by another female with strict regard to decency. If woman is not searched by another woman the search will not
become illegal.”
Opportunity to come out of the house- Section 47(2) Cr.P.C says, “if the accused hides in the house of a female who
according to custom does not appear in public, the police cannot enter the house or break the house open unless notice
is given to such female to withdraw and give her reasonable facility to withdraw herself. If a place to be searched is in
occupation of purdahnashin lady, police officer forcing the entry must give her reasonable opportunity to withdraw
and then can break open the apartment and enter.”
Medical Examination by a female practitioner- Under section 53(2) Cr.P.C, “when a person to be examined medically
is female, then the examination shall be made only by or under the supervision of female registered medical
practitioner”.
Attendance cannot be required at any other place- Section 160 Cr.P.C protects “women saying that no woman shall be
required to attend any place other than a place in which she resides. Hence, a police officer cannot require the
attendance of a woman, but on the contrary, he has to go to the place where she resides for making an investigation
and can interrogate in the presence of a woman constable and family members or friends. A male under the age of 15
years and a woman cannot be summoned away from their house”.
No arrests after sunset- “Because to concerns of violation of the rights of women, section 46(4) provides that forbids
the arrest of women after sunset and before sunrise, except in exceptional circumstances, in which case the arrest can
be done by a woman police officer after making a written report and obtaining a prior permission from the concerned
Judicial Magistrate of First class. Time does not matter in cases of rape or molestation. Police cannot refuse to register
an FIR even if a considerable period of time has elapsed since the incident.
There is provision for the protection of identity under no circumstances can the identity of a rape victim be revealed”.
Section 228 of IPC makes the disclosure of the identity of a victim a punishable offence.
PROVISIONS UNDER INDIAN EVIDENCE ACT, 1872
Under Indian Evidence Act, 1872 also there are certain provisions incorporated for women. Legislature from time to
to time makes certain amendments in this procedural law also for the benefit of women. The one such provision is
Section 53-A.This section declares irrelevant the evidence of the character of the victim of rape or her previous sexual
experience/appearance with any person. The Section applies to prosecution for offences under section “354, 354-A,
354-B, 354-C, 354-D, 376-A, 376-B, 376-C, 376-D, of the Indian Penal Code, 1860”. The section also applies to an
attempt to commit any such offence. The question of consent of the victim of such offence should be in issue. The
section then declares that the evidence of her character or her previous sexual experience with any person is irrelevant
on the issue of such consent or its quality.
Another provision is section 113 A of Indian Evidence Act ”the main ingredients of this section are woman committed
suicide must be a married women, such suicide should be committed within seven years of her marriage, her husband
or relatives subjected her to cruelty. Then the law presumes that her husband or relatives has abetted her to commit
suicide.” Some young brides when get married are not given proper treatment there. Causes for such maltreatment are
many. It may be dowry, unwanted domination by mother-in-law. Some tolerates the torture but for some it becomes
unbearable and they commit suicide. The atrocities are committed inside the house and only members of the family
have first hand knowledge but they would generally favour the husband and his family. Recently such cases had
increased necessitating protection to such women.
In order to attract presumption of abetment of suicide under Section 113-A the facts and circumstances should be such
as can reasonably sustain a presumptions about the existence of a nexus of cause and effect between the alleged
cruelty and suicide. When once there is a demand for dowry and harassment against the deceased, and death occurs
within 7 years of the marriage, other things automatically follow due to the statutory presumptions contemplated under
Section 113-A of the Evidence Act.
An analysis of the provisions of Section 113-A reveals that to attract Section 113-A the “suicide must have been
committed within seven years from the date of her marriage and that her husband or his relative must have subjected
her to cruelty. When these two factors were found to be present then having regard to all other circumstances of the
case, the section directs a presumption that the husband or his relative had abetted the suicide.
Proximate or live link must be shown to exist between the conduct regarding cruelty or harassment in connection with
dowry demand and consequential death. The term normal circumstances mean natural death and the term otherwise
than under normal circumstances would mean death not in the usual course.”
Another provision is section 113-B is solely related to dowry deaths. There are certain conditions for the application of
this section first is women must have died on account of burns, bodily injury or otherwise in abnormal circumstances.
She must have died within seven years of marriage. It must be shown that soon before her death she was subjected to
cruelty or harassment for or in connection with a demand of dowry by any person. When the above points are
establishes then court shall presume that the person who is shown to have subjected her to cruelty or harassment
caused dowry death.
The scope of these two sections 113-A and 113-B are different in following respects:
(I) Section 113 A applies only in those cases where it has been proved that suicide was committed. The only question
is whether her husband or his relative abetted it. In section 113-B the cause of death may be uncertain.
(II) The language of Section 113-A indicates that cause of suicide is not necessarily dowry alone. There may be some
other reason because of which husband or his relatives wanted to get rid of her but section 113-B is related to dowry
death only
Sections 113-A and 113-B of the Evidence Act as amended deal with the presumption as to abetment of suicide by
married women. The ingredients of Section 498-A, I.P.C, are that whoever being the husband or the relative of the
husband of a woman subjects such women to cruelty and harassments shall be punished with imprisonment. Here it is
a case of suicidal death. Even section 113- A of the Evidence Act has been introduced only to give effect to the
provisions contained in Sections 498-A and 306, I.P.C. If there is harassment and if there is unnatural death that has
resulted in suicide the court in the case of dowry deaths is competent to take the aid of Section 113-A of the Evidence
Act.
The Apex Court in Hans Raj v. State of Punjab, observed that no presumption under Section 113-B of the Evidence
Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute
stood resolved and there was no evidence cruelty and harassment thereafter. Mere lapse of some time by itself would
not provide to an accused a defence if the course of conduct relating to cruelty and harassment in connection with the
dowry demand is shown to have existed earlier in time not too late and not to state before the death of the woman. In
the present case, it has been proved that the death of Sunita Kumari by suicide had occurred within 7 years of her
marriage and such death cannot be stated to have occurred in normal circumstances. The term ‘’ normal
circumstances’’ apparently means natural death. The Apex Court further observed that the High Court appears to have
adopted casual approach in dealing with a specified heinous crime considered to be a social crime.
The provisions of the sections are applicable to the pre-determined cases. The Supreme Court in Gurbachan Singh v.
Satpal Singh,observed that these provisions do not create any new offence (or any substantive) right, but merely a
matter of procedure or of evidence, on the contrary, the provisions of that nature are to be constructed as retrospective
unless there is a clear indication that such was not the intention of Parliament. - The provision mandates that the court
should proceed with a legal presumption in certain cases that the accused had caused “dowry death”. Such
presumption will arise when prosecution establishes that the deceased had been subjected to cruelty or harassment by
the accused for or in connection with any demand for dowry. Once the said factum is established, then the burden
shifts on to the accused to prove that death was on account of some other reason. If he fails to discharge the burden,
the court is entitled to find him guilty of the offence. In terms of Sections 113-B, there must be material to show that
soon before of women, such women was subjected to cruelty or harassment for or in connection with demand of
dowry , then only a presumption can be drawn that a person has commited the dowry death of a women.
A new section Section 114-A is also incorporated “ The effect of the new provision is that were the question before
the court is whether an intercourse between a man and a woman was against her consent, the consent would presume
that there were no consent. The burden of proving consent becomes shifted to the accused. If he is not able to prove
that there was consent, he becomes guilty”. The requirements of the presumptions are(I). It is proven fact that there has been intercourse,
(II). The question is whether it was or without consent.
(III). The women states before the court that she was not consented.
The amendment becomes necessary partly because of the growing incidence of rape and partly because of the acquittal
in Mathew rape case.The alarming frequency of crimes against women led the parliament to enact the criminal Law
(Amendment) Act, 1983 to make the law relating to rape more realistic. Sections 375 and 376 IPC were amendment
and certain more penal provisions were incorporated for punishing such (police) custodians who molest women under
their custody or care. Section 114-A was also added to the evidence act for drawing a conclusive presumption as to the
absence of consent in certain prosecution for rape. The Criminal Procedure Code also amended to provide for in
camera trial. Question lawful in cross –examination. - In the course of a cross-examination a witness can, of course, be
asked all questions relating to relevant facts. But in addition to such question, the witness can also be questioned as to
his character etc.
Thus a witness can be asked questions:
(I). To test his veracity
(II). To discover who he is and what is his position in life,
(III). To shake his credit by injuring his character.
Such questions can be asked even if the answer might tend directly or indirectly to criminate the witness or to expose
him to a penalty or forfeiture. Testing the veracity of a witness means ascertaining his honesty so as to advise the court
to what extent the witness is creditworthy. Questions can also be asked to find out his position in life, that is, who he
is, what he does, what is his source of livelihood or whether he is genuine or a professional witness all this may guide
the court as to the creditworthiness of the witness. Shaking the credit of a witness by injuring his character means to
expose his respectablity, that is, whether he is a respectable man and whether his character and conduct are such that
he can be trusted to tell the truth to the court. This kind of questioning of the witness is known as cross-examination as
to credit.
The amendment of 2013 has substituted the earlier proviso to the section with a new proviso. The proviso deals with a
prosecution for an offence under section 376, 376A, 376B, 376C, 376D, 376E, or for an attempt to commit any such
offence. The question of consent should be in issue. If such is the case, it is not permissible to adduce evidence, or to
put question, in the cross-examination of the victim as to her general immoral character, or previous sexual experience
with any person for proving such consent or its quality.
POSITION OF WOMEN UNDER OTHER LEGISLATIONS
3.7.1 Dowry Prohibition Act, 1961
The dowry system is prevailing in the Hindu community since ages. Bride is considered as bringing fortune to the
family not by way of dowry but on account of the grace the lady carries with and around her. The implied ideology
governing dowry was that it was a means of pre-mortem inheritance for girl from her parents wealth. Under
Mitakshara system a woman was not entitled to share in the parental wealth and the system of bestowing the daughter
with handsome dowry seemed to have been introduced to overcome this restriction. According to Webster’s New
Dictionary dowry means the money, goods or estate which a woman brings to her husband in marriage. Dowry in
today’s society is a deep rooted social evil in the community at large. The parents of bride and their relations out of
affection and good intention used to provide the couple something. The dowry system began at the time when the girls
were generally not very much educated and even if they are educated they were unwilling to take up gainful
employment. There was yet another reason for such customary gifts as daughters was not entitled to a share in the
joint family properties when she had a brother. Present time the dowry system has taken the ugliest form now it has
become the only consideration for settlement of marriage. It is now prevalent in upper, middle as well as lower class.
The object behind enactment of the Dowry Prohibition Act, 1961 was explained in Bachni Devi v. State of Haryana
the object of the Act was to prohibit the giving and taking of dowry and the protection of married woman against
cruelty and violence in the matrimonial home by her husband and her in laws. The mere demand for dowry before
marriage, at the time of marriage or any time after marriage is an offence.
Demanding, giving, taking or agreement to give or take dowry, no doubt, are all invalid as per section 3, 4, 5 of the
Dowry Prohibition Act, 1961. But, if in violation of such provisions dowry is given and received the consequence is
that the receiver is bound to transfer the property to the woman and he is a trustee, until such transfer for the woman.
In this Act term dowry has been explained and inclusive definition is given as it contemplates that dowry means
property or valuable security must be given in consideration. It should be given or agreed to be given by one party to a
marriage to the other party to the marriage or by parents or any other person, at or before or (any time after the
marriage).
Section 3 of the Act explains giving or taking dowry and mention penalty of the offence. Section 4 makes demanding
dowry an offence. It is a penal provision which lays down that if any person makes demand for dowry whether
directly or indirectly from parents or other relatives or guardians of a bride or even bridegroom it amounts to offence
under this section which is punishable as per the terms provided therein. Section 5 makes agreement for giving or
taking dowry shall be void. According to section 7 of the Act offences committed under the Act are cognizable
offences and no court inferior to that of Metropolitan Magistrate or JMIC shall try offences either on its own
knowledge or on police report or on complaint sued by an aggrieved person. Section 8 of the Act declares offences
committed under the Act as cognizable, non-bailable and non-compoundable.
3.7.2 Immoral Traffic (Prevention) Act, 1956
Undoubtedly the prostitution is the oldest profession in the world and it prevails throughout the world. This profession
is being carried out in all civilized countries though it is prohibited. Factors like unemployment, greed for luxury,
population explosion and sex mania etc are responsible for this evil. In Vishal Jeet v. Union of IndiaSupreme Court
said that prostitution always remains a running score in the body of civilisation and destroys all moral values. The
Immoral Traffic (Prevention) Act, 1956 contains sections as well as provisions are supplemented by the rules framed
there under. Aim of the Act is to curb and abolish traffic and prostitution of women, children as an organized means
living.
In this Act, word prostitution is explained as sexual exploitation or abuse of persons for commercial purposes. Brothel
includes house, room, conveyance or place or portion which is used for the purpose of prostitution for the gain of
another person or for mutual gain of two or more prostitutes. Section 3 of the Act makes provision for punishment
regarding any person who keeps or manages or assigns such keeping or manages a brothel. Section 4 punishes a
person who lives on the earnings of prostitution partly or wholly.
All the offences committed under this Act are cognizable , without affecting the provisions of Code of Criminal
Procedure.The constitutional mandate under Article 23 is prohibition of trafficking and all forms of trafficking in
human beings including prostitution and beggary. India being signatory to International Convention for the
Suppression of Traffic in Persons and exploitation , 1950 passed central laws on trafficking.
3.7.3 Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994
As earlier scientific techniques are not much advanced and it was not possible to determine the sex of the child, killing
of female child took the form of adding opium to infant’s milk or by suffocating the infant. Now scientific and
medical techniques were used for killing female foetus which directly affect male -female ratio.
The main objectives of the Acts are:I. Prohibiting the misuse of Pre-natal diagnostic techniques for determination of sex of foetus leading to female
foeticide.
II. Prohibiting advertisements of the techniques for detection or determination of sex.
III. Regulating the use of techniques only for the specific purposes of detecting genetic abnormalities or disorders.
IV. Permitting the use of such techniques only under certain conditions by registered institutions.
V. Providing punishment for violation of the provisions of the Act.
VI. Providing deterrent punishment to stop such inhuman acts of female foeticide.
Centre for Enquiry into Health and Allied Themes v. Union of India Supreme Court moved in to stop illegal sex
determination and directed all states to confiscate ultra-sound equipments from clinics that are being run without
licences. The Health Secretaries of Punjab, Haryana, Delhi, Bihar, UttarPradesh, Maharashtra,Gujrat, Andhra Pradesh,
Kerala, Rajasthan and West Bengal were present to explain the steps taken to implement PNDT (Regulation and
Prevention of Misuse) Act, 1994.
Section 6 of the Act , Prohibits Genetic Centres, Laboratories and Genetic Clinics from conducting any Pre- natal
diagnostic technique tests, including Ultra-Sonography for determining the sex of a foetus. Section 5 of the Act and
Section 6 both prohibit the determination or communication of sex of the foetus.
The seriousness of the offence committed under this Act is reflected by section 27 which makes every offence under
this Act cognizable, non-bailable and non-compoundable. Section 28 of the Act specifies that no court other than that
of Metropolitan Magistrate or JMIC shall try any offence under this Act.
3.7.4 Sexual Harassment of Women at Workplace Act, 2013
As we know now a day’s woman try to become independent then new form of crimes emerges sexual harassment at
the workplace. Sexual harassment is recognised as violation of women’s bodies may extends to harm dignity and
honour of women. The Government of India ratified the CEDAW .The Declaration on Elimination of Violence
Against Women states 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 occuring in public or private life. Vishakha v. State of Rajasthan gender equality includes protection from
sexual harassment and right to work with dignity which is universally recognised basic human right. The common
minimum requirement of this right has received global acceptance. The International Conventions and norms are
therefore of great significance in the formulation of the guidelines to achieve this purpose.
The Sexual Harassment Act was enacted with the objective of providing women protection against sexual harassment
at workplace and for the prevention and redressal of complaints of sexual harassment .It is violation of fundamental
right of a woman to equality as guaranteed under Article 14 and 15 of Constitution of India and her right to life and to
live with dignity as per Article 21.
3.7.5 Medical Termination of Pregnancy Act, 1971
The objective of this Act is to provide for the termination of pregnancy by registered medical practitioners where its
continuance would involve a risk to the life of the pregnant woman or would cause grave injury to her physical or
mental health or where there is substantial risk that if the child were born it would suffer from such physical or mental
abnormalities as to be seriously handicapped. Where the pregnancy is alleged to have been caused by rape or as a
result of failure of a contraceptive used by married woman or her husband it would be presumed to constitute grave
injury to the mental health of the pregnant woman. The Act contains eight sections dealing with various aspects like
the time, place and circumstances in which a pregnancy may be terminated by registered medical practitioners legally.
3.7.6 National Commission for Women Act, 1990
The object of the Act was to constitute a National Commission for Women and to provide for matters connected or
incidental thereto. The National Commission for Women was constituted under the Act on 31 January 1992 to
exercise powers and perform functions assigned.
I. Investigates and examines all matters relating to the safeguards provided for women under Constitution and other
laws.
II. Presents the Central Government annually and at such other times as the Commission may deem fit, reports upon
the working of those safeguards.
III. Makes in such reports recommendations for the effective implementation of those safeguards for improving the
conditions of women by the Union or any State.
IV. Looks into complaints and takes suo motu notice of matters relating to:-Deprivation of women’s rights. Nonimplementation of laws enacted to provide protection to women and also to achieve the objective of equality and
development.