INDORE INSTITUTE OF LAW

(Affiliated to D.A.V.V. & BCI)

CRASH COURSE
Session 2021-22
BBALL.B(Hons.) SEMESTER VI
GENDER JUSTICE

Ques.1 Write a short notes on any two of the following:

a. Social Reforms Movement in India,

b. Social and Legal Inequality
c. Nehru’s View on Joint family
d. Karachi Resolution

Ans.Gender Justice – to eliminate all forms of discrimination and thus, allow women to enjoy not only
the de-jure but also the de-facto rights and fundamental freedom on par with men in all spheres, viz.
political, economic, social, civil, cultural etc.

Women’s status during British India- In the British period, the position of women had undergone a bit
change due to western impact as regards liberty, equality, but it was limited again only in the ruling
classes.

Two major movements took place during the British period;

(i) Social reform movement; and

(ii) Nationalist movement

1. Social reform movement:The 19th Century India witnessed a strong wave of reformation
activities in society. There were attempts made by the educated young Indians to end the evils and
abuses in society.Western ideas of reason, equality, liberty and humanity inspired the Indian
reformers. They tried to remove the defects in their culture. They wanted to revive the glory of Indian
culture.Hence, the socio-religious reform movement of the 19th century India can be termed as
the Indian Renaissance movement. Raja Rammohan Roy was the pioneer of this movement.

Causes for the Social reform movements –

⚫ Political Unity : India was politically united due to the expansion and consolidation of British
rule. It led to the understanding of many common problems of the Indians. The nature of the
British rule provoked many young Indians to find out the causes of their misery and degradation.

⚫ Reaction against the propaganda of Christian Missionaries : The Christian missionaries made
all possible attempts to spread Christianity particularly among the poor and the oppressed.
Educational institutions, hospitals, charity services and official support were also made use for
this purpose. Therefore, both the Hindus and the Muslims made efforts to protect their religions.
 ⚫ Contribution of foreign scholars- Many western scholars like Max Muller and William
Jones rediscovered India’s past. They studied the scholarly works of Indians of the ancient
period. They brought to light the rich cultural heritage of India which was even superior to the
western culture. They translated many literary and religious texts. These works received
worldwide recognition. It made the educated Indians develop faith in their culture. They wanted
to establish the superiority of Indian culture against the western culture.
⚫ Indian Press - The Europeans introduced the printing press in India. It made possible, the
appearance of many newspapers and magazines. Books were also published in different Indian
languages. Mostly their subject matter was Indian. It certainly helped to open the eyes of the
educated Indians with regard to the national heritage and glory. Therefore they started to work for
the revival of Indian culture.
⚫ Western Education- The spread of western education led to the spread of the western concepts
of democracy, liberty, equality and nationalism. The Indians who went abroad came in direct
contact with the working of these concepts. After their return they were pained to see the lack of
awareness among the Indians about such concepts. They wanted to spread such ideas in India.
There is no denying the fact that Indian nationalism and modernism are largely the result of the
efforts of the English educated Indians in different fields oflife.
⚫ The social reform movement which emerged in 19th century also raised the question of equal
status of women. The main concern at that time was sati, prohibition of re-marriage, denial of
right to property for women, child marriage and education to women.The reformers were of the
view that by giving women access to education, social reforms in respect of women can be
achieved. Swami Vivekanand, Annie Besant, DayanandSaraswati were of the view that old vedic
period should be revived which was ideal for women’s status. Mahatma Gandhi strongly
criticised the system of child marriage, sati, prohibition of widow’s remarriage and Devdasi
system.

2. Nationalist movement: The nationalist movement drew the attention of a large number of people
and generated confidence among women to raise their voice against oppressive system.In 1927, the
All India Women’s Conference was formed and it proved to be a crucial movement towards the right
to equality of women.Consequently, a number of legislations were enacted like widow’s Remarriage
Act, Child Marriage Act, and Hindu Women’s Right to Property Act, intended to eradicate certain
social evils. Even the Industrial law provisions were amended to restore the status of women which
prevailed during the Vedic Period.The establishment of crèches, reduction of working hours,
prohibition on night working hours, and restrictions to work in mines were introduced under the
banner of nationalist movements. Various thinkers have propounded the women’s subordination in
different perceptions with different approaches. It is true that, all over the world, the women have a
lower status than men- socially, economically, educationally.

3. Impact of reform movements

⚫ Emancipation of women
⚫ Widow remarriage Act,1956
⚫ Sati & Infanticide were banned,
⚫ Marriageable age of girls was raised 1860
⚫ Education to girls began
4. Limitations of Reform Movements
⚫ They concerned only small sections of society
⚫ Works for their respective community
⚫ Failed to emphasis that colonial rule was inimical to their interest

Gandhian View

The status of women in India has been subject to many great changes. From equal status with men in
ancient times, through the low points of the medieval period, to the promotion of equal rights by many
reformers. One of them is Mahatma Gandhi. The history of women in India has been eventful. In modern
India, women have adorned high offices in India including that of the President, Prime minister, Speaker
of the LokSabha, Leader of Opposition etc.

Gandhiji’s view on Women Liberty:

Gandhi worked not only for the political emancipation of the nation, but for liberation of all the
suppressed and oppressed sections of society. One of the note worthy results of his life-work has been the
awakening of women, which made them shed their deep-rooted sense of inferiority and rise to dignity and
self- esteem. For Gandhi, "all those who are helpless will become powerful". The welfare of the weaker
sections of society was dear to his heart.

Gandhiji’s Influence on Women:

Women, urban and rural, educated and uneducated, were attracted to his ideas. While some like Sarojini
Naidu, LakshmiMenon, SushilaNayyar and RajkumariAmritKaur rose to prominence, there were
thousands of unsung and unnoticed heroines of India who learnt the meaning of liberation from him and
contributed with all their energy to the struggle for independence.

Gandhiji’s view on Women upliftment:

In Vedic times men and women are equal in all walks of life, including the religious and the intelectual.
Therefore, Gandhiji's was of the view in proclaiming back, the perfect equality of men & women.

Gandhiji was against-

He was against the system of child marriage. He considered such marriage as null and void.

⚫ All social and religious barriers to widow remarriage in the case of adult widows, especially those
with children. If a widow did not wish to live alone, she has every right to remarry and society
must not look down such marriage.

⚫ The purdah system crippled not only the free movement of women but interfered with their
advancement and their capacity for doing work useful to the society.

⚫ For the middle and poor classes dowry system was a nightmare. It was also on this account that
while there was joy on the male child, there was expression of sorrow and pain on the birth of a
female child.
 ⚫ He wanted to simplify marriage ceremonials. He was against feasting on such occasions. Many
marriages were celebrated in the Ashram. All that was done was the recitation of the simple
Ashram prayer and some advice from Gandhiji to young couple on how they should live a
contended and happy life of service.

⚫ Mahatma Gandhi has played an important role in the participation of women in political activities
in India. Gandhi becomes uncompromising in the matter of women's rights. According to him
woman is companion of man and gifted with equal rights of freedom and liberty. Woman is the
better half of humanity, not the weaker sex.

⚫ Mahatma Gandhi was the first man to encourage participation of women in politics.

⚫ During the freedom struggle in the 1930s, Gandhiji encouraged women to take part in Satyagraha
movement on par with men. That 17,000 of around 30,000 persons who courted arrest during the
Salt Satyagraha were women volunteers is a conspicuous example of their equal role under the
leadership of the Mahatma. The message Gandhi gave to the women of India was of such a nature
that they responded to it in a manner which they had never done before.

Conclusion:

Lastly we can conclude that the position of woman in India compared to other countries is poor. In some
villages they are considering woman as a kitchen bee. This type of attitude has to be changed. But
compared to the early days, these days' women arecoming out freely and participating in every field. It’s a
good sign of women upliftment & empowerment. So, today also need to know Gandhiji’s thought of
women upliftment.

Nehru’s Views on Women

The national movement gave women not only a consciousness of their own strength, but a new vision of
their true place in society. The decade 1920-30 also witnessed other measures of far reaching importance,
the most important of which may be said to pertain to women's property rights, The Hindu Law of
Inheritance recognized the near female relations to the right to property. Between 1932 and 1937, there
was a significant increase in the number of girls attending secondary schools.

In 1928, speaking at the laying of the foundation stone of a women's college-the Mahi1a Vidyapith- in
Allahabad Jawaharlal Nehru quoted a French idealist Charles Furrier, who had said "One could judge the
degree of civilization of a country by the social and political position of women."He added that the India
"we build up will also be judged by the position of Indian women".

At every opportunity he got-either to speak or write-he exhorted the women to fight against the customs
and traditions which was shackling them and keeping them in a backward position. Addressing the
students in 1934 he asked "If our nation is to rise, how can it do so if half the nation, if our womankind,
lag behind and remain ignorant and uneducated.

Our civilization, our custom, our laws, have all been made by man and he has taken good care to keep
himself in a superior position and to treat woman as a chattel and a plaything to be exploited for his own
advantage and amusement. Under this continuous pressure woman has been unable to grow and to
develop her capacities to her fullest and then man has blamed her for her backwardness”.

But he cautioned the women that in this fight against oppressive customs and traditions they should not
expect the help of the men because the customs and traditions were man-made and they would not
willingly give them up.

In spite of his apprehensions that women, having become conscious of their status and the need to fight
for equality, may forget the political struggle, he was extremely appreciative of the part played by the
women in the civil disobedience movement in 1930. Writing in Discovery of India he expressed his
complete surprise at the way the women of India participated in the struggle. "Our women" he wrote
"came to the front and took charge of the struggle.

"All citizens are equal before the law irrespective of religion, caste, creed or sex. No disability attaches to
any citizen by reason of his or her religion, caste, creed or sex in regard to public employment, office of
power or honour in the exercise of any trade or calling." In the section on Labour he suggested:-
"Protection of women workers and especially adequate protection for leave during maternity period".

In the Election Manifesto of the Bombay Congress in 1936 it was stated very clearly that the "Congress
had already declared that it stands for the removal of all sex disabilities whether legal or social, in any
sphere of public activity. The women of India have already taken a leading part in freedom struggle and
the Congress looks forward to their sharing.

The Karachi Resolution and the Election Manifesto certainly brings out clearly not only the concern for
women but that the Congress will not tolerate ill treatment of them and the goal set by the Congress will
be equality of the sexes. But Nehru was shrewd enough to realise that mere resolutions or inclusions in
the election manifesto of the party will not bring about a change.

Nehru's concern for equality did include special provision for women workers which he called for
protection of women and also maternity benefit.

But he obviously believed that there was no need nor did he seem to be aware of the fact that special
efforts were needed to root out the discrimination against women workers.

The Indian family has been a dominant institution in the life of the individual and in the life of the
community. For the Hindu family, extended family and kinship ties are of utmost importance. In India,
families adhere to a patriarchal ideology, follow the patrilineal rule of descent are patrilocal, have
familialistic value orientations, and endorse traditional gender role preferences. The Indian family is
considered strong, stable, close, resilient, and enduring. Historically, the traditional, ideal and desired
family in India is the joint family. A joint family includes kinsmen, and generally includes three to four
living generations, including uncles, aunts, nieces, nephews, and grandparents living together in the same
household.

Gandhiji was conscious of it and articulated the need for it when he wrote "Not only is the woman
condemned to domestic slavery but when she goes out as a labourer to earn wages though she works
harder than man she is paid less.Mere declaration of equality does not automatically root out these
discriminations.
THE KARACHI RESOLUTION: 1931
The Karachi Congress resolution on Fundamental Rights
and Economic Programme, as varied by the All-India
Congress Committee in its meeting held in Bombay on
August 6, 7, and 8, 1931, runs as follows:
FUNDAMENTAL RIGHTS AND DUTIES
(i) Every citizen of India has the right of free expression
of opinion, the right of free association and combination,
and the right to assemble peacefully and without arms, for
a purpose not opposed to law or morality.
(ii) Every citizen shall enjoy freedom of conscience and
the right freely to profess and practice his religion, subject
to public order and morality.
(iii) The culture, language and script of the minorities and
of the different linguistic areas shall be protected.
(iv) All citizens are equal before the law, irrespective of
religion, caste, creed or sex.
(v) No disability attaches to any citizen by reason of his
or her religion, caste, creed or sex, in regard to public
employment, office of power or honour, and in the
exercise of any trade or calling.
 (vi) All citizens have equal rights and duties in regard to
wells, tanks, roads, schools and places of public resort,
maintained out of State or local funds, or dedicated by
private persons for the use of the general public.
(vii) Equal rights and obligations of all citizens, without
any bar on account of sex.
(viii) no disability to attach to any citizen by reason of his
or her religions, caste or creed or sex in regard to public
employment, office of power or honour and in the
exercise of any trade or calling.
(ix) Equal rights to all citizens in regard to public roads,
wells, schools and other places of public resort.
Ques.2What do you understand by “Women
Empowerment”?
Women Empowerment itself elaborates that Social
Rights, Political Rights, Economic stability, judicial
strength and all other rights should be also equal to
women. There should be no discrimination between men
and woman. Women should now there fundamental and
social rights which they get once they born.

 There should be respect and dignity towards Women.

 Have total independences of their own life and lifestyle
inside the home and also outside at their work.
 They should make their decision, by their own choice.
 They should have a high social respect in society.
 They have equal rights in society and other judicial
works.
 They should not be discriminated while providing any
type of education.
 They should select their own economic and financial
choices by their own.
 There should not be any discrimination between woman
and man while giving jobs and employment.
 They should have safe and secured Working location with
proper privacy.

There is no denying the fact that women in India have made a considerable progress in almost seven
decades of Independence, but they still have to struggle against many handicaps and social evils in the
male-dominated society. Many evil and masculine forces still prevail in the modern Indian society that
resists the forward march of its women folk. It is ironical that a country, which has recently acclaimed the
status of the first Asian country to accomplish its Mars mission in the maiden attempt, is positioned at the
29th rank among 146 countries across the globe on the basis of Gender Inequality Index. There has been
amelioration in the position of women, but their true empowerment is still awaited.

Swami Vivekananda, one of the greatest sons of India, quoted that, “There is no chance for the welfare
of the world unless the condition of women is improved, It is not possible for a bird to fly on only one
wing.” Therefore, the inclusion of “Women Empowerment’ as one of the prime goals in the eight
Millennium Development Goals underscores the relevance of this fact. Thus, in order to achieve the status
of a developed country, India needs to transform its colossal women force into an effective human
resource and this is possible only through the empowerment of women.
Empowering women to participate fully in economic life across all sectors is essential to building
stronger economies, achieve internationally agreed goals for development and sustainability, and improve
the quality of life for women, men, families, and communities.
What is women empowerment?
Women empowerment means emancipation of women from the vicious grips of social, economic,
political, caste and gender-based discrimination. It means granting women the freedom to make life
choices. Women empowerment does not mean ‘deifying women’ rather it means replacing patriarchy
with parity. In this regard, there are various facets of women empowerment, such as given hereunder:—

Human Rights or Individual Rights: A woman is a being with senses, imagination and thoughts; she
should be able to express them freely. Individual empowerment means to have the self-confidence to
articulate and assert the power to negotiate and decide.

Social Women Empowerment- A critical aspect of social empowerment of women is the promotion of
gender equality. Gender equality implies a society in which women and men enjoy the same
opportunities, outcomes, rights and obligations in all spheres of life.
Educational Women Empowerment- It means empowering women with the knowledge, skills, and self-
confidence necessary to participate fully in the development process. It means making women aware of
their rights and developing a confidence to claim them.
Economic and occupational empowerment- It implies a better quality of material life through
sustainable livelihoods owned and managed by women. It means reducing their financial dependence on
their male counterparts by making them a significant part of the human resource.
Legal Women Empowerment- It suggests the provision of an effective legal structure which is
supportive of women empowerment. It means addressing the gaps between what the law prescribes and
what actually occurs.
Political Women Empowerment - It means the existence of a political system favoring the participation
in and control by the women of the political decision-making process and in governance.
The position of Women in India: The position enjoyed by women in the Rig- Vedic period deteriorated
in the later Vedic civilization. Women were denied the right to education and widow remarriage. They
were denied the right to inheritance and ownership of property. Many social evils like child marriage and
dowry system surfaced and started to engulf women. During Gupta period, the status of women
immensely deteriorated. Dowry became an institution and Sati Pratha became prominent.
During the British Raj, many social reformers such as Raja Rammohun Roy, Ishwar Chandra Vidyasagar,
and JyotiraoPhule started agitations for the empowerment of women. Their efforts led to the abolition of
Sati and formulation of the Widow Remarriage Act. Later, stalwarts like Mahatma Gandhi and Pt. Nehru
advocated women rights. As a result of their concentrated efforts, the status of women in social, economic
and political life began to elevate in the Indian society.

Current Scenario on Women Empowerment - Based on the ideas championed by our founding fathers
for women empowerment, many social, economic and political provisions were incorporated in the Indian
Constitution. Women in India now participate in areas such as education, sports, politics, media, art and
culture, service sector and science and technology. But due to the deep- rooted patriarchal mentality in the
Indian society, women are still victimized, humiliated, tortured and exploited. Even after almost seven
decades of Independence, women are still subjected to discrimination in the social, economic and
educational field.
Major landmark steps taken for women empowerment.- Provisions made under the Constitution of
India such as: Right to equality under Article 14 of the Indian Constitution guarantees to all Indian
women equality before law; Equal pay for equal work under Article 39(d), guards the economic rights of
women by guaranteeing equal pay for equal work; and Maternity Relief under Article 42, allows
provisions to be made by the state for securing just and humane condition of work and maternity relief for
women.
Acts like the Dowry Prohibition Act, 1961, prohibits the request, payment or acceptance of a dowry.
Asking or giving dowry can be punished by imprisonment as well as fine; Protection of Women from
Domestic Violence Act, 2005, provides for a more effective protection of the rights of women who are
victims of domestic violence. A breach of this Act is punishable with both fine and imprisonment; Sexual
Harassment of Women at Work Place (Prevention, Prohibition, and Redressal) Act, 2013, helps to create
a conducive environment at the workplace for women where they are not subjected to any sort of sexual
harassment.

Panchayati Raj Institutions- As per the 73rd and 74th Constitutional Amendment Act, all the local
elected bodies reserve one-third of their seats for women. Such a provision was made to increase the
effective participation of women in politics.
Women’s Reservation Bill: It is a pending Bill in India which proposes to reserve 33% of all seats in the
LokSabha and in all State Legislative Assemblies for women. If passed, this Bill will give a significant
boost to the position of women in politics.

Various Government Policies and Schemes- The Government of India is running various welfare
schemes and policies, both at State and Central levels for the empowerment of woman. Some of the major
programs and measures include Swadhar (1995), SwayamSiddha (2001), Support to Training and
Employment Programme for Women (STEP-2003), Sabla Scheme (2010), National Mission for
Empowerment of Women (2010) etc. All such policies and programs focus on social, economic and
educational empowerment of women across various age groups.
Thus, there has been no dearth of social, economic, political, legal and Constitutional efforts made for the
empowerment of women both prior to and post-Independence. However, women in India continue to face
atrocities such as rape, dowry killings, acid attacks, human trafficking, etc. According to a global poll
conducted by Reuters, India is the “fourth most dangerous country in the world for women”.

Women Empowerment — Challenges

Perspective: The most widespread and dehumanizing discriminations against women are on the basis of
the biassed perspective. The discrimination against the girl child begins from the birth itself. Boys are
preferred over girls; hence, female infanticide is a common practice in India. The ordeal that an Indian
girl faces at birth is only the beginning of a lifelong struggle to be seen and heard.
Patriarchate Bottlenecks The traditional Indian society is a patriarchal society ruled by the diktats of
self-proclaimed caste lords who are the guardians of archaic and unjust traditions. They put the burden of
traditions, culture, and honor on the shoulders of women and mark their growth. The incidences of “honor
killing” reveal the distorted social fiber in the male-dominated society.
Economic Backwardness: Women constitute only 29% of the workforce but forms majority of the
destitute in the country. There has been a failure in transforming the available women base into human
resource. This, in turn, has hampered not only the economic development of women but also of the
country as a whole.

Implementation Gaps - Through all these years, the attention is only on developing and devising new
schemes, policies and programmes and have paid less attention to the proper monitoring system and
implementation short-sightedness, for e.g. despite the presence of The Pre-Natal Diagnostic Technologies
Act and various health programmes like JananiSurakshaYojana and National Rural Health Mission
(NHRM), our country has a skewed sex ratio and a high maternal mortality rate (MMR).
Loopholes in the legal structure Although there are a number of laws to protect women against all sorts
of violence yet there has been the significant increase in the episodes of rapes, extortions, acid, attacks
etc. This is due to delay in legal procedures and the presence of several loopholes in the functioning of a
judicial system.
Lack of Political Will: The still- pending Women’s Reservation Bill underscores the lack of political will
to empower women politically. The male dominance prevails in the politics of India and women are
forced to remain mute spectators.
Way ahead starts with bridging the deep-rooted biases through sustained reconditioning. It is only
possible by promoting the idea of gender equality and uprooting social ideology of male child
preferability. This concept of equality should be first developed in each and every household and from
there, it should be taken to the society. This can be achieved by running sustained awareness programs
with the help of NukkadNatak or dramas, radio, television, Internet, etc. across the country.
Replacing ‘Patriarchy’ with Parity: A strong patriarchate society with deep- rooted socio-cultural values
continues to affect women’s empowerment. The need of the hour is an egalitarian society, where there is
no place for superiority. The Government should identify and eliminate such forces that work to keep
alive the tradition of male dominance over its female counterpart by issuing inhumane and unlawful
diktats.
Education is the most important and indispensable tool for women empowerment. It makes women aware
of their rights and responsibilities. Educational achievements of a woman can have ripple effects for the
family and across generations. Most of the girls drop out of schools due to the unavailability of separate
toilets for them. The recently launched ‘Swachh Bharat Mission’ focusing on improving sanitation
facilities in schools and every rural household by 2019, can prove to be very significant in bringing down
the rate of girls dropping out of school.

Political Will: Women should have access to resources, rights, and entitlements. They should be given
decision-making powers and due position in governance. Thus, the Women Reservation Bill should be
passed as soon as possible to increase the effective participation of women in the politics of India.
Bridging implementation gaps: Government or community-based bodies must be set up to monitor the
programs devised for the welfare of the society. Due importance should be given for their proper
implementation and their monitoring and evaluation through social audits.
Justice delayed is justice denied. Efforts should be made to restructure the legal process to deliver fair and
in- time justice to the victims of heinous crimes like rapes, acid attacks, sexual harassment, trafficking
and domestic violence. The idea of fast-track courts, devised to impart speedy justice to the victims of
rapes and other crimes against women, is a good initiative taken by the judiciary and the Government of
India.

‘There is no tool for development more effective than the empowerment of women.”—Kofi Annan
Detail Overview on Women Empowerment

Women have a unique position in the economy. in our country with an unfavorable woman – man ratio
and strong patriarchal roots . Entrepreneurship and assets to funds have been difficult.
 Facilitating that women’s direct participation in decision-making capacity and income generation
activities can make significant contributions towards women empowerment. This will enable women to
take the initiative for their development into their own hands. And entrepreneurship can help women to
gain economic development and improve their social status. Once they attain development of women
entrepreneurship enables society to understand and appreciate their abilities. It enhances their status and
leads to the integration of women in nation building and economic. It provides the needed psychological
satisfaction and imbues them with a deep sense of achievements to create their enhanced identity in
society.

Characteristics of women empowerment

 Women empowerment is giving power to women. It is making women better off. It enables a greater
degree of self-confidence and sense of independence among women.
 Women empowerment is a process of acquiring power for women in order to understand their rights and
to perform her responsibilities towards oneself and others in a most effective way. It gives the capacity or
power to resist discrimination imposed by the male dominated society.
 Women empowerment enables women to organize themselves increase their self-reliance and it provides
greater autonomy.
 Women empowerment means women’s control over material assets intellectual resources and ideology. It
challenges traditional power equations and relations.
 Women empowerment abolishes all gender base discrimination in all institutions and structures of
society. It ensures participation of women in policy and decision-making the process at domestic and
public levels.
 Women empowerment means exposing the oppressive powers of existing gender social relations.
 Women empowerment makes women more powerful to face the challenges of life, to overcome to the
disabilities, handicaps, and inequalities. It enables women to realize their full identity and powers in all
spheres of life.
 Empowerment also means equal status to women. It provides greater access to knowledge and resources
greater autonomy in decision making greater ability to plan their and freedom from the shackles imposed
on them by custom belief and practice.
 Women empowerment occurs within sociology, psychological, political cultural, familial and economic
spheres and at various levels such as individual, group and community.
 Women empowerment is an ongoing dynamic process which enhances women’s abilities to change the
structure and ideologies that keep them subordinate. Women empowerment is a process of creating
awareness and capacity building.
In the process of empowerment women should consider their strengths and weakness opportunities and
threats and move forward to unfold their own potential to achieve their goals through self-development.
In our country empowering women through enterprise development has become an integral part of our
development efforts due to three important advantage entrepreneurs, economic growth a social stability.

Conclusion: Empowering women socially, economically, educationally politically and legally is going to
be a Herculean task. It is not going to be easy to change the culture of disregard for women which are so
deep-rooted in Indian society. But it does not mean that it is implausible. Only revolutions bring changes
in a day, but reforms take their time. This one, in particular, will take its time as well. The idea of women
empowerment might sound hard by the yard, but by the inch, it is just a cinch. All we need is a
concentrated effort focused in the right direction that would rest only with the liberation of women from
all forms of evil.

Ques.3 What are the main achievements of the United Nations in the field of
Human Right of Women?
Ans. Gender equality is at the very heart of human rights and United Nations values. A fundamental
principle of the United Nations Charter adopted by world leaders in 1945 is "equal rights of men
and women", and protecting and promoting women's human rightis the responsibility of all States.

Introduction-The United Nations has a long history of addressing women’s human rights and much
progress has been made in securing women’s rights across the world in recent decades. However,
important gaps remain and women’s realities are constantly changing, with new manifestations of
discrimination against them regularly emerging. Some groups of women face additional forms of
discrimination based on their age, ethnicity, nationality, religion, health status, marital status, education,
disability and socioeconomic status, among other grounds. These intersecting forms of discrimination
must be taken into account when developing measures and responses to combat discrimination against
women.

Human Rights and Women: An International Overview

Women have been referred to as the second best God or God of intellectual on earth and praised and
honoured in literature and religion of Indian Society as Devi and Shakti. Paradoxically their actual
position is pathetic, while they are coming out in open (out of house). They are the victims of violence,
exploitation and discrimination. They are treated as second class citizenry. In spite of the constitutional,
legislative and judicial efforts, there still exists a wide gap between the ideal goals and situational
realities. The human rights of women and of girl-child are the inalienable, integral and indivisible part of
human rights. Unfortunately there exists a gap between rights and their enjoyment in reality.

Human Rights issues which affect women play an important role in maintaining peace in the society. The
world community has recognized Human Rights of women as an integral and indivisible part of universal
Human Rights. Human Rights of women gained considerable visibility in recent years. The term
women’s Rights typically refers to freedoms inherently possessed by women and girls of all ages, which
may be institutionalized or ignored and / or illegitimately suppressed by law or custom in a particular
society.
Human rights for women came into sharp focus with the adoption of the Convention on Elimination of
All Forms of Discrimination Against Women by the General Assembly of the United Nations on 18th
December 1997. This is treated as the Magna Carta of women’s human rights. State parties are required
by convention to eliminate discrimination in the exercise and enjoyment of all cultural, civil, political,
economic and social rights.

The entire Indian struggle for Independence was vertically a movement against suppression of human
rights of Indians by the British Empire.
The charter of the United Nations Organization affirms faith in equal rights of men and women. The
Universal Declaration of Human Rights, 1948, professes the principle of non – discrimination and
proclaims that all human beings are born free and equal in dignity and rights, without any distinctions
including that of sex.

The UN General Assembly unanimously adopted a Declaration of Eliminations of Discrimination against

Women in 1967, resolving to abolish sex – discriminatory laws and practices, to grant women equal
rights with men in matters of Civil law including absolute interest in property and free choice and consent
in marriage.

The Second World Conference on Human Rights held at Vienna in 1993, called for full and equal
participation of women in all aspects of public life. The United Nations sponsored First World
Conference on Women was held at Mexico from 19th June to 2nd July 1975; The Second World
Conference of United Nations Decade for Women was held at Copenhagen from 14 to 30 July 1980; The
Third World Conference was held at Nairobi, from 15th to 26th July 1985, to reviews and appraises the
achievements in the U.N. Declarations for Women equality, development and peace.

The Fourth Conference on Women Action for Equality, Development and Peace was held at Beijing,
China, from Sep.4 to Sep.15, 1995 with a caption: Look at the world through Women’s eyes. Beijing Plus
Five – a special session was held by General Assembly in New York from 5th to 10th June 2000, to
assess the progress made by the State parties in the implementation of their Commitment to gender
equality.

THE COMMISSION ON THE STATUS OF WOMEN

The Commission on the Status of Women was established by United Nations Economic and Social
Council resolution 2/11 in 1946 “to prepare recommendations and reports to the Council on promoting
women’s rights in political, economic, civil, social, and educational fields”. The Commission is also
mandated to make recommendations to the Council on “urgent problems requiring immediate attention in
the field of women’s rights”.

The Commission meets once a year and issues agreed conclusions on priority themes set for each year.
The agreed conclusions include an assessment of progress, gaps and challenges, as well as concrete
recommendations addressed to Governments, international organizations, civil society and other
stakeholders. The Commission also adopts resolutions on a variety of women’s rights-related issues.
Throughout its history, the Commission has played a key role in promoting women’s rights, actively
contributing to landmark international legal and policy instruments, such as the Convention on the
Elimination of All Forms of Discrimination against Women, the Declaration on the Elimination of
Violence against Women and the Beijing Declaration and Platform for Action.

CONCLUSION

In the past, human rights had been conceptualized in a way that did not take account of women’s lives and
the fact that women routinely faced violence, discrimination and oppression. Consequently, women’s
experiences were until relatively recently not adequately addressed by the human rights framework. The
work of activists, human rights mechanisms and States has been critical in ensuring that the human rights
framework has grown and adjusted to encapsulate the gender-specific dimensions of human rights
violations in order to better protect women. Effectively ensuring women’s human rights requires a
comprehensive understanding of the underlying societal structures and power relations that define and
influence women’s ability to enjoy their human rights. These power structures have an impact on all
aspects of life, from law and politics, to economic and social policy, family and community life. The
following sections examine some of the key concepts that are critical to the protection and promotion of
women’s human rights.

NON-DISCRIMINATION AND EQUALITY BETWEEN WOMEN AND MEN

Non-discrimination and equality between women and men are central principles of human rights law.
Both the International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights prohibit discrimination on the basis of sex and guarantee women
and men equality in the enjoyment of the rights covered by the Covenants. Article 26 of the International
Covenant on Civil and Political Rights also provides for equality before the law and equal protection of
the law.

The definition of discrimination in the Convention on the Elimination of All Forms of Discrimination
against Women encompasses a variety of possible discriminatory actions (any distinction, exclusion or
restriction) having either the express purpose or the actual effect of discriminating against women. The
Convention goes further than other human rights treaties in also describing in detail the State obligations
and actions to be taken to achieve gender equality in practice. It not only requires equality between
women and men, but also prohibits practices that can perpetuate women’s inequality. Substantive gender
equality and formal gender equality, as well as de facto discrimination and de jure discrimination, are
central concepts in the Convention’s equality framework.

Equality of results and substantive equality

The Committee on the Elimination of Discrimination against Women has explained that, to achieve actual
equality, the underlying causes of women’s inequality must be addressed; it is not enough to guarantee
identical treatment with men. In the Committee’s view, the Convention requires that women should be
given an equal start and also that the State should create an enabling environment for the empowerment of
women in order to achieve equality of results (also referred to as equality of outcome). Equality of results
is the logical consequence of de facto or substantive equality, according to the Committee. Through
special measures, historical wrongs and inequalities are corrected by temporarily giving advantages to
women, and giving them access to opportunities that traditionally have been out of their reach. Achieving
substantive equality requires a change in attitudes, in gender roles and stereotyping; a fundamental
societal change which will lead to a change in women’s lived realities.

Some stakeholders have also favoured the language of equity on the misunderstanding that gender
equality means the same or identical treatment of men and women, rather than taking into account the
actual circumstances of men and women. As explained above, substantive equality, which is the standard
to be met under human rights law, requires measures to achieve equality of results. This may mean that
women and men are not always treated in exactly the same manner, in order to redress historical
discrimination and/or take account of women’s biological differences.
Ques.4 What provisions have been made regarding the protection of women in Indian
Constitution?

Or
What do you understand by Social Inequality and Legal Inequality? Whether both are the
same? discuss.

Ans.IMPORTANT CONSTITUTIONAL AND LEGAL PROVISIONS FOR WOMEN IN INDIA–

The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental
Rights, Fundamental Duties and Directive Principles. The Constitution not only grants equality to
women, but also empowers the State to adopt measures of positive discrimination in favour of women.
Within the framework of a democratic polity, our laws, development policies, Plans and programmes
have aimed at women’s advancement in different spheres. India has also ratified various international
conventions and human rights instruments committing to secure equal rights of women. Key among them
is the ratification of the Convention on Elimination of All Forms of Discrimination against Women
(CEDAW) in 1993.

1. CONSTITUTIONAL PROVISIONS - The Constitution of India not only grants equality to women
but also empowers the State to adopt measures of positive discrimination in favour of women for
neutralizing the cumulative socio economic, education and political disadvantages faced by them.
Fundamental Rights, among others, ensure equality before the law and equal protection of law;
prohibits discrimination against any citizen on grounds of religion, race, caste, sex or place of birth,
and guarantee equality of opportunity to all citizens in matters relating to employment. Articles 14,
15, 15(3), 16, 39(a), 39(b), 39(c) and 42 of the Constitution are of specific importance in this regard.

Constitutional Privileges

(i) Equality before law for women (Article 14)

(ii) The State not to discriminate against any citizen on grounds only of religion, race, caste, sex, place of
birth or any of them (Article 15 (i))

(iii) The State to make any special provision in favour of women and children [Article 15 (3)]

(iv) Equality of opportunity for all citizens in matters relating to employment or appointment to any office
under the State (Article 16)

(v) The State to direct its policy towards securing for men and women equally the right to an adequate
means of livelihood (Article 39(a)); and equal pay for equal work for both men and women (Article
39(d))

(vi) To promote justice, on a basis of equal opportunity and to provide free legal aid by suitable
legislation or scheme or in any other way to ensure that opportunities for securing justice are not denied to
any citizen by reason of economic or other disabilities (Article 39 A)

(vii) The State to make provision for securing just and humane conditions of work and for maternity relief
(Article 42)
(viii) The State to promote with special care the educational and economic interests of the weaker
sections of the people and to protect them from social injustice and all forms of exploitation (Article 46)
(ix) The State to raise the level of nutrition and the standard of living of its people (Article 47)

(x) To promote harmony and the spirit of common brotherhood amongst all the people of India and to
renounce practices derogatory to the dignity of women [Article 51(A) (e)]

(xi) Not less than one-third (including the number of seats reserved for women belonging to the
Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in
every Panchayat to be reserved for women and such seats to be allotted by rotation to different
constituencies in a Panchayat [Article 243 D(3)]

(xii) Not less than one- third of the total number of offices of Chairpersons in the Panchayats at each level
to be reserved for women [Article 243 D (4)]

(xiii) Not less than one-third (including the number of seats reserved for women belonging to the
Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in
every Municipality to be reserved for women and such seats to be allotted by rotation to different
constituencies in a Municipality [Article 243 T (3)]

(xiv) Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the Scheduled
Tribes and women in such manner as the legislature of a State may by law provide [Article 243 T (4)]

2. LEGAL PROVISIONS - To uphold the Constitutional mandate, the State has enacted various
legislative measures intended to ensure equal rights, to counter social discrimination and various forms of
violence and atrocities and to provide support services especially to working women. Although women
may be victims of any of the crimes such as 'Murder', 'Robbery', 'Cheating' etc, the crimes, which are
directed specifically against women, are characterized as 'Crime against Women'. These are broadly
classified under two categories.

(1) The Crimes Identified Under the Indian Penal Code (IPC)

i. Rape (Sec. 376 IPC)

ii. Kidnapping & Abduction for different purposes (Sec. 363-373)
iii. Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC)
iv. Torture both mental and physical (Sec. 498-A IPC)
v. Molestation (Sec. 354 IPC)
vi. Sexual Harassment (Sec. 509 IPC)
vii. Importation of girls (up to 21 years of age)

(2) The Crimes identified under the Special Laws (SLL) - Although all laws are not gender specific,
the provisions of law affecting women significantly have been reviewed periodically and amendments
carried out to keep pace with the emerging requirements. Some acts have special provisions to safeguard
women and their interests like:

i. The Family Courts Act, 1954

ii. The Special Marriage Act, 1954
 iii. The Hindu Marriage Act, 1955
iv. The Hindu Succession Act, 1956 with amendment in 2005
v. Immoral Traffic (Prevention) Act, 1956
vi. The Maternity Benefit Act, 1961 (Amended in 1995 & 2017)
vii. Dowry Prohibition Act, 1961
viii. The Medical Termination of Pregnancy Act, 1971
ix. The Contract Labour (Regulation and Abolition) Act, 1976
x. The Equal Remuneration Act, 1976
xi. The Prohibition of Child Marriage Act, 2006
xii. The Criminal Law (Amendment) Act, 1983
xiii. Indecent Representation of Women (Prohibition) Act, 1986
xiv. Commission of Sati (Prevention) Act, 1987
xv. The Protection of Women from Domestic Violence Act, 2005

3. SPECIAL INITIATIVES FOR WOMEN

(i) National Commission for Women: In January 1992, the Government set-up this statutory body with
a specific mandate to study and monitor all matters relating to the constitutional and legal safeguards
provided for women, review the existing legislation to suggest amendments wherever necessary, etc.
(ii) Reservation for Women in Local Self -Government : The 73rd Constitutional Amendment Acts
passed in 1992 by Parliament ensure one-third of the total seats for women in all elected offices in local
bodies whether in rural areas or urban areas.

(iii) The National Plan of Action for the Girl Child (1991-2000): The plan of Action is to ensure
survival, protection and development of the girl child with the ultimate objective of building up a better
future for the girl child. National Policy for Children-2013 was adopted by the Government of India on
26th April 2013. National Plan of Action for Children 2016 is in Draft Format.

(iv) National Policy for the Empowerment of Women, 2001: The Department of Women & Child
Development in the Ministry of Human Resource Development has prepared a “National Policy for the
Empowerment of Women” in the year 2001. The goal of this policy is to bring about the advancement,
development and empowerment of women.

Ques.5. Discuss the discriminatory provisions regarding women under various

personal laws.

Ans. Introduction-There are various religious personal laws in India. But the status of women is of
great concern as the religious personal laws portray women in subordinate position to men. Women have
to encounter with so many disparities which lead to so many stumbling blocks in their journey. The
present paper is focusing on the disparities which a woman faces through the religious personal laws. Due
to such disparities there are lots of difficulties to live a life with self-respect and dignity to a woman.
These disparities and inequalities hinder the path of woman in the backward direction. Women have to
fight against these inequalities to attain something. Things change with the time, but the mind sets of
people regarding women is next to impossible to change. Though enough efforts have been made in the
 civil laws yet existence of personal laws don’t let the women to come out of that to live a life with their
own terms and conditions.

Gender Inequality- As a concept, “gender inequality” refers to the obvious or hidden disparities among
individuals based on the performance of the gender. The term ‘gender’ depicts the social and cultural
notion about the people. Gender is not based on the biological characteristics. This problem in simple
terms is known as Gender Biasness, which means gender stratification or making difference between a
male and a female. According to Giddens (2006) sociologists define gender inequality as the difference
in the status, power and prestige women and men have in groups, collectivities and societies.

Religious Personal Law - The term ‘personal laws’ circumscribes the scriptural mandates and customary
practices within it. By religious personal law, we refer to rules governing the formation of marriage and
its dissolution; the respective rights, obligations and capacities of spouses; the relationship between
parents and children; marital property; child custody or guardianship; and inheritance (UNRISD, 2009).
The personal laws tell stories about the culture, behaviors, beliefs and values that help to shape our views
about which we are, where we came from, and where we are going”.

Women in Different Religious personal laws

There are various religions like Hindu, Muslim. Sikh, Christian, Parsi, Buddhist, Jews, Jains who follow
various religious personal laws and civil laws. There is no common law in India. Sikh, Buddhist and Jains
follow Hindu personal law because they don’t have separate personal law. There are different laws like
Hindu Marriage Act, 1955, The Hindu Succession Amendment Act, 2005, The Hindu Minority and
Guardianship Act, 1956 and the Hindu Adoption and Maintenance Act, 1956 which govern the personal
laws of the Hindus. In the same way the Muslim personal laws are also based on the proclamations of
holy Quran which govern the Muslims. The Shariat Act, The Dissolution of Muslim Marriage Act, 1986,
The Muslim Women Protection and Rights on Divorce Act, etc. are the Muslim personal laws. As per
these laws one can discerns about the non-uniformity of the personal laws. The status of women is not
good in the personal laws as there are so many bigotry practices in our society. Women have to
countenance to all these impediments.

 Women in Hindu law; Hindus have considered personal law based on the ‘dharmashastra’, a part of
their Religious tradition. Till the codification of Hindu law in 1995 and 1956 the Hindu women did
not enjoy equal rights along with the Hindu men. Before 1995 polygamy was prevalent among the
Hindus. The Hindu woman did not used to get the property from the parents, they used to get dowry
only which is known as “Stridhan” at the time of the marriage. Even though the Hindu law has been
codified, certain discriminatory provisions still exist even today. The highlights of these laws are as
follows:
i. Right to adopt a child: A woman gives a birth to a child but in the matter of adoption Hindu woman
had no right to adopt a child on her own. She could not be the natural guardian of her children during
the life of her husband. This is something unacceptable to a woman but this is the reality and giving a
sense of inferior status of women in the society.
ii. A woman’s right to the dwelling house: Female heirs to a male Hindu intestate's property cannot
ask for a partition of the intestate's dwelling house in which the intestate's family lives until the male
heirs choose to divide their respective shares. This is so even if the house is part of the intestate's
separate property. A female heir who is a daughter has the right of residence in the dwelling house
 only if she is single, has been deserted by or is separated from her husband, or is a widow. A
widowed daughter loses her right to residence upon remarriage. Thus, the law in this area reiterates
traditional patriarchal concepts towards women. A woman doesn’t get the right of dwelling house as a
man. As a woman gets marry then she cannot stands for her right for dwelling house until her father
gives her by his own wish. So woman is depending on the vehemence of father to give something to
the daughter.
iii. Property succession of male and female intestates: In coparcenary properties, a son, a son’s
grandson acquires the right to property by birth. No female can be a member of coparcenary so this is
promoting inequality between males and females. Under the Hindu Succession Act, the property of
male and female intestates devolves differently. There is preference for the agnates rather than the
cognates. Succession to a female intestate's property depends on the type of property. In the absence
of children, property inherited from the female intestate's parents devolves upon her father's heirs. If a
woman doesn’t have children then the property inherited from her husband or father-in-law would go
to the husband's heirs. In the case of female intestate's self-acquired property, a gift, or property
received under a valid will first would go to her children and her husband. In the absence of children
and husband, the property devolves upon her husband's heirs and then upon her parents. Once again,
concepts of gender equality can be seen as in the same or the other form the property is going to male
and showing the patriarchal dominance in the laws.
iv. Widows' property rights: A widow has the right to inherit property from her husband's estate, but
her husband can transfer the property to a third person through a will and she can-not oppose him.
After the death of the husband a woman can be maintain by father in law due to legal obligation if she
has coparcenary property and if the woman cannot maintain herself through her parents, children, or
their estates. If the woman remarries to someone in that case she cannot get the maintenance from the
in laws. If the widow's parents are financially unable to maintain their daughter only then she gets
maintenance from the in laws. To get a brief idea about all these obligations and rules we can take an
example like if a woman gets marry to a man and she is fully dependent on him for money. If the man
died and transferred his property to third party by will. The woman can neither ask for the property
nor expect the maintenance from in laws as now she does not have coparcenary property. Her parents
are not legally bound to maintain her because she is not a minor and is married. The law casts an
obligation on the husband's heirs (the third party) to maintain the widow. A better resolution would be
to restrict the husband's testamentary powers so that he would be obligated to leave a specific
percentage of his property for his dependents (Gopal, 1993).
v. Maintenance law: There is no way to ensure that the husband will regularly make payments. As
neither the police nor such authority will come to the deserted wife’s help, She will in such cases have
to go to the court again, which is never an easy way out for a woman. In India majority of women
hardly get the maintenance to live a better life further.
 Women in Muslim law; Islam means serenity, and obedience. According to Agnes (2004) Islam also
means peace and submission. “Shari’ah is an Arabic word that means the Path to be followed,”
referring to a number of legal injunctions known as Islamic law. The primary source of Islamic law is
the Quran, which Muslims believe to be God’s words. Though the Quran does contain legal
prescriptions, it is mainly concerned with general ethical principles and guidelines rather than strict
instructions. Therefore, the Quran is supplemented by other sources to form the basis of Sharia. Islam
introduced a system in which there would be no discrimination between male and female and will
have the equal rights but the reality is just revere to this. There is big gap between the scriptural i.e.
 the Quranic proclamations &Sharia’h formulation. The Quranic pronouncements are purely
supermundane while the formulation of Shariah has been influenced by thinking of human beings on
related issues of the lives. The Shariah is a result of what people understood out of those holy
pronouncements. The cardinal notion is different from what we brought in the form of Shariah.
Women are myrmidon to men in this patriarchal society. The transcendental divine spirit was
conveniently ignored & the prevailing situation was rationalized through contextual Quranic
pronouncements.

i. Age for marriage: Islam has laid down no age limit for marriage. Age of marriage depends on
puberty, which may vary. So girls may marry early as they mature early. So marriage depends on the
biological characteristics of the girls rather than the age, this is very astounding.

ii. Witnesses at the time of marriage: Among the sunnis the proposal and acceptance should be made
in presence and hearing of two adult male witnesses or one male and two female witnesses. That
means as per the above law a single man has an equal status to two women. A woman is half to a
man.

iii. The aim of marriage: In Islam the inclination of marriage is towards the males. The purpose of
marriages is to give comfort and pleasure to man, to intercept debauchery and rapes and to produce
children. It seems like women are just like objects that are used by men. The women don’t get the
respect which they deserve after marriage.

iv. Right of consent of marriage: She has no rights, not even in the selection of her husband and
determination of her own destiny. She cannot show her desire to get marry to a particular person.

v. Mahr: Marriage is like a contract in Muslim personal law. At the time of marriage mahr given from
the girl’s side, no such rule for the boy’s side. There is gender disparity.

vi. Polygamy: In Islam polygamy is a very contentious issue. It is a manifestation of how Patriarchal
interpretation can prevail and dominate. The sanction for polygamy among Muslims is traced to the
Quran iv.3: which states “You marry two, three or four wives, but not more: but if you cannot deal
equitably and justly with all you shall marry only one. A Muslim man may marry no. of wives but not
exceeding 4 but a Muslim woman can marry only one Husband & if she marries another husband, she
is liable for bigamy under section 494 of Indian Penal code & the offspring of such a marriage are
illegitimate. The logic behind the polygamy is that during pregnancy or menstruation it is better that
man have other legally married wife rather than going to other women. Monogamy results in
promoting the institution of prostitution. These kinds of humbugs are really shameful and
disrespectful for a woman.

vii. Divorce: There was no limitation on the power of the husband to divorce the wife. If was sufficient to
write a bill of divorcement dismiss the wife for no cause whatsoever the wife having no power to
divorce to husband nor to apply even to the judge nor to release her from an irksome bondage.
Particularly the method of divorcing the wife by the husband by pronouncing triple “Talak” is highly
discriminatory. Recently the Supreme Court has held that the practices of the triple Talak is unlawful
and void. According to Muslim Law, any husband, who is of sound mind and has attained puberty,
may divorce his wife whenever he desires, without assigning any reason at his whim or caprice. The
woman has no absolute right to obtain a divorce in Muslim Law. She has that right only under certain
specific contingencies.

viii. Maintenance: In the matter of maintenance the divorced Muslim wife is not required to be
maintained beyond the ‘Iddat’ period. A divorced woman is legally entitled only to her mehr and
maintenance for the duration of idaat period settlement. In 1985 the famous Shah Bano judgment on
 the right of a divorced Muslim woman to get maintenance was pronounced by the Supreme Court.
The case was filed by Shah Bano, who had been thrown out of her house by her husband after thirty
years of marriage. When she asked for maintenance in the court of the judicial magistrate, she was
divorced by her lawyer husband who maintained that he had already given her mehar and
maintenance and was not liable to pay any further amounts. The magistrate awarded a princely sum of
Rs. 25 per month to Shah Bano and this sum was enhanced to Rs. 179.20 per month by the high court.
Not willing to pay even that amount, the husband appealed to the Supreme Court, saying that he was
not liable to pay any maintenance beyond the iddat period according to his personal law. The court
held that the provision regarding the maintenance will applicable to all communities, that section 125
of criminal procedure code had been enacted in order to provide a quick and summary remedy to a
class of person unable to maintain themselves and further that the religion professed by the party
cannot have any repercussion on the applicability on such laws. A widow woman is also not liable to
get maintenance from the in-laws. “A lady divorced by her husband, cannot remarry him, till she
married another person and has a sexual intercourse with him and thereafter he divorces her.

ix. Woman’s share of inheritance: Under both the schools, the male generally gets a share twice of
what his female counterpart gets. When the son and the daughter inherit together the son gets twice of
what the daughter gets. The husband gets 1/4th share and the wife 1/8th share when there is a child
and when there is no child 1/2th and 1/4th respectively. In pre-Islamic days woman had no right of
inheritance. In some communities in Jammu and Kashmir, a daughter can succeed only in the absence
of all male agnates of the deceased.

 Polygamy in India

Polygamy exists among both Hindus and Muslims. Though it has no legal sanction but the incidence
of polygamy among Hindus are higher than those of Muslims.

Religious Personal Laws: Hurdle in the Path of Women

We have seen that there is Gender Inequality in our religious personal laws. Somehow Religious personal
laws promote patriarchy for instance in Muslim personal laws marriages occur due to consent of parents
and there is no specific age of marriage also so, it may cause to early marriages. If early marriage happens
then definitely there will be lack of education. In our country, it is considered that if girl is not educated
then give more dowry so that it can be compensated. Dowry further leads to Domestic violence. Dowry
occurred from Religious personal laws & now it has become the taboo for our society.

As many as 15,000 women annually are killed by their husbands in disputes over dowry. Reported dowry
deaths have increased by 170 per cent in the past decade. Thousands more are injured and maimed
because the husband, or the husbands, or the husband`s family, is dissatisfied with the dowry brought by
the wife. In India sometimes women are burned if their parents didn`t pay enough dowry when the girl
got married. This is often called a “kitchen accident”; in 99% of these “kitchen accidents” a woman is
murdered. 4000 women are burned every year. The international centre for research on women, in a study
on domestic violence, found that 12% of Indian women cited dowry harassment as the cause of domestic
violence. If women get the divorce then women go in the state of loneliness. Loneliness further leads to
psychological harassment. Divorce creates problems for maintenance because there is no such law for
maintenance. An early marriage also leads to early children that cause to mother’s poor health and
mother’s mortality. So, overall somehow many societal issues emerge from the religious personal laws
along with the gender inequality.

Other Personal Laws

Christian women could not obtain divorce on the grounds of adultery committed by the husband; it had
to be coupled with cruelty, bestiality and sodomy. On the other hand, Christian husbands could simply
declare their wives as adulteresses and divorce them. These antiquated laws were enacted in the colonial
period to serve the interests of the British bureaucrats who had their legally wedded wives in England and
were cohabiting with a local. Due to pressure from Christian women, the government last year cleared a
proposal to amend the antiquated Christian Divorce Act 1869.

Parsi daughters who married non-Parsi men lost their property rights and non-Parsi wives of Parsi
husbands were entitled to only half of the husband’s property as per the Parsi personal law. At the
moment, the Parsi community is debating this issue in its conventions.

Conclusion

“Half of the Indian populations too are woman. Women have always been discriminated against
and have suffered and are suffering discrimination in silence. Self-sacrifice and selfdenial are their
nobility and fortitude and yet they have been subjected to all equities indignities, inequality and
discrimination” said by Justice K. Rama Swamy.

Religious personal laws really suppress the women. The males are in supremacy than the females. So
there should be common uniform laws for all religions, so that position of women can be improved.
Education is a path which can lead to women to equality, because whenever any taboo take the society
into his lap then always education play a very important role to pull it from the bottom. So women can
improve their status by being an educated woman and also if there will be an educated society then it will
think about the rights of everyone. The taboos and societal issues can be eradicated by spreading the
awareness among the people regarding the equal status of men and women. Let the women fly in the sky
by removing the oppression posed on her and enlighten her world with new dreams, aims and aspirations.

Ques.6 What do you understand by Maintenance? Discuss the right of maintenance of

muslim wife under Muslim Personal Law.

Ans. Introduction- Maintenance in general implies basic necessities of life which a person requires for
the survival. Maintenance is not defined expressly under the Muslim law. Its meaning has to be inferred
from the Hindu Law where it has been used in a wider sense. The Hindu Adoption and Maintenance Act,
1956 defines the term as follows:

According to Halsbury’s law of England, maintenance is the name given to the weekly or monthly
payments which may be ordered on a decree of divorce, or nullity to be made for the maintenance and
support of the wife during the joint lives of the spouses, maintenance for the children is a similar
provision for their benefit, which may be made in proceedings for divorce, nullity, judicial separation and
restitution of conjugal rights. Maintenance varies according to the position and status of the persons
concerned.
MUSLIM WIFE’S CLAIM ON MAINTENANCE

It is the obligation imposed on the husband to settle claims for maintenance made by the wife. The wife is
entitled to maintenance from her husband although she may have the means to maintain herself and
although her husband may be without means.

Muslim wife’s claim of maintenance is divided in two different branches of law. One under Muslim
Personal Law and another under general law of maintenance as is reflected in Code of Criminal
Procedure, 1973, which is a secular remedy.

According to the Muslim Personal Law, the husband’s duty to maintain commences when the wife attains
puberty and not before; provided always that she is obedient and allows him free access at all lawful
times. If a wife deserts her husband she loses her right to maintenance. In addition to the legal obligation
to maintain there may be stipulations in the marriage contract which may render the husband liable to
make a special allowance to the wife. Such allowances are called kharch-e-pandan, guzara,
mewakhore, etc.

If husband refuses to pay maintenance, the wife is entitled to sue him. Her right may be based on the
substantive law, or she may sue under the provisions of Code of Criminal procedure which provides for
general law of maintenance under Section 125 wherein the term “wife” is widely defined and explained,
so as to cover the claim of ‘legally wedded wife’ as well as of ‘divorced wife’. So in short Muslim
wife’s claim of maintenance arises in following circumstances:

1. Out of the status of Husband & Wife (During the subsistence of marriage & out of the legal
obligation imposed on the husband.
2. Out of pre-nuptial agreement and

3. Out of divorce (After dissolution of marriage).

CLAIM OF MAINTENANCE OUT OF DIVORCE

Under other personal laws a divorced wife is entitled to maintenance until her remarriage or indulgence in
post-divorce adultery. But the Muslim law does not provide for any maintenance to a divorced wife after
the period of Iddat.
With respect to maintenance of divorce wife under the Muslim Law, the right of maintenance commences
on divorce or when she comes to know of the divorce and ceases on the death of her husband, as her right
of inheritance supervenes. In other cases where husband is alive and has divorced the wife, she can claim
maintenance only during the Iddat period and not beyond that. The widow is therefore not entitled to
maintenance during the Iddat period commencing after death of the Husband.

This rule has been a bone of contention and on this count there has been a debate in a society as to
uniformity of the personal laws. Since in Muslim law it is very easy for the husband to get or to give
divorce to the Muslim wife, he can very easily escape the liability of providing maintenance to the wife.
As mentioned above it is no longer obligatory for the erstwhile husband to provide maintenance beyond
Iddat period.
This point was a great controversy among the judiciary, when the Supreme Court has taken a landmark
step and has led to the conflict of law between two different branches of law: Muslim Personal law and
general law under Section 125 of Criminal Procedure code, 1973 so far as the claim of (Muslim) divorced
wife is concerned, which subsequently led to the enactment of new piece of legislation/law applicable
exclusively to the Muslim divorced wife.

So with respect to the claim of Muslim women’s right of maintenance, law is divided and reflected in
following legislations:

1) Muslim Personal Law (Shariat Application) Act, 1937

2) Code of Criminal Procedure, 1973

3) Muslim Women (Protection of Rights on Divorce) Act, 1986

GENERAL LAW i.e. SECTION 125 OF Cr.P.C. vs. PERSONAL LAW i.e. MUSLIM WOMEN
(PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986

The Code of Criminal Procedure, 1973 being a general law has a uniform applicability to all the persons
irrespective of their religion, caste or status whereas Muslim personal law is a special law applicable to
those who are professing Muslim religion and those who are convert to Muslim. In the event of conflict
between a special law and a general law, it is accepted judicial principle that special law shall prevail over
the general law.

Section 125 of Cr. P.C, is applicable to the Muslims including divorced Muslim woman, irrespective of
the fact that in Muslim personal law, wife ceases to be wife on Talaq. Muslim husband is liable to provide
maintenance for divorced wife who is unable to maintain herself, so long as she had not remarried.

The statute provides for maintenance of wife by her husband even after the divorce and creates an illusory
or fictitious relationship between the two spouses in view of the social conditions prevalent in the
country. Further it also prevents the former husband of the divorced wife to drive their erstwhile wives to
a state of poverty and destitution till they remarry. So it is clear that woman continues to be the wife
within the meaning of section 125 of Code of Criminal Procedure, 1973 irrespective of religion and
application of personal law.

Now, If we look from a different view, i.e., from the Muslim Personal law , on the point of claim of
maintenance by a Muslim divorced lady, it is no longer obligatory for the erstwhile husband to provide
maintenance beyond Iddat period. Therefore, it comes in conflict with right of Muslim divorced lady “to
claim maintenance u/Sec. 125 of Code of Criminal Procedure.

In the wake of this controversy as well as contradiction in the two different branches of law, Supreme
Court has taken a landmark and bold view by upholding the claim of Muslim divorced lady under Section
125 of Code of Criminal Procedure, 1973. Supreme Court has acknowledged its previous viewson the
same issue.
Landmark Judicial Pronouncements Relating to the Maintenance of Divorced Muslim
Woman

Mohammad Ahmed Khan V/s Shah Bano Begum: A reformatory step

As noted above the judgement given by the Supreme Court is landmark has paved way towards the
unification of personal laws.

Facts of the Case: The case was with respect to Mrs. Shah Bano, a 62-year-old Muslim woman from
Madhya Pradesh was divorced by her husband in 1978 and was subsequently denied maintenance.
Thereupon she filed a petition under Section 125 of Cr. P.C. in the Court of Judicial Magistrate, Indore
asking for maintenance at the rate of Rs. 500 per month. During which the husband divorced her by
pronouncing Talaq. She did not remarry. In Defence to ShahaBano’s petition for maintenance, he took the
plea that since she is ceased to be wife after Talaq, he has no obligation to maintain her. However,
Magistrate ordered him to pay monthly allowance to his divorced wife, of Rs. 25 per month. Against this
order of the Magistrate, Shah Bano filed a revision application in the MP High court praying for the
enhancement of maintenance allowance. The MP High Court increased the maintenance rate to Rs.
179.20 per month. Mohd. Ahmed Khan preferred an appeal to the Supreme Court. The Supreme Court
dismissed the appeal and confirmed the judgment of the High Court.

Judgment and Principle: The Supreme Court by setting a landmark precedent for the Courts within the
territory of India held that Section 125 of Cr. P.C., 1973 applies to all irrespective of the religion
practiced by the person and section 125 overrides the personal law, if there is any conflict between the
two. To this extent the judicial pronouncement is instrumental. The court also held that

“It would be incorrect & unjust to extend the rule of maintenance under Muslim Law to the cases in
which the divorced wife is unable to maintain herself, so if the divorced wife is able to maintain herself,
the husband’s liability ceases with the expiration of the period of Iddat, but if she is unable to maintain
herself after the period of Iddat, she is entitled to have recourse to Section 125 of Cr. P.C.

Thus it seems from the above mentioned observations of the Supreme Court that there is no conflict
between the provisions Section 125 of Cr. P.C and those of the Muslim personal law on the question
of Muslim Husband’s obligation to provide maintenance for a divorced wife who is unable to maintain
herself.

So with the help of this judgment Supreme Court has set a new law applicable in the case of Muslim
divorced lady that even if a Muslim woman has been divorced, she would be entitled to claim
maintenance from her husband under Section 125 of Cr. P. C. after the expiry of period of Iddat also, as
long as she does not remarry.

The case created considerable debate and controversy about the extent of having different civil codes for
different religions, especially for Muslims in India. This case caused the government[23], with its
absolute majority, to pass Muslim Woman (Protection of Rights on Divorce) Act, 1986 which weakened
the judgment of the Supreme Court and, in reality, denied even entirely destitute Muslim divorcees the
right to maintenance from their former husbands.

Muslim Women (Protection of Rights on Divorce) Act, 1986: An Illusion.

The Muslim Women (Protection of Rights on Divorce) Act, 1986 is a declaratory lawand codifies some
pre-existing rules of Muslim Law. Under this law, maintenance can be claimed from divorced husband,
relatives or from Wakf Board. The Act makes provision for:

1. Maintenance of a divorced Muslim woman during and after the period of Iddat and

2. For enforcing her claim to unpaid dower and other exclusive properties.

Mainly the Act provides reasonable and fair provision and maintenance to be made and paid from her
former husband within the period of Iddat.The word ‘provision’ in relation to the Act would mean an
action of providing something beforehand or arranging in advance to meet the needs of the divorced wife.
It may be that provision can be made for her other needs such as clothes, food and such other things
depending upon the means of the husband.

But the usage of some words such as ‘within’, ‘reasonable’ & ‘fair’ and ‘provision’ for future life created
a problem in interpretation of the Act in favor of divorced Muslim lady. Prima facie it appears that
woman is the beneficiary of this Act which is entirely an illusion. Muslim Woman Act seems arbitrary
with respect to:

Firstly, Act does not provide a provision by empowering her to get maintenance beyond the period of
Iddat, since the word used is ‘within.’

Secondly, Actrestricted the application of Section 125 of Cr. P.C. to the Muslim divorced lady as it is left
optional for the husband and/or for the Parties to the litigation to be governed by Section 125 of Cr. P.C.

The Judiciary started interpreting the provisions of the Act in different directions, since as stated above
provisions & words (including Preambleof the Act seems unclear and ambiguous.

Daniel Latifi V/s Union of India

With respect to the controversial nature of this Act, a writ petition under Article 32 of the Indian
Constitution was filed challenging the constitutional validity of the Act by making Section 3 of the Act as
the pivotal point since this provision was interpreted restrictively.

By analyzing the Preamble of the Act, Statement of Objects and Reasons of the Act, and the judgment
given by Supreme Court in Mohammad Ahmed Khan V/s ShahaBano Begum, Court has advocated the
validity of the Act and came to the following conclusion:

1) 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 the iddat period in terms of Section 3(1)(a)
of the Act.

2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay
maintenance is not confined to iddat period.

3) A divorced Muslim woman who has not remarried and who is not able to maintain herself
after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable
to maintain her in proportion to the properties which they inherit on her death according to Muslim law
from such divorced woman including her children and parents. If any of the relatives being unable to pay
maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such
maintenance.

4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

Observation: At the same time Court has observed on the basis of appropriate reading of the Act:

“the word ‘provision’ indicates that something is provided in advance for meeting some needs. In other
words, at the time of divorce the Muslim husband is required to contemplate the future needs and make
preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may
include provision for her residence, her food, her cloths, and other articles. The
expression “within” should be read as “during” or “for” and this cannot be done because words cannot
be construed contrary to their meaning as the word “within” would mean “on or before”, “not
beyond” and, therefore, it was held that the Act would mean that on or before the expiration of the iddat
period, the husband is bound to make and pay a maintenance to the wife and if he fails to do so then the
wife is entitled to recover it by filling an application before the Magistrate as provided in Section 3(3) but
nowhere the Parliament has provided that reasonable and fair provision and maintenance is limited only
for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she
gets married for a second time.

In this case though Courts were of opinion that prima facie the provisions of the Act appear to be
violative of Article 14 of the Constitution mandating equality and equal protection of law to all persons
otherwise similarly circumstanced and also violative of Article 15 of the Constitution which prohibits any
discrimination on the ground of religion as the Act would obviously apply to Muslim divorced women
only and solely on the ground of their belonging to the Muslim religion.

On an analysis of this judgment we can say that the Act is valid and operative since as it is rightly said by
the Court in the same case that Legislature does not intend to enact unconstitutional laws and in fact “an
appropriate” reading of the Act would reveal that nowhere the Parliament has provided that reasonable
and fair provision and maintenance is limited only for the Iddat period and not beyond it. It would extend
to the whole life of the divorced wife unless she gets married for a second time.

With respect to the validity of the Act Court has provided that “it is well settled that when by appropriate
reading of an enactment the validity of the Act can be upheld, such interpretation is accepted by courts
and not the other way.” Thus the Supreme Court held that a construction that results in making an
Act ultra vires has to be discarded and one that upholds the validity of the Act preferred.

Conclusion

From above, it is therefore, concluded that the position of divorced wife under other personal laws, is
quite different and distinct to that of a Muslim divorced woman.Even the application of general law
(Section 125 of Cr. P.C.) was subjected to the fulfillment of the conditions as mentioned under section 5
of the Muslim Women (Protection of Rights on Divorce) Act, 1986 as an option. When a deserted or
destitute Muslim (divorced) wife who is unable to get maintenance by virtue of prohibition in Muslim
Law, approaches & files application under Section 125 of Cr. P.C., the usual Defense adopted by the
husband was to plead that he has already divorced his wife and hence he is not labile to pay maintenance.
This argument became stronger after the enactment of Muslim Women (Protection of Rights on Divorce)
Act, 1986.

Fortunately, the judiciary has shown awareness and took initiative in protecting the interest of Muslim
woman and has in real sense empowered Muslim women, especially divorced woman to maintain an
adequate standard of life and to defeat the injustice done to them as according to Muslim personal law, it
is very easy to get rid of the wife by mere pronouncing Talaq. The decision given by the Supreme Court
in DanialLatifi case settles the law in favor of the divorced Muslim wife and vests her with a
“constitutional right” to livelihood through maintenance which was first made as an issue in the Shah
Bano Begum case. The present Act invites more criticism than praise. The content of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 has left an opportunity to the judiciary to not only provide
some relief to the divorced Muslim wives but also lead to the growth of awareness and need to look after
them and not to abandon them to destitution. And to provide them dignity and respect of a human being
and not to consider them as an object which is used for pleasure and when bored thrown out of the house.
Maintenance thus is a means of surviving and to lead a happy and respectful life.

Ques.7 What do you mean by maternity benefit & relief? Explain.

Or

When is the employment of or work by woman prohibited under the Maternity Benefit
Act? Discuss.

Ans. OBJECTIVE

� To Provide Healthy Maintenance Of Pregnant

� Women Employee and her child

APPLICABILITY

� Every factory, mine or plantation (including those belonging to Government) and

� To every shop or establishment wherein 10 or more persons are employed

CONDITIONS FOR CLAIMING BENEFITS

1. Must work in the establishment for 80 days in 12 months before her date of Delivery. (Sec-2)

2. Ten weeks before the date of her expected delivery, she may ask the employer to give her light
work for a month. At that time she should produce a certificate that she is pregnant. (Sec-5)

3. She should give written notice to the employer about seven weeks before the date of her delivery
that she will be absent for eight weeks before and eighteen weeks after her delivery. She should
also name the person to whom payment will be made in case she can not take it herself. (Sec-6)

4. She should take the payment for the first eight weeks before she goes on leave. (Sec-5)

Cash Benefits

 Leave with average pay for eight weeks before the delivery.

� Leave with average pay for eighteen weeks after the delivery.

� Leave with average pay for 12 weeks for more than two children.

� 12 weeks Maternity Benefit to a ‘Commissioning mother’ and‘Adoptingmother’(below three

months child).

� A medical bonus of Rs.3500 if the employer does not provide free medical care to the woman.

� In case of miscarriage, six weeks leave with average pay from the date of miscarriage.

� In case of Tubectomy, two weeks leave with wages from the date of Tubectomy.

� An additional leave with pay up to one month if the woman shows proof of illness due to the
pregnancy, delivery, miscarriage, or premature birth. (Sec-10)

Non-cash Benefits/Privilege

• Light work for ten weeks before the date of her expected delivery, if she asks for it.

� Two nursing breaks in the course of her daily work until the child is 15 months old.

� Work from home, after availing of the maternity benefit (conditional).

� No discharge or dismissal while she is on maternity leave.

� No change to her disadvantage in any of the conditions of her employment while on maternity
leave.

� Pregnant women discharged or dismissed may still claim maternity benefit from the employer.

� Every establishment having 50 or more employees shall have the facility of crèche. (Sec-11)
 � The employer shall allow four visits a day to the crèche by the woman, which shall also include
the interval for rest allowed to her.(Sec-11)

Prohibition of dismissal during absence of pregnancy

 Discharge or dismissal of a woman employed during or on account of such absence or to give

notice or discharge or dismissal on such a day that the notice will expire during such absence or
to very her disadvantage.

 Discharge or dismissal during or on account of such absence or to give notice of discharge or

dismissal on such a day that the notice will expire during such absence, or to vary to her
disadvantage any of the conditions of her service.

 At the time during her pregnancy, if the woman but for such discharge or dismissal would
have been entitled to maternity benefit or medical bonus, etc.

 Not barred in case of dismissal for gross misconduct

Other Important Provisions of Maternity Benefit Act, 1961

 If permitted by her employer to absent herself under the provisions of section 6 for any period during
such authorized absence, she shall forfeit her claim to the maternity benefit for such period.

 For discharging or dismissing such a woman during or on account of her absence from work, the
employer shall be punishable with imprisonment which shall not be less than 3 months, but it will
extend to one year and will find, but not exceeding Rs.5,000.

 Failure to Display Extract of Act -Imprisonment may extend to one year or fine.

Payment of maternity benefit in case of death of a woman

 If a woman entitled to maternity benefit or any other amount under this Act, dies before receiving
such maternity benefit or amount, or where the employer is liable for maternity benefit, the
employer shall pay such benefit or amount to the person nominated by the woman in the notice
given under section 6and in case there is no such nominee, to her legal representative. (Sec-7).

Case laws

# Municipal Corporation of Delhi vs. Female Workers Association (2000) SCC224

� Provisions of the Act entitle maternity leave even to women engaged on casual basis or on muster
roll basis on daily wages and not only those in regular employment, are wholly in consonance
with the Directive Principles of State Policy contained in Art. 19, 42 and 43 of the Constitution of
India.

# IndraniChakraborty vs. Idiom Consulting Ltd

 � When she was carrying her first child, she was told over phone that she was sacked. The lady sues
company -She won Rs7.5 lakh as settlement money from the company on orders from Delhi High
Court.

Ques.8 Discuss the judicial trend in India with regard to Uniform Civil Code? Discuss with
reference to case of SarlaMudgalvs Union of India?

Ans. Uniform Civil Code is not just a set of common laws but a way to achieve positive secularism, a key
to development and also a way to bring gender equality in terms of gender justice. In very general words
Uniform Civil Code means is used to refer to the proposal to replace the personal laws based on scriptures
and practices of each major religious community like Hindu, Muslim, Christian and Parsi existing in India
with a common set of laws governing every citizen. In the status quo, these set of personal laws still apply
in a number of fields, including marriage, inheritance, divorce, adoption, and maintenance. According to
the Constitution of India a Uniform Civil Code in Article 44 of the Directive Principles of state policy,
states that, "The State shall endeavour to secure for citizens a uniform civil code throughout the territory
of India."

Meaning and need of Uniform Civil Code

The term civil code is used to cover the entire body of laws governing rights relating to property and
otherwise in personal matters like marriage, divorce, maintenance, adoption and inheritance. The demand
for a uniform civil code essentially means unifying all these personal laws to have one set of secular laws
dealing with these aspects that will apply to all citizens of India irrespective of the community they
belong to. Though the exact contours of such a uniform code have not been spelt out, it should
presumably incorporate the most modern and progressive aspects of all existing personal laws while
discarding those which are retrograde.

The spine of controversy revolving around Uniform Civil Code has been secularism and the freedom of
religion enumerated in the Constitution of India. The preamble of the Constitution states that India is a
"Secular Democratic Republic" This means that there is no State religion. A secular State shall not
discriminate against anyone on the ground of religion. A State is only concerned with the relation
between man and man. It is not concerned with the relation of man with God. It does not mean allowing
all religions to be practiced. It means that religion should not interfere with the mundane life of an
individual.

Firstly, talking about the Importance of Uniform Civil Code in a diversified country like India, it will
definitely integrate India more than it has ever since its independence. A lot of the antagonism is caused
by separate laws of different communities, which will unquestionably come to an end after the
implementation of this code. And It will promote positive secularism in the country, which is the part of
the basic structure of the Constitution and as of now, with various personal laws existing in the country,
we are secular in certain ways. The uniform civil code, if, executed would guarantee that all the various
communities of India will take after a common set of laws, which will unite our country. Also the
Uniform Civil Code will make special contribution in eliminating the complete problem of gender
discrimination on the basis of marital rights, rights of maintenance, and property especially to the women
in the country, which is very important for the fair development of the Country.
Secondly, the implementation of Uniform Civil Code can be traced from the time of Dr. B.R. Ambedkar
his Drafting Committee and the Constituent Assembly; on the time when the constitution was drafted Dr.
Ambedkar strongly supported the idea of UCC and after long hours of debate he obtained nothing but
enumeration of UCC in Article 44 of the Constitution. Talking about the Status quo the ruling
government led by BhartiyaJanta Party that is NDA government (National Democratic Alliance) is
strongly in favour of implementing UCC and for doing so the government established Law Commission
to prepare a report on complete exercise of the revision and reform of family laws in the country, and the
law commission prepared a questionnaire to implore the opinions and ideas of public at large about the
ways in which family law reforms could be introduced. Implementation of UCC is as important as the
democratic structure of the Country because it also relates with every single citizen

The Indian Constitution expressly stands for gender equality. For example, Article 44 of the Constitution
envisages a Uniform Civil Code for all citizens and lays down that, “The State shall endeavor to secure
for the citizen a Uniform Civil Code throughout the territory of India.” However, even after half a century
from the framing of the Constitution, the ideal of Uniform Civil Code is yet to be achieved. Women, who
make up nearly a half of India, continue to clamour for a gender just code to enjoy equality and justice
irrespective of the community to which they belong. The Uniform Civil Code is required not only to
ensure (a) uniformity of laws between communities, but also (b) uniformity of laws within communities
ensuring equalities between the rights of men and women.

Uniform Civil Code - Gender Justice

In Mohammad Ahmed Khan v. Shah Bano Begum, popularly known as Shah Bano‟s case, the
Supreme Court held that “It is also a matter of regret that Article 44 of our Constitution has remained a
dead letter.” Though this decision was highly criticized by Muslim Fundamentalists, yet it was considered
as a liberal interpretation of law as required by gender justice. Later on, under pressure from Muslim
Fundamentalists, the central Government passed the Muslim Women‟s (Protection of rights on Divorce)
Act 1986, which denied right of maintenance to Muslim women under section 125 Cr.P.C. The activist
rightly denounced that it “was doubtless a retrograde step. That also showed how women‟s rights have a
low priority even for the secular state of India. Autonomy of a religious establishment was thus made to
prevail over women‟s rights.”

In SarlaMudgal (Smt.), President, Kalyani and others v. Union of Indiaand others, Kuldip Singh J.,
while delivering the judgment directed the Government to implement the directive of Article 44 and to
file affidavit indicating the steps taken in the matter and held that, “Successive governments have been
wholly remiss in their duty of implementing the Constitutional mandate under Article 44, Therefore the
Supreme Court requested the Government of India, through the Prime Minister of the country to have a
fresh look at Article 44 of the Constitution of India and endeavor to secure for its citizens a uniform civil
code through-out the territory of India.”

However, in Ahmadabad Women’s Action Group (AWAG) v. Union of India, a PIL was filed
challenging gender discriminatory provisions in Hindu, Muslim and Christian statutory and non-statutory
law. This time Supreme Court became a bit reserved and held that the matter of removal of gender
discrimination in personal laws “involves issues of State polices with which the court will not ordinarily
have any concern.” The decision was criticized that the apex court had virtually abdicated its role as a
sentinel in protecting the principles of equality regarding gender related issues of personal laws of various
communities in India.

The Apex Court pursued the same line in Lily Thomas etc. v. Union of India and others and held :
“The desirability of Uniform Civil Code can hardly be doubted. But it can concretize only when social
climate is properly built up by elite of the society, statesmen amongst leaders who instead of gaining
personal mileage rise above and awaken the masses to accept the change.”

The situation regarding the personal laws for Christians in India was different. In their case, the courts
seemed to be bolder and took a progressive stand in terms of gender equality. For example, in 1989, in
Swapana Ghosh v. SadanandaGhosh, the Calcutta High Court expressed the view that sections 10 and
17 of the Indian Divorce Act, 1869, should be declared unconstitutional but nothing happened till 1995.
In 1995, the Kerela High Court in Ammini E.J. v. Union of India, and Bombay High Court in Pragati
Verghese v. Cyrill George Verghese, struck down section 10 of Indian Divorce Act, 1869 as being
violative of gender equality.

In September 2001, a poor Muslim woman, Julekhabhai, sought changes in the divorce provisions in
Muslim law as well as that polygamy is declared illegal. The Supreme Court asked her to approach
Parliament, refusing to entertain the petition. Julekhabhai had sought equality with Muslim men,
requesting court to declare that "dissolution of marriage under Muslim Marriage Act, 1939, can be
invoked equally by either spouse". It also requested the court to strike down provisions relating to "talaq,
ila, zihar, lian, khula etc", which allowed extra-judicial divorce in Muslim personal law.

In a Uniform Civil Code which is the cherished constitutional goal, if we have a single ground of divorce
viz. that the marriage has broken down irretrievably, the scope of any controversy is ruled out. Where
factually marriage has broken down irretrievably, no useful purpose will be served in finding out the guilt
or innocence of the parties and in such cases law proceeds to cut off the tie.28 Analytical discussion on
these issues shows that there should be one single ground of divorce, viz., irretrievable breakdown of
marriage Irretrievable breakdown of marriage and divorce by mutual consent should be made uniformly a
ground to dissolve the marriage of spouses irrespective of their religious faiths. The critical analysis of
different existing grounds of divorce contained under various divorce laws shows more uniformity and
less contrast in them. Therefore, the conceptual analysis of the different existing ground of divorce paves
the way to push up the matter of uniformity in them legislatively.

In NaveenKohli v. NeeluKohli, the Supreme Court, clearly and strongly while permitting dissolution of
thirty year old mismatch, urged the Government of India to amend Hindu Marriage Act in order to make
Irretrievable break down of marriage a valid ground for divorce. The court held that “irrevocable break
down of marriage” as a ground for divorce was prevalent in many other countries and recommended the
Union of India to seriously consider bringing an amendment in Hindu Marriage Act, 1955 to incorporate
irretrievable break down of marriage as a ground for the grant of divorce. The court ordered to send a
copy of judgment to the Secretary, Ministry of law and justice, Department of legal affairs, Government
of India for taking appropriate steps. The express introduction of the “irretrievable break down” principle,
as has been done in England will be much more conducive and functional than merely relying on the
“implied” principle. Besides, the administration of justice on the basis of clearly codified law is superior
to the adjudication from case to case. For this, Parliament could reintroduce the Marriage Laws
(Amendment) Bill, 1981 (No.23 of 1981), which earlier did not fructify into law for expressly introducing
irretrievable break down of marriage as the singular ground for divorce, as the bill was allowed to lapse.

The Law Commission of India recommended in 2008: “It is high time we took a second look at the entire
gamut of Central and State laws on registration of marriages and divorces to assess if a uniform regime of
marriage and divorce registration laws is feasible in the country at this stage of social development and, if
not, what necessary legal reforms may be introduced for streamlining and improving upon the present
system.

For long Christian women too had the law loaded against them. A Christian man could obtain a divorce
on the basis of adultery; a woman had to establish an additional charge like desertion or cruelty under the
Indian Divorce Act 1869. But in 1997, cruelty, physical and mental torture were made ground enough for
a Christian woman to obtain a divorce, with the Bombay High Court recognizing cruelty and desertion as
independent grounds for the dissolution of a Christian marriage. Divorce under the Hindu Marriage Act
1955 can be obtained on the grounds of adultery, cruelty, desertion for two years, conversion in religion,
an unsound mind, suffering from venereal disease or leprosy or if the spouse has renounced the world and
has not been heard from for seven years. Also no resumption of co-habitation for one year after the decree
of judicial separation, no restitution of conjugal rights for one year after decree for restitution of conjugal
rights, or if the husband is guilty of rape, sodomy or bestiality.

The Article 44 of the Constitution of India requires the state to secure for the citizens of India a Uniform
Civil Code throughout the territory of India. As has been noticed above, India is a unique blend and
merger of codified personal laws of Hindus, Christians, Parsis and to some extent of laws of Muslims.
However, there exists no uniform family related law in a single statutory book for all Indians which is
universally acceptable to all religious communities who co-exist in India.

Conclusion: The implementation of such code will declare all the existing personal laws such as (Hindu
Marriage Act 1955, The Shariat Act 1937, The Christian Marriage Act 1872, Parsi Marriage & Divorce
Act 1936 and etc.) null and void. And on a very large scale this code will help in transforming the social,
religious and political scenario of the country, and will bring many required positive changes in the
country, and this will provide equal status, equal rights and equal opportunities to every single women of
the country as compare to the men. Many constructive changes will be seen in personal laws such as
Adoption, Divorce, Inheritance, Maintenance and Marriage. And there will be other impacts as well, for
example: it will help in reducing the vote bank politics, each and every citizen of the country will be
treated equally irrespective of their gender and religion, and as proposed by the ruling government there
are great chances that Uniform Civil Code will be applied to the whole of India including the State of
Jammu and Kashmir.

Ques.9 Discuss critically the right of inheritance in different family laws and the sex
inequality therein.

Ans. INTRODUCTION: Though the Indian constitution bequests women identical rights and prospects,
and a quantity of liberal laws such as the Equal Remuneration Act proclaim this value, India‟s legal
arrangement continues to differentiate counter to women. This is most apparent in two areas: the
inheritance laws, and divorce and maintenance laws.
In notion women are constitutionally assured the elementary right to property. In exercise, the liberal
nature of the constitution is compensated by a similar system of personal law that confines women’s
inheritance, protection, and maintenance rights. Inheritance laws are a salient instance of gender injustice
in the control and circulation of properties.

HINDU LAW: Females’ property rights in the Male-controlled Family

A Hindu father in male-controlled family adored complete power like the Roman father in prehistoric
Rome. The scriptures indisputably backed much to mark the father, the holder of the family a absolute
ruler. Manu said that three persons, a wife, a son and a slave are declared by law to have in general no
wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom
they belong. Similarly Narada believed in the view that a son could be independent only if his parents are
dead; during their lifetime he is dependent even though he is grown old. So in a male-controlled family
females and offspring did not have property rights. The wife was placed into the set of possessions and
slaves. They had a burdened and subdued life in the old male-controlled families.

Gender Justice: Transformations in Hindu Law

The olden times of Hindu Law transformation comes with the Hindu Law committee (Rau Committee)
formed in 1941. It was trailed by another Committee in 1944. The committee lastly submitted its report to
the Federal Parliament in 1947. The commendations of the committee were disputed in the provincial
Parliament. There was tough opposition contrary to the institution of monogamy, divorce, eradication of
coparcenary and inheritance to daughters from the conventional Hindu public. The Congress
representative from West Bengal contended that only women of the lavender, lipstick and vanity bag
variety were interested in the Bill. 2 There were also worries among the conventional Hindu men that if
females were assumed property rights relations would collapse. In 1948 there stood an All India Anti-
Hindu Code Convention. It was claimed that the institution of women‟s portion would lead to the
breakdown of Hindu family system which had been occupied as a co-operative system for eternities for
conservation of family bonds and assets. It was also pointed out that the inclusion of daughter in the line
of inheritance is due to European influence. Though the upper male congress frontrunners were against
the Bill, Jawaharlal Nehru and Dr. Ambedkar were faithful to the Bill. Nehru individually believed in
women‟s assertions to equivalent property rights. Dr. Ambedkar had to fight considerably due to the
robust opposition from the stronghold of higher class Hindus. In spite of the preliminary set back the
Congress party could enact four separate Hindu Codes.

Hindu Women’s Property Rights under the Hindu Succession Act 1956

Women’s claim to property has been considerably upgraded by the Hindu Succession Act 1956. The
notion of women being eligible to a limited domain when they obtain property by birthright is eliminated
and women are allowed to an outright estate like men when they receive any property. Also the daughter
of a predeceased son and the daughter of a predeceased daughter are upraised to an upper rank. They turn
out to be Class – I heirs and get a portion along with the son, and further Class – I heirs. The daughters
are counted in in the Class – I in order to eliminate the discernment on the base of sex. Likewise
succession to a women’s property or stridhan of whatsoever nature is made even regardless of the nature
of stridhan.
In the similar way the difference between male and female successors in the situation of succession has
been gone and at the present they are treated on identical basis if they fit to the same grade of relationship.
Women will no more be disowned on the reason of un- chastity. In Section 14 of The Hindu Succession
Act 1956, the restricted concern of Hindu woman is renewed into complete rights. If she acquires
property from her husband she can trade it and the buyer gets complete right in the asset. Earlier to the
Act, she could trade it lone for the inevitabilities of the household or to execute religious rites for the
assistance of her dead husband.

Another significant change carried out is to the explanation Section 6 of the 1956 Act. 13 Upon the
demise of a coparcener the property transfers to his mother, widow and daughter alongside with his son
by testamentary or without a will succession and not by survivorship. This provision deliberates on the
women an identical right along with the men with the rights of the coparcenary.

Correspondingly section 15 is the major legal enactment that takes into account the succession of Hindu
female’s assets when she expires without a will. Before the Act the property of women dying without a
will was administered by regular Hindu law. She had only restricted concern which would be dismissed
on her death. It is comforting to note that the Act offers two different laws grounded on the sex of the
without a will. This twofold scheme is the customary method anticipated to safeguard the family property.

The property of a Hindu woman dying without a will shall transfer conferring to the guidelines set out in
section 16. (a)Firstly sons and daughters (including the children of any predeceased son or daughter) (b)
secondly upon the heirs of the husband thirdly upon the mother and father (d) fourthly upon the heirs of
the father and (e) lastly upon the heirs of the mother.

MUSLIM LAW: Inheritance Rights of Muslim Women under the Muslim Personal Law

In reality the domination of Muslim female is due to the conventional interpretations of Shariah which
also contain gender selective customary rules that are offered as god’s absolute words. Muslim feminists
suggest the foundation of women’s domination to the same Shariah laws which infer the godly laws
erroneously.

Furthermore, Muslim law is soaked with pro-male-controlled versions. Even though the position of
female upgraded through the period of the prophet it was only for short period. Muslim commonalities do
not think beyond Islam and they believe it as whole way of existence.

Shariat and the Property Rights of Muslim Women

The Muslim Jurists gave considerable importance to the laws of heirloom and they were certainly not
tired of retelling the saying of the prophet. The Prophet believed that absorb the laws of inheritance and
impart it in the folks for they are one-half of valuable information and modern writers have respected the
system for its efficacy and prescribed merit. Macnaghtenarticulates that in these laws we find ample
attention paid to the interests of all those whom nature places in the first rank of our affections and indeed
it is difficult to conceive any system containing rules more strictly just and equitable. The Islamic law of
heirloom comprises of two separate essentials, the tradition of earliest Arabia and directions placed by
Quran and the Forefather of Islam. The Koranic transformation came as a framework upon the early tribal
law. Many of the prevalent, societal and economic dissimilarities were adjusted for that reason Koran
may be denoted as a revising Act.
Property Rights of Muslim Women under the Customary Law

In pre-Islamic Arabia the law of heirloom was grounded on comradeship-in arms and henceforth even
wife and children were left out from legacy. In datum the law of heirloom was built on the values of
agnatic liking and barring of females. Thus a daughter or a sister or daughter‟s son or sister‟s son could
not succeed to the property. 30 It is apparent from this that earlier to the arrival of Islam females were not
only dispossessed of their right to legacy but their very fate was in the influence of her husband‟s band or
with her relatives. In the pre-Islamic culture males relished superior hand over women in issues related to
legacy.

But the prophet completely transformed the pre-Islamic law of legacy without repealing all the customs of
the pre-Islamic Arabia. He reserved in their unique practice many Arabian customs which did not clash
with the elementary beliefs of Islam. The prophet detached some economic and social ills then prevailing.

For example, in pre-Islamic Arabia, females had no right to heirloom. So Islam made husband or wife a
successor. Women and cognates were made capable to receive. Parents and ascendants were assumed the
right to receive even when there were male offspring. As a broad rule women were allowed one half the
share of a woman.

Again at the time of marriage, the Muslim women receive Mehr which she is free to use, spend or invest
it in any way she likes. Therefore as a wife she adds to whatever she receives through inheritance in her
capacity as daughter and that she does not have to support either herself or her children. Therefore the
position of a Muslim woman is secure as far as inheritance is concerned. Their financial situation is
completely guaranteed by the Islamic law.

All the key Islamic legal materials generally support women‟s right to acquire, hold, use, administer and
dispose of property. A Muslim woman possesses independent legal, economic and spiritual identity and
independence. The Quran notes that women shall be legally entitled to their share and that to men is
allotted what they earn, and to woman what they earn. Only if women choose to transfer their property
can men regard it as lawfully theirs. The Islamic laws supporting property rights of women are drawn
from a variety of fields such as marriage, dower, inheritance and maintenance.

CONCLUSION

The Hindu Succession Act of 1956 was envisioned to expand the rights of Hindu women. Though the Act
has condensed some gender disparities, many till now continue. Under Hindu law, sons have an
autonomous share in the family property. However, daughters‟ portions are grounded on the share got by
their father. Hence, a father can efficiently disown a daughter by relinquishing his share of the family
property, but the son will remain to have a portion in his personal right. Moreover, married daughters,
even those fronting marital nuisance, have no domestic rights in the family home. Though laws
themselves have not been gender-equitable, even the weak rules protecting females have not been
sufficiently applied.

Consequently, in exercise females continue to have little entrance to land and property, a chief source of
revenue and continuing economic safety. Even when the state deliberates rights on the underprivileged by
land reform, the ownership to the land is consistently in the designation of the male head and is hardly
held together with his spouse. And authoritative farmer lobbies in north India have in recent times wanted
to deprive females of minimal property rights. Great amount of females continue to be oblivious of their
rights of inheritance; and, where informed, social powers prevent women from challenging these rights.
Females themselves frequently repel variations in inheritance arrangements, with two of three females
being apparently against girls getting an equal portion with boys in parental belongings.

By customary definition, the family properties are those assets attained from father or paternal
grandfather or paternal great-grandfather or portion attained on partition or self-attained properties or
distinct properties of a person thrown into the combined family properties. In the Indian Succession Act,
1925, which is also pertinent to Hindus, both men and women have unobstructed right of testamentary
character, while the Muslim Law confines the said right to only 1/3rd of the domain after reducing funeral
expenditure and arrears.

To quote from Justice Sujata V. Manohar of Supreme Court of India"It is not easy to eradicate deep
seated cultural values or to alter traditions that perpetuate discrimination. It is fashionable to denigrate the
role of law reform in bringing about social change. Obviously law, by itself, may not be enough. Law is
only an instrument. It must be effectively used. And this effective use depends as much on a supportive
judiciary as on the social will to change. An active social reform movement, if accompanied by legal
reform, properly enforced, can transform society."

Ques.10 Write a short essay on the Family court Act, 1984.

Introduction

Marriage is an institution which is considered as sacred in India. But with the changing times marriage
has become a subject of great judicial scrutiny. Before 1984 all family matters were seen by ordinary civil
court judges who used to deal with matters like recovery of money or property. In 1984 the Government
of India after the recommendation of the Law Commission in their 59 th Report the family courts were
created by a Gazette notification of the Central Government. This Act was known as ‘The Family Courts
Act, 1984’.

Jurisdiction

1. Civil matters: The family courts exercise the entire jurisdiction which is exercised by
any District Court or any subordinate civil court in the following matters-

• Matrimonial causes

• Maintenance and alimony of spouses

• Custody and guardianship of children

• Settlement of spousal property

 2. Criminal matters: The judge is vested with the power exercisable by the Magistrate of First
Class under Chapter IX of Code of Criminal Procedure which is Order for maintenance of
wives, children and parents.

Powers of Family Court

1. The family court has the power to make their own procedure.
2. They are not required to record the oral statement of the witness at length.
3. The appeal from family courts lies directly to the High Court.
4. The Family Court can receive any document or statement even if it is not admissible under
Indian Evidence Act 1872.

Procedure to be followed by family court

1. Section 9 provides that the family court should try to resolve the matter through conciliation and
settlement.
2. If there is possibility of settlement of dispute the court should adjourn the proceedings until such
settlement is arrived at.
3. The parties of the proceeding are not required to hire a legal practitioner; however they are
entitled to appoint an ‘amicus curie’ to assist the parties in the settlement proceedings.
4. In camera proceedings can be ordered if the parties desire. (In camera proceedings means that
the public is not allowed to see the proceedings)
5. Judgment should be concise with the statement of the case, determination of the decision and
the reason for the decision.
6. Provisions of Code of Civil Procedure, 1908 are applied in the enforcement of the order or the
judgement.
7. The Court can take assistance of medical and welfare experts.

Appeal

1. Appeal from judgment or order of Family Court can be made to the High Court within 30
days of passing the order or the judgement.
2. The appeal can be on both question of law and question of fact.
3. The appeal should be heard by a High Court bench of two or more judges.
4. No appeal lies against an order which is passed with the consent of the parties.

Steps to follow for registering a suit in a Family Court

1. If a person wants to register a suit in the family court then he needs to describe all the details
clearly on a watermarked paper and submitted along with the court fees.
2. Along with the suit papers the petitioner should attach an affidavit that all the facts stated in the
plaint is true.
3. The papers are submitted to the registrar of the Family Court who verifies all the relevant
documents.
 4. These files are presented to the Principal Judge of the Family Court. After verification of each file
and hearing the petitioners, the Principal Judge decides whether the suit is fit for registration.
5. The applicant files the summons form and gets the next date for hearing.

Challenges

1. Inadequate number of conciliators- In many Courts it has been observed that they don’t have
counselors or the counselors are inapt. A major problem is the counsellors keep changing
frequently.
2. Attitude of Family Court Judges- The judges appointed to the family court do not have any
special expertise in dealing with family matters, nor do they have any special expertise in settling
disputes through conciliation. The appointment of women judge in Family Court is still a dream
to be achieved.
3. Lack of Uniformity in Rules and Procedures- The procedure established in different High
Courts have laid down different rules of procedure. This causes confusion during the proceedings.
There are still many High Courts who have not yet established Family Courts.
4. Permitting Lawyers- Though the act has provided that the proceedings should be conducted
without a legal practitioner, the system did not create any alternative system of simplified rules.
The litigants are at the mercy of court clerks and peons to advise them on the rules followed.
5. Poor state of infrastructure- The Family Court suffers from lack of basic infrastructure. In
maximum Family courts there is absence of drinking water, canteen, typist,notary.This lack of
basic requirements creates hardship. The working conditions are basically unhygienic and poor.

Conclusion

So far in India 153 family courts have been established. Yet many of them lack basic infrastructure and
proper rules and procedure. There are many states that still don’t have family courts like Haryana,
Arunachal Pradesh, and Mizoram.
However, the court has proved to be one of the most efficient mechanisms for solving family disputes.
Many marriages have been saved, many women were given their basic rights and many family disputes
have been resolved.

Though the record of Family courts have been pretty much mixed, formulating of certain remedies such
as uniform procedure, stricter laws and improvement in the infrastructure can improve the functioning of
the court.

Ques.11 What provisions have been made regarding marriage under the Special Marriage Act,
1954?

Ans.Marriage is seen as an institution of people coming together under the promise of spending a life
time with each other. However, sometimes this union may not turn out to be as pleasant as expected.
Unhappy marriages are socially undesirable and are a breeding ground for delinquent children. Thus,
instead of living a life filled with regret and remorse, the parties may chose to part ways. This is a
submission on the options thus given to a party frustrated by his/her marriage under the Special
Marriage Act, 1954.
Introduction: In the present era however, marriage is nothing short of a contract entered into by two
people who have the capacity to enter into the contracts and one that can be terminated at will subject to
certain conditions. It is these conditions that are called “matrimonial relief”. On a personal level, one has
to question why they are called “matrimonial reliefs”. Does it mean that the parties are provided with a
relief from their marriage? If that is so, then why marry in the first place? But the answer to this is often
simple; these measures have been introduced to ensure that, in case the marriage takes a wrong turn, the
innocent party always has a solution. It has to be remembered that law has always been in existence to
provide a helping hand, to protect the needy and guide the helpless. This is exactly what these provisions
do.

Matrimonial relief is a topic that basically deals with the different solution available to a person who is
part of a frustrated marriage. Marriage maybe a sacred union of man and woman, but it serves no purpose
if the man and woman are incapable of living together. Unhappy marriages are socially undesirable and
are a breeding ground for delinquent children. If the parties can no longer continue a proper relation, then
why have a relation at all. Thus, instead of living a life filled with regret and remorse, the parties are
given an option, they can fist apply for their marital rights to be reinstated or they can live separately and
see if they still want to continue and if that also does not work, they can go for a divorce which is the
final option. Once divorced, the parties are no longer bound by marital ties.

Nullity of Marriage

The concept of a marriage being a nullity from the very beginning or being annulled subsequent to the
marriage is a concept of English origin from the times of the ecclesiastical courts which exercised
jurisdiction over every aspect of marriage. The ecclesiastical doctrine laid down that marriage was not
regarded as consummated if parties have not become one flesh by sexual intercourse, and consequently if
one of the parties was impotent and therefore unable to consummate the marriage, he or she lacked the
capacity to marry. Further, annulling a voidable marriage was given retrospective effect. According to
ecclesiastical law, a marriage was either valid forever or never, in cases similar to the above, the marriage
was declared void ab initio. Such uncontrolled and unrestrained power in the hands of the religious
leaders to declare marriages void and bastardize the issue was a cause of great concern to the royal courts.

It was situations like this that lead to the question, whether laws which in spite of their ecclesiastical
authority character should force such arbitrary rules upon the common man. It was as an answer to this
question that laws were divided into (a) civil and (b) canonical. It was further decided that a marriage in
violation of the former would be void and latter would voidable. It was also understood as a general
principle that the validity could be questioned only by the parties to a marriage and further that if one of
the spouses died, such a question could never arise.

Void Marriage

A marriage which arises on account of the fact that the parties have no capacity to marry, have in fact
married undergoing the requisite rites and ceremonies of marriage. Such a marriage is a misnomer, a
contradiction and is void ab initio. The essential feature of such a marriage is that no legal consequences
arise from it, i.e. no rights and obligation arise from it. Further since a void marriage is no marriage at all,
a decree of nullity is not necessary, as a decree merely makes a judicial declaration of an existing fact.[i]
Grounds of void marriage

A marriage performed in violation of absolute impediments is void. Under the SMA, a marriage is void
on the following grounds:

 Either party has a spouse living at the time of marriage.

 Either party was at the time of marriage incapable of giving a valid consent in consequence of
unsoundness of mind or though capable of giving a valid consent, has been suffering from mental
disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children or
has been subject to recurrent attacks of insanity.
 The bride was below 18 years in age and bridegroom was below age of 21 years at the time of
marriage
 Parties were within the degree of prohibited relationship.
 The respondent was impotent t the time of institution of the suit.

These grounds do not apply to marriages registered under the Act. The registration however maybe
cancelled on the following grounds:

 Marriage was bigamous

 Either party was an idiot or lunatic at the time of marriage
 No valid ceremony of marriage was performed between the parties
 One of the parties or both were under the age of 21 years at the time registration
 Parties are within the degrees of prohibited relationship

Voidable Marriage

A voidable marriage is one which is valid until it is avoided. It can be avoided by a petition by either
party to a marriage if it violates conditions requisite to make a marriage valid. If, however none of the
parties petition for an annulment, it will remain valid. If one of the parties dies, the validity cannot be
questioned. The marriage will give rise to rights and obligations as long as it is valid.

Grounds of voidable marriage:-

Under SMA, a marriage is voidable on the following grounds:

 Non consummation of marriage on account of wilful refusal of the respondent to do so

 Pre-marriage pregnancy of the respondent of which the petitioner was not the cause and of which
the petitioner was at the time of marriage ignorant, and marital inter course had not take place
with the consent of the petitioner after the knowledge of pregnancy and further that the petition is
presented within a year from the date of marriage
 Petitioners consent was obtained by fraud or force, provided that the petitioner did not live with
the respondent as husband or wife after the discovery of fraud or cessation of force and provided
 further that the petition was presented within one year of the discovery of fraud or cessation of
force.

Pre-Marriage Pregnancy

Pre-marriage pregnancy is a ground for voidable marriage under the SMA. This ground has its origin in
English and if often called a special kind of fraud. It has to be noted that this ground talks about pre-
marriage pregnancy lone and not pre-marriage un-chastity. Even if the woman is unchaste before the
marriage and she had delivered an illegitimate child, the marriage could not be avoided, since un-chastity
is not a ground of annulment of marriage. The conditions to be roved here are,

1. Respondent was pregnant at the time of marriage

2. She was pregnant from a person other than the petitioner
3. Petitioner was not aware of respondent’s pregnancy at the time of marriage
4. Petition must be presented within one year of the marriage under the SMA
5. No marital intercourse should take place with the consent of the petitioner after he had known of
wife’s pregnancy

It is essential that all these conditions must be fulfilled before a petition can be filed. In case of this
particular ground the burden of proof is on the petitioner who must establish all the aforesaid
requirements. Also if the petition is not presented within the time limit specified under the Act, it will
become time-barred and the petitioner will be left with no remedy.

Fraud or Force

Broadly the ground uses the terms fraud and force. The SMA, 1954 uses the words coercion and fraud.
The requirements are:

1. Consent of the petitioner was obtained by fraud or coercion

2. Petition must be presented within one year of the discovery of fraud or cessation or coercion
3. Petitioner must not have lived with the respondent, as husband or wife, as the case maybe, after the
discovery of fraud or coercion.

Impotency
Impotency means an inability of either spouse to consummate the marriage. It can also take the form of a
willful refusal to consummate. Under the SMA, this ground renders the marriage null and void; the
requirement is two-fold:

 Respondent was impotent at the time of marriage

 Continued to be so till the presentation of the petition.

The Special Marriage Act, 1954 as amended under the Marriage Laws (Amendment) Act, 1976
recognises the following eight fault grounds for divorce:

 Adultery
  Two years desertion
 Respondent undergoing a sentence of imprisonment for seven years or more for an offence under
IPC, 1860
 Cruelty
 Venereal diseases in a communicable form
 Leprosy
 Incurable insanity or continuous or intermittent mental disorder, and
 Presumption of death

Further two specific grounds have been provided for the wife alone. They are:

 The husband, since the solemnization of marriage has been guilty of rape, sodomy or bestiality,
and

 Cohabitation has not been resumedfor one year or more after an order of maintenance has been
passed under section 125 of the Criminal Procedure Code.

Ques.12 Write a short essay on Sexual Harassment of working women at the work place.

Ans.The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013 is a legislative act in Indiathat seeks to protect women from sexual harassment at their place of
work. It was passed by the LokSabha (the lower house of the Indian Parliament) on 3 September 2012. It
was passed by the RajyaSabha (the upper house of the Indian Parliament) on 26 February 2013. The Bill
got the assent of the President on 23 April 2013. The Act came into force from 9 December 2013. This
statute superseded the Vishakha Guidelines for prevention of sexual harassment introduced by the
Supreme Court of India. It was reported by the International Labour Organization that very few Indian
employers were compliant to this statute. Most Indian employers have not implemented the law despite
the legal requirement that any workplace with more than 10 employees need to implement it. According
to a FICCI-EY November 2015 report, 36% of Indian companies and 25% among MNCs are not
compliant with the Sexual Harassment Act, 2013. The government has threatened to take stern action
against employers who fail to comply with this law.

The Act uses a definition of sexual harassment which was laid down by the Supreme Court of India in
Vishaka v. State of Rajasthan (1997). Article 19 (1) g of the Indian Constitution affirms the right of all
citizens to be employed in any profession of their choosing or to practice their own trade or business.
Vishaka v. State of Rajasthan established that actions resulting in a violation of one's rights to ‘Gender
Equality’ and ‘Life and Liberty’ are in fact a violation of the victim’s fundamental right under Article -
19 (1) (g). The case ruling establishes that sexual harassment violates a woman's rights in the workplace
and is thus not just a matter of personal injury.
Under the Act, which also covers students in schools and colleges as well as patients in hospitals,
employers and local authorities will have to set up grievance committees to investigate all complaints.
Employers who fail to comply will be punished with a fine of up to 50,000 rupees.
The Bill was first introduced by women and child development minister Krishna Tirath in 2007 and
approved by the Union Cabinet in January 2010. It was tabled in the LokSabha in December 2010 and
referred to the Parliamentary Standing Committee on Human Resources Development. The committee's
report was published on 30 November 2011.In May 2012, the Union Cabinet approved an amendment to
include domestic workers.The amended Bill was finally passed by the LokSabha on 3 September
2012.The Bill was passed by the RajyaSabha (the upper house of the Indian Parliament) on 26 February
2013. It received the assent of the President of India and was published in the Gazette of India,
Extraordinary, Part-II, Section-1, dated 23 April 2013 as Act No. 14 of 2013.
Characteristics

 The Act defines sexual harassment at the work place and creates a mechanism for redressal of
complaints. It also provides safeguards against false or malicious charges.

 The Act also covers concepts of 'quid pro quo harassment' and 'hostile work environment' as
forms of sexual harassment if it occurs in connection with an act or behaviour of sexual
harassment.
 The definition of "aggrieved woman", who will get protection under the Act is extremely wide to
cover all women, irrespective of her age or employment status, whether in the organised or
unorganized sectors, public or private and covers clients, customers and domestic workers as
well.
 While the "workplace" in the Vishaka Guidelines is confined to the traditional office set-up
where there is a clear employer-employee relationship, the Act goes much further to include
organizations, department, office, branch unit etc. in the public and private sector, organized and
unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports
complex and any place visited by the employee during the course of employment including the
transportation. Even non-traditional workplaces which involve tele-communicating will get
covered under this law.
 The Committee is required to complete the inquiry within a time period of 90 days. On
completion of the inquiry, the report will be sent to the employer or the District Officer, as the
case may be, they are mandated to take action on the report within 60 days.
 Every employer is required to constitute an Internal Complaints Committee at each office or
branch with 10 or more employees. The District Officer is required to constitute a Local
Complaints Committee at each district, and if required at the block level.
 The Complaints Committees have the powers of civil courts for gathering evidence.
 The Complaints Committees are required to provide for conciliation before initiating an inquiry,
if requested by the complainant.
 The inquiry process under the Act should be confidential and the Act lays down a penalty of Rs
5000 on the person who has breached confidentiality.
 The Act requires employers to conduct education and sensitization programs and develop policies
against sexual harassment, among other obligations.
 Penalties have been prescribed for employers. Non-compliance with the provisions of the Act
shall be punishable with a fine of up to ₹ 50,000. Repeated violations may lead to higher
penalties and cancellation of license or registration to conduct business.
 Government can order an officer to inspect workplace and records related to sexual harassment in
any organization.
Ques.13 Gender Justice: A Myth?

The society may have advanced, but the condition of women in our country fails to improve. Even today,
we hear of numerous instances of cruelty against women. This paper attempts to identify the causes for
the unequal treatment meted out to women in the country, even after different legislations and judgments
in their favour. It traces the development of law enacted to protect women, starting from the British rule
in India and studies the constitutional provisions that provide for their welfare.

It also goes on to analyse the rule of judicial pronouncements that has been instrumental in helping
women gain their rights. The paper suggests solutions on how to improve the current situation of
women.”

Introduction:Man and woman are two halves of humanity. Neither can reach its highest creative
excellence without the cooperation of the other. Through the ages we have placed woman on a pedestal of
‘mother of mankind’. Paradoxically, the most horrendous cruelties have been inflicted upon her, often
without reason and mostly without just cause.Though we have entered the new millennium, the status of
women has not improved, mainly due to the traditional bias and prejudice towards that section of the
society, which has remained, for no fault of theirs, discriminated against all these years. The
discrimination stems not so much from legislative insufficiency as from the attitudinal bias of the
society.Contemporaneous legislation, laws, treaties and conventions have unequivocally established equal
rights for men and women as a global norm. In spite of all this, discrimination continues.

It is a harsh reality that women have been ill-treated in every society for ages and India is no exception.
The irony lies in fact that in our country where women are worshipped as Shakti, the atrocities are
committed against her in all walks of life. She is looked down as commodity or as a slave, she is not only
robbed of her dignity and pride outside her house but also faces ill-treatment and other atrocities within
the four walls of her house. Women are discriminated at two levels, firstly they suffer because of their
gender and secondly due to grinding poverty. Social and economic inequalities also contribute in no small
measure to the continued denial of human rights to Women in general and to the disadvantaged and poor
amongst them in particular. Gender equality in most cases boils down only to a myth.

Women are deprived of economic resources and are dependent on men for their living. In modern times
many women are coming out to work but have to shoulder the double responsibility. Firstly, a woman has
to work where she is employed and secondly, she also has to do all the house hold work. Her general
status in the family and in the society has been low and unrecognized.

From the cradle to grave, females are under the clutches of numerous evils acts like discrimination,
oppressions, violence, within the family, at the work places and in the society. The root cause of all the
evil practices faced by the women are: (1) illiteracy, (2) economic dependence, (3) caste restrictions, (4)
religious prohibition, (5) lack of leadership qualities and (6) apathetic and callous attitude of males in the
society.

Women Oriented Legislations: A Move to Facilitate Gender Justice

In our society, a girl is socialized from her tender age to be dependent on males. Her existence is always
subject to men. In her childhood she is under the protection of her father, after marriage under the
protection of her husband and in old age at the mercy of her sons. The patriarchal system in India made
women lives at the mercy of men, who exercise unlimited power over them.Over the years, radical
changes have been introduced in the laws pertaining to women, which not only recognize their rights, but
also afford protection against exploitation.In order to ameliorate the condition of women in India
Legislature enacted the large volume of enactments and many of these legislations were enacted in
colonial period which are as follows:

(1) 1829, Abolition of Sati;

(2) 1856 Widow Remarriage made legal;

(3) 1870 Female infanticide banned;

(4) 1872 inter caste, intercommunity marriages made legal;

(5) 1891 age of consent raised to 12 years for girls;

(6) 1921 women get rights to vote in Madras province;

(7) 1929 Child Marriage Restraint Act was passed;

(8) 1937 women get special rights to property;

(9) 1954 Special Marriage Act was passed;

(10) 1955 Hindu Marriage Act was passed;

(11) 1956 Suppression of Immoral Traffic in Women and Girls Act was passed;

(12) 1961 Dowry Prohibition Act was passed;

(13) 1981 Criminal Law Amendment Act was passed;

(14) 1986 The Indecent Representation of Women (Prohibition) Act was passed;

(15) 1987 Commission of Sati (Prevention) Act was passed.

Apart from these above mentioned laws, there are some enactments pertaining to industry which contain
special provisions for women such as: The Workmen Compensation Act, 1921; Payment of Wages Act,
1936; Factories Act, 1948; Maternity Benefit Act, 1961; Minimum Wages Act, 1948: Employees State
Insurance Act 1948 and Pensions Act ,1987. In addition to this, the Constitution of India which is
regarded as the supreme law of the land too gives special protection to women.

The provisions which deal with women’s rights in the Constitution are as follows; Article 14 expresses
that the State shall not deny to any person the equality before the law and equal protection of laws with in
the territory of India. Article 15(1) prohibits the State to discriminate against any citizen on the grounds
only of religion, race, caste, sex, place of birth pr any of them. Article 15(3) permits the State to make
special provisions for women and children. Article 16 provides that there shall be equality of opportunity
for all citizens and they shall not be discriminated on the basis of religion, race, caste and sex. Article
39(a) of the Constitution provides that the state in particular direct its policy towards securing that citizen,
men and women equally, have the right to an adequate means of livelihood. Article 39(e) of the
Constitution provides that the health and strength of workers, men and women, and the tender age of
children are not abused and that citizens are not forced by economic necessity to enter avocations
unsuited to their age or strength. Article 51(A)(e) of the Constitution provides that it will be the duty of
every citizen to renounce practices derogatory to the dignity of women.

Further, Indian Penal Code, Criminal Procedure Code and Indian Evidence Act too, have some
provisions which provide protection and a sense of security to women. Recently the Government’s
piecemeal approach to protect women has taken a step forward enacting a law providing protecting
women from domestic violence. With the establishment of National and State Human Right Commissions
and National Commission for Women, gender issues are receiving greater attention.
The adoption of the Criminal Law Amendment Act 2013 by the Indian Parliament converges with the
recent global spotlighting of violence against women, including the adoption of a declaration on the
elimination and prevention of violence against women and girls.The constant justification for a focus on
the criminal law to address violence against women has been that prevention will take time. However,
criminal law initiatives that further entrench a sexually sanitized regime fail to distinguish between sexual
speech and unwelcome remarks, and target all sexual behaviour that does not conform to a sexually
conservative script as reprehensible, make the battle to centre rights all that much harder. The new law in
India retains the language and provisions dealing with the “outraging of the modesty” and chastity of a
woman and then simply expands the range of activities that threaten or blemish this antiquated
understanding of female sexuality. This approach cannot be a recipe for empowerment nor foster
progressive change in thinking on matters of sex and sexuality.

Perhaps the most significant and pervasive issue left unaddressed by the new law is the everyday sexism
that pervades the workplace, the public arena, the media and the educational system. No amount of
censorship of sexual images can address the problem of sexism, the performance of which was on full
display in the Indian Parliament during the debates on the new law. While sexual harassment, including
unwelcome sexually coloured remarks, is criminalized, a focus on deterrence does not eradicate sexism
nor produce respect for women. It merely empowers the state and the criminal law.

Chief Justice Anand rightly points out that the fight of women for their rights is not a fight “against men”.
It is fight against unjustified traditions and the male created laxman rekha which women are not supposed
to cross. He advocates CAMA- Change of Attitude, Motivation and Awareness of the society as the
essence of ensuring gender justice in all spheres.

Gender Justice via Judiciary

After independence, the founding fathers of the nation wanted to reform the society and were keen to
establish an egalitarian society. To achieve this end, they used law as an instrument to check the gender
discrimination; numbers of laws were enacted to meet this end but due to strong patriarchal mentality and
unfavorable social environment they failed to accomplish their goal. The social engineering through law
was not fully achieved, while some rights enshrined under the enactments were enjoyed and accepted by
the society, most of them remained only in papers due to lack of public support. Many evils are still
practiced against women such as bigamy, child marriages, dowry and they are harassed in one or the other
way. Malnutrition and illiteracy are growing at an alarming rate; rape and molestation have become daily
phenomenon, the future of the nation seems bleak with the mushrooming rate of female foeticide.

Although, the Indian Judicial System has independently and effectively intervened on the issue of women
emancipation. For instance, in C.B.Muthamma v. Union of India, the validity of the Indian Foreign
Service (Conduct an discipline) Rules of 1961 was challenged which provided that a female employee to
obtain a written permission of the Government in writing before her marriage is solemnized and at any
time after a marriage a women member of the service may be required to resign from service. The
Supreme Court held that such provision is discriminatory against women and hence unconstitutional. The
Supreme Court made it clear that we do not mean to universalize or dogmatize that men and women are
equal in all occupation and all situations and do not exclude the need to pragmatism where the
requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or
the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrated,
the rule of equality must govern.

In Air India v. Nargesh Mirza, the Supreme Court struck down the provision of rules which stipulated
termination of service of an air hostess on her first pregnancy as it arbitrary and abhorrent to the notions
of a civilized society. In Pratibha Ranu v. SurajKumar, the Supreme Court held that
the stridhanproperty of a married women has to be placed in her custody, and she enjoys complete control
over it, The mere fact she is living with her husband and using the dowry items jointly does not make any
difference and affect her right of absolute ownership over them. Another landmark judgement was given
by the Apex Court in the case of Gita Hariharan v. Reserve Bank of India, in this case the Court
interpreted Section 6 of the Hindu Minority and Guardianship Act 1956 and held that the mother could
act as the natural guardian of the minor during the father’s lifetime if the father was not in charge of the
affairs of the minor.

In Vishaka and Others v. State of Rajasthan, the Supreme Court held that sexual harassment of working
women at her place of an employment amounts to violation of rights of gender equality and right to life
and liberty which is clear violation of Article 14, 15 and 21 of the Indian Constitution. The Court further
observed that the meaning and content of the fundamental rights guaranteed in the Constitution of India
are of sufficient amplitude to encompass all the facts of gender equality including prevention of sexual
harassment or abuse.

Further, the Hon’ble Supreme Court in this case said that, as there is no law relating to sexual harassment
in India, therefore the provisions of International Conventions and norms are to be taken into
consideration, and charted certain guidelines to be observed at all work places or other institutions, until a
legislation is enacted for the purpose.

In Apparel Export Promotion Council v. A.K. Chopra,again Supreme Court reiterated Vishaka ruling
and said that attempts of sexual harassment of female results in violation of fundamental rights to gender
equality enshrined under Article 14 and 21 of the Constitution. The Court further stated that international
instruments such as the convention on the Elimination of All Forms of Discrimination against Women
and the Beijing Declaration cast obligations on the state to take appropriate measures to prevent gender
inequalities and protect the honour and dignity of women.

In spite of having so many enactments remedying the women situation as well as judgments of the
Supreme Court protecting women, the downtrodden and poor conditions of women has not been
improved.

Conclusion

In India, the new law represents a trend in South Asia to equate justice with the death penalty and
stringent imprisonment terms. Yet empowerment for women cannot lie in merely attaching a death
sentence on to the crime of rape, or increasing the mandatory minimum sentences for rape. Empowerment
rests in the ability of women, sexual minorities, and religious minorities to be able to walk on the streets
free from the fear of sexual violence, sexual harassment and rape.
The young women and men born in the crucible of globalization and neo-liberal economic reforms are
unlikely to be discouraged from demanding a gender-friendly and egalitarian workspace. And there is still
a possibility that the new law in India will be challenged in the Supreme Court for violating women’s
right to equality as well as excluding sexual minorities from its protection. Human rights for all must be
made the focal point in good governance. “There can be no doubts about the inevitability of the human
rights regime as the foundation of a good value based society. For human rights take a backward step, if
gender justice is not achieved.” Though acknowledging that the government is formulating women
empowerment policies, it is not a one man-job, the entire humanity will have to join hands to achieve the
objective.

By Director & Dean academics