‘Final paper Submission for National Seminar on Feminine Jurisprudence and

Gender Bias Laws in India’

Name of the Participant :- NASEEM BAKHT

Official Designation :- FINAL YEAR LAW STUDENT.
Name of the organisation/ :- Bihar Institute of Law
University/Institution details

Address of the organisation/ :- Ashiyana More, Bailey Road, Patna.

University/institution

Email address :- naseembilpatna@gmail.com

Theme/Sub-theme of paper :- National Seminar on feminine

jurisprudence and gender bias laws in
India/Women Empowerment.
Title of paper : CHANGING STATUS OF WOMEN
Methodology : Non-Doctrinal.

Submitted in
National Seminar on Feminine Jurisprudence and Gender Bias

Laws in India’.
 CHANGING STATUS OF WOMEN

NASEEM BAKHT (1)

The Status of women in India has been subject to many great changes over the past few millennium. From
a largely unknown status in ancient times through the low points of the medieval period, to the promotion
of equal rights by many reformers, the history of women in India has been eventful.

INTRODUCTION:

Now these days women empowerment is a burning issue around the globe and also in India. Feminism is
a part of world global system and justice. Epistomology of women empowerment is the part of every
countries legal system and ontology and cosmology of law is depending on the empowerment of women.
Etymologically the term empowerment includes those ways & by which they are they seeking how can
extend, elaborate, recreate, rejuvenile and revive their powers to which they can obtain those
opportunities for that they were denied previously.

COMPARATIVE STUDY OF WOMEN’s STATUS IN DIFFERENT ERA:

My paper is about the changing status of women in different era. The intention is only that to comparative
study of women status i,e position of women in ancient period and how it became made decreased to
deteriorated thereafter was repaired by many social reformers. After that our constitution strengthened the
powers of women. In order to achieve the purpose of our constitution many legislation provide umbrella
to women class and now she has been acquired more powers to which she was previously denied for.
Thus every one has different opinion. some people speak that these days women are marginalised section
of Indian society. Various social and economic indications provide the evidences of un-equalities of
women in all sectors-Economical, social, demographic, health, nutrition etc increasing physical violence
against women in the form of rape, dowry death, wife beating and female foeticide are all indication of
the powerless position of women. But in my opinion women are not a marginalised section, they are
getting much more better position now. When we speak about violence then according to me they are
anti-social elements who are equal to all men as well as women they have no “heart” and “mind”.

(1) ANCIENT PERIOD:

Both genders have equal value and play an important role in the creation and development of their
families in particular and society in general, was realied in ancient period, they were allowed to
participate along with men equally in all activities and hence she was considered as “Saha Dharama
Charini”.

Women were also allowed to access to learning. “ Peary Chand Nitra” quotes (2) some lines for ancient
women which states that “ The daughters should be nursed and educated with care and married to learned
men”.
Women in ancient period was considered more powerful than men and treated as goddess of “Adi Shakti”
(1) Final year BA. LLB student of Bihar Institute of Law, “Patna”.
(2) ‘Mahanirban Tantra’
EARLY VEDIC PERIOD: Vedic women are being epitomized by “ Maitreyi” and “Gargi” (3)

“Raja Ram Mohan Roy” stated that Maitreyi not had been having divine knowledge but she could’ also
comprehend the Yajnavalkay’s (4) high philosophy.

LATER VEDIC PERIOD (SUSTRA PERIOD): This period brought a descending trend in
women’s status as tradition brought the women into slavery. As per Myneni her duties was to serve like
“Dasi” to feed like “mother” give advice like a “ minister” and give conjugal satisfaction like “Rambha”
of heaven. Women lost their property right and became a property of men as during “childhood” made
well wisher to her father, after marriage did for her husband, and the old stage was for the dedication to
her son.

Thus she lost her independence and her goal was fixed as “ Pativarta Dharma” with her husband. But she
went “further” and identify her death with his i’e on funeral pyre(5) we can imagine that scene when a
widow was compelled to burn on funeral pyre. How people thought that she had no sense organ to
perceive the degree of atrocity of heat? Was she a life less thing?. No she could perceive, she was living
being. After that a period came called Medieval Period, it was very unfriendly for women.

MEDIEVAL PERIOD: History is itself an evidence to the deteriorated position of the women
during medieval era as many customs and usages were prevailed during that time like Sati (6), Child
marriage, ban on widow re-marriage, Jauhar,(7) Deodasi,(8) practice Polygamy(9), pardah(10), dowry
system, immoral traffic of women, discrimination against the female child, female infanticide, illiteracy
among girls, However Bhakti Movement worked for the revival of women’s status and questioned
coercive approach of male domination.

(3) Thousand year’s B.C Hindu women appears to have been as free as the women attended discourses, according to
Upnishad or king holding a solemn sacrifice and invited his chief guest learned female name “Gargi” who is considered
eminent for her piety and learning during the “ Golden Age of Aryans”.
(4) A conversation between Yajnavalkaya and Maitreyi holy theme is afforded by a conversation between “Yagnavalkya” and
“Maitreya” . She choosed immortality in place of “riches” and learned to contemplate the soul alone, since every thing is
soul
(5) According to “Bader”.
(6) Sati an outdated custom which allowed to widow burnt alive with her died husband’s funeral.
(7) A practice in which voluntarily immolation of all wives and daughters of the defeated warriors to prevent from capture and
molestation by the enemy. The practice was followed by the defeated Rajput rulers, who assigned supreme place of their
honour.
(8) A religious practice followed in South India wherein women were married to a deity or temple. The ritual was very popular
in around 10th century A.D. In the later period the illegitimate sexual exploitation of the devdasis became a custom in some
part of India
(9) More than one wife prevailed in India “Kshtriya” ruler.
(10) A system in which women either confined in houses or cover their body with a long garments “Swami Dayananad
Saraswati” believed that it was Mughal influence over Hindus which taught to imprison their women inside the house.
PRE-INDEPENDENCE ERA: Pre-independence era echoes the value of women when many
social reformers like, Raja Ram Mohan Roy(11), Ishwar Chand Vidya Sagar(12), British Women, Maratha,
Mault and here daughter “Eliza”(13) Pandita Ramabai(14), and many more reformers fought for the women
either betterment of the women status or revival of the lost status. Many reformers succeeded in their
reforms(15). People mainly women class will never forget these.

This was an initiative to the women empowerment which had been decreased in latter Vedic Period and
became deteriorated in medieval era, but pre-independence era was an era in which women had been
started to got back their lost values. But process was not so fast, slowly and steadily many reformers did
for the upliftment and betterment to the women class, still many things were remaining to do after
independence, it was not the end of the story.

POST INDEPENDENCE ERA: 15th August 1947 brought a golden day to all, then how can
women class denied to get their rights and respect. By keeping view upon the women condition
constitution maker provide equal rights to all. In order to protect them and strengthen their power, many
legislation were passed, so women has been got protection under many umbrella legislation. The rights
available to women in India are constitutional right and legal rights. The preamble of our constitution
speaks of equality of status and opportunity and of social, economical and political justice.

The fundamental rights to life with human dignity(16), equality and to work in one chosen passion or
trade(17), inherently include protection from sexual harassment. The constitution guarantees fundamental
freedom to women. In view of Article 15(3), which enables the state to make special provision for women
and children, the equality of women and children is formally enshrined in Article 14 as well as Article
15(1) and 16 of the constitution. It is also necessary to note that Article 21 applies equality to all
including women. Article 21(A), which guarantees to the right to education applies to all childrens
irrespective of their gender.

Article 23 prohibits traffic in human being and forced labour. It protects all children as no child below
the age of 14 years will be employed to work in any factory or mine or hazardous employment.

Article [39(a)], the state secure for men and women equally the right to an adequate means of livelihood
and Art [39(d)] continues as to provide equal pay for equal work for both Indian men and women.
Article [39(c)] enshrined as the state is required to ensure that the health and strength of women workers
are not abused and that they are not forced by economic necessity to enter avocations unsuited to their
strength. Constitution framer was keeping the view on reproductive role of women class, makes provision
for securing just and human conditions of work and maternity relief. After that the Indian Constitution
under Article 44 compells the state to undertake the legal moral duty to guarantee the citizens of India a
uniform civil code that shall provide the citizen an undeviating set of laws that shall be civil in nature.
Although India has a uniform criminal law and civil law but our personal law still vary according to
different religions, groups and communities. Under [Article 51-A (e)](18) provides duty to every citizen of
India to renounce practices derogatory to the dignity of women.
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(11) Raja Ram Mohan Roy worked for the abolition of Sati practice and this was his effort that in 1929 G.G. Lord Willium
Cornawalish Bentick abolished this practice.
(12) Ishwar Chandra Vidyasagar worked in the direction to improve the conditions widows lead to enactment of Widow Re-
marriage act of 1856.
(13) Associated the education and training of girls in south India though they initially met with local opposition.
(14) She helped in woman upliftment
(15) During Pre-independence era many law had been passed for women protection as a The Hindu Window remarriage Act-
1929 Civil marriage Act 1872 etc.
(16) Constitution of India Article 21
(17) Article [ 19(1)(g)]
(18) It is a fundamental duty of every citizen of Indian enshrined in Part-IV A of constitution.
Hindu marriage act 1955
Under Article 52 which speaks about the 1st citizen or de-jure head of the India which has the
qualification that must shall be an Indian, applied upon both men as well as women, this provision also
been applied upon all constitutional post as well as other posts. Part 1X of the constitution provisioned
with “the panchayats” under Sec[243(d)(3) and(4)] explains about not less than 1/3rd of the total number
of seats to be filled by direct election in every panchayat shall be reserved for the women and
Art.[243(D)(4)] speaks as offices of chairpersons in the panchayats at the village or any other level shall
be reserved for the women as manner prescribed by legislature of the state provided. Art.[243T(3)&(4)]
also speaks in same manner in [243(D)(3& (4)], but its provision given for the municipalities.

In fact, the preamble, to the constitution guarantees social, economic and political justice which in the
view of the committee would include gender justice, liberty of thought , expression, belief, faith and
worship, equality of status and opportunity that would again reinforce the theory of equality, while
fraternity enjoins citizen to treat each other with respect and dignity, regardless of gender. And some
specific “Articles” are including in the constitution for the achievement of the intention of the
constitution.

FAMILY LAW: Among the family laws I would like to discuss about Hindu Law first;

HINDU LAW: The purpose for the codification(19) of ancient Hindu text was to achieve the ultimate
goal of women empowerment It introduced monogamy and allowed divorce(20) on certain specific ground.
Ancient Hindu text did not allow divorce, only specific circumstances leads to customary divorce. But
“Manu” disapproved this. However H.M.A does not provide retrospective effect but a provision speaks
that if a person has two or more wives before the commencement of H.M.A-1955, but after
commencement of this Act any wife does not want to live in this situation then she has a right to take
divorce(21).

Thereafter Hindu Law has been amended(22) many time. Hindu succession Act gave the provision as any
Hindu Family governed by the “Mitakshara Law” the daughter of a co percener shall by birth became a
co-percener in the same manner as the son. “Rau Committee” vested a Hindu Women with full right over
stridhan property and laid down certain rules of succession(23) with respect to stridhan and made a
property of Hindu female to be her absolute property not to devolve into her reversioner. Many initiative
have been also taken as, polygamy and sexual intercourse during judicial separation made punishable
under I.P.C (U/S 494 & 376’A’) respectively.

MUSLIM LAW: Muslim law is an uncodified law but for the achievement of women empowerment
some part has been made codified(24). However unilateral power of divorce has been granted to husband
in Muslim law, but muslim wife has the right to seek dissolution of her marriage. On the basis of delay
denied justice, a family court has been established for the speedy settlement of family dispute(25).

MISCELLANEOUS PROVISION:
Many legislation have been also passed to provide shell for women class as well as also for them who is
about to come in this world(26). Acts have been passed to prevent the female foetus like
(19) U/S 5(1) H.M.A
(20) U/S [13 B] H.M.A inserted after 1976 amendment
(21) U/S [ 13 (2) (1)], U/S [13(2) (ii) (iii) (iv)] these allow to wife to take divorce in special circumstances.
(22) Amendment act (2005)
(23) U/S -14 of H.S.A 1956 ant this section gives a retrospective effect
(24) Muslim women ( Protection of rights on divorce) Act 1986 protect the rights of muslim woman.
(25) Family court act (1984)

(26) U/S 315 of I.P.C characterises child murder as the executing of a new born child in 0-1 age gathering, U/S 304(B)
498”A” 113”A” and 113”B” of Indian Penal Code 1860.
- Medical Termination and Pregnancy Act-1971.
- The pre-natal diagnostic techniques (Regulation and prevention of misuse) Act 1994.
- Child Marriage Restrain Act-1976 passed and prevented to those girls who did not know even the
meaning of marriage. In order to prevent them from burning and domestic violence, dowry
prohibition Act 1961 was passed, after amendment three words have been inserted as who gives,
takes and abates for dowry is liable for punishment.
- Maternity benefit Act 1961 has been passed for protection of mothers interest. A comprehensive
legislation has been passed in 2005(27) to protect women in India from all forms of domestic
violence, it includes any kind of physical, mental, verbal or emotional cruelty.
Women or girls are also traffic(28) for commercial sexual exploitation(29) even girls are deceived in
the name of marriage and then sold to others and this process can be called as a bride trafficking. The
whole thing gives an impression of a normal marriage, but such girls are re-trafficked and sold in the
name of marriage again and again for the purpose of exploitation.
Many provisions are also given in Cr.P.C and I.P.C and many more legislation have been passed
other than upper said Acts.

PRECEDENTS WHICH FAVOURS THE WOMEN:

CASE-1: SHAYARA BANO CASE

The Apex court of India on 22nd Aug 2017 in a celebrated judgement in the matter Shayara Bano Vs
Union of India(30) set aside the practice of Talaq-e-biddat ( three pronouncement of talaq at one and
the same time) holding the arbitrary and unconstitutional and being violative of Muslim Women’s
fundamental righs(31), thus it is void decided by 3:2 majority. Muslim women will remember this day
as a golden day which minimize the dominating power of husband.

After that on 28th day of December-2017 , minister of law and justice Mr. Ravi Shanker Prasad
introduced THE MUSLIM WOMEN ( PROTECTION OF RIGHT ON MARRIAGE) Bill 2017 for
state action to give effect to the order of the “Supreme Court” . The Bill makes all modes of
pronounces of Talaq-e-biddt “Punishable offence” ( Cognizable and non-bailable) and made it that
mere utterance of the magic word three times fulfils all the ingredients of crime no need to mental
intent shall be punishable for three years of imprisonment and fine.

The aim of this bill is as,

“to protect the rights of married muslim women and to prohibit divorce by pronouncing Talaq by
their husbands and to provide for matters concerned there with or incidental thereto.

CASE-2: VISHAKA CASE

In these three decades the country has undergone many changes(32). Its not only that the caged “Indian
Tiger” has come out in the economic section through LPG liberalisation, privatisation and
globalisation but also demographically. The economic independence of women has liberated them in
a big way and they are able to speak for themselves but the unchanged part has been remained, means
sexual harassment at the work place even those women who are highly educated and belong to the
middle class.
(27) Protection of women from Domestic violence Act (2006)
(28) Immoral Traffic Act (Prevention) Act 1956 protect them
(29) Prevailed in some state like Haryana. ( Like bridal trafficking)
(30) (2017) 9 SCC
(31) U/A 14, 15(1) and 21
(32) Provision given in 2013 Amendment act in Company law for the appointment of women director in every big
company.
(33) Sexual Harassment of Women at workplace ( Prevention) prohibition and redressal Act 2013
The Vishakha judgement was an offshed of a rape case involving a social worker in Rajasthan. It
laid down the requirements for employer dealing with complaints of sexual assault and stipulated the
formation of committees to dispose off complaints from victims of harassment. SC has been passed a
guidelines for the protection of women and called as a “Vishakha Guidelines”. And in 2013 an Act
has been passed for the protection of women(33).

CASE-3 NIRBHAYA HATYA KAND: A barbarous and horrific gangrape of Nirbhaya on

16th Dec. 2012 propelled the Government of India to once again address the issue of violence against
women. After this unfortunate gang rape and the subsequent death of the victim shook the entire
nation. Consequently on 22nd Dec 2012 , Government of India appointed a three member judicial
committee headed by the former Chief Justice of India Justice J.S. Verma.

The main objective of the commission was to review the existing criminal law and make
recommendation for speedy trials and stringent punishment for violence against women.

The commission submitted it’s recommendation are based on more than 70,000 suggestions received
from various departments.

A 644 pages report consisting of 14 chapters included recommendation of law related to rape, sexual
harassment, trafficking, child sexual abuse, medical examination of victims, police, electoral and
educational reforms. Based on recommendation of the Justice Verma Committee report an anti-rape
ordinance was enacted and signed by the Honourable President of India (34).

CRIMINAL LAW AMENDMENT ACT 2013: It also introduced new offences such as stalking
and voyeurism vide section 354 (C) (25) and 354 (D)(26) respectively. Stalking is generally
characterised by un-warned and obsessive harassment or prosecution of person by another.
Voyeurism on the other hand is the act of a person who usually for sexual gratification, observe,
capture or distribute the image of another person without their consent.

IMPACT OF WOMEN EMPOWERMENT:

Impact of women empowerment can be seen in school, colleges, work places and public places where
men and women are getting education doing jobs equally. Maximum families and society do their
work on the pattern of nature.

SUGGESTIONS: IN DESCENDING ORDER ,

U.N : The international humanitarian law protects the women in different ways. The general
protection is given both against abusive treatment by the party to the conflict in whose power she
finds herself and against the effects of hostilities. There is other protection also as being pregnant
women as well as the mother of children of less than 7 years . U/A-75 and 76 of protocol of Geneva
Convention-IV provides the protection of women against any attack on their honor, in particular rape,
enforced prostitution or any form of indecent assault. But U.N. despite it’s efforts is unable to
eradicate the poison which has spread every where. That cannot be removed easily so, U.N. takes up
the task itself, they should not handover to their respective nation states.
NATION: Legislature has a power to make laws, but there is a need to implement these laws. So,
for the achievement to the formal intention of the legislature an effective administrative agency is
needed.

STATES: The J.S.Verma committee report and recommends on page 420 “street lightening
everywhere would provide more safety, since dark areas are more prone to facilitate crimes”. A 2012
study conducted by the Bureau of Police Research and Development reveals shortage of manpower in
the police department. So, the states must take urgent steps to remove these defects.
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(34) Criminal law amendment Act 2013 .
SOCIETY & FAMILY: Cell→tissue→organ→organ system→human bodies→family→society
or community. Since society and family is a part of nature as per upper chain so, should work like a
nature, because nature treats equally to all. It provides equal sunlight, air, water, feed to all even any
one is so big or strong and another is so small and weak. So every society and family is advised to
give equal love, affection, nutrition, protection, attention, economic support, opportunity to both son
and daughter.

PARENTS: Parents are advised to never discriminate a girl child and think that she is a “ paraya
Dhan”, because as by advancement of society, no one is going to live with either girl or boy.

WIFE & HUSBAND: Womens are advised to self help which is best help. I want to quote some
lines written by “Allama Iqbal” ,
“ Khudi ko kar buland itna ke har taqdeer se pahle,
Khuda bande se khud pooche bata teri raza kya hai”.

If a man expects a women to be an angel in his life, he must create a heaven for her, as angels do not
lives in hell.

CONCLUSION: Lastly I would like to conclude that women are getting better status but has not
got their absolute status.

Our society has been changed from laissez faire to social welfare but still many changes are
remaining or missing to the women empowerment, either their shortcoming persist in our
family/society or in legislation/precedent.

The lack comes from gender inequalities in India stems from three important sources:
1) Different in women’s and men’s economic role and potential power,
2) Cultural, resting the movement and autonomy of women and,
3) Marriage and family practices.

Upper three points conclude that women empowerment is primarily concerned with our family so,
there is a need for the improvement of our thinking and removal of orthodox ideas. But how can it be
possible when we go to some years back then case came to us “The Noida Double Murder case in
which a 13 year old girl “Arushi Talwar” and 45 years old Hemraj Bandaje, a live-in domestic
worker were killed in May 2000 at Arushi’s home.

Based on Circumstantial evidences Rajesh and Nupur Talwar, Arushi’s parents were found guilty
based upon Circumstantial evidence and convicted to life imprisonment. However they were acquitted
on the ground of “Benefit of doubt”. So, a question arises before us, how can women get their status,
value, power and their rights. According to me they can get their status, value, power and rights if
they are not discriminated in her family like not abort in womb, after birth family shall give her equal
love, nutrition, education, opportunity and never consider her as a “Paraya Dhan” then these
situations automatically leads to women empowerment.