11

Chapter II

Women Protection And Law in India

II (i) Costitutional protection of Women :

The attitude of a community towards women has great social significance

because the position of women in the society is the true index of its social, politi-
cal, cultural & spiritual attainments. OlWhile tracing the history of women through
the ages it could be found that the role & status of women has been labelled as
ranging from a position of authority & freedom to that of subservience.m

Though the status of women in early Vedic society is a matter of debate, the
position of women since long has been pitiable in several aspects of life. The
discrimination between male & female has been obvious in Indian society. m

ln the Vedic society . women were adored, respected & recognised . They
had the identity of their own & used to receive same respect as was given to males.
In the Rig Vedic period women enjoyed a high position in society ; <-ll There were
hardly any prescribed positions exclusively earmarked for men. But from the later
Vedie period onwards the position of woman declined steadily. <5lThe role of women
in later Vedic India began to be reduced to perfonn only one JOb, namely to bring
progeny for men. The society at that period being mostly an agricultural, society
required more men than women. Monusmriti is full of paradoxes of respect &
neglect of women. Monu keeps women in high esteem when he says that women
must always be honoured & respected by the father, brother & husband. Monu, at

l Upadhyay Bhagawat Saran. Women in Rigveda 2nd Ed. 19~ I Nand Kishorc Publishing House.
Banaras
2. Rao Shastri Shaknntala lliJmen in the I edic Age. I st Ed 1960. Bhartiya Vidya Bhawan. Bom-
ba\.
:1 Das R.M Hinnen In .\fonu. Jnd !lis Seven Commentators. 1st Ed. 1961. Kanchan Pablicatlons.
Varanas1
~- Kane P. V . fln·ton· ofDharmasastra. I st ed 1974. Yo!. IlL Part L Bhandarkar Oriental Research
Institute. Poona
5. Desai Nccra. lf(mren .lnd Souetv In India. 1st Ed .1988. Himalaya Publishing House. Bombay
 12

the same time remained too harsh towards women by ordaining that she is congen-
ially impure in body, thus she should not be allowed freedom to move out of home to)
Monu merged the wife's individuality with that of her husband & recommended
strict seclusions & regorous discipline for women and widows. While glorifying
motherhood & allowing women all freedom in the management of the household,
Monu permitted child marriage & polygamy. Thus a dichotomy is evident through-
out the ancient Indian history. OJ

As envisaged by the Anhasastra, the position of women 111 Mouryan penod

was subordinate to that of men. Women were regarded as imperior species. But the
Buddhists were much more human in their attitude towards women as women
were not primarily regarded as the child bearer. (SJ In Mughal period the cause of
women were adversely affected. women in general was subordinate to men & women
were absolutely dependent upon men in every stage of life-as a daughter, as a wife
& as widow. Girls were considered as liability right from the time of their birth.
During this period many vices, like sari prmha, purdah system , child marriage,
infanticide, prostitution, prohibition of widow remarriage illiteracy etc. were preva-
lent.

The position of women was not satisfactory in the early period of British
rule. Women were the subject of several exploitations. Christian missionaries car-
ried out religious propagation in the British India, which soon spread all over the
country. They attacked the Hindu religious beliefs, converted untouchables &
lower classes to christianity offering them a better position in society; started edu-
cational institutions on western Jines. They openly criticised the evils of early
marriage, polygamy, dowry, infanticide, temple dancing etc. Their educational
institutions infused a new understanding , a better appreciation of life in the com-
munity & created congenial atmosphere for rethinking of social values. They con-
demned seclusion of women & their illiteracy.c 9 > The most significant outcome of

6. Asthana Pratima. Women's .\/m·ement In India. I st Ed. 1974. Vikas Publishing House Pvt Ltd .
Bombay
7 SriniYas M. N ,\'oua/ Change m .\fodern India. I st Ed. 1972. Orient Longman's. Bombay.
see also. Pal Bipin Chandra. Soul of /mila . .fth Ed. 1958. Dey Publishing Company. Calcutta.
8. Supre. Note 5
9. Supra. Note 6.
Sec also. Kant Anjani. Hennen .lnd /he rm1·. I st Ed 1997. A. PH. Publishing Corporation.5
Ansari Rd. New Delhi
 13

these missionary activities was that hereinafter it came to be generally accepted that
there is a need to bring changes in the social life, particularly in matters relating to the
treatment of women.

The movement of social reform began during the British rule, though with a
slow space, when a few educated Indians coming in contact with the western ideals
started taking keen interest in ameliorating the condition of women, specially of Hindu
women° 0l Pandit Ishwar Chandra Vidyasagar , Raja Rammohan Roy, Mohandas
Karamchand Gandhi, Lala Lajpat Rai, Bipin Chandra Pal, Bal Gangadhar Tilak, Swami
Dayanand Saraswati, Gopal Krishna Gokhale, Mohadev Govind Ranade & other
prominent social reformists laid emphasis on the education of women, abolition of
child marriage lifting of purdah system, removal of dowry system, sati pratha etc
Their movement started with efforts to make the legislature take some concrete steps
in favour of women by giving statutory recognition to the rights of women Though
it was beginning of the British rule when such movement was started, but, it took
a concrete shape during the course of time in the post independent era when parliament
passed notable legeslations for improving upon the status of women by passing many
legislations in that regard.

During the National movement several women, like Sarojini Naidu, Matangini
Hajra, Pretilatha Waddedar & others came out of their homes & participed in freedom
struggle with their male counterparts. It is true that at that period it become easier
for women to leave their homes to get themselves involved in the national movement.
as the movement was supported by their entire family in some cases and particularly
by their father, brother , husband or some other male members & relatives. It was
also evident that mainly women of the well-to-do classes, with good education &
strong family background could satisfactorily perform their role out side their home
Even though there was a growing consciounsness among general middle class &
mediocre women of their own strength and their position in the socity They become
aware of their capacity for work & leadership & started organise themselves to fight
for their due place both in the home & in the socity

After independence, the government of India sought to take a positive role m

law reform & enactment of new laws The Indian Constitution come into force m
1950 guarantuing Indian citizens & non- citizens certain basic human rights,

10 Ibid
 14

called as fundamental rights The Indian women like men have become the beneficiaries
of these guarantees In addition , they , in particular , also have become the
beneficiaries of certain particular provisions made in their favour. Art 14 of the
constitution of India enumerates the general principle of right to equality & prohibits
the state from denying to any person, equality before the law & the equal protection
of the laws< 11 ) The guarantee of equal protection of law is available only against state
action . However, Art 14 permits classification which may be reasonable. but prohibits
class legislation° 2lThe classification must be based on some intelligible differentia &
should have a rational nexus with the object sought to be achieved by the Act or
legislation in question. Having in view classification & object of the legislation , women
can be treated as a class & special laws can be made in their favour Art 15 of
the constitution is more specific instance to right of equality which prohibits state
from making discrimination against any citizen on ground only of religion , race, sex,
place of birth or any of them (BlThe constitution has gone further & empowered
the state to act positive where it is needed, by giving, preferential treatment in favour
of women Thus Art 15 (3) says that nothing in this article shall prevent the state
from making any special provision for women & childern Therefore, there can be
no discrimination in general on the ground of sex, but special laws can be

ll Article 1-+ of the Indian Constitution says. "The state shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India"

12 Baksi PM. The Constitution Of India With Comments I st Ed. 1991. Universal Book Readers_
Delhi _ Page - 15

"-----equal protection of laws means the right to equal treatment in similar circumstances.
Courts have upheld legislations containing apparently discriminatory proYisions where the discrimi-
nation is based on a reasonable basis. By " reasonable" . it is meant that the classification must
not be arbitrary but must be rational. The classical test as judicially enunciated requires the fulfilment
of two conditions. namely,

( 1) The classification must be founded on an intelligible differentia which distinguishes those

that are grouped together from others.

( 2) The diiiTerentia must have a rational relation to the object sougllt to be achieved b:- the
lav. under challenge.------"

I3 The Constitution of India. Artich 15.

Clause (l} of Art 15 says. "The state shall not discriminate against any citizen an grounds
onlv of religion. race. caste. sex. place of birth or am of them "

1-+ (1963) I CRI LJ 13l. 133

 15

made in favour of women & childem. In Savitri VK.K. Bose <141 the Allahabad
High court made it clear that special provision for women as a class can be
made, but not to benefit an individual women. Art 15 (2) spe:cifically mentions
that no citizen shall on grounds of religion, caste, sex, place of birth or any
of them be subject to any disability, liability, restriction or condition with regard
to (a) access to shop , public restaurants, hotels & places of public entertain-
ment; (b) the use of wells, tanks, bathing ghats, roads & places of public resort
maintained wholly or party out of state funds or dedicated to the use of the
general public _osl

Another specific example of equality of status is the right to equality of

opportunity for citizens of India provided under Art 16 of the Indian
Constitution.0 6 lClause ( 1) of Art 16 provides equality of opportunity in matters
relating to employment or appointment to any office under the state. This right
to equality is only in employment or appointment under the state, i,e, in matters
of recruitment, promotion wages, termination of employment, periodical incre-
ments, leave, gratuity, pension, age of superanuation etc. But this equality
envisaged under Art 16 is the equality amongst equally placed persons-equality
amongst the same class of persons & not amongst different classes of persons.

Clause (2) of Art 16 lays down specific grounds on which citizens are
not to be discriminated against each other in matters of oppertunity & offices
under the state. 07 lThese are religion, race, caste, Sex, descent, place of birth
residence or any of them. Discrimination on the basis of sex has been spe-
cifically prohibiited under the constitution so as to bring women at par with
men. sex should not be the sole ground of ineligibility for any post Under
Art 19 of the constitution the fundamental rights ensure that every citizen of
India would be allowed to live, speak, write , work & travel , all over India,

1-1-. (1963) I CRI LJ 13133

15. Supra. Note 13.
16. Supra. Note 13. Article I 6.
17. Sec clause (2) of Art 16

Art 16 (2) says, "No citizen shall. on grounds only of religion . race. caste. sex. descent.
place of birth. residc:ncc or any of them. be ineligible for. or discriminated against in respect of
any employment of office under the state."
 16

provided that these activities do not amount to criminal activity .< 18 l It may
be thought that these rights coupled with Art 14, 15&16 would fully protect
the rights of women.However, Art 25 of the constitution, which allows freedom
of re1igion,<' 9 l has been interpreted to mean that religious custom, even if
blatantly discriminating against women will take precedence over other civil
laws It is a very encouraging fact that judiciary has, in several occasion come
forward to protect the interest of women interpreting the existing legislation
in its widened scope. The Supreme Court of India being the protector & guardian
of the fundamental rights has always been the champion in maintaining &
elaborating the concept of equality of status particularly when the women have
been at the receiving end. In 1951 the supreme court in State of Madras v.
Champakam Dorairajan, <20 ldeclared a Madras Government order unconstitu-
tional & violative of Art 14 & held that Art. 14 of the Constitution firstly
confers on women the equality of status & secondly protects against any
violation of this principle. Art 14 of the constitution recogmses women
as a class. In Kaur singh v. Jaggar Singh <ZI) the court has declared
that women as a class were different from men as a class~ &
for this the legislature had merely removed the disability attaching
to women by passing the Hindu Succession Act, 1956. The same
judgement was followed in Jogindar singh v. Kehar Singh . en) Again in C. B.

18. Supra Note 13. Article 19.

Under Art 19 "---All citizens shall hme the right-
(a) To freedom of speech and expression.
(b) to assemble peaceably and without arms:
(c) to form associations or unions :
(d) to move freely throughtout the territory of India:
(e) to recide & settle in any part of the territory of India:

19 SupraNote 13. Article 25.

20. AIR 1951 SC 226
21. AIR 1961 Punj. 489
22. AIR 1965 PunJ 407
The Court declared that. the Hindu Succession Act, 1956 has declared in unequivocal term
that the limited rights in property of a female will now be held by her as an absolute owner.
which clearly shows departure from the Shastnc law.
Sec also. Giani Ram V Ramjilal . AIR 1969 SC 1144. where the court declared that Sec
8 of the Hindu Succession Act has put female heirs at par with male heirs. In case of division
of property after the death of the father. sons. wife & daughters arc entitled to inherit his estate
including alienated property even though the wife & daughter were under the customary laws
incompetent to challenge the alienation.
 17

l'vfutharnrna v. Union of India c23 l, the supreme court declared Rule 18 (4) of
the Indian Forign Service (Recruitments, Seniority & Promotion) Rules, 1961,
discriminitory on the ground of sex & thus violative of Art 14. This rule
required permission before marriage & denial of right to employment to married
women for panel employees in the government. In this case the court upholding
the principle of equality of status put the female employees at par with male
employees. On the same lines in Radha Charan vs. Stat c24 l, Orissa High Court
held the Orissa Service Rules violative of Art 14 of the Constitution which
disqualified married women from being selected to the post of District Judges.
This rule was declared discriminatory on the basis of sex. Hostile discrimination
against women has always been struck down by the Supreme Court from time
to time. <25 l " The landmark case in the history of womens rights on this point
is Air India V Nargi.\'h Meerza & Others. c26 l In this case some of the provisions
of Air India Employees Service Regulations and the Indian Airlines (Flying
Crew) Service Regulations were declared against the spirit of Art 14 of the
Constitution. Regulations. 46 ( 1) (c) of the Air India Employees Service
Regulations, provided that , an Air Hostess was to resign from her service,
(a) upon attaining the age of 35 Years , or (b) on marriage , if it taken place
within four years of service or (c) on first pregnancy, whichever occurs earliest.
Justice Fajal Ali , while declaring clause 'c' of the above provision , i,e,
termination of services on the first pregnancy as violative of Art .14, observed
that, "it seems to us that the termination of the services of an Air Hostess
under such circumstances is not only a callous & cruel act but an open insult
to Indian womanhood - the most sacrosanct & cherished institution . " <27 )

23. AIR 1979 SC 1868

2-+. AIR l%<J Ori 2:n

25. Sharron A. Frontiero V Elliot L. Rechardson (1973) 36 LED 2583

The court held that "----since sex. like race & national origin . is an immutable charactaristic
determined solely by accident of birth . the imposition of special disability upon the members of
their sex (female) would seem to Yiolate the basic concept of our system that legal burdens should
bear some relatwnsh1p to indiYidual responsibility.----"

2h AIR 1981 SC 182 9

27. Ibid
 18

In { !niversity qf lvfadras V Shanti Bai, <28 ) the Madras High Court held
that a regulation which discriminates on the basis of sex but protects the interest
of women cannot be held unreasonable & ultra-vires the Constitution of India

In Dattatra;va Motiram V State of Bombay. (29 ) it was held that as a result

of joint operation of Art. 15( 1) & Art 15 (3) the state could discriminate in
favour of women against men , but it could not discriminate in favour of men
against wome:n. Accordingly, reservation of seats for women in election to a
Municipality was upheld as protected by art 15 (3) of the Constitution of India.

In Baghu Ban Saudagar Singh V State of Punjab, r30J 1the division bench
of the Punjab & Haryana High Court upheld the order of the Government of
the Punjab rendering women ineligible for all posts in men's jail except those
of clerks, on the basis that convicts in jails were habitual & hardened criminals,
guilty of heinous crimes of violence & sex. So the women performing jail duties
would be in a more hazardous position than a male warden .

In Smt. Choki V State of Rajasthan. c>I)the Rajasthan High Court upheld

section 497 of the Criminal Procedure Code 1898 which prohibits release of
a person accused of a capital offence on bail except women & children under
16 years af age and sick men. The court held that the State can make special
provision for the benefit of women & childem.

28. AIR 1952 MAD. 67

ln this case the regulation of the university requiring that the college should provide certain
facilities for women before they could be admitted. were held not discriminatory on the ground
of sex but they were only reasonable restrictions permitted within the framework of the Indian
Constitution
2'>. AIR 1953 Born. 8~2
"10 AIR 1972 P & H 117
In this case the court struck a balance between non-discriminatory treatment irrespective of
sex & social interest. of maintaining administrati\e efficienc) & peace in jalls. The Court held
that discrimination involved in the case was not based solely on the ground of sex. but administrative
eficiency & social facts coupled with sex.

31 AIR I<J57 Raj. 10.

 19

Art 21 gives right to life & personal liberty. <32 > Right to life does not merely
mean animal existence but means the right to live with human dignity. Art 23 of
the Constitution provides for prohibition of traffic in human beings & forced labour.
33
< > Similarly, Art 24 prohibits employment of any child (which includes a female child)

below the age of fourteen to work in any factory or mine, or engage in any other
hazardous employmentr>4 l The state , in pursuance of the above provision, has enacted,
the Suppression of Immoral Traffic in Women & Girls Act, 1956, Bonded Labour
system (Abolition) Act 1976, Indecent Representation of Women (prohibition) Act
1986 etc. IN Neerja Chowdhury V State of M.P(3 5lJustice Bhagawati declared that
women & childern cannot be compelled to work in unhygienic condition & for nominal
wages Such system of bonded labour is in violation of Arts 21 & 23 of the Constitution
& the Bonded Labour system (Abolition) Act, 1976 (sees 4 & 14). In the same year,
in Bhandhwa Mukti Morcha vs Union (?f India , (J 6JJustice Bhagawati observed that
"The central Government is bound to ensure observance of vartous social welfare
& labour laws enacted by the parliament for the purpose of seeking the workman
a life of basic human dignity in compliance with the Directive Principles of State
Policy"

In 'rliSl~[ Abdul Aziz V State , <37>, section 497 of the Indian Penal Code was
held constitutional & not ultra vires of Indian Constitution. Under sec 497 T.P.C a
man is punishable for adultery, while a wife who may be equally guilty is not.

32. Supra Note 13. Article 21

Art 2 I says that, "no person shall be deprived of his life or personal liberty except according
to procedure established by law. "

:n Supra Note 13. Article 2 3

Art 23 says that "traffic in human beings & begar & other similar £1rms of forced labour
are prohibited & any contravention of this provision shall be an offence punishable in accordancy
with law-----"

3-l Supra Note I' 3. Article 24.

35. AIR IYS-l SC 1079

36 AIR 1Y84 SC 802

37 AIR JY54 SC 321
the Suprimc Court held that . the discrimination between man & \\Oman is not beacusc
of the fact that women have sex difference from that of men. but because women in this countn
arc so situated that special legislation is required in order to protect them.
 20

There are several legal provisiOns made by the legislature discriminatory in

favour of the women , but have been held by court reasonable &constitutional
in the light of Art 15 (3 ). Thus, section 66 of the Civil Procedure Code prohibits
arrest & detention of women in execution for payment of money. Section 62
of C.P.C provides for exemption of certain women from personal appearance
m the court.

In Balan Nair V Hhavani Amma, 08 \ the Kerala High Court observed

that the main thrust of Art 15 (3) & Art 39 of the Constitution is to assist
women & children in distress & if these two Articles are read together,
empowers as well as directs the state to make special laws in favour of women
& children & to develop the condition of freedom, equality & dignity.

To achieve the objective of social & economic justice in order to bring

equality of status, certain Directive Principles have been provided in chapter
IV of the Constitution . Art 38 (2) clearly provides that the state shall endeavour
to eliminate :inequalities in status, facilities & opportunities., not only amongst
individuals but also amongst groups of people residing in different areas or
engaged in different vocationsY 9 J Another directive under Art 39 provides (a)
that the Citizens, men & women, equally have the right to have adequate means
of livelihood . The state shall in particular directs its policy towards securing
(b) that there is equal pay for equal work for both men & women . (c) that
the health & strength of workers , men & women are not abused & that citizens
are not forced by economic necessity to enter a vocation unsuited to their age
& strength <40 ) Art 42 of the Constitution provides that the state shall make
provision for just & human condition of work & for maternity relief.< 4 l) Another
Directive Principle protecting the interest of women & which puts women at
par with men ,is Art -/-1 which provides that the state endeavour to secure
for the citizens a uniform civil code throughout the territory of India . The
Article envisages that in making uniformity must be adopted. The same laws
must be applicable to all & that everybody should be equal before the law.
But it us regretted that nothing has yet been done in this regard.< 42 l
18 AIR I 987 Ker II 0
19 Constitutwn of India. Article ]8
.f() lbrd . Art 39
.fl Supra Note .l 9. Art .f2
.f2. Supra Note 39. Art ..f.f
 21

Infurtherance of these principles suitable legislations have been enacted,

such as the Equal Remuneration Act . 1976, the Bonded Labour System
(Abolition) Act, 1976, the Factories Act, 1948, the Mines Act, 1952, the
Workmen's Compensation Act, 1923 the 'vlaternity Benefit Act, 1961, the Plan-
tation Labour (Amendment) act, 1981 & several other statutes.

It is to be noted here that, in seYeral judicial pronouncements it is made

clear that though the directive principles embodied in Part IV of the Constitution
'
are not justiciable , they are constitutional directions which the state is supposed
to abide by. Though these directives are not fundamental in nature & they
are not specially inforceable as against the state by citizen in a court of law
in case the state fails to implement it, but, nevertheless, they are fundamental
in the governance of the country & all the organs of the state, including the
judiciary , are bound to enforce those directions This was observed by the
court in Keshvananda Bharati V State c~f Kerala. <~ 3 l. In Randhir Singh v. Union
of India < 4 ~lit was explained that it is true that the principle of equal pay for
equal work is not expressly declared by constitution to be fundamental right
, but it certainly is a constitutional goal. This principle of equal pay for equal
work has been reiterated by the Supreme Court in Bhagwan lJas V State of
Haryana, <~ 5 l, & R.D. Gupta V U. Governor, Delhi Administration <46 l & several
other judicial cases.

In view of the several judicial pronouncements discussed above it could

be observed that, the rights & protections given to women in theory is not
sufficient. It requires an effective , strong , well organised body to organise
& execute the policy of the Government as incorporated in the Constitution

.n AIR 1973 sc 1.J.61

H. AIR 1982 sc 877.881

45 AIR 1Y87. sc 20.J.9

l - \~~ <;;3
.J.6 AIR 1987 sc 2986
L~\~
 22

II (ii) Women's Protection Under Matrin1onial Law

II ( ii) (a) women and Marriage Law

The life of a nation depends on the stability of the family & the marnage IS

the backbone of family India is inhabited of various culturaL religious & ethnic groups
that have their own characteristics attitude & approach towards the question of
matrimonial relationship. The policy of Hindus law for Hindus & Muslim laws for
Muslims was initiated by Warran Hastings in the year 1772 This policy was adopted
at the time of the commencement of the present Indian Constitution. The Second
Law Commission in its report advised the government to codify these laws. In the
year of 1955, Hindu Code Bill was passed which resulted into the passing of four
Act, such as-the Hindu Marriage Act, 1955, the Hindu succession Act, 1956, the
Hindu Adoption and Maintenance Act, 1956 & the Hindu Minority and Guardianship
Act, 1956. It is evident that while the Hindu Code Bill gave a uniform laws to the
Hindus despite strong opposition from the orthodox sections of the Hindus, no such
step was taken with respect to Muslim law

The main charactaristic of matrimonial law is its diversity The prevalent Hindu
custom of marrying girls at a young age was closely scrutinised & analysed. Both
the child Marriage Restraint Act, 1929 & the Hindu Marriage Act , 1955 declared
it an offence for a man to marry a girl under fifteen years of age & provides for
punishment. The Hindu Marriage Act fixed the minimum age for marriage for a girl
& a boy is 18 years & 21 years respectively .<-t 7l Section I 8 of the Hindu Marriage
Act provides that anyone who procures a marriage for himself or herself in con-
travention of sec 5 (iii) of the Hindu Marriage Act, 1955 may be punished with simple
imprisonment of upto 15 days or fine extending upto Rs 1000 or both. (4 &). Under
the Child Marriage Restraint Act, 192 9 if a male above 18 years & below 21 years
marries a girl below 15 years he is liable for simple imprisonment & fine as specified
under the Hindu Marriage Act, 19 55 A male above 2 I years of age marrying a
girl below 15 years is punishable upto 3 months simple imprisonment & also liable
to fine At the same time, whoever performs or conducts such a child marriage is
liable to similar punishment unless he proves that he had reason to believe that the
marnage was not a child marriage

-+7 Sub - sec (iii) of sec 5. the Hindu Marriage Act. 1955
-+8 Ibid. section 18
 23

It is funny that a marriage performed in violation of the age reqirements

is still valid, it is nither void <49) nor voidable. <SO) The Only special provision
applicable to women is the option of puberty. That is, the women, if married
when a minor, can repudiate the marriage before she reached 18 years irre-
spective of whether the marriage is consummated or not <St) However, under
the Special Marriage Act, 1954 child marriages are void, Inspite of these
provisions, the law is generally violated in many parts of India, specially in
rural areas.

The marriage under the Hindu Marriage Act has been from the very
beginning monogamous. According to the Hindu Marriage Act, a marriage
between two Hindus is void, if either has a spouse living at the time of the
marriage. <52 ) Though the second marriage has been declared as void yet biga-
mous marriages are still prevalent among Hindus & what to talk of Muslims
or other communities. Even government servants who are forbidden by law
are found practising polygamy.< 53 ) This practice has difinitely lower down the
status of women in India. In this connection , judicial decisions are also not
encouraging. The supreme Court in Rabu Rao v. State of M'aharashtra, <S-t)held

49. Supra Note 47. section 11

Section 11 of Hindu Marriage Act says that, only marriage solemnized after the commence-
ment of this Act shall be null and void and may. on a petition presented by either party thereto
(against the other party). so declared by a decree of nullity if it contravenes any one of the conditions
specified in clauses (i). (iv) and (v) of section 5. i.e a marriage is void only \vhen either part\
has a spouse living at the time of the marriage or when the parties are within the degrees of
prohibited relationship or the parties are sapindas of each other.

50. Ibid. section 12.

51. Ibid. clause (iv). sub-section (2) of section 13 under this, section a wife may .present a petit10n
for the dissolution of the marriage by a decree of divorce on the ground that her marriage (\\hethcr
ground that or not) was solemniged before she attained the age of fifteen years and she has repudiated
the marriage ofter attaining that age but before attaining the age of eighteen years

52. Ibid. clause (I) of section 5.

53. \'aria .\!udgal (.'-)mt) President Kayami & Others I' l."nion of India & Others. (1995). Sec
635 (64S.651)

54 AIR 1965. S C 1964

 24

that the offence of bigamy was not provided where unless it was established
that the second marriage was celebrated with proper ceremony & due fonn
. This principle was again followed in Prayabalaves V Sureshchand <55 ) in 1971
by the Supreme Court. so, law can be avoided in case of second or third
marriage, beacuse, in most of the cases of second or third marriage these
ceremomies are normally absent. Moreover, there is anotfler provision, which
handicapes the aggrieved wife i,e, in such a case of second marriage complaint
can be made only by the aggrieved party. However, the aggrieved person may
include family person, such as the father, mother, son & daughter. But in most
of the cases the economic dependence of women, the fear of social ostracism,
the ignorance of law about their rights compels most of such aggrieved wives
to accept silently their husband's polygamous activity.

Under Muslim law, marriage is regarded as contract for the purpose of

procreation & legalising children . <56 ) If a husband is found guilty of breach
of contract, the only available rights of a women is to get dissolution of marriage
& to live separately from the husband< 57). This fails to provide a substantial
relief to the first wife with her children. Though the institution of polygamy
is recognised in Muslim law, yet a Muslim woman can marry only one husband
during the subsistence of her marriage . The widow or divorced wife can
remarry. It should be noted that Muslims are governed by uncodified laws.
Few legislations have been passed in respect of Muslims, like the Muslim
Personal Law(Shariat) Application Act, 1937, Dissolution of Muslim Marriage
Act, I 939, Muslim Women (Protection) Rights On Divorce Act, 1986 etc. The
Dissolution of Muslim Marriage Act 1939 has failed to give justice to the
Muslim women. Muslim women under the Muslim law are the worst sufferers.
They are badly in need of legal aid. In exceptional cases a Muslim husband
can have more than one wife at a time . Similarly, he can dissolve his marriage
according to his sweet will. But at the same time if a Muslim woman wants
to dissolve her marriage, she is required to get approval of the court.

There are seperate Acts applicable to the Christians & Paris. In the matter
of marriage & divorce the Chrislians are governed by the Christian Marriage
Act, 1872 & the Indian Divorce Act 1869. The Parsis are governed by the

55. AIR !971. S C. 1153

56. Mulla. D.F . Principles of .\!ohomedan /,aw, Sec. 20 (Bombay. 18th Ed. l 977)
57_ Section 2 of the Dissolution of Muslim Marriage Act. 1939
 25

Parsi Marriage and Divorce Act, 1936. Besides these legislations, there is
special Marriage Act, 1954, which provides for a civil marriage without any
religious significance. According to this Act, two persons of any religious
persuation may be married under this Act. <58 l In case a marriage under this
Act, between a member of Hindu Joint Family and non-Hindu occurs, the first
party ceases to be member of the said joint family . Where both parties to
the marriage solemnised under this Act are Hindus, they shall continue to be
members of their respective Hindu Joint families. This was added by 1976
Amendment to the Act.

For the Paris , only m 1955 the Parsi law Association was created to
make a thorough study of Parsi custom & put forward legislative proposals.
Two statutes were enacted in 1965- the Parsi Marriage and Divorce Act &
the Parsi Intestate Succession Act, According to the Parsi Manriage and Divorce
Act, any women who marries people of other religious denonations is expelled
from the community.

In India there is no statutory law on marriage & divorce for Jewish

community & they are governed by their customary laws. A mutual consent
of the parties is a must for contracting a valid marriage The Jews in India
practice monogamy. Now-a-days a Jew cannot lawfully contract a second
marriage during the continuance of the first marriage .

II (ii) (b) Matrimonial remedies for women

Restitution of Conjugal Rights, Judicial
Separation & Divorce :

The remedies by way of restitution of conjugal rights, judicial separation

& divorce, i,e . the dissolution of marriage are distinctive in character & has
been devised with a set purpose Marriage imposes an obligation on both spouses
to cohabit with each other. The rights of husband or wife to demand the return
of an absent spouse has been upheld time & again . Restitution of conjugal

58 Section -+ of the special Marriage Act. 195-t

According to this section. t\\o persons of am religious persuasion, provided that they are
not within the degrees of prohibited relationship or are not married to any other person under
any other religious ceremony. and have both reached the age of majority may be married under
the Act.
 26

rights actually is a remedy provided to a spouse aggrieved by the desertion

of the other spouse, without any resonable cause. The Hindu Marriage Act
specifically provides that when the husband or the wife has withdrawn from
society of the other without reasonable excuse, the aggrieved party may initiate
legal proceedings for decree of restitution of conjugal rights . cs 9 ) Where a
question arises whether there has been reasonable excuse for withdrawal from
the socity , the burden of proving reasonable excuse shall be on the person
who has withdrawn from the society. This is a right available to both the sposes
i,e wife & husband equally. This provision has been challenged as unconsti-
tutional and as violative of Article 14 & 21 of the Constitution in Sarita vs.
Venkata - Subbaiah.< 60 l Justice P.A. Chowdhury of A.P. High Court held that
section 9 of the Hindu Marriage Act violates the right to privacy of the
individual. <61 l However Supreme Court overruled the above decision in the case
of Saroj Rani vs Sudarshan, <62 l by holding that in the privacy of home & marred
life, neither Article 21 nor Article 14 has any place. It may be mentioned here
that such type of metrimonial remedy has been abolished in England under
the Matrimonial Proceedings Act, 1970 .<63 l The remedy of restitution of
conjugal rights has also been recognished by the special Maniage Act c64l &
also by the Indian Divorce Act, 1869.

59 Section 9 of the Hindu Marriage Act. 1955.

Section 9 reads as~ when either the husband or the wife has . without reasonable excuse.
withdrawn from the society of the other. the aggrieved party may apply . by p;;tition to the district
court. for restitution of conjugal rights and the court. on being satisfied of the truth of the statements
made in such petition and that there is no legal ground why the application should not be granted.
may decree restitution of conjugal rights accordingly."

60. AIR 1983 A.P 356

In this case justice PA Chowdhury of the AP High Court expressed the view that section
9 of the Hindu Marriage Act offends Article 1-t & 21. The learned judge hold that the effect of
decree of restitution of conjugal rights as to coerce the unwilling party to have sex against that
person's consent & free \\ill thus allowing one's body to be as a vehicle for another human beings
creation.

61. Ibid
62. SmL Saroj Rani V Sudarshan Kumar. AIR.I984 SC 1562 ( 1984) 4 SEC 90
63 Section 20 of the Matrimonial Proceedings Act. 1970
64. Section 22 of the Special Marriage Act . 1954
 27

The umon of marriage is never meant to be broken tmder any personal

law. Firm union of the husband & wife is a necessary condition for a Happy
family-life. Islam, therefore, insists upon the subsistence of a marriage &
prescribes that breach of the marriage- contract should be avoided. Initially
no marriage IS contracted to be dissolved in future, but in unfortunate cases
the dissolution takes place & the matrimonial contract is broken. A marriage
may dissolved by act of God i,e. due to death of the husband or wife . or
by act of the parties i,e. divorce. Death of the husband or wife during
subsistence of marriage , dissolves the marriage immidiately under the personal
law systems. The very fact of the death of any party to the marriage is sufficient
to terminate the marriage. There is no need of any formality or decree of the
court to dissolve the marriage. (65 l

Judicial separation ts another available matrimonial remedy . Judicial

separation is a decree whereby a husband & wife are not required to cohabit.
They remain legally bound in marriage in other respect. One year of judicial
separation is sufficient ground for divorce.c 66 l The Hindu marriage Act provides

65. Reddy G.B Women And The Law. 3rd Ed. 2000. Gogia Law Agency. Hyderabad

66. Sub- clause (i) of clause (l A) of section 13 of the Hindu Marriage Act. 1Y55

According to this prO\ ision. either part\ to a marriage. whether solemnized before or after

the commencement of this Act. may also present a petition for the dissolution of the marnage

by a decree of divorce on the ground that . there has been no resumption of cohabitation as bet11 een

the parties to the marriage for a period of one Year or upwords after the passing of a decree

for judicial separation in a proceeding to which they were parties

 28

various grounds on which the remedy can be obtained . c67) 1t also enumerates
the consequence of the decree of judicial separation & the time when such
a decree can be rescinded by the Court, on the request of either party to the
decree, if the Court satisfies to do so. The remedy is retrospective & is
available to either spouse. <68 ) The Hindu Adoption & Maintanance Act, 1956

67. Section 10 of the Hindu Marriage Act. 1955.

According to sub-section (l) of section 10. either party to a marriage, whether solemnized
before or ofter this Act, may present a petition praying for a decree for judicial separation on
any of grounds specified in sub - section (I) of section 13. and in the case of a wife also on
any the grounds specified in sub section (2) thereof, as ground on which a petition for divorce
might have been presented.

According to sub-section (2) of section 13. which provides some special pwvision for women.
a wife maY also present a pitition for the dissolution of the marriage by a decree of divorce on
the ground

(i) In the case of any marriage sobmnized before the commencement of this Act that the
huusband had married again before such commencement or that any other wife of the husband
married before such commencement was aliYe at the time of the solemnization of the marriage
of the petitioner
Provided that in either case the other wife is alive at the time of the presentation of the
petition: or

(ii) That the husband has. since the solemnization of marriage. been guilty of rape. sodomy
or bestiality: or

(iii) That in a suit under section 18 of the Hindu Adoption And Maintenance Act. 1956.
or m a proceeding under section 125 of the Code of Criminal Procedure. 1973 (or under the
corresponding section 488 of the Code of Criminal Procedure. 1898). a decree or order as the
case may be. has been passed against the husband awarding maintenance to the wife notwithstanding
that she was li\ing apart and that since the passing of such decree or order. cohabitation between
the parties has not been resumed for one year or upwards

(iv)That her marriage (whether consummated or not) was solmnized before she attained the
age of fifteen years and she has repudJated the marriage after attaining that age but before attaining
the age of eighteen vears.
68. Ibid
 29

also gives to the Hindu wife the right to live separately on any ground justifying
her separate hving. C69l

So far as Muslims are concerned, the question of judicial separation does

not carry any weight with them . The Muslim law gives unfettered power of
divorce to the Muslim husband & the Quran gives order to the husband to
retain his wife with kindness & separate her with kindness.

The special Marriage Act , 1954 also provides for judicial separation. <70 l
A petition for judicial separation can be filed either by the husband or wife
on various grounds. The Parsi Marriage Act, 1936 also provides that a suit
for judicial sep.aration can be filed on the same ground of divorce .0 1l

Marriage is considered a sacrament & so, once entered into, cannot be

dissolved. Normally spouse should not be allowed to dissolve his/her marriage.
But this rule cannot be absolute. There may be cases where: it may not be
possible for spouses to continue as husband & wife. Keeping this fact into
consideration, the institution of divorce has been recognised throughout the
world. The passing of Hindu Marriage Act, 1955 starts a new tradition with
its provision for divorce, which is an unavoidable evil.

The Marriage Law (amendment) Act, 1976 has been passed with a vtew
to make further improvements upon the provision of the Hindu Marriage Act,
1955 & the Special Marriage Act, 1954. Chapter II of the Amendment Act
Contains amendments to the Hindu Marriage Act, 1955 . (72) The new law passes
a very progressive & dynamic character & it is hoped that it will bring much
needed relief to the Hindu in matter of marriage & divorce. It is also observed

69. Section 18 of the Hindu Adoption and Maintenance Act. 1956.

According to sub-section (2) of a Section 18. a Hindu wife shall be entitled to Iiw separately
from her husband without forfeiting her claim to maintenance. if he is guilty of desertion or he
has treated her with cmelty or he is suffering from a vimlent form of leprosy or he has any other
\\ ife living or he keeps a concubine in the same house in \\ hich his wife is living or he has
ceased to be Hindu or some other resonable grounds.

70 Section 2J of the Special Marriage Act. 195-f

71 Section 24 of the Parsi Marriage Act. 1936
72 Sections 5.9 to 19 to 23.25 & 28 of the Hindu Marriage Act. 1955.
 30

that the amendment is bound to make the divorce among the Hindu Community
not only quick & easy, but also expeditious too. OJ) It has the effect of making
uptodate the maiTiage & divorce laws of the Hindus to a great extent. The
following are the changes introduced in the Hindu Marriage Act, 1955 by the
Marriage Laws (Amendment) Act, 1976, Vig :

(a) All grounds available for judicial separation has been made available to
a Hindu for divorce too. <74 lA Hindu can claim a decree of divorce on the
grounds of either desertion °5 l or cruelty <76 > now.

The meaning of desertion has been statutority widened so as to include

"wilful neglect" in its definition. Thus an uncared for or a neglected <n> wife
can claim a decree of divorce on her husband's desertion.

(b) A Single or isolated act of adultery of infidelity has also been made a
ground for divorce now .<78 > One lapse in virtue is sufficient now to call for
divorce.

(c) Now divorce can also be granted to wife, who is succesful1 m obtaining
an order of maintanance under any other law. 0 9 >

(d) A provision for divorce by mutual consent' too find a place in the Act, cso)
For obtaining a divorce on this ground, the parties are required to wait for
only six months after filing the petition} though they are obliged to obtain it
within 18 months.

(e) In relation to a petition for nullity of marriage, recurring attacks of insanity

& epilepsy or mental disorders of a nature rendering a perty unfit for marriage

73 Sections 13, 14, 19 & 21 b of the Marriage Laws (Amendment) Act, 1976

74 Ibid, sections I 0 & 13

75 Supra Note 73, section 13

76 Ibid

77 Ibid

78 Ibid
79. Ibid
80. Ibid Section I 3 B
 31

or proceation of childem, too have been made grounds for nullifying a

marriage_(x 11 lt is also further added that, if these ailments occur later on, these
will be an instant ground for divorce c82 l too.

A misrepresentation regarding any matarial fact or circumstances concem-

mg the respondent is thus a new ground for nullifying a marriage. <8'lThus
the amendment has widened the meaning, scope and the purpose of the term
" unsoundness of mind" or insanity.

f) A mmor girl is now entitled to repudiate marriage, provided she does

this after attaining the age of fifteen years, but before attaining the age of
eighteen years. This provision finds close resemblance with the concept of the
"option of puberty" of the Muslim law.

g) The Act confers jurisdiction to the court of the area where the petitioner
resides, to deal with a matrimonial petition, in cases where the respondent either
resides outside India or is not heard of for seven years. c85 l

h) With a view to expedite the disposal of a matrimonial at petition, a

provision has been made that the trial should conclude within a period of six
months from the date of service of notice of the petitioner on the respondent.
<86 ) In case of appeal , the hearing should be conclude within three months
from the date of service of notice of appeal on the respondent. cs 6 l In case

81. Supra Note 73, section 5. cl. (ii)

82. The words"' for a period of not less than three years ----" have been deleted in section 13
sub section (i) cls. (iv) & (v) of the Marriage Laws (Amendment) Act. !976

83. Supra Note 73, section 12, clause (c)

84. Supra Not1~ 73. cl. (iv) sub- section (2) of section 13

85. Supra Note 73. d. (iv) of section 19

86. Supra Note 73, clause (2) of section 21B

 32

i) Now a divorce can remarry immediately. The waiting period of one year,
as was provided in section I 5 of the Hindu Marriage Act is now taken away
by the Amendment Act. C87 l

j) The interim period between judicial separation & divorce has been reduced
to one year.css) (instead of two years) now & appeals from interim orders stand
abolished. cs9l

k) Under the Amendment Act, 1976, a spouse can file petition for divorce
after one year of his or her marriage now. C90l Formerly it was three years.
This provision has the obvious merit of reducing the hardships of those couples,
who fail to cany their matrimonial happiness too long. The torturous marital
sorrows & displeasures can be cut off or mitigated in a shorter span of time
under the new law.

1) An explanation has been added to section 9 of the Act now, the effect
of which is to fix the responsibility of providing "reasonable 1::xcuse" for with-
drawal from society on that spouse, who withdraws from it. <91 l

m) The Act further provides that every matrimonial proceeding should be

conducted in camera from now onwards. <92 l This provision will certainly help
a majority number of women who are too shy to expose their marital problem
to outside & onlly for that reason suffer the matrimonial hardship instead of
going to the court & taking the help of laws.

From the above discussions it is quite clear that the Marriage Laws
(Amendment) Act, 1976 is a progressive piece of legislation which inducts a
new sense of se]f respect & confidence in the hearts of the Hindu women.

87 Supra Note 7'.. section 15

88 Supra Note 84. sub-section on (lA)

8Y. Supra Note 73. clause (2) of section 28

90 Supra Note 73. section -+
')I. Supra Note 73 sub-section (I) of section 1.)

I.J2. Supra Note 73. Cluse (i) of section 22

 33

It is quite revolutionary in character & is hoped to confer substantial benefits on

the Hindu community in marriage & divorce matters in course of time.

The Islamic marriage has the character of a contract & hence it allows divorce
94
to both the parties, though on different conditions . < ) The contract of marriage under
the Muslim Law may be dissolved in any one of the following ways (I) by the husband
at his wilL without the intervention of a court, (2) by mutual consent of the husband
and wife, without the intervention of a court, (3) by a judicial decree at the suit
9
of the husband or wife < ')

A husband may divorce his wife by repudiating the marriage without giving any
reason Pronouneement of such words which signify his intention to disown the wife,
96
is sufficient Generally, this is done by Talaq. < >But a wife cannot divorce her husband
of her own accord. She can divorce the husband only where husband has delegater
such right to her or under an agreement. Under an agreement a Muslim wife may
9 98
divorce the husband either by Khula < 7) or by Mubarat. < ) Before 1939, a Muslim
wife had no right to seek divorce except on the ground of false charge of adultery
by the husband, insanity or impotency of husband. But the Dissolution of Muslim
Marriage Act, 1939 provides several other grounds on the basis of any one of which
a Muslim wife may get her marriage dissolved by an order of the court

Therefore, under the Muslim law, divorce by wife is possible in the following
situations
i) Where the husband delegates to the wife the right of Talaq, which is called Talaq-
e-Tafweez

93. Hidayatullah, M & Hidayatullah Arshad . .\fulla's Principles Of .\fohamedan lomL 9'h cd 2000.
N.M Tripathi Private Ltd .. Bombay. p 250

94. Ib1d. pp. 307-276

95. Supra 'iotc. (>5

96 Supra ".'otc Yl Page 258

97 Ibid

98 Ibid
 34

ii) Where she Is a party to divorce by mutual consent, I,e. by khula or

M ubarat. c99 )

iii) Where she wants to dissolve the marriage under the Dissolution of Muslim
Marriage Act, 1939

In the first two cases the wife's right of divorce depends upon the consent
of her husband . In Talaq-e-Tafweez, unless the husband himself gives her the
right to pronounce Talaq she cannot divorce on her own. In a divorce by mutual
consent, she cannot get divorce unless the husband also gives his consent for
it. Under the Dissolution of Muslim Marriage Act the dissolution of marriage
depends upon the dicision of the court. Therefore a Muslim wife cannot divorce
without her husband's consent or without a judicial decree.

A Muslim husband has unrestricted right to divorce his wife whenever

he likes. This right is so absolute that he may excerscise it either himself or
may delegate his right to another person. (IOO) So, instead of pronouncing the
Talaq himself he may give his right of divorce to any one else, including his
own wife. Even the presence of wife at the time of pronouncement of Talaq
is not necessary. OOI) A Talaq pronounced in the absence of wife is lawful &
effective.

The husband may delegate his right of divorce to his own wife and
authorise her to pronounce Talaq. This form of delegated divorce is perhaps
the most potent weapon in the hands of a Muslim wife to obtain her freedom

99. [·mar Bihi V Mohammad Din (1944J Lah. 542. 220 I.C 9 (45) AL 51.

It was held that "A divorce by Khoola is a divorce with the consent. and at the instance
of the wife. in which she gives or agrees to give a consideration to the husband for her release
from the marriage tie. In such a case the terms of the bargain are matters of arrangement beetween
the husband & wife. and the wife may . as the consideration, release her dower and other rights.
or make any other agreement for the benefit of the husband".

100. Supra Note 93, p. 263.

101. Ahmed Kasim V Khatun Bibi (1932) 59 cal. 833. 141 i.e. 689. (33) AC. 27.
 35

without the intervention of any court. The delegation of the power of divorce
to the wife may either be permanent or temporary. A temporary delegation
of power is irrevocable but a permanent delegation may be revoked by the
husband. no 2)

Before 1939,. a Muslim wife could seek her divorce by a judicial decree
only on the ground of false charge of adultery by the husband against her
or impotency of the husband. There were also a conflicting provision in the
various schools of Muslim law in respect of divorce by a wife through judicial
intervention. In that sense the Dissolution of Muslim Marriage Act, 1939 should
be considered as a landmark in respect of matrimonial relief to a Muslim wife.
The wife's right of divorce , which was denied to her was restored to her
under the Act. Under this Act the following grounds are available to women
for divorce. <103 )

104
a) the husband Is mtssmg for four years, < l

(105)
b) husband's failure to maintain the wife for two years,

c) imprisonment of the husband for seven years, oo6 l

d) husband's failure to perform marital obligation's for three years. 007 l

(I 08)
e) husband's impotency .

009
f) husbnd's insanity, leprocy or venera! disease. >

102. Supra Note 65, p. 33.

I 03. SectiOn 2 of the Dissolution of Muslim Marriage Act, 1939.

104. Ibid, clause (i)

105. Supra Note 103, clause (ii)

106. Supra Note 103, clause (iii)

107. Ibid, clause (iv)

108. Supra Note 103, clause (v)

109. Ibid, clause (vi)

 36

g) Option of Puberty by wife, otoJ

h) Cruelty by the husband. CIIIJ

Section 2 (viii) of the Act provide that a wife can sue for divorce if her
husband treats her with cruelty. Cruelty of the husband was recognised as
sufficient ground for divorce also before 1939, but was limited only to physical
tortures; mental cruelty by husband was not a ground for dissolution of
marriage.( 112 l But the Dissolution of Muslim Marriage Act has, widened the
of scope of the term 'cruelty'. Cruelty now includes also mental torture. The
present Act defines cruelty by laying down following acts of the husband which
are regarded as cruelty against the life, like -

(i) habitual assault on the wife or making her life miserable by cruelty of
conduct if such a conduct does not amount to physical ill tretment ;

(ii) association of the husband with women of evil repute or that he leads
an infamous life;

(iii) the husband attempts to force his wife to lead an immoral life;

(iv) the husband disposes off her property or prevents her from excercise
her legal rights over it;

(v) the husband obstructs her in the observance to her religious profession
or practice;

(vi) if the husband has more wives than one & he does not treat her equitably
m accordance with injunction of Quran.

Under clause (ix) of section 2, which is a residuary clause, a wife may

seek dissolution of her marriage on any ground which has not been included
in this section, but is recognised under the Muslim personal law, Thus, a false
charge of adultery by the husband against his wife or if the husband changes

110. Supra Note 103. Clause (vii)

Ill. Ibid. Cluse (viii)

112. Mustafa V Mirza Khan, AIR 1933 Oudh 15.
 37

his religion those may be a reasonable ground on which wife can seek
dissolution of her marriage.

The Indian Christians are governed by the Indian Divorce Act, 1869 &
the Special Marriage Act, 1954, Under section 10 of the Indian Divorce Act,
any husband may present a petition to the court praying that his mrriage may
be dissolved on the ground that his wife has , since the solemnization there
of, been guilty of adultery. c113 ) Under this same section any wife may also
present a petition to the court praying that her marriage may be dissolved on
the ground that, since the solemmigation thereof, her husband has exchanged
his profession of christianity for the profession of some other religion, and
gone through a form of marriage with another women ; or has been guilty
of incestuous adulltery, or of bigamy with adultery, or of marriage with another
women with adultery, or of rape, sodomy or bestiality, or of adultery coupled
with such cruelty as without adultery would have entitled her to a divorce
or of adultery coupled with desertion without reasonable excuse; for two years
or upwards .OI 4)Every such petition shall state, as distinctly as the nature of
the case permits, the facts on which the claim to have such marriage dissolve
IS founded.

The definition of 'adultery' in section 497 of I. P. C. applies only to male

offenders and under l.P.C. , a women connot be said to be guilty of adultery,
but the fact that section 10 authorises a husband to present a petition for
dissolution of marriage on the ground of adultery of his wife:, is sufficient
to show that the word 'adultery' has been used in a wider sense than the
difinition given in section 497 of LP.C. 015 l In Ani/ Kumar Mohsi V Union of
India , 016 ) the Supreme Court observed that section 10 of the Indian Divorce
Act is discriminatory in nature. The court again observed that''as far as the
ground of adultery is concerned it is the husband who is in favourable position

110. Supra Note 103, clause (vii)

111. Ibid. cluse (viii)
112. Mustafa V Mirza Khan, AIR 1933 Oudh 15
113. Section I 0 of the Indian Divorce Act. 1869
114. Ibid
115. Olga Thelma Gomes V Mark Gomes; AIR 1959 451

116. (1994) 5 Sec 704 at 707

 38

as against the wife, smce it ts not enough for the wife to prove adultery
simpliciter on the part of her husband. To that extent, undoubtedly it is the
wife who is discriminated against. 017 l Thus. the court could easily held in
Angillina Masihe case that the wife alongwith the co-respondent were living in
adultery.o 18 l Section 18 of the Indian Divorce Act enables a Christian wife to get
her marriage declared as null & void for the reasons contained in section 19,
such as importency of the husband at the time of marriage and at the time of
institution of the suit.< 119 l Moreover, under section 22 of the Act, the wife is entitled
to obtain a decree of judicial separation from her husband on the ground of adultery
or crulty or desertion without reasonable excuse for two years or upwords. 020 l

The special Marriage Act, 1954 provides several ground for divorce, VIz.
adultery, desertion for three years, imprisonment for seven or more years, cruelty,
unsound mind, leprosy, absence of news about him for seven years or more,
elapsing of two years after the passing of decree for judicial separation, failure

117. Ibid
ll8. Peter V. Smt. Angillina ,\fasih and another. Air 1992 Delhi 20.

In this case it was proYed that the wife was living \\ith co-respondent in one room accomodation
for more than seven months. & it was held that act alone was enough to prove that they were living
in adultery.
119. Section 18 of the Indian Divorce Act. 1869

This section says that . "any husband or wife may present a petition to the District Court or
to the High Court . pra)ing that his or her marriage may be declared null & \oid. "

120. Ibid Section 19

Section 19 provides some grounds on which decree for nullity of marriage may be given, like.

(i) if the rspondwt was importent at the time of the marriage & at the time of the institution of
the suit:

(ii) if the parties are within the prohibited degrees of consanguinity (whether natural or legal) or
affinity

(iii) if either party was a lunatic or idiot at the time of the marriage
(iv) if the former husband or the wife of either party was living at the time of the marriage, and
the marriage with such former husband or the wife was then in force.
 39

to comply with a decree of conjugal rights, or when both the parties together
request the court that they have been living separately for a period of one year
or more, that they have been unable to live together & that they have mutually
agreed that the marriage should be dissolved. 0 21 )

On the matter of divorce the court have given different opinion in different
occasion. In R. Hemltha V R. Satyanandam, 022 l a Christian wife prayed for divorce
in the district Court of Warangal on the ground of her husband's cruelty & disertion.
The district court of Warangal granted divorce on these grounds,. but the special
Bench of Andhra Pradesh High Court pointed out that these two grounds entitled
the wife to obtain a decree of judicial separation only but not a decree for divorce.
On the other hand, in a similar case Elveena V Gopal, 023 l a Christian wife
obtained a decree on the ground of the husband's adultery & cn1elty. Therefore,
it is required that the provision of divorce or judicial separation under the Christian
Acts should be more specific, clear & unambiguous & also should consider
carefully, the vulnerable position of aggrieved Christian Women.

The matrimonial remedies of Parsi women are governed by the Parsi Marriage
and Divorce Act, 1936 & the Parsi Instestate Succession Act, 1936. Both the Acts
confer quite elaborate rights to Parsi women as matrimonial remedy.

In India there is no statutory law on marriage & divorce for the Je~i_s~h
community. They follow there ancient customary laws. According to such customs,
in case of a maniage, before wedding, the husband has to make a deed known
as Kethuba or Ketuba. It is a written contract under which the wife would
receive the specifiied sum from the husband's estate incase of his death or in case
her being divorced. A mutual consent of the parties is a must for contracting a
volid marriage In the absence of such consent, the marriage is void. consequently,
an idiot or lunatic cannot contract a volid marriage. Again, although the parents
of minors can contract for a marriage, either the boy the may nullify the agreement.

Il(ii)(c)Women And Legal Provision For Maintenance :

From times immemoriaL women have been denied the right of equal status.
The position of discarded women has been pitiable. They had no means of

121. Section 27 of the Special Marriage Act. 1954.

122. AIR 1979 AP I.
123. AIR 1979 P & H 4.
 40

subsistence. Their position has been gradually improved & certain safeguards have
been provided for the protection of women. Of these safeguards . maintenance is
one. Maintenance of wife, children & aged parents has been recognised statutority.
The duly of the husband to maintain his wife lasts not anly during the course
of marital life time, but also after that when the women no longer remains his
wife.

All personal laws accept the basic idea of women having some rights to
support in the event of the dissolution of a marriage. These rights are circumscribed
by various condit[ons. In a marriage which is void the wife is not permitted to
sue for mainterbi;~e. She is entitled to maintenance if a voidable marriage is
annulled, or if a valid marriage is dissolved. In the event of a judicial separation.
wife is also entided to maintanance.

After the codification of the Hindu Adoption and Maintenance Act, 1956
the concept of maintenance of women of different status & position has been
made clear. Under section 18 of the Act, a Hindu wife, whether married before
or ofter the commencement of the Act, shall be entitled to be maintained by her
husband during her lifetime. 024 l So a wife could not be denied of the right of
maintenance when substituted by another wife.

The wife is also entitled to live reparately from her husband & claim
maintenance in case of dessertion, cruelty, virulent form of leprosy, existence of
a second wife, conversion to another religion or due to another justifying cause. 025 l

124 Section 18 of th1;: Hindu Adoption and Maintenance Act. 1956

125. Ibid. Section 18 of the Hindu Adoptions and Maintenance Act provides for some secial grounds
for wife to get maintenance from her husband even while living separately from her husband. Those
grounds are

a) if the husband is guilty of desertion , that is to say, of abandoning her ·without reasonable cause
& without her consent or against her wish. or of wilfully neglecting her:

b) if the husband has treated her with such cruelty as to cause a reasonable apprehension in her
mind that it will be harmhull or injurious to liYe with her husband~
c) if the husband is suffering from a virulent form of leprosy
d) if the husband has any other wife living:
e) if the husband keeps a concubine in the same house in which his wife is living or habitually
resides with a concubim~ elsewhere :
f) if the husband has ceased to be a Hindu etc.
 41

A wife can get maintanance under section 18 of the Hindu Adoption and Maintanance
Act, even during the subsistence of marriage, where a judicial separation or
restitution of conjugal rights has been granted.

'Wnere the wife is entitled to maintanance, the extent she is entitled to claim
varies not only according to the limitations imposed by the laws but also the
decision of the judges. In Hindu Adoption and Maintenance Act, 1956 the court
126
has the discretion to fix the amount of maintenance. < ) The amount varies from
case to case & is calculated on the basis of the income & liabilities of the
parties. The amount of maintanance can be increased or decreased by the court
on the altered situation. 0 28 >

Under section 24 & 25 of the Hindu Marriage Act, 1955, a wife has been
given the right of maintenance. Under Section 25, the court may grant to the wife
permanent alimony on passing of any decree or at any time subsequent thereto.
Court may also grant alimony/maintenance to the wife during the pendency of

126. Supra Note 124. Clause (I) of Section 23

127. IbicL Cluse (2)

12X. Supra Note 124. section 125

In Sivan Kulli l~ Kamal Kumari.

A[R 198 9 ker 124. it was held by the court that. an indigent husband cannot be compelled to pay

maintenance to his wife. The misfortune has to be shared by both.

Sec also Dr. Kulbhusan Kanwar V Smt. Raj Kumari, AIR 1971 sc 234: (1970) 3 sec 129

Again in Kirtikant D. Vadodaria VS. StaTe of Gujarat, (1996) 4 Sec 479-A It was held by

the court that . the husband is lible to maintain his wife if he is capable of earning. He cannot pleade

that he is unable to maintain her due· to financial constraints.

 42

any prodeedings between her & her husband under the said Act.< 129 l

Under Islamic law a husband is bound to maintain his wife irrespective of

being a Muslim, non- Muslim, poor or rich, young or old. Maintenance has been
made compulsory beacuse such is the percept both in the Quran & in the tradition.
Unfortunately, the Islamic Sharia on this subject is confusing. Under this law a

129. Section 24 of the Hindu Marriage Act. 1955

In Pradip Kumar V Sailaza Kapur AIR, 1989 Del 10, some relcYant consideration for determining
alimony pendente lite was declared to be obliged to be maintained such as J:Osition & status of the
parties, reasonable wants of claimant , income of the claimant. income of the opposition party and number
of persons of opposite party.
It was also held in Gurmith Kaur V Gurraj Singh. AIR 1989 P & H 223. that refusal of
a prayer for alimony pendente lite to put pressure for reconciliation is illegal & contrary to the pro,isions
of law.
It was also opined in Khadal Penthi V Hulash Dei. AIR !989 Ori 137 (FB)~ that interim
maintenance can be granted under inherent powers of the court.
While dealing ·with the maintenance pendente lite uls 24 of Hindu Marriage Act 1955. though
the supreme court, in Jasbir Kaur Sehgal (Smt) Vs. District Judge, Dehradun, (I 99 7) 7 sec 7. . has
laid down some factors to be considered by the court, like the status of the parties. their respective
needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance
& of those he is legally obliged to maintain and also the ststutory but involuntary payments or deduction
etc. but of the same time it also held that the amount of maintenance fixed for the wife should be
such as she can live in reasonable comfort considering her status & the mode of life she was used
to when she lived with her husband

In S. Jayannath Prasad Vs S. Latika Kumari, AIR 1989 AP 8. it was held that section 25 of
the Hindu Marriage Act empowers the court to give the relief maintenance to either party irrespective
of the facts whether the petition for any of the reliefs mentioned in section 9 to 13 is dismissed or
allowed whether the reliefs granted or refused.

Further in Sadanand V Sulochana, AIR 1983 Born 220. it was declared that application for
pennanent alimony need not necessarily be in writing, oral application is sufficient.
 43

woman is entitled to maintenance only during Iddat period . This point was
thoroughly considered in Mohd Ahmed Khan V Shah Bano Begum case. o:;o) It
was held in this case that the sum settled by way of Mehr is generally expected
to take care of the ordinary requirements of the Muslim wife during the marriage
& after. But these provisions of Muslim personal Law do not give approval to
casses in which the wife is unable to maintain herself after the divorce. It is not
only incaarrect, but unjust, beacuse the Muslim Personal Law which limits the
liability of the husband to provide for the maintenance of the divorced wife during
the period of iddat, does not contemplate or give approval to the situation envisaged
by sec 125 of Criminal Procredure Code. It would be wrong to hold that the
Muslim husband, according to his personal law, is not undt:r an obligation to
provide maintenance beyond the period of iddat, to his divorced wife who is unable
to maintain herself. Infact, if the divorced wife is able to maintain herself, the
liability of husband to provide maintenance for her ceases with the expiration of
the period of iddat, otherwise she is entitled to take recourse to Sec. 125 of
the Cr P.C. Thus the conclusion is that there is no conflict between the provision
of sec 125 of Cr . P .c. & those of the Muslim Personal Law, on question of
Muslim husband's obligation to provide maintenance for a divorced wife who is
unable to maintain herself.

In 1986, the Muslim Women (Protection of Rights on Divorce) Act was passed
which has consolidated & harmonized the different schools of the Muslim law
in the matter of payment of maintenance to the wife on divorce. \Vhile the orthodox
view of the husband's liability to pay maintenance only upto iddat period finds
prominance in the Act, the modem trend as reflected in section 125 of the Cr.
P.c. has also been included making it optional on the choice of both the parties.

Section 125 of Criminal Procedure Code applies to wives belonging to any

religion. It has no relationship with personal laws of the parti,es. The uniform
applicability of sec 125 Cr. P.C. has been upheld several times in different cases,
such as- Namak Chand V. Chanda Kishore Agarwal, 03 n Sahida Begum V Mahamed

130. AlR 1985 sc 945: (1985) Sec 556 1985 25cc (Crim) 245.
It this case the Supreme Court also held that a divorce Muslim woman so long as she has not
re-married, is a wife for the purpose of section 125 of the cr. P.C., and is entitled to maintenance from
her former husband. The court observed that the right available under section 125 is a statutory right
and remains unaffectedl and also overrides the pro\isions of personal law if there is any conflict beetween
the two. However the court observed that there is no such conflict.
l31. (1 %9) Sec 802, 802 : 1970 sec (cri) 127, 129-130
 44

Mofizal Haque <l32J as in Shah Hano Begum case 0 ~'l etc.

The Special Marriage Act, 1954 also provides for scope of maintenance.
Under sec 37 of this Act the wife has been given the right to apply to the court
of law for grant of periodical/monthly maintenance from her husband. m 4 > Sec
37 of the Indian Divorce Act also provides for payment of alimony where decree
of divorce & judicial separation have been passed. <135 ) Under this section court
has been given the power to grant wife such gross of money or such annual sum
of money for any term not exceeding her own life. It is the discretion of the
court to grant or to refuse relief.0 36 l

Under the Hindu lav•. there is also provision for maintenance for widow.
though it is not exhaustive. Under the Hindu law, if the father-in-law had received
some property by survivorship in which his son (husband of the widow) had a
vested interest, he is under a legal obligation to maintain his son's widow. But
where he had not any such property, the obligation is only a moral one. Section
19 of the Hindu Adoption and Maintenance Act, 1956 deals with the maintenance
of daughter-in1-law. This section does not impose any personal obligation over the
father-in-law to maintain his daughter-in-law. She can claim mantenance from her
father-in-law only if she is unable to obtain maintennce out of the estate of her
husband or her father or mother or from her son or daughter or his or her estate.
(137)

II (ii) (d) Custodian Rights & Women :

The ancient Hindu system had hardly developed a law on minority &
guardianship. The minor children mostly lived in a joint family & were always
under the protection of Karta. A Karta was obliged to protect the minor & the
women & maintain them even after the death of the father & the husband. The

I 32. 1986 cri L.J. 103 (Gan HC)

133. Supra Noh.~ 130. sec also. Sved Tanzal Vs Union of India, AIR 1993 ker 308.

134. Section 37 of the Special \larriage Act. !954

135. Section 37 of the Indian Divorce Act. 1869

136. Ibid.
137. Section 19 of the Hindu Adoptions and Maintenance Act, 1956.
 45

law of guardianship, natural or testimonial or otherwise with authority in the first

instance was delegated to the father. both as regards to the person & property
of minor. In the absence of father, mother would become the next natural guardian.
In the absence of both father & mother, the court needed to appoint guardian
who were nearest to him in blood, firstly from the pateml side & in the absence
of that from the maternal side. The Guardian and Wards Act {vii of 1890) more
or less retained this position in the sense that, if the father or the husband was
found unfit to act as natural guardian, their right could not be disturbed . It further
preserved right of the father to appoint a testamentary guardian.

The Hindu Minority and Guardianship Act, 1956 has tried to 1mprove the
status of mother. She has been given the right to act as natural guardian .< 1' 81
If the mother leaves behind a testamentary guardian, as it is appointed by her,
takes precedence over the guardian pointed out by the father. The custody of child
below 5 years will be with the mother, although the father may be the natural
guardian. (1-lol A Hindu widow must not on her remarriage lose her preferential
rights of guardianship over her minor children by the decreased husband whether
such remarriage is permitted by custom or not . <141 l The rights conferred on the
mother to the natural guardianship of her children after the father, is absolute.
142
< l A Hindu widow also has right to appoint guardians for her minor children
by will. n-nJ The Act also provides that though the father may appoint by will

138. Section 6 of the Hindu Minoriy and Guardianship Act. 1956

139. fbid clause (2) of Section 9

140. Radhabai fs. Surendra , AIR 1971 Mn. 69.

Sec also. Chandra Prabha vs. Premnath , AIR 1969 Delhi 283

Even though there are no certain guid!ines as to the right to custody of the minor children. the
courts held in both the abovementioned cases that the custody of child below five years of age shall
be with the mother unless special circumstances injurious to the child's interest are shown. Even the
non-Hindu mother of a Hindu child below five yearts has been held entitled to the custody of the minor
in Ra; Kumar \". Barbara. AIR 1989 cal 165.
141 Deepankar Chatterjee vs. Rupa Rao (1989) HLR 1990 (cal)
In this case it was held that the court may not be influnced by the fact of re-marriage of the
mother
142. Supra Note 138
sec also. Supra Note 138. section 9
143. Ibid cluses (2) (3) & (4) of section 9
 46

a guardian for his minor children, any such appointment will not take effect during
the lifetime of mother if she survives the father. It will take effect only after her
death, provided she has not appointed a guardian by her own will . \144 )

Generally the interest of the child is given preference in considering their

045
custody. ) Although in every instance the father is regarded as the natural guardian
of the child & must be proved unable or incompetent or morally undesirable as
146
an influence on the child for the guardinship to devolve on the mother. < )

Under the Muslim law in the case of a male child the mother is permitted
to have the child live with her until he is seven, for the benefit of the child.
147
In the case of female children this may be extended to puberty. < l Mother does

144. fbid. clauses (I) & (2)

145. Poonam v. l(rishanlal . AIR 1989 sc 40 I

In this case the Supreme Court leaving custody of minor to his mother. directed the parties to
consider the interest of the child as paramount & to do nothing which would affect the interest of the
minor or cause any harm physical or mental to the minor.
Section 13 of the Hindu Minority and Guardianship Act. 1956 says that. in the appointment or
declaration of any. person as guardian of a Hindu minor by a court the welf:ue of the minor shall
be the paramount consideration
Clause (2) of this section further specifies that. no person shall be entitled to the guardianship
by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus
It if the court is of opinion that his or her guardianship will not be for the welfare of the minor.
Honouring such legal provosions mother was entitled to guardianship and custody of a child of
11 years old in Smt. Mohini v. Birendra Kumar. AIR 1977 sc 1359 (1977) sec 513. Though in a
later case of Dolikuka v. Dalikuka. Air 1982 sc 1276. it was held that the welfare of the minor cannot
be the sole criterion for deciding the question of custody of a minor.

146. Jijabai \. Patfum Khan. AIR 1971 sc 315 (1970) 2 sec 717
In this case it was held that. as regard to natural guardianship mother come:s only after the death
of the father: but where the father. though alive. does not care to take any interest in the minor and
is as good as non est. mother can be treated as natural guardian

147. Section 352 of the Mohomedan hm

Aft. Jfaidri v. Jawad Ali (1934) All. L.J. 399. 150 i.e. 149 (34) A.A. 722. It was held that the
right of mother to custody of infant childern continues though she is divorced by the father of the child.
 47

not however have the right of guardianship over any properties or assets that
the child may own. 1148 l She must depend on her own earnings or on the payment
of child support from the father. In case the father does not pay child support
regularly, molther may have recourse to court to claim arrears, Here too, there
is no remedy for ensuring regular payment of this in the future. In case the mother
does not live a chaste life, she is considered a bad moral influence on the child

Visiting rights are nearly always granted to the mother in case her children
are not in residence with her. If her husband does not comply with her the court
order & produce the children to be with her at the times specified in the order,
she may have recourse to law & the husband may be compelled to comply, if
necessary, under the supervision of the police.

In case of Chrislian comunities, the father is the natural guardian & in absence
of father, mother gets that rights.

II ( ii) (e) Women And Law of Adoption :

Adoption as a legal institution exists only among Hindus in India. Though

a Bill has been introduced in Parliament, no general legislation relating to adoption
has yet been passed into law.

In 1956, substantial change has been effected in the law of adoption applicable
to Hindus. The Hindu Adoption and Maintenance Act, 1956 has invested the Hindu
women with certain rights of adoption which she hed not enjoyed before.

148. Hidayatullah M. and Hiday1ullah Arshad .\Julia's Principles of A4ahomedan Lm1: 9th Ed 2000.
N.M. Tripathi Private Ltd Bombay. pp 292-299

Section 359 of the Mahomcdan law says that the following persons arc entitled in the order
mentioned below to be guardains of the property of a minor •-

I) the father
2) the executor appointed by the father's will:
3) the father's father:
4) the executor appointed by the will of the father's father.
In Patel Parshottamdm \"arasinbhai v. Bai Dhabu (73) A. Guj 88. it was held that a widowed
mother is not the legal guardlan of the property of her minor children and cannot bind the children
by any act in relation of the property.
 48

Previously an adoption could only be to a male, but the Hindu Adoption and
Maintenance Act has made women competent to adopt herself a son or a daugh-
ter.l149l Again under the Act, a married man cannot, except certain circumstances.
make an adoption without the consent of his wife, oso) But before the enactment
of the present Act, the consent of wife was immaterial. Under the present Act
wife's consent is unnecessary only when she has renounced the world or has ceased
to be a Hindu or has been judicially declared to be of unsmmd mind. 051 l Under
the new Act, a Hindu woman who is not of unsound mind & who is not a minor
is competent to adopt a son as well as a daughter, provided she is an unmarried
or spinter, divorce or widow or one whose husband has finally renounced the
world or has ceased to be a Hindu or has been judicially declared to be of unsound
mind. 052 l Therefore, when a married woman is under the protection of her husband.
i,e, during coverture it is only the husband who can adopt. If the woman wants
to adopt a son, she should not have a Hindu son, son's son or son's son's son
living at the time of the adoption° ~l & the boy to be adopted should be younger
5

to her by atleast twenty-one years. <154 ) If she intends to adopt a daughter, an

essential condition is that she should have no Hindu daughter or son's daughter
living at the time of the adoption. <Iss) Corresponding requinnents have also to
be observed by the man who wishes to adopt a son or daughter.0 56 l

II (iii) Protection of Women Under Property Law

The right to property held by women differs from community to community

in India. During the British period & after, a number of laws have been passed
to improve the position of women in relation to property.

149. Section 8 of the Hindu Adoptions and Maintenance Act, 1956.

150. Ibid.. sect10n 7

151. Ibid.

152. Supra Note 1·+9

153. Supra Note 149. clause (i) of Section II

154 Ibid.. clause (iv)

155. Ibid.. Clause (ii)

156. Ibid.. clauses (i). (ii) & (iii)

 49

Before the passing of Hindu Succession Act of 1956 separate rules existed
for the devolution of a woman's property. Distinction existed between female
property which consisted of property by way of gifts by her relations at any time
before the nuptial fire & at the bridal procession technically called 'Stridhan' &
the property acquired by her after the marriage by inhertance or by partition in
the family. In the limited number of cases, where they did inherit the later type
of property as widows, they got an estate limited for their hves. Therefore, before
the passing of the Hindu Succession Act, 1956, a female Hindu possessed two
kinds of properly, (i) a Stridhan & (ii) Hindu women estate. Oner Stridhan, she
had full ownership & on her death it devolvd on her heirs. As regards to property.
which she acquired as Hindu women estate, the position was that of owner ,
but her power of alienation was limited & on her death the prtoperty devolved
m the next heir of the last full owners & not her heirs.

The Hindu Sucession Act, 1956 is a landmark in the history of devolution

of property of women. Under section 14 of this Act Hindu women's limited estate
has been abolished. 0 57) Hindu women have become absolute owner of the property,
even with regard to existing properties,. By this measure the Act has placed women
on equal footing with men with regard to the right of use of the property. The
effect of sec 14 of the Act is to confer absolutre owneship on a female Hindu
in respect of all properties left by a male Hindu which was in her possession
on the date of the commencement of the Act, even though the husband of the
Hindu female had died long before the commencement of the Act. 058 ) This Act
has also brought about a radical change with regard to heirs for sucession in Class
I . 1159l The position of heirs in class I is as fallows : son ; daughter ; widow;

15 7 Section 14 of the Hindu Succession Act, 1956 says that any property possessed by a female Hindu.
whether acquired before or after the commencement of this Act shall be held b~ her as full ovmers
thermf ~nd not as a lirruted owner.

158. Kamala Devi v. Bachulal, AIR . 1957 sc 439: 1957 452

In this case it was held that section 14 of Hindu Successoion Act is retrospective in effect.

159. Pratap ,)/ngh v. [}nion of India, AIR 1985 sc 1695 : (1985) 4 sec l97.

In this case the Supreme Court very clearly declared that, section 14 is not violative of Arts.
14 or 15 (I) of the Constitution Sec. 14(1) is not vague & capable of implementation

In the case of Pillai v. Pillai , AIR 1984 sc 1493 . (1987) 2 sec 572 the Supreme Court made
the provision of section 14 ( 1) more stronger saying that. the legal effect of section 14 (I) is that after
cotlling into force of the Act there would be no property in respect of which it could be contended
by one that a Hindu female is only a iimited & not fuii owner .
 50

mother; son of a predeceased son ; daughter of a predeceased son: son of a

predeceased daughter; widow of a predeceased son; son of a. predeceased son of
a predeceased son, daughter of a prededeased son of a predeceased son; widow
of a predeceased son of a predeceased son. (160 ) Therefore , a brief picture of the
heirs of class I reveals the improved status of women. The daughter has been
made the co-heir. The grant of equal share to daughter in the Act raises the position
of Hindu women to a very great extent. The Act has elliminated unhealthy
distinction between various categoris of daughters, such as married & unmarried,
rich or poor, with or without childern. The Act has also eliminated the traditional
'woman's Estate' & has given absolute power of property to the female owner.

Section 23 of the Hindu succession Act says where a Hindu estate has left
surviving him or her, both male & female heirs specified in class I of the schedule
& his or her property includes a dwelling house, occupied by the members of
his or her family then notwithstanding anything contained in this Act, the right
of any such female heir to claim partition of the dwelling house shall not arise
until the male heirs choose to devide their respective shares therin, but the fernie
heir should be entitled the the right of residence therein .061 J Provided that where
suph female heirs/daughters are entitled to the right of residence in the dwelling
h:tuse only if she is unmarried or has been deserted or has been separated from
her husband or is a widow. It should be noted that there is no specific provision
in section 23 for the right of residence not being available to a daughter of a
predeceased son, daughter of a predeceased daughter, widow of a predeceased
son, daughter of a predeceased son's son, widow of a predeceased son of a
predeceased son when any of them marries subsequently.

However, the spirit underlying the entire Act is so different from that of
the traditional Hindu outlook, that its impact on the Hindu social organisation
would create great tension. The act provides a powerful weapon in the hands of
the progressive forces of the Hindu society. It closes a big chapter of women's

160. Section 8 of the Hindu Succession Act 1956

161. fbid. section 23

Gita v. Probhat, AIR 1989 NOC 167 (cal). In this case it was held that. where a considerable
portion of dwelling-house is let out to tenants, a female heir is not debarred from claiming partition
as sec. 23 is not attracted in such a case.
 51

oppression with regard to property rights & inaugurates a new phase in the
history of women's struggle for equality with men in the Hindu society.

The Islamic law relating to property right has been quite liberal towards
women. It has made provision for a definite share for the women in the father's
or husband's property. A daughter having no mother gets half the share of her
father's share of property. If there are more sisters, they are entitled to two-
thirds of the share collectively. A women having a brother, receives half the
share of what brother gets. The property inherited by a Muslim woman is
considered as her absolute property. She has always full contro:i over her
property. It is lega11y to her to marage, control & to dispose of, as she wishes
m life or death.

Daughters have rights of residence in parent's houses, as well as right

to maintenance, until they are married. In case of divorce, charge for main-
tenance revents to her parental family after the iddat period (approximately 3
months). In case she has children capable of supporting her, the charge falls
upon them.

In Islmic law a woman's identity, though inferior in status to a man's,

is not extinguished in him when she marries. Thus she retains control over
her goods & properties. She has a right to the same maintenance he gives to
his other wives, if any; and may take action against him in case he discriminates
against her. w·omen also have a right to mehr accaording to the terms of the
contract agreed to at the time of marriage.

A Muslim woman inherits from his husband to the extent of one-eight

if there are childern and one-fourth it there are none. If there is more than
one wife, the share may diminish to one-sixteenth. In circumstances where there
are no shares in the estate as prescribed by law, the wife may inherit a greater
amount by will. A Muslim may dispose of one- third of his property by wilL
though not to a share in the inheritance.

The Christans in India are governed by the Indian Succession Act 1925
with regart to the matters of intestate & testamentary succession. As per sections
15 & 16 of the Indian Succession Act, by marriage a women acquires the
domicile of her husband if she had not the same domicile before & a wife's
domicile during marriage follows the domicile of her husband. C162 > In section

162 Section 15 & 16 of the Indian Succession Act. 1925

 52

20 it is clearly stated that no person shall by marriage, acquire any interest

in the property of the person whom he or she merries or becomes incapable
of doing any act in respect of his or her own property which he or she could
have done if unmarried. <163 1

The provisions regarding the right of a widow to inherit the property of her
intestate husband is contained in section 33 of the Indian Succession Act. Accord-
ing to this section if the intestate had left the widow & lineal descendants one-
third of his property shall belong to his widow & the remaining two-third shall go
to his lineal descendants. If the intestate has left his widow & has no lineal de-
scendants but has left persons who are of kindred to his, half of his property shall
belong to his widow & the other half to his kindred or relative. If he has left none
but only his widow, the whole property shal1 belong his widow. <164 1

Under the Indian Succession Act, there is no discrimination between sons &
daughters with regard to the distribution of the intestate father's property. The
intestate's property (after deducting the widow's share) is shared equally among
his childern. In case the intestate has no lineal descendants & if father is dead, his
mother & sisters also are entitled to inherit his property as per section 44 of the
Act. (l65J

According to the Parsi laws there are separate rules for the distribution of the
assets of a made & a female. The son's share of his father's property is twice than
that of a daughter. The widow gets only as much as any of her sons get.

If the intestates parents survive him then the father gets half the share of the
son-i,e, the same as the daughter. But the mother gets half the share of the daugh-
ter.

When a Parsi woman dies intestate, leaving her husband & children, the prop-
erty is divided equally among the widower & the children.

A Parsi woman is given no protection against any arbitrery decision of male.

Whereas in Muslim law, a father cannot disinherit his wife or daughter,he can only

162. Section 15 & 16 of the Indian Succession Act. 1925

163 Ibid. section 20
16~ Supra Note. 162, section 33
165. Supra Notel62. section~~.
 53

will away one-third of his property according to his wishes. A Parsi male is not
bound by any such restriction.

II (iv) Women Protection In Criminal Law

Il (iv) (a) Cruelty, Legal Aid And Women :

The L~egal Service Authorities Act, 1987, which was brought into force with
effect from November 9, 1995, lays thrust on the responsibility of inculcating
legal lieteracy & awareness among rural people, in particular scheduled castes &
scheduded tribes, women, handicapped & slum-dwellers, on the law students &
universities by organising legal literacy camps, para-legal dinics, legal cells etc.
The law of cruelty is one of the areas where legal literacy camps & para legal
clinics are urgently necessary. The problem of cruelty is not only prevailing among
lower castes or village people, but it is now-a-days a regular problem concerming
higher castes, rich & even to well-educated people & obviously particularly to
women of these classes.

The concept of cruelty depends on the society & different social environ-
ment. While the society is changing, the concept of cruelty would also change. In
early English law intention was considered to be an essential element of cruelty.
But in mod,em laws it is not so. Cruetly is considered as a crime and therefore
several legislations and enactments have dealt with cruelty seriously, irrespective
of any religion. The Indian Penal Code, the Hindu Marriage Act, 1955, Hindu
Adoptions and Maintenance Act, 1956 the Dissolution of Muslim Marriage Act,
1939, Indian Divorce Act, 1869 & several other personal laws of the country have
prescribed cruelty as a good ground for judicial separation & divorce. The Hindu
Marriage Amendment Act, 1976 provides that divorce will be granted to one spouse
if the other spouse is cruel to one. 066 lThe Hindu Adoptions :md Maintenance Act,
1956 allows a wife to seek separate residence with maintenance on the proof of
cruelty. <167 ) The Hindu Marriage Act allows judicial separations on the ground of
cruelty. <168 ) The Dissolution of Muslim Marriage Act also says that a Muslim

166. Section 13 of the Hindu Marriage Act. 1955.

167 Section 18 of the Hindu Adoption and Maintenance Act. 1956
168. Section 10 ofthe Hindu Marriage Act. 1955
Clauses (a) & (b) of sub-section (l) of section l 0 says that judicial separation can be granted on
the ground of dcsscrtion & crult:-
See also . section 13 of this Act. under which a decree of divorce can be granted on ground of
cruelty
 54

wife will be entitled to divorce if her husband treats her with cruelty. <169 ) The
Indian Divorce Act provides divorce on the ground of crulty. o7o) Under the Indian
Divorce Act, a husband or wife can also file petition for judicial separation on the
ground ofcruelty.< 171 l Section 32 ofthe Parsi Marriage & Divorce Act, 1936 pro-
vides cruelty as a ground for divorce. 072 l The Special Marriage Act, 1954 allows
divorce or judicial separation on the ground of cruelty.0 73 l

Cruelty may be physical or mental. For constituting cruelty it is not neces-

sary that the injury must be grave. The concept of cruelty has been undergoing
change alongwith the socio-economic change in the socity. In ltwari v. Ashgari ,
o 74 l it was held that being the second wife during the subsistence of the first mar-
riage constitute mental crulty. The Indian courts, time & again have played a vital
role in widening the scope of cruelty. In Iqbal Kaur v. Pritam Singh, o 75 l the court
said that persistent charges of chastity & immorality may amount to cruelty. The
scope of cruelty has been widened to a great extent in !vanes v. !vanes. c176>

lnspite of all these protection the incedents of cruelty in way of claiming

more & more dowry, wife beating, wife burning, leading immoral life by husband
etc. have increased enonnously over the past few decades. The Jlnsertion of section

169 Clause (vii) of section (2) of the DissolutiOn ofMuslim Marriage Act. 1939

170. Section 10 of the Indian Divorce Act . 1l\()l)

171. Ibid. Section 22

172. Section 32 of the Parsi Marriage and DiYorce Act, 1936

173 Section 23 of the Special Marriage Act. 195-+

174. AIR 1961 All 684

175. AIR 1963. Punj. 2-+2

176. 1955 CA 129

In this case. the husband had committed assault on the step daughter of his wife The daughter was
beetween 13 & 15years of age She mformcd the mother who protested the husband & he promised not to
repeat it He failed to keep his promise & resumed his indecent conduct with result that his \vife's health was
effected. It was held that a criminal & indecent assault by husband on child was cruelty to the child's mother.
although no intention to injure the mother was shown.
 55

could not help in decreasing the number of such incidents. Legal proof & the after-
math of court battles discourage women from filing cases ut1der section 498 A ,
J.P. C. There are many cases where poor & helpless women are forced to live with the
same man who is responsible for committing atrocities on them, as they have no
other option & no other place to go for shelter. The law or bigmy & deceitful mar-
riage is too <~omplex, which shows the inability of law to protect the interest of
legally married wives. The procedural requirement of sec. 498 A, that only the women
victim , her parents & relation by blood can file a complaint, make it very difficult
for the victim to get a complaint lodged in some critical cases, This restriction should
be removed. In many cases the neighbour, not the victim's parents or relatives get to
know how the victim has been suffering in husband's house or in inlaw'splace etc.
Therefore it should be allowed that nighbours of the victim should be allowed to file
cases, on behalf of the victim against the culprits. Legal aid cells should also be
established. They should provide lawyer to fight their case & give legal aid to those
seek assistance either directly or through public interest litigation.

II (iv) (b) Dowry And Women Protection

The increasing number of, dowry death is a matter of serious concern today.
Cases of cruelty by the husband & his relatives, culminated in the wife being driven
to commit suicide or to death by berning or in any other manner is a very common
feature of today's society. In order to combat this social problem the legislature
decided to amend the Indian Penal Code, Criminal Procedure Code, Indian Evidence
Act etc. So far as the Indian Penal Code is concerned, Sec:. 498A came to be
introducted, where cruelty by the husband or his relatives to the former wife is made
a penal offence punishable with imprisonment for a term which may extend to 3 yrs
& fine. A court can take cognizance of the offence upon a pol:ice report or upon a
complaint by the aggrieved party or by the women's parents, brothers, sisters etc.
The offence is made non-bailable. (I77J

So far as the Evidence Act is concerned. a new Section 113 A has been in-
serted. On a plain reading of this provision, it in obvious that i:fa wife is shown to
have committed suicide within a period of 7 yrs from the date of the marriage &
there is evidence that she is subjected to cruelty by her husband or his relatives, it
would be pem1issible for the court to presume that such sucide has been abetted by
her husband or by some relatives of her husband _( 178 J

177. Sectwn 498A of Indian Penal Code, 1860,

178. Section ll3A of the Indian Evidence Act, 1872
 56

The law underwent a change with the introduction of sec. 304 B in the I. P.C. &
sec 113B in the Evidence Act. The Indian Penal Code says that if the death of a
woman is caused by burn or dodily injury or occurs otherwise than under normal
circumstances within 7 yrs. of. her marriage & evidence reveals that soon before
her death she was subjected to cruelty or harassment by her husband or any of his
relatives, in connection with any demand for dowry, such death can be called 'dowry
1179
death' & suGh husband on relaive shall be deemed to have 1::aused her death. ;

Whoever commits dowry death shall be punished with imprisonment for a term which
shall not be less than seven years but which may extent to imprisonment for life.
Under sec ] 13B ofEviduence Act, the court has to arise a presumption of dowry
death if the same has taken place within 7 years of marriage & there is evidence of
the woman having being subjected to cruelty & lor harassment. Therefore, the
legislature, by introducing sec 113 A & 113 B in the Evidence Act tried to strenthen
the prosecution hands by permitting presumption to be raised by court on certain
080
fundamental facts of the unfortunate event. lSince, generally such crimes are com-
mitted in the privacy & secrecy, independence & direct evidence is not easy to get.

It is to be noted that sec. 498A of I.P.C & sec 113 B of Indian Evidence Act
deals with regard to the death of a woman caused on account of cruelty of the hus-
band, but the concept of cruelty is changing, with changes in the socity. Cruelty may
differ from cases to cases. There may be cruelty by the unintentional but inexecusable
conduct of any party. In such case, even if the act of cruelty is established, the
intention to commit suicide cannot be established. In such case absence of intention
should not make any difference. The relief to the party cannot be denied on the
ground that there has been no deliberate or wilful ill-treatment dSlJ The resctricted

179 Supra Note 177. section 2304 B

180. Supra Note 178. clause B.
181 P.B Bikshapathi v. 5)tate ofA. P. II ( 1989)
D.M.C. 29L 1992 Cri LJ 1186
In this case . drinking & late coming habits of the husband coupled \\11 h beating & demanding
dowry had been taken to amount to cruelty within the meaning of section 11 :;,\of the Indian Evidence
Act. But in the another judgement gi>en in the same time in Tapan Pal vs State of Hest Bengal, 1942 cr LJ
I 0 l7 cal. the same section 113 A has been held not to i ncludc a husband who mereh drinks as a rontinc and
comes home late.
See also. S.N. Batane V State ofMaharashtra. I( 1993) DMC 204
 57

meaning to the expression 'husband'was also widened in V Ye dukendalu vs State

(dA. P (I8l) In that case sec 498 A of Indian Penal Code was made applicable in the
case of mistress & not wife.

In lnderaj .Malik vs Sumita Malik, (tSJ) it was contended that sec. 498 A of
Indian Penal Code is violative of Art 14 of the Constitution, as it gives on arbitrary
power to the police as well as to the court. It was further contended that sec. 498 A
of I. P.C offended against the principle of double jeopardy contained in Art 20 of the
Constitution as demand of dowry or any other property was punishable under Sec. 4
of the Dowry Prohibition Act, 1961 , and mere demand of dowry is punishable &
existence of dement of cruelty is not necessary. But it was held that, sec 498 A
deals with aggravated form of the offence. It inter alia punishes such demand of
property or valuable security from the wife or her relative as are coupled with cru-
elty to her. Therefore, a person can be prosecuted in respect of both the offences
punishable under sec. 4 of the Dowry Prohibition Act, 1961 & sec 498 A of the
Indian Penal Code. There is no question of giving any arbitrary power to the police
as well as to the courts & hence, it does not conflict with Art 14 of the Constitution.

It may be noted here that every harassment of cruelty that should attract sec
498 A is not included. It is Conclusively established that harassment/cruelty should
be with a view to force her to commit suicide or to fulfil the illiga1 demand of
dowry_084)

It should also be noted that, sec 113 A of Indian Evidence Act appears to be
more helpful to the prosecution than 113B of the same Act where the drawing up of
a presumption against the accused has been left to the discretion of the Court. Even
so, the position has not yet become free from difficulty, as there is no explanation in

182. 1988 (l) Crimes 976: 1988 Cri LJ. 1581 AlL
The court held that. there was no reason wh) section 498 A of Indian Penal Code should not lx
applied to a case where a person inflicts such cruelty as to lead his mistrees to commit suicide
In this case the deceased & the appelant were living as husband and wife The appellant was
regularly coming house of the deceased. In the dying declaration. the deceased described the appellant as
her husband. saymg that her husband poured kerosene & set fire to her clothes. The witness said that. the
deceased was the kept mistress of the appellant. The court held that. in the present case. the restricted
meaning to the expression 'husband' could not be given The relationship was that of husband & wife
183 l986GLJ 1610
I~ Sarla Prabhakar V State ofMaharasstra. 1990 Cr.LJ. 407 (Bombay)
 58

section 113 8 of the Indian Evidence Act to show that the word cn1elty shall have the
same meaning as in section 498 A, l.P.C. In the absence of such an explanation in
Section 1138 of Evidence Act, a Court would perheps be justified in refusing to
draw the presumption against the accused in a dowry-death case under section 304
I. P. C. In other words, apart from harassment on account of not meeting an unlowful
demand for any property or valuable security, there must be some other extraneous
acts of cruelty 1to justify drawing up of a presumption under section 1138 of the
Evidence Act. In view of this position, by way of abundant caution, the prosecution
would do well to register cases both under section 304 8 & section 498 A I.P.C as
well as under section 306 J.P. C.

In 1961, the Dowry Prohibition Act was passed, under which both the giving
and receiving of dowry is prohibited. Dowry has been defmed as any valuable asset,
property or gift that is given or received by either party of the marriage, or the par-
ents of either party of the marriage, to either each other or to any other person, in
connection with or in consideration of the marriageY 86 ) In State of H.P V Nikku
Ram,<tff'l) it was held that the assets or gifts may have been given before, at or after
the marriage but they must be in connection with it, to qualify as dowry. The excep-
tions to this is the dower or mehar that is the right of the Muslim women given by
law. <188)This Act also provides for punishment for this crime, with imprisonment for
5 years and a fine ofRs 15,000 or the amount of the value of the dowry, whichever is
more. 089 )The Dowry Prohibition Act has placed a ban on advertisement by any per-
son of any share in his property or of any money as consideration for the marriage
ofhis son or daughter or any other relation_<I 90 )Such offence is also punishable with
imprisonment for a term of minimum 6 months, which may extend to 5 years or with
fine which may extend toRs 15,000.

185. In I iJay Rmhan .\harm a \"S. State of [ ·p 1988 Cri LJ. 1581 All. a wife, maltreated for dowry was sent
back to her father ''here she became ill beacausc of shock and after effects of cruelty The court having
JUrisdiction at the place was held competent to entertain a complaint both under section ~98A in respect of
cruelty & also under section 181 (-+)of Cr. PC. 1973 in respect of misappropriation of stridhan.

186. Section 2 of the Dowry Prehibition Act. 1961

187 ( 1995) 6 Sec 219-B at (223 to 2N)
188. J.:unJan .\fouieen vs . .''!'aved.\fohd AIR 1986 ker. ~8 (40)
189 Supra Note 186. section 3
190 Supra Note 186. Section -+A
 59

But, it is seen that despite the passing of the Dowry Prohibition Act in the year
1961 & subsequent amendments in the years 1983 & 1986, brides are still harassed,
tortured & even burnt to extract more dowry. Social cmpulsions & legal complexi-
ties generally compel a woman to suffer indignities & torture till she has not other
options but to put an end to her life. Most of the cases get acquitted because oflack
of proper proof & the ambivalent use of the dying declaration of the deceased women
by the courts. c191 ) The Dowry (Prohibition) Act does not take into account the social
realities of a woman's life, So the procedural law should be changed to make it com-
pulsory to record the statement of a victim of bride - bunning immediately. The
dying declaration should be recorded by the superintendent of police or any other
subordinate officer in case the magistrate does not reach in time. (1 92 ) The sentence
for ten years for dowry death should be increased to life imprisonment. The provi-
sion of legal aid & advice should be avilable to the women victim & her family by
the government. Every state government should appoint a good number of Dowry

l9l. In _\/eesala Ram Krishna \'S State of .-1. P

199~ (2) Crimes Il-l (sc). where a woman who was not in a position to speak at the time of giving
dying declaration and as such her dying declaration was recorded by a magistrate on the basis of some
nots & gestures made by her making it clear that she was burnt. not accidentally but by her husband. such
a dying declaration was held to be admissible & relied upon for conviction of the accused.
see also Mangath Ram vs State ( 1994) 3 crimes, 685.
ffannu Raja vs. State ofMP. 1976(21) SCR 761.
Ramavathi Devi vs State of Bihar. AIR 1983 SC 154
In all of these cases the Supreme Court has held that the conviction of the accused can be based on
dying declarations of the deceased if they are voluntary and trust worthy

192. Section 7 of the Dowry Prohibition Act. 1961

According to section 7 only a court of the Metropolitan Magistrate or a Judicial Magistrate of First
Class and no other inferior court has the jurisdiction to try the offences under the Act. The prossecution
may be initiated either upon the own knowkedge of the court or on a police report or complaint.
The complaint can be made by even a recognised welfare institution or organisation. In this context
the expression "recognised welfare institution or organisation" means a social welfare institution or
organisatiOn recognised by the appropriate government as such .
 60

Prohibition officer in respective states, particularly in the rural areas. 09 ~)

II (iv) (c) Women And Protection Against Rape:

Rape is one of the most reprehensible & heinous crimes which has been
treatening women of all countries since time immemorial. Increasing incidents of
this crime in the country & popular agitation to enact legislation to meetthe challange
led to the enactment of the Criminal Law Amendment Act, 1983. The intention of
Parliament was to impose deterrent punishment for the crimes so that, not only the
rapist is punished, but others in the society is also deterred from adopting the same
wrong-doings.

Section 375 of the Indian Penal Code defines this offence very clearly. c194 lThe
widened scope of this definition also includes that, a man is said to commit rape
who has sexual intercourse with a woman even with her consent when such consent
has been obtained by putting her or any other person whom she is interested, in fear
of death or of hurt. When a man does sexual intercourse with a woman with her
consent, when at the time of giving such consent women is of unsound mind or in
intoxication so as to unable to understand the nature & consecuences of that to which
she gives consent, then the man is also said to have committed rape. Sec 375, I.P.C.
also punishes a man of committing rape when a man does sextual intercourse with or

193. Ibid. section 8B

Under this section the state government may appoint as many Dowry Prohibition Officers as it
thinks fit and specify the areas in respect of·which they shall exercise their jurisdiction and powers under
the same Act
Evef_'. Dowry Prohibition Officer shall excercise and perform the following powers & functions.
namch -
(a) To see that provisions of this Act arc complied with.
(b) To prevent the taking or abetting the taking of the demanding of dowf!
(c) To callect such evidence as may be necessaf! for the prosecution of persons committing offences
under the Act.
(d) To perform such additional function as may be assigned to him by the state government etc
194 Section 175 ofthe Indian Penal code. 1860
 61

without consent of a girl who is under sixteen years of age. But, sexual entercourse
by a man with his own wife, the wife being under fifteen years of age, is not rape, as
marriage is given consent for the same. 095 l Though sextual intercourse is the main
activity of constituting the offence of rape, punishment for the same differs.

Section 376, l.P.C. provides that the rapist shall be punished with imprison-
ment of either description for a term which shall not be less than 7 years but which
may extend to imprisonment for life or a term extending to 10 years with or without
fine. Section 376(2) of Indian Penal Code prescribes more punishment where the
rapist is a police officer within the limit of the police station to which he is ap-
pointed or in the premises of any station house whether or not situated in the police
station to which he is appointed. In this case the minimum jail sentence is of I 0
years. In case of another custodial rape, i,e, rape by police officer on a woman in his
custody or in the custody of a police officer subordinate to him the minimum pun-
ishment is also 10 years imprisonment & also with fine. 0 97 l

Section 376A, 376B, 376C, & 376D have been added to the Indian Penal Code
to stop sextual abuse on women in custody. Section 376A eveill provides a two years
imprisonment to a person who is guilty of committing intercourse with his wife
during separation. 098 l Section 376B, 376c & 376D provide for five years imprison-
ment in case of rape by public servent with women in his custody, in case of rape by
superintendent of jail, remand home etc, & rape by the management or staff of a
hospital with any women in that hospital etc.0 99 l

In case of gang rape, i,e. where a women is raped by one or more in group of
person acting in furtherence of their common intention, each of the persons shall be
deemed to have committed gang rape & shall be punished with rigorous imprison

195 Ibid Explanation II

196. Supra Note 19~. sub-section (I) of section 176

In state of Maharashtra vs Rajendra Jawanmam Ganmdhi ( 1997) 80 Sec 386. it was held that. less
than minimum statutory sentence for the offence of rape cannot be awarded in 1thc absence of exceptional
circumstances.
197. Ibid. sub-section ( 2)
198. Supra Note 194. section 376A
199. Section 376B. 376C & 3760 of the Indian Penal Code. 1860
 62

ment for a tenm not less than ten years, but which may be for life & shall also be
liable to fine.uoo)

It is indeed a matter of concern that despite prompt judicial response & public
agitation, rape cases are increasing day by day. There is persistent demand by many
women organization for more & deterrent punishment for rapists. The present In-
dian Government also promised to amend the law in this regard & provide death
sentence for such a crime, but nothing has yet been done.

There is no separate section for commission of the those of attempt to rape,

like those of attempt to murder or attempt to commit suicide or robbery etc. The
crime of rape is committed in secrecy. Under such circumstances the statement of
the victim assumes great importance & should not be discarded till there are over
whelming circumstances to suggest that her statement is false. In Nand Kishore
Rath v. Nanda, c201 l it was held that in "Indian setting refusal to act on the testimony
of a victim of sexual assault is like adding insult to injury. Why should the evidence
of a woman or a girl who complains of rape or sexual molestation be viewed with the
aid of spees fitted with lenses tinged with doubt?----"C 202 l

In another case of State of Haryana v. Prem Chand and others, c203 l the court
held that the "character or reputation of the victim has no bearing or relevance either
in the matter of adjuding the guilt of the accused or imposing punishment under

200. Ibid. Explanation I Of clause (g) of subsection 2 of section 3 76

201. 1991 CrLJ 835

202 Ibid.

203. ( 1990)1 sec 249: 1990 AIR (sc) 538

204 State of Maharashtra vs. Madhukar N Mardikar. ( 1991) 1 Sec 57

In this cas it was held bv the court that. rape victim need not be women of chaste character The
Supreme court has laid down the unclastity of a women does not make her' open to any and every person
to violate her person as and when wishes She is entitled protect her person if there is an attempt to rape
her She is equally entitled to protectopn of new. Therefore merely beacause she is a women of easy virtue.
her evidence cannot be thrown overboard Even a prostitute has right privacy.
 63

204
section 376 oflndian Penal Code----" < )

In cases of rape or attempted rape, medical examination of the accused & the
victim soon after the incident, often yields a wealth of corroborative evidence.Such
an opportunity should not be lost on any account. It has been a settled principle of
law that delay in making a complaint or reporting a crime may often result in
embillishment. In Ram Ditta v. State ofM. P / 205) there was a delay of 4 days in re-
porting the matters to the police. On the ground of delay in not filing the FIR, the
court acquitted the accused.

In a recent case, considering the very young age of the accused persons, and
considering the circumstances under which there was every like hood that they could
not overcome the fit of passion and lost all sense of decency & morality and ultimatly
committed the offence of rape. In this case of Raju v. State of Karnataka with
Krishna v. State of Karnataka, <206 ) the court also considered the fact that the inci-
dent had taken place long back & during the course of the proceedings upto the
Supreme Court, both the accused persons had suffered disrepute & mental agony.
On consideration of all these fact the Supreme Court reduced the term of imprison-
ment from seven years awarded by the High Court to three years rigorous imprison-
ment.
But in another recent case of State of A.P v. Bodem Sundara Rao, <207 > the
Supreme Court observed that the sentence can not be reduced to less than prescribed
minimum without assigning any special & adequate reasons.

204) State ofMaharashtra Vs. Madhukar N. Mardikar. (1991) l Sec 57.

In this case it was held by the court that. rape victim need not be >vomen of chaste character. The
Supreme Court has laid down that the unchastity of a women does not make her 'open to any and every
person to violate her person as and when he wishes. She is entitled to protect he:r person if there is an
attempt to rape her. She is equally entitled to protection of law. Therefore. merely beacusc she is a women
of easy vinue. her evidence cannot be thrown overboard Even a prostitute has a right to pnvacy
205) 1989 cr .LJ 2557
Sec also. karncl Singh vs. State ofM P 1995 (3) crimes 527 {529) sc.
In this case it was held that . merely because the complaint was lodged less than promptly. it docs
not raise the inference: that the complaint is false. The reluctance to go to police is because of society's
attitude towards such woman·it casts doubts & shame upon her rather than confort & svmpathise with her
J -
206) (1994) I sec 453 at p.459: AIR 1994 sc 222 at p. 226
207) {1995)6 Sec 230 at 232
 64

With the various enactments & amendments providing rigorous punishment it

was expected that the incident of rape would show a downward trend & it would be
easy to get the culprits punished. But in reality it is seen that the incident of rape has
not only increased, but the nature of such crimes now-a-days has become brutal. The
cases of rape on minors have become frequent. It was observed in Madan Gopal
Kakkad l-: Naval Dubey and Another,< 208 l that though all sexual assaults on female
children are not reported & do not come to light, yet there is an alarming & shock-
ing increase of sexual offences committed on children. This is due to the reason
that the children are ignorant of the fact of rape & are not able to offer resistence &
become easy prey for lusty brutes who display unscrupulous, deceitful & insidious
art ofluring female children & young girls. Therefore, such offenders who are men-
ace to the civilised society should be mercilessly & inexorably punished in the se-
verest terms ..... "

In the Indian socio-economic condition, it is very rare for a woman or a girl to

make false allegation of rape or sexual abuse in some other form, yet a woman's
credibility is always open to suspicion. Section 114A of the Indian Evidence Act
implicitly assumes that the moral character of a woman is not a relevant fact , yet
there is a legislative provision like section 155( 4) of the Evidence Act, which says
that when a man is prosecuted for rape or like that , it may be shown that the
prosecutrix was of generally immoral character.< 209l Therefore, this objectionable
clause should be deleted without any delay. The undue emphasis on consent should
be done away with. Marital rape within the marriage by husband, only when he is
judicially separated, (210 J. but otherwise, should be given legal recognition, so that the
husbands cannot ill-treat wives with impunity. Legal & medical assistance should be
available at state's cost.

II (iv) (d) Women Protection Against

Eve- Teasing And Sexual Harassment:

Women have been greatly praised in the literature, particularly in the. religious
writings & novels in our country. They have been called 'De vi; 'Shakti,' yet their
actual position in the society is different, particularly when they go out of the house
alone. Eve-teasing are almost recognised as a male sport now-a days, which somtimes

208) ( 1992)3 sec 204

209) Sub-section 4 of section !55
210) Section "76A ofthc Indian Penal Code. 1860.
This section punishes sexual intercourse with wife without her consent by a judicially separated
husband
 65

yields very serious & pathetic condition of young girls & women. Thus the Indian
Penal Code has got some provisions to deal with such offence. Unwelcome sexual
advances request for sexual favours & other verbal or physical conduct of a sexual
nature constitute sexual harrassment . Often submission or n:jection of such con-
duct explicitly or implicitly effects the individual's employment and unreasonably
interferes with the work performances. It also creats an intimidating, hostile or of-
fensive work atmosphere. Sexual harassment could mean anything from a remark to
a physical advance, that offence the self-respect of a woman. It 1:::ould include sexuua1
innuendoes, inappropriate sexual gestures, propositions for dates or sexual favour,
blatant forms,, lering, pinching, grabbing, hugging, patting, brushing against & touch-
ing extreme behaviour amounting to attempted rape & rape. "<211 l

It could be seen that women are being insulted almost evetyday, every where &
everytime. It is almost a torture for a woman to walk alone on the road, but sexual
harassment & e~-teasing are treated as low priority crimes. The poor victims dare
not protest in order to avaid creating a scene attracting a crowd on the spot. Public-
ity of such incidents sometimes leads to injurious results against the victims them-
selves. The vi<~tims are, therefore, compelled to suffer the disgress silently & leave
the spot as quickly as possible, without disclosing their identity·. This helplessness
encourages the offenders to indulge in the crime freely without any fear of conse-
quence to themselves. Offences can never be brought to the notice of the authori-
ties, nor can the culprits be punished.

According to most of the working women, sexual harassment is almost an oc-

cupational hazard, and whoever have gone to the police against such an offence at
work have suffered. Working women are considered public property. Eve-teasing &
sexual harassment have become so prevalent that if a man whistles at a girl or pinches
her back no one bothers about it. It is taken as a normal male behaviour. Therefore,
complaints of sexual harassment is not easy to prove. It is seen that, in most of the
cases, an eve-teaser indulges in an obscene behaviour when he is in the company of
his fellow friends. If he is apprehended or the situation seems to take an ugly turn,
these friends act as mediators & rescue their friend. The protection offered by the
col1eagues to the culprits is the greatest hurdle in knowing enough details about him
to lodge proper complaint.

211) Punwani Jyoti. "Working women Are Public Property". Times of India. Sunday Re,·icw.dt Septem-
ber 18 111 • 199~
 66

While prosecuting an accused for eve-teasing or sexual harasment, it must be

proved that <212 \
(i) the accused intentionally did some act recited some song, uttered some words
or made some gesture

(ii) that such act, singing, reciting or gesture was obscene; &

(iii) that it was done at a public place;

A prosecution for sexual harassment under sec 354 of Indian Penal code re-
quires two factors to be proved( 213 >

( i) that the accused assaulted or used criminal force to a woman,

(ii) that such assault was with an intention or knowledge that it may or is likely to
outrage the modesty of the women. Mere proof of assault is not enough & the inten-
tion must be proved which is to outrage the modesty of a woman. An offence of
indecent assault on a woman cannot be complete unless there is the intention or the
knowledge that the woman's modesty will be outraged. Though there are some provi-
sion in Penel Code, a small percentage of such cases of eve-teasing & sexual harass-
ment are registered, as most of the Indian women do not have guts & stamina like
that of Mrs. Rupal Bajaj or Monica Lewinsky, to challeng a State Police Commis-
sioner 'or the most powerful man in the world.'

Il (iv) (e) Indecent Representation Of Women:

Today, there is a tendency to represent women indecently in publications, par-

ticularly advertisements which have the effect of defaming & denigrating the women.
Booksta11s are covered with the periodicals & novels offering dLifferent sex crime.
Pornographic magazines have became a big business. Their popularily has increased

212) Sections294. 5090flndianPenal Code. 1860

In the case ofTarak Das Gupta. ( 1925) 28 Born LR 99. the accused. a Universit} graduate. wrote a
letter containing indecent oYertures & posted it in an envelop addressed to an English nurse with whom
he was not acquainted. It was held that the accused intended to insult the modesty of the nurse and that
the letter. though enclosed 111 an invelop. was an object which was cxibited to the nurse to whose address
it was posted.
 67

with a parallel increase in the range & boldness of the subject covered. For mere
economic gain, women from all states of family are indulged in the trade of body
exposition. Vulgar films are flooded in the market. Scantily dressed heroines bring
bonus to the film producers flourishing their own bank balance. A new law, Indecent
Representation Of Women (Prohibition) Act, 1986, has been passed to combat this
evil, but women continued to be exploited for economic gains. <214 >
The law relating to obscenity is codified in Sections 292,293 & 294 of the
Indian Penal codeoSec. 292 (2), IP.C. says, whoever sells, lets to hire, distributes,
publicly exhibits or in any manner puts into circulation or for purposes of sale, hire,
distribution, public exhibition or circulation, makes, produces or has in his posses-
sion any obscene book, pamphlet, paper, drawing, painting, representation or figure
or any other obscene object whatsoever, shall be punished for a term which may
extend to two years & with fine which may extend to two thousand rupees.< 215 )

It was also prescribed in sec 292(A) of I.P.C. that, whenever prints or causes to
be printed in any newspaper, periodical or circular, or exhibits or causes to be exhib-
ited to public view or distributes or causes to be distributed, or in any manner puts
into circulation any picture or any printed or written document, which is grossly
indecent, shall be punished with imprisonment of two years withfine.< 216)

To check obscenety to be spread among young generation the punishment has

been prescribed little more. Sec 293 of I.P.C. reads as, whoever sells, lets to hire,
distributes, exhibits or circulates to any person under the age of twenty years, any
such obscene object as is grossly indecent or insulting or abusing. or intended for

2U) Ibid. section 354

214) Sub-section (c) section 2 of the Indecent Representation of Women (Proh:ibitionO Ace 1986
Under this section indecent representation means the depiction in any manner of the figure. form.
body or part of the body in such a way as to denigrate the image of women or as is likely to deprive or
corrupt public morals.
According to section 4 of this Act. indecdnt representation of women covers all visual forms of
media. books. pamphlets. writings. a !ides. films or objects but makes exception for any materials having
religious significace or which have value as objects or art or in the interest of science
215) Sections 292 oflndian Penal Code. 1860.
Sec also. section 3.4 & 6 of the Indecent Representation of Women (Prohibition) Act. 1986
216) Section 292A of the Indian Penal Code. 1860
 68

blackmaiL shall be punished with three years imprisonment along with fine.( 217J

Section 294 of the I.P.C. again says that, whoever, to the annoyance of others
does any obscene act in any public place or sings, ricites or utters any obscene song,
ballad or words, in or near any public place, shall be punished with imprisonment of
either discription for a term which may extend to the months, or with fine or with
both. (218 !
Inspite of all these legal provisions there is an increasing trend of obscenity,
indecent representation of women, resulted in increased sexual crimes against
women, which is not only making hell the lives of thousands of young girls but also
responsible for spoiling many young boys . These crimes are too subtle for the law
to combat. Till there is an attitudinal change in the outlook of society this social evil
will continue to flourish .

II ( iv)(f) : Prostitution, Abduction & Kidnapping of Women:

The literal meaning ofkidnapping is child stealing. Kidnapping is of two kinds,

& there may be case in which two kinds overlap, For example, a minor may be kid-
napped from India as well as from lawful guardianship . (ZI 9 l The offence may be com-
mitted on a grown up person or a minor by convincing him or her beyond the limit of
lndia( 220 ) If somebody takes or entice any minor under sixteen years of age if a male
or under eighteen years of age if a female, or any person of unsound mind out of
keeping of the lowful guardian, without the consent of such guardian, then it is said
to be kidnapping (221 ). The taking need not be by force, actual or constuctive and it is
immaterial whether the girl or the boy consents or not. There must be taking of the
child out the possess of the parents. If a child leaves its parents house for a particu-
lar purpose with their consent, it cannot be said to be out of their parents.

Sec 366 l.P.C. deals with kidnapping or abducting a woman, to compel her to
marry against her wi11 in order & that she may be seduced to illicit intercourseY 22 '

217) Ibid. section 29l

218) Supra Note 216. section 294
219) Supra Note 216 . section 359
220) Supra Note 216. Section 360
221) Ib1d. section 361
222) Supra Note 216. section 366
 69

This section also prescribes punishment for any person who abuses his authority to
criminally intimate a woman or induces her to go from any pll.ace with an intent that
she may be forced or seduced to have illicit intercourse.

Section 366A & 366 B deals with the persuasion of minor girls for the afore-
said purpose (223\. Section 372 & 3 73 I.P. C. dealing with se1ling & buying of minor
224
girls for purpose of prostitution. < ) Sec 3 72 applies to male & female under the age
of 18 years. It applies to a married or an unmarried female even where such female
prior to sale or purchase was leading to an immoral life. For a prosecution under
these sections, it is essential to show that the accused intended that the girls shall be
exployed for immoral purpose. The word prostitution is not confined to natural sexual
intercourse. It includes any act of lewdness or surrender of the girl's chastity for
maney. The dedication of minor to the temple as Devdasis amounts to this crime.

Section 366 A & 366 Bare intended to punish the export & import of girls for
protitution. Sec. 366 A deals with procuration of minor girls from one part of India
to another. Sec .366B makes it an offence to import into India from any country
outside India, girl below the age of 21 years for the purpose of prostituton. An of-
fence under sec. 366A is one of inducement with a particular object & when after
the inducement, the offenders offer the girl to several persons, a fresh offence is
not committed at every fresh offer for sale.

Suppression oflrnmoral Traffic In Women & Girls Act was passed in 1956. It
prohibits trafficking in human being & prohibits it near public places. According to
this Act. prostitution is not illigal per sec. In 1986 this Act was amended to do away
with the loopholes that prevented it from being effective. The Act has been renamed

223) lb1d. sections 366A & 3668

224) Supra Note 216. sections 372 & 373

 70

as Immoral Traffic (Prevention) Act.< 225 lLike the earlier Act, this Act also does not
declare prostitution illegal per se. <226 l Sec.2 of this Act makes th1~ definition of brothel

225) Reddy G.B .. "Women .J.nd The Law", 3rd ed 2000. Gogia Law Agency, Hyderabad .. pp. 136-137.
"Article 23 of the Constitution of India .prohibits trafficking in the human beings. The right against
exploitation is a fundamental right which aims at putting an end to all forms oftrafficking in human beings
including prostitution and 'Be gar'. India has also signed the International Convention at New York in 1950
which required a legislation to implement the same. There had been number oflocal Acts in force in India
in some states but they were neither uniform nor effective.

In the light of all these circumstances. the Indian Parliament has thought it fit and desirable to pass
a central law that will not only secure uniformity throughout the country, but a.lso would implement the
fundamental rights in Article 23 of the Constitution and also conventional obligation of 1950.

Accordingly the parliament has passed the Suppression of Immoral Traffic in Women and Girls Bill
of 1954 which because the Immoral Traffic in Women and girls Act. 1956 and it was shortly known as SITA.
This Act was covering only the female & children

Subsequently it has been realised that prostitution is not confined only to the females & children
but also covers the males In order to cover even males. the Act was renamed as the Immorral Traffic (
Prevention) Act. 1956 lJ! an Amendment in 1986. Now the Act covers both the males as well as femals. as
it uses the expression 'persons'. Pov.cr to make Rules has been vested in the state governments and
accordingly many states have framed Rules for carrying out the purposes of the Act effectively.------"
226) Seetin 7 & 8 of the Immoral Traffic (Prevention) Act, 1956.
The purpose of the enactment of this Act was to inhibit or to abolish commercial vice namely
traffic in women. m(:n& children for the purpose of prostitution as an organised means of living. The aim
was not to render prostitutwn'per se' a criminal offence or punish a woman merely because she herself is
a prostitute A careful scrutiny of the Act clearly reveals that it was aimd at the suppression of
commercial sed vice. This\\ as made clear in the case of Ratnamala, In re AIR 1962 Jfadras 31 (33) . What
is punishable under the Act 1s sexual exploitation for commercial purpose. or to make a living thercson .
The provisions found in sectJon 7 & 8 of the Act however make practice of prostitution in or in vicinity of
certain places such as places of public religious worship. educational institutions, hospitals etc. punishable.
The Act deals with not onl! a soCial but also a socio-economic problem Therefore. the provisions of the
legislation are more preventive than punitive. as was opined in flshal Jeet VS. Union of India. ( 1990)3 sec
.liS.
 71

. . b (2"7)
wider, to include any place used for the purpose of sexua1exp 1mtatwn or a use. ~
Sec 9 provides greater punishment to the person who cause, aid or abet the seduc-
tion of women or girls over whom they have authority or who are in their care &
custody for prostitution. <228 l The Act empowers the central government to appoint
trafficking officers who can search without warrant any premises where this offence
is suspected of being committed or being made to carry on. <Zl'~J

Despite all laws & legislations the business of prostitution ts flourishing.

blooming & expanding in its various new manifestations _The girls are lured from
their homes by the promise of a happy marriage, of getting them a decent job or of
reuniting them with their relatives. <230 J Call girls are another variety of prostitutes

227) Ibid, clause (i) of sub section( a) of section 2_

Under this clause.' brothel' includes any home, room (conveyance) or place or any portion of any
house, room. conveyance or place which is used for purpose of sexual exploitation or abuse for the gain of
another person or for the mutual gain of two or more prostitutes_

228) Supra Note 226. section 9

229) Supra Note 226. sections 13 & 15

230) llsha/Jeet vs_ l'nion ofIndia, (1990)3 sec 318

In this case the Supreme Court has taken note of the fact that many lX>Verty stricken children & girls
in the prime of youth are taken to flesh market and forcibly pushed into the flesh trade which is being
carried on in utter violation of all canons of morality. decency & dignity of human kind. The Supreme Court
Division Bench speaking through justice S.Rathnavel Pandian has suggested the following measures for
the purpose of eradicating the evil of prostitution like-

(i) all the State Gov-ernments & the Government of Union territories should direct their concerned law
enforcing authorities to take appropriate & speedy action under the existing laws in eradicating child
prostitution without giving room for any complaint or remissness or culpable indifference

(ii) the Gov•crnment should set up a committee of its own in the line toe\ ol ve welfare programmes to be
implemented for the care. protection & rehabilitation of the young fallen vict1ms.

(iii) all the governments should take steps in providing adequate & rehabilitative homes manned bv well
qualified trained social workers_ psychiatrists and doctors

(i,-) the Advisory Committees set up by the governments should go deep into Devadsi system & give
their valuable advice & suggestions as to \Vhat best the government could do in that regard_
 72

flourishing because, of elite class. Star hotels, bars, parlours etc. have call-girl sys-
tem & sale of flesh goes on over there . The widened sense of tourism has also
provided a ready customer market for prostitutes. Besides abuse of power, eco-
nomic, political & administrative requirement create circumstances in which a woman
is tempted, sometimes forced, to sexual favours for socio - economic gains for
themselves or their family .This new type of prostitution goes unnoticed by the law
enforcement agencies or even by the public. It is not easy to tackle it beacuse of the
involvement of politicians, bureaucrates & the money factors, which has its own
strenght & value for withstanding the blows oflaws.< 231 J

The Medical termination of Pregnancy Act, 1971 should also be mentioned in

this context. The enactment seeks, among other social things, to protect womens
interests. It provides that a pregnancy may be terminated where the length of the
pregnancy does not exceed twenty weeks, if two medical practitioners are of the
opinion that the continuance ofthe pregnancy would involve a risk to the life of the

231) Gourav.Jain v. L'nion ofIndia ,(1997)8 sec 114.

In this case the Supreme court has delivered a judgement offar reaching circumstances. partaining
to the rescue & rehabilitation of prostitution & also their children:
The Court has elaborately dealt with this issue & laid down some guidelines in this regard. like-
(a) counselling. cajoling & coercion are necessary to effectively enforce the provisions of the Immoral
Traffic (Prevention) Act & the Juvenile Justice Act.

(b) it is the duty of the State & all voluntary non-government organisations & public spirited persons
to come to the aid of the prostituties to retrieve them from prostitution. rehabilitate them by lending them
a helping hand to lead life with dignity of person . self-employment through provision of education &
financial support.

(c) women found in the flesh trade should be viewed more as victims of adverse socio-economic
circumstances rather than as offenders in our society. The commercial exploitation of sex may be regarded
as a crime but those trapped in custom-oriented prostitution and gender-oriented prostitution should be
viewed as \ictims of gender- orinted vulnerability

(d) the customary initiation of women m the practice ofDevadasi. Jogins etc. & the resultant pract1ce
of prostitutJon is a crime against humanity violation of human rights & obnoxious to the Constitution &
the Human Rights Act. They are vmd under Article 13 of the Constitution of India and are punishable
under the l;m & the children of fallen women & also child prostitutes should be rescued & rehabilitated

In fact the Supreme Court has excerciscd its extra-ordinary rule making power under Article 145 to
lay down a comprchensiYe scheme to rescue & rehabilitate the ·victims of sexual exploitation due to
societal conditions & children The court deserves accolades for such an initiative. which in fact should
haYe taken by the legislature & executive authorities.
 73

pregnent woman or of grave injury to her physical or mental health. Two explana-
tions are offered in the enactment itself of what constitutes grave injury to the men-
tal health of the pregnant women. <232) The first explanation reads, 'when any pregnancy
is alleged by the pregnant women to have been caused by rape, 1he anguish caused by
such pregnancy shall be presumed to constitute a grave injury to the mental health of
the pregnant women ,' The second explanation states, where a pregnancy occurs as a
result of failure of any device or method used by any married women or her husband
for the purpose of limiting the number of children, the anguish may be presumed to
constitute a grave injury to the mental health of the prlgnant women. It is also spe-
cifically said that, the pregnancy of a woman, who has not attained the age of 18
years cannot be terminated except with the written consent of her guardian Simi-
larly, if the pregnant woman is above 18 years of age and is a lunatic, then also the
written consent of her guardian is essential.<233 ) Therefore in every case of medical
termination of pregnancy, the consent of the pregnant women is absolutely essen-
tial, except only when the pregnant woman is a minor or a major but a lunatic, then
the written consent of the guardian of such woman is essentia1.

The Medical Termination of Pregnancy Act, 1971 has be:en given overriding
effect over the Indian Penal Code, 1860 which deals with the: offences leading to
miscarriage. This Act creats a specific offence where the pregnancy is terminated
by an unregistered medical practitioner. This is an independent offence and shall not
affect the provisions of the Indian Penal Code dealing with the offence of causing
miscariage. By this way this Act of 1971 is a welfare legislation aimed at protecting
the physical and mental health of a pregnant woman & also of the child being
carried in the womb of the mother.

India is one of the countries where the female foeticide & infanticide are on
the rise. With the advent of modem techniques developed in the recent times, it has
become quite possible to ascertain the sex of the child in the womb even in the early
stages of pregnancy. The technique is, used to diagnise the condition & sex of the
faetus is medically called 'amniocentists', which is one of the many pre-natal diag-
nostic techniques. Instead of using this technique for the medical purposes, the

2:12) Section 3 of the Medical Termination of Pregnancy Act. 1971

233) Ibid. clause -l.

 74

medical practitioners started using it only for the purpose of determining the sex of
the child in the womb. In most of the cases, once it is determined that the foetus is a
female, it is miscarried deliberately so as to prevent the birth of a female child. This
advanced medical technique is misused to serve the purpose of female facticide.

Realising the grave implications arising out of the misuse of the pre-natal diag-
nostic technique the Parliament intended to regulate the same only for certain medi-
cal purposes. The government has realised that abuse of technique for determination
of sex of the faetus leading to female foeticide is discriminatory against the female
sex & also affects the dignity & status of women. To check this modem scientific
social-practice the Parliament has passed the Pre-Natal Diagnostic
Techniques(Regulation and Prevention of Misuse) Act, 1994, which came into force
from 1st January, 1996.<234 )This Act is aimed at regulating & preventing the misuse
of sex-determination, not only by individuals but also by any institutioflJorganisation
or company, any contravention of which is madean offence <235 )of a nature of
congnizable, non-bailable & non-compoundable. <236 ) By this way attempt is made by
the state to protect the dignity & status of women & to punish those who attempt to
commit or help commit female infanticide either directly or indirectly.< 237 )There is
also another social legislation called the Orphanages and Other Charitable Homes
(Supervision and Control) Act, 1960. The object of this Act is to regulate the objec-
tives of such institutions & to prescribe a proper standard to which the treatment &
the training of the inmates should conform. Such a measure was found necessary
because, while there are many good & properly managed charitable institutions, there
are many others run with the objective of exploitation as their main & sustaining
inspiration. Different women's organigations have been complaining of such deceit-
ful institution to the concerned authority, but no action is taken yet in this regard.

234) The Pre-Natal Diagnostic Techniques(Regulation and Prevention of Misuse) Act 1994 consists of
34 sections spread over in 8 chapters. The Act regulates the use of such techniques & prevent their
misuse for sex-determination. not only by individuals as Gynaecologists. Medical geneticists and
Paedeatricians but also by any Genetic counselling centre. genetic laboratory or genetic clinic
235) lbici sections 22-28
236) Supra Note 232. section 27
237) Chethna Legal Advisory WCD Society vs. Union of India ( 1998)2 sec 158
In this case Supreme Court took note of the reported National Programme of Action for Eradication
of female Faeticide and Infanticide by the Department of Women and Child Development. Ministry of
Human Resource Development Government oflndia. This programme takes note ofNGO's concerned with
this Jand of work. The Court further observed that. in order to implement the national programme properly.
the assistance of the National Human Rights Commission also may be solicited. This is a welcome devel-
opment as It would go a long way in discouraging the female foeticide and infanticide.
 75

The increasing number of child prostitute who are pushed into this trade
shows the inability of law to curb this evil. The Acts neglect the very root cause of
this evil. Tht~ laws start with the presumption that it is an inevitable evil & cannot be
curbed. Law does not provi4tany punishment to those people who hire minor & young
girls for such purpose. Prostitution has graduated in a survival strategy for a large
number of woman. Therefore, a more human apporach towards them is required.
More effective efforts should be made by government & non-government agencies
to deal with this problem. New opportunities should be created for the children of
the prostitut(!S to prevent them from this profession.

II (v) Legal protection for working \Vomen

One of the very important manifest declaration of the Constitution of India is to

achieve equality of status under Art 39 envisaged in Chapter IV This directive pro-
vides that, the citizens, the men & women, equally have the right to an adequate
means oflive:lihood. The State shall in particular direct its policy towards securing
that (a) there is equal pay for equal work for both men & women & that (b) the health
& strength of workers, men & women are not abused & that citizens are not forced
by economic necessity to enter a vocation unsuited to their age & strength c238 l

In furtherance of these principles suitable provisions have been included

in various labour laws passed from time to time, viz. Workmen's Compensation Act,
1923, the Factories Act, 1948, the Employees' State Insurance Act, 1948, the Mines
Act, enacted in 1952, the Equal Remuneration Act, 1976, the Plantation Labour
(Amendment) Act 1981 & several other statutes.

Today we could see several women working side by sidle with men . Women
constitute a sizeable proportion of workers in industries . Keeping this in view the
court have given very impartial decisions times & again in this regard .

(238). The Constitution of India. Article 39.

 76

In Randhir Singh V. Union ofIndia <239 > the Supreme Court explained that," it is true that the
principle of equal pay for equal work" is not expressly declared by our Constitution to be
fundamental right, but it certainly is a constitutional goal. Article 39 of the Constitution oflndia
proclaims' equal pay for equal work' for both men & women ....... " <240> This principle of equal
pay for equal work has been reiterated by the Supreme Court in several occasions, like Bhagwan
Das V. State of Haryana <241 > & also in R.D.Gupta V.Lt. Governor, Delhi Administration.
1242
i It has also been made clear by the Supreme Court that this principle has to be read in the
light of Article 14 & Art 16 ofthe Constitution.
The Constitution oflndia provides some other principle of State policy
also to elevate the status & position of women. Art 42 of the Constitution provides that the
State shall make provision for securing just & human conditions of work & maternity relief(W)

(239)AIR 1982 SC 877.881

According to section 4 of the Equal Remuneration Act, 1976, •every employer is
under a statutory obligation to pay remuneration at equal rates to men & women employees if they
perform the same work or work ofs similar nature. But at the same time section 16 clearly authorises
restrictions regarding remuneration to be paid by the employer if a declaration under it is made by the
apprapriate government that there shall be a difference in remuneration payable to men & women based
on a factor other than 'sex'. This provision was thoroughly reviewed in Air India Vs. Nargesh Mecrza.
(1981) 4 Sec 335
(240) Ibid
see also. Afackinnon Mackenzie and Co. Vs. Andrey D'Costa (1987)2 Sec 469, AIR SC 1281
In this case th~;~ Supreme Court held that "in deciding whether the work is the same or of a similar
nature a broad apporach should be taken. In doing so the duties actually and generally performed by men
and women and not the oretically possible. should be looked at... "
(241) AIR 1987 SC 2049
(242) AIR 1987 SC 2986
Sec also. Associated Banks officers Association Vs. State Bank of India, ( 1998; 1 .')ec .J2H
In this case the Supreme Court explained the history & evolution of the principle of 'equal
pay for equal \\Ork' The Court apined that. historically. equal pay for equal work has been a slogan of the
women's sex based discrimination in the pay scales of men & women loing same or equal work in the same
organization
(243) Supra Note 238. Article 42
See also. Section 5 of the Maternity Benefit Act, 1961
under clause (I l of sechon 5 every woman is entitled to the payment of maternity benefit at the rate of the
average daily wage for the period of her actual absence that is the period immediately before the date of
delivery and the actual day of delivery & any period immediately after that day. Clause 3 of section 5 san
that. the ma.x1mum period for which any woman is entittled to maternity benefit is 12 weeks of which
maximum 6 '' eeks shaH be before that the date of her expected delivery.
The matcmi ty benifit covers miscarriage & medical termination of pregnancy (sec. 9) also
A lady worker. under this Act is also entitled to payment of medical bonus (sec. 8). leave for illness due to
pregenancy. delivery etc (sec 10). nursing breaks (sec II) etc.
 77

Art 43 again provides that the State shall endeavour to secure., by suitable legislation
or economic organisation or in any other way, to all workers, agricultural, industrial
or otherwise, work, a living wage, condition of work ensuring a decent standard of
life etc. <244 l Therfore. the cumulative effect of these two Artilcles is that the State is
under an obligation to provide by suitable legislation just & human conditions in
various industries & also provide maternity benefits to women. The Factories Act
provides that the women are not required to work normally between 7 p.m. & 6 a.m.
& not in any case between I 0 p.m. & 5 a.m. <245 l Similar provisions also exist under
the Mines Act, 1952 <246 J& the Plantation Act, 1950 <247 l.

Provisions for maternity benefits for women have been incorporated in

the Employees' State Insurance Act, 1948 <248 J & a number of State enactments. The
Employees' State Insurnace Act has been amended in 1961 & provides for sickness,
maternity, disablement & workmans' Compensation.

Therefore, all the legislations, like the Factories Act, 1948, the Planta-
tion Labour Act, 1951, the Mines Act, 1952, the Maternity Benefit Act, 1961, the
Beedi and Cigar Workers (Conditions of Employment) Act, 1966, the Bonded La-
bour System (Abolition) Act, 1976 etc deal with welfare & safety of women em-
ployees in different manners.

According to section 27 of the Factories Act, no woman or child shall be

employed in any part of a factory for pressing cotton in which a cotton opener is at
work. The reason for such a provision appears to safeguard the life & limbs of the
women & child employed <249 l. Section 48 of the same Act imposes a statutory obli-
gation on the employers to provide the creche facility for the children of women
employees <250 J.

(2H) Supra Note 238. Article .p

(245) Section 66 of the Factories Act 1948
(246) Clause (3) of section 46 ofthe Mines Act 1952
( 24 7) Section 25 of the Plantation Act 1950.
(248) Section 50 of the Employees' State Insurnace Act 1948
Regulations 87 to 95 of Employees' State Insurance (Gen.) Regulations. 1950 deal with mater-
nit\ benefit
(249) Supra Note 245. Section 27
(250) Ibid. Section 48.
 78

Under section 46 of the Mines Act, 1952, no woman shall be employed in any part
of a mine which is below the ground c251 l. The Beedi and Ciger workers (Conditions
of Employment) Act also provides member of benefits to the women employees
Under Section 25 of the Act no woman or young person shall be required to work in
any industrial premises execpt between 6 a.m and 7 p.m. The rational behind such
provision appears to be to enable the women & children to attend to demestic or
other works & at the same time to avoid any risk to them which may occure at nighf=' 5 ~'.
This Act also provide for some other welfare measures for the children of female
employees under section 14 <253 l.

lnspite of all these legislations working women are: still in some disad-
vantage position in several indusrtrial sectors. Women agriculhtral workers are at a
worst position. In most of the cases the unorganised women work-force do not get
the equal remuneration to that of their male counterparts, even for the same type of
works, involving same skill & effort. In several industrial sectors alllegeslative guide-
lines are not maintained, like providing for creches, nursing breaks etc. There are
several trade unions, which organise male labourers in a very good percentage. but
do not show their interest in the same manner as regard to the: women labour folk.
The same picture could be seen even in a more bad shape in case of the agricultural
labour force. Thus, while in modem industrial sector male labourers, being mostly
organised, could exploit all the legislative facilities provided for them, the female
workers get exploited in most of the cases by their employers i,n some how or other.
Therefore, there must be some special women's trade union, particularly for women
workers in agricultural field as well as industrial sector, to get the working women
properly organised & to provide them all the benefits given by the laws made in
pursuance of the power conferred on the state by virtue of the constitutional rights,
which sometimes are made fundamental.

(251) Supra note 246. section 46

(252) Section 2:5 of the Becdi and Cigar Workers (Conditions of Employment) Act. 1966.

(53) Ibid Section 14

 79

From the above discussed study of the ameliorative legal provisions re-
lating to women & the actual situation in which women find themselves, it is clear
that something more than legislation is required. There is no dearth of legislative
enactments, but there is a grave lacking in enacting & exploiting those legal provi-
sions & opportunities, due to some untowards circumstances. Since women are less
aware & less well informed in legal matters concerning their rights & in fact have
misconception about their lack of rights, it is easy for men in dispute to escape
responsibilities. Therefore, the first thing to be attempted is to make women aware
of their rights given by our Constitution & by a numerous number of legislative
enactments in their favour. It is also necessary to change the attitudes of both men &
women of society in general, to social objectives sought to be achieved by legisla-
tion. However, a radical change in the attitude of women induced by an awareness of
their rights which are constitutionally guaranted & legally protected will be the first
step in the complex process of transforming the social structure so that women may
enjoy full equality with men in every aspect of life. The life: of an average Indian
women is still governed by customs, habits, prejudices & unwritten codes of con-
duct. Legal complexities combine with social realities make the life of an average
woman inseccure & miserable. Despite the directive principles provided in the Con-
stitution & the increasing number of protective laws, crime against women is con-
tinuing their upward & flourishing trend, pushing more & more women into the list
of victims of rape, curelty, bride-burning, prostitution, wifl;:-beating etc. Various
newspapers & magazines report several such cases, but most of them could not even
get registered due to some social, political & economical obstacles. Though public
interest litigation simplifies legal aid to women to some extent, the opinion of gen-
eral public in favour of legal aid to women is lacking in great extent. Therefore, to
protect the interest, position & status of women, there must be more positive judi-
cial involvement in social, political & economic affairs of women. Through the
legal activism of the judges, there must be much more welfare schemes of govern-
ment specially provided for women & there must be some honest & bold contribu-
tion of voluntary organizations to the welfare of women.

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