Ⅰ MODULE: STATUS OF WOMEN IN INDIAN SOCIETY

Syllabus:
Status of Women in Indian Society:
- Rights of women under the Constitution
- Women reservations in Election local bodies
- Directive principles and Women
- Right of Women to Economic Development

Previous Years Questions:

1. ‘Women Specific’ directive principles. (2 marks, 2014)
2. Women’s representation in local bodies. (2 marks, 2014)
3. Briefly explain the status and position conferred on women under the Indian Constitution. (12 marks, 2014)
4. Write a note on ‘Reservation of women in local bodies.’ (4 marks, 2016)
5. Discuss the status of women in ancient India. (4 marks, 2016)
6. Directive principles of state policy and women. (2 marks, 2017)
7. Examine the constitutional provisions meant for protection of women. (10 marks, 2019)

STATUS OF WOMEN IN INDIAN SOCIETY

• The status of women in almost all parts of the world is discriminatory and prejudicial because of male
dominated societies practical inequality between men and women everywhere.
• In ancient India, women were respected like a mother or sister or daughter. Manu, in his Manu smriti,
enunciated that, “Where women are respected, divine graces adore that home.
• But a woman in fact, not only in a primitive society but also in this modern global world in certain places,
irrespective of rural or urban, rich or poor has been treated as a tool in kitchen room and toy in the hands of
her husband and collaterals.
• The position of women in ancient India has been a very complicated one. It has passed through fluctuations
over the ages. Status of women was high during the Vedic period. It slumped in the post Vedic period. Again,
in the modern period it rose.
• Social, cultural, economical and religious factors paved the way towards discrimination
• Therefore, for understanding the status and position of women in India, it has been classified into 2 heads:
- Position of women in Pre-Independence
- Position of women Post-Independence

POSITION OF WOMEN IN PRE-INDEPENDENCE PERIOD

• The position of women in India before the independence period can be classified in the following heads:
1. Vedic Period
2. Post Vedic Period
3. Medieval Period
4. British Period
1.)VEDIC PERIOD
• It was considered as a glorious period for women on account of freedom and equality.
• In this period, there was no inequality or gender-based discriminations.
• The significant feature of the family during the Vedic period is joint family system, in which parents, sons,
daughters in law and their children live together under the same roof.
• In Vedic times, women were not treated as inferior or subordinate but equal to men in all life matters.
• Women were given good respect and treatment on par with men. They enjoyed full freedom in every walk of
life.
• The examples for this can be seen in Rigveda and Upanishad. In Rigveda, woman was considered to be a
queen in her husband’s house. In Upanishad, wife was regarded as a true companion of the husband.
• Child marriage was unknown and women enjoyed complete freedom even in religious and household matters.
• Therefore, it can be seen that in this period women were seen as a symbol of divinity and prosperity.
• Rights:
- The Vedic period had a Gurukul system and both women and men had the right to education.
- Right to select life partners.
- Right to re-marry.
- Right to undergo thread ceremony. (upanayana ceremony)
• Discriminatory Practices in the Vedic Period:
- Practice of polygamy: Men were allowed to have more than one wife but the same was not in the case of
women.
- Practice of dowry
2.) POST VEDIC PERIOD
• In post-Vedic period, the status of women suffered a serious setback owing to so many restrictions on women’s
freedom by Manu.
• Women’s position became derogatory. The birth of a daughter was not a source of anxiety but a disaster for
the family.
• The socio, economic, cultural and academic decline in the status of a woman can be traced back to the period
of Manu smriti. Manu attempted to set up a male dominant society by increasing the authority of men.
• Many rights for women were curtailed during this period.
• Discriminatory Practices:
- Denied access to education
- Denied to undergo “upanayana ceremony” (thread marriage ceremony)
- Pre-puberty marriage: forced to marry at the age of 9 or 10 years.
- Practice of polygamy became tolerant.
- Forbidden to offer prayers and take pilgrimages.
• Rights:
- Right to property: In spite of all the above social, cultural and other constraints on women’s rights and
freedoms, it is surprising to note the women’s right to property known as “Stridhan” was recognized.

3.) MEDIEVAL PERIOD

• During this period, with the invasions in India by Alexander and Huns, the position of women further lowered.
Women were totally deprived of their basic human rights and were placed behind the veil and treated as
chattels. Female infanticide, child marriage, purdah system, Sati and slavery were the main social evils
affecting the position of women.
• Thus, there was a vast difference between the status of women in the early Vedic period and the subsequent
periods.
• Discriminatory Practices:
- Denied Education
- Denied participation in customary practices.
- Sati became prevalent.
- Polygamy, devadasi system
- Child marriage
- Dowry
4.)BRITISH PERIOD
• Significant changes took place due to the western impact on Indian Socio-cultural patterns
• Equality, Individual secularism, liberty concepts evolved during this period.
• There were two major movements which affected the status of women, they are:
A. Social Reforms Movement
B. Nationalist Movement
➢ Social Reforms Movement:
- Raised the question on equal status of women, abolition of sati, child marriage and prohibition on re-
marriage.
- This movement emerged in the 19th Century.
- Social reformers: Swamy Vivekananda, Dayanand Saraswati, Annie Besent etc. opinioned the need for
the revival of the old Vedic period so as to ensure free access of education to all women on par with men.
➢ Nationalist Movement:
- Emerged in 20th Century.
- Generated confidence among women to raise their voices against the oppressive system.
- In 1927, the All India Women’s Conference was formed.
- Various legislations were enacted to eradicate social evils.
- The most significant legislations relating to the problems faced by the Indian women passed during the
British period were:
o Widows Remarriage Act
o Child Marriage Act
o Hindu Women’s right to property Act
- In addition to these social legislations, there are some welfare legislations such as Factories Act, 1948,
which provides for better working conditions for women employed in industrial establishments, The
Maternity Benefit Act, 1961, which provides for payment of maternity benefits etc.
- The ideas of imparting education in a formal manner emerged during the British period. The first girls’
school was started in Bombay and in 1882, girls were allowed to pursue higher education. Since then,
there has been a continuous progress in the field of education of girls in India.

POSITION OF WOMEN AFTER INDEPENDENCE

• After Independence, the Constitution of India was drafted based on the principles of equality, liberty and social
justice.
• The framers of the constitution realized the need for equal opportunities to women so as to ensure social justice
and to uplift the ideals and goals which are enshrined in the constitution.
• Article 14,15 & 16 prohibit discrimination on the ground of sex and ensure equal opportunities for women.
Similarly, upholding the dignity of women is included as one of the fundamental duties.
• The first World Conference on Women was held at Mexico and 1975 was considered as “International
Women’s Year”. 1976-1985 was considered as “UN decade for Women development.” In 1979, UN adopted
CEDAW (Convention on elimination of all forms of discrimination against women.”
• Therefore, after the independence period, the status of women completely changed. They have been given an
independent status and the recognition of women’s rights and movements took place during this period.
• Thus, the status of woman has been raised in the eyes of law but they are still far from equal to men in every
sphere of life. In spite of the above attempts through various progressive and welfare legislations, inequality,
discrimination, sexual harassment, domestic violence, dowry deaths etc. continue to exist and women have to
continue to fight to withstand these social evils.
 RIGHTS OF WOMEN UNDER THE INDIAN CONSTITUTION

• The UN adopted the UDHR which proclaims that all human beings are born free and have equal right to dignity.
• After Independence, the framers of the constitution realized the unequal status of women and assured women
get equal rights. The Indian Constitution guarantees several rights such as the right to equality in Article 14,
right to life and personal liberty under Article 21 of the Constitution to all its citizens irrespective of gender.
• In view of the Supreme Court as observed in Madhu Krishnan v. State of Bihar, women from half of the
Indian population have always been discriminated against men and have suffered denial and are suffering
discrimination in silence.
• The structural and cultural changes in India have brought into many opportunities for women in the fields of
education, employment and politics.
• Such changes ultimately lead to the reduction in the exploitation of women as they have been granted equal
status as men.
• The improvement in the status of women can be analysed in the light of major changes that have been taken
place since Independence in the areas if legislation, economic sectors, social and cultural life and so on.
• Therefore, the rights available to woman in India can be classified into 2 categories, namely as:
- Constitutional Rights: those rights which are provided in the provisions of the Constitution.
- Legal rights: those which are provided in various acts of the Parliament and State Legislature.
PREAMBLE
• The preamble to the Indian Constitution contains various goals including “the equality of status and
opportunity” to all citizens. This particular goal has been incorporated to give equal rights to the women and
men in terms of the status as well as opportunity.
• Berubari Case: “Preamble is the key to open the minds of the Constitution makers.”
FUNDAMENTAL RIGHTS OF WOMEN
• Constitution of India guarantees all the rights to women which are given to men. Part III of the constitution of
India deals with the fundamental rights. The provisions regarding fundamental rights have been enshrined in
Articles 12 to 35, which are applicable to all the citizens irrespective of sex. The special features of fundamental
rights are as under:
1. Equality of status (14-18)
2. Right to freedom (19-22)
3. Right against exploitation (23-24)
4. Right to freedom of religion (25-28)
5. Cultural and educational rights (29-30)
6. Right to constitutional remedies (32)
• Fundamental rights are also known as basic rights or justifiable rights and are enforceable.
• Article 14, 19 & 21 are considered to be of great importance and are known as the “golden triangle.”
1.) Equality of Status
Article 14:
• Art. 14 of the Indian Constitution runs as follows: "The state shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India." However, equality secured under Article
14 of the constitution of India is not absolute. It is subject to certain reasonable exceptions and classification.
• Article 14 embodies the general principle of equality before the law and prohibits unreasonable discrimination
between persons.
• Article 14 is the epitome of the noble ideals expressed in the Preamble of the Constitution.
• Air India v. Nargesh Mizra : Women shall not be denied employment merely on the ground that she is a
woman.
 Article 15
• It specifically prohibits discrimination on the grounds of sex. According to Article 15(2) women have equal
rights with men, a right to use or access to public places. As per Article 15(3) of the constitution,
discrimination on grounds of religion, race, caste sex and place of birth shall not prevent the state from making
any special provisions for women and children.
• The SC in Government of A.P. v. P.B. Vijay Kumar, has held valid the State service rules providing
preference to women in direct recruitment.
• In Yusuf Abdul Aziz v. State of Bombay, the validity of Section 497 was challenged as violative of Article
15(1). Section 497 of IPC defines the offence of adultery. This section punishes the adulterer for the offence
and not the adulteress. She is not held liable even as an abettor.
• Similarly, in Sowmitri Vishnu v. Union of India, the petitioner challenged the validity of Section 497 IPC on
the ground that it violates Article 14 and 21 because it recognizes only the husband of the adulteress as the
aggrieved party and not the wife of the adulterer. It was held that the law does not violate either Article 14 or
15 on the ground that the offence will be committed only by a man.
• Article 16 provides for equality of opportunity in matters of public employment. Clause (1) of Article 16
provides equality of opportunity in matters relating to employment or appointment to any office under the
State. Clause (2) of Art. 16 lays down specific grounds on which citizens are not to be discriminated against
each other in matters of opportunity and office under the State.
2.) Right to freedom
• Article 19-22 ---Includes: Freedom of speech, protection in respect of conviction for offences, protection of
life and personal liberty, protection against arrest and detention etc.
• Freedom of speech, right to assemble peacefully without arms, right to form associations or unions, right to
move freely throughout India, right to reside and settle in any party of the territory in India and right to practice
any profession, occupation, trade or business are the six freedoms guaranteed under Art. 19(1). These are
subjected to certain restrictions.
• Under Art. 22, protection of life and liberty of every person who may be male or female has been guaranteed
that no person shall be deprived of his or her personal liberty except according to the procedure established by
law. In a case of Maneka Gandhi v. Union of India, the Supreme Court explained the phrase that the personal
liberty used in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the
personal liberty of a man and some of them have been raised to the status of distinct fundamental rights and
given additional protection under Article 19.
3.) Right against exploitation
• Fundamental Right against exploitation has been guaranteed in Articles 23 and 24. According to Article 23 of
the Constitution traffic in human beings whether male or female and his or her forced labour is prohibited.
• The expression “Bonded Labour” denotes “overexploitation of manpower or extraction of labour and services
against the payment of less than the min wages or even without wages.”
• Employment of children is prohibited under Article 24 of the Constitution. On the strength of Article 23(1) of
the Constitution, the legislature has passed the Immoral Traffic (Prevention) Act 1956 which aims at abolishing
the practice of prostitution and other forms of trafficking, including "Devadasi system".
• This act is in pursuance of the International Convention signed at New York in 1950 for the prevention of
immoral traffic.
4.) Right to freedom of religion
• Under Art 25 of the Constitution, all persons are equally entitled to freedom of conscience and the right to
freely profess, practice and propagate religion.
 WOMEN RESERVATIONS IN ELECTION LOCAL BODIES
• Directive Principles of State Policy are in the form of instructions/guidelines to the governments at the center
as well as states. In 1992 by the 73rd and 74th constitutional amendments the reservation of seats for women in
panchayat and in the municipal bodies have been incorporated by inserting Article 243(d) and 243(t).
• According to the mandate of Art. 243 (b) of the constitution, not less than one third of the total number of seats
is to be filled by direct election in every Panchayat for Women.
• These seats may be allotted by rotation to different constituencies in a Panchayat which shall not be less than
one third of total number of seats. The Chairperson in the Panchayat at each level shall be reserved for women.
• Article 243(t) makes similar provisions regarding the reservation of seats in the municipalities. The govt on
the strength of the constitutional power made a successful reservation of 33% seats for women in the local
bodies which is considered as a pioneer legislative endeavour. Reservation of seats for women in local bodies
and in educational institutions cannot be taken to mean as to discrimination on the ground of sex.
• The SC in T. Sudhakar Reddy v. Govt. of Andhra Pradesh, upheld the constitutional validity of proviso to
Section 316(1)(a) of AP cooperative societies Act, 1964and of the rules framed there under relying upon the
mandate of Article 15(3) read with the said rules providing for nomination of two women members by the
registrar of managing committee of the cooperative societies with a right to vote and to participate in the
Committee’s meeting. The SC upheld the validity of these provisions on the ground that Art 15(3) permitted
the making of special provisions for women.
• In Abdul Aziz v. State of Bombay, The Apex Court upheld the validity of the provision under Section 497 of
IPC (adultery) on the ground that the classification was not based on the ground of sex alone. The court relied
upon the mandate of Article 15(3) of the constitution to uphold the validity of the said proviso of the code.
WOMENS RESERVATION FOR EMPLOYMENT
• In employment the reservation of seats for women has been provided by incorporating amendments, changes
in existing statutes and also by-passing special rules. In fact, it is the constitutional obligation of the state to
take statutory measures to bring women into the main stream by providing them service under the Government.
• It is to be noted that on many occasions the validity of the statutes regarding reservation of seats for women in
service under the state has been challenged before the courts, but in most cases, judgement has been pronounced
in favour of the women. ---Union of India v. K.P. Prabhakaram - A.P. v. P.B. Vijay Kumar---

DIRECTIVE PRINCIPLES AND WOMEN

• Directive Principles of State Policy are not enforceable in any court of law they are essential in the governance
of the country and provide for the welfare of the people, including women. Fundamental Rights furnish to
individual rights while the Directive Principles of State Policy supply to social needs. Article 36-51 lay down
various provisions relating to directive principles.
• Part IV of the Constitution containing Articles 38, 39 (a) (d) and (e), 42, 44 and 45 deals with the welfare and
development of women. Article: 39 certain principles of policy to be followed by the state. It is very important
to issue directions for the State policies in favour of women and children.
• The State shall, in particular, direct its policy towards securing -
o That the citizen, men and women equally, have the right to an adequate means of livelihood;
o That the ownership and control of the material resources of the community are so distributed as best to sub
serve the common good;
o That the operation of the economic system does not result in the concentration of wealth and means of
production to the common determent;
o That there is equal pay for equal work for both men and women; (State passed the Equal Remuneration act)
o that the health and strength of workers, men and women, and the tender age of children are not abused and
that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;
• Hussainara Khatoon v. Hom. Sec. State of Bihar, the state is under a duty to promote a lawyer to the poor
person and pay fee to the lawyer as fixed by the court. Nidhya v. University of Madras- equal opportunity.
• Article 42 of the Constitution incorporates a very important provision for the benefit of women. It directs the
State to make provisions for securing just and humane conditions of work and for maternity relief.
 THE CONSTITUTION OF INDIA AND
Ch. WOMEN 43

The Supreme Court has dealt with the validity of the Chotanagpur
Tenancy Act, 1908 of Bihar which denied the right to succession to
Scheduled Tribes woman as violative of right to livelihood under Article
1 of the Constitution The Majority Judgment however upheld the
validity of the legislation on the ground that such enactment was in
accordance with the custom of inheritance/succession of the Scheduled
Tibes. However the dissenting judgment was delivered by Justice K
Ramaswamy who felt that the law made a gender-based discrimination
and that itviolated Articles 15, 16 and 21 of The Constitution of India.
The Majority Judgment does not appear to be in consonance with the
right to equality enshrined in the Constitution. During the course of
his dissenting opinion, Justice K. Ramaswamy had an occasion to
refer to various International Declarations and Conventions along with
the relevant provisions of the Indian Constitution as regards the gender
discrimination in India. The Learned Judge obgerved:
Legislative and executive actions must be conformable to, and for
effectuation of the fundamental rights guaranteed in Part II and the
directive principles enshrined in Part IV and the Preamble of the
Constitution which constitute the conscience of the Constitution.
Covenants of the United Nations add impetus and urgency to eliminate

gender-based obstacles and discrimination. Legislative action.should be

devised suitably to constitute economic empowerment of women in socio-
egalitarian social order. law is an
economic restructure for establishing
instrument of social change as well as the defender of social change. Article
Elimination of all forms of
2(e) of CEDAW (The Vienna Convention on the
Discrimination Against Women which was ratified by the UNO on 18-12
1979 and which was ratified by the Government of India on 19-6-1993)
bones of the Constitution,
enjoins this Court to breathe life into the dry of Human
international conventions and the Protection Rights' Act, to
prevent gender-based discrimination and to effectuate right to life including

empowerment of economic, social and cultural rights",)

These remarks made by the learned Judge highlight

the
plight
7 Che Indian Women and also the necessity of the State action that
sOuldbe taken to rectify the historicalinequity that discriminated
against the women.
*Right of Women to Economic Development-One issue
Conspicuous in the good old days and also in modern times
Madhu Kishwar vs. State of Bihar, [1996) 5 SCC 123.
 INCLUDING
THE LAW
WOMEN

LAW
AND
RELATING
TO
CHILDREN

18y. 4.2
44
matters.Recent

in property
the women in
against.women

isthe
discrimination
highlighted the
right of. India to
respect of pron
Supreme Court has discrimination particulary in
eliminategender based empowermenthe
Court, while referri
economic ofdiscrimina
s0as to atain the
elimination of all forms nination
the United Natin
Declaration on
the Vienna
ratified by, Nations
women (CEDAW) which was ot discuss
against. claborately
and by the Government india' T
Organisation
rights and respect oI women dignity. he
of
the principles af equality observations of the Supreme Courtji the
necessary implication of
the
of Hindu females to executea
dealt with the right
instant case which
acquired or possessed by her, under
property
wllin respect of the Succession Act, 1956 is that the right ofwomen
Section 14 of the Hindu
discrimination particularly in
to eliminate all linds of gender based
is implicit right tormmin& part of Articles 14,15
respect of preperty an
of India.
and 21 of thr C'onstitution
-One of the evils of the
4." Sexual Harassment of Women
moder iociety is the sexual haras sment caused to the women

particularly the working women by their male counterparts

and other
law in India
membersof the society. Till recently,-there
was no

the evil of the sexual harassment.

which was adequate to
combat
In a Public Interest Litigation (PIL) filed before the Supreme Court
the apex court had emphasised the need for an effective legislation
to curb sexual harassment of working
in India women. In Vishaka
US. State
of Rajasthan, a
Division Fenen of Supreme Court speaking
through Chief Justice J.S. Verma (as he
then was) laiddown num
o guidelines to remedy the legislativeVacuum. The court na
defined, having regard the definition of
to
"Women Rights" in Secu
21d) of the Protection of Human
Rights Act,
1993, "sexua
harassment" including any unwelcome sexually deter
as

behaviour./whether directly or by implication) like act

and advances, a demand or request for sexual physical cont Iy-

coloured remarked, showing pornography and favours, sexu
physical, verbal or non-verbal conduct of any.other unwi
. In C.M. Mudaliar
sexual nature
vs. Idol of Sri S.S.
2. on 18-12-1979. Thirukul, (1996) 8 SCC 52
4.
3. on 8-8-1993.
1997) 6 SCC 241.
 THE CONSTITUTION OP INDIA
Ch. WOMEN 45

the in the instant case,

upreme Court referred to the
to Convention
Elimination of All Forms of Discrimination Against
rty on Aand also the violation of gender Women
equality under Article 14
to a n d right to life and personal liberty of women under
on a21 of t he Constitution. As a Article
result of this
judgment any women
vee who is subjected sexual harassment of any kind can
nployee
to

d recourse to initiating criminal proceedings, disciplinary action

and also seek
compensation irom the
guilty employer and other
e persons responsible for the harassment. The unfortunate aspect is

hat the Parliament has had not made any serious effort to enact a
law on sexual harassrment of working women till the passing of the

Sexual Harassment o Women atWorkplace (Prevention, Prohibition

and Redressal) Act, 2013 ie, until the expiry of almost two decades
after the court pointed out this gap. Further, the Criminal Law
(Amendment) Act, 2013 has inserted certain provisions in the Indian
Penal Code like Section 354-dealing with the offence of Sexual
harassment, Section 354-B dealing uith the offence of Assault or use of
Criminal Force to woman with intent to disrobe, Section 354-C dealing
with Voyeurism and Section 354-D dealing with Stalking women. All
theseprovisions are incorporated for punishing those who are guilty
of sexruallyharassing women orcommittingrelated
offences.
The Court has followed its own decision in Apparel Expor
Promotion Council us. A.K. Choprat, and held
that punishnentofremova
ofamale employee from service after he has beenfound guiltyofsexual
harassment of a female colleague is proper and reasonable, on the
ETOundthat sexual harassment of afemale at the place of workisa
O Bender discrimination against woman" and is incompatible
the dignity and honour ofa female and needs to be eliminated.

Dupreme Court has demonstrated great judicial activism

Coming to rescue of the working
women even at the cOSt o
Tesorting
O Judicial activism under Article 141 of the Constitution.
explained in detail in a

importance of the issue, it

the is
Sena
separate chapter.

"AR 1999 sc 625: 1999 (1) Supreme 110.

 Ⅱ MODULE: PERSONAL LAWS AND WOMEN

Syllabus:
Personal Laws and Gender Justice – Uniform Civil Code
Hindu Marriage Act, Adoption and Maintenance Act, 1956, Muslim Women’s (Right on protection of Divorce) Act,
1986.
Previous Year Questions:
- Define Iddat Period. (2 marks, 2014) (2 marks, 2019)
- Uniform Civil code (2 marks, 2014)
- restitution of conjugal rights (2 marks, 2014)
- Can a widowed mother-in-law under the Hindu Law adopt a child in the presence of a widowed daughter-in-law?
(6 marks, 2014)
- Whether a wife’s suit for injunction restraining the husband to marry another girl is maintainable under any of the
provisions of the Hindu Marriage Act, 1955? (6 marks, 2014)
- Explain the law relating to maintenance of Muslim divorced women with reference to decided cases. ( 12 marks,
2014)
- Bigamy (2 marks, 2016)
- ‘X’ a Muslim divorced his wife by pronouncing talak alleging adultery. She wants to file a petition for claiming
maintenance. Advise. (6 marks, 2016)
- ‘X’ a married Hindu woman wants to adopt a child. Is it possible? Give reasons. (6 marks, 2016)
- Discuss how far the right of a divorced Muslim women is protected under the Muslim Women (Protection of right
on divorce) Act, 1986.
- Mock Marriage (2 marks, 2017)
- Right to abortion (2 marks, 2017)
- A married B and have two daughters. B is employed at Mumbai and she visits home off and on only. Their
daughters were looked after by a lady, C who has been living in the same house. A entered into a live-in relationship
with C and she became pregnant. B resigned her job and came to live with husband and children when she came to
know about the issue. C was asked to leave the house. Discuss. (6 marks, 2017)
- A fell in love with B and before marriage he disclosed that he is impotent. Even after that A married B. After two
years she filed a case for divorce. Discuss. (6 marks, 2017)
- X married Y. After three months Y was found to be HIV+. What are the remedies available to X. (6 marks, 2017)
- A married B and she was told by A that he is having the job the job of a sperm donor. Can B file a petition for
divorce. (6 marks, 2017)
- Examine the concept of marriage. Do you think a revisit of the concept is required in the light of emerging issues
relating to same sex marriages, live in relationships and privatization of marriages? (12 marks, 2017)
- Divorce by mutual consent. (2 marks, 2019)
- What are the grounds for decree for dissolution of marriage of a Muslim woman? (4 marks, 2019)
- Claim of maintenance by a Hindu wife. (4 marks, 2019)
- A wife filed petition for nullity of marriage on the ground that her husband was impotent. Denying this the husband
made an application for medical examination of her virginity. This was challenged as violative of her right to
privacy. Decide. (6 marks, 2019)
- X a Hindu husband marriage under Hindu law after converting to Islam without dissolving the first marriage
solemnized a second marriage. Decide the validity of marriage. (6 marks, 2019)
 PERSONAL LAWS
• The Personal law is defined as a law that applies to a certain class or group of people or a particular person, based
on the religions, faith, and culture. It is one of the unique components of Indian legal system. India is a multicultural
society where we find different religious groups have their own faith and belief. Their belief is decided by the sets
of laws. And these laws are made by considering different customs followed by that religion. So in India, different
religious groups have their separate personal laws.
• There are different laws like the:
- Hindu Laws:
The Hindu Marriage Act, 1955
The Hindu Succession Act, 1956
The Hindu minority and Guardianship Act, 1956
The Hindu Adoption and Maintenance Act, 1956
- Muslim Personal Laws:
The Shariat Act, 1937
The Dissolution of Muslim Marriage Act
The Muslim Women (protection of rights on Divorce Act), 1986
- Christian Personal Laws:
Indian Christian Marriage Act, 1989
Indian Divorce Act, 1969
Christian Succession Act, 1921

HINDU PERSONAL LAWS

• Hindus are governed by a law called ‘The Hindu marriage Act, 1995’. Three other important acts were also enacted
during this time, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the
Hindu Adoptions and Maintenance Act, 1956.
1. MARRIAGE
• Position of Hindu women before and after the enactment of HMA, 1955: The position of Hindu women under
Hindu law stands improved now. She has acquired a new status and position in the society. This is the natural incident
of the rule of monogamy. A Hindu now cannot have more than one wife living at a time. Hindu Marriage which was
considered to be a religious duty and a sacrament has undergone a change and it has lost its religious sanctity under
the Hindu Marriage Act. 1955 which came into force on 18th May 1955. The Hindu Marriage Act makes elaborate
provisions regarding conditions for a valid Hindu Marriage, regulation of marriage, legitimacy of children, nullity of
marriage, divorce etc. Most of the provisions of the Hindu Marriage Act are equally applicable to Hindu husband
and wife.
• A few provisions of the said Act are discussed in brief, as under:
➢ Rule of monogamy:
A marriage in violation of Section 5 (i) of Hindu Marriage Act. 1955 is void. A Hindu cannot have more than
one wife. Polygamy has been abolished.
➢ Age of Marriage: Another important ground of marriage is age. However, a marriage performed in violation of
the age requirements is still valid, it is neither void nor voidable. The only special provision applicable to women
is the option of puberty. That is according to Section 13(2) (iv) of Hindu Marriage Act, 1955 the woman if married
when a minor, can repudiate the marriage before she reached 18 years, irrespective of whether the marriage is
consummated or not. Section 18 of the Act provides that anyone who procures a marriage for himself or herself in
contravention of Section 5(iii) of Hindu Marriage Act, 1955 may be punished with simple imprisonment of up to
15 days or fine extending upto Rs. 1,000 or both.
➢ Abolition of Guardianship in Marriage: In view of the child marriage restraint (Amendment) Act, 1976 S. 6 of
the Hindu Marriage Act as before 1978 has been deleted. Now the consent of guardian for the bride is not necessary.
The age of bride should be at least 18 years at the time of marriage, this is a mandatory condition. Thus, when the
 bride has already attained 18 years of age, the taking of consent of guardian would not arise because bride would
be a major.
➢ Ceremonies: In view of Section 7 of the Hindu Marriage Act: There is no discrimination between bridegroom and
bride with regard to performance of ceremonies.
➢ Conditions for a valid marriage: Section 5 of the Hindu Marriage Act,1955, defines that a marriage is valid if
the following conditions are satisfied:
• Either party shouldn’t have any other living spouse at the time of the marriage.
• Neither party is incapable of giving valid consent. The consent would be valid only when the parties
are of sound mind at the time of giving consent.
• Neither party has been subject to the habitual attack of mental disorder.
• The age of both spouses should be legal according to the Marriage Laws, 1976(bridegroom should be
21 years old and bride should be 18 years old).
• Either party should not fall within the degree of prohibited relationship which is provided
under Section 3(g) of the Hindu Marriage Act,1955.
• There should not be the Sapinda relationship between the spouses.
➢ Restitution of conjugal rights: Section 9 of the Act provides restitution of conjugal rights. Section 9 contemplates
that when either the husband or the wife withdraws from the society of the other party without any reasonable
justification then the other can file a petition in the District Court for restitution of conjugal rights. When there is
desertion of spouse, without any reasonable cause, restitution of conjugal rights is a remedy provided to an
aggrieved spouse.
➢ Judicial Seperation: Judicial Separation is a medium under the law to give some time for self-analysis to both the
parties of a disturbed married life. Law gives a chance to both the husband and wife to rethink about the extension
of their relationship while at the same time guiding them to live separately.
The right of judicial separation among Hindu spouses is a statutory right as contemplated under Section 10 of HMA,
Act1955.
▪ It has been provided under Section 10 of the Act that the parties to a marriage can file a decree for judicial
separation on the following grounds:
1) Adultery: if the spouse has voluntary sexual intercourse with any other person other then his/her spouse,
he/she can apply for judicial separation.
2) Cruelty: when any spouse after the marriage is treating another spouse with harsh nature. The courts are left
upon to decide the cruelty.
Russell v. Russell – The court, in this case, stated that any conduct which causes danger to life, limb or health
of the person whether physical or mental is cruel. Within the ambit of Cruelty, it also includes those conduct
which gives rise to fear to the other party that the above-stated danger might happen in the future.
Jayachandra v. Aneel Kaur –The court stated that the conduct done by the other party should be grave and
weighty to conclude that the Petitioner cannot reasonably be expected to live with the Respondent.
3) Desertion: if the party has left the household of husband, without having reasonable ground for a continuous
period of 2 years just before the presentation of the petition.
4) Conversion: if either of the spouses has converted and changed his/her religion, then this ground may apply.
5) Insanity: when after marriage, either of the party becomes/is of unsound mind, the petition of judicial
separation can be filed.
In the case of Ram Narayan v. Rameshwari, The court prescribed that the Petitioner should not only prove that
the other party is suffering from any mental disorder rather it also needs to establish that the condition of the
Respondent is such that the Petitioner cannot be reasonably asked to live with him.
6) Renounced the World: if either of the party has renounced the world by voluntarily entering into a religious
order.
7) Presumed Death: if the spouse has not heard of the living of another, nither his/her close relatives have heard
him/her for a period of seven years.
- There are some other special grounds which the Hindu Marriage Act has specified for only women. These
are some grounds specified below:
 i. Bigamy: if the husband has more then one wife at the time of marriage, the wife can file a petition of judicial
separation and the husband can be booked under section 494, 495 of IPC.
ii. Rape, Sodomym Bestiality: If the husband has in any time was convicted of rape, before or after the
marriage.
iii. Option of puberty: If the woman has married before the age of 15 years and wants to file a petition of
judicial separation, she can do it before turning to the age of 18.
Undoubtedly, these provisions put a Hindu wife in a better legal position compared to the Muslim and
Christian wives, as there are no such special grounds available to the Muslim wife and also to Christian wife.
➢ Inter-caste Marriage: The Hindu Marriage Act, 1955 extends recognition to inter-caste marriage among Hindus
and it is valid; sagotra and sapravara marriages are also allowed under the Act. Such marriages will be valid under
the Special Marriage Act, 1954.

2. DIVORCE
➢ Grounds for Divorce: Section 13 of the Hindu Marriage Act, 1955 provides grounds for seeking decree of divorce
such as:
a) Adultery,
b) Cruelty,
c) Desertion,
d) Change of religion,
e) Incurable unsoundness of mind,
f) Leprosy,
g) Venereal disease,
h) Renunciation of the world,
i) Presumed death,
j) Non-resumption of cohabitation after passing of a decree of judicial separation or restitution of conjugal
rights.
k) Non-compliance with the decree of restitution of conjugal rights.
It is to be noted these are common grounds available to the husband as well as to wife under Section 13(1) of the
Hindu Marriage Act, 1'955.
➢ Special grounds for divorce –
In accordance with Section 13 (2) of the Hindu Marriage Act, there are 4 grounds available to a Hindu wife for the
purpose of obtaining the decree of divorce. These are as under:
i. Remarriage by husband,
ii. Husband guilty of rape, sodomy or bestiality,
iii. Non resumption of co-habitation,
iv. Repudiation of marriage.
➢ Divorce by Mutual Consent:
• As added by the Marriage Laws Act, 1976
• Section 13-B provides for divorce by mutual consent where there is total breakdown of the matrimonial
relationship, which is irretrievable in nature and parties to marriage are living separately for a period of one
year or more on mutual agreement.
• This provision seems to be progressive law because it treats the Hindu wife on equal status with the Hindu husband.
Divorced wife or husband can remarry if the above conditions is satisfied
3. SUCCESSION
➢ Property Rights of Women: As to property of a Hindu woman, it is of the following types:
i. Stridhana: It is an exclusive own property which she gets in marriage as gift from in-laws and others and other
property received from her father, mother, etc. or in succession from her father or other lineal paternal or maternal
ascendants.
ii. Property received by succession from her in-laws: This property formerly before the enforcement of the Hindu
Succession Act. 1956 was her limited estate which she could use and be benefited by it and on her death it was to
 revert to the coparcenary of her husband. Now under Section-14 of the Hindu Succession Act. 1956 the conception
of limited estate has been finished and she becomes full owner of all properties got by her in succession from
anybody.
➢ Position of women before 1956
• In theory, in the ancient times, the woman could hold property but in practice, in comparison to men's holding,
her right to dispose of the property was qualified, the latter considered by the patriarchal set up as necessary, lest
she became too-independent and neglect her marital duties and the management of household affairs. This was
the situation prior to 1937 when there was no codified law.
• The Hindu Women's Right to Property Act, 1937 was the outcome of discontent expressed by a sizeable section
of society against the unsatisfactory affairs of the women's rights to property. Under the said Act a widow was
entitled to a limited interest over the property of her husband - what was to be termed as Hindu widow's estate.
The Act was amended in 1938 to exclude the widow from any interest in agricultural land.
➢ Hindu Succession Act, 1956:
• The Hindu Succession Act, 1956, was the first law to provide a comprehensive system of inheritance among
Hindus—and Jains, Sikhs and Buddhists—and address gender inequalities in the area of inheritance.
• It applies only in the case of intestate succession and to anyone who converts to Hinduism and their children. The
intestate’s children (married or unmarried daughter or son), mother and widow get equal share.
• It has no application in case of testamentary succession (where there is a will).
• The Act confers absolute rights, including unfettered rights of disposal of property, on the female in any property—
movable and immovable—acquired by inheritance, demise, partition, in lieu of maintenance, arrears of
maintenance, gift, property acquired by her own skill, purchase, prescription or in any other manner, and also
stridhana, which includes ornaments, apparel, gift received at the time of wedding, property acquired out of her
savings
➢ Amendments:
In September 2005, the Supreme Court (SC) in a landmark judgment declared that Indian women would have an
equal right to a share in property as men, granting daughters the right to inherit ancestral property along with male
relatives. So, under this Act, the difference between the female and male inheritor has been abolished. Now even
female daughters can claim partition of the ancestral property
• The Amendment Act, 2005 has also omitted section 24 which had disqualified certain widows on remarriage from
succeeding to the property of intestate. Now the widow of a pre-deceased son or the widow of a pre-deceased son
of a pre-deceased son or widow of the brother can inherit the intestate property even if she has remarried.
• Moreover, the Amendment Act, 2005 has added some more heirs to the list of Class I heirs who are daughter’s
daughter’s daughter, daughter’s son’s daughter and son’s daughter’s daughter and daughter’s daughter’s son.
• Section 6 of this Amendment Act (2005): It provides for parity of rights in the coparcenary property among male
and female members of a joint Hindu family. The daughter is entitled to a share in the ancestral property and is a
coparcener as if she had been a son.
➢ Right of Daughters:
• Daughters have equal rights as sons to their parents' property.
• When unmarried, they have rights to shelter in the parental home.
• A married daughter has no right to shelter in her parents' house nor maintenance, charge for her being passed on
to her husband. However, a married daughter has a right of residence in the dwelling house if she is deserted,
divorced or widowed.
• Section 6 of the Hindu Succession Act. 1956 deals with devolution of interest of a male Hindu in coparcenary
property and recognises the rule of Devolution by survivorship among the members of coparcenary. The
retention of the Mitakshara coparcenary property without including the females in it shows that the females
cannot inherit an ancestral property as their male counterparts. But after the amendment of Hindu Succession
Act 2005, in a joint Hindu family governed by the Mitakshara Law, the daughter has a coparcenary right by birth
in coparcenary property, and shall be subject to the same liabilities in respect of such coparcenary property as
that of a son. And any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a
daughter of a coparcener.
 ▪ According to Section 6(1) of the Hindu Succession Act 1956, on and from the commencement of the Hindu
Succession (Amendment) Act. 2005, in a joint Hindu family governed by the Mita kshara Law, the daughter
of a coparcener shall
a) by birth become a coparcener in her own right in the same manner as the son;
b) have the same rights in the coparcenary property as she would have had if she had been a son;
c) be subject to the same liabilities in respect of such coparcenary property as that of a son; and
d) any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of
a coparcener.
▪ According to sub-section (2) of Section 6, any property to which a female Hindu becomes entitled by virtue
of sub-section (1) shall be held by her with the incidence of coparcenary ownership and shall be regarded
as property capable of being disposed of by her by testamentary disposition.
▪ Sub-section (3) of Section 6 of the Act provides that where a Hindu dies after the commencement of the
Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by
the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this
Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a
partition had taken place and –
a) the daughter is allotted the same share as is allotted to a son;
b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been
alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of
such pre-deceased daughter; and
c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child
would have got had he or she been alive at the time of partition, shall be allotted to the child of such
pre-deceased child of the pre-deceased son or a predeceased daughter, as the case may be.
• Section 23 of the Hindu Succession Act, 1956 has been omitted by the Amendment Act, 2005, as a result of which,
at present all daughters, both unmarried and married, are entitled to same rights as sons to reside in and to claim
partition of the parental dwelling home.
➢ Rights of Wife: A married woman has exclusive right over her individual property. Unless she gifts it in part or
wholly to anyone, she is the sole owner and manager of her assets whether earned, inherited or gifted to her.
Regardless of her income the wife is entitled to maintenance, support and shelter from her husband, or if her husband
belongs to a joint family, then from the family. On partition of a joint family estate, she is entitled to a share equal to
any other heir. Similarly, upon the death of her husband, she is entitled to an equal share or his portion, together with
her children and his mother.
➢ Rights of Mothers: Mother is entitled to maintenance by children. She is also a class I heir. All property owned by
her may be disposed by sale, will or gift as she chooses, because she is a full owner of her property under section
14(1) of the Hindu Succession Act 1956. In case she dies intestate, her children, inherit equally, regardless of their
sex under Section 15(1) and 16 of the HSA, 1956.
➢ Case law: Vineeta Sharma v. Rakesh Sharma
The apex court, in this case, held that, if a father died intestate before the amendment date, their daughters also have
equal rights over the property. It stated that the right to equality is conferred upon them by section 6 of the Act, and
thus the daughters cannot be deprived of it. Therefore, this law has a retrospective effect.
This landmark judgment is widely appreciated because ‘the amendment date’ was one of the major issues to conquer
the gender equality movement.
Conclusion: The position of Hindu woman in respect of her property right has undergone unprecedented
transformation from ancient times to the Hindu Succession (Amendment) Act, 2005. There have been several
instances wherein women have been deprived of their rights in the property during inheritance or succession. But
from the various reforms and developments, women have been given equal rights as those to men. The Hindu
Succession Act 1956, was previously in force regarding matters related to property succession/ inheritance. But the
Hindu Succession (Amendment) Act, 2005 brought about the changes favoring equally the women of the society.
After this amendment in 2005, daughters will have the same rights and liabilities as coparcener of a property as that
of a son.
 4. ADOPTION AND MAINTENANCE
❖ MAINTENANCE TO HINDU WOMEN
• Maintenance can be defined as the amount payable from husband to wife if she is not capable to upkeep herself
with the basic necessities such as food, clothing, residence, medical treatment etc. She can claim it from her
husband for herself or their children as well if she does not earn sufficient enough or does not earn at all. There
are different laws governing this right to maintenance such as Hindu Marriage Act, 1955 (HMA), Hindu Adoption
and Maintenance Act, 1956 (HAMA) and Criminal Procedural Code, 1973.
• Section 24: Maintenance Pendente lite and expenses of the proceedings.
• Section 25: Permanent alimony and maintenance.
• Section 24 of the HMA, 1955, talks about Maintenance pendente lite (maintenance pending litigation), under
which a husband or wife does not have the income to support the necessary expenses of the proceedings in court,
the court can order the respondent to pay to the petitioner the expenses of the proceedings, the amount would be
reasonable depending on the income of the petitioner and respondent. The payment must be within 60 days of
service of notice. The maintenance pendente lite can be also given in a proceeding which is there to declare the
marriage null and void.
• It is important to note that a valid marriage is not an essential requirement for maintenance under section 24. Now,
this section is applicable during the period of litigation but once the decree is obtained, it is attached with
maintenance/alimony.
• Section 25 of the HMA, 1955 talks about permanent alimony and maintenance. It is ordered by the court at the
time of the decree or any time subsequent, that the respondent shall pay the applicant for her/his maintenance and
support. A gross sum or a sum monthly/ periodically that should not be exceeding the life of the applicant.
• The sum would be decided keeping in mind the income and property of respondent and petitioner. But such an
order can be modified or rescinded if the party in whose favour the order is passed either gets married or has
sexual intercourse out of wedlock.
• A Hindu wife is also entitled to maintenance under section 18 of HAMA. In some cases, the wife is entitled to
maintenance even if she doesn’t live with her husband if such separate living is justified under any of the following
circumstances:
i. Desertion
ii. Cruelty
iii. Any other living wife of husband
iv. Concubine in the same house
v. Conversion
vi. Any other cause
• But at the same time, the wife would be ineligible for maintenance in some cases like if she is unchaste or converts
her religion from Hinduism.
• Widowed daughter-in-law under section 19 of the HAMA, wherein in case of death of husband her maintenance
would be taken care of by her father-in-law.
But in the case of Animuthu v. Gandhiammal[4](1977), it was stated that the liability of the father-in-law would
come to an end where the widow is remarried or she has obtained a share in the coparcenary properties while
partitioning.
• Apart from maintenance under personal laws, Section 125 of the Code of Criminal Procedure, 1973 also
provides for maintenance inter alia a wife is unable to maintain herself. Women can seek for additional
maintenance apart from the maintenance received by her under any other law as per Section 20(1)(d) of
the Protection of Women from Domestic Violence Act (DV Act), 2005.
❖ ADOPTION BY HINDU WOMEN

• The provisions related to adoption for Hindus is codified under the Hindu Adoption and Maintenance Act, 1956.
• Capacity of a Hindu Female to Adopt: Section 8 of the Hindu Adoption and Maintenance Act, 1956 deals with
the capacity of a Hindu Female to adopt a child. It states three conditions for a female Hindu to be capable to
adopt a child:
 She should be of sound mind.
She should be a major.
She should not married, or if married, whose marriage has been dissolved or whose husband is dead or has
completely and finally renounced the world or has ceased to be a Hindu or is of unsound mind.
• Adoption by Married Hindu Female: A married woman cannot adopt at all during the subsistence of her
marriage even with the consent of her husband. If the Hindu female is married, then either of the following should
condition should be fulfilled to become capable to adopt:
a divorcee or
a widower or
Whose husband has renounced the world or
Whose husband has ceased to be a Hindu or
Whose husband is of unsound mind
• A Hindu female who adopts a child under this act should follow certain conditions for adoption. If a son is being
adopted, the adoptive mother should not have a Hindu son, grandson or great-grandson at the time of adoption.
Similarly, if a daughter is being adopted, the adoptive mother should not have a Hindu daughter, granddaughter,
or great-granddaughter at the time of adoption. Further, if a male child is being adopted by a Hindu female then
the adoptive mother should be at least twenty-one years older than the child. These provisions are stated under
section 11 of the act. In the case of Dashrath Ramchandra Khairnar (1976)79 Bom. L.R. 426, it was held that
even if the husband consented to his wife for the adoption of a son, such adoption will not be valid adoption as it
will be in contradiction with section 8 of the Hindu Adoption and Maintenance Act, 1956.
• Adoption by Unmarried Hindu Female: A Hindu female who is not married can take a boy or girl or both in
adoption subject to Section 11. If she subsequently gets married, her adopted child will be treated as step-son or
step-daughter of her husband. However, she will continue to be the adoptive mother of the adopted child.
• As per Section 7, There is no bar against the husband making an adoption, provided that his wife gives consent.
The wife may not give consent because she is already having a son/daughter, but if she gives consent the adoption
cannot be invalid. Hence there is a gender bias against a married woman in Section 8 as a married man has been
given the permission to adopt with consent of wife while there is no provision by which a married woman can
adopt even with the consent of her husband.
• In Malti Roy Chowdhury v. Sudhindranath Majumdar, the court held that Malti has adopted the child with
the consent of her husband. Under HAMA, it is invalid adoption. Further the court observed that while there is no
denying the fact that the HAMA, has considerably improved the position of women with respect to their right to
adopt, there still exists a bias based on a gender as well as marital status.
• In Dashrath Ramchandra Khairnar, the court held that even though the husband had, by executing an
agreement, consented to his wife’ adopting a son, yet the adoption was held to be invalid.
• From this, we can conclude that, if both husband and wife are ready to adopt with each others consent and if valid
adoption is to be made, it must be made by her husband with her consent.
• Adoption by a wife of void and voidable marriage: If the marriage is void under HMA, the wife is entitled to
adopt without the consent of her husband. Her position is the same as that of an unmarried woman.
• Adoption by a Divorced wife: Divorced wife acquires independent status. Hence, she has the capacity to adopt.
• Adoption by Widow: After adoption of HAMA, the position of a widow has changed. Formerly a widow could
not adopt without the consent and express authority of her deceased husband or in some cases without the consent
of her Sapindus. But the act removes such bar. Now, a widowed women can adopt for herself.
• K Laxmi Narayan Subudhi v. K. Padmanav, The main question raised was whether the widow of a Hindu
could adopt a son while her own son died leaving behind his widow. As per traditional Hindu law, such a widow
is disqualified from making an adoption. Justice Mishra, rejected this view and held that, there is no dispute that
the widow has a statutory right to adopt. Even if the contention that in law the capacity of the widow to adopt to
her husband was extinguished under the old law, by virtue of the right conferred under the Adoption Act, she was
entitled to make the adoption.
 • Widows right to Adopt in Presence of Daughter-in-law:
Ashabai Kate v. Vithal Bhika Nade, In this case a father and son died in quick succession leaving behind their
widows. The widowed daughter-in-law delived a posthumous female child and remarried. The widowed mother-
in-law adopted a son soon after the remarriage of the daughter-in-law, but the same was held invalid. The court
held that, in the presence of the daughter-in-law, the widowed mother-in-law had no right to adopt and this right
did not revive even on the daughter-in-law’s remarriage.
❖ MAINTENANCE TO WOMEN IN LIVE-IN RELATIONSHIP:
• Live-in relationship in simple terms can be explained as a relationship in the nature of marriage where both
partners enjoy individual freedom and live in a shared household without being married to each other. It involves
continuous cohabitation between the parties without any responsibilities or obligations towards one another.
• The Indian law does not provide any rights or obligations on the parties in live relationship. The status of the
children born during such relationship is also unclear and therefore, the court has provided clarification to the
concept of live in relationships through various judgments. The court has liberally professed that any man and
women cohabiting for a long term will be presumed as legally married under the law unless proved contrary.
The right to maintenance in live in relationship is decided by the court in accordance with the Domestic Violence
Act, 2005 and the individual facts of the case.
• Domestic Violence Act, 2005 was enacted to prevent women from different types of violence that happen in a
domestic setup – this act also extends to women who are in a live-in relationship with a male partner by sharing
a same household and live in the idea of marriage but is not equivalent to wife.
Although this act doesn’t explicitly acknowledge live-in relationships, the provision – ‘relationship in the nature
of marriage’ allows interpretation so as to protect basic rights of women and from violence.
In such cases the women are not entitled to various relief measures under the provisions of PWDVA, 2005.
• S. Khushboo vs. Kanniammal & Anr,
The Supreme Court in this case dropped all the charges against the petitioner who was a south Indian actress. The
petitioner was charger under Section 499 of the IPC and it was also claimed that the petitioner endorsed pre-
marital sex and live in relationships. The court held that living together is not illegal in the eyes of law even if it
is considered immoral in the eyes of the conservative Indian society. The court stated that living together is a right
to life and therefore not ‘illegal’.
• Indra Sarma vs. V.K.V.Sarma,
The recent judgment of the Supreme Court has illustrated five categories where the concept of live in
relationships can be considered and proved in the court of law. Following are the categories:
1. Domestic relationship between an adult male and an adult female, both unmarried.
2. Domestic relationship between a married man and an adult unmarried woman, entered knowingly.
3. Domestic relationship between an adult unmarried man and a married woman, entered knowingly. Such
relationship can lead to a conviction under Indian Penal Code for the crime of adultery.
4. Domestic relationship between an unmarried adult female and a married male, entered unknowingly
5. Domestic relationship between same sex partners (gay or lesbian)
The Court stated that a live-in relationship will fall within the expression “relationship in the nature of marriage”
under Section 2(f) of the Protection of women Against Domestic Violence Act,2005 and provided certain
guidelines to get an insight of such relationships. The guidelines are as follows:
a) Duration of relationship – although there is no set duration devised by law, the couple should have been in
a relationship for a reasonable period ‘at any point of time’.
b) Shared household – the couple should live together in a shared household
c) Pooling of resources and finances – the couple should be supporting each other financially or one person
supporting the other by sharing bank accounts, acquiring immovable properties, shares in joint names or
having separately in order to sustain a long-term relationship.
d) Domestic arrangement – when their domestic set-up indicates nature of marriage such as entrusting the
responsibility of the household in the hands of woman to run a home and do household activities such as
cooking, cleaning, maintaining the home, etc.
 e) Sexual relationship – when the couple’s relationship extends to intimate, emotional wellbeing which also
includes procreation of children so as to give emotional support, companionship and also material affection,
caring etc.
f) Having children – the couple’s inclination to have children, their mutual support in raising them is a strong
indication to having a long-term relationship.
g) Socialisation – Socialising in public as a couple and socialising with friends and relatives and others as if
they are husband and wife is a strong indication that their relationship is in the nature of marriage.
h) Conduct of both parties – the intention and conduct of the parties about what their relationship is and to be,
their involvement, their roles and responsibilities determines the nature of their relationship.
• Also, there should be a close analysis of the entire relationship, in other words, all facets of the interpersonal
relationship need to be taken into account, including the individual factors. Not all live-in relationships come
under the purview of section 2(f) of domestic violence act. The Supreme Court mentioned that for a relationship
to be considered as live-in relationship and to be interpreted under this section, some specifications should be
followed:
- The couple must be of legal age to marry
- The couple living together in the idea of marriage or akin to spouses
- They must be qualified to enter into a legal marriage
- They must have cohabited voluntarily and have been living together for a considerable amount of time
• Woman’s right to property in a live in relationship After amendments are made to the Hindu Succession Act,
1956, women are given the same right as that of a son to her parental property and self-acquired property
irrespective of her marital status. After the death of the partner, when the property devolves on her, unless a will
confirms she cannot inherit the property.
• Rights of Children born out of Live- in Relationship:
- Custodial rights of children:
Child custody comes into picture when partners split from a live-in relationship. There are no specific laws to
govern custodial rights of children born out of live-in relationship, so courts treat those cases just like marriage.
As the welfare of the minor is of paramount importance, the Courts will consider the same and award custody
accordingly.
- Child maintenance, legitimacy and inheritance rights:
According to Section 16 of the Hindu Marriage Act, 1955, children born out of wedlock are deemed legitimate
when it comes to inheritance purposes. They have the right to rights to both ancestral and self-acquired
property. Further, the child is also entitled for maintenance under Section 125 of the CrPC while they are
minors and after they attain majority where such child is unable to maintain himself/herself irrespective of
whether the child is legitimate or illegitimate.
• Conclusion: While there are is no separate legislation governing the live-in relationship, the Courts have been
providing legal status of the live – in relationship through its progressive judgements and continue to protect the
rights of women and uphold the dignity. However, there is no separate legislation which lays down the provisions
of live in relationships and provides legality to this concept. The Supreme Court states that living together is a
right to life and therefore it cannot be held illegal. The court has also tried to improve the conditions of the women
and children borne out of live in relationships by defining their status under the Domestic Violence Act, 2005 if
the relationship is proved to be “relationship in the nature of marriage”.
 MUSLIM PERSONAL LAWS
1. MARRIAGE
• All the Muslims in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937.This law deals
with marriage, succession, inheritance and charities among Muslims. The Dissolution of Muslim Marriages Act,
1939 deals with the circumstances in which Muslim women can obtain divorce.
• Muslim marriages are governed by the Islamic law i.e. Shariah
• There are two schools of Islamic law: Sunni Law and Shia Law. Majority of Sunni Muslims in India are governed
by the Hanafi School and Shias by the IthnaAsharia School.
• Essentials of a Valid Muslim Marriage: The essential of a valid muslim marriage are as follows:
- There should be a proposal made by or on behalf of one of the parties to the marriage.
- There should be an acceptance of the proposal by or on behalf of the other party. This is called Nikah.
- The written document of Marriage contract is NikahNama, which is not necessary
- A Muslim marriage requires proposal ‘Ijab’ from one party and acceptance ‘Qubul’ from the other side. This
must be done in one sitting.
- The proposal and acceptance must both be expressed at one meeting orally.
- The parties must be competent i.e. they must be sane and adult, if the parties or one of them is either a minor or
insane, the consent has to be given by the guardian. The consent will be deemed free when it is made at will and
given voluntarily and not under any coercion or fraud. The consent will be deemed free when it is made at will
and given voluntarily and not under any coercion or fraud. For the purpose of marriage, a Child becomes major
on attaining Puberty. If parties to a Muslim Marriage are major, their own consent to marry is essential.
- There must be two witnesses, who must be sane and adult (Not needed in Shia Law). Neither writing nor any
religious ceremony is needed. There can be stipulations in the Nikah.
• Legal Effects of a valid Muslim Marriage: Rights and obligations of the contracting parties arising out of marriage
can be studied under the heads of:
- Mutual Rights and obligations
1. The parties become entitled to inherit one another.
2. Sexual intercourse.
3. Prohibited degrees of relationship are created between the parties.
4. Lawful condition between them to be binding on them.
5. Mutual rights of inheritance are established.
- Rights of husband and Duties of Wife
1. Wife is bound to oberve strict conjugal fidelity.
2. She is bound to allow her husband to have sexual intercourse with her with due regard to her own health,
decency and place.
3. She has to obey hus just, commands. The husband is entitled to exercise the wife’s movements in a
reasonable manner and to exercise matrimonial authority.
4. She has to reside in his house and to observe purdah if necessary.
5. She is bound to observe Iddat on death or divorce.
- Rights of wife and Duties of Husband
1. Entitled to dower.
2. Entitled for maintenance from her husband with due consideration to his privacy.
3. Equal treatment and separate sleeping apartment, in case there are more than one wife.
4. Entitled to get her dower and to refuse cohabitation if it is not paid.
5. She is entitled to visit and be visted by her blood relations within the prohibited degrees at least once a year
and by her parents and children from her former husband with a reasonable frequency.
6. To refuse to live with him if he keeps an idol worshiping concubine in the same house with her and to claim
maintenance notwithstanding such refusary exclude all other persons except her husband,
7. She becomes entitled to the use of the apartment in which she lives.
• Muta Marriage:
Muta may be defined as a temporary union of male and female for specified duration, on payment of some
consideration. As against the permanent or a regular marriage (Nikah), the Muta may be regarded as a temporary
marriage.
Literal meaning of the Arabic word ‘Muta’ is ‘enjoyment’; therefore, it may also be regarded as ‘marriage for
pleasure’. In the earlier days of Islam, when the Arabs had to live away from their homes for a considerably long
period either on account of wars or on trade-journeys, they used to satisfy their sex-desires through prostitutes. In
order to avoid the development of prostitution in the society and to confer legitimacy upon children of such unions,
temporary marriage was recognised and permitted by the Prophet for some time. But later on, when he felt that this
concession was being exploited, he prohibited it absolutely. It is said that Caliph Omar had made an attempt to
suppress and condemn the practice of Muta and tried his best to abolish it from the society. Since then, the Muta form
of marriage has not been in practice under any school of Muslim law except the Ithna Asharia Shia law. Accordingly,
the Muta form of marriage is now not recognised under any school of Muslim law except the Ithna Asharia. However,
the practice of Muta is not very common in India.
Essential conditions for a valid Мutа-marriage - may be summarised as under:
(1) The parties must have attained the age of puberty (fifteen years) and must also possess a sound mind. Guardians
cannot contract Muta of any minor. Minor’s Muta is void even if it has been contracted by marriage-guardian.
(2) The Shia male may contract Muta with any Muslim, Kitabia or a fire- worshipping woman, but he has no right
to contract Muta with the woman of any other religion. Muta with a Hindu woman is void. But, a Shia woman
cannot contract Muta with any non-Muslim.
There is no restriction as to the number of Мutа-wives. One may contract a Muta form of marriage with as many
wives at a time as he likes.
(3) The consent of both the parties must be a free consent.
(4) The formalities of offer and acceptance, which are necessary for a regular marriage, are also essential in the
Muta form of marriage. Muta may be contracted lawfully without the witnesses.
The Mute marriage may be contracted either by the use of the word ‘Muta’ or any other word signifying temporary
marriage.
(5) There must not exist any prohibited relationship between the parties.
(6) The period for which the Muta is being contracted, must be clearly specified. It may be for a day, for a week or
for certain years.
As a matter of fact, the fundamental difference between a Muta and a Nikah is that, in a marriage if its period has
been specified (how so long that period may be) the marriage becomes a Muta, whereas a marriage without any
specific period is always a Nikah. It may be noted that the word ‘Muta’ in itself does not render a marriage
temporary.
If a Muta form of marriage has been contracted but its duration has not been specified, it is regarded as a permanent
marriage (Nikah). In S. A. Hussain v. Rajamma, a Shia male contracted a Muta with Rajamma, a Harijan
converted to Islam. This marriage continued till his death in 1967. After death of her husband, Rajamma inherited
the properties of her husband. But this inheritance was challenged by Hussain (brother of her husband) on the
ground that the marriage between Rajamma and his brother was simply a Мutа-marriage under which a widow is
not entitled to inherit the properties of her husband. A Shia witness confirmed that he had seen the Muta form of
marriage between Habibulla and Rajamma, but he also said that no period was specified at that time. It was held
by the court that a Muta without any specified period is to be treated as a permanent marriage (Nikah). In this
case, although the word Muta was used but the term was not specified, therefore, the marriage was treated as
permanent marriage under which Rajamma was entitled to inherit her husband’s properties.
In Shahzada Qanum v. Fakhr Jahan, the High Court observed that there is no difference between a Muta in
which the period has not been specified and a Muta contracted ‘for life’. It was held by the court that a Muta ‘for
life’ is like a Muta for unspecified period, and it must be treated as a permanent marriage (Nikah).
(7) The dower (consideration) must be specified at the time of the contract. Where the dower has not been fixed, the
Мutа-marriage is void. It may be noted that specification of the dower is necessary for the validity of a Muta form
of marriage but it is not essential for a permanent marriage (Nikah).
 Legal Effects of Muta-Marriage:
a) The cohabitation between the parties is lawful.
b) The children are legitimate and have rights to inherit the properties of both the parents. But, the Muta-husband
and wife have no mutual rights of inheritance.
c) The wife is entitled to get full dower even if the husband does not cohabit for the full term and leaves the wife
before the expiry of the term. But, if the wife leaves the husband, then husband has a right to deduct the amount
of dower proportionate to the unexpired period of the duration.
d) A Мutа-wife is not entitled to get any maintenance from the husband under the Shia law; but she is entitled to
claim maintenance under the Criminal Procedure Code.
e) Where consummation has not taken place, the wife need not observe any Iddat. If the Мutа-marriage terminates
after consummation, the wife is required to undergo an Iddat of two monthly courses. But, where the marriage
dissolves due to death of the husband, the Muta-wife is required to observe an Iddat of four months ten days.
Where the Мutа-wife is pregnant, the period of Iddat extends till delivery of the child.
f) There is no divorce in a Muta form of marriage. The marriage in this form dissolves:
(i) By death of either party, or
(ii) On the expiry of the specified period, or
(iii)The husband leaves the wife before expiry of the term.
Where a husband leaves the wife before the term, it is said that he had made a gift of the unexpired period
in favour of the wife (Hiba-i-Muddat) because in that case he has to pay the full amount of dower. If wife
leaves, her dower is deducted in proportion to the remaining period of the term.
g) In a Muta form of marriage, if it is not known as to when the term expired but the cohabitation continues till the
death of the husband, the proper inference would be that Muta continues throughout the life.
Similar would be the inference where the cohabitation continues after the expiry of a known period. It is
submitted that in such cases a life-long Muta is to be presumed. The issues are legitimate and may inherit the
properties of the parents, but husband or wife may not mutually inherit each other.

2. DISSOULUTION OF MUSLIM MARRIAGE- DIVORCE

• In India, Muslim marriage is a civil contract between a man and a woman.
• Dissolution of marriage can be done at the instance of the husband (talaq), wife (khula) or mutually (mubarat).
Talaq allows a Muslim man to legally divorce his wife by stating the word talaq.
• Some Muslim groups recognize triple talaq (or talaq-i-biddat), stating three talaqs at once and proclaiming instant
divorce as valid method. On 22 August 2017, the Supreme Court of India deemed instant triple talaq
unconstitutional.
• The Muslim Women (Protection of Rights on Marriage) Act, 2019, which declared instant talaq illegal and void,
came into effect retroactively from 19 September 2018 after being given assent by the president of India on 31 July
2019 and women can filed case against it in court.
• Other Muslim groups follow talaq-i-hasan, where the husband pronounces talaqs on three separate instances, each
one at least 1 lunar month apart. If the husband changes his mind after the first or second talaq, or cohabits with his
wife, the divorce is nullified.
❖ MODES OF DIVORCE:
• There are two modes of divorce:
- Non-Judicial Divorce and
- Judicial Divorce
 • Non-judicial Divorce
Divorce which takes place outside the court is called non judicial divorce. Non judicial divorce can be done by
three ways –
1. Divorce by Husband – Husband can give divorce to his wife by following ways:
Talaq:
A Muslim husband can give his wife by pronouncing the word Talaq without stating any reason. It is not necessary
that wife should be present at the time of divorce, but divorce can only be effective from the date when wife will
known about the pronouncement of Talaq. Talaq can be expressed or implied.
In case of Ahmad Kasim v. Khatun Bibi1, it is said that any Mahomedan of sound mind, who has attained puberty,
may divorce his wife whenever he desires without assigning any cause.
Talaq given by husband in state of intoxication is considered as a valid divorce in Shia Law whereas it is prohibited
in Sunni Law.
Under Shia law, there are four conditions for the husband to be considered competent to pronounce a valid Talaq-
(i) the husband should be major;
(ii) the husband should be of a sound mind;
(iii) the husband should have acted out of free will;
(iv) there should be an existence of intention of dissolution of marriage.
Talaq may be classified into two types
(i) Talaq-ul-Sunnat: It is one of the most approved forms of Talaq as it confirms the traditions of Prophet. It is of
two types:
- Talaq-e-ahasan: It can be defined as a single pronouncement of Talaq in the period of ‘tuhr’ or purity. It is
followed by the abstinence from any sexual relationship during the period of tuhr and whole of the Iddat period.
Iddat is the period during which a wife is prohibited from re-marrying after the dissolution of the first marriage.
Talaq-e-Ahsan is considered as the most approved form of Talaq as it is revocable during the period of Iddat.
- Talaq-e-hasan: Talaq Hasan is also considered as an approved form of Talaq but comparatively less than Talaq-
e-ahasan. It consists of three successive pronouncements of Talaq which are made by the husband during three
consecutive periods of Tuhr (purity). During each Tuhr period, no sexual intercourse must have taken place else
the pronouncement made during that period shall not be considered as valid. In a case where the wife has crossed
the age of menstruation, the three pronouncements have to be made at successive intervals of 30 days. When the
last pronouncement has been made, the Talaq becomes final and irrevocable
(ii) Talaq-e-biddat
It is the disapproved form of Talaq. In Talaq-e-biddat, pronouncement of Talaq was done by saying Talaq three
times in a row. Nowadays, it is known as “Triple Talaq”. The only way to reconcile the marriage is through the
practice of nikah halala, which requires the woman to get remarried, consummate the second marriage, get divorced,
observe the three-month Iddat period and return to her husband.
However, in Shayara Bano v. Union of India & Others, The Apex Court struck down the concept of Triple talaq.
The Supreme Court by holding that Triple Talaq is unconstitutional implied that mere utterance of Talaq thrice does
not result in the dissolution of marriage. Any pronouncement of “talaq” by a Muslim husband to his wife in any
manner, spoken or written, will be void and illegal.
Five judges bench of Supreme Court held that-
• Instant Triple Talaq is Unconstitutional and Arbitrary.
• Triple Talaq was held to be violative of Article 14.
• It violated Islamic law while being used as a tool to oppress the women.
• The bench also asked the Central Government to enact a law in next six months to govern marriage and divorce in
the Muslim community.
As per the directions of Supreme Court, Central Government laid a Bill named The Muslim Women (Protection of
Rights on Marriage) Bill, 2019.
The Muslim Women (Protection of Rights on Marriage) Bill, 2019 : After getting passed in both houses of
Parliament, President has given assent to the triple talaq bill passed by Parliament, turning it into a law which makes
 the practice of instant divorce among Muslims a punishable offence. The Act will replace an ordinance promulgated
on February 21, 2019 to the same effect.
2. Divorce by wife:
Wife is entitled to give divorce but power of wife is not absolute. It depends on the will of the husband. The Muslim
Personal Law (Shariat) Application Act, 1937 is applicable to Muslims residing in India. Section 2 of the Act states
the various modes in which a Muslim wife can ask for a divorce. In case of Maharam Ali v. Ayesa Khatun4, it was
held that an agreement between husband and wife by which the husband authorizes the wife to divorce her from
him in the event of his marrying a second wife without her consent is valid. There are three ways through which
wife can give divorce which are as follows:
- Illa:
has no practical importance in India and seen in very rare cases. In Ila, the husband swears by god, not to have sexual
intercourse with his wife for duration of at least four months. After expiry of such period, the marriage is treated as
irrevocably dissolved.
- Zihar:
the husband compares or treated his wife with his mother, sister or any other within a prohibited degree by making
a declaration to this effect. The wife is entitled to refuse cohabitation to the husband if husband does not cohabit
with her within four month. Husband can revokes the declaration by either doing the work of a slave or fasting for
two months or feeding 60 poor persons. If the husband refuses to undergo the above mentioned process, the wife
can approach the court for seeking regular divorce.
- Lian:
define as the husband accusing his wife of committing adultery. It entitled the wife to claim judicial divorce on the
grounds of being falsely charged with committing adultery. In the case of Nurjahan v. Kazim Ali5, it was held that
if the husband is hurt by a bad behaviour of his wife and then hits an allegation of infidelity against her, then the
response of the husband cannot be used as a false charge of adultery and no divorce will be granted.
- Talaq-i-Tafweez:
The husband can delegate power to pronounce talaq to his wife or a third person by agreement, called talaq-e-
tafweez.
It permits the husband to delegate his power of giving Talaq to any third person or to the wife herself. It is called
Talaq-i-Tafweez. This agreement can also be in the favour of the wife who then will have the freedom to take the
divorce when she wants to. For instance, a stipulation permitting the wife to pronounce Talaq if the husband marries
another woman is a valid stipulation. This form of Talaq is considered as one of the most potent weapons in the
hands of a Muslim wife to obtain divorce without court intervention
3. Divorce by mutual consent:
Muslim law recognizes divorce/Talaq by mutual consent of the parties. It is of two kinds:
- Khula:
Khula is a right of divorce purchased by the wife from her husband. It means a divorce at the wife’s instance in lieu
of which she agrees to give some consideration to the husband for her release from the marriage tie. In such case,
the husband shall have the right to sue the wife for payment of the consideration agreed upon. Since Khula takes
place at the wife’s instance, it is not a divorce by mutual consent in the true sense.
- Mubarat:
Mubarat means release. It involves divorce by mutual consent of both parties. Either party may make the offer of
divorce or once an offer has been accepted by the other party, the divorce becomes irrevocable.
In the case of both Khula and Mubarat, the divorce is irrevocable and marital life cannot be resumed by re-
conciliation without a formal re-marriage. In both cases, once the divorce has been effected, the wife is required to
undergo period of Iddat.
• Judicial Divorce – GROUNDS ON WHICH MUSLIM WIFE CAN SEEK A DECREE FOR DIVORCE
The Dissolution of Muslim Marriages Act, 1939 (hereinafter referred as the “Act“) provides certain grounds to a
Muslim wife for obtaining divorce from a court of law. The Act applies to the whole of India and after abrogation
of Article 370 except it is applicable in the state of Jammu and Kashmir also. Section 2 of the Act specifies the
following grounds on which a Muslim wife can obtain a decree for dissolution of the marriage:
Muslim women can seek divorce in a court of law. A woman can ask for divorce in the following circumstances:
- if whereabouts of the husband has not been known for four years
- if the husband has not provided for her maintenance for two years
- if the husband has been sentenced to imprisonment for seven years or more
- if the husband has failed to perform his marital obligations for three years
- if the husband was impotent at the time of marriage and remains impotent
- if the husband has been insane for two years or is suffering from leprosy or virulent venereal disease
- if the husband treats the wife with cruelty, even if absent physical violence
- if the wife has been given in marriage by her father or guardian before she reached age 15
- if the husband associates with women of evil repute or leads an infamous life or attempts to force her to lead
an immoral life
- if the husband disposes of her property or prevents her exercising her legal rights over it
- if the husband obstructs her in the observance of her religious profession or practice
- if he has more than one wife, or does not treat her equitably in accordance with the Quran; or carries out any
other ground recognised as valid for the dissolution of marriages under Muslim law.
In Gul Mohd. Khan v. Hasina, the wife filed a suit for dissolution of marriage on the ground of impotency. The
husband made an application before the court seeking an order for proving his potency. The court allowed him to
prove his potency.
In K.C. Moyin v. Nafeesa, Kerala high court held that a Muslim Woman cannot repudiate her marriage outside the
Act of 1939.
Rights of Muslim Women After Divorce
A divorced woman is entitled to –
• A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her
former husband.
• Where she herself maintains the children born to her before or after her divorce, a reasonable and fair
provision and maintenance to be made and paid by her former husband for a period of two years from the
respective dates of birth of such children.
• An amount equal to the sum of mahr or dower agreed to be paid to her at her time of her marriage or at
any time thereafter according to Muslim law.
• All the properties that are given to her before or at the time of marriage or after her marriage by her
relatives or friends or the husband or any relatives of the husband or his friends.
MODES OF DISSOLUTION OF MARRIAGE BY MUSLIM WOMEN
 Therefore, from the above modes of divorce we can see that, the modes of dissolution of marriage available to a
Muslim women is :

• Muslim women in India can get a divorce from their husband through two customary ways-
One is through their personal Sharia law through Tafweez and Lian.
The other through the statutory provision under Dissolution of Muslim Marriage Act, 1938.
• The husband can delegate power to pronounce talaq to his wife or a third person by agreement, called talaq-e-tafweez.
• Section 5 of the Shariat Act of 1937 concerns Muslim women seeking divorce. Section 5 was subsequently deleted
and replaced by Dissolution of Muslim Marriages Act 1939. Now the grounds are specified under Section 2 of the
Dissolution of Muslim Marriages Act, 1939.
Conclusion: Divorce is considered as the evil of society. all the personal laws also condemn it. But when certain
circumstances arise, separation or divorce is need of the hour and beneficial for both the parties. In Muslim law,
somewhere right of giving divorce is for husband only but after the dissolution act of 1939 took place, it give more
rights to women for divorce.

3. SUCCESSION

• Till the passing of the Shariat Act, 1937 the Muslims in India were governed by customary laws which were
highly unjust and were against women. After the Shariat Act, 1937 Muslims in India came to be governed in their
personal matters, including property rights, by Muslim personal law. But this did not make any major changes in
the property rights of women. Under Muslim Law, men and women have equal rights of inheritance.
• If a Muslim male dies, and his heirs include both male and female, both will inherit the property simultaneously.
But a man’s share of the inheritance is double that of a woman in the same degree of relationship to the deceased.
The quantum of property inherited by a female heir is half of the property given to a male of equal status. It is a
manifest sample of unequal treatment of women under Muslim law.
SUNNI LAW OF INHERITANCE

• In Sunni law the heirs are divided into three groups:

1. Sharers
2. Residuaries, and
3. Distant Kindred
• These groups comprise only of blood relatives with the exception of the surviving spouse of the intestate.
• The property in the first instance is to be distributed among those sharers who are entitled to get the property (as
explained earlier).
• Sharers are the heirs who were earlier excluded but were introduced as heirs by the Quranic revelations. Their
shares are fixed.
• Once the property is distributed among the sharers, and if anything is left, this surplus called the residue goes to
the next category called residuaries.
• When there is no residuary present, the property passes to the third category which comprises of cognates. So
long as any heir in the former two categories is present, the property does not pass to the third category of distant
kindred.
• There are five primary heirs, who if present would not be excluded and would invariably inherit the property.
They are:
1. Surviving Spouse
2. Son
3. Daughter
4. Mother/Father
• The son is residuary but the rules of inheritance are so designed that he would always inherit property.
• Parents also are the primary heirs and inherit along with the children and spouse of the deceased taking their fixed
shares.
• Where the surviving spouse is the widower or the husband of the deceased woman, he takes one-fourth of her
property in presence of a child or the child of a son, and in their absence it is half of the total property.
• In case a man dies, his widow takes one-fourth of his property in absence of a child or child of a son, and in their
absence it is one-eighth, share.
• Where more than one widow is present all of them collectively will take one-fourth or one-eighth as the case may
be and will divide it equally among them.
• A daughter inherits as a sharer only in the absence of a son.
• An only daughter takes one-half share in the property, and if there are two or more daughter’s they would together
take two-third of the property. In the absence of the son she does not inherit as a sharer but becomes a residuary
along with him and takes a share equal to half of his share.
• The Father is a primary heir and has a fixed one-sixth share as a sharer which he inherits along with a child or the
child of the son. In their absence he inherits as a residuary and takes to the extent of the total property in absence
of any other sharer.
• The Mother’s share is fixed as one-sixth in presence of a child or child of a son or when there are two or more
brothers and sisters or even one brother and one sister, irrespective of whether they were related to the deceased
by full blood, consanguine or uterine relationship and her share is enhanced to one-third in the absence of child
or child of a son or where only one brother or sister may or may not be present.
SHIA LAW OF INHERITANCE

• Shias divide the entire group of heirs into sharers and residuaries.
• There is no corresponding category to distant kindred under Shia law.
• There are nine sharers three of them are males and six are females and include the parents, surviving spouse
(husband or wife as the case may be), daughter, full and consanguine sister and uterine brothers and sisters.
• On the death of as Shia female, her husband has a fixed one-fourth share in presence of the lineal descendants and
half share in their absence.
• Under Sunni law, the variation depends upon the presence or absence of children or any child of a son, but under
Shia law, a child or lineal descendant (Including that of the daughter) would affect the share of the surviving
spouse.
• Where the deceased is a male, the widow takes one-eighth as a sharer in presence of lineal descendants and one-
fourth in their absence Both the father and the mother inherit along with the spouse and descendants.
 • The Father inherits as sharer, taking a fixed one-sixth share in presence of lineal descendants and in their absence
inherits as a residuary.
• Mother’s share is one-sixth, in presence of lineal descendants.
• Under Shia law, a daughter in the absence of a son inherits as a sharer.
• If there is only one daughter or only one descendant of such daughter, she will take half of the property and if
there are more than two daughters or their descendants they take two-third of the property.
• With the son, a daughter inherits as a residuary and takes a share that is equal to half of his share.
• The son inherits as residuary.
• Though women are awarded a share, their entitlement is half that of the male heirs in the same category. For
example, the daughter’s share is half that of son’s share.
• Since, the right of inheritance was introduced at the time when women were not independent and were not capable
of looking after their own financial needs, this prescription is the basis of equity rather than equality. A Muslim
man therefore, cannot deprive his wife or daughter of their rightful share either by forming a Hindu undivided
family (HUF) or through a Will which will deprive women of their share in property. This is viewed as a positive
feature unique to Muslim law.
MUSLIM WOMAN AND HER RIGHT TO MEHR
The Quranic right of dower or Mehr defines their right to property. The husband, during marriage, pays (in cash or
as property), or promises to pay a Mehr. A Mehr thus constitutes a woman’s property and she may use it in the way
she wants. It is meant for the future security of the woman and she has the right to ask for a reasonable Mehr.
The Mehr does not belong to a married woman’s parents or guardians and therefore, this cannot be inherited by
others. A husband may give a property entirely to his wife as Mehr. The house or its monetary value is, thus, the
woman’s property alone. If the Mehr is not provided by the man, the woman may even deny marital obligations or
even refuse cohabitation.
Only if a woman transfers her share can her husband, parents or others, claim it lawfully.

THE ROLE OF A WILL IN A MUSLIM’S INHERITANCE RULES

• A will is called ‘wasiyat’ and it can be made in favour of anyone but it should not give away more than one-third
of the testator’s property. Beyond this, the consent of the legal heirs would be taken into account.
• Also, note that in case the wasiyat is made by a Muslim who has married under the Special Marriage Act, 1954,
the wasiyat will be regulated by the provisions of the Indian Succession Act, 1925 and not by the Shariat.
• If the testator was a Muslim when he created the wasiyat but renounced Islam thereafter and was practicing a non-
Islamic faith, his wasiyat will still remain valid.
• If the testator attempted suicide, his wasiyat would be treated as invalid. It is also important to note that both Shia
and Sunni laws treat this matter differently.
• The consent of the legatee to accept the wasiyat is important, prior to conferring the property on him or her. If he
or she does not wish to accept it, the will is invalid. Whether the legatee is competent is also studied. The legatee
can be a minor, follower of a different faith or even mentally challenged – this does not deprive of him or her of
being a beneficiary.
• A wasiyat may be oral, written or even made through gestures, in case it has been made by an ailing person.
4. ADOPTION AND MAINTENANCE
▪ MAINTENANCE
• The concept of Maintenance was introduced to provide support to those people who are not capable to maintain
themselves. It is basically provided to the spouse who is not independent and is dependent on the other spouse. The
principle of maintenance includes financial support, means of livelihood and educational facilities.
• The right to claim maintenance under general law means the right of any person in a relationship incapable of
maintaining oneself and dependent on someone to seek resources for sustenance from that person. However, the
nature and scope of maintenance or nafaqa with respect to Muslim women in particular varies under different laws.
• It can be said to be jointly covered by –
 - Older Muslim Personal Laws
- Criminal Procedure Code (CrPC), Section 125
- The new Muslim Women (Protection Of Rights On Divorce) Act, 1986
• Under the Muslim law of Maintenance (nafaqa) the obligation of a Muslim arises only if the claimant has no means
or property to maintain himself or herself.
• Under Muslim law the following persons are entitled to maintenance:
- Wife
- Young children
- The necessitous parents
- Other necessitous relations within the prohibited degrees.
• The quantum of maintenance is not prescribed under any matrimonial statute. It is decided as per the discretion of
court depending upon the condition of husband and wife. Under the Shia Law, the quantum of maintenance is decided
by taking into consideration the requirements of the wife. Under Shafei Law, the quantum of maintenance is
determined by the post of the husband.
❖ MAINTENANCE TO MUSLIM WIFE UNDER MUSLIM LAW

• The wife’s right to be maintained by her husband is absolute. A Muslim husband is bound to maintain his wife of a
valid marriage even if there is no agreement in this regard.
• A Muslim husband is not bound to maintain the wife of void or irregular marriage except when the marriage is
irregular for want of witnesses.
• Wife’s right of maintenance is a debt against the husband. It is an independent right.
• The husband’s obligation to maintain his wife exists only so long as the wife remains faithful and obeys all his
reasonable orders i.e. discharge her own matrimonial duties.
• If the consummation is not possible due to wife’s own ill health or old age or faulty organ she is not guilty of
transgressing her matrimonial obligations towards the husband and may lawfully claim maintenance from the
husband.
• The wife could also claim future maintenance on account to pre-nuptial agreement viz. sustainable maintenance in
the event of ill-treatment.
• Arrears of maintenance cannot be claimed by any relative other than a wife.
• The right of the wife to maintenance exists in spite of the fact that she can maintain herself out of her own property.
❖ MAINTENANCE OF WIFE UNDER CRIMINAL PROCEDURE CODE, 1973

• The refusal of the wife to perform her matrimonial obligation towards husband and her claim of maintenance is to
be examined not only under Muslim personal law but also under the Criminal Procedure Code.
• The claim of wife for the maintenance under this act is an independent statutory right not affected by her personal
law.
• A Muslim wife, who lives separately due to her husband’s second marriage, is entitled to claim maintenance
allowance under the provisions of Criminal Procedure Code, 1973.
• In Begum Subanu alias Saira Banu v. A.M Abdool Gafoor, the Supreme Court held that irrespective of a Muslim
husband’s right to contract a second marriage, his first wife would be entitled to claim maintenance. A Muslim wife,
whose husband neglects to maintain her without any lawful justification, is entitled to file a suit for maintenance in
a civil court under her personal law. She is also entitled to enforce her right under the CrPc 1973.
• Where a Muslim wife is in urgent need, she may apply for an order of maintenance under section 125 of the Criminal
Procedure Code; 1973. A magistrate of the first class may then order the husband to provide monthly allowance not
exceeding five hundred rupees, for the maintenance of his wife.
❖ MAINTENANCE OF THE DIVORCED WOMAN

• It can be discussed under the following heads

- Muslim personal law
- Section 125 Criminal Procedure Code 1973 and
- The Muslim Women (Protection of Rights on Divorce) Act,1986
 ❖ MUSLIM PERSONAL LAW
• A divorced wife can claim maintenance from the former husband only for that period during which she is observing
her Iddat.
• The duration of Iddat on divorce is three menstruation periods or, if pregnant, till delivery of the child.
• The former husband’s liability extends only up to the period of iddat, not beyond that.
❖ SECTION 125 OF THE CRIMINAL PROCEDURE CODE 1973
• The term ‘wife’ includes a ‘divorced wife’.
• Section 125 is applicable also to a divorced Muslim wife.
• Section 127(3) provides that the order of maintenance in favour of a divorced wife shall be cancelled, and such
woman shall not be entitled to maintenance under the following circumstances:
- Where the divorced woman has remarried
- Where such woman has received the whole sum due to her on divorce under any customary or personal law, and
- Where the woman, after obtaining a divorce from her husband, has voluntarily surrendered the right to
maintenance.
• In Mohd. Ahmad Khan v. Shah Bano Begum, the Supreme Court reiterated its stand and held that a divorced
Muslim woman, so long as she has not remarried, is a wife for the purpose of section 125, and is entitled to
maintenance from her former husband.
❖ MAINTENANCE UNDER THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE)
ACT,1986
The Muslim Women (Protection of Rights on Divorce) Act 1986, is the culmination of the controversy created by
the Shah Bano Judgment. This Act was enacted to negative the law laid-down in the case, in so far as divorced
Muslim women's claim of maintenance beyond lddat period is concerned. The main effect of this Act is that a
divorced Muslim woman can claim maintenance from her former husband only when the spouses agree and prefer
to be governed by the provisions of section 125 to 128 of Code of Criminal Procedure 1973, even beyond the ldda
period. Or else the husband will not be liable to maintain his divorced wife beyond the Jddat period.
This Act is applicable to every divorced woman who has married according to Muslim law and has been divorced
by or obtained divorce from her husband under provisions of Muslim law. The dissolution of marriage may take
place in any form such as Talaq, lla, Zihar, Khula or Mubarat and it may also be under the Dissolution of Muslim
Marriages Act 1939. Literally interpreted, according to Section2 and 3 of the Act, the divorced woman is entitled to
a reasonable and fair maintenance during lddat period only.

• Maintenance during the Iddat: The divorced woman is entitled to a reasonable and fair amount of maintenance for
herself during the Iddat period from her former husband
• Maintenance after the Iddat:
- Section 4 of the Act, deals with the maintenance of the divorced woman who is unable to maintain herself and
remains unmarried after the Iddat period. If the divorced Muslim woman has any children having means to
maintain they are unable to maintain her. However, if they are absent or incapable, the parents of divorced woman
should maintain er and if even the parents could not pay the same, she is entitled her get maintenance from her
such relatives who would inherit her properties upon her death l she possessed any property. In the absence of any
such relative or where they have no means then the ultimate liability is of the Waki Board of the State where she
resides.
- Thus, it is clear that the Act has nullified the effect of the Supreme Court Judgment in Shah Bano's case. However,
it is gratifying to note that the Act gives an option to a divorced Muslim woman and her former husband to be
governed by Section 125 to 128 of Code of Criminal Procedure Code.
- According to Section 5 of the Act if on the date of the first hearing of the proceedings under Section 3 which deals
with the payment of 'Mahr' or other properties of Muslim woman at the time of divorced, if the divorce woman
and her former husband depose in the form of affidavit or declare in writing to the effect that they would prefer
to be governed by the provisions of Code of Criminal Procedure in this regard, such Code is applicable to such
maintenance.
 - The divorced woman who remains unmarried after the Iddat, and is unable to maintain herself, is entitled to get
maintenance from her such relatives who would inherit her properties upon her death. In the absence of any such
relatives or, where they have no sufficient means, then ultimately the liability to maintain her is cast upon the
Waqf Board of the state in which she resides.
• The Muslim Women (Protection of Rights on Divorce) Act,1986 has now made the operation of section 125-128 of
the Criminal Procedure Code optional in respect of Muslim woman.
• In Danial Latifi and others v. Union Of India all the writ petitioners challenging the constitutional validity of the
Muslim Women Act 1986 were clubbed together in this P.I.L. under article 32 of the constitution. The writ petition
was dismissed by the Supreme Court challenging the validity of Muslim Women Act 1986. The Court upheld the
validity of the Act.
• In A. Yousuf v. Sowramma it was held by the court that whatever the cause may be the wife is entitled to a decree
for the dissolution of her marriage if the husband fails to maintain her for a period of two years, even though the wife
may have contributed towards the failure of the maintenance by her husband.
While upholding the validity of the Act, we may sum up our 6 in conclusions:
(1) a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which
obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the lddat
period must be made by the husband within the lddat period in terms of Section 3(1)(a) of the Act.
(2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is
not confined to lddat period.
(3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after lddat period can
proceed a provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion
to the properties which the inherit on her death according to Muslim law from such divorce woman including
her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct State
Wakf Board established under the Act to pay such maintenance.
(4) The provisions of the Act do not offend Articles 14, 15 a 21 of the Constitution of India.
In order to secure the future of such Muslim wives divorce by Triple Talaq, since declared as unconstitutional, the
Parliament has enacted the Muslim Women (Protection of Rights on Marriage Act, 2019. Therefore, any Muslim
wife who is divorced by her husband through the illegal method of Triple Talaq is entitled to approach criminal
court seeking subsistence allowance from such former husband.
▪ ADOPTION UNDER MUSLIM LAW
• Islam does not recognize adoption.
• Acknowledgement of paternity under Muslim Law is the nearest approach to adoption.
• However a Muslim can take the Guardianship of a Child by obtaining permission from the court under the Guardians
and Wards Act, 1890
• Under section 41 of Juvenile Justice (Care and Protection of Children) Act, 2000 adoption of such children as are
orphaned, abandoned, or surrendered through institutional and non institutional methods can be done by anyone.
The Juvenile Justice (Care and Protection of Children) Act 2015 also permits every person to adopt a child as per
the provisions of the Act.
 CHRISTIAN PERSONAL LAW
❖ MARRIAGE
• All Christians are governed by The Christian Marriage Act, 1872 and the Divorce Act 1869 as amended in
2001 by the Indian Divorce (amendment) Act 2001.
• All persons practicing the Christian religion such as Roman catholic or Protestants can get married under
this law.
• An Indian Christian is an Indian converted to Christianity and includes his or her descendants
• Men and Women of different religion cannot get married under this law.
• Under Christian law marriage may be solemnized appointed by the church to solemnize the marriage
according to the customs of Christians or by a marriage registrar.
• A marriage registrar is appointed by the State Government
• A notice in writing is given to the Registrar by one of the persons getting married.
• The marriage is to be solemnized in the presence of two witnesses and one of the parties has to take an
oath that there is no lawful objection to the marriage.
Conditions for a Valid Marriage
• Neither the husband nor the wife have a living spouse at the time of marriage.
• The age of the girl should be at least 18 years of age up to (21 years father’s consent is necessary)
• The age of the boy should be at lest 21 years of age.
• Both must be of sound mind at the time of marriage.
• Indian Divorce (amendment) Act, 2001: Grounds of divorce after the amendment of section 10 of the
Divorce Act 1869.
o Conversion to another religion
o Adultery
o Cruelty
o Desertion for at least two years.
o Incurable Insanity for more than two years.
o Incurable and virulent form of leprosy for more than two years.
o Willful refusal to consummate the marriage.
o Not being heard for seven years.
o Venereal disease in communicable form for two years.
o Failure to obey the order for restitution of conjugal rights.
• Wife’s additional grounds if the husband is guilty of:
o Rape
o Sodomy
o Bestiality
• Section 10-A deals with dissolution of marriage by mutual consent
• Section 11 deals with adulterer to be co-respondent
• Section 18 deals with petition for decree of nullity
• Grounds of decree- section 19.
o That the respondent was impotent at the time of the marriage and at the time of the institution of the
suit.
o That the parties are within the prohibited degrees of consanguinity (whether natural or legal) or
affinity.
o That either party was a lunatic or idiot at the time of the marriage.
o That the former husband or wife of either party was living at the time of the marriage, and the
marriage with such former husband or wife was then in force.
o Nothing in this section shall affect the jurisdiction of the high court to make decrees of nullity of
marriage on the ground that the consent of either party was obtained by force or fraud.
 ❖ SUCCESSION
Right to Property Under Christian Law
• As far as the Christian women are concerned the community and the church with its strong patriarchal
tradition compels women to remain subjugate.
• Women started claiming a share of the father’s property under section 37 of The Indian Succession Act
1925.
• A Christian widow is entitled to 1/3rd of her husband’s property.
• All children whether son or daughter gets the equal share in the remaining property.
• Even a married woman has equal right in the property.
• In case a daughter or a son is dead his/her children would get their parents share in the property.
• The child in the womb also gets the equal share in the property.
• Mother and Father are not entitled to inherit the property of a Son or a Daughter if the Son or Daughter is
survived by his/ her own children or grandchildren.

❖ GUARDIANSHIP
Guardianship Under Christian Law
• The Guardians and Wards Act, 1890 which resides in the secular realm also, may be resorted to.
• Guardians not to be appointed by the court in certain cases
• Duties of Guardian of the person:
o Custody of the wards and
o Support of health and
o Support of education
❖ ADOPTION
Adoption Under Christian Law
• Christians have no personal law of adoption
• An adoption can take place from an orphanage by obtaining permission from the court under the Guardians
and Wards Act, 1890
• Besides, such a child does not have legal right of inheritance. The general law relating to Guardian and
Ward is contained in the Guardians and Wards Act, 1890. It clearly lays down that father’s right is primary
and no other person can be appointed unless the father is found unfit.
• The court must take into consideration the welfare of the child while appointing a guardian under the act.
• Under section 41 of Juvenile Justice (Care and Protection of Children) Act, 2000 adoption of such children
as are orphaned, abandoned or surrendered through institutional and non-institutional methods can be done
by anyone.
• Now the new law Juvenile Justice (Care and protection of Children) Act 2015 has a separate chapter
dealing with adoption. Any person has the Right to adopt as per this Act.
❖ MAINTENANCE
Maintenance Under Christian Law
• Under section 37 of the Indian Divorced Act 1869, the wife can seek permanent alimony after dissolution
of Marriage or decree of Judicial Separation.
• Under section 125 of CrPC a Christian woman can also claim maintenance from her husband as explained
earlier too.
 PARSI LAWS
The Parsi Marriage and Divorce Act, 1936
• Parsi wedding has to be solemnized as per the “Ashirvad” tradition in the presence of a Parsi Priest or Prsi
Dastur or Mobed under the Parsi Marriage and Divorce Act, 1936.
• 2 Witnesses should be present at the time of the marriage.
• The Parsi Priest/Dastur / Mobed who conducts the wedding should issue a wedding certificate signed by the
priest, the couple and two witnesses.
• All Parsi/Irani/Zoroastrian weddings have to be registered with the marriage registrar.
• Only Parsi men over the age of 21 and Parsi women over the age of 18 can marry.
• Marriage is not allowed between blood relatives
• Bigamy and Polygamy are not allowed
• The Act also states dos and don’ts for the Parsi Priest/dastur/mobed, couple and the witnesses.
• The Act also covers Divorce between Parsi couples.
Grounds for Divorce
• That the marriage has not been consummated within one year after its solemnization owing to the willful
refusal of the defendant.
• Insanity
• That the defendant was at the time of marriage pregnant by some other person other than the plaintiff.
• Adultery
• Cruelty
• That the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the
plaintiff with venereal disease or, where the defendant is the husband, has compelled the wife to herself to
prostitution.
• Imprisonment for seven years or more.
• Desertion for at least two years
• Separation for one year
• Conversion to another religion
• Nullity of marriage (section 11) and Void ability of Marriage (section 12)
• Any marriage can be voidable and can be annulled on the following grounds:
o The marriage has not been consummated due to impotency,
o Contravention of the valid consent
o Mental illness
o Respondent at the time of the marriage was pregnant by someone other than the petitioner.
o The spouse could contest or agree to the divorce. If he contests it then the length of the process would
depend on the facts of the case.
o In case of mutual consent the spouses need to prove that they have been staying apart for more than
a one year.
• Once the proceedings are over the court gives a period of six months to reconsider the decision to divorce.
Parsi Law on Right to Property
• Parsi’s are governed by the Indian Succession Act, 1925.
• The property rights of the Parsis are quite gender just.
• Basically, a Parsi widow and all her children get equal shares in property of the intestate while each parent,
both father and mother get half of the share of each child.
 MAINTENANCE UNDER PERSONAL LAWS: HINDU LAW, CHRISTIAN LAW AND PARSI LAW
Category Hindu Law
Section 24 and 25 of the Sections 36 to 38 of
Relevant Provisions Hindu Marriage Act, the Divorce Act, 1869
1955 ("HMA"). ("DA").
Under Section 24, both a
husband and a wife
having no independent
income to support
themselves, can apply to
the Court for interim
Interim Maintenance maintenance.
(Maintenance pendente The Court can direct the
lite) respondent to bear the
expenses of the
proceedings and provide
such monthly sums to the
applicant, as it deems fit,
during the course of the
proceedings.
Under Section 25, the
Court can pass an order,
at time of passing a
decree in any proceeding
commenced under the
HMA or at any time
subsequent thereto,
granting permanent
maintenance to a Court under Section 37
husband or a wife for his
Permanent Maintenance
or her support on an
application being made
by him or her
Such permanent
maintenance can be in
the form of a gross sum
or a monthly amount or a
periodical amount for a
term not exceeding the
life of the applicant.
Section 18 of the Hindu
Adoption and
Maintenance Act, 1956
("HA&MA") entitles a
Hindu wife to claim
Miscellaneous
maintenance from her
husband during her
lifetime whilst living
separately from her
husband.
Christian Law Parsi Law
Section 39 to 41 of the Parsi Marriage
and Divorce Act, 1936 ("PMDA").
Under Section 36, a
Christian wife can Under Section 39 the Court can grant
claim interim interim maintenance to a husband or a
maintenance. wife having no independent income to
The Court can direct support themselves.
the husband to bear the The Court can direct the respondent to
expenses of the bear the expenses of the proceedings
proceedings and and provide such weekly or monthly
provide such alimony sums to the applicant, as it deems fit,
pending the suit as it during the course of the proceedings.
deems just.
An order directing the
Under Section 40, the Court can pass
husband to pay
an order, at time of passing a decree in
permanent
any proceeding commenced under the
maintenance to his wife
PMDA or at any time subsequent
can be passed by the
thereto, granting permanent
maintenance to a husband or a wife for
Such permanent
his or her support on an application
maintenance can be in
being made by him or her8.
the form of a gross sum,
Such permanent maintenance may be
or an annual sum or
in the form of a gross sum or a monthly
monthly or weekly
amount or a periodical amount for a
sums for any term not
term not exceeding the life of the
exceeding the life of the
applicant.
applicant.
 UNIFORM CIVIL CODE TOWARDS GENDER JUSTICE
• Uniform civil code is a concept where a common code is applicable to all the communities not withstanding their
religion, race, caste, creed etc. Under Article 44 of the constitution under the chapter of Directive Principles of State
Policy, it is mentioned that, “the state shall endevour to secure for the citizens a Uniform Civil Code through the
territory of India.” The provisions has been kept under Directive Principles of State policy, because it is a directive
which the Constituent Assembly foresaw was not implementable at the time of our indepence. Uniform Civil Code
in India is a term referring the concept of getting a common civil law code in India.
• The implementation of a uniform civil code and the issue of gender justice, these two are closely connected to each
other in Indian socio legal perspective. Notwithstanding its need and importance, the state’s politico-legal standpoint
about its implementation attracts in-depth legal inquiry.
• On the other dimension, the basic issue of ensuring justice and equality to women is getting trapped in many other
contemporary issues like religion, secularism, and freedom. However, one cannot flounce the main issue under the
disguise and harp on other relatively connected issues day in and day out. Gender issues, in this regard need to be
addressed very seriously. This paper is an attempt to co-relate the question of gender justice and equality to the issue
of the adoption of uniform civil code throughout the territory of India.
• Women empowerment in core areas like social status, gender bias, health, security and empowerment are of urgent
necessity. Article 44 expects from the State to secure a Uniform Civil Code for all citizens of India. There is no
Uniform Civil Code in India but a Uniform Criminal Code exists. The Criminal law is equally applicable to all
citizens irrespective of their religious affiliation. However, in the case of civil law particularly in the matter of
personal laws there is no uniformity.
• The law is relating to marriage, divorce, maintenance, guardianship and succession governing the Hindus, Muslims
and Christians etc., is different and varies from one religion to other. This is the time to discuss all the personal law
of every community with the various judgments of the Supreme Court of India where the apex court has suggested
to the Central Government for the enactment of a Uniform Civil Code.
• A uniform civil code will help the cause of national integration. It is the humble opinion that a Uniform or common
civil code is possible only when the governments consider the gender justice as the ultimate goal.
• There are different laws like the Hindu Marriage Act 1955; the Hindu Succession Act 1956; the Hindu Minority and
Guardianship Act 1956, the Hindu Adoption and Maintenance Act 1956; governing the personal matters of Hindus.
The Shariat Act 1937, The Dissolution of Muslim Marriage Act 1939 and the Muslim Women (protection of Rights
on Divorce) Act 1986 etc., which are based on the tenets of Holy Quran, govern the personal matters of Muslims.
Similarly, the Indian Christians are governed by the Indian Christian Marriage Act 1989, the Indian Divorce Act
1969 and the Cochin Christian Succession Act 1921 etc. Parsis are governed by a different set of laws. Thus, it is
clear that there is no uniformity in all personal laws as they confer unequal rights depending on the religion and the
gender.
MERITS OF UNIFORM CIVIL CODE
- It helps the world and accelerate national integrity.
- Overlapping provisions of law could be avoided
- Litigation due to personal law would decrease.
PROS AND CONS OF UNIFORM CIVIL CODE
Pros:
- Provide equal status to all citizens.
- Provides gender parity.
- To support the national integrity or integration.
- Overlapping provisions would be wiped out.
Cons:
- Practical difficulties due to diversity in India
- Perception of UCC as encroachment on religious matters
- Interference of State in personal matters.
- Time is not yet suitable for the enactment.
- It is a sensitive and tough task to implement.
❖ PERSONAL LAWS AND DISCRIMINATION AGAINST WOMEN

The global problem of the present day is gender injustice or gender inequality. There has been discrimination
between men and women , male domination and suppression of women since pre-historical times. Women, who
constitute half of the worlds population, work 2/3rd of the worlds working hours and earns just 1/10th of the worlds
property and remain victims of inequality and injustice.
Consequently to these discriminatory practices, social, economic and cultural resulting in cumulative inequalities in
both the developed and developing countries, the ideas and goals enshrined in various social legislation and
international conventions envisaging women’s equality/ welfare remain unjustified.
The law relating to marriage, divorce, maintenance, guardianship and succession governing the Hindus, Muslims
and Christians is different and varies from one religion to another.
On a clear analysis of all these personal laws, it becomes obvious that the women have been conferred on inferior
status in most of the personal matters compared to the men. The following examples justify the statement.
(read personal laws of Hindu, Muslim, Christian and Parsi)

Thus it is clear that there is no uniformity in all personal laws as they confer unequal rights in all personal laws as
they confer unequal rights depdning on the religion and the gender. A uniform civil code will held the cause of
national integration.

JUDICIAL OPINION AND UNIFORM CIVIL CODE

The judiciary in India has taken note of the injustice done to the women in the matters of many personal laws. It has
been voicing its concern through a number of judgments indicating the necessity to have uniformity in personal
matters of all the citizens. In the case of Mohd. Ahamed Khan vs. Shah Bano Begum AIR 1985 SC 945 pertaining
to the liability of a Muslim husband to maintain his divorced wife beyond iddat period, who is not able to maintain
herself, the Supreme Court held that Section 125 Cr. P. C which imposes such obligation on all the husbands is
secular in character and is applicable to all religions.
In Ms. Jordan Deigndeh vs. S.S. Chopra, the court referred to the observations made in Shah Bano’s case and
observed as under: “The present case is yet another event which focuses on the immediate and compulsive need for
a uniform civil code. The totally unsatisfactory state of affairs consequent on the lack of uniform civil code is
exposed by the facts of the present case.
Thus it is clear that, Article 44 states that the State shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India. This provision was made to promote unity and integrity which is the cherished goal
enshrined in the preamble to our constitution.
 Ⅲ MODULE: WOMEN AND CRIMINAL LAW

Syllabus:
Women and Criminal Law:
Offences relating to marriage:
- Cruelty by husband or his relatives for dowry
-Outraging the modesty of women
-Police Atrocities
-Custodial rape
-Sexual harassment Legislation on Criminal Traffic
(- Domestic Violence Act, 2005)

Previous Year Question:

1. Ingredients of adultery (2 marks, 2014)
2. Rape by husband (2 marks, 2014)
3. Marital rape (2 marks, 2014)
4. Domestic violence (2 marks, 2016)
5. Examine the law relating to sexual harassment in work place. (4 marks, 2016)
6. A married woman had to face insult and physical torturing from her husbands and relatives of husbands. Discuss
her legal remedies both in civil and criminal proceedings. (6 marks, 2016)
7. Discuss the offences relating to marriage under IPC. (10 marks, 2016)
8. Custodial rape (2 marks, 2017)
9. Sexual harassment at workplace (2 marks, 2017)
10. ‘B’ was arrested on the ground of immoral trafficking and was kept in police custody. On the same day she was
sexually assaulted by three Police Officers. Decide. (6 marks, 2017)
11. stalking (2 marks, 2019)
12. Write a note on Domestic violence. (4 marks, 2019)
13. X and Y belonging to two different castes solemnized their marriage under Special marriage Act. Two days after
the marriage, X the husband was killed by the relatives of Y as he belonged to a lower caste which brought dishonor
to the family. Discuss the liability of persons involved in the murder of X. (6 marks, 2019)

OFFENCES RELATED TO MARRIAGE

• The term offences against women also known as “violence against women” or gender-based violence” means
violent and physical acts which are solemnly directed towards women or girls.
• There are many legal provisions to safeguard the interest of women.
• These legal provisions provide punishment for crimes against women.
• IPC, 1860 laid down the various provisions related to offences committed against women. The offences against
women can be classified as follows:
- Offences against the human body:
Dowry death
Causing miscarriage
Outraging the modesty of a women
Compelling a woman for marriage
Rape
- New offences relating to Women - Acts offending the Decency of Women:
Disrobing a woman (Section 354B)
Voyeurism (Section 354C)
Stalking (Section 354D)
Acid attack (Section 326A & Section 326B)
Sexual harassment (Section 354A)
- Offences related to marriage
Cruelty by husband or his relatives (Section 498A)
Dowry Death (Section 304)
Bigamy
Adultery
Insulting the modesty of a woman
Honour killings
OFFENCES AFFECTING HUMAN BODY

➢ DOWRY DEATH – SECTION 304-B

• Dowry death is the most common offence against women in Indian society. When a daughter is born in a family,
they considered their daughter as a burden. Because they have to give dowry to her wedding. On failure, the girl
has to face the consequences, which might be her getting murdered, tortured or burnt alive.
• This offence has been dealt with under Section 304-B.
• Section 304B (1) defines dowry death whereas clause (2) lays down its punishment which is not less than seven
years and may extend to life imprisonment.
• The following ingredients of the offence need to be established:
1. The death of a woman must be caused by burns or bodily injury or otherwise than under normal
circumstances.
2. Such death must occur within the period of seven years of marriage.
3. The woman must have been subjected to cruelty by her husband or any other relative of her husband.
4. Such cruelty must be in connection with demand of dowry.
5. Such cruelty must be shown out soon before her death.
➢ CAUSING MISCARRIAGE – SECTION 312
• Section 312 deals with the offence of causing a miscarriage of women not caused in the good faith for a good
purpose.
• This also includes the woman, herself causing it.
• The two terms ‘women with child’ and ‘women quick with child’ have been used under this section.
• The former means a woman who is pregnant and the latter means an advanced stage of pregnancy where the foetus
secures a different identity apart from the mother or where an embryo has been converted into a fetus.
• In the case of ‘women quick with child’, the punishment provided is imprisonment for a term of up to 7 years
with fine and
• In the case of women with child’, a term of imprisonment which may increase up to three years, with fine or both.
• Section 313 talks about the offence of causing a miscarriage of women without her consent and the punishment
for the same is imprisonment for life or any described term which may increase up to ten years and also liable to
pay fine.
• Section 314 says that if the death is caused to the women due to the act of miscarriage of a woman with child, the
accused shall be punished with imprisonment for any described term which may increase up to ten years and also
liable to pay fine.
• This section is applied when the miscarriage of women results in her death.
➢ OUTRAGING THE MODESTY OF A WOMAN- SECTION 354
• Section 354, IPC deals with the offence of molestation i.e. assault to woman with intent to outrage her modesty.
• This section aims to protect women against any sort of indecent or filthy behaviour by others which is derogatory
to her modesty.
• This offence is not just against the individual but also against the society and public morality.
• if any person uses criminal fore upon a woman with an intention to outrage the modesty of a woman, he is deemed
to be punished with an imprisonment of not less than one year which may extend up to five years with fine.
• The following are the essential of the offence under Section 354, IPC:
1. The person who has been a victim of assault must be a woman.
 2. The accused must have used criminal force on her.
3. An intention to outrage the modesty of a woman must be there.
• However, what falls in the domain of modesty of a woman is not defined anywhere in the code so, it depends on
the court for the interpretation.
• In the case of Tarkeshwar Sahu v. the State of Bihar, the Supreme Court held that ‘it is a virtue attached to a
woman owing to her sex’. For instance, the act of pulling a woman, unwrapping her saree, coupled with a request
for sexual intercourse would constitute outraging the modesty of a woman.

➢ INSULTING THE MODESTY OF A WOMAN – SECTION 509

• An act which is done intending to insult the modesty of woman which may not necessarily involve any physical
force is brought under the shade of this provision through Section 509.
• This section intends to deter any kind of aggression into a woman’s modesty whether by any word, gesture or act
or by intruding upon the privacy of such woman. T
• his section is also referred as the ‘Eve Teasing Section’.
• Any person who commits an offence under Section 509 shall be punished with simple imprisonment for a term
which may extend to three years with fine.
• Essential Ingredients This section requires:
1. An intention to insult the modesty of a woman;
2. The insult must be caused either by intruding upon the privacy of a woman; or by making any gesture or
sound, uttering any word or exhibiting any object
➢ RAPE
• Among the offences against women, the menace of rape is the most serious.
• Section 375, 376, 376-A, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB and 376-E deal with the
offence of rape.
• Rape simply means having sexual intercourse by a man with a woman against her will or consent.
• Section 375: Definition of rape. A man is said to have committed the offence of rape, if he has sexual intercourse
with a woman under any one of the following 6 instances:
- Against her will
- Against her consent
- With her consent, obtained by coercion,
- With her consent, when the man knows that he is not her husband and she believe herself to be lawfully married,
- With her consent, when she is of unsound mind or in intoxicated/drunken state,
- With or without her consent if she is under 18 years of age.
- When she is unable to communicate consent.
• To constitute rape the following ingredients should be satisfied:
- Sexual intercourse by man with a woman.
- Insertion of any object or part of a body into the vagina.
- The sexual intercourse must be under circumstances falling under any of the six clauses of the Section.
• In Rqfiq v. State of U.P, ‘Rape for a woman is a shame and must be dealt with as the gravest crime against human
dignity’.
• In Madhura Rape Case, a girl was raped by two policemen in the Police Station. The trial court acquitted the
accused but was convicted by the High Court. On appeal, the Supreme court acquitted the accused. Later, the
Indian Evidence Act, 1872 was amended and Section 114-A was inserted, which states that, where rape is alleged,
the court presumes that no consent was given by the victim. The burden of proving consent of the victim is shifted
from the prosecution to the accused. Now, the decision of Supreme court in Madhura Rape Case would have been
otherwise.
• Section 376 – Punishment for rape: Shall not be less than 10 years but which may extend to life imprisonment
and shall also be liable to fine.
• Section 376-A – Rape of wife during separation: Whoever has sexual intercourse with his wife during
separation against the decree of judicial separation, custom etc., is punishable with imprisonment which may
extend to 2 years and with fine.
• Section 376-AB – Whoever commits rape on a woman under 12 years of age shall be sentenced with
imprisonment of not less than 20 years, or life and with fine or death.
• Section 376-B- Punishment which may extend to 5 years and also liable with fine for intercourse by a public
servant with a woman in his custody/official position or induces or seduces any woman.
• Section 376-C- Punishment of 5 years and fine for intercourse by superintendent of Jail, remand home or other
place or custody with a woman in his custody.
• Section 376-D- 5 years imprisonment and fine for intercourse by any member of management or staff of a hospital
with any woman in the hospital.
• Section 376-DA- Punishment for Gang rape of girl below 16 years: Punishment of imprisonment for life for
an offence of gang rape on a woman under 16 years of age by two or more persons.
• Section 376-DB- Punishment for Gang rape of girl under 12 years of age: Punishment of imprisonment for
life with fine or death for offence of gang rape committed on a woman under 12 years of age by two or more
persons.
• Section 376-E- Punishment for repeat offenders: Punishment for rape accused who is already convicted for the
offence of rape, but has again subsequently committed the same offence. The punishment for such repeat offender
is imprisonment for life or death.
• Tukaram v. State of Maharashtra:
Mathura, a Harijan girl developed intimacy with a boy, Ashoka. Her brother lodged a report in the Police Station
that Mathura had been kidnapped by Ashok. After sometime, Mathura was brought to the Police Station and
statement was recorded. Since, it was late at night, there were two constables (appellants) present at the police station
at the time. The appellants asked Mathura to stay at the police station and asked her companions to wait outside.
One of the appellants took her into the washroom and light a torch focusing on her private parts and thereafter
dragged her and raped in spite of her protests. Then, the other appellant came and wanted to rape her but couldn’t
as he was highly intoxicated. Since, all the lights of the police station was off and nothing was visible, the
companions of Mathura called her name and shortly afterwards, Mathura emerged out of the police station and
alleged that one of the constables had raped her. The crowd became aggressive and so, her FIR was lodged on behalf
of her statement. Doctor’s report stated that there was no injury on the body of Mathura. Her hymen revealed old
ruptures. The appellants contended that since there was no direct evidence about the nature of the consent of the girl
to the alleged act of sexual intercourse, it can be inferred from the available circumstances that she did this with her
passive submission.
Judgment: The court held that no marks of injury was found on the body of the girl after the incident and this
indicates that the intercourse was a peaceful affair and the story made by the girl was fictitious. Therefore, no offence
is brought against the appellants. This case is popularly known as ‘Mathura Rape Case’. After this case, it was
interpreted by the Apex Court in many cases that to constitute the offence of rape, it is not important that there must
be some injury on the body of the victim.

NEW OFFENCES RELATING TO WOMEN

• The Criminal Law (Amendment) Act, 2013 added many new sections in the IPC, keeping in view the various new
forms of offensive activities against the safety and dignity of women. Some are discussed below:
➢ DISROBING A WOMAN (Stripping) – SECTION 354B
• Section 354B penalises the offence of assaulting or using criminal force to a woman or abetting any such act with
an intention to disrobe or compel her to be naked, with a punishment of not less than three years which may extend
to seven years with a fine.
• It is a gender specific offence i.e. only a man can be punished under this section.
• Ingredients:
1. The accused must be man.
2. Use of criminal force or assault or abetment of any such act must be there.
 3. There must be an intention to disrobe a woman or compel her to be naked.

➢ VOYEURISM – SECTION 354C

• This offence came into existence after Nirbhaya Rape Case, 2012.
• It is mentioned under Section 354C, IPC.
• The word ‘voyeurism’ means appeasement derived from observing the genital or sexual acts of others usually
secretly.
• This provision is divided in two different parts.
• Firstly, when a person watches or captures image of a woman engaging in some private act and
• secondly, when the person disseminates or spread such image.
• The first offence is punishable with imprisonment of not less than one year which may extend up to three years
with fine.
• The second offence is punishable with imprisonment of not less than three years which may extend up to seven
years with fine.
• Ingredients:
1. The accused must be a male.
2. He must watch or capture the image.
3. The woman whose images are captured must be engaged in some private act.
4. The circumstances must be such that she has the expectations of not being. observed by the perpetrator; or
5. The accused disseminates that image

➢ STALKING – SECTION 354D

• Section 354D, IPC talks about the term ‘stalking’ which generally means the act of following or trying to contact
despite disinterest of woman.
• This section contains two offences.
• Firstly, where a man follows or contacts or attempts to contact a woman repeatedly despite her clear indication of
disinterest and
• secondly, where a man monitors the use by a woman of the internet, email, or any other form of electronic
communication.
• For the first conviction, the punishment prescribed is imprisonment for a term which may extend to three years
with fine.
• The punishment for second conviction may extend up to five years of imprisonment with fine.
• Does not amount to Stalking: If a part of responsibility is imposed on a person by the State to prevent and detect
any crime and such acts must be pursued by any law and in the particular circumstances such conduct of the
person must be reasonable and justified then, it will not amount to stalking.
• Ingredients:
1. The accused must be a man and victim must be a woman.
2. Follow or contact a woman or attempt to contact; or
3. Monitors the use by the woman of the internet, email or any other electronic communication.
4. Despite disinterest of woman.

➢ ACID ATTACK – SECTION 326A AND 326B

• The criminal Law (Amendment) Act, 2013 incorporated Section 326A and Section 326B with an intend to make
specific provision for punishment in case of acid attack.
• Section 326A focuses on voluntarily causing grievous hurt by using acid.
In the view of this section, whosoever causes permanent or partial damage or burns, disfigures or disables any
part of the body of a person or causes grievous hurt by throwing or administering acid with an intention to cause
such injury or hurt will be punished with imprisonment of at least ten years which may extend to life imprisonment
with fine.
• Section 326B has more legislative focus on the act of throwing or attempting to throw acid with the intention of
causing grievous hurt.
 The punishment under this section is imprisonment of not less than five years with fine which may extend up to
seven years
• In the case of Gulab Sahiblal Shaikh v. State of Maharashtra, acid was thrown on a woman, who was carrying
her baby, by her brother-in-law. He did so because she denied paying money for the maintenance of her husband’s
second wife. She sustained several injuries on her body due to which she died and her infant daughter lost eyesight.
The Supreme Court punished the offender under Section 326A and made him liable to pay fines to the victim’s
daughter.
• Ingredients:
The following are the requisites of an acid attack:
1. permanent/partial damage/deformity/burn/Disfigure/disable any part of the body of any person; or
2. Grievous hurt by throwing acid; or
3. By using any other means;
4. There must be an intention to cause injury or hurt

➢ SEXUAL HARRASSMENT – SECTION 354A

• This new provision was originated in a judgment of the Supreme Court dealing with the issue of sexual harassment
at workplace.
• Through the Criminal Law (Amendment) Act, 2013, Section 354A was inserted in the IPC which defines the
offence of ‘sexual harassment’ and set down punishment for it.
• According to Section 354A, a person shall be guilty of the offence of sexual harassment against a woman in the
following circumstances:
1. If he makes physical contact and advance unwelcome and explicit sexual act;
2. Demands or requests for sexual favours;
3. Shows pornography against the will of a woman;
4. Make sexually colored remarks.
• The punishment for the offences specified under Section 354A (1) (i) to (iii) is the rigorous imprisonment for a
term which may extend to three years or with fine or both and in the case of sub clause (iv), it is imprisonment
for a term which may extend to one year or with fine or both.
• In 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was enacted
to provide protection to women against sexual harassment at workplace and for the prevention and redressal of
complaints regarding the matter of sexual harassment or any such incident thereto.

OFFENCES RELATING TO MARRIAGE

➢ CRUELTY BY HUSBAND OR HIS RELATIVES – SECTION 498A
• Section 498A of the IPC punishes the husband or his relatives who subject a married woman to cruelty. The
section was introduced by the Criminal Law (Amendment) Act, 1983, to combat the menace of dowry deaths.
• The objective behind the introduction of this provision was to punish the husband and his relatives who torture,
ill-treat and harass a woman with a view to force her or any other person related to het to meet any unlawful
demands.
• The punishment for this offence is imprisonment for a term which may extend to three years with fine.
• Essential Ingredients:
1. The victim must be a married woman/widow.
2. She has been subjected to cruelty by her husband or his relatives.
3. Such cruelty consisted of either-
Harassment of a woman with a view to coerce her in meeting a demand of dowry; or
A willful conduct by the husband or his relatives of such a nature as is likely to lead the lady to commit suicide
or to cause grave injury to her life, limb or health.
4. The injury inflicted must either be physical or mental one.
• In Mulak Raj v. Satish Kumar, the deceased and the accused were wife and husband respectively. One and a
half years later after their marriage, the deceased wife aged 20 years was found dead with burnings. The accused
pleaded that it was suicide. It was detected from the postmortem report that the deceased died due to constriction.
 With an intention to conceal the evidence, Kerosene was poured on the body and was burnt. The trial court basing
on the report and the circumstantial evidence, convicted the accused to life imprisonment. On appeal, he was
acquitted by HC as there were no eye witnesses. On appeal, the SC, confirmed the conviction of the Trial Court.

➢ MOCK MARRIAGE – SECTION 493 AND 496

• Mock marriage means invalid marriage.
• Cohabitation or sexual intercourse by a man with a woman whom he induces to be his wife, but really concubine.
• The punishment is ten years imprisonment and fine.

➢ SEDUCTION OR CRIMINAL ELOPEMENT

• It means tasking or enticing away a married woman for the purpose of sexual intercourse.
• The punishment for seduction is up to 2 years imprisonment or fine or both.
➢ BIGAMY – SECTION 494-496
• It means having two spouses living. Spouse means wife or husband.
• If a man or woman has two spouses’, it is bigamy.
• If a man has more than two wives, it is Polygamy and if a woman has more than two husbands, it is called
polyandry.
• As per section 494, whoever having a husband or wife living, marries again, such marriage is void for the reason
of it taking place during the life of such husband or wife and is guilty of the offence of bigamy.
• Exceptions:
- When the first marriage is declared void or is dissolved by a competent court.
- If the whereabouts of the other spouse is not known for a continuous period of seven years.
• Not applicable to Mohammedan Male who can have four wives at a time legally.
• Following Ingredients should be satisfied in order to constitute the offence of bigamy:
1. The accused has already been married to some other persons.
2. The accused married another person.
3. The second marriage was void by the reason of it taking place during the life of the first spouse.
• In B.S. Lokhanda v. State of Maharashtra, the SC held that the accused not guilty of bigamy and was acquitted
on the ground that the second marriage was not valid since it was not solemnized in accordance with the legal or
religious formalities.
• Punishment: Imprisonment up to 7 years and fine. Sec 494- punishment up to 10 years and fine for concealment
of former marriage from person with whom subsequent marriage is contracted.

➢ ADULTERY – SECTION 497

• Whoever has sexual intercourse with a person, whom he knows to be the wife of another man, without the consent
or connivance of that man, such intercourse not amounting to rape, is guilty of the offence of adultery.
• For the offence of Adultery, man alone is punished though the woman is involved.
• Punishment: Imprisonment which may extend to five years or with fine or both.
• Elements:
1. The accused has sexual intercourse with a woman.
2. The woman is married and the accused had knowledge of the same.
3. The sexual intercourse took place without the consent or connivance of her husband.
4. The sexual intercourse did not amount to rape.

➢ POLICE ATTROCITIES
The primary duty of the police is to provide a safe atmosphere to the people and to preserve them from any kind of
oppression. But in rape cases, the attitude and mindset of police towards the rape victim is unacceptable as they
judge them with their typical and patriarchal mindset. This made it difficult for the victims to approach the police
station. Many of the rape cases are not reported because the victims don’t believe in police and their investigation.
Another reason for distrust in the police system is that the police officials are corrupted and there are many instances
when these officials are influenced by the political pressure and this finally leads to the non-reporting of the case.
Mulak Raj v. Satish Kumar – refer page 6

➢ DOMESTIC VIOLENCE, THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT,

2005.
• Act was passed in 2005 and was implemented from October, 2006.
• The Act broadens the definition of Domestic Violence is under Section 3 of the Act cover the following kinds of
abuses;
o Physical abuse,
o Sexual abuse,
o Verbal and emotional abuse and
o Economic abuse
• The Act broadens the definition of domestic relationships by including mothers, wives, sister-in-law’s, daughters,
and daughters-in-law. Beneficiaries under the Act are:
o Women,
o Children and
o Respondent
• PWDVA recognizes a life free of violence and fear and makes the state responsible for extending protection
against domestic violence to women.
• PWDVA seeks to protect women from all forms of domestic violence and check harassment and exploitation by
family members or relatives.
• The first and immediate consequence, if a woman files complaint against DV is dispossession-through the woman
out of the house and taking custody of children.
• PWDVA empowers a woman to claim immediate maintenance and compensation.
• Rights granted to women under the domestic violence Act:
o Right to reside in a shared household,
o Right to issuance of Orders,
o Protection Orders,
o Residence Orders,
o Monetary relief,
o Custody orders,
o Compensation orders,
o Interim and Ex-parte Orders,
o Right to obtain relief granted by other suits and legal proceedings.

Liabilities and Restrictions imposed upon the Respondent

• He can be subjected to certain restrictions as contained in the Protection and Residence order issued against him.
• The respondent can be made accountable for providing monetary relief to the aggrieved person and her children
and pay compensation damages as directed in the Compensation order.
• He has to follow the arrangement\s made by the court regarding the custody of the child or children of the
aggrieved person as specified in the Custody order.
• The Act does not permit any female relative of the husband or male partner to file a complaint against the wife or
female partner.

Procedure of filing complaint and the Court's Duty (Sections 12-29)

• The aggrieved person or any other witness of the offence can approach a Police officer, Protection Officers or
Service Provider or Magistrate.
• The Magistrate shall give a notice of the date of hearing to the Protection officers within a maximum period of 2
days or such further reasonable time as allowed by the Magistrate.
• The court is required to dispose of the case within 60 days of the first hearing.
• Upon finding the complaint to be genuine, the Magistrate may, direct the respondent or the aggrieved person,
either singly or jointly, to undergo counseling.
• Direct that the women shall not be evicted or excluded from the household or any part of it.
• Pass a protection order, providing protection to the women which shall remain in force till the aggrieved person
applies for discharge.
• Grant monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of
the aggrieved person due to domestic violence.
• Grant custody orders of any child or children of aggrieved person.

➢ HONOUR KILLING
• Honor killing or shame killing is the homicide of a member of a family by other members, due to the perpetrators’
belief that the victim has brought shame or dishonor upon the family, or has violated the principles of a community
or a religion, usually for reasons such as refusing to enter an arranged marriage, being in a relationship that is
disapproved by their family, having sex outside marriage, becoming the victim of rape, dressing in ways which
are deemed inappropriate, engaging in non-heterosexual relations or renouncing a faith.
• In Lata Singh v. State of Uttar Pradesh, the Supreme Court opined that “There is nothing honourable in honor
killings and they are wholly illegal”.
• The Hon’ble Supreme Court in the case of Shakti Vahini v. Union of India, ruled that it was illegal for so called
khap panchayats, or assemblies of village elders, to interfere in marriage between two consenting adults, and to
summon and punish them.
• The Supreme Court in Bhagwandas v. State (Govt of NCT) Delhi, has held that “honour killings, for whatever
reason, come within the category of rarest of rare cases deserving death punishment. It is time to stamp out these
barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous,
uncivilized behaviour. All persons who are planning to perpetrate honour killings should know that the gallows
await them.”

The Sexual Harassment of Woman at Workplace (Prevention, Prohibition and Redressal) Act, 2013

• The sexual Harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereafter ‘the
Act’) is a law, that seeks to protect women from sexual harassment at their working place.
• This Act ensures that women are protected against sexual harassment at all the work place, be it in public or
private. Further it contributes to realisation of their right to gender equality, life and liberty in working conditions
everywhere.
• Prior to passing of this law, the matters related with sexual harassment was directed by the guidelines laid down
by the Hon’ble Supreme Court of India in Vishaka and others V. State of Rajasthan and others (AIR 1997 SC
3011) popularly known as “Vishakha Guidelines”.
• By these guidelines Hon’ble court mandatorily imposed some duties on employers in respect to provide
mechanism in order to prevent the commission of acts related with sexual harassment and further provides
effective resolution of the cases related with sexual harassment and prosecution of acts of sexual harassment.
Under these guidelines Hon’ble Supreme court also defined the term ‘Sexual Harassment’.
• The Supreme Court further held that the guidelines and norms as provided by the court would be strictly observed
in all work places for the preservation & enforcement of the right to gender equality of the working women.
• The guidelines issued by the Hon’ble Supreme Court of India was treated as Law declare by the Supreme Court
of India under Article-141 of the Constitution of India.
• After these guidelines were issued it was observed by the various courts of the country that the guidelines and
norms framed by the hon’ble supreme court are not implementing by the employer strictly at the workplaces and
there is a need of Comprehensive and detailed legislation on sexual harassment at workplace and its prevention
& redressal mechanism.
• After a long period of almost 16 years of Vishaka Guidelines, Government of India passed a comprehensive law
on sexual harassment at workplace i.e. ‘The sexual Harassment of women at workplace (Prevention, Prohibition
and Redressal) Act, 2013’.
• The main objective for enacting this law by the parliament is to provide protection against sexual harassment of
women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters
connected therewith and incidental there to.
• Sexual harassment is also resulting in violation of the woman’s fundamental right to equality, guaranteed by the
Indian constitution under Articles 14 & 15 and also right to life and to live with dignity as under Article 21 of the
constitution of India.
• Further, sexual harassment is also resulting in violation of a right to practice any profession or to carry on any
occupation, trade or business which includes a right to safe environment free from sexual harassment.
• The act defines the term Sexual Harassment on the line as it was defined by Hon’ble SC in “Vishaka
Guidelines”. Section 2(n) of the act defines sexual harassment as follow:
“Sexual Harassment includes any one or more of the following unwelcome acts or behavior (whether directly or
by implication) namely: -
i. Physical contact and advances; or
ii. A demand or request for sexual favours; or
iii. making sexually coloured remarks; or
iv. Showing pornography; or
v. Any other unwelcome physical, verbal or non- verbal conduct of sexual nature;”
• Section 3(1) of the act clearly states that “No woman shall be subjected to sexual harassment at any workplace”.
Sub-section (2) of section-3 also speaks about certain circumstances if occurs or present in relation/ connected
with any act/ behavior of sexual harassment, may amount to sexual harassment, these are as follow:
i. Implied or explicit promise of preferential treatment in her employment
ii. Implied or explicit threat of detrimental treatment in her employment
iii. Implied or explicit threat about her present or future employment status
iv. Interference with her work or creating an intimidating or offensive or hostile work environment for her.
v. Humiliating treatment likely to affect her health or safety.
Committee(s) under the Act (Primary Grievances Redressal Forum)
The act stipulates the setting of primary grievances redressal forums in the form of committee(s) to hear and redress
the grievances pertaining to sexual harassment at work place as per the prescribed provisions of the Act.
There are two main committee(s) as prescribed by the act, these are:
I. Internal Complaints Committee
II. Local Complaints Committee
Duties of the Employer
- Every employer will provide proper safe working environment at the workplace which also includes safety from
outsiders coming into workplace.
- It shall be the duty of every employer, to affix proper display board at any conspicuous place in the workplace
which display penal consequences of sexual harassment and also display order that constituting the ICC i.e.
Internal Control Committee.
- To organise awareness programs/ workshops for sensitising the employees with provisions of the act.
- Employer shall provide all necessary assistance/facilities to ICC/LCC for dealing with complaint and inquiry
thereof and also assist in securing attendance of respondent/witnesses before ICC/LCC.
- It shall be the duty of every employer to provide all necessary information to ICC/LCC.
- To assist aggrieved woman to file a complaint in relation to the offence, under the IPC or any other law, if she
chooses to do so.
- Every employer shall cause to initiate action under the IPC or any other law for the time being in force against the
proprietor or if the aggrieved woman so desires, where the proprietor is not an employee, in the workplace at
which the incident of sexual harassment took place.
- To treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct.
- To monitor the timely submissions of reports by the internal complaints committee.
- Where the employer fails to Constitute an Internal Complaint Committee under sub section (1) of section 4 Take
action under section 13,14, and 22; and Contravenes or attempts to contravene any rules made thereunder-
punishable – 50,000 Rs fine
 Ⅳ MODULE: PREVENTION OF IMMORAL TRAFFIC AND WOMEN

Syllabus:
Prevention of Immoral Traffic and Women:
- Rehabilitative and Remedial Provisions

Previous Year Questions:

1. Define Brothel. (2 marks, 2014)
2. Brothel House (2 marks, 2016)
3. A, a woman, 19 years of age, lives on the prostitution of another person. What is the offence committed here and
the punishment? What are the presumptions as to living on the earning of prostitution?
4. What is meant by Immoral Traffic? Write a critical note regarding the working of Immoral Traffic (Prevention)
Act. (10 marks, 2016)
5. Immoral Trafficking. (2 marks, 2017)
6. Critically analyse the provisions of Immoral Traffic(prevention) Act, 1956.

THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956

➢ Introduction:

• As per Article 23 of the Constitution of India, trafficking in human beings is prohibited. The right against
exploitation is a fundamental right which aims at putting an end to all forms of trafficking in human beings
including prostitution and Beggar.
• The parliament of India enacted the Suppression of Immoral Traffic in Women and Children Act, 1956 (also
known as SITA), as India was signatory to the UN convention for the “Suppression of Traffic in persons and
of the exploitation of Others” of 1950.
• The Indian parliament thought it fit and desirable to pass a central law that will not only secure uniformity
throughout the country but also would implement the fundamental rights in Article 23 of the Constitution and
also international convention obligation of 1950 and therefore passed the SITA, 1956
• The SITA was amended twice in 1978 and 1986:
- The 1978 amendment enhanced the punishments for certain offences in the Act.
- The 1986 amendment changed the name of the Act as “The immoral Traffic (prevention) Act, 1956
(ITPA). The amendment has also changed the definition of ‘prostitution’ and enhanced punishment for a
set of offences further. The amendment made the law gender neutral and recognized the existence of male
prostitution ad trafficking in male child.
• The act of 1956 used to cover only females and children but after the 1986 amendment it covers both the
males as well as females as it uses the expression “persons”, hence making it a gender-neutral act.
➢ Purpose and Object of the Act:
- The act aims to stop immoral trafficking and prostitution in India and is divided into 25 sections and one
schedule.
- The act does not make prostitution illegal per se but it makes keeping and using of premises as a brothel,
living on the income earned via prostitution, pimping, soliciting, seducing a person for prostitution in
custody or otherwise and prostitution in a public area etc. an offence punishable under the act. It, thus,
means if prostitution is done independently or voluntarily then it won’t constitute an offence.
- What is punishable under the Act is sexual exploitation for commercial purpose or to make a living
thereon.
- The act deals with not only a social but also a social economic problem and therefore the provisions
contained in the Act are more preventive than punitive. (Vishal Jeet v. Union of India)
➢ Definitions:
• The Act contains definitions of many expressions like ‘brothel, ‘corrective institution’, ‘prostitution’,
protective home’ and ‘public place’ etc. However, there is no definition on the word ‘trafficking’.
• Brothel:
- Defined under Section 2(a).
- A brothel includes “any:
1. house or any portion of any house;
2. room or any portion of any room;
3. conveyance or portion of any conveyance;
4. place or portion of any place;
for purpose of:
• sexual exploitation or;
• abuse for the gain of another person or;
• for the mutual gain of two or more prostitutes.”
- To constitute a brothel, the place must have been used for the purposes of prostitution.
- It is vital to prove whether such place is used for commercial exploitation or abuse. It is a question of
fact whether a single use of such a place can make it fall under the definition of the brothel. It must be
noted that it largely depends on the circumstances surrounding and the person keeping the place.
- In Gaurav Jain v. Union of India, it was held that, Sexual intercourse is not an essential element. A
single instance coupled with the surrounding circumstances may be sufficient to establish that the place
is being used as a ‘brothel’.
• Prostitution:
- Section 2(f) defines Prostitution.
- Means ‘sexual exploitation or abuse of persons for commercial purposes.
- The following ingredients must be satisfied in order to constitute an offence of prostitution:
1. A female must offer her body to an indiscriminate intercourse with men, usually for hire. It must be
promiscuous intercourse for hire.
2. There must be ‘sexual intercourse’.
3. It must be for hire. The consideration may be in cash or in kind.
- Such a person engaging in such activity does it for commercial gain
• Public Place:
- Defined under Section 2(b)
- Any place intended for use by or accessible to the public and includes any public conveyance.
- So, a public place may include an omnibus, a railway platform, a goods yard, a road, street or a way.
➢ Salient features of the Act:
The punishments imposed under the act are varied and can be found in sections 3-9, 11, 18, 20 and 21. The
offences punishable are keeping and using of premises as a brothel, living on the income earned via
prostitution, pimping or else soliciting for prostitution, seducing a person in custody and prostitution in a
public area etc. an offence punishable under the act.
1) Punishment for Keeping A Brothel:
- Section 3 punishes any person with rigorous imprisonment who keeps or allows premises to be used as a
brothel.
- Section 3 of the Act punishes any person who keeps or manages or assists such keeping or manages a
brothel.
- Any landlord owner, lessor, tenant, occupier or lessee is ‘punishable’ if he knowingly uses the premises
for prostitution or allows it for such use. The knowledge of the person is very important.
 - The manager of a brothel shall get a punishment between one year to three years with fine of Rs 2000
on first conviction and for subsequent conviction the punishment shall be between two to five years
with the same amount of fine.
- As per sub-section (2) an owner-tenant, lessor-lessee or landlord-occupier shall be punished with at
least two years with a fine of Rs. 2000 on first conviction and for subsequent conviction the
punishment may be enhanced to five years with a fine. A conviction from section 3 makes the lease of
the place invalid where brothel was run.
2) Punishment for Living on the Earnings of Prostitution
- Section 4 provides that any person who is over 15 years of age, who lives wholly or partly or in part of
the earnings of prostitution of a person is liable to be punished.
- a person living his life from the money made by a prostitute can be imprisoned for two years or a fine
of Rs. 1000 or both.
- if found such earning is made from prostituting a child or a minor then it can go up to ten years no
less than seven years of imprisonment shall be served.
- One requisite of this section is that a person should be above the age of eighteen. Examples of section
4 are pimp, tout, a person habitually living with a prostitute etc.
- Section 3 and 4 do not apply to the customers of a prostitute.
3) Punishment for Procuring a Person for Prostitution:
- Section 5 punishes a person who procures a person, for the purpose of prostitution.
- Similarly, a person who induces a person or takes a person from one place to another with a view to
his/her carrying on prostitution also is liable to be punished under this section.
- This provision is similar to the one under Section 366, 372, 373 of IPC.
- The punishment is rigorous imprisonment of 3 to 7 years with Rs. 2000 fine. If it is done against a
persons’ will or is minor then between seven to fourteen years and if the same is done with a child
then it is seven years to life imprisonment.
- The Bombay High Court in Bindo Ganesh Patil v. The State of Maharashtra: has clearly said that
“Section 5 of the PITA pertains to procuring, inducing or taking a person for the sake of prostitution.
This offence is complete when a person procures another person for prostitution or induces such person
to go from any place with intent that such person becomes the inmate of a brothel or to take such a
person from one place to another to carry on prostitution.
4) Punishment for a Person for Immoral Purpose
- Section 6 states that detention of a person by another whether with or without the consent of the detenu,
in a brothel or any other premises for immoral purposes, is punishable with imprisonment and fine.
- Section 6 allows the court to punish a person detained in any place used for prostitution for seven to ten
years imprisonment of either description along with fine.
- The court has to provide special reasons if the punishment of fewer than seven years has been given to
the accused.
- No legal proceedings would lie against any woman who has been detained under such premises by the
detainer.
- There are certain presumptions in section 6 like:
A) child in a brothel found to have been sexually abused then she has been detained for purpose of
prostitution, (Section 6 (2-A) or
B) It is presumed under sub-section (3) that a woman is detained for sex if a person withholds her
property like jewelry or induces her with the threat of legal proceedings if she dares to take away
her property.
5) Punishment for Prostitution in the Vicinity of Public Place:
- Section 7, carrying on of prostitution in any premises within the distance of 200 meters from any place
of public religious worship, educational institution, hostel, hospital, nursing home or public place,
notified as such by the commissioner of police or district magistrate is an offence.
- In such cases not only the woman who carries on the offence but also the man with whom she
indulges in prostitution are punishable with an imprisonment which may extend to 3 months.
- Section 7 (1) bars people to carry on prostitution within a specified area, violation of this provision
leads to the imprisonment of three months.
- However, the punishment changes to seven to ten years with fine if prostitution is committed within
such specified areas with a child or a minor.
- Any punishment less than seven years shall be recorded with special reasons in the judgement.
- Section 7 (2) not only prohibits owner-tenant, lessor-lessee or landlord-occupier or agent but even
the keeper of a public place like hotels prostitution in public vicinity. For the first conviction, the
punishment is three months with a fine of Rs. 200 and for subsequent conviction, it is six months
with a fine.
- The license of the hotel where prostitution is carried can be cancelled for a period not less than three
months to one year.
- However, if a child or a minor is found in such hotel for prostitution then the license can be
cancelled forever.
6) Punishment for Seducing or Soliciting for Prostitution:
- Section 8.
- Seduction or solicitation in public places whether from within a house or not amounts to an
imprisonment of six months with fine on first conviction which increases to one year for subsequent
conviction under section 8.
- Soliciting may be by any communicable form like words, gestures, willful exposure of her person or
otherwise tempting any person for prostitution.
7) Punishment for Custodial Seduction:
- Section 9 of the act punishes custodial seduction.
- Custodial seduction means seduction by any person having the custody over any person.
- It is a grave offence which attracts a minimum imprisonment of 7 years but which may extend to life or
for a term which may extend to 10 years and also be liable to fine.
- Any punishment less than seven years needs to be justified by giving special reasons.
- This provision is similar to IPC – section 376- C.
• Every offence punishable under this Act is cognizable and the special police officers is empowered to arrest
the offenders without warrant. The special officers are empowered to arrest the offenders without warrant.
The special police officer has the power to enter the premises and if directed by the court, can even search
the premises and to rescue persons from such premises. Such rescued persons are to be taken in custody and
medically examined.

• Rehabilitative and Corrective Measure:

The Immoral Traffic (Prevention) Act, 1956 is not a pure penal legislation. It is also a social welfare
legislation and aims at the rehabilitation and correction of the female and child offenders found guilty of
indulging in prostitution.
According to Section 10A of the Act, a female offender found guilty of an offence of carrying on prostitution
at a public place etc., may be ordered to be detained in a corrective institution for a term not less than 2 years
and not more than 5 years.
A protective home and a corrective institution are licensed under section 21. However, a protective home is
“an institution where people in need of care and protection are kept” in the umbrella shade of technically
qualified persons along with necessary equipment and other facilities required for the institutions proper
 functioning. It. On the other hand, a corrective institution is “an institution where a person in need of
correction or reformation may be detained.” No victim under PITA can be sent to a corrective
institution against her wishes if she is an adult. It is also different in the sense that the former does not
include a corrective institution or a shelter where undertrials are kept and the latter includes a shelter where
undertrials are kept as per the act.
Section 21 gives power to the state government to create numerous such homes and institutions as it feels
fit. These institutions have to work according to the norms laid down by the state government. The procedures
concerning a protective home or a corrective institution are as follows:
1. An application to the State Government must be sent by an individual or an authority like a non-
governmental organisation.
2. After its acceptance, a licence is issued to such individual or authority. This licence is made as per the
rules made under the act.
3. The management of such home or institution shall be preferred to give to a woman.
4. Before handing over the licence a full-fledged investigation shall be made by the state government.
5. No licence issued or renewed is transferrable.
6. The licence granted can be revoked if it found that the protective home or corrective institution is not
working as per the rules or provisions of this act. However, the licence holder shall be heard before any
such action would be taken. The revocation will cease the functioning of such home or institution.
7. The licence holder under shall be required to submit records and other documents as required by the
court.
A magistrate after receiving an application from the trafficked person to send her to a protective home or
provided care and protection by the court shall inquire and can accept the demand of her application for
such period as specified. During this period, the trafficked person must be given protective care and
vocational training so that she becomes self-sufficient and economically self-reliant.
A court under section 10A can send a female offender to the institution, guilty under the provisions of
section 7 or 8 if it deems fit that her detention under the institution would be beneficial to her. The detention
order can stay for a period of two to five years in lieu of a sentence of her imprisonment.

JJA and PITA are legislation that wants rehabilitation of young children who have fallen victims of flesh trade.
In Delhi High Court Legal Services Committee v. Union of India, the High Court while considering these
principles has been explicitly clear for such children and stated “they cannot be treated as a child in conflict
with the law and sent to Juvenile Justice Board and thus must be under the protective umbrella of Child Welfare
Committee as a child in need of care and protection.”
In this regard, the two celebrated judgements of the Supreme Court, Gaurav Jain v. Union of India and Vishal
Jeet v. Union of India on commercial sexual exploitation and the rescue and rehabilitation of children and
women victim are also important to be looked upon. The former has stated about the rights of the children of
prostitutes and their rehabilitation and the later had pointed out the obligation of the central and state
governments to ensure the welfare of children and girls involved in forced prostitution.

Prerana v. State of Maharashtra and Ors.,

“A Magistrate before whom persons rescued under the Immoral Traffic (Prevention) Act, 1956 or found
soliciting in a public place are produced, should, under Section 17(2) of the said Act, have their ages ascertained
the very first time they are produced before him. When such a person is found to be under 18 years of age, the
Magistrate must transfer the case to the Juvenile Justice Board if such person is a Juvenile in conflict with law,
or to the Child Welfare Committee if such person is a child in need of care and protection.”
 Ⅵ MODULE: WOMEN AND INDUSTRIAL LAW

Syllabus:
- Equal remuneration for men and women – Welfare and Safety of Women in Industrial Law
Previous Year Questions:
1. 2014: (10 marks) Explain how the welfare and safety of women is protected in Industrial Law.
2. 2016: (10 marks) Explain the various Labour Legislations in India giving adequate measures for the
welfare and protection of women.
3. Same question “” 2017 & 2019 for 10 marks.
4. 2017: (2 Marks) Maternity Benefit?
5. 2016: (2 marks) Maternity Leave?

Women and Industrial Law (Syllabus Topic: Welfare and safety of women in Industrial Law)

• Law should be used as an instrument of distributive justice to achieve a fair division of wealth among the
members of society based upon the principle: ‘from each according to his capacity, to each according to
his needs’.
• Gender equality in labour laws was one of the key ingredients to attain social justice and thus various
provisions were made in these laws to protect the interest of women and also to remove gender
discrimination, women were given various benefits, concessions and safeguards in order to provide them
with special rights and remedies specially related to work in factories, mines and other industries.
• Ensuring gender equality and protection of womens interest in labour and industrial laws is one of the
most crucial aspects in the process of attaining social justice.
• From the cradle to grave, females are under the clutches of numerous evils such as discriminations,
oppressions, violence within the family, at work places and in the society.
• One of the main objectives of the Constitution is to secure social, economic and political justice along
with equal opportunities and status to all citizens irrespective of their sex. Also Article 15(3) of the
Constitution empowers the state to make special provisions for women and children and hence the state
has passed various laws to protect the interest of women and also various benefits are provided to women
like maternity benefits, prohibition of work in dangerous operations, equal pay for equal work and have
received various benefits in following acts:
- The Factories Act, 1948
- Mines Act, 1952,
- Employees State Insurance Act, 1948,
- Maternity Benefit Act, 1961,
- Workmen Compensation Act, 1923,
- Payment of Wages Act 1936,
- Minimum Wages Act, 1948 and
- Equal Remuneration Act, 1976.
• The main objectives for passing these laws are:
- to enable the women to increase their efficiency,
- to increase their participation in useful services,
- to ensure their infant welfare and
- to provide equal pay for equal work.
• Labour welare legislations are of two kinds: those statutory enactments which provide measures for all
workers and may contain special provisions for the welfare of women workers and those which contain
statutory enactments which are exclusively for women workers eg, Maternity Benefit Act, 1961, Equal
Remuneration Act, 1976 and the Sexual Harassment of Women at Workplace, Act.
 i. THE FACTORIES ACT, 1948
• The Factories Act is a part of labour welfare legislations wherein measures have been laid down to be
adopted for the health, safety, welfare, working hours, leave and employment of young persons and
women.
• Factories Act ordinarily lays down provisions for all adult (Whether male or female) adolescents, child
worker (child not below 14 yrs.) in various respects. The facilities and provisions enacted in general are
for every worker but few provisions had been specifically laid down for female workers. Those all
provisions relating to women in Factories Act are mentioned below:
i. Prohibition of employment of women during night hours
No woman shall be required or allowed to work in any factory except between the hours of 6 a.m. and 7
p.m. But the State Government may, by notification in the Official Gazette, in respect of any factory or
group or class or description of factories, vary the limits laid down in clause (b), but such variation shall
authorise the employment of any woman between the hours of 10 p.m. and 5 a.m. (Section 66).
ii. Prohibition of work in hazardous occupations
Section 22(2) provides that no woman or young person shall be allowed to clean, lubricate or adjust any
part of a prime mover or of any transmission machinery while the prime mover or transmission machinery
is in motion, or to clean, lubricate or adjust any part of any machine if the cleaning, lubrication or
adjustment thereof would expose the woman or young person to risk of injury from any moving part either
of that machine or of any adjacent machinery.
iii. Prohibition of employment of women in pressing cotton where a cotton opener is at work
Section 27 of the Factories Act, 1948 mandates that no woman or child shall be employed in any part of a
factory for pressing cotton in which a cotton-spinner is at work: But if the feed end of a cotton-opener is
in a room separated from the delivery end by a partition extending to the roof or to such height as the
Inspector may in any particular case specify in writing, women and children may be employed on the side
of the partition where the feed end is situated.
iv. Provision relating to annual leave with wages
Section 79 (1) Explanation 1 says that, Every female worker who has worked for a period of 240 days or
more in a factory shall be allowed leave with wages and in case of a female worker, maternity leave upto
12 weeks.
v. Fixation of maximum permissible load
Under Section 34, This Act gives power to state Govt. to prescribe rules regarding the maximum weight
which can be lifted, carried or moved by men, women, adolescents and children in the Factory. It’s a
statutory mandate that nobody shall be employed to carry a weight which can cause them an injury.
vi. Provision for crèches:
Under Section 48 it is directed that,- 1) In every factory wherein more than thirty women workers are
ordinarily employed there shall be provided and maintained a suitable room or rooms for the use of
children under the age of six years, of such women.
2) Such rooms shall provide adequate accommodation which shall be adequately lighted and ventilated,
shall be maintained in a clean, and sanitary condition and shall be under the charge of women trained in
the care of children and infants.
vii. Facilities to be provided in a factory:
Section 19(1), every factory:
1. Sufficient latrine and urinal accommodation, conveniently situated and accessible to all workers at all
times while they are at the factory,
2. Separate enclosed accommodation shall be provided for men and female workers.
3. Adequately lighted and ventilated.
4. Maintained in a clean and sanitary condition at all times.
5. Sweepers be employed to keep latrines, urinals and all washing places clean.
 ii. EMPLOYEES STATE INSURANCE ACT, 1948
• The Employees State Insurance Act is one of the most important social legislations in India.
• It has been enacted to provide for various benefits in different contingencies.
• Under this act, the insured women workers get the following benefits:
- Sickness Benefit
- Disablement Benefit
- Medical Benefit
- Funeral Expenses
- Maternity Benefit
• However, in addition to these benefits, insured women workers also get maternity benefit in case of
certain contingencies arising out of pregnancy, confinement, miscarriage, sickness arising out of
pregnancy, premature birth of child or miscarriage and death.
• The duration of maternity benefit available to insured women in case of confinement is 12 weeks, of which
not more than 6 weeks shall precede the expected date if confinement. The maternity benefit is paid subject
to the condition that the insured women do not work for remuneration on the days in respect of which the
benefit is paid.
• In the event of the death of an insured woman, the maternity benefit is payable to her nominee or legal
representative for the whole period if the child survives, and if the child also dies, until the death of the
child.
• The Act provides a scheme under which the employer and employee must contribute a certain percentage
of the monthly wage to the Insurance Corporation that runs dispensaries and hospitals in working class
localities.
• Employment injury, including occupational disease is compensated according to a schedule of rates
proportionate to the extent of injury and loss of earning capacity.
• Section 50 of the ESI Act states that the qualification of an insured woman to claim maternity benefit, the
conditions subject to which may be given, the rates and period thereof may be prescribed by Central Govt.
The Central Govt has framed the ESI Regulations, 1950.
• Regulations 87 to 95 of ESI Regulations, 1950 deal with maternity benefit.
• These provisions are similar to the ones in Maternity Benefit Act but they both are independent of each
other.
• Section 5 A of Maternity Benefit Act, 1961: Every woman entitled to the payment of maternity benefit
under this Act shall continue to be entitled notwithstanding the application of ESI Act 1948 until she
becomes qualified to claim maternity benefit under Section 50 of that Act.
• Section 5-B of the Act states that Every woman who is employed in a factory or establishment to which
ESI Act is applicable is entitled to the benefit under the Act of 1961.

iii. MATERNITY BENEFIT ACT, 1961

• The Maternity Benefit Act, 1961 was enacted to regulate the employment of women in certain
establishments for certain periods before and after child birth and to provide for maternity benefit and
certain other benefits.
• The Maternity Benefit Act is intended to achieve the object of doing social justice to women workers.
• Applies to all shops and establishments with 10 or more employees.
• The Maternity Benefit Act, 1961, protects the female employee during the time of maternity and entitles
them to a full paid absence from work to require take care of the kid.
• Employers are required to inform women in writing and electronically about the maternity benefits
available to them under the Maternity Benefit act upon joining the workforce.
 • As per the act, to be entitled to maternity benefit, a woman must have been working as an employee in
an establishment for a period of at least 80 days in the past 12 months.
• Municipal Corporation of Delhi v. Female Workers (muster roll), The SC held that not only regular
woman employees but also women engaged on casual basis or on muster roll on daily wage basis, are
entitled to maternity relief under the MB Act, 1961. Court relied on Art. 11 of CEDAW.
• Air India v. Nargesh Mirza, The SC struck down the provisions of rules which stipulated termination of
service of an air hostess on her first pregnancy as arbitrary to the notions of a civilized society.
• The time of maternity leave which a lady worker is qualified for has been expanded from 12 weeks to 26
weeks.
• The period of maternity benefit to which a woman is entitled to receive is 26 weeks of which maximum
8 weeks shall be before the date of her expected delivery.
• What is Maternity Benefit? A maternity benefit is one that every woman shall be entitled to and her
employer shall be liable for the payment of maternity benefit which is the amount payable to her at the
rate of average daily wages for the period of her actual absence.
i. Employment of or work by women prohibited during certain periods (Section 4)
- No employer shall knowingly employ a woman in any establishment during the 6 weeks immediately
following the day of her delivery, miscarriage or medical termination of pregnancy.
- No woman shall work in any establishment during the 6 weeks immediately following the day of her
delivery, miscarriage or medical termination of pregnancy.
- No woman shall do any arduous work during the period of 10 weeks from the expected date of delivery.
ii. Employees rights
- Employer cannot dismiss a woman for taking maternity leave and cannot serve a termination notice to a
woman on maternity leave which expires before the maternity leave ends.
- Employer cannot change the terms of service to the woman’s disadvantage during her maternity leave.
iii. Maternity benefit in case of death of woman or child
- In case the mother dies before the delivery then the benefit will be payable up to the date of her death.
- In case the mother dies during the delivery or after delivering the child, entitled to receive maternity benefit
for that entire period of 8 weeks. (before 2017 amendment it was 6 weeks). But, if the child also dies along
with the mother within the aforementioned period then the benefit will be payable till the death of the child.
iv. Maternity benefit to adopting or commissioning mothers
A woman who legally adopts a child below the age of 3 months or a commissioning mother shall be
entitled to maternity benefit for a period of 12 weeks from the date the child is handed over to the adopting
or commissioning mother as the case may be.
v. Medical Bonus: Every woman who’s entitled to maternity benefit is also entitled to receive medial bonus
as prescribed from time to time, from her employer, if the employer does not provide pre-natal and post-
natal care free of cost.
vi. Leave for miscarriage: In case of miscarriage or medical termination of pregnancy, a woman shall, on
production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity
benefit, for a period of 6 weeks immediately following the day of her miscarriage or, as the case may be,
her medical termination of pregnancy.
vii. Leave with wages for tubectomy operation: Entitled to leave with wages at the rate of maternity benefit
for a period of 2 weeks following the date of the operation.
viii. Nursing Breaks: Every woman who returns to duty after delivering a child is entitled to 2 breaks in the
course of her daily work until the child attains the age of 15 months.
ix. Penalties
Failure to pay maternity benefits or discharge or unemployment of woman due to maternity will result in
imprisonment of the employer for not less than three months which may extend to one year and a fine of
rupees two hundred which may extend to five thousand.
 iv. THE EQUAL REMUNERATION ACT, 1976
(Syllabus topic: Equal remuneration for men and women)
• Equal pay for equal work for women and men is a vital subject of great concern to society in general and
employees in particular.
• Equal opportunity refers to an equal chance of employment to both men and women it also means that
both men and women have an equal access to work, have similar working conditions and are paid equal
or equal work this also includes an equal chance for training for the acquired job, promotions and an equal
pay to similar work.
• In the case of Jitendra Prasad Singh v. TELCO the court held that the principles of equality are virtually
in the nature of natural law and denial of equality would be against the article of equality, i.e. Article 14
of the Constitution.
• International Labour Organization has evolved several conventions to provide protection to employed
women. A number of ILO conventions have been ratified by India and some of these though not ratified
have been accepted in principle. The principle of ILO has been incorporated in the constitution of India in
the form of Article 39, which directs the states to secure equal pay for equal work for both men and women.
To give effect to this constitutional provision the parliament enacted the Equal Remuneration Act, 1975.
• In Randhir Singh v. Union of India, the Supreme Court held that the principle of equal pay for equal
work though not a fundamental right is certainly a constitutional goal and therefore capable of enforcement
through constitutional remedies under Article 32 of the Constitution.
• The Equal Remuneration Act, 1976 was enacted with an aim to provide equal remuneration to both men
and women for same work or for work of a similar nature. This act imposes a duty on the employer to
ensure that both male and female workforce is given equal opportunities and there is no discrimination
solely on the grounds of sex. (Section 4(1))
• Under this law, no discrimination is permissible in recruitment and service conditions except where
employment of women is prohibited or restricted by the law (Section 5). The situation regarding
enforcement of the provisions of this law is regularly monitored by the Central Ministry of Labour and the
Central Advisory Committee. No discrimination in any condition of service subsequent to recruitment
such as promotions, training or transfer.
• In order to make the wages equal, the prevailing wages shall not be reduced by higher rates shall be
maintained.
• Till the enactment of The Code on Wages, 2019, The equal remuneration act, 1976 dealt with the concept
of equal pay for equal work. However, Section 69 of the Code on Wages, 2019 proposes to repeal this act.
• The Code on Wages, 2019
- The code defines ‘same work or work of a similar nature’ as the work in respect of which the skill, effort,
experience and responsibility required are the same when performed under similar working conditions by
employees and the difference if any, between the skill, effort, experience and responsibility required for
employees of any gender, are not of practical importance in relation to the terms and conditions of
employment.
- The code stipulates that there shall be no discrimination in an establishment among employees on the ground
of gender in matters relating to wages by the same employer, in respect of same work or work of a similar
nature done by any employee.
- No employer shall reduce the rate of wages of any employee or discriminate on the ground of sex while
recruiting any employee for the same work or work of similar nature.
- Any employee who pays to any employee less than the amount due to such employee under the provisions
of this code shall be punishable with fine upto 50 thousand Rs. On the second and subsequent commission
of such offence, he shall be punishable with imprisonment for a maximum term of 3 months or with fine
upto 1 Lakh Rs or both.
 v. THE WORKMENS COMPENSATION ACT, 1923

• With a view to improve the condition of the workmen some social insurance legislations have been
enacted.
• The Workmen’s Compensation Act 1923 is one of the earliest pieces of labour legislation, adopted to
benefit the labourers.
• To provide relief to workmen and their dependants if the workmen dies or is disabled to accidents arising
out of and in the course of employment.
• It covers all cases of accident ‘arising out of and in the course of employment’.
• The rate of compensation to be paid in a lump sum and it is determined by a schedule proportionate to the
extent of injury and the loss of earning capacity.
• It imposes a liability upon an employer to compensate the employees when they suffer from any physical
disabilities or diseases or death during the course of employment in harzardous working conditions.
• Provides compensation in case of death and disablement.
• Disablement whether permanent total disablement, permanent partial disablement, temporary total
disablement or temporary partial disablement.
• The amount of compensation payable depends in case of death on the average monthly wages of the
deceased workman and in case of an injured workman both on the average monthly wages and the nature
of disablement.
vi. THE MINIMUM WAGES ACT, 1948
• The minimum wages Act was passed for the welfare of labours.
• This Act has been enacted to secure the welfare of the workers in a competitive market by providing for
a minimum limit of wages in certain employments.
• The Act provides for fixation by the central government of minimum wages for employments detailed in
the schedule of the Act and carried on by or under the authority of the central government, by railway
administrative or in relation to a mine, oilfield or major port, or any corporation established by a central
Act, and by the state government for other employments covered by the schedule of the Act.
• The object of this Act is to prevent exploitation of the workers and for this purpose it aims at fixation of
minimum wages which employer must pay.
• The Act contemplates that minimum wages rates must ensure not only the mere physical need of the
worker which would keep him just above starvation but must ensure for him not only his subsistence and
that of his family but also preserve his efficiency as a worker.
vii. PAYMENT OF WAGES ACT, 1936
• An act to regulate the payment of wages to certain classes of persons.
• Responsibility of payment of wages rests with the employer.
• Employer to fix wage period.
• No wage period shall exceed 1 month.
• Permissable deductions from wages : Fines, For absence from duty, For damage caused to the property of
the employer, For amenities provided, like house accommodation, For recovery of advance or adjusting
over payment of wages.
viii. NATIONAL RURAL EMPLOYMENT GUARANTEE ACT 2005
Anyone who is willing to promote manual and unskilled labour: offered wage employment for 100 days.
❖ It can be clearly seen that various national and international laws are enacted for the welfare of women
and to protect the interest of women there have been movements towards the empowerment of women in
labor law. There are various benefits given to women like equal employment opportunity equal pay for
equal work, maternity benefits, protection from sexual harassment etc
 Ⅶ MODULE: WOMEN AND SPECIAL LAWS
Syllabus:
-Women’s Commission -Family Court Act, 1984 -Indecent Representation of Women (Act)
Previous Year Questions:
1.Powers of National Commission for Women (2 marks, 2014)
2. After divorce, wife filed a petition before the family court claiming certain properties. The husband raised
an objection as to maintainability of the wife’s suit on the ground that he had divorced her and the family
court had no jurisdiction to decide the dispute. Decide. (6 marks, 2014)
3. Examine the working of Family Courts in India and how far it ensures justice to matrimonial issues. (4
marks, 2016)
4. National Commission for Women. (2 marks, 2016)
5. Women’s Commission. (2 marks, 2017)
6. Explain how far the establishment of family courts secures speedy settlement of family disputes. (10 marks,
2019)
7. State the functions of National Commission for Women. (4 marks, 2019)
8. Indecent Representation of Women (2 marks, 2019)

1) THE INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986

• The introduction of the Rajya Sabha Bill against Women’s Indecent Representation in 1986 was in response
to a women’s movement which called for a legislative action against the negative depiction of women in the
country.
• This act prohibits the indecent representation of women through advertisements or in publications, writing’s,
painting, figures or in any other manner.
• This Act was brought to check the increasing immoral reproduction of women as a means of advertisement,
film productions, publications and other means of spreading business or trade by unfair allurements.
• The legislation intended to regulate women’s representation in mainstream media, especially in print. It was
implemented to ensure that women’s representation in the media was not indecent through ads, magazines,
publications and illustrations.
• Objects and Reasons of the Act: The law relating to obscenity in India is codified in Sections 292, 293 and
294 of the IPC. Despite these provisions, in publications, especially in advertisements, there is a growing
indecent representation of women or references to women, which has the effect to denigrate women but is
also derogative of women. These have a depraving or corrupting effect. A different legislation is therefore
necessary to prevent the indeterminate representation of women effectively by means of adv, books,
pamphlets etc.
• Definition of “indecent representation: Under Section 2(c), under the Indecent Representation of Women
Act, 1986, the term “indecent representation” has been defined to mean the depiction in any manner of the
figure of a woman, her form or body or any part thereof in such a way as to have the effect to being indecent,
derogatory to or denigrating women or is likely to deprave, corrupt or injure the public morality or morals.
The word “indecent representation” is defined in the 1986 law, with emphasis on “depriving or corrupting”
content, and this is confused with morality.
• Prohibitions made under the Act (Section 3 and 4):
It mandates certain prohibitions:
a) Prohibition of adv’s, containing indecent represtn. of women
b) Prohibition of publication or sending by post of books, pamphlets etc containing indecent represtn of
women.
 Exceptions to this section-
i. Not apply to : Any book, pamphlet paper, slide, film, writing, drawing, painting, photograh, representation
or figure:
1. The publication of which is proved to be justified as being for the public good on the ground that it is
in the interest of science, literature, art or learning or other object of general concern.
2. Which is kept or used bona fide ‘for religious purposes.’
ii. Any representation sculptured, engraved, painted or otherwise represented on or in:
1. Any ancient monument
2. Any temple or on any car used for conveyance of idols, or kept or used for any religious purposes,
3. Any firm in respect of which the provisions of Part Ⅱ of the Cinematograph Act, 1952 applies.
• Powers of authorized Gazetted Officers to enter and search (Section 5):
Authorized by the central govt., may within the local limits of which he is so authorized:
- Enter and search at all reasonable time, with such assistance, any place where he considers it necessary to
believe that an offence under this Act has been committed or is being committed.
- Seize any adv, book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation
or figure which he has reason to believe contravenes any of the provisions of this act.
- Examine any record, register, doc, or any other material object found in any of the searched places and
seize the same if he has reason to believe it may furnish evidence of the commission of an offence
punishable under this Act.
Exceptions to use of such power:
i. No entry shall be made into a private dwelling house without a warrant.
ii. Power to seize may be exercised in respect of any doc, article or item containing such advertisement
including contents which cannot be separated, without affecting the integrity, utility or saleable value
thereof.
- Provisions of CrPC, 1973 shall apply to any search and seizure made under this act.
- Where any person seizes anything, he shall as soon as possible inform the nearest Magistrate and take his
orders as to the custody thereof.
• Penalty for contravention of the prohibitions under this act (Section 6)
Punishable on first conviction with : imprisonment upto 2 years and fine upto Rs. 2000.
Second and subsequent conviction: imprisonment not less than 6 months which may extend to 5 years and
fine not less than 10,000 which may extend to 1 lakh.
• Offences committed by a company or person in charge of a Company (Section 7)
Shall be deemed to be guilty of such offence and can be liable for proceedings and punishment. But if anything
done without their knowledge then he/she cannot be punished. If any offence is proved that it is done with
consent of director, manager, secretary then that officer can be punished under the Act
• Offences to be cognizable and bailable (Section 8) - An offence under this act is bailable and punishable.
• Protection of action taken in good faith (Section 9)
Central govt, any govt or other central govt officer or any other state govt official shall not be liable against
any action, prosecution or other legal proceedings for anything done or intended in good faith under this act.
• Power to make rules (Section 10)
Central govt may make the rules by notifying in the official Gazette. These rules can cover all or any of the
following issues:
- How to seize advertisements or other objects
- How to draw up and submit the seizure list to the person from whom any advertisements or other things
were confiscated,
- Any other matter that may be required to be prescribed.
(Section 10 summary: Rules are made for manner of seizure of articles and manner of seizure list made and
delivered to concerned person or any other matter.)
 • The Indecent Representation of Women (Prohibition) Bill 2012:
- In order to reform the existing structure, the Indecent Representation of Women (Prohibition) Bill 2012
seeks to emphasize the inclusion of women in the audiovisual and electronic communications media and to
address the issue of female objectification. In addition to ensuring a media coverage in all its aspects of the
regulatory structure implemented in law, the law also lays down a stringent compliance mechanism to
behave in a dissuasive way in which any indecent behaviour which contradicts law is prohibited.
- Two major changes introduced by the Bill are those on what advertisements will fall under the scope of the
Bill if passed, and also what will lead to delivery to warrant the punitive provisions of the new regulatory
framework under the amendment.
❖ By adding newer forms of communication like multimedia messaging, internet etc. it will ensure proper
protection is provided against indecent representation of women.

2) FAMILY COURTS
• The Court established to conclude upon matters relating to family law like matrimonial reliefs, custody of
children, maintenance for wife and children etc., is termed as Family Court.
• The Central Government enacted the Family Courts Act in India in 1984 with an intention to encourage and
protect prompt settlement of disputes dealing with family affairs and matrimonial issues.
• Consists of 6 chapters and 23 sections.
• The Act under Section 3 provides for the establishment of Family Courts in areas where the total population
goes beyond one million and in the areas where the State deems necessary to establish such a Court.
• Power to establish family courts and determination of the jurisdiction (Section 4): are vested in the State
Government after seeking advice from the concerned High Court.
• Powers of State Government: The Act empowers the State Government to appoint such number of judges,
Principal Judges and Additional Principal Judges in a Family Court where it considers essential, after the
consultation with the High Court, in accordance with and procedure prescribed under the Act.
• The main function of the Principal Judge is to distribute the business of the court among various judges and
the Additional Principal Judge is appointed to exercise the powers of the Principal Judge in his absence or
when he is not able to do so due to illness or other reasons.
• Qualifications of a Judge of Family Court:
- He should have seven years of experience in the judicial service in India, or
- He should have served as a member of the tribunal, or has seven years of practice as a lawyer in the High
Court or other additional qualifications prescribed by the Union in consultation with Chief Justice of India.
- The Act further provides that a Judge of the family court shall be preferably women and
- Shall be a person dedicated to the need to safeguard and care for the marital relations and
- uphold interests of children and experienced to resolve disputes by way of conciliation and provide
counseling where necessary.
• The State Government shall frame rules on the advice of the High Court to associate, the services of family
welfare organizations, social activists, persons or professionals interested to uphold the welfare of family, with
the family court to assist in fulfilling the powers in concurrence with the present legislation.
• Association of social welfare agencies and counsellors (Section 5 and Section 6):
According to Section 5 of the family courts act, the state government after consulting with the High Court may
make rules regarding the association of the following persons or institutions with the family court:
- Organisations or institutions related to social welfare;
- A professional person who will work for the welfare of the family court;
- Any person who is working in the field of social welfare;
- Any other person whose presence will ensure the effective working of the family court.
 Counsellors:
- Section 6 of this act provides that the state government after consulting with the family court shall determine
the number of counsellors, officers and other employees who will help the family court in discharging its
functions effectively and shall ensure the presence of such counsellors, officers and other employees.
- The counsellors play an important role in the working of the family court. Most of the cases of the family
court can be solved by effective counselling. So, the fair selection of counsellors for the family court must
be ensured.
• Status of the Family Court (Section 7): Same status as that of the District Court and shall exercise the
jurisdiction accordingly and also initiate suits and proceedings in par with the conditions stipulated by the Act.
• Duty of court to make reasonable efforts for reconciliation between the parties (Section 9):
- Section 9 of this act prescribes the duty of the family court to make efforts to promote reconciliation between
the parties. As, per Section 9(1), in the first instance, the family court, in every suit or proceeding, shall make
efforts to convince the parties to settle the dispute with an agreement and for this purpose, the family court
may follow the rules prescribed by the High Court or follow such rules or procedure as the family court may
deem fit.
- Where there is any chance for settlement of the dispute between the parties, the Family Court shall adjourn the
proceedings and take steps for settlement at the earliest.
• Under the Act a party to the dispute cannot claim the service of a legal practitioner as of right, but the Court
shall have the power to appoint a legal professional as amicus curiae.
• Procedures to be followed (Section 10 and 11):
Section 10 lays down the general procedure which is followed by the family courts.
It applies the provisions of CPC, 1908, in the suits and proceedings of the family court and by applying the
Code, the family court shall be deemed to be a civil court and have all powers of such court.
Under Section 11, the proceedings of the family court may be held in camera, if the court feels so or if any
party to the suit wants to do so.
• Help from medical and welfare experts (Section 12):
- As to promote reconciliation between the parties, Section 12 prescribes that the family court can take
assistance from medical and welfare experts.
- According to this section, the family court is open with an option to secure the services of a medical expert
or any other person (preferably a woman), whether related to the parties or not or any professional who will
promote the welfare of the family or any other person who can help the family court in discharging its
functions.
• An aggrieved party may, however, prefer an appeal to the High Court from an order of the Family Court. The
High Court shall frame rules in the matters connected therewith, after publishing in the Gazette. The Act also
confers power on the Central and State Government to formulate rules as prescribed under the Act.
• Evidence (Section 15): It is not necessary for a family court to record the evidence of a witness at length, only
that part is sufficient which is related to the suit or proceeding and it should be signed by the Judge and the
Witness.
• How family courts promote conciliation and speedy settlement of family affairs?
- The main aim of the Family Courts Act, 1984 was to provide quick and less expensive relief to the parties
in a less formal way with least technicalities.
- The object of the establishment of these courts was to promote reconciliation between the parties and reach
a stage of the agreement.
- It is the duty of the Court to make reasonable efforts for the settlement. Therefore, the court works with a
conciliatory approach.
- There are some provisions of the act which suggests that the family court follows a conciliatory approach
to settle the disputes between the party. (State all of the above said provisions)
 COMMON CASES HEARD IN FAMILY COURTS:
i. DISSOLUTION OF MARRIAGE
• India is one of the countries with the largest population, due to which there are many married couples in the
country. While having this large number of married couples, there will be more chances of having more cases
of disputes between the couples and their family. And for seeking remedy they will surely approach the courts.
• In India, the family court can accept the appeals for grant of decree of divorce under various acts like
- Dissolution of Muslim Marriage Act, 1939,
- Muslim Women (Protection of Rights on Divorce) Act, 1986
- The Parsi Marriage and Divorce Act, 1936,
- The Divorce Act, 1869,
- The Special Marriage Act, 1954,
- The Foreign Marriage Act, 1969 etc.
• For the dissolution of Hindu marriage, one can file an appeal for divorce under Hindu Marriages (validation of
proceedings) Act, 1960.
• In the case of Reddy Anada Rao v. Ms Totavani Sujatha, the appellant and the respondent were living their
life by following Christian religion but they got married as per the Hindu rituals in a Hindu temple. The
appellant i.e. the husband claimed that he was forced to marry the respondent therefore, he appealed for the
dissolution of his marriage and to set aside his marriage certificate. The question was raised by the office of
the family court that the marriage was itself null and void as per the provisions of Hindu Marriage Act, 1955
so there is no need for the suit. The judge held that the appeal for dissolution of marriage is not maintainable
in the family court as Section 5 and Section 11 of the Hindu Marriage Act has clearly laid down that the
marriage is null and void if it has been done with coercion or without the consent of any party. Later, the
husband appealed in the High Court for which the court held that as per the Explanation (a) of Section 7 of
Family Courts Act, 1984, the family court has jurisdiction in the concerned matter. As per the provisions of
this act, the family court has jurisdiction over the disputes arising out of the marriage of any caste or creed.
ii. CHILD CUSTODY
• The explanation (g) in Section 7(1) provides that the family court has jurisdiction to grant the custody of the
child to a proper person and to make that right person the guardian of a minor.
• The cases related to the custody of the child are filed before the family court where he usually resides. For
example, if the father is residing in Uttar Pradesh and the mother along with the minor child is residing in
Mumbai and the father wants to have custody of the child then he has to file the case in Mumbai’s family court.
Thus, the family court has exclusive jurisdiction over child custody cases.
• The family court has also the power to accept the petitions made under the Guardian and Wards Act, 1890 and
the Hindu Minority and Guardianship Act, 1956.
iii. DOMESTIC VIOLENCE
• The family courts act has not specifically mentioned the jurisdiction of the family court in matters of domestic
violence. And this is the area where family courts are lacking.
• However, there is a provision under the Protection of women from Domestic Violence Act, 2005 (hereinafter
DV Act), according to which the family court can entertain the matters related to domestic violence. The DV
Act is not wholly a criminal law; it has also granted powers to the civil and family courts.
• As per Section 26 of the DV Act, the victim can not only claim relief from the Magistrate but also from the
family court and other civil courts.
• In the case of Sudhannya K.N. vs. Umasanker Valsan, the Kerala High Court discussed the scope of DV
Act and held that the scope of DV Act is wide as it guarantees rights to women to approach either magistrate
or family court for filing suit according to her comfort zone. The court also held that the family court has the
power to pass the interim protection orders as well as interim residence orders under Section 26 of the DV
Act.
iv. MAINTENANCE
• Under the family court act, explanation(f) of Section 7(1) clearly provides that the family courts have
jurisdiction over the suits or proceedings for maintenance.
• Also under Section 7(2), the family courts have the power to exercise a jurisdiction which is exercised by a
Magistrate of the first class under Chapter IX of the Code of Criminal Procedure, 1973, which is related to
maintenance of wife, children and parents. This means the family courts can grant maintenance under Section
125 of CrPC.
• The Supreme Court recently in the case of Rana Nahid v. Sahisul Haq Chisti (2020) has given a contrasting
judgement over the jurisdiction of the family court under Muslim Women (Protection of Rights on Divorce)
Act, 1986 (1986 Act).
- The facts of the case are: a Muslim woman moved to the family court of Ajmer under Section 125 of CrPC
for claiming maintenance from her husband as she was harassed for dowry and was thrown out of the home.
The family court accepted the application made under Section 125 of CrPC, as an application under Section
3 of the 1986 Act. The family court ordered the husband to pay Rs 3 Lakh to his wife and Rs 2000 every
month for the maintenance of his child.
- The husband moved to the High Court against the order of the family court and questioned the jurisdiction
of the family court under the 1986 Act. The High Court held that the family court has no jurisdiction to pass
such an order under the 1986 Act. However, the petitioner can approach the Court of competent Magistrate
under Section 3 of the 1986 Act. The wife approached the Supreme Court against the order of the High
Court.
- It was held that the family court has the jurisdiction for accepting applications made under Section 3 of the
1986 Act. The preamble of the Family Courts Act suggests that it is a secular statute which means all the
laws are applied in the matters irrespective of the religion. Also, Section 7(1), of the act provides that the
family court has the same powers and jurisdiction as of a District or Subordinate Civil Court to entertain
suits or proceedings for maintenance. The court also made a reference to the principle of equality under
Article 14 and Article 15 of the Indian Constitution and extended the jurisdiction of the family court for the
benefits of Muslim divorced women.
v. PROPERTY DISPUTES
• As per the explanation (c) of Section 7(1) of the family courts act, the family court has jurisdiction over the
disputes related to the property of the parties to the marriage. Generally, the disputes between the parties to
the marriage arise when the decree of the divorce has been passed. The family court can entertain the suit or
proceeding related to the disputes of the property of the parties of the marriage by satisfying two conditions:
- Such a dispute must have arisen between the parties to the marriage only.
- Such a dispute must have arisen due to the property of either party.
• In the case of Mrs Mariamma Ninan v. K.K. Ninan, the petitioner i.e. the wife approached the family court
for the partition of the property and claimed her separate possession as she also contributed Rs 3 lakh for the
construction of the property. The family court didn’t accept the petition and directed the petitioner to file a
Civil suit. However, the High Court set aside the order of the family court and held that the said matter falls
under the jurisdiction of the family court as per Section 7(1) of the family courts act. The high court held that
the family courts have jurisdiction to entertain the disputes related to the partition of the property of the parties
to the marriage. Therefore, the high court resend the matter to the family court and directed the court to
entertain the matter and settle the dispute.