GENDER JUSTICE AND FEMINIST JURISPREUDENCE

UNIT-5
MATERNITY BENEFITS ACT
Introduction
In India, the percentage of women engaged in employment is a mere 26.97%. This, in turn,
means that 3 out of every 4 women are not employed, or are not actively seeking any
employment activities. In order to fuel female participation and engage more women in the
workforce, the Centre implemented the Maternity Benefit Act, 1961, in order to ignite the
representation of women in the employment sector.
The maternity benefits for women
The Maternity Benefit Act, 1961 [‘Act’] which entails various benefits given to pregnant women
employees and workers, was passed as a way to provide relief to women struggling to balance
their work and household/family duties. In a bird’s-eye view of the total number of women
employed in a broad spectrum of occupational sectors, an increase in the number of employed
women mandated the passing of a law that protects and safeguards the rights of women in terms
of their maternity health and childcare. In the era preceding Independence, an array of women
were made to work in mines, do strenuous activities, and work night shifts while being pregnant,
which affected their health and caused prenatal complications. The Act was passed relieving
women of such apprehensions and, in turn, establishing concepts such as maternity leaves with
wages, payment of maternity benefits as defined under Section 3(h) of the Act, nursing breaks,
rights against the deduction of wages, etc., thus implementing a drastic improvement to their
conditions. The Act was amended in 2017 on the recommendations of the Indian Labour
Commission, thereby, giving additional rights to women regarding maternity health, which
surpassed standards of care given by countries in Europe and Asia regarding maternity health
and benefits.

Rights of the women under the Maternity Act

The Act incorporates the rights and benefits that women are entitled to receive while employed,
whether directly or through any agency, for wages in any establishment.

Employee’s rights
Any woman as an employee of the establishment that she is part of, can exercise her rights under
the Act, if she becomes eligible to do so. Section 4 and 5 delve into the rights that women have
as solely being an employee of an organization.
No work during certain periods: Subpart (1) and (2) of Section 4 inter alia provide that the
employer cannot employ any woman, or engage her in any work if already an employee in such
organization, within the duration of 6 [six] weeks immediately after her delivery date/
miscarriage/ medical termination of the pregnancy.
Exemption from strenuous work: If a woman requests to do so, the employer must, for a
certain period of time, exempt her from engaging in any strenuous, arduous, tiring, or lengthy
activity that may affect her wellbeing and maternity health [Section 4(3)]. Such periods include:

1. the period of one month immediately before the date of her expected delivery;
2. any period during the said period of six weeks for which the pregnant woman does not
avail of leave of absence under Section 6 of the Act.
Dismissal during absence: No employer can dismiss, discharge, or fire a woman during the
period of absence as taken in accordance with the provisions of the Act. If she is discharged and
dismissed at the time wherein she would have been applicable for the maternity benefit, such
benefit would still be applicable to her. If in case such an employer does deprive women of the
maternity benefit, such women have a remedy, by appealing to a prescribed authority, whose say
in the matter is final. [Section 12]
Overriding Power of Contract: If, in an event that any woman, has signed an
agreement/contract or received an arbitral award, etc., and the provisions for maternity benefit in
such agreement/contract/award are more favourable to her than those which she is entitled to
receive in accordance with the Act, then she shall be entitled to the more favourable benefits
under the agreement/contract/award. [Section 27]
Maternity Benefit: Sections 5, 6, and 7 provide for the right that women have to receive
maternity benefit from their employers. In accordance with Section 5(2), a woman can only
claim maternity benefit from an employer after completing a minimum period of 80 [eighty]
days in the employment of the establishment from whom such benefit is being claimed, in the
twelve months immediately preceding the date of her expected delivery. Such benefit is available
to any woman working in the employment of the establishment, irrespective of the contract she
has with the establishment.
This was laid down in Municipal Corporation of Delhi vs. Female Workers (Muster Roll) & Anr.
In this case, the Municipal Corporation of Delhi granted maternity benefits only to the regular
female workers, and denied it to female workers on the muster roll, and not regularised. The
Court held that in accordance with Articles 14 and 15 of the Constitution “labour to whichever
sector it may belong in a particular region and in a particular industry will be treated on an equal
basis.” (Hindustan Antibiotics Ltd. v. Workmen (1967). Thus, it was held that all women shall be
entitled to receive maternity benefits from the establishment.

1. Payment of Maternity Benefit: Every woman has the right to be paid maternity benefits
from her employer at the rate of her average daily wage, for the entirety of the period
wherein she has remained absent from employment, by taking leave in accordance to
the provisions of the Act.
2. Time Period for Maternity Benefit: The maximum period for which any woman would be
eligible to receive such maternity benefit shall be 26 [twenty-six] weeks, of which only
 a maximum of 8 [eight] weeks can be counted before the date of expected delivery. If a
woman has 2 or more surviving children, then the benefit extends to only a period of 12
[twelve] weeks of which a maximum of 6 [six] weeks can be counted preceding her
delivery date. In calculating the number of days viable to receive maternity benefit, the
Act also includes the holidays as being included in such calculation.
The question of the time period of maternity benefit was brought up in B. Shah vs. Presiding
Officer Labour Court, Coimbatore, and Ors. The issue that arose in court was whether Sundays,
being wageless holidays, should be included in the calculation of the maternity benefit period.
It was held by the Supreme Court that the benefit that was conferred by the Maternity Benefit
Act, read with Article 42 of the Indian Constitution, was directed to help women to not only
safeguard her maternity rights but also preserve her effectiveness as an employee and keep her
efficiency level stable. She, therefore, requires any amount that may become payable to her, in
lieu of the medical expenses and wellbeing of the child. The law makes maternity benefit
compulsory so as to help women balance their employment and reproductive roles efficiently.
Thus, the court, in accordance with the rule of beneficial construction, stated that Sundays would
be included in the said period.

1. In case of death: If a woman dies in the duration of the period of maternity leave as
mentioned hereinabove, the maternity benefit applicable to her shall only be calculated
till the date of her death. If the woman dies after giving birth to the child, and thus
resulting in the survival of the child, then the entirety of the maternity benefit would be
payable. If the child dies during the period when maternity benefit is applicable to the
mother, then the employer is expected to pay such maternity benefit applicable up to the
date of the child’s death. Such payments after the death of the woman shall be made to
the person nominated by the woman in the notice given under Section 6 (1) of the Act,
and, in case there is no such nominee, to her legal representative.
2. Method to claim maternity benefit: In order to be applicable to claim such maternity
benefit as provided for under this Act, any woman looking to access this right has to
submit a notice to her employer in accordance with the form prescribed by the
establishment she is employed with. Such notice should consist of the following:

a. The maternity benefit and any other amount she might be entitled to under this Act;
b. The name of the person to whom such amounts should be paid;
c. A confirmation that she will not work in the establishment in the duration of receiving
such maternity benefits;
d. The date of commencement of her absence from employment.
The employer is to pay such maternity benefit to the woman in advance, after the production of
evidence from the woman stating she is pregnant.

5. Failure to provide notice: The Act gives another right to women that condones the failure
to provide such aforesaid notice. Such failure does not exempt a woman from receiving
the benefit but provides that the order by an inspector after reviewing an application for
the payment of the benefit can make the woman eligible for the payment of maternity
benefit.
Wages
As stated in Section 5 of the Act, the women claiming maternity benefits are to be paid their
‘average daily wages’ in the duration of their absence. Such ‘wages’ constitute varied amounts
that are further detailed under Section 3(n) of the Act. Such wages include the cash
allowances/income a woman is entitled to, at the prevailing time, dearness allowances, house-
rent allowances, incentives/bonuses, the concession of food and other articles provided by the
employer.
Right against the deduction of wages: An employer cannot deduct the wage of a woman
employee entitled to maternity benefit by reason of the nature of work assigned to her, breaks
taken to nurse her child, or any other reason attributed to her maternal and post-delivery
health/status.

Leaves
The provisions regarding the right to maternity leaves are entailed under Sections 9, 9A, and 10.
These provisions, in turn, provide for the following conditions circling the right to maternity
leaves.
Right to leave in case of miscarriage/abortion: A woman who has suffered a miscarriage or
underwent the medical termination of her pregnancy has a right to ask for a paid leave at the rate
of maternity benefit, on the production of evidence of such happening for a period of 6 [six]
weeks immediately after the day of such happening.
Right to Leave in case of a Tubectomy: A woman who has undergone a tubectomy operation
has a right to ask for a paid leave at the rate of maternity benefit, on the production of evidence
of such happening, for a period of 2 [two] weeks immediately after the day of such operation.
Right to Leave for illness arising out of pregnancy: A woman suffering from any illness
arising out of pregnancy, delivery, premature birth of a child, miscarriage, medical termination
of pregnancy or a tubectomy shall have the right to ask for a paid leave at the rate of maternity
benefit, in addition to the period of authorized absence already provided under Section 5 and 6,
in accordance with the provisions of this Act, on the production of proof of such illness.

Other benefits
In addition to the benefits and rights as mentioned above, the Act also provides for some
miscellaneous benefits to women, to further help in the safeguarding and well being of her
maternity health and status.
Maternity Benefit and Adopted Children: If a woman legally adopts a child below the age of 3
[three] months, or is a commissioning mother [added as Section 3 (b)(a) by the Maternity Benefit
(Amendment) Act, 2017], she is entitled to maternity benefit for a period of 12 [twelve] weeks
from the date the child is handed over to her. [Section 5(4)]
Work From Home: The women entitled to maternity benefit under this Act have the provision
of undertaking the work of the establishment at their own homes if the nature of work allows
them to do so and the employer consents to the same. [Section 5(5)]
Nursing Breaks: After the period of maternity benefit has concluded when the woman
commences her employment again, in addition to the break timings given to her, she has a right
to receive two breaks in the course of the day that are prescribed for the nursing of her child, for
a set period of time until her child reaches the age of 15 [fifteen] months. [Section 11]
Crèche facility: In furtherance of the rights provided, the women also have access to the
provision of a crèche facility four times a day including the break timings given to her, if the
employment establishment falls within the category that mandates the provision of a crèche
facility. [Section 11 A]
Medical Bonus: A woman entitled to maternity benefit from an employer, is also entitled to a
medical bonus from such an employer consisting of Rs. 1000/- [Rupees One Thousand Only] in
an event that no prenatal or postnatal care is provided by such an employer for free. [Section 8]
Applicability of the Act
The applicability of the Act can be understood in a two-part sense, i.e. the applicability to an
establishment, and the applicability to a woman claiming such benefit under the Act. The
establishments which are bound to abide by the guidelines of the Act are:

1. Mines;
2. Factories;
3. Plantations;
4. Establishments displaying acrobatic and other performances;
5. Shops and/or establishments as defined under the Shops and Establishments Act of the
state;
6. Any such establishments having 10 [ten] or more people who are, or were employed
within it in the preceding 12 [twelve] months;
7. Any other establishment, as may be notified by the Central/State Government to be
included under the ambit, vide an official gazette.
All such establishments are required to follow its duties as laid down under the Act. These
establishments thus fall under the ambit of ‘applicability’ vis-a-vis the provisions of the Act. It,
however, does not apply to any other factory, wherein other maternity benefit laws apply, such as
the Employees State Insurance Act, 1948.
Another feature that corresponds with the applicability of the Act, is the category of women who
can claim such benefits under the Act. In accordance with Section 5(2) of the Act, any woman
who has been employed for a continuous period of 80 [eighty] days in the 12 [twelve] months
immediately preceding her date of delivery with the establishment from which she is seeking
such benefit, is entitled to receive the benefit. Any and all women falling under this category are
provisioned to claim maternity benefit from their employer as under this Act, irrespective of the
type of contract she may have with such establishment.
Additionally, Sections 5A and 5B of the Act also lay down certain inclusive provisions for
women seeking this benefit. Section 5A provides for the continuance of maternity benefit to a
woman irrespective of the application of the Employees State Insurance Act, 1948 until she
becomes qualified to be entitled to maternity benefit as stipulated under Section 50 of the 1948
Act.
Section 5B states that a woman is applicable to receive benefits under the act if employed with a
factory to which the 1948 Act applies, whose wages per month exceed the provisions
under Section 2(9)b of the 1948 Act, and who fulfils any other condition mentioned in that Act.
The obligation of the States
The foundations of duties and responsibilities of the government are enshrined in the
Constitution of India. It holds paramount importance and is regarded as the backbone of any
other legislation prevailing in our country today.
Article 42 of the constitution provides for the just and humane conditions of work and maternity
relief. It states that the State shall make provisions for securing just and humane conditions of
work and for maternity relief. Thus, the responsibility of ensuring maternity rights to the citizens
lies in the hands of the State. As a general practice, the Centre issues central legislation with
powers given to the States to amend and constitute rules for the same in the respective territories,
and such is the practice for the Maternity Benefit Act, 1961 as well. Therefore, the Government
of India, as well as the State Governments, becomes liable and responsible to protect maternity
rights of women in the country. In order to affect the employment of women in myriad sectors of
employment in periods before and after childbirth, the Parliament passed the Maternity Benefit
Act, 1961. This was done with an objective to reduce gender inequality, discrimination, unfair
practices, and other maladies that existed due to gender disparity in the country. It is the State’s
obligation to manoeuvre the laws in a manner so as to improve the conditions of the citizens and
protect their health and well being. In pursuance of this duty, the State passed the Act, to regulate
the participation of women in the working sector.
Before the Act, the Bombay Government passed the Maternity Benefit Act of 1929 in a response
to the Trade Union movement, which compelled them to make security laws for women
labourers to improve their working conditions during pregnancy.
The increasing understanding of the obligation of the State in assuring maternity benefits was
established in the case of . Mrs. Bharti Gupta vs. Rail India Technical and Economical Services
Ltd. [RITES] and others In this case, the Court held that the nature and provisions of benefits for
women during and after childbirth had been laid down in the Act. The Act is a social and
benevolent law and because of its objective, it had to include the establishments of RITES as
falling within its purview. RITES is an instrument of the State, as laid down by Article 12 of the
Constitution and is thus, under the ambit of Part 3 of the Constitution. Thus, RITES had to
follow the provisions of the Act and did not have any leverage to be exempted from such duties.
The concepts of maternity rights and gender equality, as we see today, have stemmed from
various international human rights legislation and treaties such as the International Covenant on
Economic, Social and Cultural Rights of 1996. The International Labour Organization on many
occasions has highlighted the importance of extending maternity protection and promoting a
balance in the work and personal life of the women. In response to the 1975 seating and the 2004
seating of the ILO, the Indian Parliament amended the preexisting Maternity Benefit Act in
2017, to make it more inclusive and at par with international standards.
Challenges for employers
In contrast to situations in other nations, India is considered to be disadvantageous on the part of
the employers’ obligations. This is because the prevailing legislation on maternity benefits, that
is the Maternity Benefit Act, 1961, puts the burden of payment of wages, to the women claiming
maternity benefit, completely on the employers. In most other countries, such financial burden is
shared by the employer and the state, however, this, unfortunately, is not the method India
decided to adopt. This indirectly leads to the reduced employment of women in many
establishments. This transverse reaction stems from the fact that since companies and
establishments have to pay for maternity benefit themselves without any state aid, the profit to
loss ratio would indicate that hiring male counterparts would ineffectually be more feasible, than
making extra payments for women under such Act. Thus, this challenge to employers is a
challenge for women seeking employment as well.
In an attempt to improve such conditions, the government, as stated here below, has drafted a
scheme called the Maternity Leave Incentive Scheme, 2018, in order to assist the employers in
providing maternity benefit to the women workers.
Additionally, many SMEs (Small and Medium Enterprises) cannot practically afford a six to
nine-week leave that they are obligated to grant their employees, as this would adversely affect
the growth of the company; and hiring cheap temporary workers to fill in the vacancy caused due
to availing maternity benefits also becomes unaffordable.
The employers could also face the challenge of women misusing the provisions of the Act for
their own benefit, by availing the maternity benefits and leaving the said employment
immediately after the period for maternity benefit has passed, thus, causing a great waste of
resources for the employer.
Further, many difficulties in establishing creches for women and their children also arise due to
matching standards of quality of the creche, as well as establishing one in a convenient location.
These, along with myriad other moral and legal challenges faced by the employer, make it
difficult to comply with and be legally correct in carrying out the provisions of this Act.
Conclusion
The Maternity Benefit Act, 1961 as well as the Amendment of 2017, have proved to be a boon,
as well as a bane to the country and its economy. However, the Government has played its part in
matching international standards of maternity rights via these legislations so that the gender
neutrality and efficiency of work is maintained in the country. It properly safeguards the rights of
women and maternity and provides for the basic foundations of health and safety.

EQUAL REMUNERATION ACT

Introduction

Women are the integral part of the world of work both in terms of the Quality and Quantity. The
parity of women’s employment is very important and this depends upon several factors. The
foremost being equal access to quality education and fair opportunities in the paid labour market.
This requires empowerment of women as well as the creation of awareness amongst all the
stakeholders about their legal right and duties. We need to learn and adopt the concept of rising
Generation Equal.[i]

Gender discrimination has been present since time immemorial across the globe. It is more
constrained to the areas where implementation of labour law is weak. The dominant area of
gender discrimination is at workplace where women are paid less than men for equal work. The
reason of wage disparities between men and women may range from poor bargaining capacity to
variation in women’s workforce participation.

Constitutional Provision

Article 14 guarantees “Equality before Law and Equal Protection of Laws within the territory of
India”. Article 15 prohibits discrimination on grounds, inter alia of sex. Article 15(3) empowers
the state to make, any special provision in favour of women. Article 16 guarantees equality of
opportunity in matters of public employment. While Article 16(1) ensure equality of opportunity
for all citizens 18 Implementation of The Equal Remuneration Act, 1976 including women in
matter relating to employment or appointment to any office under the state, Article 16 (2)
prohibits discrimination in respect of any employment or office under the state on the ground,
inter alia, of sex

Article 39 [ii]of the Constitution of India is the tool that provides equality and social economic
justice to an aggrieved person. It enshrines the principle of equal pay for equal work. Article 39
of the Constitution of India envisage that the State must direct its policy towards providing equal
pay for equal work irrespective of sex of worker.

India has signed Equal Remuneration Convention [iii](100) in 1951 and implemented The Equal
Remuneration Act, 1976. The Equal Remuneration Act [iv]also owes its origin to the Article 39
(d) which was incorporated as one of the ‘Directive Principles of State Policy’ in the
Constitution of India.

In Randhir Singh Vs Union of India [v], 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 doctrine of equal pay for equal work is equally applicable to persons employed
on daily wage basis.
However, if there is rational basis on which payment of wages are different between men and
women then, it will not be violative of any law. In State of A. P. Vs V. G. Sreenivasa Rao [vi],
the Supreme Court has held that giving higher pay to a junior in the same cadre is not illegal and
violative of Article 14, 16 and 39(d) if there is rational basis for it.
Equal Remuneration Act, 1976 as a tool of Women’s Economic Empowerment

The main object of Equal Remuneration Act, 1976 is to provide equal renumeration to men and
women for equal work or work of similar nature in the matter of employment. It prevents
discrimination on the ground of sex against women. It also ensures that there is no discrimination
on the basis of sex in the matter of recruitment of women. Further, it provides for setting up of
advisory committee to promote employment opportunities for women.

This legislation not only provides women with a right to demand equal pay, but any inequality
with respect to recruitment processes, job training, promotions, and transfers within the
organization can also be challenged under this Act. The judgment of the Supreme Court in State
of Punjab Vs Jagjit Singh [vii], which applies the principle of “equal pay for equal work” in the
context of temporary employees of the Punjab Government.
Chapter – II of Equal Renumeration Act, 1976 from Section 4 to Section 7 provides for the
payment of remuneration at equal rates to men and women workers and other matters whereas
Chapter-III is the miscellaneous chapter that covers the duty of employer, power of appropriate
government and penalty provision.

Section 4 of this Act provides the duty of employer to pay equal remuneration to men and
women workers for same work or work of a similar nature. As per Section 2(h) same work or
work of a similar nature means work in respect of which the skill, effort and responsibility
required are the same, when performed under similar working conditions, by a man or a woman
and the differences, if any, between the skill, effort and responsibility required of a man and
those required of a woman are not of practical importance in relation to the terms and conditions
of employment.

Therefore, no employer shall pay to any worker renumeration at rates less favourable than those
at which remuneration is paid by him to the workers of the opposite sex in the establishment or
employment for performing the same work or work of a similar nature. Also, the employer
cannot reduce the rate of remuneration of any worker. The category of renumeration paid can be
in cash or in kind.

Penalty Provision

Section 10 of the Act provides that If, any employer—

(a) makes any recruitment in contravention of the provisions of his Act, or

(b) makes any payment or remuneration at unequal rates to men and women worker, for the same
work or work of a similar nature, or

(c) makes any discrimination between men and women workers in contravention of the
provisions of this Act, or

(d) omits or fails to carry out any direction made by the appropriate Government under sub-
section (5) of Section 6.

Then he shall be punishable with fine which shall not be less than ten thousand rupees but which
may extend to twenty thousand rupees or with imprisonment for a term which shall be not less
than three months but which may extend to one year or with both for the first offence, and with
imprisonment which may extend to two years for the second and subsequent offences.
Conclusion

The scope of Equal Renumeration Act, 1976 is very vast. It covers all industries, public or
private, organized and unorganized, and all employees doing permanent, temporary and casual
work. The law covers central, state and local authorities, hospitals and dispensaries, banks and
financial services, educational institutions, mines, provident funds and other state insurance
corporations, the Food Corporation of India and other warehouses, all industries under National
Industrial Classifications (NIC) groups 1, 2 and 3; power, water and gas generation, trade,
transport (water, land and air), construction, real estate and sanitation, religious community and
medical and personal services. However, the Act does not cover self-employed workers like
unpaid women workers in farming, households and in the unorganized Industries in large
numbers.

FACTORIES ACT
Introduction
Women in our country form an integral part of our workforce and the General Census 2001
stated that 127,220,248 people in the workforce are women. In other words, 149.8 million female
workers exist, 121.8 million women work in rural areas while 28 million work in urban areas.
Women in our country face certain discrimination in the workplace. There was a time where
women were not allowed to do certain jobs but that was later amended and now women can do
any job they choose to do. Even though there are laws against discrimination women still face
discrimination sometimes, especially in work which is usually seen as a men’s job such as
working in factories or mines. As stated in Article 15 of The Constitution of India, there will be
no discrimination based on gender in anything. Yet some women face discrimination while
working in factories. Though the Factories Act, 1948 does provide for many provisions related to
women and women’s health, safety, well-being, and benefits, it still is lacking in certain areas.
Health and safety provisions for women provided under the Factories Act, 1948

Section 19: Latrines and urinals

Chapter III and Chapter IV of the Factories Act provide for health and safety provisions
respectively. Section 19 of the Factories Act mandates that every factory must have enough
latrine and urinal accommodations, for both men and women which should be accessible to all
the workers at all times. No person can be barred from using them at any time and the employer
must maintain adequate cleanliness and sanitation in the latrines and urinals at all times. There
should also be washing places nearby. This is all very necessary for keeping the workers healthy.
Women, in particular, should not have any problem. This section aims to keep women and men
healthy at all times. Though unfortunately both women and men had to work overtime with no
toilet breaks by their employer in this COVID-19 pandemic to continue supplying the growing
demands of their consumers.

Section 22: Work on or near machinery in motion

The Factories Act very clearly states in Section 22 that the lubrication of machinery and/or
adjustment of any machinery or any part of it, while it is in motion, will not be done by any
woman or a young person. This Section exists to prevent any dangerous injury to any woman or
child (young person).

Section 34: Excessive weights

Section 34 gives certain powers to the concerned State Government to make rules regarding the
maximum weight limit which would be lifted by women, men, and younger people in the
factories. It is clearly given that no one can be employed or asked to move or lift a weight that
may cause them harm or injury.

Section 27: Prohibition of employment of women and children near cotton-openers

Section 27 of the Factories Act prohibits any women in employment to be employed in any part
of a factory for pressing cotton or in which a cotton opener is used. This is done to keep the
women healthy as there is a high risk of the cotton bales generating flames. When wet cotton
bales are being pressed (in cotton pressing) they generate high amounts of heat and the things
around them can catch fire. In many instances, the dry cotton bales nearby have caught on fire
and have caused fire-related accidents and burns to the people in the immediate vicinity. Women
are not allowed in the process so as to prevent burn-related injuries.
Furthermore, the sudden opening of cotton bales (in the cotton opening) may result in the steel
straps holding them to split open and disengaging, which sometimes hits the people nearby, this
can cause a lot of pain and injury. Hence, so as to protect women from such injuries, they are
prohibited to be employed in cotton opening procedures. Though women can be employed in
other parts of cotton factories that are not hazardous to health such as cloth-making, weaving,
cotton cleaning, dyeing, etc.

The lacunae in the Factories Act, 1948 and the reality

In garment factories and clothes factories, women are being fired or are being underpaid in the
current corona pandemic. In the lockdown, many people sat in their homes without work and
hence without money. After the lockdown was lifted the factories only allowed up to 30% of
their workforce making many people still unemployed. Female workers who had children were
asked to not come to work to not endanger their own lives and their children’s lives but the
workers after some time needed money to feed their families. The 30% workforce was allowed
to follow the social distancing norms and as it was the bare necessity.
Many factories laid off their workers as they found it to be more convenient than keeping them
idle or on the sidelines till the pandemic ends, as the end of the pandemic is nowhere in sight
even now. Apart from that many women suffered pay cuts and partial work due to the pandemic
and losses incurred by the industries. Many brands cancelled their orders and/or closed their
shops down till further notice. This reduced the demand for clothes and thus further reduced the
demand for work and hence workers, along with incurring more losses. This all, in turn, made
the factory owners resort to paying cuts and laying off of their employees, leaving many women
jobless or with an underpaid job.
Women, in general, are not favoured over men in factories as much of the work in factories is
heavy lifting, hazardous, and sometimes life-threatening, which all is exempted to be done by
women and hence they can only do some specific work in only certain factories. But even that is
now being taken away from them in this COVID-19 pandemic. Even before the pandemic the
work prospect of women and chances to get a job in a factory was low as many factories do not
hire women (as their work or manufactured goods may be harmful or hazardous) and due to the
high population of our country, there are always fewer job opportunities. Women need these jobs
as women who work in factories usually have a child or two and need to take care of them and
work to provide for them. Their husband’s salary might not be enough in some cases and hence
they also must go to work and earn for the welfare of their family.
The Fairwear Foundation had once stated that violence is very common in Indian Garment
Factories and it ranges from verbal and physical abuse to sexual harassment and even rape.
Though Section 11 of the Factories Act, 1948 talks about cleanliness many factories are not
actually a very clean place. Many factories make workers work in horrible sanitation
surroundings and completely ignore the mandate. Many factories clearly violate multiple health
and sanitation demands from the Factories Act. Improper ventilation exists in many factories, to
the point that the workers sometimes go outside the factory to breathe properly or as they call it
“a breath of fresh air”. Waste is seldom cleared out and some parts of factories have continuous
dust and fumes (mainly due to mechanical work causing it) and are not cleared out. The factory
owners get away with all of this by cleaning up the mess for a few days in case of inspection by
the authorities under Section 9 of the Act.
Many workers do not even have proper lighting in their workplaces and so they prefer day shifts,
working using the light of the sun but at dark, with poor lighting, it is really hard to work
especially if the work is to weave clothes or sew clothes. All in violation of Section 17 of the
Factories Act 1948. The International Labour Organisation has stated how important lighting is
in any factory, and how it even increases work efficiency. The article by the International Labour
Organisation even states where to put lights and serves as a basic plan for all factories.
Chapter V of the Factories Act 1948 provides for welfare for the workers by the employer. Most
of this welfare are basic human needs like sitting areas, canteens, facilities for first aid, and even
creches. Most factories should even have welfare officers to look after the needs of the workmen
and women, but many factories lack that. Many factories have all the welfare needs but they are
sub-standard at best. With broken benches and old tables which have not been changed for years.
Improvement and initiative to protect women’s interests
There is vocational training for women under the Directorate General of Employment and
Training. This training program was made to make women independent and so they could speak
up, talk and learn. This training program helps them in getting better jobs in the job market. The
Directorate General of Employment and Training (DGE&T) is the main agency for providing
vocational training in the traditional and contemporary courses and it even certifies women to be
able to keep up with the trained skill workmen to any industry and/or service sector. The courses
under the DGE&T help women achieve their goals and dreams by providing them with a much-
needed confidence boost along with the training they need to secure a job in the job market. The
DGE&T also plans long-term training programmes for women’s vocational training in the entire
country. The institution has eleven institutes from the central sector and offers many courses to
help women find jobs or self-employment by giving them the skills necessary to do so. The
vocational training even exists in the state sector and the women are exclusively taught
craftsmanship through a network of people under administrative control. Some of the courses
offered by DGE&T are dressmaking, electronics, architecture, and secretarial practice.
A project for reducing sexual harassment in factories and workplaces was supported by the
United Nations fund which is training thousands of women workers in India and Bangladesh
through education. Many of the teachers there were victims themselves and hence understand the
pain of their students and hence know how to teach them how to stand up for themselves and
stop the sexual harassment once and for all. This project is even supported by the United Nations
Trust Fund to End Violence against Women, and focuses on 24 different factories and all of their
3,500 women workers and 15,000 other workers and imparts them the education necessary to
stand up to such uncivil behaviour by their co-workers.
The Government of India also has done quite a few things for the women in factories; there are
maternity benefits given via The Maternity Benefits Act, 1961 which states how long the
maternity leave will be and what work the woman will be allowed to do after she comes back to
work (after having her child). The Act does not just give maternity benefits but also certain other
benefits. Many provisions of the Factories Act aim at the welfare of women and focus on their
wellbeing and go to the extent of penalising the employer if the women are not given certain
benefits.
The Maternity Benefit Act provides for a paid leave for 12 to 26 weeks which greatly helps the
women. Recently the government has been making policies to increase women’s participation in
the country’s workforce. They have given tax incentives to companies to hire women and having
women in their companies and factories above a threshold they will get tax reductions. The
media has been taking an active role in spreading awareness about sexual exploitation in the
workplace and even has written articles about how we need more women in manufacturing
industries, both in the factories and upper management.
Conclusion
Women in factories have faced many hardships, there was a time they were denied jobs or were
given jobs with sub-par conditions and less than average wages which they had to still take as
they were desperate. It improved to the point that legislation was implemented to aid them but
the benefits were only on paper and not practically. Now, finally, the benefits are showing in
practice, with the help of different NGOs and United Nations Welfare schemes along with our
women care bodies established by the government, women in factories are finally getting what
they duly deserve. Women are getting the wages that they duly deserve, and receiving the most
benefits that they are supposed to. Though there are some places where they need help, it has
improved a lot than it was a decade ago. But we must stay vigilant as then only then can we stop
exploration of any kind, to man, woman, or child. The government must keep implementing laws
for the benefit of all and make bodies to see the valid practical implementation of those
beneficial laws. Only then can we say we have achieved true equality and women in all
workplaces will be safe!

What is gender inequality?

A company that practises gender equality treats men and women the same.

This has many implications that your business can easily overlook due to, for example, a
longstanding company culture, personal attitudes, or confusion about current laws.

But your business should understand that men and women must receive equal treatment. This
includes:

 Equal pay and benefits for comparable roles.

 Equal consideration of needs.
 Equal opportunities for progression and promotion.

Employees shouldn’t face any sort of discrimination because they are male or female, or are
undergoing gender reassignment.

Which laws affect gender equality in the UK?

Gender is a protected characteristic, which means it’s covered under the Equality Act 2010
(section 13).

As we’re part of the EU, British workplaces are also subject to Article 141(1) of the Treaty of
the European Community which states, "Each Member State shall ensure that the principle of
equal pay for male and female workers for equal work or work of equal value is applied."

Gender equality laws in the UK also include the Sex Discrimination Act 1975 and the Equal
pay Act 1970. There’s also the Employment Rights Act 1996.

However, the primary legislation now remains under the Equality Act 2010.

Promoting gender equality at work

Gender inequality in the workplace might include hiring or training only one gender for a
particular role (perhaps because it’s seen as ‘men’s work’ or ‘women’s work’).

Female employees may also worry about treatment during pregnancy or motherhood, or being
sexually harassed.

To help foster gender equality, you could:

 Give training to raise awareness and promote fair behaviours.

 Provide childcare facilities, family-friendly policies and childcare vouchers.
 Shine a spotlight on successful women in your company, both internally and through
media channels — and ask senior women to act as mentors.
 Establish policies for fair pay and work/life balance, and ensure managers fully
support them.
Facts about gender inequality in the workplace are clear. To this day, the statistics make for
uncomfortable reading. A poll by Young Women’s Trust in 2018 found:

 23% of women at work have faced sexual harassment.

 Only 8% of them have reported it.
 43% of mothers faced maternity discrimination.
 52% of women face mental health issues at work, compared to 42% of men.

Such a difference indicates there are still issues of inequality at work, which the government
has stepped in to address in recent years.

Gender pay gap reporting

The fight for equal pay is a prominent gender equality issue. New laws ensure the gap
between men’s and women’s pay is smaller than ever.

As an employer, you must ensure men and women receive equal pay for work that’s
equivalent in terms of skill, effort, or level of responsibility.

Your employees can lawfully request a discussion or comparison to establish whether they are
being paid fairly under the Equality Act 2010.

This includes clear information about pay structure, how you calculate bonuses and overtime,
and access to pensions.

If your employee believes their pay is unfair, they can raise the matter with an
employment tribunal, although it’s often quicker and less expensive to resolve the
problem internally.

This issue is now more transparent, however, as there’s now a gender pay gap
requirement to keep in mind.

This legislation came into effect on 6th April 2017. The first reports were due in April
2018. Any business with 250 employees or more must publish pay gap data each
year. These reports should contain details such as the:

 Mean and median hourly pay gap.

 Mean and median bonus pay gap.
 Number of men and women receiving bonus pay.
 Number of men and women in each pay quarter.

Gender inequality examples

For clarity on the above, you can refer to the below instances for reference on how
wide a topic this can be.
  Unequal pay: As we mention above in gender pay reporting, this is one of the
most pressing examples of sexism in the workplace. You now must follow
government guidelines regarding this matter.
 Unfavourable recruitment strategy: This can include questions about
whether a female candidate intends to have children, or suggesting in your job
spec that the role is more for men.
 Different opportunities: If your business has career progression opportunities
that favour men over women.
 Redundancies: Terminating a female employee for making a claim of unequal
treatment at work.
 Bias: Showing preferential treatment towards male colleagues over female
ones, such as in promotions or day-to-day conversation.
 Sexual harassment: An act of gross misconduct, this behaviour towards men
or women can have serious consequences.
 Holding sexist views: Promoting outdated views about men or women, such
as outdated gender stereotypes.

Types of gender inequality can vary dramatically between men and women.

So it’s important to stay vigilant have clear policies on how you expect your
employees to behave in around your working environment.

How to promote gender equality in the workplace

Why is gender equality important in the workplace? As well as promoting a fair

working environment, it also ensures overall business productivity is as high as
possible.

In turn, this ensures the national economy can grow naturally. There are no unfair
barriers in place restricting progress.

With this in mind, how can you go about ensuring there’s a policy of gender equality
across your business? While this relates to women’s inequality in the workplace, don’t
forget that you must also respect your male employees.

But you can use tactics such as the ones below to reconsider your business stance:

 Evaluate your job specifications to see if you have barriers in place that stop
women from reaching roles that are more senior.
 Be transparent about your pay. If you’re a small or medium business with less
than 250 employees, be open about wages to ensure women aren’t receiving
less for the same roles as men.
 Promote a better work-life balance for both genders.
 Offer training and mentors to everyone within your business.
 Ensure that you have an anti-harassment policy in place to stop it from
occurring in your business entirely.
UNIT-3

Matrimonial property law regulates which spouse owns which assets during the marriage as well
as in case of a dissolution of the matrimonial property regime upon death or divorce.
Furthermore, it provides for rules how increases in value arising during a marriage are to be
divided and how reciprocal debts between the spouses are to be offset.
Swiss Law provides for three matrimonial property regimes: the statutory matrimonial property
regime of acquired property as well the – contractual agreed – community of property and
separation of property. In a (pro or post) nuptial agreement, the spouses may choose one of the
three matrimonial property regimes within the legal framework and may adapt it to their
individual needs. A nuptial agreement may be concluded prior to or after the marriage and must
be executed as a public deed.
1. Regime of Acquired Property
1.1 Matrimonial Property
The regime of acquired property is the statutory matrimonial property regime that applies to the
spouses by law (automatically). Each spouse disposes of the individual property and the acquired
property that he or she manages himself or herself.

 Individual property: personal items and assets; assets brought into marriage; assets
acquired at no cost such as gifts and inheritance during the marriage; claims for
satisfaction and acquisitions that replace individual property.
 Acquired property: the proceeds from his or her employment (wage/salary); benefits
received from staff welfare schemes, social security and social welfare institutions;
compensation for inability to work; income derived from his or her own property and
property acquired to replace acquired property.
Each individual asset and item must be allocated to one of the properties. All assets of a spouse
which is not in his or her individual property is, by operation of law or in case of doubt, deemed
to be acquired property.
Each individual asset and item must be allocated to one of the properties. All assets of a spouse
which is not in his or her individual property is, by operation of law or in case of doubt, deemed
to be acquired property.
1.2 Division of Matrimonial Property
If one of the spouses passes away or in case of a divorce, the division of the matrimonial goods
takes place. For this purpose, first the two individual properties, then the acquired properties are
determined. If debts of one of the properties have been paid by another property, there are so-
called claims for compensation (Example: the wife inherits a property which becomes part of her
individual property. She pays the inheritance compensation to her brother with funds from her
acquired property. Thus, her acquired property has a claim for compensation against her
individual property).
In addition, surpluses and deficiencies that have arisen when funds of one spouse have
contributed to the acquisition or management of assets of the other one are also taken into
account (Example: the husband inherits a real estate. The wife later has a winter garden built by
means of her salary [acquired property]. If the real estate has increased in value at the time of the
division of the matrimonial goods, the wife's acquired property has a claim [investment plus
share of increased added value] against the husband's individual property).
Those adjustments finally lead to the net balance of both acquired properties (so-called surplus).
Each spouse or his or her heirs is or are entitled to one-half of the surplus of the other spouse.
1.3 Nuptial Agreements
Under nuptial agreement, spouses may declare acquired property to be individual property set
aside for professional or business use. Furthermore, they may stipulate in n agreement that
income from individual property does not qualify as acquired property.
It is further permissible to agree on a different participation in the surplus in the event of divorce,
separation or the death of one spouse (e.g. entire surplus, a quota or no participation).
2. Community of Property
Community of property is a contractually agreed property regime. The spouses jointly own the
common property, and, in addition, each spouse has his or her own individual property.
If the community of property regime is dissolved by the death of a spouse or the establishment of
a different matrimonial property regime, each party or his or her heirs is entitled to one-half of
the common property. There are numerous regulations on how the existing common property is
to be supplemented or reduced. Each spouse keeps his or her individual property.
3. Separation of Property
In the case of the separation of property agreed in the nuptial agreement, the spouses are to be
treated as third parties in terms of property law. Each one owns his or her individual property.
Upon dissolution of the matrimonial property regime, there is no equitable division because there
is no property law participation of the other spouse.
The separation of property also exists either by court order or ex officio if a spouse living under
the community of property regime is declared bankrupt.
4. Registered Partnership
The property rights of registered partners are regulated according to the model of separation of
property (cf. art. 18 et seq. Same-Sex Partnership Act

MAINTENECE- Obligation of a husband to maintain his wife arises out of the status of the
marriage. Right to maintenance forms a part of the personal law. Under the Code of Criminal
Procedure, 1973 (2 of 1974), right of maintenance extends not only to the wife and dependent
children, but also to indigent parents and divorced wives. Claim of the wife, etc., however,
depends on the husband having sufficient means. Claim of maintenance for all dependent
persons is limited to Rs 500 per month. Inclusion of the right of maintenance under the Code of
Criminal Procedure has the great advantage of making the remedy both speedy and cheap.
However, divorced wives who have received money payable under the customary personal law
are not entitled to maintenance claims under the Code of Criminal Procedure.

Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But
she loses her right if she deviates from the path of chastity. Her right to maintenance is codified
in the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956). In assessing the amount of
maintenance, the court takes into account various factors like position and liabilities of the
husband. It also judges whether the wife is justified in living apart from husband. justifiable
reasons are spelt out in the Act. Maintenance pendente lite (pending the suit) and even expenses
of a matrimonial suit will be borne by either, husband or wife, if the either spouse has no
independent income for his or her support. The same principle will govern payment of
permanent maintenance. Under the Muslim Law, the Muslim Women (Protection of Rights on
Divorce) Act, 1986 protects rights of Muslim women who have been divorced by or have
obtained divorce from their husbands and provides for matters connected therewith or incidental
thereto.

This Act inter alia provides that a divorced Muslim woman shall be entitled to
(a) reasonable and fair provision and maintenance to be made and paid to her within the iddat
period by her former husband;

(b) where she herself maintains 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;

(c) an amount equal to the sum of mehr or dower agreed to be paid to her at the time of her
marriage or at any time thereafter according to the Muslim Law and
(d) all property given to her before or at the time of marriage or after her marriage by her
relatives or friends or by husband or any relatives of the husband or his friends. In addition, the
Act also provides that where a divorced Muslim woman is unable to maintain herself after the
period of iddat the magistrate shall order directing such of her relatives as would be entitled to
inherit her property on her death according to the Muslim Law, and to pay such reasonable and
fair maintenance to her as he may determine fit and proper, having regard to the needs of the
divorced woman, standard of life enjoyed by her during her marriage and means of such
relatives, and such maintenance shall be payable by such relatives in proportion to the size of
their inheritance of her property and at such periods as he may specify in his order.

Where such divorced woman has children, the Magistrate shall order only such children to pay
maintenance to her, and in the event of any such children being unable to pay such maintenance,
the magistrate shall order parents of such divorced woman to pay maintenance to her. In the
absence of such relatives or where such relatives are not in a position to maintain her, the
magistrate may direct State Wakf Board established under Section 13 of the Wakf Act, 1995
functioning in the area in which the woman resides, to pay such maintenance as determined by
him.

The Parsi Marriage and Divorce Act, 1936 recognizes the right of wife to maintenance-both
alimony pendente lite and permanent alimony. The maximum amount that can be decreed by
court as alimony during the time a matrimonial suit is pending in court, is one-fifth of the
husband's net income. In fixing the quantum as permanent maintenance, the court will determine
what is just, bearing in mind the ability of husband to pay, wife's own assets and conduct of the
parties. The order will remain in force as long as wife remains chaste and unmarried.
The Indian Divorce Act, 1869 inter alia governs maintenance rights of a Christian wife. The
provisions are the same as those under the Parsi law and the same considerations are applied in
granting maintenance, both alimony pendente lite and permanent maintenance.

Maintenance under Hindu law:

Maintenance is a right to get necessities which are reasonable from another. it has been held in
various cases that maintenance includes not only food, clothes and residence, but also the things
necessary for the comfort and status in which the person entitled is reasonably expected to live.
Right to maintenance is not a transferable right.

Maintenance without divorce

The Hindu Adoptions and Maintenance Act, 1956.Maintenance, in other words, is right to
livelihood when one is incapable of sustaining oneself. Hindu law, one of the most ancient
systems of law, recognises right of any dependent person including wife, children, aged parents
and widowed daughter or daughter in law to maintenance. The Hindu Adoptions and
Maintenance Act, 1956, provides for this right.

Maintenance as main relief: for wife

The relief of maintenance is considered an ancillary relief and is available only upon filing for
the main relief like divorce, restitution of conjugal rights or judicial separation etc. Further,
under matrimonial laws if the husband is ready to cohabit with the wife, generally, the claim of
wife is defeated. However, the right of a married woman to reside separately and claim
maintenance, even if she is not seeking divorce or any other major matrimonial relief has been
recognised in Hindu law alone. A Hindu wife is entitled to reside separately from her husband
without forfeiting her right of maintenance under the Hindu Adoptions and Maintenance Act,
1956. The Act envisages certain situations in which it may become impossible for a wife to
continue to reside and cohabit with the husband but she may not want to break the matrimonial
tie for various reasons ranging from growing children to social stigma. Thus, in order to realise
her claim, the Hindu wife must prove that one of the situations (in legal parlance 'grounds') as
stated in the Act, exists.

Grounds for award of maintenance

Only upon proving that at least one of the grounds mentioned under the Act, exists in the favor
of the wife, maintenance is granted. These grounds are as follows:
a. The husband has deserted her or has willfully neglected her;
b. The husband has treated her with cruelty;
c. The husband is suffering from virulent form of leprosy/venereal diseases or any other
infectious disease;
d. The husband has any other wife living;
e. The husband keeps the concubine in the same house as the wife resides or he habitually resides
with the concubine elsewhere;
f. The husband has ceased to a Hindu by conversion to any other religion;
g. Any other cause justifying her separate living;

Bar to relief
Even if one of these grounds exists in favour of the wife, she will not be entitled to relief if she
has indulged in adulterous relationship or has converted herself into any other religion thereby
ceasing to be a Hindu. It is also important to note here that in order to be entitled for the relief,
the marriage must be a valid marriage. In other words, if the marriage is illegal then the
matrimonial relationship between the husband and wife is non-existent and therefore no right of
maintenance accrues to wife. However, thanks to judicial activism, in particular cases the
presumption of marriage is given more weightage and the bars to maintenance are removed.

Other dependents who can claim maintenance

Apart from the relationship of husband and wife other relations in which there is economic
dependency are also considered to be entitled to maintenance by the Hindu Adoptions and
Maintenance Act, 1956. Accordingly a widowed daughter-in-law is entitled maintenance from
her father-in-law to the extent of the share of her diseased husband in the said property. The
minor children of a Hindu, whether legitimate or illegitimate, are entitled to claim maintenance
from their parents. Similarly, the aged and infirm parents of a Hindu are entitled to claim
maintenance from their children. The term parent here also includes an issueless stepmother.

Maintenance Under Muslim Law

Under the "Women (Protection Of- Rights On Divorce) Act, 1986" spells out objective of the
Act as "the protection of the rights of Muslim women who have been divorced by, or have
obtained divorce from, their husbands." The Act makes provision for matters connected
therewith or incidental thereto. It is apparent that the Act nowhere stipulates that any of the rights
available to the Muslim women at the time of the enactment of the Act, has been abrogated,
taken away or abridged. The Act lays down under various sections that distinctively lay out the
criterion for women to be granted maintenance. Section (a) of the said Act says that divorced
woman is entitled to have a reasonable and fair provision and maintenance from her former
husband, and the husband must do so within the period of idda and his obligation is not confined
to the period of idda.

it further provides that a woman , if not granted maintenance can approach the Wakf board for
grant as under section (b)which states that If she fails to get maintenance from her husband, she
can claim it from relatives failing which, from the Waqf Board.
An application of divorced wife under Section 3(2) can be disposed of under the provisions of
Sections 125 to 128, Cr. P.c. if the parties so desire. There is no provision in the Act which
nullifies orders passed under section 125, Cr. P.c. The Act also does not take away any vested
right of the Muslim woman.
All obligations of maintenance however end with her remarriage and no claims for maintenance
can be entertained afterwards. The Act thus secures to a divorced Muslim woman sufficient
means of livelihood so that she is not thrown on the street without a roof over her head and
without any means of sustaining herself.
Protection to Divorced Women Sub-section (1) of Section 3 lays down that a divorced
Muslim woman is entitled to:
(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat
period by her former husband;
(b) where she herself maintains the children born to her before or after the divorce.

Maintenance Under Christian Law

A Christian woman can claim maintenance from her spouse through criminal proceeding or/and
civil proceeding. Interested parties may pursue both criminal and civil proceedings,
simultaneously, as there is no legal bar to it. In criminal proceedings, the religion of the parties
does not matter at all, unlike in civil proceedings.

If a divorced Christian wife cannot support her in the post divorce period she need not worry as a
remedy is in store for her in law. Under S.37 of the Indian Divorce Act, 1869, she can apply for
alimony/ maintenance in a civil court or High Court and, husband will be liable to pay her
alimony such sum, as the court may order, till her lifetime. The Indian Divorce Act, 1869 which
is only applicable to those persons who practice the Christianity religion inter alia governs
maintenance rights of a Christian wife. The provisions are the same as those under the Parsi law
and the same considerations are applied in granting maintenance, both alimony pendente lite and
permanent maintenance. The provisions of THE INDIAN DIVORCE ACT, 1869 are produced
herein covered under part IX -s.36-s.38

IX-Alimony
S.36. Alimony pendente lite. -In any suit under this Act, whether it be instituted by a husband or
a wife, and whether or not she has obtained an order of protection the wife may present a petition
for alimony pending the suit.

Such petition shall be served on the husband; and the Court, on being satisfied of the truth of the
statements therein contained, may make such order on the husband for payment to the wife of
alimony pending the suit as it may deem just:

Provided that alimony pending the suit shall in no case exceed one fifth of the husband's average
net income for the three years next preceding the date of the order, and shall continue, in case of
a decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or
is confirmed, as the case may be.

37. Power to order permanent alimony -The High Court may, if it thinks fit, on any decree
absolute declaring a marriage to be dissolved, or on any decree of judicial separation obtained by
the wife, and the District judge may, if he thinks fit, on the confirmation of any decree of his
declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife,

Order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of
money, or such annual sum of money for any term not exceeding her own life, as, having regard
to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it thinks
reasonable; and for that purpose may cause a proper instrument to be executed by all necessary
parties.

Power to order monthly or weekly payments. -In every such case, the Court may make an order
on the husband for payment to the wife of such monthly or weekly sums for her maintenance and
support as the Court may think reasonable:

Provided that if the husband afterwards from any cause becomes unable to make such payments,
it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the
same as to the whole or any part of the money so ordered to be paid, and again to revive the same
order wholly or in part as to the Court seems fit.

38. Court may direct payment of alimony to wife or to her trustee. -In all cases in which the
Court makes any decree or order for alimony, it may direct the same to be paid either to the wife
herself, or to any trustee on her behalf to be approved by the Court, and may impose any terms or
restrictions which to the Court seem expedient, and may from time to time appoint a new trustee,
if it appears to the Court expedient so to do.

Alternatively, as previously mentioned S.125 of Cr.P.C., 1973 is always there in the secular
realm
Under the Code of Criminal Procedure, 1973 (2 of 1974), right of maintenance extends not only
to the wife and dependent children, but also to indigent parents and divorced wives. Claim of the
wife, etc., however, depends on the husband having sufficient means. Claim of maintenance for
all dependent persons was limited to Rs 500 per month but now it has been increased and the
magistrate can exercise his discretion in adjudging a reasonable amount. Inclusion of the right of
maintenance under the Code of Criminal Procedure has the great advantage of making the
remedy both speedy and cheap

Order For Maintenance of Wives, Children And Parents

S.125.Order for maintenance of wives, children and parents.- (1) If any person having sufficient
means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority,
where such child is by reason of any physical or mental abnormality or injury unable to maintain
itself, or
(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to
make a monthly allowance for the maintenance of his wife or such child, father or mother, at
such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit,
and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause
(b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is not possessed of sufficient means.

Explanation- For the purposes of this Chapter, -

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875(9 of
1875) is deemed not to have attained his majority;
(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her
husband and has not remarried.

(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of
the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such
Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the
manner provided for levying fines, and may sentence such person, for the whole or any part of
each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for
a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section
unless application be made to the Court to levy such amount within a period of one year from the
date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with
him, and she refuses to live with him, such Magistrate may consider any grounds of refusal
stated by her, and may make an order under this section notwithstanding such offer, if he is
satisfied that there is a just ground for so doing.

Explanation- If a husband has contracted marriage with another woman or keeps a mistress, it
shall be considered to be just ground for his wife's refusal to live with him.

(4) No wife shall be entitled to receive an allowance from her husband under this section if she is
living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if
they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in
adultery, or that without sufficient reason she refuses to live with her husband, or that they are
living separately by mutual consent, the Magistrate shall cancel the order. The objective of this
section as expressed by Krishna Iyer, J. is to ameliorate the economic condition of neglected
wives and discarded divorcees

Proceedings under S.125 are not civil, but criminal proceedings of a summary nature. But these
criminal proceedings are of a civil nature. Thus, clause (3) of S.126 which empowers that Court
to make such orders may be just.
It should be kept in view that the provision relating to maintenance under any personal law is
distinct and separate. There is no conflict between the two provisions. A person may sue for
maintenance under s.125 of Cr.P.C. If a person has already obtained maintenance order under his
or her personal law, the magistrate while fixing the amount of maintenance may take that into
consideration while fixing the quantum of maintenance under the Code. But he cannot be ousted
of his jurisdiction. The basis of the relief, under the concerned section is the refusal or neglect to
maintain his wife, children, father or mother by a person who has sufficient means to maintain
them. The criterion is not whether a person is actually having means, but if he is capable of
earning he will be considered to have sufficient means. The burden of proof is on him to show
that he has no sufficient means to maintain and to provide maintenance.

Maintenance Under Parsi Law:

Parsi can claim maintenance from the spouse through criminal proceedings or/ and civil
proceedings. Interested parties may pursue both criminal and civil proceedings, simultaneously
as there is no legal bar to it. In the criminal proceedings the religion of the parties doesn't matter
at all unlike the civil proceedings.
If the Husband refuses to pay maintenance ,wife can inform the court that the Husband is
refusing to pay maintenance even after the order of the court. The court can then sentence the
Husband to imprisonment unless he agrees to pay. The Husband can be detained in the jail so
long as he does not pay. The Parsi Marriage and Divorce Act, 1936 recognizes the right of wife
to maintenance-both alimony pendente lite and permanent alimony. The maximum amount that
can be decreed by court as alimony during the time a matrimonial suit is pending in court, is one-
fifth of the husband's net income. In fixing the quantum as permanent maintenance, the court will
determine what is just, bearing in mind the ability of husband to pay, wife's own assets and
conduct of the parties. The order will remain in force as long as wife remains chaste and
unmarried.

S.40. Permanent alimony and maintenance

(1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at
any time subsequent thereto, on an application made to it for the purpose by either the wife or the
husband, order that the defendant shall pay to the plaintiff for her or his maintenance and
support, such gross sum or such monthly or periodical sum, for a term not exceeding the life of
the plaintiff as having regard to the defendant?s own income and other property, if any, the
income and other property of the plaintiff, the conduct of the parties and other circumstances of
the case, it may seem to the Court to be just, and any such payment may be secured, if necessary,
by a charge on the movable or immovable property of the defendant.

(2) The Court if it is satisfied that there is change in the circumstances of either party at any time
after it has made an order under sub-section (1), it may, at the instance of either party, vary,
modify or rescind any such order in such manner as the Court may deem just.

(3) The Court if it is satisfied that the partly in whose favour, an order has been made under this
section has remarried or, if such party is the wife, that she has not remained chaste, or, if such
party is the husband, that he had sexual intercourse with any woman outside wedlock, it may, at
the instance of the other party, vary, modify or rescind any such order in such manner as the
Court may deem just.

DIVISION OF ASSETS ON DIVORCE- Marriage in India is considered to be a sacred union of

two souls. It is contemplated that both husband and wife are the better half of each other and they
are incomplete without each other. Sometimes the situation between the marriages might
deteriorate to the point where divorce becomes an unavoidable alternative. Divorce is still
considered an inauspicious occasion in India and involves a lot of emotional trauma, financial
irregularities, and stressful thinking. The major issue faced at the time of the divorce is how will
the assets be divided? This includes not only the division of personal property or money but
every single thing such as stocks, debts, real estate, responsibilities, etc. The house in which the
couple was living previously is left isolated and a question arises who will have the house?
Across the globe, two models are relied upon for the division of the property during the divorce:
Separate Ownership and Community Ownership.
Separate ownership of Property
The property which is privately owned by one of the spouses, before or after the marriage, that
property is retained by that spouse only, after the divorce and the other spouse will have no right
over that property.
Community ownership of Property
The property which is equally owned by both the spouses is equally divided between both of
them after the divorce. The main intention behind this ownership of property is to consider that
both husband and wife have contributed equally to buy that house. Under this, only financial
contribution is not taken into consideration but non-financial contribution is also given equal
weightage.
Unfortunately, India mainly follows the concept of separate ownership and does not
acknowledge the contribution of non-financial contributors, generally females. The property
belongs to the one who has the ownership title. Under the Indian Legal System, after the divorce,
if the house belongs to the husband and he has the title deeds over it wife cannot ask for the
house. The wife who non-financially contributed to the house for her whole married life fails to
acquire a small part of it. However, she has the right to ask for shelter. She can also claim this
right from her in-laws if they are all living in an ancestral property along with the husband.
A wife cannot ask for the property or the house owned by the husband during divorce but she has
a right to claim Alimony. If the wife has no independent source of income, she is entitled to an
amount that will enable her to have a reasonable standard of living as per his husband’s financial
status. If the wife does not have enough income to continue the same standard of living then the
husband has to provide her with the shortfall.
Joint-owned Property
The property which is jointly owned by both the spouses and both of them contributed, then it
would be divided proportionally based on their contribution in buying that property.
The property which is jointly owned by both the spouses but one of them paid the whole amount
is generally divided equally between the both. But if one of the spouses proves in the court of
law that the house or the property has been bought out of his sole earnings, then he may acquire
the whole property, irrespective of the joint ownership.
Dividing Assets and Liabilities
If the divorce is taking place amicably without the intervention of the court, then before splitting
the assets and liabilities it is important to list them all be it house, car, retirement plans, insurance
policies, loans, cash, and other household stuff such as furniture, etc. After that market value of
all the items is ascertained and divided between both the spouses in an agreed proportion. While
dividing the assets, the role played by both the spouses is taken into consideration. If the wife is
not employed, she has a right to claim alimony for her maintenance so that she can have the
same standard of living enjoyed by her during the marriage. Her financial rights depend upon the
husband’s financial status and living standard, plus his assets and liabilities.
Each party intends to receive more in such a scenario, however, if assets are divided equally and
in an appropriate ratio, all the liabilities and responsibilities shall also be divided in a pertinent
manner.
If the parties go to the court of law for settling their dispute, the court divides the assets and
liabilities as per its discretion and the parties are bound to agree with the same.
Streedhan
Streedhan is the assets or the gifts received by the women at the time of marriage. It includes all
the things bought by her or received by her before the marriage, at the marriage, or during the
period when she was married. It incorporates all the gifts received by her parents, husband, in-
laws, or other relatives. The wife exercises sole ownership over these items and it completely
belongs to her.
Streedhan includes all the valuable items such as jewellery, any property or house for which she
has title deeds and has a sole right over them for her entire life. If the wife has inherited any
ancestral jewellery after the marriage then she has ownership over it and it belongs to her.
Similarly, any valuable inherited by the husband belongs to him, for example, the ancestral
property. Anything that is passed on to the wife from the mother-in-law belongs to the wife.
Any other valuables such as a painting or a silver set or cash gifts received by the couple at the
time of marriage are jointly owned by them. So, these items should be divided equally between
them at the time of the divorce. If any item is gifted by the husband or wife to each other before
or after the marriage then the person to whom it was gifted has all the rights over that gift and it
will not be divided at the time of divorce.
Streedhan does not include:

 Valuables are gifted to the husband by in-laws or other relatives at marriage.

 The wife’s earnings are considered Streedhan but she cannot claim back the money she
has spent on the household.
 Expenditure incurred by the female’s side at marriage functions.
Conclusion
In the Indian scenario, the assets are divided between the spouses based on ownership title.
However, if the other spouse can prove his financial contribution in the court of law, then he can
claim the right over that property. Jointly owned assets would be equally divided between the
parties or the proportion contributed by them. In the same manner, if there is any jointly owned
debt or loan by the parties, it would also be divided equally between both parties. At present,
section 27 of the Hindu Marriage Act, 1955 vaguely deals with the provisions related to the
division of parties during the divorce. The problem with this provision is that it does not explain
the intention of the legislature due to which several times courts have given contradictory
observations. Under our legal system, the concept of community ownership is not given
importance due to which the role played by the females is always underestimated.

UNIT-3

INTRODUCTION
I.

Women’s right to property has been recognized as an important development issue. Property rights for
women can have an impact on decision making, income pooling, acquisition, and women’s overall role
and position in the community. Moreover, land is a critical resource for a woman when the household
breaks down; for example, in the event of desertion by husband, abandonment, divorce, polygamous
relationships, illness or death.

Women’s right, to access and control over property, is determined through women’s overall living
conditions, economic security, and physical safety. Gender discrimination is related to lower per capita
income, life expectancy, and literacy. The problem of gender inequity is due to the deep cultural bias
against women.

The proprietary position of woman in any system of law represents the thought and the feelings of the
community. Hence the proprietary status which a woman occupied in Hindu law was not only an index
of Hindu civilization but also correct criterion of the culture of the Hindu race ( Kulwant Gill, 1986 p.
528).

The position assigned by the Shastras to the widow and even to the women in general, both in her
family and society, was a state of dependence and submission. "Day and night" says Manu, "must
women be held by their protectors in a state of dependence; even in lawful and innocent recreations,
being too much addicted to them, they must be kept by their protectors under their own dominion."
"Through independence, the women go to ruin though born in a noble family….." (Narada, XIII, 30.) It
was believed that the dependant and subservient status of women was because of the fact that they
were incompetent to perform sacrifices and to read Vedas. Because of her dependent status her right of
having property was also treated with dislike or disfavour as there was general reluctance displayed by
the ancient Rishis to allow females to hold property. The cause of reluctance was that in Smritis,
property was intended for the performance of religious ceremonies. The primary obligation of a person
holding property was to perform religious rites and ceremonies and a person was considered as a sort of
trustee for the performance of those rites and ceremonies. Since the females were declared by the
Smritis to be incompetent to perform religious ceremonies (Manu, Chap. IX. Verse 10). Therefore, her
right to. property was very nominal and whatever little she used to get, that too was hedged with
limitations. For instance, her husband could exercise his veto even over certain kinds of Stridhan. So the
question of having absolute ownership in the true sense of the term (which includes right of alienation)
did not arise with regard to the property which did not form her Stridhan. She had only the right to have
and enjoy, that property for her sustenance and maintenance during her lifetime and this type of right in
property was known as "Woman's Estate".

The seed for personal law was sown by the British with the Bengal Regulation of 1772 providing that in
disputes relating to family like inheritance, marriage, divorce, adoption etc, the courts should apply the
laws of Quran with respect to Muslims and for Hindus, the Shastric law. As far as Christians were
concerned, there was no specific law for them. Hence disputes were settled as per English principles of
Justice, Equity and Good conscience. The British policy of non-interference with the personal laws of
different communities took its deep roots in the communities and the Government of India has been
continuing the policy of non-interference even though it has ratified the CEDAW convention. So the
Constitutional mandate of Uniform Civil Code under Article 44 of the Constitution went into oblivion.

An attempt has also been made to compare the inheritance rights of women in their respective personal
laws. it also highlights the drastic reforms brought about in the Hindu women’s right to property by the
Hindu Succession (Amendment) Act 2005 that conferred birth right to Hindu women in the Mithakshara
joint Hindu family property. The property rights of Muslim women are also analyzed to bring forth the
disparity in the property rights of women belonging to Communities.

The Indian Constitution, both the Central and the State governments are competent to enact laws on
matters of succession. Some of the states have enacted their own variations of property laws within
each personal law. Hence, there are no single uniform laws to govern the property rights of Indian
women. Each religious community is governed by its respective personal laws. Among each religious
group, there are sub-groups and local customs and norms with their respective property rights. Property
rights are often viewed in the narrow sense of ownership the right to completely and exclusively control
a resource.

Hindus, Sikhs, Buddhists and Jains are governed by one code of property rights codified as the Hindu
Succession Act, 1956 for Hindus, while, Christians are governed by Indian Succession Act, 1925 and the
Muslims have not codified their property rights, neither the Shias nor the Sunnis. Tribal women of
various religions and states continue to be governed by the customs and norms of their tribes. There are
a few restrictions on their mobility but Women have considerably freedom of choice in the selection of
marriage partners. Tribal cultures have liberal norms related to divorce and remarriage by women.
Among most Tribes, property, particularly land, passes through the malelineage and under customary
laws. Women do not have inheritance rights to land (Swati Sharma, 2007).

Religion plays a major role in the succession of property in India. The personal laws of religious
communities are mostly dominated by the scriptures of the religions. During the earlier period, the law
of succession was mostly un-codified and followed according to the traditions of the communities. As
the society moved towards civilization, the Governments started to codify the laws of succession. The
codification mostly depended on the existing traditional practices. Hence, there is no uniformity in the
succession laws. But, Religion plays a very important role in the formation of succession laws. The
succession laws which are codified separately to different religions, neglected women and gave an
unequal status to them.

II. PROPERTY RIGHTS OF HINDU WOMEN

A Hindu woman, whether a maiden, a wife or a widow has never been denied the use of her
property. Even in Manusmriti one can see that right to hold property had been respected.
Jurists like Yajnavalkya, Katyayana and Narada further promoted the concept of women’s
right to property. Women’s property rights improved and defined during their time (Kanaka
latha Mukand, WS2,1992) The Smritikars created a unique type of property to women, the
stridhana. Since ancient times stridhana was treated as women’s separate property.
Jimutavahana went to the extent of stating that woman has absolute control over her
property even after marriage (Alla di Kuppuswami(ed), 1986). The ornaments, the wealth
she receives at the time of marriage from her father and relatives constitute her share. The
gifts from her own and husband’s family would also be added to her own.

II.1.Hindu Law of Inheritance Act 1929 This was the earliest piece of legislation, bringing
woman into the scheme of inheritance. This Act conferred inheritance rights on three
female heirs i.e. son's daughter, daughter's daughter and sister.

II.2. Hindu Women’s Right to Property Act 1937 This was the landmark legislation which
conferred ownership rights on women. This Act brought about revolutionary changes in the
Hindu Law of all schools, and brought changes not only in the law of coparcenary but also in
the law of partition, alienation of property, inheritance and adoption. The Act of 1937
enabled the widow to succeed along with the son and to take a share equal to that of the
son. But, the widow did not become a coparcener even though she possessed a right akin to
a coparcenary interest in the property and was a member of the joint family. The widow was
entitled only to a limited estate in the property of the deceased with a right to claim
partition. A daughter had virtually no inheritance rights. Despite these enactments having
brought important changes in the law of succession by conferring new rights of succession
on certain females, these were still found to be incoherent and defective in many respects
and gave rise to a number of anomalies and left untouched the basic features of
discrimination against women.

II.3. The Hindu Succession Act 1956 The Hindu Succession Act enacted in 1956 was the first
law to provide a comprehensive and uniform system of inheritance among Hindus and to
address gender inequalities in the area of inheritance. It was therefore a process of
codification as well as a reform at the same time. The Hindu Succession Act 1956 was made
to codify the law relating to intestate succession amoung Hindus. Women’s right to property
has been substantially improved by the Hindu Succession Act 1956. The concept of women
being entitled to a limited estate when they acquire property by inheritance is abolished
and women are entitled to an absolute estate LIKE men when they inherit any property.
Again the daughter of a predeceased son and the daughter of a predeceased daughter are
raised to a higher rank. They became Class – I heirs and get a share along with the son, and
other Class – I heirs. The daughters are included in the Class – I in order to remove the
discrimination on the basis of sex. Similarly succession to a women’s property or stridhanam
of whatever nature is made uniform irrespective of the nature of stridhanam. In the same
way the distinction between male and female heirs in the case of succession has been taken
away and now they are treated on equal basis if they belong to the same degree of
relationship. Women will no longer be disinherited on the ground of unchastity.

Hindu Succession Act 1956 applies to both the Mitakshara and the Dayabhaga systems. The
retention of the Mitakshara coparcenary without including females in it meant that females
couldn't inherit ancestral property as males do. If a joint family gets divided, each male
coparcener takes his share and females get nothing. Only when one of the coparceners dies,
a female gets a share of his share as an heir to the deceased. Thus the law by excluding the
daughters from participating in coparcenary ownership merely by reason of their sex not
only contributed to an inequity against females but has led to oppression and negation of
their right to equality and appears to be a mockery of the fundamental rights guaranteed by
the Constitution. Hence, this very fact necessitated a further change in regards to the
property rights of women, and which was done by the Hindu Succession (Amendment) Bill,
2004.

The Hindu Succession (Amendment) Act, 2005 is a landmark. After 50 years, the
Government finally addressed some persisting gender inequalities in the 1956 Hindu
Succession Act, which itself was path-breaking. The 2005 Act covers inequalities on several
fronts: agricultural land; Mitakshara joint family property; parental dwelling house; and
certain widow's. The amendment has come into operation from 2005.

II.4. The Hindu Succession ( Amendment) Act 2005 The Amendment made in 2005 was
based on the recommendations made by the Law Commission in its 174th Report on Hindu
women’s property rights. The Hindu Succession (Amendment) Act, 2005 seeks to make two
major amendments in the Hindu Succession Act, 1956. First, it is proposed to remove the
gender discrimination in section 6 of the original Act. Second, it proposes to omit section 23
of the original Act, which disentitles a female heir to ask for partition in respect of a dwelling
house, wholly occupied by a joint family, until the male heirs choose to divide their
respective shares therein.6(l) Devolution of interest in coparcenary property

1. On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a
Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,- (a)
by birth become a coparcener in her own right 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 the said 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: Provided that nothing contained in this sub-section shall
affect or invalidate any disposition or alienation including any partition or testamentary
disposition of property which had taken place before the20th day of December, 2004.

2. Any property to which a female Hindu becomes entitled by virtue of subsection shall be
held by her with the incidents of coparcenary ownership and shall be regarded,
notwithstanding anything contained in this Act or any other law for the time being in force
in, as property capable of being disposed of by her by testamentary disposition.
3. 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 daughteris allotted the same share as is
allotted to a son; (b)the share of the pre-deceased son or a predeceased 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 predeceased daughter, as such child would
have got had he or she been alive at the time of the partition, shall be allotted to the child of
such pre-deceased child of the pre-deceased so or a pre-deceased daughter, as the case
may be. It is a very good law to provide the property to women by birth. But there is a
gradual development in conferring property rights to Hindu women. However it remains as
a paper tiger and the implementation is very poor.

III. PROPERTY RIGHTS OF MUSLIM WOMEN India is a multicultural and multi religious society
and its citizens are given an opportunity for their complete development irrespective of
their sex, caste, religion or race by ensuring the various fundamental rights in part III of the
constitution. In spite of constitutional assurances, the status of Muslim women has not
improved because of the religious ordain with its conservative approach. The Muslim
women could not benefit from the various welfare legislations since they are still governed
by their own Islamic laws.

The centuries old principles of Islam are still applicable on various matters concerning
marriage, divorce and polygamy (Dr.A.K.Srivastava, (2007) Muslim women rights have been
a topic of discussion ever since the Constitution came into force in 1950. Islamic law
(Shariah) is considered by many as patriarchal and oppressive to women. However the
Quran has addressed women’s issues fourteen hundred years ago by creating some reforms
to improve the status of women though these reforms do not seem to be practiced in
Muslim society today. Though Islam as revealed to the prophet Mohammed is not
oppressive to women its interpretation enacted in the family law, and every day living is
patriarchal. The property rights of Muslim women differ from other religions as it is based
on the Islamic Law of Succession on the tenets of Holy Quran.

Islamic Principles of Succession According to Prophet The Principles are: 1. Husband and
wife being equal are entitled to inherit to each other. 2. Some near females and cognates
are also recognized and enumerated as heirs. 3. Parents and certain other ascendants are
made heirs even when there are descendants. 4. The newly created heirs are given specified
shares along with customary heirs, who are reliquaries. III.1. Inheritance According to Hanafi
Law : According to Hanafi Law of inheritance, there are 3 classes of heir namely: (1) Sharers
(2) Residuary, (3) Distant kindred.

1. Sharers: They are persons whose shares have been specified by the Koran. They are
entitled to receive a fixed share allotted to them in a certain order of preference and mode
of succession.

2. Residuary: They are persons who take no prescribed share but succeed to the residue
after the claims of the sharers are satisfied. After the payment to the sharers the residue is
to be distributed among the residuaries.
3. Distant Kindred: They are those relations by blood who are neither sharers no residuaries.
This class includes the cognates of the deceased i.e. those who are related through a female.
They are not entitled to succeed so long as there are shares or residuaries.

III.2. Inheritance According to Shia Law : According to Shia Law the heirs are divided into
two groups, namely - Heirs by consanguinity or asaba i.e. by blood relations. They consist of;
I. (i) Parents, (ii) Children and other lineal descendants how low so ever. II. (i) Grandparents
how high so ever (true and false)., (II) Brother and sisters and their descendants how low so
ever. III.(i) Paternal uncles and aunts of the deceased, and of his Parents and grandparents
how high so ever and their descendants how low so ever. (II) Maternal uncles and aunts of
the deceased and his parents and grandparents how high so ever and their descendants,
how low so ever.

Of these three groups of heirs, the first excludes the second from inheritance and the
second excludes the third. Among the Shias, there is no separate class of heirs
corresponding to the Distant Kindered of Sunni Law. The shares according to Shia Law are
nine in number-1) Husband 2) Wife 3) Father 4) Mother 5) Daughter 6) Full sister 7)
Consanguine sister 8) Uterine brother, and 9) Uterine sister. The descendants how so ever of
shares are also sharers. Residuaries are all heirs other than sharers.

The descendants how so ever low of residuaries are also residuaries. Sons, brother, uncles
and aunts are all residuaries. Their descendants, therefore, are also residuaries. In this
context we should appreciate the contributions of Islam to the well being of women. Islam
removed all the yokes on women. Quran asserted the dignity of women and holds the view
that man and women are equal and they complement each other. The Muslim women were
also denied property rights under the pre-Islamic customary laws; wife and children were
excluded from inheritance. In fact the law of inheritance was based on the principles of
agnatic preference and exclusion of females. Thus a daughter or a sister or a daughter’s son
or sister’s son could not succeed to the property.

IV . PROPERTY RIGHTS OF CHRISTIAN WOMEN The laws of succession for Christians are laid
down in the Indian Succession Act, 1925 . Sections 31 to 49 deal with Christian Succession.
The Indian Christian widow’s right is not an exclusive right. It gets curtailed as the other
heirs step in. Only if the intestate has left none who are of kindred to him, the whole of his
property would belong to his widow. Where the intestate has left a widow and any lineal
descendants, one third of his property devolves to his widow and the remaining two thirds
go to his lineal descendants. If he has left no lineal descendents but has left persons who are
kindred to him, one half of his property devolves to his widow and the remaining half goes
to those who are of kindred to him. The Indian Succession Act, 1925 provides that
succession to immovable property in India of a person deceased who is not a Hindu,
Mohammedan, Buddhist, Sikh or Jain, shall be regulated by the law of India. Section 27 of
The Indian Succession Act, 1925 states that there is no distinction for the purpose of the
succession— a) Between those who are related to a person deceased through his father,
and those who are related to him through his mother; or b) Between those who are related
to a person deceased by the full blood, and those who are related to him by the half- blood;
or c) Between those who were actually born and those who were only conceived in the
womb; but who have been subsequently born alive. The Christian women are deprived of
equal rights to parental property because of the continuance of the dowry system under
Section 28 of the repealed Travancore Christian Succession Act 1916 which provided that
 the male shares shall be entitled to have the whole of the interstate’s property divided
equally among themselves subject to the claims of the daughter for streedhanam.

Section 29 further provides, the female heirs or the descendants of the deceased female
heirs will be entitled to share in the intestate’s property only in the absence of the male
heirs. the Christian families with ancestral properties still continue the custom of
partitioning the properties among the members of the family. Here also a daughter who has
been given streedhanam will be excluded from partition. It is to be noted here that the
father / testator can disinherit a daughter through a Will also. These two practices are still
unabashedly going on in the Catholic families.

The Constitution of India recognizes equality of status and in fact provides for certain
provisions under the chapter on fundamental rights more favourable to women but in
actual practice they are observed more in breach than in compliance (Js.Rajendra Babu, 145
AIR, 2007). This is absolutely true in the case of Christian women.

III. SUMMARY An analysis of the inheritance rights of the Christian, Hindu and Muslim
women brings forth the reality that only the Christian women alone are deprived of
the right to inherit a share of the ancestral property. This is the mere callousness of
the Legislature. The international Conventions on women always focus on women’s
inheritance rights. However neither the community nor the Church would ever take
any step to plug the existing loopholes in the Indian Succession Act 1925 because
they are up in arms against women inheriting property. The Law Commission also
has been enthusiastic in the reforms of Hindu Succession Law. No such enthusiasm
is shown in reforming Christian Personal Law. In tune with the Law Commissions
recommendations, even the Government has made an effort to make reformatory
laws in Hindu Succession, though it is not implemented effectively. To make matters
worse Christian women are still being controlled by the Church through its Canon
laws which ensure women’s subjugation and subordinate status.

UNIT-1

The Gandhi Irwin Pact was endorsed by the Congress in the Karachi Session of 1931, that was
held from March 26-31. Gandhi was nominated to represent Congress in the Second Round
Table Conference. Just a week back, Bhagat Singh, Sukhdev and Rajguru had been executed. So,
there was anger in the public whose point was that why Gandhi did accept to sign the pact.
So, when Gandhi was on the way to attend the Karachi session, all over the route, he was
greeted with the Black flags. In the Karachi session, congress passed a resolution to dissociate
itself from and disapprove the political violence in any shape. The resolution which was drafted
by Gandhi, admired the bravery and sacrifice of the three martyrs. In the same line, the Congress
endorsed the Gandhi-Irwin Pact and reiterated the goal of "Poorna Swaraj".
Resolution on Fundamental Rights and Economic Policy
The Karachi session was presided by Sardar Patel. The congress adopted a resolution on
Fundamental Rights and Economic Policy which represented the Party’s Social, Economic and
Political programme. It was later known as Karachi Resolution. Nehru had originally drafted it,
but some Congress leaders thought it was too radical and it was redrafted. We have been told that
MN Roy also played a role in drafting this resolution, but Nehru himself later said that MN Roy
had nothing to do with it. In any case, the redrafted resolution made the Karachi Session
 memorable, because for the first time, the resolution tried to define what would be the meaning
of Swaraj for common people.

Some important aspects of these resolutions were:

 Basic civil rights of freedom of speech, Freedom of Press, Freedom of assembly, Freedom of
association,
 Equality before law
 Elections on the basis of Universal Adult Franchise
 Free and compulsory primary education.
 Substantial reduction in rent and taxes
 Better conditions for workers including a living wage, limited hours of work.
 Protection of women and peasants
 Government ownership or control of key industries, mines, and transport.
 Protection of Minorities.
Thus, the Congress which was agenda less a few years back had the most impressive agenda in
hand now and made this agenda- the basis of its political programme for the next many years to
come.
KARACHI CONGRESS SESSION- 1931

 In March 1931, a special session of the Congress on held at Karachi to endorse the
Gandhi-Irwin or Delhi Pact. Six days before the session (which was held on March 29)
Bhagat Singh, Sukhdev and Rajguru had been executed.
 Throughout Gandhi’s route to Karachi, he was greeted with black flag demonstrations by
the Punjab Naujawan Bharat Sabha, in protest against his failure to secure commutation
of the death sentence for Bhagat and his comrades.

CONGRESS RESOLUTIONS AT KARACHI

1. While disapproving of and dissociating itself from political violence, the Congress
admired the “bravery” and “sacrifice” of the three martyrs.
2. The Delhi Pact was endorsed.
3. The goal of puma swaraj was reiterated.
4. Two resolutions were adopted — one on Fundamental Rights and the other on National
Economic Programme, which made the session particularly memorable.

THE RESOLUTION ON FUNDAMENTAL RIGHTS GUARANTEED

1. Free speech and free press

2. Right to form associations
3. Right to assemble
4. Universal adult franchise
5. Equal legal rights irrespective of caste, creed and sex
6. Neutrality of state in religious matters
 7. Free and compulsory primary education
8. Protection to culture, language, script of minorities and linguistic groups
KARACHI CONGRESS SESSION- 1931

THE RESOLUTION ON NATIONAL ECONOMIC PROGRAMME INCLUDED

1. Substantial reduction in rent and revenue

2. Exemption from rent for uneconomic holdings
3. Relief from agricultural indebtedness
4. Control of usury
5. Better conditions of work including a living wage, limited hours of work and protection
of women workers
6. Right to workers and peasants to form unions
7. State ownership and control of key industries, mines and means of transport

This was the first time the Congress spelt out what swaraj would mean for the masses-“in order
to end exploitation of masses, political freedom must include economic freedom of starving
millions.”The Karachi Resolution was to remain, in essence, the basic political and economic
programme of the Congress in later years.

Mohandas Karamchand Gandhi popularly revered as Mahatma Gandhi was not only one of the
greatest leaders of Indian Nationalism but a major social and political reformer, who played an
important role in purging the Indian society of its inherent evils. In this regard, he assumed a
pioneering role in attempting to eradicate the social wrongs committed against the women of the
country through ages. Gandhi's political ideologies, strongly anchored in humanitarian values,
were a reflection of his spiritual self. His personal philosophies of life molded to a great extent
his political strategies, with which he steered Indian on the path to freedom. For Gandhi, politics
was not an exclusive category, but it was very much a part of one's holistic spiritual approach
towards life in general. Therefore politics could not be divorced from social factors.

To Gandhi, social emancipation was as critical as political emancipation. Gandhi throughout his
life waged a crusade for the upliftment of the socially downtrodden, making significant
contributions for the enhancement of the status of women in India. Women under his aegis, took
a milestone step towards reestablishing their identity in the society. Gandhi's inspiring ideologies
boosted their morale and helped them to rediscover their self esteem. Not only there was a
general awakening among the women, but under Gandhi's leadership, they entered into the
national mainstream, taking parts in the National Movements. In Gandhi's words, "To call
women the weaker sex is a libel; it is man's injustice to women." Gandhi's reformist spirit
seasoned the role that he played in uplifting the status of women in India.
Status of Women in Pre Independence India

To understand in depth the role that Gandhi played in improving the position of women in
society, it is essential to look at women's status, prevalent at that time. When Gandhi emerged on
to the political scenario, social evils like child marriage and dowry system were rampant. Indian
women had an average life span of only twenty seven years. Death of women in labor was a
common phenomenon. The percentage of women with basic education was as low as two
percent. The patriarchal nature of the society confined women to the status of an inferior sex
subordinate to their male counterparts. The purdah system was in full vogue in Northern India.
Unless accompanied by their male guardians, the women were not permitted to venture out on
their own. Only a handful few could avail of education and attend schools. It was in such a
dismal milieu that Gandhi took the responsibility of shouldering a social crusade that led to a
major reorientation of the common notion of women in the Indian society.

Gandhi's Voice Against the Social Evils

According to the Mahatma, social reforms were essential for the restructuring of the societal
values that had so far dominated the perception of Indian women. Although, he had great
reverence for the traditions of the country, he also realized that certain customs and traditions of
the Indian society were antithetical to the spirit of development of the women of the nation. To
quote Gandhi, " It is good to swim in the waters of tradition, but to sink in them is suicide". The
custom of child marriage became a target of his criticisms. In his opinion, child marriage is a
source of physical degeneration as much as a moral evil. The system of dowry could not pass
unnoticed from his critical eyes. He defined dowry marriages as 'heartless'. He opined that girls
should never marry men who demand dowry, at the cost of their self respect and dignity. As
Gandhi believed that the basis of marriage is mutual love and respect, he urged people to
solemnize inter communal marriages between the Harijans and caste Hindus. Gandhi was
extremely perturbed by the plight of the widows, particularly child widows. He put forth an
earnest appeal to the young generation of the country to marry the widows. He was also quite
hopeful about the immense potentials of the widows in furthering national issues. The system of
purdah also came under Gandhi's attacks and he questioned the very foundation of this practice.
For him, the purdah system was no less than a "vicious, brutal and barbarous" practice. The
predicaments of the devadasis, a part of the lower, untouchable segment of the society, had an
indelible effect on the sensitive mind of the Mahatma. The pathetic conditions of the child
prostitutes disturbed him immensely. He left no stone unturned for rehabilitating this segment of
the society, as for him guarding the honor of women was no less than protecting cows.
According to Gandhi, one of the first tasks that need to be accomplished as soon as the country
won freedom was to abolish the system of devzdasis or temple women and brothels.

Gandhi's Perception of Women

There was a marked departure of Gandhi's perception of women from that of other reformers.
The stance taken by other social reformers and leaders, prior to Gandhi created a helpless image
of the Indian women. With the emergence of Gandhi, a new conception of women gradually
gained currency. For Gandhi, women were not mere toys in the hands of men, neither their
competitors. Men and women are essentially endowed with the same spirit and therefore have
similar problems. Women are at par with men, one complementing the other. According to
Gandhi, education for women was the need of the time that would ensure their moral
development and make them capable of occupying the same platform as that of men. In Gandhi's
views, women can never be considered to be the weaker sex. In fact, women for Gandhi were
embodiments of virtues like knowledge, humility, tolerance, sacrifice and faith. These qualities
were essential prerequisites for imbibing the virtue of satyagraha. The capability of enduring
endless suffering can be witnessed only in the women, according to the Mahatma. The doctrine
of ahimsa as preached by Gandhi incorporates the virtue of suffering as is evident in the women.
Therefore, Gandhi envisaged a critical role for women in establishing non-violence. Gandhi
invoked the instances of ancient role models who were epitomes of Indian womanhood, like
Draupadi, Savitri, Sita and Damayanti, to show that Indian women could never be feeble.
Women have equal mental abilities as that of men an an equal right to freedom. To sum up in
Gandhi's words; "The wife is not the husband's slave but his companion and his help-mate and an
equal partner in all his joys and sorrows - as free as the husband to choose her own path."

Role of Women as Envisaged by Gandhi

According to Gandhi, the role of women in the political, economic and social emancipation of
the country was of overriding importance. Gandhi had immense faith in the capability of women
to carry on a non violent crusade. Under his guidance and leadership, women shouldered critical
responsibilities in India's struggle for freedom. Women held public meetings, organized
picketing of shops selling foreign alcohol and articles, sold Khadi and actively participated in
National Movements. They bravely faced the baton of the police and even went behind the bars.
Gandhi's urge to women to join India's struggle for independence was instrumental in
transforming the outlook of women. Swaraj uprooted age old taboos and restrictive customs.
Through their participation in Indian struggle for freedom, women of India broke down the
shackles of oppression that had relegated them to a secondary position from time immemorial.

As far as the economic emancipation of women was concerned, Gandhi felt that men and women
had different spheres of work. In his opinion, women could take to economic activities to
supplement the income of her families like spinning, which he believed to be a good option
available to the women. In the social realm, Gandhi envisaged a critical role for women in doing
away with the forces of communalism, caste system and untouchability.

It can be said without an iota of doubt that Mahatma Gandhi was indeed one of the greatest
advocates of women's liberty and all throughout his life toiled relentlessly to improve the status
of women in his country. His faith in their immense capabilities found expression in his
decisions to bestow leadership to them in various nationalistic endeavors.

UNIT-2

Constitutional Provisions for Women in our Constitution

 Article 14 – Men and women to have equal rights and opportunities in the political, economic and social spheres.

 Article 15(1) – Prohibits discrimination against any citizen on the grounds of religion, race, caste, sex etc.

 Article 15(3)- Special provision enabling the State to make affirmative discriminations in favor of women.

 Article 16– Equality of opportunities in matter of public appointments for all citizens.

 Article 23– Bans trafficking in human and forced labor

 Article 39(a)- The State shall direct its policy towards securing all citizens men and women, equally, the right to means of livelihood.

 Article 39(d)- Equal pay for equal work for both men and women.

 Article 42– The State to make provision for ensuring just and humane conditions of work and maternity relief.

 Article 51 (A)(e)- To renounce the practices derogatory to the dignity of women

 Article 300 (A)- Right of property to women

 73rd and 74th Amendment Act 1992- Reservation 1/3rd of seats in local bodies of panchayats and municipalities for women.

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

The women rights in India and safeguards well-preserved in the constitution are listed
here:

 The state shall not discriminate against any native of India on the ground of sex [Article 15(1)].
 The state is authorized to make any special provision for women. In other words, this provision permits the state to make affirmative discrimination in
favour of females [Article 15(3)].
 No citizen shall be segregated against or be unsuitable for any office or employment under the state on the base of sex [Article 16(2)].
 Traffic in human beings and enforced labour are banned [Article 23(1)].
 The state to secure for male and female equally the right to a sufficient means of livelihood [Article 39(a)].
 The state to ensure equal pay for equal work for both Indian male and female [Article 39(d)].
 The state is needed to ensure that the strength and health of women workers are not abused and that they are not obliged by economic necessity to
enter avocations unsuited to their strength [Article 39(e)].
 The state shall make procurement for securing just and humane conditions of work and maternity welfare [Article 42].
  It shall be the duty of every native of India to renounce practices derogatory to the dignity of women [Article 51-A(e)].
 One-third of the entire number of seats to be filled by direct election in every Panchayat shall be reserved for females [Article 243-D(3)].
 One-third of the entire number of offices of Chairpersons in the Panchayats at each level shall be reserved for females [Article 243-D(4)].
 One-third of the whole number of seats to be filled by direct election in all Municipality shall be reserved for females [Article 243-T(3)].
 The offices of Chairpersons in the Municipalities shall be reserved for females in such manner as the State Legislature may provide [Article 243-T(4)].

Though the position of women has developed in the last four decades, however still they are struggling to maintain their freedom and dignity. Presently Indian
women are suffering from the toughest time physically and mentally, mainly due to unawareness and lack of information on legal and constitutional woman rights
in India. The Constitution provides many protection women rights such as Protective discrimination in favour of women, Right of women against exploitation,
Rights of women under directives, Right to freedom of women and political representations of women.