Unit 1: Introduction Husband and wife stood as equals before God.
individual and insis-tence on the rights of man
1.1 POSITION OF WOMEN IN INDIA:
The position of women in ancient India has
been a very complicated one because of the
paradoxical statements in different religious
scriptures.
It was generally seen and believed that women
had lower status with reference to power and
influence than men in all spheres of life—family,
community, religion and politics.
Some scholars have explained this inferior
status of women as a result of patriarchal code
of living.
Rigvedic Period: It is generally upheld on the
basis of the instances depicted in religious texts
(e.g., Vedas, Upanishads, Smritis, epics like
Ramayan and Mahabharat and other
Dharmasastras) that in ancient India, especially
in Rigvedic period, women enjoyed equal status
with men.
They had an honourable place in the society.
They were not secluded from men and freely
participated in public life. They attended great
assemblies and state occasions. They studied
the Vedas and composed hymns. In Vedic times,
women were not treated as inferior or
subordinate but equal to men in all matters of
life. They were given education and had a voice
in the selection of their husband. Marriage was
regarded as a religious bond. Child marriage
was unknown. Often there were love marriages
known as Gandharva Vivaha. Monogamy was a
general rule. Polygamy was almost unknown.
Women enjoyed complete freedom in household
matters. In the religious field, women enjoyed
all rights and regularly participated in religious
ceremonies. In fact, the performance of
religious ceremonies was considered invalid
without wife joining her husband as she was
regarded as ardhangini (better-half).
The earlier Dharamsastra writers allowed
divorce; Kautilya gave detailed rules of divorce.
As regards sati, burning of the widow,
Shakuntala Rao Sastri writes that the Rigveda
does not mention anywhere the practice of the
burning or burial of widows with their dead
husbands.
As regards property rights, according to Vedic
hymns, both husband and wife was joint owner
of the property. Women inherited and
possessed property, but their rights were
limited. As a daughter, she had no share in her
father’s property. Similarly, as a wife, a woman
had no direct share in her husband’s property.
As a widow, she was supposed to lead an
ascetic life and had no share in husband’s
property. Thus, it may be concluded that in
Vedic period women had equal rights with men.
Their status was fairly high and they were
treated as equals with men in almost all spheres
of life.
Post-Vedic Period (Upanishads, Puranic
and Smriti Periods):
The position enjoyed by women in Vedic period
deteriorated in post-Vedic period. It was
gradually degraded in the Puranic and Smriti
periods. The description of position before BC
300 shows that she enjoyed a fairly high status,
though not to the extent that she enjoyed in
Vedic period.
Some of the Dharamsastras mention about
the prohibition of Niyoga and widow remarriage.
The widow was asked to devote herself to an
ascetic life at home. Marriage became an
irrevocable union as far as the wife was
concerned.
The Smriti writers preached that the wife should
look upon her husband as God. Widows were
required to spend a life of penance and
austerity. Sati had become popular by the 7th
century AD. In this period, women were
regarded just as a means of satisfying the
physical desires of men.
Just to refer one instance of Mahabharata, it is
said that ‘there was no creature more sinful
than man … woman is the root of all ills’. This
simple quotation is sufficient to prove that how
disrespect was shown towards women.
However, it is not out of place to mention here
that Indian scriptures are full of paradoxical
statements.
Up to this period purdah (veil) was not
commonly observed by women. Divorce was,
however, not permissible to them. But then, it
was not permissible to men either. Their
position was not one of complete disability but
one dictated by justice and fairness. Women
used to help their male members of their family
in economic pursuits. They sometimes
accompanied their husband or other members
of the family in hunting and agricultural
pursuits.
Medieval Period:
The period between 11th century to 18th
century witnessed further deterioration in the
position of women due to the impact of Muslim
culture. In this period, female infanticide, child
marriage, purdah system, sati and slavery were
the main social evils affecting the position of
women.
The birth of a female child began to be regarded
as curse, a bad luck. They were almost confined
to the doors of their homes. There was further
curtailment of freedom of women in matters of
education, mate selection, public appearances,
etc.
British Period:
During the period of British rule of about 200
years (early 18th century to the first half of 20th
century) some substantial progress was
achieved in eliminating inequalities between
men and women in matters of education,
employment, social and property rights and so
forth.
Through the efforts and the various
movements launched by these great social
leaders of the 19th century before
independence, it had been possible to get many
legislations passed and public opinion mobilized
in favour of some issues of social reforms.
These steps have paved the way in removing
the obstacles in the progress of women. Not
only this, it had helped in eliminating
inequalities between men and women and
giving proper respect to the other-half of the
society.
The most significant legislations relating to the
problems faced by the Indian (Hindu) women
passed during British period were as follows:
1. Abolition of Sati Act, 1813.
2. The Hindu Widow Remarriage Act, 1856.
3. Civil Marriage Act, 1872.
4. Married Women’s Property Act, 1874.
5. The Child Marriage Restraint Act (Sharda
Act), 1929.
6. Hindu Law of Inheritance Act, 1929.
7. Hindu Women’s Rights to Property Act, 1939.
8. Hindu Marriage Disabilities Removal Act,
1946.
In the last decades of 19th century, a marked
change took place in the outlook of both men
and women about the education and
employment of women as teachers, nurses,
doctors, etc. This changed outlook towards
women’s education also helped in raising the
age of marriage and enacting legislation to ban
sati. Thus, the ground prepared by the 19th
century social reformers and their untiring
efforts led to the emancipation of women. This
also helped them to take their rightful place in
society.
After Independence:
In addition to the measures to uplift the
status of women in India initiated by Britishers,
many vigorous steps (legal, social, economic
and political) have been taken by Government
of India after independence by removing the
hurdles put in their way by traditional past. The
efforts of the social reformers and their
movements launched in the pre-independence
period also bore fruits. The Indian National
Movement also led to the emancipation of
Indian women.
Most of the social reformers and thinkers of
the 19th and 20th centuries were influenced by
the tenets of the liberal philosophy of the West,
which empha-sized the principle of contract
rather than status, a rational outlook of life and
problems, freedom of speech, criticism of
authority, questioning of accepted dogmas and
finally the recognition of the value of the
as opposed to his duties. They also got impetus
from Upanishads and other Hindu scriptures.
The decades after independence have seen
tremendous changes in the status and position
of the women in Indian society. The Constitution
of India has laid down as a fundamental right
the equality of sexes.
Some of the important Acts are mentioned
below:
1. The Hindu Marriage Validity Act, 1949.
2. The Special Marriage Act, 1954.
3. The Hindu Marriage Act, 1955 (amended in
1986 and 2010).
4. The Hindu Succession Act, 1956.
5. Immoral Traffic (Prevention) Act, 1956.
6. The Sati Prevention Act, 1987.
7. The Dowry Prohibition Act, 1961.
8. Indecent Representation of Women
(Prohibition) Act, 1986.
9. Prohibition of Child Marriage Act, 2007.
10. Protection of Women from Domestic
Violence Act, 2005.
11. Compulsory Registration of Marriage Act,
2006.
Besides, the Acts especially related to
employment are:
1. The Factory Act, 1948.
2. Employees Insurance Act, 1948.
3. The Maternity Benefit Act, 1961.
4. The Equal Remuneration Act, 1976.
The above legislations and many other
emancipatory actions of the social reformers
have no doubt raised the status of women in
India but still much is to be done in this field.
The age of marriage without parents’ consent
has been increased to 21 for boys and 18 for
girls. Thus, monogamy along with facility of
judicial separation, nullity and divorce (even on
mutual consent), inheritance (equal share in
paternal property), adoption, widow remarriage
and sati abolition are some of the salient
features of post-independence era which put
men and women on equal footings from the
point of view of legislative measures.
There are still any numbers of other victims
who wither unseen. Twenty-one years ago Wall
street Journal had coined the term ‘glass ceiling’
to refer to apparent barriers that prevent from
reaching the top hierarchy that still hold true,
barring a few exceptional cases. Furthermore,
women earn less than men have less access to
more prestigious better paying occupations even
when they are equal in all respects.
The best example is provided by the rural
India, where in theory women are equated with
goddess, but in actual practice, they are treated
as drudges. The problems of inferiority,
inequality, dependence and the exploitation
experienced by women have not much changed
in the villages, where most of the India lives,
even after 65 years of independence.
1.2 WOMEN AND THE CONSTITUTION:
The principle of gender equality is enshrined in
the Indian Constitution in its Preamble,
Fundamental Rights, Fundamental Duties and
Directive Principles. The Constitution not only
grants equality to women, but also empowers
the State to adopt measures of positive
discrimination in favour of women.
Within the framework of a democratic polity,
our laws, development policies, Plans and
programmes have aimed at womens
advancement in different spheres. India has also
ratified various international conventions and
human rights instruments committing to secure
equal rights of women. Key among them is the
ratification of the Convention on Elimination of
All Forms of Discrimination Against Women
(CEDAW) in 1993.
Constitutional Provisions
The Constitution of India not only grants
equality to women but also empowers the State
to adopt measures of positive discrimination in
favour of women for neutralizing the cumulative
socio economic, education and political
disadvantages faced by them.
Constitutional Privileges
Equality before law for women (Article 14)
The State not to discriminate against any
citizen on grounds only of religion, race, caste,
sex, place of birth or any of them (Article 15 (i))
The State to make any special provision in
favour of women and children (Article 15 (3))
Equality of opportunity for all citizens in
matters relating to employment or appointment
to any office under the State (Article 16)
The State to direct its policy towards securing
for men and women equally the right to an
adequate means of livelihood (Article 39(a));
and equal pay for equal work for both men and
women (Article 39(d))
Not less than one- third of the total number of
offices of Chairpersons in the Panchayats at
each level to be reserved for women (Article 243
D (4))
2.Legal Provisions:
To uphold the Constitutional mandate, the State
has enacted various legislative measures
intended to ensure equal rights, to counter
social discrimination and various forms of
violence and atrocities and to provide support
services especially to working women.
Although women may be victims of any of the
crimes such as Murder, Robbery, Cheating etc,
the crimes, which are directed specifically
against women, are characterized as Crime
against Women. These are broadly classified
under two categories.
(1) The Crimes Identified Under the
Indian Penal Code (IPC)
Rape (Sec. 376 IPC)
Kidnapping & Abduction for different purposes
( Sec. 363-373)
Homicide for Dowry, Dowry Deaths or their
attempts (Sec. 302/304-B IPC)
Torture, both mental and physical (Sec. 498-A
IPC)
Molestation (Sec. 354 IPC)
Sexual Harassment (Sec. 509 IPC)
Importation of girls (up to 21 years of age)
(2) The Crimes identified under the
Special Laws (SLL)
Although all laws are not gender specific, the
provisions of law affecting women significantly
have been reviewed periodically and
amendments carried out to keep pace with the
emerging requirements. Some acts which have
special provisions to safeguard women and their
interests are:
The Employees State Insurance Act, 1948
The Plantation Labour Act, 1951
The Family Courts Act, 1954
The Special Marriage Act, 1954
The Hindu Marriage Act, 1955
The Hindu Succession Act, 1956 with
amendment in 2005
Immoral Traffic (Prevention) Act, 1956
The Maternity Benefit Act, 1961 (Amended in
1995)
Dowry Prohibition Act, 1961
The Medical Termination of Pregnancy Act, 1971
The Contract Labour (Regulation and Abolition)
Act, 1976
The Equal Remuneration Act, 1976
The Prohibition of Child Marriage Act, 2006
The Criminal Law (Amendment) Act, 1983
The Factories (Amendment) Act, 1986
Indecent Representation of Women (Prohibition)
Act, 1986
Commission of Sati (Prevention) Act, 1987
The Protection of Women from Domestic
Violence Act, 2005
Special Initiatives For Women
(i) National Commission for Women
In January 1992, the Government set-up this
statutory body with a specific mandate to study
and monitor all matters relating to the
constitutional and legal safeguards provided for
women, review the existing legislation to
suggest amendments wherever necessary, etc.
(ii) Reservation for Women in Local Self -
Government
The 73rd Constitutional Amendment Acts passed
in 1992 by Parliament ensure one-third of the
total seats for women in all elected offices in
local bodies whether in rural areas or urban
areas.
(iii) The National Plan of Action for the Girl Child
(1991-2000)
The plan of Action is to ensure survival,
protection and development of the girl child with
the ultimate objective of building up a better
future for the girl child.
(iv) National Policy for the Empowerment of
Women, 2001
The Department of Women & Child
Development in the Ministry of Human Resource
Development has prepared a National Policy for
the Empowerment of Women in the year 2001.
The goal of this policy is to bring about the
advancement, development and empowerment
of women.
1.3 WOMEN AND INTERNATIONAL HUMAN
RIGHTS:
“Gender-based violence” is violence involving
men and women, and in this case, the female is
usually the victim. The main reason why such
crimes crept in the society is from unequal
power relationships between men and women.
International laws and policies to
prevalent offences against women:
Universal Declaration of Human Rights
Equality on the basis of sex is the fundamental
principle of international human rights law. All
United Nations treaties guarantee the same
rights to women as they do to men. The
Universal Declaration of Human Rights
(1948) states, “All human beings are born free
and equal in dignity and rights“. However,
women’s freedom, dignity, and equality are
constantly denied all over the world on the basis
of race, custom, tradition, culture and religion in
ways that men’s rights are not.
The core documents which make up the
International Bill of Human Rights are:
1) The human rights provisions of the UN
charter.
2) The Universal Declaration of Human Rights
1948.
3) International Covenant on Civil and Political
Rights 1966 and its two optional protocols.
4) International Covenant on Economic Social
and Cultural Rights, 1966.
Convention on Elimination of all forms of
Discrimination Against Women
One of the most comprehensive treaties on the
rights of women, if exists, it would be the
‘United Nations (UN) Convention on the
Elimination of Discrimination against Women
(CEDAW)’. The convention tries to address all
the forms of gender-based violence against
women and condemns any form of
discrimination against women and reaffirms the
importance of guaranteeing equal political,
economic, social, cultural and civil
rights to women and men. CEDAW provides
that there should be equal political,
economic, social, cultural and civil
rights for women regardless of their marital
status.
UN declaration on the elimination of
violence against women
In 1993, the United Nations General assembly
adopted The UN Declaration on the Elimination
of Violence against Women.
The UN Declaration has currently taken the
most widely accepted definition of violence
against women in consideration, and that is:
‘Any act of gender-based violence that results
in, or is likely to result in, physical, sexual or
psychological harm or suffering to women,
including threats of such acts, coercion or
arbitrary deprivation of liberty, whether
occurring in public or in private life.’
Committee on the Elimination of
Discrimination against Women
Alongside these developments, the work of the
Committee on the Elimination of Discrimination
against Women, which had commenced its work
under the CEDAW Convention in 1982 also
made a significant change. The Committee
became conscious of the systemic nature of
violence against women when it looked into the
States parties’ reports and information provided
by non-governmental organizations during its
first decade.
In its effect, the CEDAW Committee adopted
General recommendation 12 on violence against
women in 1989, in which it identified articles of
the Convention which imposed obligations on
States parties to address and report violence
against women, identified sites of such violence
as within the family, the workplace and other
areas of social life, and recommended that
States parties report on legislation and other
measures adopted to protect women against
violence and provide support services. It also
asks to compile statistical data on the incidence
of violence.
Vienna World Conference on Human
Rights
In the Vienna World Conference on Human
Rights, the Committee delegated part of its
session to a discussion of violence against
women which would reflect on Convention
articles that related particularly to the issue. The
outcome of which was the Committee’s General
recommendation (1992). The Committee has
also addressed the issue in a number of its
other General recommendations, many of its
decisions and its inquiry reports under the
Optional Protocol, and regularly comments on
the issue in its concluding observations on the
reports of States parties. States parties have
regularly reported under the Convention on
violence against women in response to the
Committee’s requests.
Landmark judgments (India)
It is most often said that if one woman stands
for her rights, she stands for several more.
Here, in this section different Indian landmark
judgements are discussed which has changed
the path in which justice for women was usually
looked at.
Vishakha and others vs. State of
Rajasthan [AIR 1997 SC 3011]
Vishakha and others vs. State of Rajasthan was
a Public Interest Litigation (PIL) which was filed
in the court of law after Bhanwari Devi, a social
worker in Rajasthan was inhumanly ganged
raped by some Gujjar men for stopping child
marriage. Bhanwari Devi, being determined to
get justice, lodged a complaint against the
offenders.
The accused was acquitted by a trial court,
although, after this landmark case, the Supreme
Court of India decided that the consideration of
International Conventions and norms are
significantly required for the elucidation of the
guarantee of gender equality, right to work with
human dignity in Articles 14, 15, 19(1)
(g) and 21 of the Constitution of India and for
the safeguard of women against sexual
harassment.
1.4 WOMEN AND PROPERTY RIGHTS:
When women marry and join a new family, the
question of property rights and other economic
rights provided to them under various Indian
legislation becomes even more complicated.
There is no uniformity regarding the property
rights of women in India because the country is
home to several religions without a Uniform Civil
Code and each religion is controlled by its
personal laws.
Muslim Law
Daughters
In inheritance, the daughter's share is equal to
one half of the son's in keeping with the concept
that a woman is worth half a man.
She has, however, and has always had full
control over this property. It is legally hers to
manage, control, and to dispose of as she
wishes in life or death.
Though she may receive gifts from those
whom she would inherit from, there should be
no doubt that the gift is a means of
circumventing the inheritance laws of one third
of a man's share, since, under Muslim law. The
shares of inheritance are very strict.
Daughters have rights of residence in parent's
houses, as well as right to maintenance, until
they are married. In case of divorce, charge for
maintenance reverts to her parental family after
the iddat period (approximately 3 months). In
case she has children capable of supporting her.
The charge falls upon them.
Wives
In Islamic law a woman's identity, though
inferior in status to a man's is not extinguished
in him when she marries
Thus she retains control over her goods and
properties. She has a right to the same
maintenance he gives to his other wives, if any,
and may take action against him in case he
discriminates against her.
The Supreme Court has held that in the case of
divorce, a Muslim husband is liable to make
reasonable and fair provision for the future of
the divorced wife which obviously includes her
maintenance as well. Such a reasonable and fair
provision extending beyond the iddat period
must be made by the husband within the iddat
period in terms of Section 3 (1Ha} of the Muslim
Women (Protection of Rights on Divorce) Act,
1986 and liability of Muslim husband to pay
maintenance is not consigned to iddat period.
Right to mehr' according to the terms of the
contract agreed to at the time of marriage.
She will inherit from him to the extent of one
eighth if there are children or one fourth if there
are none. If there is more than one wife, the
share may diminish to one sixteenth. In
circumstances, where there are no sharers in
the estate as prescribed by law, the wife may
inherit a greater amount by will. A Muslim may
dispose of one third of his property by will,
though not to a sharer in the inheritance.
Mothers
In case of divorce or widowhood, she is
entitled to maintenance from her children.
Her property is to be divided according to the
rules of Muslim law.
She is entitled to inherit one sixth of her
deceased child's estate.
Christian Law
Daughters
She inherits equally with any brothers and
sisters to her father's estate or her mothers'.
Entitled to shelter, maintenance before
marriage, but not after from her parents
Full rights over her personal property, upon
attaining majority. Until then, her natural
guardian is her father.
Wives
She is entitled to maintenance, from her
husband, but his failure to provide the same is
note by itself ground for divorce.
Upon death of her husband, she is entitled to a
one third share of his property, the rest being
divided among the children equally.
She must inherit a minimum of Rs.5000/- from
her husband's estate. Supposing the estate is
more than this amount. In case it is not, she "Wife" includes a woman who has been
may inherit the whole. divorced by, or has obtained a divorce from, her
Mothers husband and has not remarried.
She is not entitled to maintenance from her Important Judicial Pronouncements
children. In case any of her children dies
without spouse or living children she may inherit Smt. B.P. Achala Anand - Civil Appeal No. 4250
one fourth of the assets. of 2000
The Supreme Court in this case observed that
Hindu Law
right of a wife to reside in the matrimonial home
Daughters under personal laws. A wife is entitled to be
Daughters have equal right of inheritance as maintained by her husband. She is entitled to
sons to their father's property. remain under his roof and protection. She is also
Daughters also have a share in the mother's entitled to separate residence if by reason of the
property. husband's conduct or by his refusal to maintain
The Hindu Succession (Amendment) Act, 2005 her in his own place of residence or for other
(39 of 2005) came into force from 9th just cause she is compelled to live apart from
September, 2005. the Amendment Act removes him. Right to residence is a part and parcel of
gender discriminatory provisions in the Hindu wife's right to maintenance. . For the purpose of
Succession Act, 1956 and gives the following maintenance the term wife' includes a divorced
rights to daughters wife.
oThe daughter of a coparcener shall by birth Bharat Heavy Plates and Vessies Ltd., AIR 1985
become a coparcener in her own right in the Andhra Pradesh 207,
same manner as the son; The husband was an employee in a company.
oThe daughter has the same rights in the He was allotted a company quarter in which he
coparcenary property as she would have had if lived with his wife. The quarter was the
she had been a son; matrimonial home. However, differences
oThe daughter shall be subject to the same developed between the husband and wife,
liability in the said coparcenary property as that leading to their estrangement and finally the
of a son; wife went to the Court, charging her husband
oThe daughter is allotted the same share as with neglect to maintain her and her three
is allotted to a son; minor children. The husband left the company
A married daughter has no right to shelter in quarter and it was occupied only by his wife and
her parents’ house, nor maintenance, charge for minor children. The husband also wrote to the
her being passed on to her husband. However, company, terminating the lease which was in his
a married daughter has a right of residence if favour. The hovering prospects of eviction led
she is deserted, divorced or widowed. the wife to the Court for protection, seeking an
A woman has full rights over any property that injunction restraining the company from evicting
she has earned or that has been gifted or willed the wife and her three minor children. The High
to her, provided she has attained majority. She Court upheld the order impugned before it,
is free to dispose of these by sale, gift or will as whereby the company was restrained from
she deems fit. evicting the wife and her minor children. The
Wives Court took into consideration the facts that the
A married woman has exclusive right over her quarter was meant to be used by the employee
and the husband was under an obligation to
individual property. Unless she gifts it in part or
provide shelter to the wife and children. The
wholly to anyone. She is the sole owner and
husband and the company had both recognized
manager of her assets whether earned,
the quarter to be the matrimonial home wherein
inherited or gifted to her.
the wife too was residing. The amount of rent
Entitled to maintenance, support and shelter
was directed to be deducted from the salary of
from her husband, or if her husband belongs to
the husband.
a joint family, then from the family.
Upon partition of a joint family estate, between
her husband and his sons, she is entitled to a
share equal to as any other person. Similarly,
upon the death of her husband, she is entitled
to an equal share of his portion, together with
her children and his mother.
Mothers
She is entitled to maintenance from children
who are not dependents. She is also a Class I
heir.
A widowed mother has a right to take a share
equal to the share of a son if a partition of joint
family estate takes place among the sons.
All property owned by her may be disposed by
sale, will or gift as she chooses.
In case she dies intestate, her children inherit
equally, regardless of their sex.
Maintenance
Section 125 of Criminal procedure code
prescribes for maintenance of wives, children
and parents.
If any person having sufficient means
neglects or refuses to maintain-
1.His wife, who is unable to maintain herself, or
2.His legitimate or illegitimate minor child,
3.His father or mother, unable to maintain
himself or herself
Court in such cases may order such person to
make a monthly allowance for maintenance to
the wife, child or parents
Order issued by a Magistrate of the first class
Magistrate can also during the pendency of the
proceeding order monthly allowance for the
interim maintenance
Application for the monthly allowance for the
interim maintenance and expenses of
proceeding shall, as far as possible, be disposed
of with in sixty days from the date of the service
of notice of the application