(Since I stepped in to the law class of my alma mater five years back, the plight and sufferings of Indian women has always been in mind. As I studied deeper in to Indian and International law relating to women, sometimes I found myself exasperated on the sheer lack of awareness among Indian women. I feel that it is my bounden duty to contribute whatever little that I can in this field. Of course, this article could just be the beginning.)
How aware are we women about our rights? How vocal are we when we are ill treated by people? When the husband comes home drunk and beats up the wife. These are not rhetorical questions by themselves. Rhetorical, so because people are either unaware or they just sleep on their rights. I know of many women who take such tortures silently without raising any complaints. My article shall deal with the women and why they are seriously in need to know their rights and how to fight for it. I shall try my best to avoid the legal jargon for better understanding by the common womenfolk.
India is the worst country where a woman can live, and perhaps worst country a girl child should be borne. So much has been said about rights of women and protecting them. But it is getting no better. As a law student, I learnt some Latin maxims on law. Out of all, I like this the most, ‘Vigilantibus et non doemientibus jura subvenient’. It means law assists those that are vigilant with their rights and not those who sleep on it. It is essential for every citizen to be aware of their rights and duties as well. For every violation of a right, there can be a claim for the remedy. The only exception is when there is a threat to the integrity and peace of the State, the rights can be restricted. If women are educated about their rights and encourage them to fight for it, the atrocities done could be reduced noticeably. And as my law school was coming to an end, I realized the knowledge of law is very essential for every citizen. Maybe there should be law subjects in the syllabus of the pre-university level.
The problems faced by women in our society are verbal as well as physical abuse, rape, eve teasing, dowry deaths, domestic violence, human trafficking, forced prostitution, inequity and contempt in work places, atrocities meted out towards the widows, etc. Drug addict husbands mercilessly beating up their wives to extract money for the next dose, HIV husbands spreading virus to the innocent wives, greedy husbands asking wives to get more money from her home, violations are endless. These are not new to you, me or anyone. We see these in the neighborhood and even among our family members. Women have always been the victim in the male dominated society. This point has been shunned by some chauvinists as it sounds like a feminist propaganda which is not true. The whole debate of ill treatment of women should not be reduced to the point of Feminists Vs. Male Chauvinists. The problems should be considered and deal as human beings or individuals would have towards a disease or any illness which needs immediate intervention to cure it.
I know it is better said than done. Indian women consider their husbands as gods. The sanctification of the relation has given the husband the leeway to misuse their rights. It is like women should be immune to all the pain. It will be impossible to think of suing their husbands or even leave the bad relation. Women have been conditioned to an extent that the right to happiness is out question. She cannot even dream of walking out from her bad marriage. Her economic dependence on the husband stops her from thinking independent. Surprisingly, well off women too suffer the same. To break the traditions, is not a cake walk. It would take a big leap of faith in our inner strength and what is right and do the needful.
UN and Women
There is an inter-relation among social, economic, political, environmental, cultural and educational factors. They influence in the determination of justice in gender related issues. Women are known as the better half. No state can truly progress if half of its population is held back.
The emphasis on equality and gender justice has always been there in the objectives of the UN since its inception in 1945. The Commission on the Status of Women collects and compiles data on women’s condition advocates women’s rights and raises awareness of and their contribution to development around the world. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), a human rights treaty on gender equality, has been ratified by 185 states and the optional protocol by 90 states. Since 1995 and the adoption of gender mainstreaming as a strategy for achieving gender equality, intergovernmental bodies like the General Assembly, the ECOSOC and the Commission on the Status of Women – have worked to mainstream gender perspectives as an integral part of all policy areas.
The UNIFEM, an agency of the UN, is the development fund for women at the United Nations. It provides technical and financial assistance to innovative programs and strategies to foster women’s empowerment and gender equality.
The United Nations Development Program (UNDP) also has the Gender Development Index (GDI). It indicates the standard of living in a country, developed by the UN. It attempts to show the inequalities between men and women in health and longevity of life, education and standard of living. India is ranked 128th in the Gender Development Index, while USA is 12th and UK is 16th.
The Indian Constitution and Women
The Constitution and its makers have not ignored the vulnerability of women and are seen clearly in Part III of the Constitution which deals with fundamental rights and Part IV which deals with Directives Principles of State Policy. The constitution being foundation of all the laws need to be understood with relation to women’s right. It can be seen from the fundamental rights and directive principles.
The Constitution guarantees that the State shall not deny any person equality before law and equal protection of law in the territory of India (Article 14). This Article forms the bedrock for all other provisions.
This is the key principle for a welfare State to ensure social and economic equality. The idea of the right without the capability and the means to avail the benefits equally would be a farce and a mean joke on the weaker sections. Right to equality is one of the most important rights and there can be no discrimination based on the sex, race, religion, caste, creed, region, etc. The Article 15(1) prohibits the State from discriminating on the basis of religion, race, case, sex, or place of birth, Article 15(3) allows the State to make special provisions for women and children. It is imperative for the State to make laws as per the social condition of the various people. Article 15 simply elaborates that the same concept and acknowledges that women need special treatment for their betterment. The Article 16 states about equality of opportunity for all citizens in matters relating to employment.
The Article 21 is one of the most important fundamental rights states as right to life and personal liberty, which is known as human rights article also. In many cases, this Article has saved women who have been wronged.
Under the Directive principles, the states have been urged urges the State to provide equal right to adequate means of livelihood to men and women in Article 39(a) and to ensures equal pay for equal work for both men and women Article 39(d). Now we have laws for these provisions. The Article 39(e) states that State should ensure that men, women and children are not forced into work that is unsuitable to their age or strength due to economic necessity.
Certain amendments have been made in the constitution to improve the condition of women in the Indian Society. Though Indian constitution has been mocked as the most amended constitution, at least these changes are welcomed. The Article 40 and Article 243(d) say that 1/3 seats in Panchayats shall be reserved for women. The 73rd and 74th amendments to the Constitution of India provided for reservation of seats (at least 1/3) in the local bodies of Panchayats and Municipalities for women. One more Constitution Amendment (84th Constitution Amendment) reserving 33 per cent in Parliament and State Legislature is in the line. The Article 42 asked the State shall make provisions for securing just and healthy working conditions and provide maternity relief and now we have labor laws providing crèches, sanitary and other facilities for working women. These are not favors from employers, but a fundamental right with constitutional safeguards.
The Constitution also provides that it is the fundamental duty of the citizens to renounce practices that are derogatory to the dignity of women as per Article 51 A (e).
Indian Legislations and Women
Women as a citizen have all the safety guaranteed under any law of the land, but in addition, we have women specific laws too. There are quite a good number of Laws relating to women’s right and let me try to give an overall review of all the Acts relating to women so that women readers may have a list of applicable Acts in their mind. Coming to the other legislations of the country, we have the Indian Penal Code, the Evidence Act and the Criminal Procedure Code, the Dowry Prohibition Act, the Labor Laws and few more Acts which state the issues faced by women. These laws can be categorized in to two groups, having nature of criminal laws and having civil in nature.
Acts of the nature of Criminal Laws:
There a good number of Acts relating to the safety, rights and welfare of women which are of the nature of criminal laws, in fact vital laws are of this nature. The important sections/provisions of these Acts are listed for ready reference:
1. Indian Penal Code, 1860: It is one of the oldest, but most elaborate and reasonable law we have. It has never been amended. Let us see the important provisions relating to women:
Sections 292, 293 and 294 provide for punishment in sale and exhibit of obscene books objections and for obscene act in public place.
Section 304(b) deals about murder of women in connection with demand of dowry.
Sections 312 to 318 deal about punishment for causing miscarriage.
Section 354 provides punishment for outraging the modesty of any women.
Section 366 deals about kidnapping for marriage against her will.
Section 366-A deals with procuration of minor girls for sexual purpose.
Section 376 deals about punishment for rape.
Section 494 protects women from bigamy.
Section 497 deals about protection of married women from adultery.
Section 498-A deals about subjecting women to cruelty by her husband or relatives.
Section 509 provides punishment for uttering words and gesture or act intended to insult the modesty of a woman.
2. The Dowry Prohibition Act, 1961: This Act has made demand of dowry either before marriage, during marriage and or after the marriage an offence. The Dowry Prohibition Act was passed in 1961 which dealt with the practice of receiving and giving dowry. Dowry has been one of the age old customs in India and it is one of the major problems faced by women in rural and urban areas, dowry deaths are also quite common.
Section 304 B of Indian Penal Code, deals with the offence of dowry death. Punishment for which is imprisonment for a term of not less than seven years or life imprisonment.
Section 498 A deals with the crime of cruelty by the husband or the relatives of the husband. The punishment for which is imprisonment up to three years and fine. This section defines cruelty which includes both mental and physical cruelty.
3. The Immoral Trafficking (Prevention) Act, 1986: The Act safeguards women from prostitution. This was an act to provide in pursuance of the International Convention signed at the New York Convention on the 9th day of May, 1950, for the prevention of immoral traffic.
4. The Prenatal Diagnostic Technique (Regulation and Prevention of Measure) Act, 1994: This Act prohibits diagnosing of pregnant women and also identification of child in the womb whether it is male or female.
5. The Indecent Representation of Women (Prohibition) Act, 1986: The Act safeguards women from indecent representation. It prohibits indecent representation of women through advertisement or in publications, writings, paintings, figures or in any other manner.
6. The Commission of Sati (Prevention) Act, 1992: It safeguards women from Sati.
The law declares the commission, or any other ceremony in observance of sati as illegal, and even its glorification attract criminal sentence. Sati (Prevention) Act, 1987 was an enactment by the Government of Rajasthan in 1987 which became a federal legislation in 1988.
7. The Hindu Marriage Act, 1955:
Section 13(2) of the Act provides for wife to present a petition for divorce.
Section 13(b) provides equal right for wife for getting divorce by mutual consent.
Section 24 of the Act provides for relief for interim maintenance and expenses.
Section 25 of the Act provides for right to a wife to seek permanent alimony and maintenance.
Section 26 of the Act provides right to claim custody of children.
8. The National Commission for Women Act, 1992: The National Commission for Women was set up as a statutory body in January 1992 under to:
* Review the Constitutional and Legal safeguards for women;
* Take up remedial measures;
* Facilitate redressal of grievances;
* Advise the Government on all policy matters relating to women.
The Commission initiated various steps to improve the status of women and worked for their economic empowerment. Many complaints were received and acted suo-motu in several cases to provide speedy justice.
9. The Family Courts Act, 1984: The Family Courts are established in India with a view to amicably settle family disputes. These Courts shall have and exercise the entire jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in respect of suits and proceedings of the nature referred to in the explanation. This Act provides for setting up a Family Court for in-camera proceedings for women.
10. The Protection of Women from Domestic Violence Act, 2005: The Act provides for punishment for domestic violence committed by husband and his relatives and also provides legal assistance for women suffering from domestic violence. It also provides interim maintenance to women and also for compensation and damages. The term domestic violence was widened enough to encompass all sorts of physical, sexual, mental, verbal and economic abuse, and it also gives power to anyone else other than the aggrieved party to lodge the complaint.
11. The Child Marriage Restraint Act, 1976: The Act provides safeguards for girls from child marriage.
12. Code of Criminal Procedure, 1973: Under Section 125, Code of Criminal Procedure, a woman has got right to maintenance. This section provides for order of maintenance of wives, children and parents. Non compliance of the order may lead to sentencing of such person, for the whole or any part of each month‘s allowances 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.
Acts of nature of Civil Laws:
There are also other Laws which are compensatory and hence in the nature of civil laws. They are also equally important in making the society realize the right of women. Following are some of such legislations with their main provisions. For brevity, I have not gone in to details.
1. The Hindu Minority and Guardianship Act, 1956: Section 6 of the Act provides for mother as a natural guardian for minors below 5 years.
2. The Muslim Women (Protection of Right on Divorce) Act, 1986: Under the provisions of the Act provides for maintenance of women by the relatives after the iddat period.
3. The Factories Act, 1948: The provisions of this Act provides for health, safety, welfare, and working hours for women laborer working in factories.
4. The Equal Remuneration Act, 1976: It provides for payment of equal wages to both men and women workers for the same work or work of similar nature. It also prohibits discrimination against women in the matter of recruitment.
5. The Employees State Insurance Act, 1948: The Act provides for insurance pension and maternity benefits to women workers.
6. The Maternity Benefit Act, 1961: It provides for maternity benefit with full wages for women workers.
7. The Medical Termination of Pregnancy Act, 1971: The Act safeguards women from unnecessary and compulsory abortions.
8. Indian Evidence Act, 1872: Sections 113(a), 113(b) and 114(c) provide for presumptions as to abetment of suicide by a married woman within 7 years of marriage, as dowry death of a woman and as to absence of consent of woman for sexual intercourse. The Court may assume that such suicide has been abetted by her husband or by such relative of her husband or by such relative of her husband, after having regard to all other circumstances of the case.
9. Hindu Adoption Maintenance Act, 1956: Section 18-A provides for obligations of husband to maintain his wife. Section 18(2) provides right of wife to live separately and S. 19 provides for maintenance of widow by her father-in-law.
10. Hindu Succession Act, 1956: Section 14 of the Act provides for property of female Hindu to be her absolute property. Section 23 provides right of female legal heirs in the dwelling house. The earlier law entitled the daughter only to a minor share in inheritance as opposed to men. This amendment has brought wives, sisters and daughters of this country on an equal footing with men in economic terms.
Although much legislation exists, due to lack of their enforcement, women continue to suffer in this patriarchal society. Due to this shortcoming of the legislations, the judiciary has come forward to protect women. The procedural shackles have been removed. The judiciary has adopted the pragmatic approach and efforts are made to grant constitutional provisions for all women. The judiciary had taken the initiative in helping the women folk when denied by the legislature. Many landmark judgments are there to substantiate this point. Some of the cases are cited below:
In Municipal Corporation of Delhi v. Female Workers (Muster Roll) (AIR 2000 SC 1274), the Supreme Court extended the benefits of the Maternity Benefit Act,
1961 to the Muster Roll (Daily Wagers) female employees of Delhi Municipal Corporation. In this case, the Court directly incorporated the provisions of Article 11 of CEDAW, 1979 into the Indian Law.
In Mohammed Ahmed Khan v. Shah Bano (AIR 1985 SC 945), the Supreme Court granted equal right of maintenance under Section 125 of Cr. P.C. 1973 to a divorced married woman notwithstanding the personal law. The Supreme Court also held that “large segments of society which have been traditionally subjected to unjust treatment, women are one such segment.” The Court invoked Section 125 of the Code of Criminal Procedure, which applies to everyone regardless of caste, creed or religion. It ruled that Shah Bano be given maintenance money, similar to alimony.
In Air India v. Nargis Mirza (AIR 1981 SC 1829), the Supreme Court struck down the discriminatory Rules of Indian Airlines. An Air Hostess in Indian Airline challenged certain provisions of their service rile wherein an Air Hostess could have the job up to 35years of age, but can be terminated if she gets married within 4years of her recruitment or her first pregnancy as unreasonable and invalid. The Supreme Court held that this provision compelled the Air Hostess not to have children which is against the human nature. The Supreme Court also upheld the right of the Air Hostess to work up to age of 45 years instead of 35 years of age, if they are otherwise found fit. But the validity of the rule for not allowing to get married for 4 years immediately after joining was upheld due to the exigencies of services.
In Bodhisattwa v. Ms. Subhra Chakraborty (AIR 1996 SC 922), the Supreme Court held that rape is a crime against basic human rights. The Supreme Court observed that rape was not only an offence under the criminal law, but it was a violation of the fundamental right to life and liberty guaranteed by Article 21 of Indian Constitution
In Vishakha v. State of Rajasthan (AIR 1997 SC 301), the Supreme Court took a serious note of the increasing menace of sexual harassment at workplace and elsewhere. It has been laid down in the judgment that it is the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedure for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required. The delays in such cases are to be taken up on fast tract mode, because the maxim; justice delayed is justice denied holds good more in women’s right violation cases. When, justice is delayed, the faith of the people on justice system wanes, and start taking law in to their hands in the form of mob justice, family fine, destroying properties and so on which are not actually helping the cause. Crimes should not be tackled criminally or illegally, they should be tackled always in a lawful manner in a democratic country like ours.
Ignorance and illiteracy has always been the problem for the failure to implement all the said legislations. The judiciary and the legislative initiations have made a tremendous development in the status of women as compared to earlier days. Lack of awareness of women, improper enforcement of the laws, poverty, etc also leads to the deplorable condition of the women. Widows still continue to suffer and are treated worse than any human being. How many women take pride over their marital status whose husbands are still alive and laugh and sneer at the widow? They thank their stars for being lucky. We still hear and see in our locality wives being ill treated both physically and verbally. We should remember that men are not to be blamed solely for the condition of the women. Women are no lesser. My mother told me a line which I remembered as I was concluding this article. It says, “Nupi na nupi da noknabana helli”; Women are the enemy of women! What a paradox! Women cry for equality when they cannot treat each other equally. We see the usual power play between the “mani mamou”. All these contribute to the problem. Let us stop all these and move forward. We have now many women’s civil society groups legal aid units and many other redressal forums. The constitution and parliament has given us enough number of laws, but having the Acts and Laws along is not enough. We have to take a little courage and start sensitizing ourselves. If a crime has been committed and we keep quit, we are also liable in law, we are helping the criminals. The Laws or legislations alone cannot solve the problems unless each of us questions the prejudices that exist in our society and educate every one about their rights and duties to move towards an egalitarian society.
*The article is written by Romilla Akham.
*The writer can be reached at email@example.com. / firstname.lastname@example.org .
*The writer is a BA, LLB.
(Courtesy: The Sangai Express)
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