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1. BROAD SPECTRUM OF THE LEGAL SAFEGUARDS FOR WOMEN IN     INDIA

1)      (a)      The plight of women in India during pre-independence period had necessitated the enactment of Hindu Widows Remarriage Act, 1856,* The Child Marriage Restraint Act, 1929, Hindu Women’s Right to Property Act, 1937, and the Dissolution of Muslim Marriage Act, 1939 but in view of social practices prevalent amongst different communities, women continued to suffer on various fronts leading to insertion of Article 51-A (w.e.f. 03-01-1977) in the Constitution of India which stipulates interalia that it shall be the fundamental duty of every citizen of India to renounce practices derogatory to the dignity of women.

     (b) Keeping in view the need for upliftment and emancipation of women from subjugation and for ensuring their safety, various acts such as Factories Act, 1948; The Immoral Traffic (Prevention) Act, 1956, The Equal Remuneration Act, 1956, Hindu Succession Act 1956, Hindu Marriage Act 1956, followed by The Maternity Benefit Act 1961, The Dowry Prohibition Act 1961, as also Muslim Women (Protection of rights on divorce) Act 1986, The Indecent Representation of Women (Prohibition) Act 1986, and the Commission of Sati (Prevention) Act, 1987 etc. came to be enacted.

     (c) Discrimination still however continued to afflict women as a result where-of the National Commission for Women Act came to be brought on the statute book in the year 1990 to investigate instances of violation of women’s rights and to take remedial steps by making recommendations to the Central and State Governments for amendment of relevant laws which are anti-women or which are not strong enough to save women’s interests.

     (d) The Pre-natal Diagnostic Technique (Regulation and Prevention of Misuse) Act, 1994 is one such legislation whereby discrimination against the female gender is sought to be curbed.

2.       It will thus be seen that during the last seven decades or so, conscious and concerted efforts have been undertaken by the successive Governments not only during pre-independence period but also after independence to improve the lot of women and yet we cannot convincingly claim that the prime object of ensuring equality between males and females has been achieved.

* (this act was subsequently repealed in the year 1983 in view of the provisions of Hindu Succession Act, 1956)

The reason is not far to see¾legal illiteracy and social practices which need to viewed in the light of socio-economic set up.  Both these concepts are interrelated and therefore need to be discussed together, with specific reference to different groups.  For example, women belonging to the economically poor strata of the society may not be as concerned about laws relating to succession to property as they would be by harassment in the family of their birth, or of their in-laws.  In the family of birth, they may be subjected to discriminatory practices in matters of education, upbringing and even food which adversely affects their psyche, forcing them to resign to male domination initially in their family of birth and subsequently in the matrimonial home, which vicious circle continues during successive generations.  Had it not been so, there would probably have been no necessity for enactment of Pre-Natal Diagnostic Technique (Regulation and Prevention of Misuse) Act, 1994 which is primarily meant at prohibiting disclosure of the sex of the foetus in the womb of the mother.  The very fact that such scientific technology for identification of the sex of the foetus cannot be applied by a layman, but requires a doctor or other educated professional to do so indicates that even the so-called educated elite has not been able to shed their mental bias against the female child.  Even if they are considered to be motivated by financial greed only in disclosing the sex of the foetus to the couple before the birth of the child, such activity needs to be deprecated in the strongest terms because it has harmful effects on the social fibre.  Does it all not thus indicate that the birth of a female child is sought to be thwarted out of social constraints, and monetary considerations and if that be so, can we really consider the society to have progressed at all during the last several decades? Like the abhorrent practice of ‘sati’, which was belatedly sought to be abolished by enactment of the Commission of Sati (Prevention) Act, 1987, the pre-independence period had also witnessed the highly objectionable practice of child marriages (which continues to-date in some of the economically backward sections of the society/areas).  During the renaissance period, our religious leaders like Swami Vivekananda, Swami Parmahansa, and Raja Ram Mohan Roy had raised their voice against such evil practices but the social conscience mired in rituals has not been able to shed its pro-male attitude even in the 21st century.  In these days of globalization, it is imperative for this country to shed this attitude if we are to achieve any degree of recognition along-side advanced countries of the world which have progressed mainly due to grant of equal rights to men and women whereas India despite its vast geographical area and natural resources continuous to lag behind.

3.       Coming to the legal literacy aspect in the back-drop of the circumstances enumerated above, I would like to lay my main thrust on some of the important legislations having a direct bearing in the lives of  ordinary Indian women.        

(a)     Section 6 of the Pre-Natal Diagnostic Technology (Regulation and Prevention of Misuse) Act, 1994, prohibits any person in charge of a hospital or laboratory from undertaking any test for the purpose of determining the sex of the foetus of a child in the womb and such violation has been made punishable under Section 22 of the said act with imprisonment which may extends upto three years and fine and any medical practitioner found indulging in such an act can also be debarred by the State Medical Council from carrying out any medical practice.

(b)      Mention may simultaneously be made here of the Medical Termination of Pregnancy Act, 1971 which prohibits the undertaking of termination of pregnancy by a person who is not a registered medical practitioner and even by a medical practitioner without the consent of the pregnant woman or her guardian (if she is under the age of 18 years, or is a mentally challenged person) where the pregnancy exceeds 12 weeks but does not exceeds 20 weeks, and that too for saving the life of the pregnant woman, or grave injury to her physical or mental health, or where there is substantial risk that if such a child is born, he may be seriously handicapped.  It will thus be seen that the law of the land attempts to ensure that no discrimination is carried out or practiced in respect of a female child not only after she is born but even at the stage of pregnancy, or when she is a child.  

(c)      For further ensuring that such girl child is not traumatized, the law further prohibits her marriage before she has competed the age of 18 years and any one marrying such

(d)     Female child below the age of 18 years is also liable to be punished with imprisonment upto three months and fine.

2. PROTECTION AGAINST SEXUAL ASSAULTS

4.                 (A)     It may also be mentioned here that Section 312 of the Indian Penal Code prohibits any person from voluntarily causing a woman to miscarry and such violation is made punishable with imprisonment which may extend to seven years and fine but if such miscarriage is carried out without the consent of the woman, such act is punishable upto ten years imprisonment and fine.

 

                   (B)     Furthermore, if any person attempts to cause miscarriage, without good faith, of a child, without the consent of the pregnant woman and does any act which causes the death of such woman, he can be sentenced to life imprisonment.

 

(C)     Moreover, any person doing any act for preventing a child from being born alive can be punished with imprisonment upto ten years and fine.

 

           Even the father or mother of a child upto 12 years old and having custody of such child are not permitted to leave or expose such child with the intention of abandoning it and if any such act is committed by any person, he/she can be punished with imprisonment upto seven years and fine.

(D)     It would not be out of place to mention here that any person secretly burying or otherwise disposing off the dead body of child (whether such child dies before, or after, or during its birth) for intentionally concealing the birth of such child can be punished with imprisonment upto two years and fine.

(E)      Assault on or use of criminal force against any woman by a man with the intention of outraging her modesty, is made punishable with imprisonment upto two years and/or fine.

                        (F)      It may also be mentioned here that if any person induces a minor girl under the age of 18 years to go from any place with an intention to illicit intercourse, such person is liable to be punished with imprisonment upto 10 years, besides fine.

(G)     Even importation of a minor girl from a foreign country for being forced or seduced to illicit intercourse is punishable with imprisonment upto ten years besides fine.

(H)     Buying or selling of a girl who is a minor i.e., under the age of 18 years for the purpose of prostitution is punishable with imprisonment for ten years and fine.

(I)      Sexual inter-course by a man with a woman against her will, or without her consent (when she is above 16 years of age) or when her consent is obtained by putting her in fear of death or hurt, or by causing her to believe that she is legally married to him or when she at the time of giving consent is by reason of unsoundness of mind or a administration by him personally or through another person of any drug/alcohol etc. is termed as rape within the meaning of Section 375 IPC which act is punishable with which shall not be less than seven years but may extend to life imprisonment. 

(i)         It may be added here that consent of a girl under 16 years of age under such like circumstances is no consent.

 

(ii)         It may also specifically be noticed here that printing or publishing the identity of a victim of rape without the permission of the court is punishable with imprisonment of upto 2 years or fine. 

       

(J)      (i)       Sexual intercourse by a man with his wife
                             who is living separately under a decree of separation
                             from court can also invite punishment for the
                              husband upto 2 years and fine.

                   (ii)      It also deserves to be highlighted here that attempt at inter-course by a public servant with a woman in his custody, or by a jail Superintendent with a female in-mate under his charge or of the jail, by a person on the management of a hospital with any woman in that hospital can invite punishment upto 5 years, besides fine.

(K)     Carnal intercourse against the order of nature by a man with a woman is made punishable with imprisonment upto ten years or even upto life and fine.

(L)      Even co-habitation by a man with a woman who is made by him to believe that she is lawfully married to him can extend upto 10 years and fine.

(M)              If a husband having a wife living contracts a second marriage he can be punished with imprisonment upto 7 years and fine but if such subsequent marriage is contracted while concealing his first marriage, the husband can be imprisoned upto 10 years, besides fine.

(N)     Even the dishonest act of a male going through the ceremony of being married but knowing that he is not there lawfully married can invite punishment upto seven years.

(O)     Sexual intercourse by a person with the wife of another man, without the consent and connivance of the husband of such wife is termed as adultery, which is punishable with imprisonment upto 5 years and fine.

(P)      It may simultaneously be noticed here that a man enticing a married woman from the custody of her husband or guardian with the intention that she may have illicit intercourse with some other person or conceals or details such female can be punished with imprisonment upto 3 years.

(Q)     Any person engaging a female for prostitution or renting a house for the said purpose can be punished with imprisonment which may extend upto three years and any person above the age of 18 years who lives on the income of a prostitute can be sentenced with imprisonment upto two years as so provided in Section 4 of the Immoral Traffic (Prevention) Act, 1956.

 

3. MARRIED WOMEN

5.       (a)      The rights of adult/married women under general laws relating to employment and their physical well-being are being specially mentioned here.  In this context it may be noticed that Articles 15 and 16 of the Constitution of India prohibit discrimination of ‘any citizen’ on the grounds inter-alia of sex, or in matters relating to employment or appointment to any elected office under the State.  

          (b)      Coming to the question of physical well-being of married women, it may be pointed out here that in the event of the husband or his relatives subjecting such a woman to cruelty, they can be punished with imprisonment upto three years and fine under Section 498-A of the Indian Penal Code but death of a married woman otherwise than under normal circumstances within 7 years of her marriage can be considered to be a ‘dowry death’ if it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any of his relatives, or in connection with any demand for dowry.  

          (c)      In the event of abetment to commission of suicide by a woman, the abettor can be punished with imprisonment for a term, which may extend upto ten years besides fine.

 

4. PERSONAL SAFEGUARDS

6.       (a)      Section 47(2) of the Code of Criminal Procedure requires that no place or apartment which is in the occupation of a female and who is not the person to be arrested shall be searched by any police officer etc before giving of a notice to the female occupier thereof that she is at liberty to withdraw therefrom.

            (b)      As per section 100(3) of the Code of Criminal Procedure, if a female is reasonably suspected of concealing about her person any article for which search can be made, such shall only be conducted by another woman with strict regard to decency.

            (c)      No made person below the age of fifteen years or woman can be called by any police officer to the police station in connection with investigation of any case.

(d)      (i)       It is laid down in para 26.18-A, Volume 3 of Punjab Police Rules 1934 (framed under the Police Act, 1861) that all arrests of women whether with or without warrant, and whether in bailable or non-baliable offences, shall only be carried out by a police officer not below the rank of Assistant Sub-Inspector of the Police, or when no such officer is available, then by a head constable in the presence of responsible male relatives of such woman and responsible officials of the village/town.

            (ii)      Arrest of a woman has also to be intimated by the arresting officer to the Superintendent of police, and reasons have to be specified if the arrest was made by an officer lower in rank than Assistant Sub-Inspector.

(iii)     The said rule further requires that no woman in police custody shall be lodged even for a night in a Police Station except in unavoidable circumstances and the gazetted police officer supporting an application for remand to police custody of any woman shall be responsible for taking necessary measures for decent custody of such prisoner.

(iv)     The above quoted rule further requires that women attending police investigations and enquiries  (as distinct from those under arrest) shall not be detained for any period than absolutely necessary and further more they shall not to be required to visit the police station between sun-set and sun-rise.

(e)      If a woman is arrested, it is imperative on the part of the arresting officer to prepare a memo indicating the reasons for arrest, the place where the arrested person will be detained after arrest and when she/he will be produced before the Court.  Copy of such memo of arrest is also required to be given to the family members or relatives or neighbourer of the arrested person as so directed by the Hon’ble Supreme Court in the case titled D. K. Basu vs. State of West Bengal reported in 1997(1) SCC 416.

(f)      Every woman under arrest is entitled to get free legal services as so provided in Section 12 of Legal Services Authorities Act, 1987 and it is the duty of the court before whom such arrested person is produced that he/she is entitled to get free legal services as so laid down in the case titled Khatri and others vs. State of Bihar reported in AIR 1981 SC 928 and followed in the subsequent case titled Sukh Dass vs. Union Territory of Arunachal Pradesh reported in AIR 1986 SC 991.

(g)      In the event of a female upon trial being sentenced to death for commission of heinous offences such as murder etc., her sentence of execution is required to be postponed and can even be commuted to imprisonment for life as so provided under Section 416 of the Code of Criminal Procedure.

 

5. FINANCIAL SECURITY OF WOMEN

7.       (a)      Coming to the question of their financial security, it may be mentioned here that if any non-muslim person having sufficient means refuses or neglects to maintain his wife (including a divorced wife who has not remarried) can be ordered by the Court to make a monthly allowance for the maintenance of his wife at such rate as the Magistrate thinks fit depending upon the financial status of the parties.

            (b)      In the event of pendency of a divorce petition between a husband and wife, where either of them has no independent income sufficient for his or her support, the court may, on the application of wife or husband, order the respondent to the petition to pay the expenses of the petition besides such other sum which having regard to the petitioner’s own income and the income of the respondent, the court may deem reasonable as monthly maintenance amount.

            (c)      Section 25 of the Hindu Marriage Act, 1956 makes a provision for grant of permanent alimony by the Court at the time of passing a decree for the dissolution of marriage, or subsequent thereto on an application being made for the purpose by either the wife or husband.

            (d)      The law regarding maintenance of a Muslim wife has been distinguished in the Muslim Women (Protection of Rights on Divorce) Act, 1986 which stipulates 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 i.e., within the period of three menstrual courses (if she is subject to menstruation) or three lunar months (if she is not subject to menstruation) after the date of divorce; or the period between the divorce and delivery of the child or termination of the pregnancy (if she was in a family way on the date of divorce).

                             If no such maintenance is paid by her former husband during the said period, she can apply to the magistrate who if satisfied that such husband despite having the means has failed or neglected to make such provision for her maintenance can direct such husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during marriage and the means of her former husband.

                        NOTE: -         Under Section 3 of this Act, the right of a child to claim maintenance upto the age of two years is a part of the right of the divorced woman where she herself maintains the child and thus the right of a child of a muslim couple to claim maintenance up 125 Cr. PC is not curtailed at all by this Act-as so held in the case titled Mst. Nursuba vs. Md. Kasim reported in AIR 1997 SC 3280.

            (e)      Where a divorced Muslim Woman (who has not remarried) is unable to maintain herself after the period ‘Iddat’, and has grown up children, the Magistrate is required to order such children to pay maintenance to her, but in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced women to pay maintenance to her.  If however either of her parents are unable to pay maintenance to such divorced woman, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who may be entitled to inherit her property on her death according to muslim law in the proportions in which they would inherit her property.

                   (ii)      If any one of her such relatives is unable to pay his or her share on the ground of his or her not having the means to pay, the Magistrate will ask other relatives who have sufficient means, to pay the share of these relatives also, but where a divorced woman has no relative or such relative has not enough means to pay maintenance, the magistrate would order the State Wakf Board to pay the of the shares of the relatives who are unable to pay maintenance to such divorced Muslim woman.

                        NOTE:           By virtue of Section 5 thereof it is however open to a Muslim couple to opt to be governed by the provisions of Sections 125-128 Cr. P.C. if they submit an affidavit or any other declaration in writing to this effect, either jointly or separately before the Court hearing the application.

1.      (f)      The Hindu Succession Act, 1956 which is applicable to all persons who are Hindus, Buddhists, Jainas or Sikhs by caste provides that the self acquired  property of a male Hindu dying intestate (i.e. without executing a will) shall devolve upon his widow, surviving sons, daughters and the mother of the deceased, in equal shares.  Furthermore the property once falling to the share of a female becomes her absolute  property and she cannot be deprived of the same even if a widow acquiring such property remarries.  However any heir who is related to an intestate as the widow of a predeceased son, the widow of a predeceased son of a predeceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has remarried.  It will thus be seen that the Hindu Succession Act, 1956 has vastly enhanced the status of women to hold, acquire and dispose off property.

 

6. PROTECTION OF WOMEN IN WORK PLACES

8.       (a)      Section 19 of the Factories Act, 1948 requires construction of separate latrines and urinals for women.

                   Section 22 of the said Act provides that no woman shall be required to clean, lubricate or adjust any part of a prime mover, or any transmission machinery while in motion.

                   Section 27 of the said Act provides that no woman shall be employed in any part of a factory for pressing cotton in which a cotton opener is at work. Section 48 thereof lays down that in every factory wherein more than 30 women workers are employed, there shall be provided and maintained a suitable room for the use of the children (under the age of 6 years) of such women.

(b)      Sections 4 and 5 of the Equal Remuneration Act, 1976 provide for equal remuneration for equal work to male and female workers for performing works of similar nature and prohibits discrimination in matters of recruitment of men and women which discrimination if carried out is punishable with imprisonment which shall not be less than three months but which can extend upto one year and fine.

(c)      It may next be noted that as per Section 4 of the Maternity Benefit Act, 1961 no woman shall work in any establishment during six weeks immediately following the day of her delivery or mis-carriage.  Furthermore, during the period of her pregnancy, a woman shall not be required to do any job of arduous nature or which involves long hours of standing, or any task, which is likely to interfere with her pregnancy.

 Section 5 of the said Act further lays down that a pregnant mother is entitled to 12 weeks leave with full pay i.e. six weeks before and six weeks after the date of birth of child.  Furthermore, if she works at least 80 days during the period of one year, she is entitled to full pay leave even in the event of miscarriage.

(d)      In view of the judgment of the Hon’ble Supreme Court arising out of Writ Petition (Criminal) Nos. 666-70 of 1992 and Criminal Misc. Petition Nos. 7021-31 of 1992 titled Vishaka and Others versus State of Rajasthan and others, the Haryana Government has provided for establishment of a “Complaints Committee” which is to be headed by a woman and not less than half of its members are to be females.  Such complaints committee will adopt its own methodology for conducting an enquiry into complaints of sexual harassment as speedily and discreetly as possible and furthermore no preliminary enquiry is required to be conducted by the competent authority against a delinquent official when the Complaints Committee records its satisfaction of sexual harassment having been committed by him. In the said instructions “sexual harassment” has been defined as under: -

(a)

Physical contact and advances;

(b)

A demand or request for sexual favours;

(c)

Sexually coloured remarks;

(d)

Showing pomography;

(e)

Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

9.       The foregoing discussion would reveal that the Governments have from time to time done their bit for ameliorating the lot of women but laws alone in themselves will not be of much consequence unless women for whose benefit these have been enacted also rise to the occasion and assert their rights firmly, whenever and wherever their rights are either ignored or suppressed or trampled upon. 

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