In India, the history of suppression of women is very old and long which is responsible for including general and special provisions for the upliftment and development of the status of women. Thus under several laws, legislations and codes there have been made provisions specifically designed for the upliftment of women.
As historian ROMILLA THAPHER had quoted “ Within the Indian subcontinent there have been infinite variations of the status of women diverging according to cultural malice, family structures, class, caste, property, rights and morals”.
1.Women under Constitution of India
The Preamble is the key to the Constitution as it does not discriminate men and women but it treats them alike. The framers were aware of the unequal treatment meted out to women from time immemorial.
- Fundamental Rights
Part III of the Constitution of India deals with Fundamental Rights. The provisions regarding the fundamental rights have been enshrined in Articles 12 to 35 and are applicable to all the citizens of India irrespective of sex.
However there are certain provisions exclusively for protecting rights of women which are as under :
1. Article 15 (1) : Prohibits Gender Discrimination
Case Law : Miss C.B Muthamma v. U.O.I AIR 1979 SC 1868
In this instant case, the Petitioner was denied promotion on the ground of sex which violated article 15. It was held that the rules relating to seniority and promotion in Indian Foreign Services which makes Discrimination only on the ground of sex is unconstitutional.
2. Article 15 (3) : Discrimination on the grounds of religion, race, caste, sex or place of birth shall not prevent the State from making special provisions for women and children.
This Article makes special provisions for women and children. It empowers the State to make special legislation in this regard.
3. Article 14 : This article ensures Equality before law and equal protection of laws to every citizen regardless of sex.
Case Law : Air India v. Nargesh Mirza AIR 1981 SC 1829
It was a Landmark Judgement by the apex court wherein it was held that, a woman shall not be denied employment merely on the ground that she is a woman as it amounts to violation of Article 14 of the Constitution.
4. Article 16 : Ensures No Discrimination in the matters of public employment on the grounds of sex only as provided under Article 16
5. Article 19 : It includes the right to freedom of speech and expression.
6. Article 21 : Protection of life and personal liberty.
7. Article 22 : Protection against arrest and detention.
8. Article 23 : According to this article traffic in human beings and forced labour is prohibited. In this context traffic in human beings includes “Devdasi System.”
9. Article 32 & 35 : This article provides right to constitutional remedies to every citizen of India by approaching the High court and Supreme Court for enforcement of fundamental rights.
- Directive Principles Of State Policy & Women
The Directive Principles Of State Policy is the reflection of governance that India is a welfare democratic state. This policy envisages equal rights to work, equal pay for equal work, etc. Articles 38, 39(a), (d),(e), 42, 44, 45 deal with the welfare and development of women.
- Article 39 (a) : According to this article, the state should direct to its citizens, men and women equally the right to an adequate means of livelihood. This Article provides equal right for all citizens, irrespective of sex, to adequate means of livelihood.
- Article 39 (d) : This Article states that there should be equal pay for equal work for both men and women.
Thus the State has a constitutional obligation to direct its policy towards securing that there is equal pay for equal work for both men and women.
- Article 39 (e) : According to this article the health and strength of workers i.e., men and women to be protected equally.
- Article 42 : The State shall make provisions for securing just and humane conditions of work and for maternity relief. The state has enacted many enactments respecting welfare of workers.
They should not be forced to work in inhumane and hazardous conditions.
- Article 44 : It requires the state to secure for all its citizens a uniform civil code.
The Apex Court in this Landmark Judgement had passed directions to the central government to take a fresh look at Article 44 of the constitution which enjoins the state to secure a UCC.
2. Women under Indian Penal Code, 1860
- Section 304-B IPC : This section was inserted by the Dowry Prohibition (Amendment) Act, 1986 with a view to combat the increasing menace of dowry death.
- Section 306 IPC : Bail under this section normally can be refused as this section is considered as grave as section 302 i.e. murder. As this section relates to the offence of Abetment of Suicide.
- Sections 312 to 316 IPC : These 5 sections of IPC deals with the commission of causing of miscarriage, of injuries to unborn child, of the exposes to infants and for concealment of births.
- Section 312 – This section attracts punishment with imprisonment for a term which may extend to 7 years + fine for causing voluntary miscarriage of women unless caused in good faith.
- Section 313 – This section attracts punishment with imprisonment either for a term which may extend to 10 years / for life + fine for causing miscarriage without women’s consent.
- Section 314 – This section prescribes punishment for a term which extends to 10 years + fine for causing death with an intent to cause miscarriage.
- Section 315 – This section prescribes punishment for acts which are done with the intent to prevent child from being born alive or causing it to die after birth with imprisonment for a term extending up to 10 years / fine/ both.
- Section 316 – Any such acts which amounts to culpable homicide for causing death of quick unborn child shall be punished with imprisonment extending to 10 years + fine.
- Section 339 & 340 – These 2 sections covers the concept of wrongful restraint and wrongful confinement respectively.
A person becomes liable to be punished under these sections if a woman is stopped from going out of the house and locked up.
- Section 354 – An assault short of rape is punished under Section 354 of IPC. This section speaks regarding the intention of outraging a women’s modesty and punishes a person for a term extending to 2 years/ fine/both.
- Section 366 - This section covers the offence caused against a women for compelling her into marriage by either kidnapping, abducting or inducing the woman shall be punished with imprisonment for a term up to 10 years + fine.
- Section 368-A : For the purpose of prostitution of minor girls from one part of India to another part is an offence under Section 366-A of the IPC.
- Section 366-B : This section punishes a person for importing a girl below 21 years of age from outside India or from the State of Jammu and Kashmir for the purpose of prostitution.
- Section 375 & 376 – This is a section which talks about sexual offence. Section 375 defines the offence of rape whereas section 376 describes the punishment for the offence of rape. These sections cover gang rape also rape of a minor child.
- Section 376-A – Though the Indian law does not recognizes the concept of ‘marital rape’ but this section punishes a husband for having compulsive sexual intercourse with a wife who is living separately under an order of judicial separation.
Such sexual intercourse can be treated as Domestic Violence against Women.
- Section 376-D – This section also covers the offence of rape but specifically speaks about Intercourse by any member of the management or the staff of a hospital.
- Section 377 – This section covers the offence of unnatural sex. An offence of carnal intercourse shall said to be sufficient by an act of penetration.
Section 493 to 498 – These 6 sections of the IPC deals with offences relating to Marriage.
- Cohabitation by a man by deceitful inducing a woman to believe she is in a lawful marriage covered by section 493.
- It covers a range of offences relating to marriages such as marrying again during the lifetime of the spouse which attracts the offence of bigamy covered by section 494. ▪︎ Concealment of former marriage from person with whom subsequent marriage is concealed covered by section 495.
- Going through the ceremony of marriage with the knowledge or intention of knowing that the marriage is thereby knowing he is not lawfully married covered under section 496.
- It also covers adultery under section 497 and offence of cruelty under section 498.
- Demanding dowry is also punishable and made a criminal offence under section 498-A.
- To insult the modesty of women by gestures, words or any act is dealt under section 509.
3. Women under the Criminal Procedure Code, 1973
- Section 125 CR.PC – Provides for the order of maintenance to wife, children and parents. It provides for maintenance to such wife who is unable to maintain herself. It includes a wife who has been divorced or who has obtained a divorce from her husband but has not remarried.
- Section 128 CR.PC- This section provides for secure recovery of maintenance and interim maintenance allowance and expenses.
4. Women under Personal Laws
- The Hindu Marriage Act, 1955
- Section 5 – This section specifically speaks about monogamy and restricts bigamy. There have been many such instances where a man commits bigamy by taking another wife and leaving his first wife in destitute. This section under the Hindu Marriage Act does not recognizes 2nd marriage unlike Muslim Marriage Act.
Case Law : Sarla Mudgal v. U.O.I
When this case came up before the Supreme Court the parties had committed the offence of bigamy by taking another wife through conversion to Islam. The court did not recognize the 2nd marriages of the parties as the 1st marriage wasn’t dissolved. The court in this case also emphasize on having a UCC.
- Section 9 – This section provides for restitution of conjugal rights when either of the spouse withdraws themselves from society without any reasonable excuse then this section can provide remedy to the aggrieved spouse by initiating a legal proceedings for restitution of conjugal rights.
- Section 10 & 13 – This section allows a Hindu wife to invoke judicial separation on special grounds like remarriage of husband, husband found guilty of rape, Sodom, bestiality etc. Whereas section 13 provides various grounds of divorce to a Hindu wife.
- Section 13 (2) – This section provides special grounds for divorce other than the usual grounds.
- Section 26 – This section equally entitles a woman to have custody of her minor children.
- The Hindu Adoption and Maintenance Act, 1956
- Section 18 – This section confers 2 separate rights on a Hindu wife i.e.
1. Right to Maintenance – Section 18 (1)
2. Right to Separate Residence – Section 18 (2) (g)
- Section 19 – This section provides a widowed daughter-in-law’s right to claim maintenance on the death of her husband.
- Section 20 (2) & 20 (3) – These sections allows daughters to claim maintenance whether legitimate or illegitimate but the section specifies that the obligation to maintain the daughter is only when she is unable to maintain herself and is unmarried or if she becomes a widow.
Also in case of illegitimate daughter the parents should maintain till the age of 18 years whereas in the case of legitimate daughter up to the period of her marriage.
- Section 9 – This section allows a mother to give her child in adoption without the consent of the father in case if the father of the child is dead or renounced the world or ceased to be a Hindu or declared by a competent court to be of unsound mind.
- The Hindu Succession (Amendment) Act, 2005
- Section 6 – This section provides for the devolution of interest in coparcenary property. A bare reading of the provisions mentioned in this section reveals that a woman of a joint Hindu family has been placed in equal status with male.
- Now, a daughter of a joint Hindu family is also regarded as a coparcener. Thus she has a right to partition in the joint Hindu family property.
- Section 14 – This section recognizes that a female Hindu shall be an absolute owner of her own property whether it was acquired before or after the commencement of this act.
- Section 15 – It deals with the rules governing the general rules of Succession in case of female Hindus.
- The Dissolution of Muslim Marriage Act, 1939
- Dower (Mehr) - A Muslim wife has the right to dower.
If a widow did not receive the amount of dower by her deceased husband when she was divorced by her deceased husband then in such cases she may approach to the court for payment of dower money through court.
Also the wife can refuse the restitution if conjugal rights on husband’s failure to pay dower money.
- Divorce- (Khula) – In case if the marriage is dissolved at the request of the wife it called khula. This is one of the forms of divorce wherein the wife gives or agrees to give a consideration to the husband for her release.
- Section 2 – It lays down various grounds for Dissolution of marriage where a woman married under Muslim law shall be entitled to obtain a decree for divorce on one or more than one grounds mentioned in this section.
- Section 4 – A : Woman under Muslim law is entitled to Maintenance only during iddat but under this section a woman including a Muslim Women can claim Maintenance even after the expiry of iddat period.
- The Muslim Women (Protection of Rights on Divorce) Act, 1986
- Section 3 - Under this section it is compulsory at the time of divorce a Muslim women is entitled to get the mahr.
- Section 3 (1)(A) – This section entitles Maintenance to a Muslim divorced women until she remarried and also during and after her iddat period.
- Law of Succession- Under Islamic law a child in the mother’s womb is entitled to share in property if he or she is born alive.
Also the property inherited by a Muslim lady is her absolute property and she has full ownership rights over it.
5. Women under Industrial Laws
- The Equal Remuneration Act
- Article 39 of the Directive Principles of state policy directs the state to secure equal pay for equal work for both men and women. To realize this the Parliament legislated the Equal Remuneration Act, 1976.
- Section 4 – This section provides that every employer is under an obligation to pay Remuneration at equal rates to men and women employees if they perform the same work or of similar nature.
- Section 5- This section prohibits any Discrimination on the grounds of sex while making any recruitment unless that particular employment is restricted by any specific statute.
- The Maternity Benefit Act, 1961
The Maternity Benefit Act, 1961 protects the employment of a women during the time of pregnancy and entitles them to full paid absence from work to take care of the child. Also the Maternity Benefit (Amendment) Act 2017 was introduced with specific changes in certain sections.
- Section 5-A & 5-B : If a women employee working in a factory which is governed by the Employees State Insurance Act and is not qualified under the said act she can claim maternity benefit under this act under section 5-A & 5-B.
- Section 8 : This section entitles a woman to medical bonus of ₹3,500 if no pre-natal or post-natal care is provided by the employer free of charge.
- Section 9 : In case of miscarriage or medical termination of pregnancy, the woman is entitled to leave with wages for a period of 6 weeks on production of prescribed proof.
- Section 9-A: This section entitles a woman to leave with wages for a period of 2 weeks for tubectomy operation.
- Section 10 : In case of any illness arising out of pregnancy leave for a maximum of 1 month with wages a re allowed.
- Section 11 : This section allows a woman 2 nursing breaks in the course of her daily work until the child is 15 months old.
Before the Sexual Harassment at Workplace Act, 2013 came into picture, there was a PIL filled before the Supreme Court where the need for an effective legislation to curb sexual harassment of working women was emphasized.
Case Law: Vishakha v. State of Rajasthan (1997) 6 SCC 24
The Supreme Court observed that in the absence of an enacted law to provide for an effective enforcement of the basic human right of gender Equality and guarantee against sexual harassment at workplace.
The court had laid down guidelines and norms to prevent such sexual harassment for the time being until any new legislation was formulated.
- The Factories Act, 1948
The Factories Act being a welfare legislation was enacted with an intent to regulate the working conditions in factories and to provide health safety and welfare measures. There are special provisions enacted relating to women which are covered as under:
- Section 19(2) – It makes it obligatory for factories to maintain adequate no. of latrines and urinals for men and women where the employees are more than 250.
- Section 19 (f)(b)- It provides for separate enclosed accommodation for male and female workers in every factory.
- Section 22(2) – It prohibits the employment of women in hazardous occupation like cleaning, lubrication or adjusting any part of prime mover or machinery.
- Section 27 – No factory allowed to employ women women for pressing cotton in which a cotton opener is at work.
- Section 87- This section prohibits employment of women in dangerous operations.
- Section 42(1)(b) – This section prescribes separate and adequate washing facilities to be provided for both men and women workers.
- Section 48 – This act also makes a provision under this section to provide crèche i.e. a nursery for children of female workers who are under 6 years of age. Such facilities are provided where there are more than 30 female workers.
- Employees Provident Fund Family Pension Linked and Deposit Insurance Fund Act, 1952.
- Section 6 of this act deals with the employees family pension scheme.
Case Law : Smt. Kamla Bai v. Secretary M.P Electricity Board and others (1992) 1 Lab. L.J 362 (M.P)
It was held by the Madhya Pradesh HC in the above case that a widow is entitled for Family pension.
- The Beedi and Cigar Workers (Conditions of Employment) Act, 1966
- Section 14 - This section imposes statutory obligation on the employer to provide for washing facilities for children and crèches for the welfare of children of female employees.
- Section 25 - No woman or young person shall be required to work in any industrial premises except between 6 a.m. to 7 p.m.
6. Other Laws Relating to Women
- Dowry Prohibition Act, 1961
- Section 3 – It prescribes penalty for giving and taking of dowry which is punishable with not less than 10 years of imprisonment + fine not less than ₹15,000 / amt. Of the value of dowry whichever is more.
- Section 4 – This section punishes a person for mere demand of dowry as an offence whether it is before or after the marriage. Even indirect demand would amount to offence of dowry.
- Immoral Traffic (Prevention) Act, 1956
- Section 16 – A person can be immediately rescued on receiving a reliable information by police or any authorized person of state government.
Another section in this act provides the victim to seek protection and can be kept in a protective home or provided care and protection.
- The Indecent Representation of Women (Prohibition) Act, 1986
- Section 3 – It prohibits such advertisements containing Indecent Representation of woman and punishes such person who participate in publication and exhibition of any such advertisements.
- Section 4 – This section prohibits any kind of publication through any medium or form such as writings, films, paintings, or photography, figures or representations which contains indecent Representation of Women.
- The Medical Termination of Pregnancy Act, 1971
Abortion was a crime, for which the mother as well as the abortionist could be punished except where it has to be induced in order to save the life of the mother.
In order to save the pregnant women’s health , strength and sometimes life the Medical Termination of Pregnancy act was passed which provides for the termination of certain pregnancies and for matters connected therewith.
- The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of sex selection) Act, 1994
- Section 3-A : It prohibits sex selection on a woman or a man/both/ on any issue, embryo, fluids, conceptus or gametes.
- Section 5 – This section makes it compulsory for the consent and communication to a pregnant woman before the use of any pre-natal diagnostic techniques by prescribing certain conditions before the use of such techniques.
- The Commission of Sati Prevention Act, 1987
- Sati is one of the oldest forms of evil and a form of domestic violence which prevailed in the society but curbed in the last century. The expression ‘sati’ means the burning or burying alive of the widow along with the body of her deceased husband.
- Section 4 - Prescribes punishment for the offence of abetment of sati where a person instigated whether directly or indirectly to commit sati.
- Section 5 – It punishes a person for glorification of sati.
7. Women Under International Laws
- Universal Declaration of Human Rights (UDHR)
The preamble of this declaration shows the importance and necessity of having faith in the human rights and dignity of individual including men and women.
This declaration deals with civil and political rights of both men and women in terms of equality. It also deals with social and economic rights.
Articles 1 & 3 of UDHR are very significant. India became a signatory to UDHR.
- Convention on Political Rights of Women, 1953
The general assembly of the UN had adopted this Convention which intends to implement the principle of Equality of rights for men and women on equal terms.
This Convention further emphasizes regarding recognition of principles of equality in the public employment and also representing of men and women equally in government of his or her nation directly or indirectly by means of free chosen voting right.
- Convention On The Nationality of Married Women, 1957
This convention was later called as the Convention of the Nationality of Women, 1957 .This Convention is regarding the determination of nationality of a married woman in the context of marriage and its dissolution.
- Declaration on Elimination Of Discrimination Against Women, 1967
Despite several conventions protecting the rights of the women, the discrimination against woman still continues.
This declaration pledges to eradicate discrimination against women in any form. It reaffirms the principle of equality of right of women worldwide.
- Convention on the Elimination of All Forms of Discrimination Against Women, 1979
By this Convention the State Parties to the international covenants on HR are under obligation to provide equal rights to men and women in civil, political, social, economic, cultural field.
This Declaration was adopted to achieve the provisions incorporated under articles 1,2 and 55 of the charter of the UN.
- Declaration on the Elimination Of Violence Against Women, 1993
This Declaration is first of its kind which exclusively dealt with the elimination of violence against women and intended to protect the fundamental right of freedom of women.
As Supreme Court had once observed in a case that women form half of the Indian population. Women have always been discriminated against men and have suffered denial and are suffering discrimination in silence.
Consequently a number of legislations were enacted like Widow’s Remarriage Act, Child Marriage Act and Women’s Right to Property Act, which intended to eradicate certain social evils. Even provisions of industrial laws were appropriately amended to restore the status of women which prevailed during the Vedic period. The establishment of crèches, reduction of working hours, Prohibition on night working hours and restriction to work in mines were also introduced.
The Indian Philosophy poses the women with dual character. On one hand, she is considered fertile, patient and benevolent but on the other hand she is considered aggressor and represents ‘Shakti.’