EMPOWERMENT OF WOMEN AND LAW

Social change 'is an inevitable phenomenon of every society because social conditions never remain static. Social change whether it comes through legislation or through judicial interpretation indicates the change in accepted modes of liie, or perhaps a better liie. The changing pattern does have an impact on the laws and the life of a given society and law must keep pace with the changing socio-economic trends and political movements of the society, while at the same time preserving necessary balance between individual rights and duties. Thus law and justice provide a potential force for the attainment of a progressive social change.

The exalted status of Indian women in ancient days suffered a setback in the mdieval period. Social economic and political factors played a mojor role in their suppression. Social inhibitions and discriminatory practices against them continued to exist during the 'enlightened' and 'civilised' imperial rule. The leadership of independent movement was, however, committed to accord an equal status to women and give them a place of honour, and digninty in the society. Accordingly the constitution - the fundamental law- as emerged out of the constituent assembly, treated both men and women equally and also provided for protective discrimination for women in view of their peculiar position in the human society.

Though the constitution has provided equality of both the sexes man and women but biological condition of the female and developed sense of subordination demand extra protection for them. The reason is that "women's physical structure and the performance of certain functions place her at a disadvantage in the struggle for subsistence and her physical well-being becomes an object of public interest and care in order to preserve the strength and vigour of the race. Thus the law and justice demands additional previleges and safeguards for maintaining proper socio-legal status of women in the society.

Thus it seems very clear from an American case1that the women's Assistant Professor of taw 81 Head, Deptt of Law, Govt. Chhattisgarh College, Raipur (M.P.). 1. v. kh~llar Organ, 52 LEd. 551.

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physical structure is different than men. Due to this reason they cannot fight for their rights directly against the man and society. Owing to this reason they are exploited and harrassed by the family members and indoor and outdoor society. Every day we hear in radio and T.V. where the property rights of women are encroached upon and several crimes are being committed against them.

Crimes against women can be described as under:-

(i)

crimes in relation to women's property which includes criminal breach of trust, misappropriation, robbery and murder etc.

(ii)

crimes involving sex for economic gain such as wrongful confinement, dowry death, prostitution, outraging the modesty of women, use of criminal force, adbuction, rape and adultery etc.

We also read about the crimes committed against women in news papers of all types everyday.

The following statistics reveal that the crimes against women have gone up by 25 per cent since 198g2:-

Revered by traditions, women in India are now facing more atrocities with the number of crime committed against them going up by 25.2 per cent since 1989. The reported crime against the weaker sex, including rape, dowry death, torture and eve-teasing, shot up from 67.072 in 1989to nearly 84,000 in 1993, according to the National Crime Record Bureau.

While cases related to only tortureon women registered an increase of 90 per cent over 1989, those related to dowry deaths say a growth of 38 per cent and rape 22.9 per cent. There was only a marginal increase of 1.4 percent in cases regarding kidnapping and abduction.

Out of the total crime reported against women in 1993, 26.3 per

2. Madhya Praesh 'Chronicle' Ratpur, 29th August 1996.

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cent were about torture, 25 per cent about molestation, 14.3 per cent about eve-teasing, closely followed by rape with 13.4 per cent, the b&eau said in its latest 'Crirne in India', an annual publiition.

The bureau said the severe form of atrocity against women, who were guaranteed equaliiy, freedom an3 .~pportuniies the constitution, by called for immediate attention and concern cf t9e various sections of the society, including the law-enforcement agencies. It also expressed concern over the fall of the femde- male sex ratio which came down from 946 (against 1000 males) in 1951 to 927 in 1991.

According to an annual publication 'Crirne in India' among the States, Uttar Pradesh recorded the maximum number of cases of atrdiies against women during 1993 with a share of 16.7 per cent of the tdal, closely followed by Maharastra with 16.6 percent and M.P. with 13.6 per cent. Surprisingly, Bihar, notorious as a crime prone area has a share of l s than four per cent of the tdal crimes commited against women, as es compared to 9.9 per cent of Andhra Pradesh and 8.5 per cent for Rajjsthan.

But the publication said, the incidence of crime alone would not be the correct indicator of the level of the crime as the States have varying

density of population. It also said that the rate of crime, that incidence per lakh of population is consideredas a balanced indicator to asses the level of severity of crime universally.

The publication put Pondicherry at the top of the list of the 'high risK area for women with the rate of almost 35. The Andman and Nicobar Island was the third high risk area with a cirme rate of just below 26, while Maharashtra and Madhya Pradesh had 18 Rajasthan 15 and Himachal Ptadesh 12. EMPOWERMENT OF WOMEN :ITS NECESSITY AND MEANING : The Preamble of the Constitution of India says that justice ... social, economic and p o l l i c a b shall be aim of Indian republic. The Constitution uses the word sex in Art. 15(1), 16(2) or 325 which prohibits discrimination on aScriptive grounds. The empowerment of women is an input which is intended to eliminate their subordination and establish equality. Empowerment is a positive concept. It requires affirmative state action in support of those who are to be empowered. The constitution

doubtless envisages state intervention on behalf of the disadvantaged section of society. The law can create such empowerment by way of \

conferring rights directly on the person whom it intends to empower o by r imposing liability on other persons towards the persons to be empowered.

For empowerment of women in India, certain existing laws have been amended and modified according to need of time. After independence in India several new laws have been enacted by creating penal sanction against certain types of behaviour that infringes, deprives or derogates the dignity of m n .

Apart from the legislations enacted by the Central and State Governments, the apex court of the country and several High Cowt of the States have protected women by their judicial decisions glving special preference from men. CONSTITUTIONOF INDIA AND WOMEN Wih the birth of republic came a grand document vibrant with new ideas, new philosophiesand new rights nemely the Constitution. I brought ! about a sweep change and a social revolution beyond imagination. Justice Krishna lyer in his book "Social Justice - sunset or Dawnv expressed following words:-

"The Constitution was to foster the achievement of many

goals, transcedent among them was that of social revolution. Through this revolution would be fulfiled the basic need of the common man, and it was hoped, this revolution would bring about fundamental changes in the structure of Indian societya society with bng and

glorious cultural traditions, but greatly in need, Assembly members believed, of a powerful infusion of energy and nationalism. The scheme of social revolution runs throughout the proceedings and. documents of the Assembly."

Indian Constitution is prominently a social document. It is goal oriented. This document puts women completely at par with &n and fulfils the cherished goal of equality in matters of civil, pdiical and economic rights. The political rights of franchise has also been given to Indian women under the provisions of the constitution. Besides, they have been given right to vote and stand in election for any post. Article 14 guarantees to all persons the equal protection of the laws. Article 15

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prohibits sex based discrimination and Article 16 confers economic equality by ensuring equal opportunity in matters of public empl~yrnent.~.

Under Article 15 (3) the State has been empowered to make special provisions for women. Article 14 and 15(3) providing a touch-stone for tyting the validity of all other laws play pivotal role in attaining equal rights for women along with a better protection as in other branches of taw.

The Constitutional mandate of equality of sexes and special protection provided under Article 15(3) was enforced by the Supreme Court in the cases of Air India v. Nargesh M i r ~ aC.B. Muthamma v. Union ,~ of India,= Maya Davi v. The State: Yusuf Abdul Aziz v. State of Bombay7and Srnt. Wmithri Vishnu v. Union of ~ n d i awhere unequal ,~ provisions were quashed against women and in some cases fovoured for I protectionto women.g

It is Qvidentfrom the various cases decided by the Supreme Cour? and the High. Courts that the constitutional provisions have been interpreted by them in the same spirii in which they were framed. Legal measures favourable to women have been upheld by the judiciary and those discriminating against them have been, by and large, discarded.

LABOUR WELFARE LEGISLATION AND WOMEN: Independent India, wedded as she is, to the goal of economic growth coupled with social justice has made a steady progess in social security measures. The Indian constitution guarantees equal rights to both the sexes and does not discriminate on the basis of aste, colour and creed. The concept of social security is ~ssentiallyrelated to the high ideals of human dignity andsocial justice. The social securiiy and welfare Acts passed by the Government B r the bendit and empowerment of women are numerous. But a few require mention here. 3. Part III of the Constihltion of Indla. 4. AIR 1989 SSC 1829. 5. AIR 1979 SC 1868. 6. (1988) 1 LR 743. 7. AIR 1954SC321. 8. (1985) I SC 369. 1 9. Neera Mathw v. L1.C. of IWa, AIR 1992 SC 392.

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The Fadories Act, 1948: This Act does not allow women from clearing or lubricating or adjusting any part of a prime mover or transmission machinery when it is in motion because there is a risk of injury. The Act also prohibits employment of women in any part of a factory for pressing cotton in which a cotton opener is at work provided that if the feed-end the cotton opener - is in a room separate from the delivery end.1

And also every factory should provide in it where 50 or more women workers are employed a suitable room for the use of children under the age of 6 years of such women and such rooms shaH provide adequate accommodation with lighting and ventilation and also clean sanitary conditions. These creches should be under the charge of women trained in the care of children and infants;ll women are also exempted from night duties in any industrial premises12 The Employees State Insurance Act, 1948: This Act provides for the periodical payment to insured women in case of confinement or miscarriage or sickness arising out of pregnancy, confinement, premature birth of child or miscarriage.13 According to section 50 of this Act an insured woman shall be qualified to claim maternity benefi for confinement, if the confinement occured during the corresponding contribution period, weekly contributions in respect of her were payable for not less than thirteen weeks. The Plantation Labour Act, 1951:

The Act provides for creches where fifty or more women are employed for the use of children below six years. The same facilities are there that are provided under section 48 of the factories Act, 1948.14 Night work for women should be prohibited. The Act also provides sickness and maternity benefits. ,

The Mines Act, 1952: No women shall be employed in any part of a mine which is below

10. Section 22(2) of the Factories Act, 1948. 11. Section 27 of the Factories Act, 1948. 12. Section 66 of the Factories Act, 1948. 13. Section 46(b) of the E.S.I. Act, 1948

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ground and above ground except between the hours of 6 A.M. to 7 P.M. and every women employed above ground shall be allowed an interval of not less than 11 hours between the termination of employment on any one day and the commencement of the next period of empbyrnent.15 The Maternity Benefw Act, 1961: Maternity benefit schemes are primarily meant to provide security of wages and employment to women workers immediatelly before and after confinement. This Act was enacted to regulate the employment of women in certain establishments for certain periods before and after child birth and to provide for maternity benefit and certain other benefits.

This Act is intended to achieve the object of doing social and economic justice to women workers. Therefore in interpreting the provisions of this Act beneficent rule 4 construction which would enable % the worker not only to subsist but also to make up her dissipated enery, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and out-put has to be adopted by the Court.16

The maternity benefit Act, 1961 was further amended by the maternity benefit (Amendment) Act, 1988 which provides that women workers who have put in not less than 80 days of work can claim the fdowing benefits from the empbyec-

(1) Maternity benefl at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery and any period immediately following that day.

(2) In case of miscarriage, a woman shall be entitled to leave with wages at the rate'of maternity benefit, for a period of six weeks immediately fallowing the day of her miscarriage. (3) In case of illness arising out of pregnancy delivery, premature birth of a child or miscarriage, in addition to the period of absence speafied in (i) and (ii) above, as the case may be, to leave wlh wages at the rate of maternity

14. S.clkn 12 d MIO Plantation Lban Act, 1951. 15. S I c t i o n 4 6 d h . W ~ ~ 1952. Act, 16. 6. Shah v. Ld#r Court.Coimbatore, AIR 1978 SC 12.

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benefit for a maximum period of one month.

The aforesaid benefits are available to women workers inespective of the number of births. For nursing mothers the Act provides two nursing breaks of prescribed duration, in addition to the rest intenral for nursing the child until he attains the age of 15 months. In order to safeguard the interest of pregnant workers, the Act provides that a woman worker shall not be dissmissed, discharged during the perbd of maternity leave. Apart from the benefits provided under the Maternity benefit Act, some State Acts provide additional benefits such as free medical aid, rnatemly bonus, provision of creches, additional rest intervals, etc. however, the Act has an extremely limited application and rarely applied in the agriicukural sector I

P The Contract Labour (Regulation And A Iition) Act, 1971: .

4 Separate rest rooms shall be pro ided for women employees in every factory. The Act provides a se rate portion of dining hall and sewice counter. This Act also provides or separate washing place for women which are screened for securiity.17 This Act also provide for separate and secured latrines atleast one latrine for every 25 females.18

The Equal Remunetition Act, 1976: The equal Remuneration Act, 1976 was enacted to provide equal remuneration to male and female ernpkyees for the same work, or work of the similar nature. It prevents descrimination on the ground of sex against women in the matter of employment of women and for matters connected therewith except where the employment of women in such works is prohibited or restricted by or under any law for the time being in force. Indeed this Act is a milestone in establishing economic equalities and social justice between men and women. Now the time has come when equal pay for equal work for both man and women should be fully implemented without discriminationon the basis of sex in order to provide fair and just treatment to wmen workers.

The Act was amended in 1987 to provide for more deterrenl punishment and to prohibit discrimination not only at initial recruitment krt

17. Section 41(3) of Ihe Contract Labour (Regulation and Abditkn k t ) 1971. 18. Ibid, Sections 31(A) and 52.

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also in any condition of service subsequent to recruitment such as promotion, training or transfer.

The apex court of the country through its judicial dicisions has also approved the principle of equal pay for men and women for the work of similar nature.

In People's Union for democratic Rights v. Union of Indialgthe court held that "it is the principle of equality embodied in Art. 14 of the constitution which finds expression in the provisions of the Equal Remuneration Act. 1971."

In Randhir Singh v. Union of lndia20 the S.C. held that the principles of equal pay for equal work, is not expressly declared by our constitution to be a fundamental right but it certainly is a constitutional goal which must colour the interpretation of Art. 14 and 16 so as to be elevated to the rank of fundamental rights, denial of which must result in an 'irrational classification.

In Bhagawandas v. State of Haryana21The view of the S.C. was that (i) persons doing similar work cannot be denied equal pay on the ground that mode of recruitment was different; and (ii) a temporary OF casual employee performing the same and similar duties and functions is entitled to the same pay as that of a regular or permanent employee.

In Mackinnon Mackenzie and Co. Ltd. Vs. Audray D.

the

Court also made a significant judicial pronouncement on equal remuneration. In this case the S.C. has nG only made a distinct contribution in formulating the test for determining " same work or work of similar nature under section 4 of the equal remuneration Act, but also reflected the role of judiciary in law making in the arena of equal remuneration.

In State of U.P. Ws. J 3 . C h a ~ r a s i a ~ ~ the Court also emphasized

19. AIR 1982 SC 1473. 20. AIR 1982 SC 879. 21. AIR 1987 SC 2049. n. AIR 1987 sc 1281. 23. AIR 1989 SC 19.

EMPOWERMENT OF WOMEN

the need for equal pay for equal work for both men and women. In this case the Court made following observation:-

"Equal pay for equal work for both man and woman" has been accepted as a 'constitutional goal' capable of being achieved through constitutional remedies. Article 39 (d) of the constitution proclaims "equal pay for equal worK'. This Article and other like provisions in the Directive Principles of State Policy are "conscience of our Constitution". They are rooted in social justice. They were intended to bring about a socio-economic transformation in our society." PROBLEMS OF WOMEN IN THE UNORGANISED SECTOR India has a labour force of over 300 million. Over 90 per cent of the labour force belongs to an ever expanding unorganised sector in which the majoritry of labour are women. The bulk of this unorganised sector remains ununionised. And though, there is a considerable array of regulatory mechanisms to protect labour, yet gender issues in labour have received very little attention. Women in the unorganised sector continue to confront and experience a debilitating vulnerability at all levels.

Though the law has set out various provisions for improving the lot of women. They seldom get implemented. For example, under the law if a factory has more than 30 women workers, the employer must provide a creche for the worker's children. Yet 60 million children of these working

women have no such care. And though, there are government sponsored schemes, they reach a mere 3,00,000 thousand children. Not even 5 percent of those whon need it.

A study of the marine food processing units of Vishakhapatnam revealed that the wages and service conditions of women workers not only differed from unit to unit, but were entirely dependent on the arbitrary decisions of the management. The women were paid poorly, had not security of employment no identity as employees of the organisation and also faced the added indignation of sexual harassment. Men, in turn, were paid much more and had better work conditions.

What is more disturbing is that the vulnerability of the women working in the industry is perpetuated not just by the employer, but also by the inactions of the agencies of the state. The non implementation of minimum wage is one example. Women working in night shift is another

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case in point. So also the working hours and non-payment of overtime. All this despite the fact that there is an office of the state labour department at Vishakhapatnam.

In fact, the inequities that come with being a woman are evident in every aspect of work process and work organisation. Women are at the bottom of the ladder in terms of employment, earnings and status.

Despite earning and contributing substantially, women hardly have any freedom over what they earn. Neither do they receive any respect or recognition for all their contributions. In the industry and the society, they face a variety of barriers which makes it an uphill task for them to participate more meaningfully in most of the activities. Formost is the non recognition of the multiple roles of women, both by man and women themselves. Their potentials, capabilities, and work intensities, at home and in the workplace, are seldom understood.

Every where, it is exclusively the burden of the woman of the house to cook and feed the family, This apart from fetching water, procuring fuel, foodgrains, meeting education and medical expenses and other exigencies leaves her with no time to look after herself.

Working hard and getting no credii for it leaves them drained of their inner strength and emotions. They hardly pay any attention to their food

habits and their personal needs. This leads to the loss of stamina and the capacity to do the monotonous and strenuous work required of women in the industry, especially those like the corktruction industry. It is this that finally makes her socially. emotionally and economically vulnerable.

To overcome this vulnerability, the paradigms that have defined the gender division of labour will have to be reworked in the social order. Empowerment is often believed to be best realised through economic income generating programmes. Most of such programmes have, however catered to practical needs without in any manner affecting the controls exercised by men on the lives and livelihoods of women, As a consequence, while women have brought economic benefits to the household, this has rarely altered the subordination of women in the household or outside. The men have controlled the use and disposal of thew income.

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Partnering is extremely relevant to the empowerment process. In the absence of partnering empowerment of women leaves them alone to fight every issue. A feeling of being used can easily arise. Probably nothing would better impede the empowerment of women, than the pain and loneliness of struggling alone. Hence, empowerment and pattneringof men and women must go hand in hand. HINDU LAW/ PERSONAL LAWS AND WOMEN: After Independence, it was the codified Hindu Law which brought out radical reforms to improve the condition of Hindu women. Though Hindu women occupied a high position during vedii times, later she was subject to so many social disabilities. She wasalways considered to be a mere object of pleasure keeping hearth and home. She had to be subservient. She was never considered an equal partener in liie. Now we would consider about some pertinent Acts which were enacted for u p lifting the condition of women on the humanitarian ground. Hindu Windows Remarriage Act, 1856: One of the earliest Acts passed for the upliiment of Hindu women is the Hindu Windows' Remarriage Act, 1856.Thanks to the efforts of Shri lshwar Chandra Vidhya Sagar what was considered to be abominable or unthinkable became a reality. Abolition of Sati is again a revolutionary measure aiming at liberation of women. The Hhdu Marriage Act, 1955: Prior to 1955 poligamous marriages were recognised as valid. But certain states like, the erstwhile Bombay and Madras States passed laws

preventing bigamous marriages. As on today, it is no longer so; law enforces monogamy.

Section 5 (i) of the Hirldu Marriage Act, 1955 while laying down the condlion for a valid marriage states:

"5. Conditions for a Hindu Marriage: A Marriage may be solemnized between any two Hindus if the following conditions are fulfilled namely. (i) Neither party has a spouse living at the time of rrraniage."

In State of Bombay v. NarasappS4 the Bombay Prevention of Hindu Bigamous Marriages Act, was held not to violate Art. 14 or Art. 15

24. AIR 1952 SC 84.

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on the ground that it prohibited bigamous marriages among Hindus whereas Muslims permitted to have more wives. The Court observed that Art. 14 does not lay down that any legislation must be all embracing in character. The State may decide to bring about social reform by stages and the stages may be territorial or they may be community-wise. The discrimination against Hindus in prohibiting bigamous marriages not based only on religion within the meaning of Article 15 (i).

The Hindu Marriage Act, 1955 has also made provision regarding divorce. Under the provisions of this Act the wife may obtain a decree of divorce by the Court of law on more grounds than man.25 The Hindu Succession Act, 1956: Turning to law of succession prior to 1956, a Hindu woman had no right to succeed to the property except what was called a widow's estate which conferred nothing more than a right of enjoyment during her life time. Now the law has empowered the women by conferring property rights and other entitlements to them through various statutes. The Hindu Succession Act, 1956 altered the position of women though it did not provide for equality. The 1956 Act gave absolute share to the widow as well as to the daughters in the self acquired property of the husband and the father re~pectively.~~

There are States like Andhra Pradesh which have passed

amendment making her an equal coparcener. These are drastic changes As a society progresses, the horizens get widened, new concepts come into vogue." The Law of Adoption and Maintenance Act, 1956: The Act Provides for the maintenance of wife, widows, minor children and the poor parents. It pays special attention to women, Besides, under this Act, the Hindu women have got the right to adopt a child. A woman who is unmarried, is widowed or her husband has renounced worldly life or adopted another religion or has been declared insane by a court of law, may adopt a child. -

25. Section 13 of the Hindu Marriage Act, 1955. 26. Section 14 of the Hindu Succession Act, 1956. 27. Madhya Pradesh 'chronicle' Raipur 31st August, 1996.

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The Muslim Woman (protection of Rights on Divorce) Act, 1986: This is a very controversial enactment which was passed after the decision of Mohd. Khan v. Shah Bano 6egurn2* which includes a provision for maintenance on divorce for Muslim women. This short enactment entitled Muslim women to reasonable and fair provision and maintenance by her husband to be made within the period of ~ d d a tHer ~ .~ right to Mehr and all other properties given to her by her relatives at the time of her marriage remain intact. It also provides that if a Muslim woman is not able to provide for her own maintenance after the period of Iddat, the magistrate is empowered to order payment of maintenance by her relatives who are entitled to inherii her property on her death according to Muslim law. In other words, the divorced Muslim woman is not entitled to obtain an order from the Magistrate against her relatives i she has no i property that may devolve upon them after her death. Besides, this legislation gives an option to the parties to be governed either by this Act or provisions of Criminal Procedure Code, 1973. The Parsee Marriages and Divorce Act, 1936: In matrimonial laws governing Chriitians and Parsees, monogamy is the rule for both sexes but while Parsee Marriages and Divorce Act, 1936 enables both men and women equally to initiate proceeding for divorce on certain specific grounds. Under the Indian Divorce Act, 1869 governing the Christian, there is a great differences in husband's and wife's rights. Adultery is a ground for divorce by husband but wife is

required to prove one more matrimonial offence with adultery i.e. adultery coupled with cruelty, desertion or bigamous adultery. Similarly, merely cruelty is also no ground of divorce in itself. Once married, a Chriitian woman has no choices for future, it she has made a wrong choice: Divorce by mutual consent, the most reasonable and honourable ground for dissolving wrong, incompatible marriage, accepted in Hindu Marriage Act and Special Marriage Act. 1954 is not available in Christian Law. In Muslim it is recognised in form of Mubarat in limited context but wife generally has to forgo her dower in rewrtingto this mode. The parsee Marriage and Divorce (Amendment) Act, 1988: This Amendment Act, of 1988 has rationalized and brought the

28. AIR 1985 SC 985. 29. Section 4 of the Act.

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Parsee law of mamiage and divorce at par with Hindu marriage Act and has also conferred a right of divorce by mutual consent of spouses.

In the matter of succession under Parsee Law in the property of a male dying intestate, the male heirs have double shares than female heirs of same degree while in case of a female dying without a will, male and female of same degree get equal shares. Now the Law Commission of India in its 116th report has recommended for removing this unequal provision of women's right of inheritence. The Hindu Minority and Guardianship Act, 1956: This important piece of legislation was enacted to give protectionto the children. This Act gives a right to woman to be a natural guardian of the child in some conditions. Under this Act, the father and after him. the mother, is the natural guardian of a minor boy and a minor unmarried daughter, but the custody of the child below 5 is to remain with the mother. However, this rule is not absolute. The prime and paramount consideration is welfare of the minor and under this Act the court may make order as they deem just and proper consistently with the wishes of children, there have been cases where mother was appointed guardian of eleven year old SOCIAL REFORM LEGISLATIONAND WOMEN: Empowerment of women is also an important step to provide social and economic justice to them. After independance the Indian Government took a bold step, by enacting several social welfare legislations to improve

the condiiion of women. These legislations provided penal sanction of both types as imprisonment and fine. Generally these Acts relate to child marriage, dowry, dowry death, cruelty with women and rape offences e.t.c. The Child Marriage Restraint Act. 1929: The important sections o this Act are 3 and 4 which prescribe f punishment for male for contracting child marriage but the Act exempts women from such punishment. Section 3 of the Act says as follows:

"3" Punishment for male adult below 21 years of age marrying a child:- Whoever, being a male above 18 years

30. Mohini Vs. Wrendra Kumar AIR 1977 SC1359.

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of age and betow 21, contracts a child marriage shall be punishable with simple imprisonment which may extend to thirty days, or with fine which may extend to one thousand rupees, or with both."

Prior to these Laws, p i t i i n of Hindu Women could be described in the words of Shri RavindraNath Tagore:-

"Again and again, the callous, the intoleknt insult you; Wiping your tears away you forgive them with bowed head, at ingratitude's door Night and day you suffer wounds."

Today, at least, there is a feeling that her position has improved. The Dowry ProhibitionAct, 1961: Among all social evils that we have, dowry system is the most serious evil. To prohibit this evil Parliament enacted the Dowry Prohibiion Act, 1961. To curb the dowry menace more effectively, the Dowry Prohibition Act, 1961 was amended in 1984 and 1986~'for making its provisions more stringent and effective. By the Dowry Prohibition (Amendment) Act, 1986 a new offence of "Dowry Deathnwas included4n lndian Penal Code and the necessary consequential amendment have been made in Criminal Procedure Code and lndian Evidence Act. The offences relating to dowry are now congizable, nonbailable and not

compoundable. The burden of proof of innocence rests on the accused. However, despite stringent provisions the evil is not restricted and it is increasing day by day. The lndian Penal Code 1860: Due to the riiing trend of dowry killings and cruelty to the wives by their husband and in-laws, a new chapter has been added to the lndian Penal Code in 1983. According to section 49&A, A husband or his relatives who subject a women to cruelty shall be sentenced to imprisonment upto 3 years and shall also be liable to fine.32 Section 497 of I.P.C. is also important which makes a po s nr vo ii for punishment to adultrous man but exempts adultrous wife.33 It is heartening to note that

31. The Dowry Prohibiin (Amendment) Act, 1 8 inserted S1 3 in the lndian 96 .1A

Evidence Act, 1 7 and Section 3048 in the lndii Penal Code, 1860. 82 32. lndian Penal Code (Amenclment) Act, 1983, Section 498-A of the Act 33. Yusuf AWul Aziz ys. State of Bombay, AIR 1 5 S.C. 3 1 94 2.

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there is a growing sensitivity on the part of the judiciary to the problems offences and dowry deaths.

In Samunder Singh v. State of R a j a ~ t h a n ~ ~ the Supreme Court while criiicising the anticipate bail to the accused in a matter concerning 3 the death of daughter-in-la in the matrimonial home, observed that sentimentalism has no place in the judicial process; and yet sensitivity to social problems and commitment to constitutional mission is a virtue.

In the case of Public Prosecutor, A.P. v. T. P ~ n i a hthe High ,~~ Court rejecting the contention made by accused held that even if she had committed suicide by hanging, the death would still fall under section 304B, if it was shown that she was subjected to cruelty or harassment for dowry.

In State of Panjab v. lqbal Singh,36 the Supreme Court, while convicting the husband observed that the legislative intent behind incorporation of section 113-A of the Indian Evidence Act and section 304B of the Indian Penal Code was to strengthen the hands of the prosecution in a crime generally committed within the privacy of residential houses.

In Omprakash v. Sheela Wanti and

the S.C. held that

it was the duty of the court, in a case of death because of torture and demand of dowry to examine the circumstances of each case and evidence adduced on behalf of the parties for recording a finding on the question as to how death has taken place. While judging the evidence and circumstances of the case, the cotjrt has to be conscious of the facts that a death connected with dowry takes place in the house, where outsiders who can be said to be independent witnesses in the traditional sense, are not expected to be present. The Criminal Law (Amendment) Act, 1983: The law of rape was altered by the Criminal Law (Amendment) Act, 1983 after a decision of supreme Court in the Mathura rape case. A new

34. AIR 1987 S.C. 737. 35. 1989 Cr.L.J. 2330(A.P.). 36. AIR 1991 S.C. 1532. 37. Criminal Appeal No. 282 with 230 of 1981 decided on 19-8-92.

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concept 'custodial Rape' was also defined in clause (2) of section 376 of Indian Penal Code by this Act. The Criminal Procedure Code 1973: Section 437 of Cr. Pic is also an important provision for safeguarding the condition of women. This section of Cr. P.C. gives special protection for granting bails to women while in a similar situation it cannot be granted to male. Besides, there are other sageguards in the Code such as women will be searched only by a women officer, her medical examination should be conducted only by a lady Doctor, she cannot be arrested during night time etc.

In the case of Sheela Barse v. State of M a h a r a ~ t r the ~ a ~ Supreme Court directed the Jail authorities to provide separate place for detention for female suspects and they should be interrogated only in the presence of female officers.

Now amended section 174 and 176 of the Cr. P.C. make a provision for "inquest" by executive magistrate if within 7 years of marriage, a woman commits suicide or dies in circumstances giving rise to a reasonable suspicion of foul play. Death of married woman within 7 years of marriage also gives any relative of hers the right to request for a post Mortem. The Immoral Traffic (Prevention) Act, 1986:

The Suppression of Immoral Traffic Act, 1956 was passed by the Parliament in the 6th year of the Republic of India in pursuance of the International.Convention signed at Newyork on 9th May, 1950. This was replaced by the present Act in 1986. This Act provides for punishment to any person who keeps or manages or acts or assists in the keeping or management of a brothel. The punishment is conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees.

The Act also provides punishment to any person over the age of 18 years who lives wholly or in part on the earnings of prostitution of a child or a minor. The Act prohibls prostitution under section 7 of the Act in or in

38. AIR 1986 S.C. 378.

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the vicinity of public places and makes the same punishable.

The Medical Termination of Pregnancy Act, 1985:

This Act is also an important piece of legislation towards the liberationof women. It secured to her the right to decide about abortion. The Commission of Sati (prevention) Act, 1987: After the incident of the commission of Sati in Rajasthan this Act was enacted on demand of women's organisations and from persons inside and outside the Parliament for more effective prevention of the Commission of Sati and its glorification. The Family Courts Act, 1984: In some recent statutes, participation of women has been ensured by providing them preferential appointments to decision making bodies. The family Courts Act, 1984 which provides family courts for adjudication and settlement of family disputes provides that while appointing judges for the court preference shall be given to woman. The Prevention of Atrocities Act, 1989: This Act also makes some provisions for sagfeguarding the women of weaker sections who belong to S.C. and S.T. classes. Under section 3 clause (i) it has been provided that:

(i)

assaulting or using force to any women belonging to a scheduled class with

intent to dishonour or outrage her modesty.

(ii)

being in a position to dominate the will of a woman belonging to a schedule caste and using that position to exploit her sexually which she would not have otherwise agreed to, such above offences shall be punishable with imprisonment for a term of not less than 6 months and upto a maximum of five years and with fine.

The Consumer Protection Act, 1986: The Consumer Protection Act, 1986 also provides that a lady social

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worker is to be one of the three members of the Distrii Forum and one woman of ability and integrity with special knowledge of industry, law, economics etc. has to be on the State Commission as well as the National Commission. The National Commission for Women Act, 1990: For the purpose of setting up of an agency to fulfill the surveillance functions as well as to facilitate redressal of grievances of women the National Commission for women Act, 1990 was enacted. The main function of the Commission is to look into the matters relating to the Constitutional and legal safeguards provided for women and review the existing laws and suggest amendments, if necessary. The Commission also have executive cum judicial funcitions to look into the complaints and take suo moto notice of the cases relating to women's rigMs. The Constitution The Constitution Now by these amendments one third seats in the ~ a n c h a y a t and s~~ Muni~ipalities~~ been reserved for women to give their proper have representation. The Constitution Bench of M.P. High Court at Jabalpur in its order dated 30-6-1989 upheld the constitutional validity of the M.P. Panchayat Adhiniyem, 1981 as amended in 1988 whereby certain seats of Panchas and Sarpanchas were reserved in favour of women.41 In present time a bill has been introduced in the Loksabha giving a 33% reservation

for women in the election of Loksabha and State ~egislatures." Problem of Implementationof the Laws: The aforesaid study reveals that after the independence many Acts have been passed for empowering and improving the conditions of women but these Acts remain only on the paper. The ineffectiveness of those laws can be atributed firstly to the fact that these laws have been framed more as a token gesture than from any genuine concern to change the status quo of women. In some cases there have been wide disparity between the initial demands of the women campaigners, the I

--

--

--

39. Section 13(5) of the M.P. Panchayat Adhiniyam, 1993. 40. Section 1l(3) and (4) of the M.P. Municipal Corporation Act, 1956. 41. Umesh Pandey Vs. State of M.P. (1989) 2 MPJR 742. 42. According to T.V. News dated 12-9-96.

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[ 996

recommendations of the law Commission and the final enactments. Also while one organ of the State, the legislature, has been over anxious to pass laws, the other organs, the executive and judiciary did not reflect this gesture in the implementationand interpretation respectively.

Thus there is a big gap in availability of legal rights of women and their actual enjoyment or implementation. Educational constraints and social backwardness of the majoriiy of Indian women accounts for the great hiatus between their legal status and their actual position in life and society, and their failure to utilize legal rights available to them for imprdving their social status. Though the orthodox sections of Hindus and Muslims want to keep them in old convictions and conservative practices but it is the duty of government to provide protection against unhealthy an unsuited conditions by enacting and amending new laws. Really there is a lacuna at least on the part of the government and also in implementing machinery.

It is submitted that our laws engcted for the empowerment of women are bold but the machineries implementing them are poor. We can take the example of Child Marriage Restraint Act, 1929 and the Dowry Prohibiion Act, 1961. Due to lackness of implementing machinery both types of crimes ie. child marriage, dowry offences and dowry death are increasing day by day,

Suggestions (A) Labour Laws (1 Labour laws pertaining to women should be properly implemented and a time bound mechanism should be set up for the follow up action, otherwise all the provisions will remain on the paper and there can be no proper social justice to the section of the society which is suffering on account of sex bias. There is a need that the provisions of Maternity benefits Act should be extended to the women working in the agricultural sector. There must be a provision in the Act for free medical aid before, during and after confinement. Wetfare and safety measures provided for the protection of women should be extended as per present scientific development.

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(4)

Equal Remuneration Act should be fully implemented without discrimination on the basis of sex, in order to provide fair and just treatment to women workers.

(5)

There is also a need to harmonise work and family responsibilities for women. There should be action to change to traditional sharing of family responsibilities. Workplaces should be made family-friendly, including more flexible working time arrangments.

(6)

Social support services and infrastructure should be provided to enable women (and men) to harmonise work and family responsibilities more effectively.

(7)

There is also a need that the women should be encouraged to become literate. There must be good training arrangements. There is also need to equip women to operate more effectively in factories and workshop.

(B) Personal Laws: (1) It is suggested that women should have an equal share in the property of her husband from the date of her marriage with a right to dispose of her share in property under extenuating situation.

(2)

Women should have right of free access to her children even if they remain in the custody of her husband.

(4)

Though the law has provided adequate provisions before and after the marriage but not after the dissolution of marriage. Marriage dissolution leaves many problem to be resolved.

(5)

The laws do not make adequate provisions for solving the problem which arise after the divorce in all the communities. For solving this problem there must be uniformity in the laws of marriages and divorces. A careful survey of the law shows that in preparing a uniform civil code for all the people of India, many benefit will ensue. In such an endeavour, many unjustifiable and discriminatory points of detail could be pruned and trimmed. The unification of marriage laws, as marriage laws form the core of family laws, can

CENTRAL INDIA LAW QUARTERLY

be first important steps towards a Uniform Civil Code. Thus there should be a uniform civil code of marriage and divorce for all the countrymen. (6) Since uniform civil code must take some time to come into existance Christian Divorce Act, 1969, should'be amended immediately to bring it at par with special marriage Act, 1954, Hindu marriage Act, 1956 and Parsee Marriage Amendment Act, 1988 and mutual consent as a ground of divorce be introducedfor chriitians also. (C) Social Reform Legislations: (1) Since the child marriages which have been completed cannot be declared void on some practical grounds and difficulties like in India, but now in such area the law should create public opinion by educating the masses against such an evil before being enforced strictly and punitively. Already, there are laws ensuring the registration of births and deaths and there are numerous ways the State can insist on marriage registration particularily in conjunction with the registration of births and deaths. (2) Further it is submitted that the law should also take into account ommissions and commissions

which may precede or succeed the event of marriage. The preparatory *cermonies like engagement should also be brought within the purview of the Act, if one of the parties or both of them happen to be "Child within the meanining of the Act. The law may require that the engagements may be registered as agreements for the proposed marriages and a clearance be obtained before solemnising the marriage. () 3 Whenever the offence of bride 'killing is reported the police should seek the public co-operation and the neighobour should be taken into confidence in order to assess the treatment given to the bride before her death. Education particularly the adult education should be utilized to educate the people about the disadvantages of the dowry. (4) There should be special courts to ensure the speedy trial of the offence of bride killings. In the

EMPOWERMENT OF WOMEN

411

bride killings, the parents of the victims should be paid adequate compensation. Registration of marriages under every religion should be made compulsory. The mass media should highlight the evils of dowry and should give public exposure to the offenders but at the same time they should avoid any sort of humiliation to the victims. Significant steps should be taken to implement all the laws which are amended to facilitate detention, prevention and punishment of crimes against women. There is also a need for Jail reforms for maintaining better protection to women in India. The Immoral trafic Prevention Act, 1956 should be implemented strictly. Machinery arranged for preventing the crimes must also be vigilant. Conclusion: Thus, today our country is in need of gender legislation of women laying down her rights irrespective of religion and region. The legislative measures are in favour of women, but their success depends on effective implementation. The proper implementation, Co-ordination of the three branches is absolutely essential. The Lack of implementation due to absence of commitment to the policy of the constitution has led to either

non-implementationor to watering down by the judiciary and the executive of the beneficial effects.

From the above view one question which is confronting us is whether social change and gender justice can be brought about merely by passing stricter laws and implementing them? On the contrary the existing laws, the amendments and the new laws add to the confusion. Thus until there is empowerment of women, dissemination of legal awareness amongst them, economic status raised with the family and in the society, law will remain in effect on paper onfy.