Empowerment of Women and Law

7/27/2019 Empowerment of Women and Law

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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.


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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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Yol.lX:IV] EMPOWERMENT OF WOMEN 339

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.


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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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390 CENTRAL INDIA LAW QUARTERLY [ I996

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


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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


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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


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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 society- a 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.


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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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Vol.lX: IV] EMPOWERMENT OF WOMEN 393

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:


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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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394 CENTRAL INDIA LAW QUARTERLY (1996

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-


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(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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Vol.lX:IV] EMPOWERMENT OF WOMEN 395

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


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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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396 CENTRAL INDIA LAW QUARTERLY [I996

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.


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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.


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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


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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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398 CENTRAL INDIA LAW QUARTERLY [I 996

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


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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


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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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400 CENTRAL INDIA LAW QUARTERLY 1 996

1

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


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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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Vol. IX:IV] EMPOWERMENT OF WOMEN 401

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


28/48

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


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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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Vol.IX:IV] EMPOWERMENT OF WOMEN 403

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


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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 304-

B, 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 304-

B of the Indian Penal Code was to strengthen the hands of the prosecution

in a crime generally committed within the privacy of residential houses.


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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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Vol.IX:IV] EMPOWERMENT OF WOMEN 405

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:


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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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406 CENTRAL INDIA LAW QUARTERLY

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


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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


40/48

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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408 CENTRAL INDIA LAW QUARTERLY [ 996

I

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,


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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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Vol.lX:IV] EMPOWERMENT OF WOMEN , 409

(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.


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(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


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46/48

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


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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


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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.

Empowerment of Women and Law

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