Women Rights India

Chapter-4 Rights of Women in India: Constitutional and Legal Perspectives
CHAPTER-IV
Rights of Women in India: Constitutional and Legal Perspectives
Introduction
In this chapter efforts have been made to look into the constitutional and legal rights
of women as guaranteed by the Constitution of India. Women are said to be the cradle
of human progress and civilization. They have a significant and crucial role to play in
the society. They are an integral part of each family. So, they ought to be secured and
respected in the society. In short their part in forming the family and shaping the
community cannot be diminished or thought little of. The expression "Women‟s
Rights" is maybe better alluded to as "the human rights of women" to underline the all
inclusiveness and unbreakable quality of every human right and their full application
to ladies as people. In the event that we dissect the privileges of women with
extraordinary reference to the Indian setting, that may deliver a reasonable image of
the Indian women and their rights (Jayapalan, 2001).
The women‟s rights are broadly acknowledged and unavoidably ensured to

elevate women through financial and instructive chances to fulfill the established
objective of correspondence and social equity for chronicled reasons. Their
advancement over the previous decades is being sought after through positive
segregation to support them in instruction, work, governance and different regions.
Entire organizations, i.e. U.N. system, national governments, women‟s organizations,
women associations have been conveying on disposing of the contrasts amongst men
and women in setting of their rights. Be that as it may, however women‟s rights
conceded in principle gradually and gradually amid twentieth century, their usage is
moderate and slows (Goel, 2004).
Our Constitution makers could anticipate the social issues related with the
liberation of women. They had seen triumphant gender disparity amid their time and
had imagined that the sex-correspondence was significant for the improvement of the
nation. To get rid of the imbalance and to give sensible open doors and make
mindfulness for the practice of human rights and claim, it was important to advance
with extraordinary care, instructive and financial interests of men as well as women
and to give essential security from social unfairness and abuse (Kumar & Rani, 1996).
117
Constitutional Provisions:
If we look into the Constitution of India we shall find that there are a number
of references ensuring equal rights and opportunities to women irrespective of caste,
colour and races. The following few excerpts will help us to understand the
constitutional provisions to safeguard the rights of women.
i. Equality before Law: the state shall not deny to any person equality before law
or equal protection of laws within the territory of India (Article 14).
ii. The State not to discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them Article 15(i).
iii. The State to make special provision in favour of women and children {Article
15(3)}.
iv. Equality of opportunity for all citizen in matters relating to employment or
appointment to any office under the state (Article 16).
v. The State to direct its policy towards securing for men and women equally the
right to an adequate means of livelihood Article 39(a) and equal pay for equal
work for both men and women Article 39(d).
vi. To promote justice, on a basis of equal opportunity and to provide free legal
aid by suitable legislation or scheme or in any other way to ensure that
opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities(Article 39 A).
vii. The State to make provision for securing just and humane conditions of work
and for maternity relief (Article 42).
viii. The State to promote with special care the educational and economic interests
of the weaker sections of the people and to protect them from social injustice
and all forms of exploitation (Article 46).
ix. The State to raise the level of nutrition and the standard of living of its people
and the improvement of public health (Article 47).
x. To promote harmony and the spirit of common brotherhood amongst all the
people of India and to renounce practices derogatory to the dignity of women
Article 51(A) (e).
xi. Not less than one-third (including the number of seats reserved for women
belonging to the Scheduled Castes and the Scheduled Tribes) of the total
118
number of seats to be filled by direct election in every Panchayat to be

reserved for women and such seats to be allotted by rotation to different
constituencies in a Panchayat Article 243 D (3).
xii. Not less than one-third of the total number of office of Chairpersons in the
Panchayats at each level to be reserved for women Article 243D(4).
xiii. Not less than one-third (including the number of seats reserved for women
belonging to the Scheduled Castes and the Scheduled Tribes) of the total
number of seats to be filled by direct election in every Municipality to be
reserved for women and such seats to be allotted by rotation to different
constituencies in a Municipality Article 243 T(3).
xiv. Reservation of offices of Chairpersons in Municipalities for the Scheduled
Castes, the Scheduled Tribes and women in such manner as the legislature of a
State may by law provide Article 243 T(4) (Nelasco, 2010).
The Preamble of the Constitution
The Preamble of the Constitution of India very beautifully has thrown light on the
goals and objectives of the constitution in the following words giving much emphasis
on equal rights and opportunities of all citizens. The Preamble reads as:
“We the people of India having solemnly resolved to constitute India into a
Sovereign Socialist Secular Democratic Republic and to secure to all citizens:
Justice, social, economic and political;
Liberty of thought, expression, belief, faith and worship;
Equality of status and of opportunity; and to promote among them all;
Fraternity, assuring the dignity of the individual (unity and integrity of the
nation);
In our Constituent Assembly, this twenty-sixth day of November, 1949, do hereby

adopt, enact and give to ourselves this constitution” (Kumar & Rani, 1996)
The preamble and its contents were explained by Pandit Jawaharlal Nehru in the
Objectives Resolution which was fully adopted by the Assembly as he moved them in
the Constituent Assembly in its First Session. What Mahatma Gandhi had said in
1931 during his visit to the Second Round Table Conference in London, Nehru‟s
119
Resolution had taken the same shape itself. Once Mahatma Gandhi was asked what
kind of Constitution he would give to the people of India, he replied in the following
words that also highlight the rights of women:
“I shall strive for a Constitution which will release India from all that doom and
patronage and give her, if need be, the right to sin. I shall work for an India, in
which the poorest shall feel that it is their country in whose making they have
an effective voice; an India in which there shall not be high class and low class
of people; an India in which all communities shall live in perfect harmony;
there can be no room in such an India for the curse of untouchability or the
curse of intoxicating drinks or drugs. Women shall enjoy the same right as
men. Since we shall be at pace with all the rest of the world neither exploiting
nor being exploited by any of them. We shall have the smallest army
imaginable. All interests not to be in conflict with the interest of the millions
of dumb that will be respected, whether foreign or indigenous. This is the India
of my dream”.
The opening words of the Preamble emphasize on the ultimate authority of the people
from whom the Constitution emerges. There is no sex discrimination. The words
“WE THE PEOPLE OF INDIA” includes both males and females.
The Preamble draws four objectives of the Indian Republic, viz. justice, liberty,
equality and fraternity. „Justice‟ implies a harmonious reconcilement of individual
conduct with the general welfare of the society. The essence of justice lies in the
attainment of the common good. It embraces as the Preamble proclaims the entire
social, economic and political spheres of human activity.
The word „liberty‟ in the Preamble, signifies not only the absence of any
arbitrary restraint on the freedom of individual‟s action but also for the creation of
conditions which would provide for the necessary ingredient required for the proper
development of the personality of the individual. Since society consists of individuals,
social progress depends on the progress of individuals. Hence, it is in the interest of
the society to ensure the maximum liberty of thought and action of the individual
consistent with the circumstances and social conditions. The two words „liberty‟ and
„equality‟ are complimentary. Equality does not mean that all human beings are
mentally and physically equal. It signifies equality of status and equal opportunity.
120
Emphasis has been laid on the objective of „fraternity‟ in order to ensure

two things, viz; the dignity of the individual and unity and integrity of the country. It
is the spirit of brotherhood that is emphasized by the expression „fraternity‟. In a
country like ours with diverse religion, language, culture and social system, unity can
be achieved through the spirit of fraternity (Kumar & Rani, 1996).
Constitutional arrangements for the protection of women’s rights:
Right to Equality
“Article 14: Equality before Law: the state shall not deny to any person equality
before law or equal protection of laws within the territory of India”.
Irrespective of being a non-citizen of India, the constitution of India promises equality

of law to entire population. The goal of both the phrases is to set up the equality of
status and opportunities as can be seen in the preamble. Any random bias or
discrimination is controlled by Article 14 of the constitution.
The Supreme Court of India by explicating the scope of the Article considers the
following:
i. While regarding the basic right of equality of opportunity, a systematic and

methodical approach ought to be created and the principle ought not be
engaged although various scales of pay, service conditions, leave, etc. brought
in various or disparate posts.
ii. Article 14 forbids hostile discrimination but not reasonable classification.
Hence, Article 14 will be totally out of the way, where individuals belonging to
a specific group having particular characteristics, qualities, attributes, means of
employment.
iii. Article 14 certainly applies where equals are treated differently without any
reasonable basis.
iv. Where equals and unequals are treated differently, Article 14 would have no
application.
v. Even if there be one class of service having several categories with different
attributes and incidents, such a category becomes a separate class by itself and
no difference or discrimination between such category and the general
121
members of the other class would amount to any discrimination or to denial of

equality of opportunity.
vi. For the sake of judging of a distinct class of people has been cut out of a rank
of service, the succeeding situations have normally to be observed:
a) the nature, the mode and the manner of recruitment of a particular category
from the very start;
b) the classification of the particular category;
c) the terms and conditions of service of the members of the category;
d) the nature and character of the posts and promotional avenues;
e) the specific attributes that the particular category possesses which are
not to be found in other classes and the like.
The above mentioned circumstances can be considered as instructive principle

for deciding the question, if it is hard to set down a principle of global application.
Humanity has always endeavored towards equality for all, in its fight for social-cum-
political freedom. This struggle to pursue equality and freedom has been a driving
force behind many resolutions. There are various member Nations who have
determined to reiterate their trust on equality of rights of both men and women,
documented by the Charter of the United Nations. Nevertheless, it seems to be an
illusion or an utmost dream to accomplish the total equality between men and women.
At the other hand the country‟s laws can only guarantee partial measures of equality
to its residents. “The Constitutional makers gave only political and legal equality and
the status of a fundamental right. Aspects like economic and social equality were
included within the scope of Directive Principles of State Policy” (Kumar & Rani,
1996).
Article 14 declares that „the State shall not only deny to any person equality
before the law or the equal protection of the laws within the territory of India’. Thus
article 14 uses two expressions “equality before the law” and “equal protection of the
law”. The phrase “equality before the law” finds a place in almost all written
Constitutions that guarantees fundamental rights (Pylee, 1960). Both these
expressions have, however, been used in the Universal Declaration of Human Rights.
The source of the first expression “equality before law” is British Constitution of the
second expression is American Constitution. The purpose of both of the expressions is
122
to set up equality of status in the Preamble. Even if they appear to be the same yet
both of them express separate senses. The former has a negative connotation and
implies that there are no special privileges in favor of individuals and the equal
subject of all classes to the ordinary law and the latter has however more positive
connotation that implies equality of conduct in equal circumstances. However, one
dominant idea common to both the expressions is that of equal justice. In State of
West Bengal v. Anwar Ali Sarkar, Patanjali Sastri, C. J., rightly held-the second
expression is corollary of the first and it is difficult to imagine a situation in which the
violation of the equal protection of laws will not be the violation of the equality
before law. Thus, in substance the two expressions mean one and the same thing.
Equality before law and absolute equality:
It would be unwarranted to say that we can attain total substantial equality

among men and women but the concept of equality entails absence of any special
privilege by reason of birth, creed or the like in favor of any individual, and also the
equal subject of all individuals and classes to the ordinary law of the land. As Dr.
Jennings puts it: “Equality before the law means that among equals the law should be
equal and should be equally administered, that like should be treated alike. The right
to sue and be sued, to prosecute and be prosecuted for the same kind of action should
be same for all citizens of full age and understanding without distinctions of race,
religion, wealth, social status or political influence”.
Equality before Law and Rule of Law:
The guarantee of equality before the law is an aspect of what Dicey calls the
rule of law in England. It implies that every individual is subject to the jurisdiction
irrespective of higher or having higher of sublime ranks. “With us, Dicey wrote
“every official from the Prime Minister down to constable or a Collector of taxes is
under the same responsibility for every act done without legal justification as any
other citizen”. It pertains that every individual as per the law shall be safeguarded
against any kind of harsh or roughshod treatment in whatever conditions prevail.
Professor Dicey gave three meanings of the Rule of Laws:
1. Absence of Arbitrary Power or Supremacy of the law: It stands for the total
supremacy of law as opposed to the arbitrary authority of the government. In other
123
words-“a man may be punished for a breach of law, but he can be punished for
nothing else”.
2. Equality before the law: It stands for the subjection of entire classes to the
arbitrary law of the land administered by arbitrary judiciary. This means that‟ no
one is above law with the sole exception of the monarch who can do no wrong‟.
Every individual is subjected to stick to the same law in England irrespective of
being an official of the state or a private individual. There does not exist any
privileged status for public officials. In England there exists totally single system
of law for entire people.
3. The constitution is the result of the ordinary law of the land: It means that the
source of the right of individuals is not the written Constitution but the rules as
defined and enforced by the courts.
The foremost and the subsequent features are relevant to Indian system, and
the third of the Dicey‟s rule of law are not applicable to it because the foundation and
origin of rights of individual is Indian constitution. Since we all are aware of the
supremacy of constitution of India so all laws passed by the legislature ought to be
dependable of the constitution (Rao, 2012).
Equal Protection of the Laws:
The Guarantee of equal protection of laws is similar to one embodied in the 14 th

Amendment to the American Constitution. This has been interpreted to mean
subjection to equal law, applying to all in the same circumstances. It merely denotes
that whole of the persons having common circumstances shall be given equal
treatment in both the cases whether in the matter of privileges to be conferred or
liabilities imposed by the laws. No discrimination at all should be observed in terms
of application of the laws. Since legislation considers their status alike so according
the rule the like should be treated alike and vice-versa.
The rule of law imposes a duty upon the State to take special measures to
prevent and punish brutality by police methodology. The Rule of Law embodied in
Article 14 is the “basic feature” of the Indian Constitution and hence it cannot be
destroyed even by an amendment of the Constitution under Article 368 of the
Constitution.
124
The word „any person’ in Article 14 of the Constitution denote that the
guarantee of the equal protection of laws is available to any person which includes
any company or association or body of individuals. In Article 14 the word protection
is meant for both citizens and non-citizens and to the entire people. Irrespective of
race, color, creed, religion, or nationality the equality before the law is promised.
Corporations being juristic persons are also entitled to the benefit of Article 14.
Exceptions to the Rule of Law:
The above rule of equality is, however, not an absolute rule and there are number of
exceptions to it: First „equality before the law‟ does not mean that the “powers of the
private citizens are the same as the powers of the public officials”. Thus, a police
officer has the power to arrest while, as a general rule, no private person has this
power. This is not the violation of the rule of law. But the rule of law does require that
these powers should be clearly defined by law and abuse of authority by public
officers must be punished by ordinary courts in the same manner as illegal acts
committed by private persons. Secondly, the rule of law does not prevent certain
classes of persons being subject to special rules. Thus, members of the armed forces
are controlled by military laws. Similarly, medical practitioners are subjected to the
regulations framed by the Medical Council of India, a statutory body, and are immune
from the jurisdiction of ordinary courts. Article 361 of the Indian Constitution affords
an immunity to the President of India and the State Governors. Article 361 provides
that the President or the Governor of State shall not be answerable to any Court for
the exercise and performance of the powers and duties of the office or for any act
done or purporting to be done by him in the exercise and performance of those powers
and duties. No Criminal proceeding shall be instituted or continued against the
President or the Governor of a State in any Court during his term of office. No
process for the arrest or imprisonment of the President or the Governor of State shall
be issued from any Court during his term of office. Thirdly, ministers and other
executive bodies are given very wide discretionary powers by the statutes. A Minister
may be allowed by law „to act as he thinks fit‟ or „if he is satisfied‟. Such power is
sometimes abused. Today, a large number of legislation is passed in the form of
delegated legislation, i.e., rules, orders or statutory instruments made by ministers and
other bodies and not directly by Parliament. These rules did not exist in Dicey‟s time.
125
Fourthly, certain members of the society are governed by special rules in their
professions, i.e., lawyers, doctors, nurses, members of armed forces and police. Such
classes of people are treated differently from ordinary citizens (Pandey, 2016).
The Constitution itself contains provisions which, under certain circumstances,

limit the effectiveness of Article 14
(1) The scope of right to equality under Article 14 has been considerably restricted
by the 42nd Amendment Act, 1976. The new Article 31-C added by the
Amendment Act provides that laws made by the State for implementing the
Directives Principles contained in clause (b) or clause (c) of Article 39 cannot be
challenged on the ground that they are violative of Article 14. Such laws will,
thus, be an exception to Article 14 of the Constitution. In Sanjeev Coke Mfg.
Co. v. Bharat Cooking Coal Ltd., the Supreme Court has held that, “where
Article 31-C comes in, Article 14 goes out”.
(2) Article 359(1) provides that where a proclamation of emergency is in operation
the President may, by order, declare that the right to move any court for the
enforcement of such rights conferred by Part III (except Article 20 and 21) shall
be remain suspended. Thus, if the President of India issues an order, where a
Proclamation of Emergency is in operation, enforcement of Article 14 may be
suspended for the period during which the Proclamation is in force.
(3) The presidents and the governors are let off from any unlawful proceeding
throughout their term, under Article 361.
(4) The foreign ruler and ambassador benefit from total immunity from any judicial
procedure, under International law.
Equality: A positive concept
Basawaraj v. The Spl. Land Acquisition Officer (AIR 2014 SC 746) was a case delay
of 5-1/2 years in filing the appeals before the Karnataka High Court which dismissed
the appeals under Section 54 of the Limitation Act. The appellant quoted a large
number of cases of the High Court wherein the delay had been condoned without
considering the most relevant factor i.e. sufficient cause. The Supreme Court
dismissed the appeal and held:
Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even

by wrong decisions made in other cases. The said provision does not envisage
126
negative equality but has only positive aspect. Thus, if some other similarly
situated persons have been granted relief/ benefit inadvertently or by mistake,
such an order does not confer any legal right on others to get the same relief as
well. If a wrong is committed in an earlier case, it cannot be perpetuated.
Equality is a trite, which cannot be claimed in illegality and therefore, cannot be
enforced by a citizen or Court in a negative manner. If an illegality and
irregularity has been committed in favour of an individual or a group of
individuals or a wrong order has been passed by Judicial Forum, others cannot
invoke the jurisdiction of a higher Court for repeating or multiplying the same
irregularity or illegality or for passing a similarly wrong orders.
Hijras and transgenders are the persons entitled to legal protection: in National
Legal Service Authority v. Union of India, (AIR2014 SC1863) the Supreme Court
has held that Article 14 does not restrict the word „person’ and its application only to
male or female and Hijras/transgender persons who are neither male nor female fall
within the expression „person’. They are entitled to legal protection of laws in all
spheres of State activity including employment health care, education as well as equal
civil citizenship rights, as enjoyed by any other citizen of this country. The expression
„sex’ under Article 15 and 16, therefore includes discrimination on the ground of
gender identity. The expression “sex” is not limited to biological sex of male or
female but intended to include people who consider themselves to be neither male nor
female. Transgenders have been denied rights under Article 16(2) and discriminated
against in respect of employment or office under the State on ground of sex. They are
also entitled to reservation in the matter of appointment under Article 16(4). State is
bound to take affirmative action to give them due representation in public services.
Article 19(1) (a) a transgender has freedom to express one‟s chosen gender identity
through varied ways and means by way of expression, speech, mannerism, clothing
etc. values of privacy, self identity, autonomy and personal integrity are fundamental
rights guaranteed to the members of transgender community under Article 19(1)(a),
and the State is bound to protect and recognize those rights.
Self –determination of gender is an integral part of personal autonomy and self-

expression and falls within the realm of personal liberty guaranteed under Article 21
of the Constitution.
127
Article 14 has used the expression “person”. Article 15 has used the expression
“citizen” and “sex”, so also Article 16. Article 21 has used the expression “person”.
These expressions which are “gender neutral” evidently refer “human beings”.
Article 14 permits classification but prohibits class legislation:
As promised by Article 14, the equal protection of laws implies that it is

obligatory to have all laws general in nature. The diverging requirements of various
groups of persons frequently need separate conduct depending upon the nature of the
society and keeping in view the variegated regions of the country there should be
different laws for the better safety and security purposes. Indeed, homogenous
conduct in unequal circumstances can add up to inequality. Hence, if we wish to see
our society progress a reasonable classification needs to be necessarily done (as cited
in Pandey, 2016).
Article 15:
Article 15 of the Constitution ensures prohibition of discrimination on grounds of

religion, race, caste, sex or place of birth. Stated in words, it stands as follows:
i. the state shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them.
ii. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or
any of them be subject to any disability , liability, restriction or conditions
with regard to
a) access to shops, public restaurants, hotels and places of public
entertainment; or
b) the use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of state funds or dedicated to the use
of general public.
iii. Nothing in this Article shall prevent the State from making any provision for
women.
Article 15 guarantees non-discrimination on special grounds, that is religion,

race, caste, sex, place of birth or any of them. But this right is available to citizens
only. Article 15(1) is conferred on a citizen as an individual and is a guarantee
against his being subjected to discrimination in the matters of rights, privileges and
128
immunities pertaining to him by virtue of his status as a citizen. The significance of

Article 15 is that it is a guarantee against every form of discrimination by the state on
the basis of religion, race, caste, sex. Article 15 strikes at the root of provincialism by
prohibiting discrimination based upon one‟s place of birth. It is also in conformity
with the ideal of single citizenship which the Constitution establishes for the whole of
the country.
However, Article 15 has provided a couple of exceptions in its application.

Article 15 (3) allows the state to make any special provision for women and children.
Article 15(4) permits the state to make any special provision for the advancement of
socially and educationally backward classes or for the Schedule Caste or Schedule
Tribes. The treatment meted out to women and children is in the larger and longer
range interest of the community.
Article 16:
This Article guarantees equality of opportunity in matters of public employment. It is

stated in the following words:
i. There shall be equality of opportunity for all citizens in matters relating to

employment or appointment to any office under the state.
ii. No citizen shall, on grounds only of religion, race, caste, sex, descent,
place of birth, residence or any of them ineligible for discriminated against
in respect of any employment or office under the state.
iii. Nothing in the Article shall prevent Parliament from making any law
prescribing, in regard to a class or classes of employment to an office
(under the Government of or any local or other authority within a state or
Union Territory any requirement as to residence within that state or Union
Territory) prior to such employment or opportunity.
iv. Nothing in this Article shall prevent from making provisions for the
reservation of posts in favour of any backward class of citizen which, in
the opinion of the state is not adequately represented in the services under
the state.
v. Nothing in this Article shall affect operation of any law which provides
that the incumbent of any office in connection with the affairs of any
religious or denominational institution or any member of the Governing
129
body thereof shall be a person professing a peculiar religion or belonging

to a particular denomination.
Under Article 16(1), the general rule laid down is that there shall be equal
opportunity for all citizens in matters of public appointment under the State, thereby
the university of Indian citizenship is emphasized. Article 16(2) prohibits
discrimination to any citizen in respect of appointment on grounds of religion, caste,
race, sex, and descent, place of birth or residence, should that appointment be under
the State. Article 16(3) and Article 16(5) are in the nature of exceptions. According to
Article 16(3), residence, qualifications may be made necessary in case of appointment
under the state for particular positions. The discretion, however, does not rest with the
state but within the powers of the Parliament. Article 16(4) empowers the state
Government to make reservation of positions in public employment for any backward
class. The state is empowered to declare a class of people as backward class. The
exceptions embodied in Article 16(5) seek to take out of the scope of the general
principle, the management of the affairs of any religious or denominational
institutions under any special law providing for the same (Kumar & Rani, 1996).
Right against Exploitation
The following expression constitutes the relevant portion in article 23 of the

Constitution:
Prohibition of traffic in human beings and forced labour: (1) Traffic in human beings
and „begar‟ and other similar forms of forced labour are prohibited and any
contravention of this provision shall be an offence punishable in accordance with law.
(2) Nothing in this Article shall prevent the State from imposing compulsory service
for public purposes and in imposing such service, the State shall not make any
discrimination on grounds only of religion, race, caste or class or any of them”.
Article 23 may be compared to the 13th Amendment of the Constitution of

America which abolished slavery. In our country, at the time of adoption of the
Constitution, there was no such practice like slavery in our country but there existed
large scale exploitation of forced bonded labour practiced by upper caste people upon
the unprivileged section of the society. A very cruel practice used to be imposed upon
the labour classes under which they would never find themselves free from the
130
bondage of labour. Such labors would continue to remain bonded up to generations.

No labor under such situation would apply for any kind of job without the consent of
his master. His status would amount to slavery in a way he would be treated
throughout his life. Such labors would never see freedom from their landlords.
Similar practice was carried out with women but the condition of women was
even worse, as the evil practice of devdasi, jogan and other practices in the different
parts of India such as in the Southern, Western parts and some of the temples in
Orissa mainly on the borders of Andhra Pradesh were unchecked and widespread. As
per the practice, women and young girls were exploited in terms of money or in the
name of religion in temples. Such women were seen as objects of lust till their youth.
In the shape of this Article the model of human dignity has been articulated overtly.
The expression „ Traffic in Human Beings‟ means disposal by way of sale or hire or
otherwise of human beings more or less in the same manner as man does with the
disposable articles.
To counter this, the Parliament enacted “The Suppression of Immoral Traffic

in Women and Girls Act, 1956”. This Act was renamed as “Immoral Traffic
(Prevention) Act 1956” and was substituted by Act. No. 44 of 1986 with effect from
Jan 26, 1987. The Act was enacted by the Parliament in pursuance of the ratification
by India of the International Convention of the Suppression of Traffic in persons and
of the prostitution by others, signed in New York in 1950 on May 9 (Kumar & Rani,
1996,pp.16-22).
Article 23 protects the individual not only against the State but also private
citizens. It imposes a positive obligation on the State to take steps to abolish evils of
“traffic in human beings” and beggar and other forms of forced labour wherever they
are found. Article 23 prohibits the system of „bonded labour‟ because it is a form of
force labour within the meaning of this Article. It is to be noted that the protection of
this Article is available to booth citizens as well as non-citizens.
In Sanjit Roy v. State of Rajasthan, (AIR1983 SC328) it has been held that
the payment of wages lower than the minimum wages to the person employed on
Famine Relief Work is violation of Article 23. Whenever any labour or service is
taken by the State from any person who is affected by drought and scarcity condition
the State cannot pay him less wage than the minimum wage on the grounds that it is
131
given them to help to meet famine situation. The State cannot take advantage of their
helplessness.
In Deena v. Union of India, (AIR1983 SC 1155) it was held that labour taken
from prisoners without paying proper remuneration was “forced labour” and violation
of Article 23 of the Constitution. The prisoners are entitled to payment of reasonable
wages for the work taken from them and the Court is under duty to enforce their claim
(Pandey, 2016).
Cultural and Educational Rights
Under Article 29 and Article 30, certain cultural and educational rights are
guaranteed. The Article 29 is stated as under:
Protection of Interests of Minorities:
(1) Any section of the citizen residing in the territory of India or any part thereof
having a distinct language, script or culture of its own, shall have the right to conserve
the same.
(2) No citizen shall be denied admission into any educational institution maintained
by the State or receiving aid out of State funds on grounds only of religion, race,
caste, language or any of them (Ghosh, 2012).
Hence under Article 15 & 16 sex is a prohibited ground of prejudice but not
under Article 29. On the other hand courts have resolved that sex is a foundation of
classification and cannot in total be prohibited. Irrespective of being favorable or
unfavorable to women special laws can be prepared in various kinds of cases. The
purpose shall be such orders should be as well as seem reasonable.
The Right to Constitutional Remedy
So long as there is a useful tool for enforcement of the right the declaration of
Fundamental Rights turns out to be in fructuous. Article 32 of Indian Constitution
offers a remedy for the implementation of the fundamental rights in the form of a
Writ. Thus it becomes easy for a distressed individual to seek a remedy through a
Writ. The nature of the remedy itself is fair and transparent to both the distressed
individual and the court.
132
The Writs mentioned in the Constitution are:
(1) Habeas Corpus:
This is a Latin term which literally means “You May Have The Body”. The
Writ was regarded in English as a foundation of the human freedom and the British
citizen insisted upon this privilege wherever he wanted whether for business or for
colonization. This is how it found a place in the Constitution of the United States
when the British colonies in America won their independence and established a new
State under the Constitution.
In India the power to issue a Writ rests only in Supreme Court and the High
Court. The Writ is a direction of the court to a person who is detaining another,
commanding him to bring the body of the person in his custody at a specified time to
a specified place for a specified purpose. The Writ has only one purpose, that is; to set
at liberty a person who is confined without legal jurisdiction; to secure release from
confinement of a person detained unlawfully. The Writ, in accordance with
circumstances, can be issued against the state and its authorities as well as private
individual or organization.
(2) Mandamus:
This is a Latin expression and means “We Order”. The Writ of Mandamus is an order
of the Supreme Court or the High Court commanding a person or a body to do that
which is his or its duty to do so. For instance an appointing authority is obliged to
issue a letter of appointment to a candidate if all the formalities of selection is over
and the candidate is declared fit for appointment to the post. But despite the
fulfillment of such condition, if the officer or the authority concerned refuses or fails
to issue the appointment letter, the aggrieved person has a right to seek the remedy
through a Writ of Mandamus.
(3) Prohibition:
A Writ of Prohibition is issued primarily to prevent a lower court from exceeding its
jurisdiction, or acting contrary to the rules of natural justice. For instance, a judge
may be restraint from adjudication upon a case wherein he is personally interested.
The Writ of Prohibition is a counterpart of the Writ of Certiorari and an aggrieved
133
person may make an application to the issue of both the Writs that is „Prohibition‟ and
„Certiorari‟.
(4) Certiorari:
It is a Writ which orders the removal of a suit from any court to another which is
superior to the first. It may be used before a trial commences to prevent an excess or
abuse of jurisdiction and to transfer the case for trial before a higher court. It may be
invoked after trial as well in order to quash an order which has been made without
jurisdiction or in defiance of the Rules of Natural Justice.
(5) Quo Warranto:
An application for Writ of Quo Warranto seeks an order from the Supreme Court or
the High Court to restrain a person from acting in an office to which he is not entitled.
It may also seek the office to be declared as vacant. What the court has to do is to
determine where there has been usurpation of an office of a public nature. For
instance, a member of a Municipal Corporation may, through an application of Writ
of Quo Warranto, challenge the authority of the Mayor, if he is of the opinion that the
Mayor was not properly elected.
Article 226: Powers of High Courts to issue Writs:
1) Notwithstanding anything in Article 32, every High Court shall have power,
throughout the territories in relation to which it exercises jurisdiction to issue to
any person or authority, including appropriate cases, any Government, within
those territories, directions, orders or Writs, including Writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of
them, for the enforcement of any of the rights conferred in Part III and for any
other purpose.
2) The power conferred by Clause (1) to issue directions, orders or Writs to any
Government authority or person may also be exercised by any High Court
exercising jurisdiction in relation to the territories within which the cause of
action, wholly or in part, arises for the exercise of such power, notwithstanding
that the seat of such Government or authority or the residence is not within those
territories.
134
3) Where any party against whom an interim order, whether by way of injunction or
stay or in any other manner, is made on, or in any proceeding relating to, a
petition under Clause(1), without
a) furnishing to such party copies of such petition and all documents in support
of the plea for such interim order;
b) giving such party an opportunity of being heard, makes an application to the
High Court for the vacation of such orders and furnishes a copy of such
application to the party in whose favour such order has been made or to be
counsel of such party, the High Court shall dispose of the application within
a period of four weeks from the date on which the copy of such application is
so furnished, whichever is later, or where the High Court is closed, on the
last day of that period, before the expiry of the next day afterwards on which
the High Court is open, and if the application is not so disposed off, the
interim order, shall, on the expiry of that period, or as the case may be, the
expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this Article shall not be in derogation of
the power conferred on the Supreme Court by Clause (2) of Article 32 (Kumar &
Rani, 1996).
Directive principles of the State Policy
The Directive Principles of State Policy constitute the fourth Part the Constitution and
are unique and novel in so far as they depict the ambitions and aspirations of the
fathers of the Constitution. It was laid down that these provisions are no enforceable
in any court but they are fundamental in the governess of the country and it was the
duty of the State to apply these principles in making laws.
The Constitution (44th Amendment) Act, 1978 included a new ruling

principle in Article 38 of the constitution. The directive principle gives the State
authority to exercise the powers to minimize disparities in earnings and endeavour to
abolish disparities in position, resources and prospects to the entire community
dwelling in diverse regions or occupied with diverse occupations. The new provision
focuses at equal opportunities to every person in entire scope of life. Hence it would
facilitate the State to obtain a national policy on wages and eradicate any kind of
inequality amongst the common masses in diverse phases of life.
135
In Air India Statutory Corporation v. United Labour Union (AIR 1997 SC 645)) a
three judges bench of the Supreme Court has explained the concept of social justice in
Article 38 as follows:
The concept of „social justice‟ consists of diverse principles essential for the
orderly growth and development of personality of every citizen. In that way „social
justice‟ is an essential component of justice in a broad vision. Justice acts as a
category of which social justice happens to be its variety. In order to alleviate the
pain and anguish of the deprived, destitute, or the dalits and the underprivileged
sections of the society and hence lift them up to the height of equality and to live with
majesty. The purpose of the „social justice‟ is to relieve the burden of the poor, to set
him/her free from the manacles of the society, to prosper his/her life in general in
every sphere of life, for better society. Therefore, the objective of „social justice‟ is to
acquire considerable degree of socio-political and economic equality in a long run.
The Constitution, consequently, consents the State to grant justice to entire society in
all features of human activity (Pandey, 2016).
Article 39: Certain Principles of Policy to be followed by the State:
The State shall, in particular direct the policy towards securing:
a) that the citizens, men and women, equally have the right to an adequate means of
livelihood;
b) that the ownership and control of the material resources of the community are so
distributed as best to sub serve the common good;
c) that the operation of the economic system does not result in the concentration of
wealth and means of production to the common detriment;
d) that there is equal pay for equal work for both men and women;
e) that the health and strength of workers, men and women, and the tender age of
children are not abused and the citizens are not forced by economic necessity to
enter a vocation unsuited to their age of strength;
f) that the children are given opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity and that childhood and youth are
protected against exploited and against moral and material abandonment.
The picture, so far as it relates to the Constitutional Provision of equal pay for
equal work both, men and women is concerned, it is very grim. According to the
136
“REPORT OF THE COMMITTEE ON THE STATUS OF WOMEN”, wage

discrimination is very much practiced in the form of fixing lower wage rate for
women as compared to their male counterparts. The minimum wages fixed for non-
skilled male workers is Rs.7 to 9 per day for 8 hours a day whereas the wages for
women for the same type of work and for the same period is Rs.4 to 7 per day (Kumar
& Rani, 1996).
Equal pay for equal work:
In accordance with Article 39 (d), an Act was passed by Parliament namely, the Equal
Remuneration Act, 1976. As per the Article 39 (d) instructions the Act enacted shall
judicially be brought into force by the court. The principle of “Equal pay for Equal
work though not a fundamental right” which was assumed by the Supreme Court in
Randhir Singh v. Union of India is undoubtedly a constitutional aim and, hence,
competent enough to bring into force by constitutional solutions under Article 32 of
the Constitution. Those who work on a daily basis are also subject to the principle of
“equal pay for equal work”. They daily wagers too can claim the rights provided to
the permanent employees in the same department where the latter work for the exactly
alike work.
On the other hand, the principle of “equal pay for equal work” has certain
issues in imposition and hence cannot be lead straight. This right is a supplement of
equality clause preserved in Articles 14 and 16 of the constitution. Therefore, it is
assumed that different scales can be fixed in the same cadre carrying out an identical
work. In State of A. P. v. V. G. Sreenivasa Rao, it was maintained that a higher scale
of pay agreed to a junior worker in the same cadre is not unlawful, neither a violation
of Articles 14, 16 and 39 (d); when such a decision is taken on rational basis.
In State of Haryana v. Rajpal Sharma, it was resolved that the private teachers in the
State of Haryana shall receive identical salary and dearness allowances as is received
by a government school teacher (Pandey, 2016).
Article 42:
Provision for just and humane conditions of work and maternity relief:
The State has right to construct a clause which shall protect just and humane
conditions of labour and for maternity relief.
137
Article 44: Uniform Civil Code for the Citizen:
The State shall endeavour to secure for the citizens a Uniform Civil Code
throughout the territory of India. The imposing of an identical Civil Code is a difficult
proposition in such a nation where the populace is consisting of diverse religion and
ethnic groups and varied traditions and customs are practiced. The passing of the
Hindu Marriage Act (1955) and the Hindu Succession Act (1956) are examples of
such efforts. However, on the question of giving maintenance to Shah Bano by the
Supreme Court in accordance with Section 125 of Cr P.C. (Act 2 of 1974) generated
sufficient opposition from a section of the society and the Government of India was
pressurized to make a separate Act for Muslim women. Nevertheless, the courts in our
country are granting maintenance applying Sec.125 Cr P.C to Muslim women in
appropriate cases (Kumar & Rani,1996).
In Sarla Mudgal v Union of India, the Prime Minister was enjoined by the
Supreme Court to revisit Article 44 of the constitution which urges the State to
preserve a uniform civil code because it is very crucial to safeguard the distressed and
to encourage national integrity and unity. In order to safeguard a uniform civil code
the court enjoined the Uniform government to file an affidavit by August 1995,
through the Secretary to Ministry of Law and Justice, mentioning the moves made and
guided.
The mentioned direction was signed when the Court was dealing with a case
in which a question was raised if a Hindu husband married as per the Hindu law, after
embracing Islam, not seeking separation from the first marriage, can sanctify a second
marriage. And the court maintained that such a marriage would be rendered unlawful
and the husband could be put on trial for bigamy under Section 494 of the Indian
Penal Code.
Four cases were registered related to this issue. For the public interest lawsuits
the foremost petition was filed by a society which is officially enlisted for the
wellbeing of women. Meena Mathur had filed the second petition, who argued that
out of her marriage in 1978 with Jitendra Mathur she became a mother of three
children and in 1988 Jitendra Maththur married second time with Sunita Narula (alias
Fatima) and both accepted Islam. In a third case Sunita who was also known as
Fatima after conversion, argued that Jitendra Mathur has reverted back to Hinduism.
138
Her complaint was that since she did not revert back to Hinduism so has no protection
under either of the personal law because her husband is now a Hindu. The fourth case
contended that one Gita Rani was married to Pradeep Kumar in accordance with
Hindu rites and traditions in 1988 but in 1991 it was revealed to her that her husband
eloped with another lady, Deepa and accepted Islam thereafter.
After reviewing such cases the Court maintained that a Hindu marriage shall
stand irrespective of the conversion of any of the spouses to Islam. Termination or
disintegration of Hindu marriage cannot automatically happen. The dissolution of
marriage can happen exclusively by a decree of divorce on any of the basis declared
in Section 13 of the Hindu Marriage Act. And the second marriage by a spouse
following conversion to Islam is invalid under Section 494 IPC and in such cases a
husband can be sued for bigamy.
In order to check the abuse of the Islam many countries like Syria, Pakistan,
Tunisia, Iran, Morocco and other Islamic countries codified their personal law. Taking
into consideration the same and after reviewing the above mentioned cases, as regards
the question of “Uniform Civil Code” The Division Bench including Kuldip Singh
and R.M. Sahai, J.J, maintained that all governments have proven unsuccessful in
executing the constitutional mandate of Article 44. Since a substantial people from
Hinduism had exploited Islamic law, which permits a husband to keep up to 4 wives,
by cunningly conversion to Islam after their first marriage to escape bigamy. Hence,
Kuldip Singh, J., asserted that Article 44 is based on the concept that there is no
necessary connection between religion and personal law in a civilized society, and
hence such matters can be regulated by law.
He further argued that, the way Sati system can be prohibited by law for
public interests the same way law can interfere in such practices which may
encourage polygamy, as has been done in European countries like America who
judicially acclaimed that such marriage system is dangerous to „public morals‟
irrespective of being allowed in religion. Justice Kuldip Singh in one of his verdicts
enjoined the government to bring into exercise the mandate of Article 44 in a case
wherein a petitioner was one of the above mentioned cases.
In Pragati Varghese v. Cyril George Varghese, a Christian woman sought

divorce on the grounds that her husband is involved in adultery and perpetrates
139
cruelty upon her and has deserted her. The bench of Bombay High Court has struck
down Section 10 of the Indian Divorce Act on the basis that it infringes the basic
rights of a Christian woman to survive under Article 21. The bench of court also
declared the Sections 17 and 20 void which provided that a dissolution or divorce
approved by District Court needs to be established by a bench of 3 judges of the High
Court.
In Noor Saba Khatoon v. Mohd. Quasim, (AIR1997 SC3280) wherein a

divorced woman was given right, by the Supreme Court, to claim maintenance from
her husband for her children until they grow. This judgement was announced as per
both the Muslim Personal Law and Section 125 of the Criminal Procedure Code. This
right was not restricted, affected or controlled by divorced wife‟s right to claim
maintenance for two years from the birth of children as per Section 3(I)(B) of the
Muslim Women (Protection of Rights on Divorce) Act, 1986.
In Denial Latif v. Union of India, (AIR2001 SC 3262) a bench comprising of

five judges of the Supreme Court maintained the constitutional validity of Muslim
Women Act 1986 and declared that a woman can claim her right to maintenance even
after the iddat period as per the 1986 Act. The court held that a Muslim husband is
legally responsible to give sensible and logical provision for future of the divorced
wife, which undoubtedly is applicable after the iddat period under Section 3 (I) (a) of
the Act. Those who have not remarried even after the iddat period the Act gives her
right to pursue her case of maintenance in proportion to the property which she may
acquire after the death of her husband as per the Muslim Law. In any case if the
relatives are found incapable of providing maintenance the Magistrate may direct the
State Muslim Wakf Board to pay such maintenance (Pandey, 2016).
Various laws relating to women’s protection
Hardly few laws connected with crimes against women such as rape, offenses related
to marriage, causing miscarriage, assault on women‟s modesty, abduction, etc. were
prevalent in the pre-Independence colonial period. Protection of women was restricted
to Sati prohibition, safeguarding of laws or certain other laws such as enabling widow
remarriage, etc. and many laws connected to property, adoption, divorce, etc. adopted
by social legislation were profoundly donated to male population. The likings and
interests of males of the society were given preference while observing these laws;
140
additionally the status of women was considered inferior to men so in all respects
women were subjected to inferior treatment (Baruah, 2004).
Legislation relating to women before independence
Prevention of Sati:
Sati or the burning of the widow on the funeral pyre of the husband was the custom
practiced extensively in Rajasthan, among Rajput princes, and also among the
Brahmins in Bengal, and to some extent in M.P. and other Northern states. To abolish
these practice social reformer, Raja Ram Mohan Roy began the active campaign
against sati. As a result of his efforts in 1829 Lord William Bentinck , an enlightened
Governor General , passed the Prevention of Sati Act, according to which any one
abetting the commission of sati would be guilty of culpable homicide and any one
taking part in compelling a widow to commit sati would be guilty of murder.
Widow Remarriage Act:
Another revolutionary social legislation of this period is the Hindu Widow

Remarriage Act of 1856. It legalized the marriages of widows. It also declared the
issue of such marriages as legitimate.
Female Infanticide Prevention Act:
In 1870 legislation was passed prohibiting the custom of murder of female infants by
some upper castes Hindu communities by instituting penalties and sentences
throughout all jurisdiction of British India.
The Special Marriage Act of 1873:
This act provided for marriage irrespective of differences in religion. This Act did not
provide for inter-caste marriages. This Act was amended in 1923 in order to permit
the inter-caste marriages.
The Age of Consent Bill 1891:
Another important social legislation in pre-independence India was against child

marriage.
141
Hindu Women’s Right to Property, 1937:
One of the most important enactments to give better rights to women with regard to
property was the Hindu Women‟s Right to Property Act, (1937) passed due to the
efforts of Deshmukh (Jayapalan, 2001).
Laws in Post-Independence period
There was a sudden increase in enactment of laws since post-Independence. The laws
included criminal, civil and social as well as revamping to certain old laws to
safeguard and improve the status of women. It happened because of the provisions in
our constitution that stresses on equality for all in all spheres, further more special
protection to women and children as part of State Policy. The process of legislation
intended to implement philosophy behind the constitution was stimulated by the fresh
political and social awakening meant for women‟s causes, to which entire human
population submitted their contribution (Baruah, 2004).
The various legislative measures that were taken for the protection of
women‟s rights and to affirm and to promote the principles of equality of women and
to take care of their special needs may enumerated as follows:
(i) Special Marriage Act, 1954: This Act legalized marriage between people of
different religions and castes. It enforced monogamy and allowed divorce under
certain specified conditions.
(ii) The Hindu Marriage Act, 1955: This Act applied to all Hindus except those
living in Jammu and Kashmir. It nullified all previous acts related to Hindu
marriage. It legalized all forms of Hindu marriage which were prevalent. It gave
equal rights to both men and women to marry and seek divorce. It laid down
conditions of marriage, conditions for void of marriage and conditions for
judicial separation. It also specified conditions for divorce.
(iii) Hindu Minority and Guardianship Act, 1956: According to it on father‟s

death the mother is the guardian of the child. If both die without naming a
guardian then the court would appoint one to take care of the child‟s property.
(iv) The Hindu Succession Act, 1956: This Act removed all barriers in the path of
women‟s inheritance. It gave equal succession rights to men and women. Same
142
rules of succession were to apply to all Hindus without any distinction. It was
passed to amend the previous act regarding women‟s property rights.
(v) The Immoral Traffic (Prevention) Act, 1956: Its main aim was to prevent
prostitution and immorality. According to it prostitution is a punishable crime.
(vi) Dowry Prohibition Act, 1961: The cruel practice of Dowry has become a deep-
rooted social malady leading to the economic exploitation of women. Dowry has
been defined as any property or valuable articles given either before or after
marriage, by one party to the other as a necessary condition of marriage. It does
not include gifts given at the time of marriage, which belong to the bride. Those
who take or give dowry are liable to be fined up to 5000 rupees or jailed for six
months.
(vii) The Maternity Benefit Act 1961: The Act gives the right to maternity leave to
working women. It provides 12 weeks maternity leave with wages to women
workers and other sundry benefits.
(viii) The Equal Remuneration Act, 1976: This Act has enforced equal payment for
men and women for same work. Of course, this does not apply to unorganized
sector (Rahman, 2005).
Special Initiatives for Women
National Commission for Women: this statutory body was organized in January 1922
by the government with a precise commission to examine, analyze and supervise all
matters regarding the constitutional and legal protection for women, re-examine the
active legal legislation to propose modification (if necessary), etc. Another initiatives
taken was 1/3 of the total seats should be reserved for women in all elected
offices in local bodies whether in rural or urban areas (73 rd Constitutional
amendment, 1992). In 1991-2000, the National Plan of Action for the Girl Child
has been introduced to guarantee survival, protection and development of the girl
child. In order to empower women, the National Policy for the Empowerment of
Women (2001) has been passed in 2001.
Moreover various Women specific legislative measures have also been taken
for the protection of women‟s rights. These are- The Guardians & Wards Act,1860;
The Christian Marriage Act,1872; The Indian Evidence Act,1872;The Married
143
Women‟s Property Act,1874; The Legal Practitioners(Women) Act,1923;The

Workmen‟s Compensation Act,1923;The Indian Succession Act, 1925; The Child
Marriage Restraint Act,1929;The Payments of Wages Act,1936; The Muslim Personal
Law (Shariat) Application Act, 1937;The Factories Act,1948;The Minimum Wages
Act,1948; Employment State Insurance Act, 1948;The Plantation Labour Act,
1951;The Cinematograph Act,1952;The Special Marriage Act,1954;The Hindu
Marriage Act,1955; The Hindu Adoptions and Maintenance Act,1956; The Hindu
Minority and Guardianship Act,1956; The Hindu Succession Act,1956; The Immoral
Traffic (Prevention )Act, 1956; The Dowry Prohibition Act, 1961; The Maternity
Benefit Act,1961(amended in 1995); The Beedi and Cigar Workers(Conditions of
Employment) Act,1966; The Foreign Marriage Act,1969; The Indian Divorce
Act,1969; The Medical Termination of Pregnancy Act,1971; Code of Criminal
Procedure,1973; The Bonded Labour System(Abolition) Act,1976; The Equal
Remuneration Act,1976; The Contract Labour (Regulation and Abolition) Act,1979;
The Inter-state Migrant Workmen (Reg. of Employment Conditions) Act,1979;The
Devadasi (Prohibition of Dedication) Act, 1983; The Family Courts Act,1984;
Juvenile Justice Act, 1986; The Indecent Representation of Women (Prohibition) Act,
1986; The Child Labour (Prohibition and Regulation) Act,1986; The Commission of
Sati (Prevention) Act,1987 ; National Commission for Women Act,1990; The Infant
Milk Substitutes, Feeding Bottles and Infant Foods ( Reg. of Production, Supply and
Distribution) Act,1992; The Pre-natal Diagnostic Technique( Reg. & Prevention of
Misuse) Act,1994 (Kaushik,2007).
It will not be feasible to deal with all these Acts in detail in this chapter.
However, efforts have been made to focus below on a few of those Acts which are
thought pertinent and are intended for the protection of women‟s rights.
The Maternity Benefit Act,1961 (amended in 1995)
The Maternity Benefit Act was passed by the Indian Parliament in 1961. The Section
4 of this Act states that it is illegal if any employer knowingly employs a woman in
any establishment during six weeks immediately following the day of her delivery or
of her miscarriage. Moreover, one month‟s period is also regarded as special period,
immediately preceding this period of six weeks, because in this time the woman is
supposed to be provided with some statutory safeguards. Sub-section 3 of Section 4
144
prohibits the employer from making the pregnant woman do any work of an arduous
nature or which involves long hours of standing or which in any way is likely to
interfere with her pregnancy or the normal development of the foetus or is likely to
cause her miscarriage or otherwise affect her health.
Section 5 of the above Act obliges the employer to compensate the pregnant
woman; maternity benefits the same amount against the daily wages that she could
have earned during the above period. The period of 12 weeks is entitled to maternity
benefits “that is, six weeks up to and including the day of her delivery and six weeks
immediately following the delivery”. If a mother dies her maternity benefits end but
in a case if she leaves her child behind, the maternity benefits are paid to the child for
a period of six weeks. Section 8 of the above Act, entitles a pregnant woman, who is
already entitled to maternity benefits, to a medical bonus of Rs.25 /- to be received
from her employer in cases where the employer does not provide for any pre- natal or
post-natal care in the place of employment. In cases of miscarriage, the maternity
benefit, at the rate of the woman‟s current wages, is to be paid to her for a period of
six weeks immediately following the day of her miscarriage.
As per the section 10 of the Act, a woman can take a leave from the services
with salary at the rate of the maternity benefit for a maximum period of one month, if
a woman undergoes sick during pregnancy, delivery, premature birth of a child or
miscarriage. Moreover, when a woman returns back to job she is entitled to two extra
nursing breaks for feeding her child, up to a period of fifteen months.
The Act has a very fair and upright system of supervising the proper
functioning of the Act, and for this purpose it provides the grant of appointment of
inspectors whose job is to watch and supervise such cases and if any employer
contravenes any of the provisions of the Act, a stringent punishment is imposed upon
him which comprises of imprisonment up to 3 months or with fine of Rs. 500. Some
labour legislation also provide for certain conveniences peculiar to women. Section 66
of the Factories Act (1948) prohibits women from working in night shift between 7.00
p.m. and 6.00 a.m. Similarly Section 18 of the Tamil Nadu Catering Establishments
Act (1958), applicable to all hotels, restaurants and canteens, prohibits women being
employed between 9.00 p.m. and 5.00 a.m. section 25 of the Plantations Labour Act
(1961), applicable to Tea, Coffee, Rubber and other plantations, prohibits women
145
from being employed between 7.00 p.m. and 6.00 a.m. Similar provisions have been
made in Beedi and Cigar Workers(Conditions of Employment) Act (1966); Mines Act
(1952); Contract Labour ( Regulation and Abolition) Act (1970) and Tamil Nadu
Handloom Workers (Conditions of Employment and Miscellaneous Provisions) Act
(1981). In some of these enactments, crèches have to be maintained when a prescribed
number of women are employed (Jesudurai, 1991).
The Equal Remuneration Act, 1976
Certain legislations have been passed for implementing the Directive Principles and
the Fundamental Rights enshrined in the Constitution. Of significant importance to
women, among these legislations, is the Equal Remuneration Act (1976). This Act has
been passed to accommodate the installment of equivalent compensation to men and
women workers and for the counteractive action of separation on the grounds of sex
against women in the matter of work and for matters associated therewith or
coincidental thereto. Under this Act, the employer needs to provide equal payments to
men and women workers for a similar work or work of a comparable sort. The Act
likewise provides that there might be no segregation, while recruiting men and
women workers.
With the end goal of giving expanded employment break to women, the State
Government is approved to constitute at least one Advisory Committees to exhort the
Government in regards to the degree to which women might be employed in these
works. The advisory Committee comprises of at least 10 people to be selected by the
appropriate Government of which one half ought to be women. The Act additionally
makes arrangement for hearing and deciding cases and objections emerging out of the
execution of this Act. The State Government is approved to choose inspectors with
the end goal of making examinations in the matter of whether the arrangements of this
Act are consented to by the employers. Under Section 10 of the above Act,
infringement of the above Act is made culpable with fine which may stretch out to Rs.
1000/ - in some cases and Rs. 5000/ - in some different cases
The Immoral Traffic (Prevention) Act, 1956
The Suppression of Immoral Traffic in Women and Girls Act was passed in 1956.
This Act is expected to stifle shameless traffic in women and girls. The purpose of
this Act is to curb immoral human trafficking of women and young girls. Any house
146
utilized for brothel or a brothel itself are prohibited to own and violation of which is
considered punishable under Section 3 of the same Act; leading to further punishment
for at least one year imprisonment with a fine of up to Rs 2000. In the same way if
any adult person (above 18 years) is found running such a centre to make his
livelihood and earn from the prostitutes, he/she is liable to imprisonment with a fine
of up to Rs. 1000 as punishment. Furthermore, any sort of involvement such as
procuring, including or taking women or girls for sexual exploitation for money or
property is considered punishable with scrupulous imprisonment for one year‟s
duration with a fine of up to Rs. 2000. Subsequently for other convictions huge fines
are entailed. Corrective institutions are to be set up and in cases where the courts feel
that the woman or the girl need not be sent to the regular prison, they have the option
to send them to these corrective institutions for a maximum period of five years. The
magistrate has the authority to direct the police to bring a back a woman or girl under
the age of 21who is being exploited through prostitution, and further a magistrate can
publish an order to produce the woman before him. In case the police makes it to
catch the girl or woman and brings them to the magistrate, the latter ought to proceed
against her in the court of law as per the provisions of above Act.
Extra legislations have been passed by the State Government as they have
been seeing the prostitution acutely. For example, in Tamil Nadu, any violation of the
Suppression of Immoral Traffic in Women and Girls Act, has been brought within the
purview of preventive detention, by a special enactment, namely, Tamil Nadu
Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas,
Immoral Traffic Offenders and Slum Grabbers Act, 1982(Tamil Nadu Act 14 of
1982). According to this Act, if immoral traffic offenders, when they are engaged in
any of the activities as immoral traffic offenders, act adverse to the maintenance of
public order, they could be preventively detained by the State Government, either
under Section 3(i) or under 3 (ii) of the Act by order of the District Magistrate or the
Commissioner of Police, if empowered under the above sub-section. This detention so
made is subject to the approval of the State Government, the opinion of the Advisory
Board, constituted under the Act and the final confirmation by the State Government.
The maximum period of detention would be a period of one year (Jesudurai, 1991).
147
Family Law (Personal)
Family law incorporates the laws identifying with marriage, separation, succession,
inheritance, maintenance, guardianship, adoption and other such related matters. It is
yet common that these matters extensively influence gender justice. Frequently,
women have been at the receiving end on matrimonial disputes, as they, by and large,
have less standing force in lawsuit. Moreover, the general public has put a few
handicaps on them at partition (Divorce). In the field of substantive rights and duties
upon marriage, the relation based personal law of parties still plays significant part.
Despite the fact that the Constitution of India (Article 44) commanded the State to
receive a Uniform Civil Code, yet progressive governments did not give the issue the
need and significance it merited. In this manner, individual (family) law keeps on
working in many respects to the hindrance of women in general. The individual laws
of the religious groups oppress women. Under the Indian Divorce Act of 1869, a
Christian woman may request divorce only on account of spousal abuse and on
account of specific classifications of infidelity; for a Christian man, infidelity alone is
adequate. In 1997, the Mumbai High Court perceived abuse alone as adequate
justification for a Christian lady to get a separation. Under Islamic law, a Muslim
husband may divorce his wife, suddenly and unilaterally; there is no such
arrangement for women. Islamic law, additionally, permits polygamy (under which a
man may marry up to four women) yet restricts polyandry (under which a lady are not
permitted to have numerous husbands).
Hindu Specific Legislation
i. Hindu Marriage Act, 1955;

ii. Hindu Minority and Guardianship Act, 1956;
iii. Hindu Adoptions and Maintenance Act, 1956;
iv. Hindu Succession Act, 1956 and
v. The Guardians and Wards Act, 1890 and law took its shape after four
amendments made in 1956.
Mohammedan- Specific Legislation
i. Muslim Women (Protection of Rights on Divorce) Act, 1986;

ii. Mohammedan Personal Law and
iii. Maintenance Rights of Muslim Women. 1989.
148
Common Legislation
i. Special Marriage Act, 1984;

ii. The Family Courts Act, 1984 and
iii. Code of Criminal Procedures, 1973
iv. Dowry Prohibition Act, 1993 (Kaushik, 2007).
Indian Penal Code, 1960
Women empowerment, prompting to an equivalent economic and social wellbeing in

the community hinges, in addition to other things, on their right to hold and acquire
property. A few changes have occurred, including an amendment on equivalent share
of daughters in their property. Yet, identical status stays deceptive for women in
India. This is, especially, so in connection to laws administering the legacy or
progression of property among the individuals from a joint Hindu family. The Hindu
Succession Act gives approach legacy rights to Hindu women; however wedded
young girls are rarely given a part in parental property. Islamic law perceives a lady's
privilege of legacy yet particular that a girl's share ought to just be one-half of that of
a male son. Under numerous tribal land systems, eminently in Rajasthan, Madhya
Pradesh, Chattisgarh and Bihar, tribal women don't have the privilege to own a land.
Various other laws, identifying with the possession of assets and land, accord women
less power over land utilization, retention, or deal.
With establishment of Family Court (FC), women, everywhere, were given

respite from the difficulty of getting to equity through general court procedures,
particularly in matters identified with domestic dispute, divorce, maintenance,
custody, and so on nonetheless, FCs have been constituted in chosen regions.
Therefore, in different areas, the family matters are arbitrated in the regular district
courts. The circumstance is, even, more pitiable in these courts. All courts at the
region level are in poor situation, infrastructure wise, particularly in giving
fundamental offices to defendants, judges and court staff, record keeping, court to
lead court procedures, and so on. In spite of the fact that legal advisors are not
permitted in the family courts, all defendants take the services of legal counsel and,
regularly, their counsels introduce their case in the court. Legitimate complexities of
filing applications and affidavits make it compulsory for the prosecutors to employ
legal help, making access to justice to poor women troublesome. The judges in the
149
family court are proportional to the level of Sessions Judge in the district and,
ordinarily, see it as a punishment posting since FCs practice practically zero control
over the enforcement agency. This disappointment is obvious while dealing with
cases in the family courts. In addition, there is lack of judges at all levels of judicial
system; the population ratio is less than one-tenth of that in many progressed
democratic societies. Even this number is especially distorted, as trial courts are
particularly depleted (as cited in Kaushik, 2007).
Marriage
Generally Indian marriages are governed by four major sets of personal laws: Hindu,
Muslim, Christian and Parsee. Hindu law envelops all those that do not fall
particularly in the remaining three. An anti-woman law-giver and sage, Manu is
considered as the pioneering figure whose biased teachings serve as a source to Hindu
Personal law. His proclamations stressed on suppression of women. He believed that
the fate of a woman is to serve and be under total control of men within the four walls
of a house. Various other laws have been passed to defend the institution of marriage.
Special marriage Act, 1954
The Special Marriage Act provides for a civil marriage without any religious
significance. Two persons of any religious persuasion, provided they are not within
the degrees of prohibited relationship or are not married to any other person under any
other religious ceremony and have both reached the age of the majority may be
married under the Act. For a marriage to be solemnized under this Act, the parties
must give notice in writing to the Marriage Officer of the District in which at least one
of the parties has been living for not less than thirty days. This notice is displayed in
some prominent place in the Marriage Registry Office. The marriage is to be
performed and registered not before thirty days but within three months.
The marriage is registered by the Marriage Officer in the presence of three

witnesses recorded. A certificate of marriage is then issued to the couple.
Any person may object to the marriage being performed during the thirty days
period of notification on grounds that the marriage would be illegal on grounds
covered by the Act. Only upon receipt and verification of such objection may the
Magistrate Officer refuse to perform the marriage. In verifying this objection, the
150
officer has full powers, equivalent to a court, to demand evidence and witness and
make suitable enquiries (Goel, 2004).
Hindu Marriage Act, 1955
Both the spouses as well as the children are influenced from the rights emerging from
marriage, hence are considerable. Hindu Marriage Act 1955 governs Hindus and in an
issue of conditions essential for a Hindu marriage, the Law does not discriminate the
opposite sexes. Neither party should have a spouse living at the time of marriage. The
bridegroom should have completed the age of 18 years and the bride, the age of 15
years at the time of marriage. Similarly, in the matter of conjugal rights, Section 9 of
the Hindi Marriage Act gives equal right to the husband and the wife to seek
restitution. Judicial separation under Section 10 of the above Act can also be obtained
by either the husband or the wife on the same grounds. Section 13 of the Act enables
either the husband or the wife to obtain divorce on certain grounds which are common
to both the parties. However, sub-section 2 to Section 19 gives an additional ground to
the wife to seek divorce if the husband already has a wife living, following a marriage
solemnized before 1955. The wife could also seek divorce, if after the solemnization
of her marriage; the husband has been guilty of rape or sodomy. Thus the Hindu
Marriage Act, on whole treats the husband and wife alike.
The Indian Divorce Act 1869
This Act relates to Christian women but does a partial treatment to both men and
women. A husband can seek divorce on a condition if he proves his wife guilty of
adultery, under Section 10 of the Act. Nonetheless there is greater flexibility for
women in seeking divorce, for example if she finds her husband guilty of infidelity, or
of bigamy, rape case, or if his husband changes his religion and remarriages.
However, the law remains same for both the partners as regards the circumstances
under which both the applicants request divorce. Considering the fact that a woman
may not always have a separate income, either to finance a litigation or to sustain
herself during the pendency of the litigation, Section 36 of the above Act provides
that pending disposal of any proceedings under the Indian Divorce Act, interim
alimony should be paid to the wife by the husband, if she asked for it.
Muslim women stand on an entirely different footing as far as their right in

marital homes is concerned. To them, marriage is not a sacrament as in the case of the
151
Hindus and the Christians. Marriage is essentially a contract to promote normal

family life and legalize children. Hence what is controlled polygamy; while a woman
can have only one husband at a time, a Muslim man can have four wives at a time. In
the matter of divorce, the lot of the Muslim wives is pitiable. The husband can divorce
the wife unilaterally, without going to a court of law or even by creating any record,
but merely by pronouncing orally the talaak on her, even in her absence. He need not
assign any reason as to why he is pronouncing the talaak. It is sufficient if the talaak
is communicated to the wife at some time or other. The divorce takes effect at the
moment the talaak is pronounced and not when it is communicated to the wife. Since
no reason need be assigned for pronouncing the talaak, it places the Muslim wives in
a state of insecurity. Education, good moral life, deep religious convictions, do
minimize frequent pronouncements of the talaak, but these conditions do not exist in
all families. So long as the law gives the Muslim husband the right to pronounce the
talaak unilaterally, the insecurity of the wife remains.
Until 1939 when the Dissolution of Muslim Marriage Act was passed the wife
did not have right to divorce her husband, as husbands do have. Later legislation
provided the Muslim woman right to seek divorce yet she was not given right to
pronounce talaak like husbands can, however, she is given right to go court to get
divorce. According to the Section 2 of the Act a Muslim woman has right to get a
court order for separation from the husband on a condition if his whereabouts are
unknown to her for a period of four years. Furthermore, if the wife has been deserted
or neglected or if the husband has been proved unsuccessful to provide maintenance
for a period of two years; or if the husband for his grave crimes has been punished to
imprisonment for a period of 7 years by the court of law, the law enables the wife to
get a decree from the court for dissolution of marriage. The same dissolution of
marriage can be sought by a wife if the husband has been unsuccessful in performing
his marital obligations for a period of three years or if he has any kind of disease and
continues to be suffering from, such as, impotency, leprosy or venereal disease or has
been insane for two years, etc. Hence there are sufficient laws which enable a Muslim
woman to get divorce legally. One peculiar feature about the Muslim personal law is
that a sum of money or other property known as dower or mehar is required to be paid
by the husband to the wife in consideration of the marriage. The dower is fixed either
before or at the time of marriage. This dower is usually supplied in two parts- prompt
152
dower which becomes payable on demand, and deferred dower which becomes
payable on dissolution of the marriage by death or divorce.
Maintenance Rights
The right of women to maintenance is also a very valuable right since not all women,
either as daughters or as wives, has independent means of livelihood. The Hindu
Adoption and Maintenance Act of 1956 give the right to a Hindu widowhood
daughter-in-law, children and aged parents to be maintained. The husband has to
maintain the wife. The father-in-law has to maintain the widowed daughter-in-law and
a Hindu is bound to maintain his or her legitimate or illegitimate children and his or
her aged or infirm parents. The limitations to these rights are found in Section 18, 19
and 20 of the above Act. Muslim wives also have a right to be maintained by their
men. These rights accrue under the personal law and are enforceable in the courts.
Besides these rights, Section 125 of the Code of Criminal Procedure 1974
provides a summary and a quick remedy to indigent persons to get maintenance.
Under Section 125 of the code of Criminal Procedure, a wife who is unable to
maintain herself, minor children, whether married or not or parents, unable to
maintain themselves, can apply to a court of law for maintenance. This is a very cheap
and speedy remedy and though there are difficulties in collecting the amount ordered
by the court, much relief is generally sought for by the indigent persons. It is mostly
abandoned wives who seek remedy in this way and are really benefitted by it. Even a
divorced wife is entitled to the claim of maintenance from her erstwhile husband if
she does not re-marry. The above speedy remedy has been taken away from Muslim
divorced women by the Muslim Women (Protection of Rights on Divorce)Act
1986(Jesudurai, 1991).
The Untouchability (offences) Act 1955:
This law has abolished the practice of untouchability and declared it as a cognizable
offence and same was applied throughout the country. The law also relieved the
people of untouchable castes, as it removed all disabilities placed on them. Such
people were sanctioned to avail all the facilities and enter all the public places that
were earlier prohibited for them. Certain level of restriction was further imposed to
check whether the law functions properly or not. Any person found practicing
unsociability of any sort was punished to six months imprisonment to jail with a fine
153
of up to Rs. 500. Despite all such restrictions untouchability was still exercised,
particularly in villages hence a much stricter law was passed in 1976, viz. The Civil
Rights Act 1976. According to it any case of untouchably could be directly handled
by the police, without any complaint, and offender could be put in jail or fined. Many
other strict orders were also included with a view to put an end to this inhuman
practice. This is a revolutionary step taken by the Government.
The Hindu Minority and Guardianship Act 1956:
According to this act on father‟s death the mother is the guardian of the child. If both
die without naming a guardian them court would appoint one to take care of the
child‟s property.
Hindu Adoption and Maintenance Act 1956:
According to this act both men and women who are mentally fit and above 18 years of
age can adopt a child, either boy or girl. If married the consent of spouse is necessary.
The child to be adopted should be Hindu and below 15 years of age, once adopted the
child cannot return to original family. This act also gave details about maintenance to
dependents.
Dowry Prohibition Act 1961:
Dowry has defined as any property or valuable articles given either before or after
marriage, by one party to the other as a necessary condition of marriage. It does not
include gifts given at the time of marriage, which belong to the bride. Those who take
or give dowry are liable to be fined up to 5000 rupees or jailed for six months. This
act was amended in 1986. Now it is known as the Dowry Prohibition (Amendment)
Act, 1986 (as cited in Rahman, 2005).
In order to eliminate the evils of dowry, the Dowry Prohibition Act was
passed, as early as 1961, making the giving and taking of dowry punishable with
imprisonment which shall not be less than six months, but which may extend to two
years and with fine. Offences under this act were originally non cognizable in the
sense that the police could not suo motu take up investigation and initiate prosecution
in the courts. Finding that the Act did not have any impact on society, certain
substantial amendments were made in 1984, making the offences under the Act,
subject to certain limitations, cognizable. Presents given to the bride or to the
154
bridegroom at the time of the marriage without any demand for them have to be
entered in lists to be maintained according to the rules under the Act. There is also a
provision to Section 3 of the Act to the effect that when presents are made on behalf
of the bride, such presents should be of a customary nature and the value thereof not
excessive, having regard to the financial status of the person who makes the presents.
Complaints can be instituted for offences under this Act either by the police or by a
person aggrieved by the offence or the parent or other relatives of such aggrieved
person and also by any recognized welfare institution or organization (Jesudurai,
1991).
Marriage laws Amendment Act 1976:
This Act was passed in 1976 to amend the acts of 1955 and 1954. This gave the right
to girls who were married off as minors, to annual the marriage.
Panchayat Vidhi Adhiniyam 1994:
According to this act many amendments were made in functions and scope of the
Panchayat. An important clause was the reservation of 33 per cent seats for women in
village Panchayat post. This act was passed in accordance with the 73 rd Amendment
to the Constitution in 1993 (as cited in Rahman, 2005).
Property Rights
With respect to inheritance of property, the right to hold property and the right to deal
with one‟s property, depend upon the personal law which applies to a particular
woman. The Hindus are governed under the Hindu Succession Act, the Christians by
the Indian Succession Act and the Muslims are governed by their own personal law.
In the past, a Hindu woman was not considered a person capable of acquiring
and owing property. Even if she received property from her husband, she was to enjoy
it only during her life-time and after her deaths; it went not to her heirs, but to her
husband‟s heirs. She could enjoy the usufruct of the property, but could not alienate it
except under very difficult conditions.
All these concepts have undergone a radical change. The Hindu Succession
Act that was passed in 1956 has conferred extensive rights to women in the matter of
acquiring and holding property. The property acquired by the father is generally
called his self acquired property. Over this property, the daughter gets the same share
155
as the son and has the same right of alienation which the son has. However, in
ancestral property, that is, property which the father has inherited from his lineal
ascendants, and in property acquired from ancestral nucleus, the daughter is denied a
share. The son acquires the right to the above properties by birth. Even when the
father is alive, the sons have an equal share along with the father in the ancestral
properties. In this field the law makers had felt that there should be a discrimination
against women.
Section 14 of the Hindi Succession Act brought about another drastic change
in the nature of women‟s right to property. This Section makes any property
possessed by a female Hindu her absolute property, to be held and enjoyed by her in
the same way in which her male counterpart can. By and large, though there are some
discriminations against women in the matter of inheritance, such discriminations have
been maintained, apparently in the larger interests of society.
Christian women get their rights under the Indian Succession Act, 1925. An
analysis of that Act indicates that Christian women enjoy greater privileges than
Christian men in the matter of inheritance. Section 35 of the Act lays down that a
husband surviving his wife has the same rights in respect of her husband‟s property, if
he dies intestate. Similarly, sons and daughters are treated alike in the matter of
inheritance. Thus we see that as a general principle, there is no discrimination against
women at all.
Under the Mohammedan law, women are given certain shares in the property
depending upon the number of heirs that are left behind. The shares the daughters or
the widows get are less than what the sons get. However, in the manner of enjoyment
of the properties, there is no discrimination between the two sexes (Jesudurai, 1991).
India and CEDAW
The Convention on the Elimination of All Forms of Discrimination Against Women

(CEDAW), was adopted by the General Assembly on 18th December, 1979. The
purpose of this Convention was to end the discrimination that denied or limited
women, equality in political, economic, social and civil regions (Anand, 2015).
India has ratified the Convention on the Elimination of All Forms of

Discrimination Against Women (1979). Ratification of the Convention obliges India
156
to honour the obligations imposed by the Convention. In Madhu Kishwar v. State of

Bihar, it was held by the Supreme Court that the Convention on the Elimination of
All Forms of Discrimination Against Women is an integral scheme of the
Fundamental Rights and the Directive principles. Article 2 (e) of CEDAW enjoins the
State Parties to breathe life into the dry bones of the Constitution, International
Conventions and the Protection of Human Rights Act, to prevent gender-based
discrimination and to effectuate right to life including empowerment of economic,
social and cultural rights. Article 2(f) read with Article 3, 14 and 15 of CEDAW
embodies concomitant right to development as an integral scheme of the Indian
Constitution and the Human Rights Act. It is therefore desirable that the enabling
legislature is enacted to give legal effect to the Convention so that discrimination
against women which exits due to legal, social and cultural traditions is eliminated.
Rights provided therein will remain meaningless to a large number of women due to
their poverty, ignorance and illiteracy.
India while ratifying the Convention made two declarations and a reservation.
The first declaration reads: with regard to Articles 5(a) and 16 (1) of the CEDAW, the
Government of the Republic of India declares that it shall abide by and ensure those
provisions with conformity with its policy of non-interference in the personal affairs
of any community without its initiative and consent. The second declaration States
with regard to Article 16(2) of CEDAW, the Government of the Republic of India
declares that though in principle it fully supports the principle of compulsory
registration of marriage, it is not practicable in a vast country like India with its
variety of customs, religions and level of literacy. In addition to the above
declarations, India made a reservation by stating that it does not consider itself bound
by paragraph 1 of the Article 29 of the Convention which relates to settlement of
disputes through arbitration.
It is to be noted that the declaration relating to compulsory registration of

marriage has become meaningless in view of the decision of the Supreme Court in
Seema v. Ashwani Kumar, wherein the Court held that „marriages of all persons who
are citizens of India belonging to various religions should be made compulsory
registrable in their States, where the marriage is solemnized. The Court asked the
States to notify the registration within three months. An official shall be appointed
157
under the rules to register marriages. As and when the Central Government enacts a
comprehensive statute, the same shall be placed before the Supreme Court for
scrutiny. Counsel for the States shall ensure that the directions are carried out
immediately. Later, the Supreme Court on October 25, 2007 held for the compulsory
registration of marriages in respect of all persons who are citizens of India even if
they belonged to various religions. It is to be noted that equality of status has been
guaranteed to women by the Constitution, it is a myth to millions of women that they
are the victims of various kinds of violence within houses, at work places and in the
educational system. They are still the subject of suppression. Tall promise for
improving the plight of women was made during 2001 which declared as „Women‟s
Empowerment Year‟ but they were far from being fulfilled. National Policy for the
Empowerment of Women was placed before a group of ministers but the policy has
not been adopted. Seminars were organized on a number of issues affecting the
conditions of women, no improvement has been made. They are being discriminated
as compared to brothers at home and their male colleagues at work. India has given
equal status to women under its Constitution under Article 14 which provides that
“The State shall not deny to any person equality before the law or the equal protection
of the laws within the territory of India”. The above provision clearly shows that
women in India enjoy right to equality and any discrimination against them shall be
violations of equality, of right and respect for human dignity. The Constitution also
provides under Article 15 that State shall not discriminate against any citizen on
grounds only of religion, caste, colour, race, sex , place of birth of any other of them.
Article 16 of the Constitution provides that there shall be equality of opportunity for
all citizens (including women) in matters relating to employment or appointment to
any office under the State (Agarwal, 2014).
Protection of Women from Domestic Violence Act, 2005
Today Indian Families are witnessing increased rate of matrimonial disputes and
women are more vulnerable and they are often the passive victims of Domestic
Violence in which they are harshly treated after marriage and in order to protect
women from this and prevent the recurring occurrences of domestic violence, an Act
called Domestic Violence Act 2005 was enacted by the parliament (Nelasco, 2010).
158
Domestic violence has been defined by the Act under Section 3 as any act, if
in any case it (a) hurts or injures or jeopardizes the physical condition, protection, life,
an arm or leg, or well-being (mental or physical), of the distressed individual or have
a propensity to do so and comprises causing bodily exploitation or verbal abuse,
sexual abuse, emotional violence and economic deprivation; or (b) harass, harms,
injures or jeopardizes the distressed individual with a view to pressurize or intimidate
her or coerce her other property or precious thing; or (c)has the consequence of
intimidating or bullying the distressed individual or any other individual related to her
by any conduct mentioned in the provision.
Information of the same must be given to the concerned Protection officer if

any person observes or believes that domestic violence has been acted upon or is
probable to be perpetrated. While a Protection Officer or Police Officer, or
Magistrate, who receives a complaint is obliged to provide the distressed individual
the information (a) of her right to make an application for getting a relief by way of
protection order; (b) of the accessibility of the services of service providers; (c) of the
accessibility of the facilities of the protection Officers; (d) of her right to avail free
legal facilities as per the Legal services Authority Act, 1987; (e) of her right to
register a complaint as per Section 49-A of the Indian Penal Code (if applicable).
A distressed individual or a Protection Officer or any other individual on

behalf of the distressed individual can give an application to the Magistrate to ask for
one or more relief as per the Act. The relief asked for may comprise a relief for grant
of an order for payment of damages without bias to right of such individual to
introduce a suit for compensation for the damages caused by the acts of domestic
violence perpetrated by the party against whom a petition is filed. The Magistrate may
declare a protection order in favour of the distressed individual and forbid the
respondent from (a) perpetrating any act of brutality; or (b) enduring or abetting in the
commission of acts of domestic violence; (c) providing the distressed individual
employment or, if the distressed individual is child, its school or any other place; (d)
trying to correspond to the distressed individual, in any form including oral, written or
telephonic contact; (e) isolating any assets, operating bank lockers or bank accounts;
or (f)causing violence to the dependents and other relatives (Agarwal, 2014).
159
To cause a desirable change Social Legislation plays a significant role that is

why in contemporary society social legislation has sought to provide basic rights to a
person and seek his freedom from customary shackles of family, society and religion.
So far I have attempted to analyze and discuss the Acts that have supported the
women to improve their status, by granting them certain rights, but it must be noted
that to see a desirable result requires a proper implementation and observance rather
functioning of the laws, because mere law cannot seek a desirable change. The need
of the hour is the change in the attitude and stance of people; more cognizances of
laws need to be spread among the general masses and least but not the last, there has
to be an inherited longing among the women to avow their rights and make the laws
happen in their goodwill. The time is witnessing the fact and women are highly
becoming conscious of their rights. The constructive phenomenon can be clearly seen
in the present day women as they fight not only for their rights but for the whole
nation (Rahman, 2005).
Criticism
Nowadays women‟s rights are recognized as human rights, but that does not
guarantee the implementation of the same. A lot of efforts require to be practically
made in order to have better results and total achievement of human rights for entire
population. The present cultural and social perceptions of the people need to be
changed so that the existing progressive legislative measures put a positive mark
regarding the protection of women‟s rights. Undoubtedly law assumes to be a
powerful tool of any social change yet it owns certain limitations, a new society can
be framed not by law itself; as law is simply a fraction of reformation phenomenon.
We need to locate and enroot the cause of the problem. The traditional practices that
have emptied the society of its colours need to be observed and given a thought as
they have been proven harmful to the survival of a common woman. The vexed
problem that has appeared in the society is due to the patriarchal customs and
practices observed by the male dominated structure of our society. In view of the male
dominant society the birth of a female child as inauspicious both in the family as well
as in the society because of the weak status of woman. This has given rise to evil
practices in the society.
160
In medical sciences the advances made can be treated as a boon unless

misdirected to unlawful objectives and can be treated a curse when directed to corrupt
objectives, disregarding ethics. Two great scientific developments-human cloning and
female feticide may prove to be a greater threat to the mankind but when such
technology is used in positive faith to serve humanity it can bring laurels to medical
science but if used with ill-faith it can bring chaos and catastrophe to the society.
In urban areas during the recent past, some medical centres such as pre-natal
diagnostic centre has been established for determining the sex of fetus by this medical
technique which was meant primarily for genetic abnormality detection. During the
short span of time these pre-natal diagnostic centres saw a tremendous growth
because of the people‟s attitude towards female child. And such centres merely served
determination of sex centres, which affected adversely on the status and dignity of
women. Clear and blatant violence compelled the government to pass legislation for
elimination of such evils. The Pre-conception and Pre-natal Diagnostic Technique
(Prohibition of Sex Selection) Act, 1994 serves the purpose.
In our society women is looked at as a weaker section and hence been

subjected to subjugation since ages. They have been subjected to a lot of atrocious
crimes. The condition is still the same, even if people believe that women have been
emancipated. Notwithstanding the fact much requires to be accomplished in order
achieve true emancipation. So far the pivotal consideration had been given to the
eradication of violence against women outside their homes, those of crimes
perpetrated by unfamiliar persons but the cruelest and ugliest crimes that happen upon
women are unfortunately done by their loved and trusted ones within their families. It
is said that marriages are made in Heaven but some women undergo a hell like
situation after her marriage. There have been numerous enactments and legislations
passed regarding violence against the woman in her own house like laws against
dowry, domestic violence and cruelty.
Conclusion:
The Indian Constitution grants women equal rights with men, but strong patriarchal
traditions persist, with women‟s lives shaped by the age-old customs that still exist in
the society. In most Indian families a daughter is viewed as a liability, and she is
conditioned to believe that she is inferior and subordinate to men. Sons are idolized
161
and celebrated. The women rights are nationally accepted and constitutionally
guaranteed to uplift women through socio-economic and educational opportunities to
satisfy the constitutional goal of equality and social justice for historical reasons.
Their development over the past decades is being pursued through positive
discrimination in their favour in education, employment, governance and other areas.
Despite all these, it has become the routine news in the dailies and other
magazines that women undergo a number of problems due to the crimes committed
against them in one way or other. Male chauvinism still prevails in our society.
Illiteracy is the main reason for all these misdeeds. Even after 64 years of
independence, it is really unfortunate that our women folk are still treated as sex lust
for males.
Despite the growth of education and the other notable changes that had taken
place in Indian society, Indian women are still in darkness. The Sati Prevention Act,
1829 prohibited the custom of burning Hindu widow alive in the funeral pyre of her
husband. But unfortunately the practice is still in vogue among some orthodox
Hindus. To put an end to this crime, the Commission of Sati Prevention Act was
passed by the Government of India in 1987. During the British rule itself the Child
Marriage Restraint Act was passed in 1929 to prevent the early marriage of girls in
their tender age, but the system of child marriage still persists in India.
162
REFERENCES:
Agarwal, H.O. International Law and Human Rights. Allahabad: Central Law
Publications.
Anand, V.K. (2015). Human Rights. Haryana: Allahabad Law Agency.
Baruah, A. (2004). The Soft Target: Crimes Against Women. New Delhi: Kilaso
Books
Ghosh, P. (2012). Indian Government and Politics. New Delhi: PHI Learning Private
Limited.
Goel, A. (2004). Violence and Protective Measures for Women Development and
Empowerment. New Delhi: Deep and Deep Publications Pvt. Ltd.
Jayapalan, N. (2001).Women and Human Rights. New Delhi: Atlantic Publishers And
Distributors.
Jesudurai, P.(1991). Women and the Law. In S.L. R. S. J(Ed.), Quest for Gender
Justice: Critique of the Status of Women in India(pp.38-41). Madras: T.R.
Publications for Satya Nilayam Publications.
Kaushik, P.D. (2007).Women Rights: Access to Justice. New Delhi: Shubham
Computers, Delhi.
Kumar, K., & Rani, P. (1996). Offences Against Women: Socio-legal Perspectives.
New Delhi: Regency Publications.
Nelasco, S. (2010). Status of Women in India. New Delhi: Deep & Deep Publications
Pvt.Ltd.
Pandey, J.N. (2016). Constitutional Law of India. Allahabad: Central Law Agency.
Pylee, M.V. (1960). Constitutional Government in India. New Delhi: S.Chand &
Company Ltd.
Rahman, Z. (2005). Women and Society. Delhi: Kalpaz Publications
Rao, K.P.C. (2012, 13 May). Right to Equality-Its New Dimensions. Retrieved from
http://kpcraoindia.blogspot.in/2012/05/right-to-equality-its-new-
dimensions.html
163

Women Rights India

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Women Rights India

Uploaded by

Copyright:

Available Formats

Chapter-4 Rights of Women in India: Constitutional and Legal Perspectives

Rights of Women in India: Constitutional and Legal Perspectives

The women‟s rights are broadly acknowledged and unavoidably ensured to

number of seats to be filled by direct election in every Panchayat to be

The Preamble of the Constitution

Justice, social, economic and political;

Liberty of thought, expression, belief, faith and worship;

Equality of status and of opportunity; and to promote among them all;

In our Constituent Assembly, this twenty-sixth day of November, 1949, do hereby

Emphasis has been laid on the objective of „fraternity‟ in order to ensure

Constitutional arrangements for the protection of women’s rights:

Irrespective of being a non-citizen of India, the constitution of India promises equality

i. While regarding the basic right of equality of opportunity, a systematic and

members of the other class would amount to any discrimination or to denial of

The above mentioned circumstances can be considered as instructive principle

Equality before law and absolute equality:

It would be unwarranted to say that we can attain total substantial equality

Equality before Law and Rule of Law:

Professor Dicey gave three meanings of the Rule of Laws:

Equal Protection of the Laws:

The Guarantee of equal protection of laws is similar to one embodied in the 14 th

Exceptions to the Rule of Law:

The Constitution itself contains provisions which, under certain circumstances,

Equality: A positive concept

Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even

Self –determination of gender is an integral part of personal autonomy and self-

Article 14 permits classification but prohibits class legislation:

As promised by Article 14, the equal protection of laws implies that it is

Article 15 of the Constitution ensures prohibition of discrimination on grounds of

Article 15 guarantees non-discrimination on special grounds, that is religion,

immunities pertaining to him by virtue of his status as a citizen. The significance of

However, Article 15 has provided a couple of exceptions in its application.

This Article guarantees equality of opportunity in matters of public employment. It is

i. There shall be equality of opportunity for all citizens in matters relating to

body thereof shall be a person professing a peculiar religion or belonging

Right against Exploitation

The following expression constitutes the relevant portion in article 23 of the

Article 23 may be compared to the 13th Amendment of the Constitution of

bondage of labour. Such labors would continue to remain bonded up to generations.

To counter this, the Parliament enacted “The Suppression of Immoral Traffic

Cultural and Educational Rights

Protection of Interests of Minorities:

The Right to Constitutional Remedy

The Writs mentioned in the Constitution are:

(1) Habeas Corpus:

(5) Quo Warranto:

Article 226: Powers of High Courts to issue Writs:

Directive principles of the State Policy

The Constitution (44th Amendment) Act, 1978 included a new ruling

Article 39: Certain Principles of Policy to be followed by the State:

The State shall, in particular direct the policy towards securing:

“REPORT OF THE COMMITTEE ON THE STATUS OF WOMEN”, wage

Equal pay for equal work:

Article 44: Uniform Civil Code for the Citizen:

In Pragati Varghese v. Cyril George Varghese, a Christian woman sought

In Noor Saba Khatoon v. Mohd. Quasim, (AIR1997 SC3280) wherein a

In Denial Latif v. Union of India, (AIR2001 SC 3262) a bench comprising of

Various laws relating to women’s protection

Legislation relating to women before independence

Widow Remarriage Act:

Another revolutionary social legislation of this period is the Hindu Widow

Female Infanticide Prevention Act:

The Special Marriage Act of 1873:

The Age of Consent Bill 1891: