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233
 Rights of women in India as human beings

This chapter aims at critical examination of socio-legal status of Indian

women. In this chapter an attempt is made to find out the human worth
of women along with the protection and enforcement of women’s rights
as Human rights. This research work aims at identifying newly cropped
up areas with respect to gender issues. There are issues related to
female feticide and Surrogacy. While we deal with human rights of
women, then the issue of women’s right to her bodily integrity and
dignity also has relevance and requires to be discussed to aim at an
acceptable solution to the treatment meted to women.

The chapter is divided in two sections. The first section reflects the
articulation    of    women’s    rights    as    human    rights.    The   
International community acting through the United Nations has shown
its concern towards women’s issues by placing them high on their
agenda. Thus, this section is a modest attempt to study the United
Nation’s efforts in laying down the standards for protection of rights of
women and the rationale behind it.

The second section develops on the provisions in the related statutes

which deal with women’s rights as human rights. The Art.51(c) of the
Human Rights protection act 1993, aims at addressing fundamental
rights of women as human rights. This section is further divided into
four subsections. It is actually need of the hour that the women’s rights
require to be treated as rights of human beings.

234
Women’s human rights and personal laws have been a major cause of
concern. The difficulties encountered for having a uniform civil code
are also discussed. Further violence against women as a Human Right
abuse is discussed at length in the wake of the declaration of violence
against    women    and    the    prevention    of    Domestic    Violence   
against Women Act-2005. Thus this section discusses the following:

1. Gender Equality.

2. Identification of Human worth of Women and their rights.

3. Personal laws and rights of women.

4. Violence against women as Human rights abuse.

5. The menace of Sexual Harassment at work place.

The    International    conventions    provide    a    critical    standard    by

reference on which the content of the constitutional and the statuary
norms are studied. The task of protection and enforcement of Women’s
rights as Human Rights requires to be taken seriously in the 21st   
Century because of enhanced participation of women in various fields.

The    Researcher    visited    Toronto,    Canada,    in    May    2010        for

presenting research paper on Legal literacy of Indian Women. This
chapter also has a note on researcher’s observations on visit to Canada.

Section-I

6.1:1- Evolution of Women’s Rights as Human Rights .   

Women’s Rights became a matter of global concern and program of

action as a result of various declarations by the Unite Nations. The
United Nations found it necessary to make certain special provisions for

235
women and further direct other nations to follow the guiding principles
laid down for curbing gender disparity.

The notions about women worldwide showed that women were

perceived as a subordinate being. ‘The world subordinated women in
mutually reinforcing ways perhaps the most enduring conceptual basis
for women’s subordinate legal and social status is the assumption that
while men represent norm of the fully human being, women represent a
deviation sometimes superior usually inferior but always different.’1     

Women’s inherent differences are explained with the focus on

biological factors.    The physiological differences between men and
women    led    to    moral,    social,    economic    and    perceptive    bias.   
The perception of women as inherently different resulted in a
systematic legal disadvantage for women as compared with men. It has
also disadvantaged    some    women    against    another.    Women    who 
closely adapted to expected norms were rewarded than those who
revolted. Women differences have been used to gain legal protection
and such measures    however    contribute    to    women’s    subordinate   
status    by narrowing their options and reinforcing their use as
scapegoats for society’s ills such as poverty, immorality and crime2.

Women’s subordinate status in the society is also an outcome of the

concept of treating women as property. Under the legal regime of
slavery and under the pretext of having women as wives and dependent
members of the family, women have been exploited for economic
profit. A cursory glance into history reveals that, women who worked as

1 - ‘Gender and Law’ Theory, Doctrine, Commentary by Katharine T Barlett, Angela, P. Harris
at P. 1&2
2 -“Gender and Law” Theory, Doctrine, Commentary by Katharine T. Barlett, Angela, P. Harris
at P. 1-2
236
 domestic    labor    to    their    slave    owners    would    always    be
sexually exploited.    There    was    no    economic    incentive    for    such
exploitation because child of a slave woman was indeed a slave as well.
After slavery was formally abolished by the 13th    Amendment, black
women and other women of color channeled into law paying personal
service jobs that left them without access to training or capital.3 In the
18th    Century    a    white    women    who    married    dark    did    not
face    these deprivations, yet she found her legal and economic
existence virtually suspended merged with that of her husband until the
advent of married women’s Property Act and Earnings Statutes in the
19th    Century. The Marital    Unity    Doctrine    meant    that    a
married    white    woman    was incapable, except under certain
circumstances recognized at equity of making contracts or wills,
owning property, retaining control of her separate estate, testifying as a
witness in court against her husband or retaining her own name. Even
as equitable principles evolved and statutes were enacted o protect
women’s economic interests, or the interests of those with whom they
or their husbands transacted business, these laws were interpreted in
ways that, reinforced women’s economic dependency on men.4 This
means that it is not only the eastern part of the globe but even in the
west, women have acquired the place of being treated as a human very
recently. History reveals that in western countries too women were
looked upon as a liability and as a dependent individual.   

The Definition of sexual norm is also another powerful tool of

subordination. The 19th    century witnessed the exploitation of women
by

3
-Ibid
4-Women and Social Change in India, New Delhi Heritage, 1979. By Ratna Kapoor and
Brenda Cossman in subversive sights, Chapter 2 P. 152, Sage publications.
237
 establishing gender subordination in the ways of having bans on birth
control and abortion and domestic violence laws. Thus people took the
control of motherhood of women to exploit them. These were some of
the many ways of sexual norms used to establish and reinforce gender
subordination.   

Subordination    of    women    can    be    understood    on    the    basis    of

‘separate    sphere’ ideology . This ideology defines male sphere and

female sphere as a public sphere and private sphere. Male sphere was
predominantly concerned with the regulated world of government,
trade, business and law from which women were excluded.    Even in
the United States, until the passage of 19th    Amendment, in 1920,
women did not    even    win    the vote.    Even    after    suffrage,
women    were    always excluded from serving as Juries and it    was
until 1960, women’s participation    in    the    military    was
traditionally    limited    to    auxiliary positions.5 Such positions were
secure from danger. Traditionally, a public role was not contemplated
for women. They were systematically deprived of obtaining higher
education, joining professions which were ruled by men and running
business. They were always subordinated as helpmates to their
husbands.   

The separate sphere ideology also defines a ‘private sphere’ which

develops on unregulated realm of home, family and child rearing.6.
Women    enjoyed    the    status    of    ‘being’    only    through    the   
legally sanctioned family. Without family, they could expect only
economic hardship, pity and suspicion.    It was women’s place in the
private sphere

5 - World report program narrated events of Rape and other sexual abuses by the American
soldiers in the 2003 Iraq war. – 27th    Feb 2004 CNN
6 - Critique    of    Public/Private    Dichotomy    by    Ratna    Kapoor    and    Breda    Cossman    :Sage
Publications.

238
 that justified her exclusion from the public sphere and under the
marital unity doctrine; it was her husband who claimed ultimate
authority over her. Such perceptions, which are an outcome of
ideologies emanating from realities, add to the subordination of women.
The separate sphere ideology not only rationalized women’s exclusion
from political and economic self rule and their assignment to dependant
and subservient roles, it also helped to understand subordination by
defining women’s confinement to matters of home and family as
natural. Distinction among women were also based on race and class
for example, some family lives were made possible by domestic
servants who spent their working lives caring for other women’s
husbands and children and other family members.   

It was in a 20th    century, the world observed deconstruction of

women’s subordinate position with a view to reconstruct or rather
establish separate and independent existence of women as a ‘Person’.
The United Nations, through its Conventions on ‘Human right’ has
shown a curious attempt to confront women’s subordinate status. This,
they attempted by conferring equal and gender specific human rights to
women.   

6.1:2 - Women’s Rights as Human Rights:   

The Human rights of women and of the girl child are an inalienable,
integral and indivisible part of universal human rights. The full and
equal participation of women in political, civil, economic, social and
cultural    life    at    the    national,    regional    and    international    levels 
and eradication of all forms of discrimination on grounds of sex, are
priority objective of international community.7 United Nations
proclaimed to
7 - See Universal Declaration on Human rights, December 10, 1948
239
 have equality on the basis of sex as their mission. Article 1 of the
charter sets out 3 main purposes of United Nation, the last among them
includes and defines to protect the rights and freedoms of every
individual regardless of sex, race, language or religion. United Nations
Universal Declaration    of    Human    rights    (UDHR)    of    1948,
included    the proclamation that all human rights and freedoms are to be
enjoyed equally by women and men without distinction of any kind.   

Article 2 of UDHR states that everyone is entitled to all the rights and
freedoms set forth in the declaration without distinction of any kind
such as color, sex, language and religion, political or other opinion,
national or social origin, property birth or other status.8   

All    the    general    human    rights    conventions    at    regional    and

international level have provisions of equality and non discrimination
on the    basis    of    sex.    It    is    also    rightly    observed    that    there   
has    been marginalization of women at Economic, political, and social
levels in most countries of the world.

In order to implement the Human rights of women, Human rights

committee has been constituted and this committee has been confronted
with    number    of    cases    initiated    by    women    concerning    an   
alleged violation of Article 26.

Article 26 -‘All persons are equal before the law and are entitled to
Equal protection of law without any discrimination. ‘In this respect the
law shall prohibit any discrimination to all persons and guarantee to all
citizens equal and effective protection against discrimination on any

240
ground such as race, color, sex, language and religion, political or other
opinion, national or social origin property, birth or other status.

6 .1:3 - Discrimination on the basis of sex:

A case of Mauritian resident is an apt evidence of Discrimination.

A statutory provision in Mauritius proved expressly discriminatory

towards women. It so happened that legislation failed to grant resident
status to foreign men married to Mauritian women but at the same time
Non-Mauritian    women    married    to    Mauritian    men    were
granted permanent    resident    status    and    were    not    subject    to
the    threat    of deportation. This was held to be discriminatory on the
grounds of sex. Actually laws should be framed or altered without
deviating from the
basic ideology of the legislation. This was a case of Ameeruddy
Cziffra    v.    Mauritius,9 in    which    the    government    did    not    grant

permanent    resident    status    to    the    spouse    (foreign    men)

married    to Mauritian women.   

There has been breach of article 26 & 27 of the covenant in various

cases of the west which were treated as violation of right of a woman as
a human being.

There was a case of N. B. Lovelace v. Canada10 in which the

applicant had been denied access to the native culture and language
which was discrimination on sexual grounds. This was offending
section 12 of Canada’s Indian act. Section 12 denied an Indian woman
married to a non Indian man, right to return her native Indian reserve
following breakup of the marriage. The first case which was filed by an
individual

9 - Selected decisions H.R.C. 67, Harris cases and materials on International law (4th    edn.
1991. P. 647
10 - Selected decisions H.R.C. 28 (1981) (4th    edn. 1991) P. 655

241
 by way of Article 14 of the 1966 convention on Elimination of all
forums of racial discrimination was that of a Turkish woman who was
dismissed from her employment in the Netherland on the grounds that
she    was    pregnant.    She    felt    offended by the    remarks    which
were unwarranted concerning foreign women workers and compared
her with her Dutch counterparts. It was held by the committee that the
Dutch authorities had not protected her right to work.   

6.1:4    -    Convention    on    Elimination    of    all    forums    of

Discrimination against women (here in after referred as CEADAW in
this research work).

It was during 1976-83 the United Nations came up with the first
international instrument to define discrimination and in extending state
responsibility clearly into the realm of private action. It commits states
not to just refrain from engaging in any act or practice of discrimination
against    women    but    to    take    all    appropriate    measures    to   
eliminate discriminations    against    women    by    any    person,   
organization,    or enterprise and to modify or abolish existing laws,
regulation, customs and    practices    which    constitute    discrimination 
against    women.    The researcher submits that the provisions of
CEADAW cover the public and private life rights of women.

Article-1 the convention defines discrimination as follows:

Any distinction, exclusion or restriction made on the basis of sex which 

has    the    effect    or    purpose    or    impairing    or    nullifying    the
recognition, enjoyment or exercise by women in respect of their marital
status, on    basis of equality of men and women of human rights and
fundamental freedoms in the political, economic, social, cultural or civil
or any other field.
242
There    are    three    vital    characteristics    of    the    definition    of
discrimination against women. The article refers to the effect as well as
purpose, thus directing attention to the consequences of governmental
measures as well as the intentions underlying them. The definition is
not
limited to Article 6 (8) - Nationality, (Article 9) Education, (Article 10)

Employment (Article 11) Health Care (Article 12) other aspects of

social and economic life (Article 13), specific provisions for rural
women (Article 14) list of specific rights for women (Article 16). The
Convention    has    an    enforcement    mechanism    whereby
governments report to a committee on the elimination of discrimination
against women. (Article 17-22)   

The researcher observes that the issue of violence against women had a
striking omission from the convention. Violence against women was
not specifically categorized as a human rights abuse in the recent times
the issue of violence against women have become a main focus of
NGO’s working on women rights domestically and internationally.   
The declaration and convention had marked a breaking down of the
state / non    state    dichotomy    in    human    rights    law    the   
extension    of    non discrimination    to    include    gender    violence   
marked    a    more    clearly analytical critical approach to human rights
law. In 1992 the committee on CEADAW adopted general
recommendations on violence against women stating that this issue was
covered by most of the article of CEADAW as matter of
discrimination.11     

The fourth U.N. conference on women which took place in Beijing in

1995 focused on nongovernmental organizations as a forum for
protection    rights    for    women.    The    Beijing    Declaration    and   
global
11 - Official record of the General Assembly, 47th    Session
243
 platform for action adopted at the conclusion of the Fourth U.N.
Conference and building on Vienna declaration and Program of
Action12    can be described as bill of right for women. The 150 pg
document identifies poverty as the principle area requiring priority
action and the platform acknowledges that sustainable development and
economic growth are only possible through improving the economic,
social, political, legal and cultural status of women.

6.1:5 - Protection of women rights

Women rights are recognized as human rights internationally but are

not yet established as a basic right to be enjoyed by women. India is
signatory to all these conventions and therefore the parliament of India
in 1993 incorporated these human rights into Indian legal system in the
form of the Protection of Human Rights Act, 1993 . This act defines
human rights as follows.

Human rights – means the rights relating to life, liberty, equality and
dignity of an individual guaranteed by the constitution or embodied in
the    international    covenants    and    enforceable    by    courts    in   
India. ‘International covenants means the international covenant on
civil and political rights and international covenant on economic, social
and cultural rights adopted by the general Assembly of United Nations
on 16th    December, 1966.’   

The act has provision for investigative machinery for investigation of

complains of violation of human rights by the national and the state
Human Rights Commission. It also provides for human rights courts for
the trial of offences against human rights. It is widely accepted that, the
12 Conference held in Vienna, 14-25 June, 1993, Para 36-44
244
 Judiciary has shown concern about recognizing the Human worth of
women.

The    protection    of    human    rights    act    1993    has    two    important
implications which are relevant and significant.

1. It aims at formal incorporation of all categories of human rights

within    the    domestic    legal    system    there    by    making

them enforceable through the court of law.

2. It has expanded the zone of human rights by stating that human

rights are not available against state and public authorities but
also against private sectors. The Indian constitution recognizes
the    obligation    to    respect    the    treaty    as fundamental    in
the governance of the country.

Women rights as human rights is an indispensible component of Indian

corpus juries it is a question now as to how Indian constitution protects
and    enforces human rights of women how does the Supreme Court
and human rights courts in India protect and enforce protect and
enforce human rights of women. In order to seek a desired answer to
above question we shall now move on to understand the concept of
gender    equality    as    understood    and    propagated    by    various
pronouncement of the courts.

Section II

6.2:1: Gender equality

In this section the role played by judiciary in aiming at gender justice is

examined by discussing relevant cases in which the courts have
exhibited judicial activism to secure human rights of women. This
245
 section also develops on the Indian constitutional design and how it
protects, confers, and secures human rights of women.

The constitution of India as a supreme law of our land contains

provisions conferring fundaments rights/Human Rights on women as a
class and also particularly as person equal with men. Article 51 (c)
provides that ‘The state shall endeavor to foster respect for international
law and treaty obligations in the dealings of organized people with one
another.   

The    researcher    submits    that    there    is    a    textual    foundation   

for conceptualization of women’s fundamental rights as human rights in
the Indian Constitution. There are certain provisions which are specially
designed to exhibit the condition of women. It is a guideline that all the
wings of the government, The Legislature, Executive and Judiciary at
central,    state    and    local    levels    have    the    responsibility   
towards empowerment of women in the light of Article 15 (c) Special
Provisions for Women as a Class.   
Relevant provisions for equality

Article 15 (3)- It is provided in this article that nothing shall prevent

the state from making any special provisions for women and children.       

Article 51-A (c)- Provides that it shall be the duty of very citizen of
India to promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic and
regional or sectional diversities to renounce practices derogatory to
the dignity of women.

246
 Article 243 (D)13    - Makes the provision for the reservation of seats
for S.C./S.T. women on Panchayat. It was decided in the case of Javed
v. State of Haryana14    that right to political equality is confirmed on
women based on the Article 7 of the CEADAW especially in matters of
holding offices and participation in government decision processes.   

Article 243 (d) – Provides that not less than one third of the total no. of
seats reserved under the clause (1) shall be reserved for women
belonging to the scheduled caste (S.C./S.T.) or as the case may be the
S.T. Similar reservation is also provided for the chair person of the
Panchayat.   

Article    243    (D)-(F)    -    The    offices    of    the    chair    person    at   
the Panchayat at the village or any other level shall be reserved for the
S.C. and the S. T.s and the women in such manner as the legislature of a
state may by law provide-provided further that not less than one third of
the total number of offices of chair persons on the Panchayats at each
level shall be reserved for women.15     

It has been observed that there are certain provisions consistent with
that of the above in article 14 of CEADAW.       

Article 14 of CEADAW- This article deserves credit in the respect that

it was the first international recognition of special needs of women in
rural communities. It disaggregates the problems in regional and
functional terms. It actually paves the path for realizing goals that
permit the entire convention to have functional grass root groups eager
to
13
- Constitutional Provisions sited in the text is consistent with Art. 7 of CEADAW   
14
-Javed v. State of Haryana (2003) 8 SCC P. 369   
15 -
UN Charter and Convention prohibit discrimination on the grounds of sex in the matter
of possession and exercise of Human Rights by women. See UN Charter Art. 1(3), Art. 55(C),
UDHR Art. 2   
247
 participate in local decision making. In addition to above provisions
we have Article 15 (1) and (2) prohibiting discrimination on the
grounds of sex.16    Similar provision is made in respect of equality in
matters of public employment in Article 16, 39 (D) and (E) which
provide for equal pay for equal work between men and women and also
for health and strength of workers may it be man or woman.

Article 325 of our constitution ensures the application of principle of

Gender Equality in the matter of electoral roles.   

Article 325 provides that no person to be ineligible for inclusion in or to

claim to be included in a special electoral role on the grounds of
religion, race, caste or sex.

There are provisions in the Indian constitution which demonstrates

interrelationship between the fundamental rights of women as a class
and their rights as a person equal with man on one hand and the
international Human rights law on the other hand.   

It is not required that that these fundamental rights / Human rights of

women should be analyzed from feminist perspective. Such an exercise
may    deviate    from    the    true    essence    of    law    and    perhaps   
may    be misleading. Therefore the researcher aims at finding out the
protection of women’s rights with socio-e cultural perspective.
Experiences of life and the prevailing socio-economic and cultural
conditions directly affect and determine the application of Constitution
and other laws.   

16 - Art. 11 of CEADAW
248
 6.2:2 - Indian social structure and Gender equality:

It is a well known notion that gender equality is an important human

right. An eminent thinker Prof. S P Sathe observed in his article17   
‘Women have been victims of discrimination under practically every
branch of law, but when constitution came into force in 1950, such
discrimination    was    at    least    normatively    forbidden    but   
normative prohibition have rarely been able to banish social inequality. 
Even when in    United    States,    the    constitution    by    an   
amendment    forbade discrimination    against    the    black    status    and 
discrimination    against women which still prevails. For a long time,
neither the legal theory nor practice considered it to be an unjustified
discrimination. It is only in last 2 decades that women’s voice on law
and on legal theory has emerged18 . Dr. Ishwara Bhatt observes that
Constitutional feminism means employing constitutional powers and
provisions for ameliorating the conditions of women.19    All the three
wings of the Government ,the Legislature, executive and Judiciary at
central, state and local levels have the responsibility of Empowerment
of women in the light of Art,15(3) read with Art.12 0f the constitution.
Although Art.15 (3) is an enabling provision that authorizes the state to
make special provisions for women, the discretion conferred there
under shall be exercised without fail and be exercised reasonably.20    It
is also fundamental duty of
17
-S. P. Sathe in Engendering Law, ‘Essays in honor of Lotika Sarkar’
18-See Lloyd’s introduction to Jurisprudence, 7th    edn. By M. D. A. Freeman, Chapter 14, P.
1122
19- Prof. Dr. Ishwara Bhatt in article, Constitutional Feminism: An Overview (2001) 2 SCC
(j) P. 1
20 -Ajit Singh v. State of Punjab, 7 (1999) SLT 476, also refer C. A. Rajendran v. Union of
India (1968) 1 SCR P. 721   
249
 every citizen to renounce the practices derogatory to the dignity of
women.

In any Democratic setup everyone has equal opportunities in the

decision    making    process.    Women    constitute    half    of    the   
world’s population    and    hence    should    not    be    deprived    of   
redress    of    their grievances through democratic means. It is due to
socio economic reasons and cultural patterns; they are not effectively
able to participate in the game of democracy. It is the disadvantage of
democratic process and risks of parliamentary majority which makes it
imperative that a pro-women and anti-subordination interpretation of
constitutional laws shall be made. It is the patriarchal social
construction which attributes lack of power to women which results in
the women’s representation marginalized.    To    overcome    this   
lacuna,    empowerment    of    women emerges as a method of
identifying human worth of women. Thus instead of uncritical reliance
on democratic forces, appropriate legal framework and its interpretation
can rescue the interest of women.21       

6.2:3 - RECOGNITION OF WOMEN’S RIGHTs AS HUMAN

RIGHTS

The Human rights did not spell out women’s rights as human rights.
Right from Magna-Carta in 1215 till the American Constitution in
1789, the human rights discourses were men centric. Up till year 2005,
the Fundamental    Rights    of    our    Indian    constitution    were    also   
not    an exception.    Women    were    not    protected    against   
Domestic    Violence because the Human rights discourse for a long
time was confined to the sphere of public law. Any intervention in the
home of a person was

21 -Tracy Higgins in ‘Democracy and Feminism’ H. L. R. P. 1657

250
 considered as sacrilegious. In those days the private laws also which
was imperial in nature assumed that persons involved were equal and
acted on free consent. This actually added to the sufferings of women.
Women’s freedom and equality were sacrificed on the name of integrity
and autonomy of the family. Women’s rights were recognized as human
rights firstly in the Universal Declaration of Human Rights in 1948.It
was followed by The Convention On the Elimination    of all forms of
Discrimination Against Women in 1981 and The Vienna Convention of
1993.It was after these that it was professed that Gender Equality is an
important aspect of human Rights.

Indian society has undergone a critical change as far as women issues

are concerned. We have a long History of social reforms. Even
references in literature help us to know the role played by social
structure in attributing subordinate status to women. The societal
attitude slowly changed over a period of time. These references help us
understand and appreciate the journey of the Idol of Gender Equality 
  .It    had    to    pass    through    the    hurdles    put    forth    by    the
patriarchal social structure before its incorporation into the decisional
law of the Supreme Court of India.
6.2:4 - Role of The Supreme Court of India.

The Supreme Court of India held that differential treatment was meted
to women on the basis of reasonable classification. There are two   
requisites    of    Reasonable    classification.(1)-Those    who    are
selected for different treatment must be distinct from those who are
excluded from it.

(2)- The criteria of Classification must have Nexus with such

classification.   
251
 The Indian Constitution otherwise also bans any classification on the
basis of Religion, caste, Race, sex or Place of birth.22    As a result of
this, there cannot be classification on the basis of sex. But there is a
distinct provision which says, ‘The state may make special provisions
for the benefit of women and children’. This clearly means that there
can be classification on the basis of sex which is for the benefit of
women. This implies that classification is treated as valid when it
comes to rescue of Women and Children.   

The Indian Constitution has reflected its sensitivity by omitting the

word ‘sex’ from Article 29 (2), which guarantees equal access to
educational    institutions    irrespective    of    religion,    race,    caste    or
language.   

While    administering    justice    what    is    reasonable    classification

depends on what the judges think to be reasonable. In Indian social
structure gender based classification is deep rooted into the minds of
people and therefore they have notions which directly affect their
attitude    towards    women.    Women    are    projected    to    be   
beautiful, delicate and weak and deserve and need protection by men.
These qualities of women re compared with that of men being strong,
ruthless and courageous, thus justifying the classification.

Such kind of stereotyping of gender bias reaches the proportion of

everybody else other than women considering themselves to possess the
authority of deciding what women should do and what they should not. 

22 - Art. 15 (2) Constitution of India

252
These    stereotype    thoughts    can    legitimize    not    only    different
treatment but also subordination of women. Reasonable classification
should not be justified by the patriarchal ideology while applying the
test of equality. It is in    this    sense that equality at    social level
(predominantly    in    the    minds    of people) can    only    elude Gender
equality.

There are numbers of cases which are mentioned below from which it is
evident that whenever there was blatant discrimination on the grounds
of sex the court has shown its sensitivity by striking it down.     

6.2:5 - EQUALITY and REALITY

Wherever social reality is of inequality then rights to equality merely

remains a legal provision without a practical application. Women
continue to be underrepresented in politics, in jobs and in authoritarian
posts which require decisive power. Some affirmative action becomes
necessary to bring about equality. It is an accepted fact that women are
different biologically and that difference has to be taken into
consideration by any doctrine of equality. As men cannot bear a child
and women can become pregnant and deliver one, women need to have
special maternity care, leave and benefits. Such examples on
differential treatment, on biological grounds find a place of importance
in various legislations like ‘The Factories Act of 1948’ and also ‘The
Code of Criminal Procedure of 1973’.   

When women suffer as a result of Gender inequality and get

marginalized    then    not    only    differential    treatment    but    special
affirmative    action    is    required    o    be    taken.    Such    actions   
achieve equality    in    terms    of    results.    We    find    such   
affirmative    actions’
253
 provisions in our constitution for the scheduled castes, schedules tribes
and the backward class. Affirmative action is observed from giving free
ship in education up to the reservation in jobs.23     

The apex court if India has held that reservation of posts for women
was permissible under Article 15 (3) of the constitution.24    Does such
kind of provision help in establishing equality? Is such reservation    in   
addition    to    the    reservation    for    the    socially    and educationally
backward class of people envisaged under Article 15 (4) of the
constitution? If we consider the provisions related to reservations as a
cake then women of such socially and educationally backward classes
should be certainly carved out. Such carving out of the    reservation   
has    been    done    in    favor    of    women    under    the constitution in
the 73rd and the 74th Amendment. It is reflected in having    one    third 
of    seats    reserved    for    them    in    Panchayats    and Municipalities.
Women of the advanced sections have also been given benefit of
reserved seats since one third of the total number of seats are reserved
for women. That analogy however does not apply to reservation of jobs.
There is still no clarity whether jobs could be reserved for women who
do not belong to the backward classes under clause (4) of Article 16.25 
The nomination of women in cooperative societies to bring in their
guaranteed minimum representation has however been upheld.26     

Certain provisions have been upheld by the court in educational

matters.   

23-
S. P. Sathe in ‘Patterns of Affirmative Action’, Ref. Journal of the Indian School of
Political Economy, Jan-Mar, 1997 P.754
24
-State of A.P. v. P.B. Vijay Kumar (1995) 4 SCC P. 520
25
-Indra Sawhney v. Union of India 1992, Supp (3) SCC P. 217
26 -Toguru Sudhakar Reddy v. State of A.P. AIR 1992 A.P., P.19

254
 A provision reserving seats for deserted women was upheld.27     

Educational    institutions    were    asked    to    condone    shortfall    in

attendance of a women candidate caused due to pregnancy.28     

The Supreme Court had held invalid a provision of a Railway Board

Circular dated December 27, 1982, which restricted married daughter
of a retiring official for out of turn allotment of a house to situations   
where    such    retiring official had no son or where the daughter was the
only person prepared to maintain the parents and the son was not in
position to do so. This was held to be discriminatory on the grounds of
sex. The patriarchal bias was broadly reflected in the above provision.

Researcher’s Comments :

The    judge’s    disapproval    of    the    gender    bias    is    however    not
uniform. They are also themselves a part of the patriarchal system and
hence    they    at    times    reflect    subtle    gender    discrimination   
which punctuates our laws. The researcher submits this on the basis of a
case of Prem Kumari v. UT Admn. Chandigarh 29 in which a
daughter in law was excluded from the list of relatives entitled to out
of turn allotment and the court did not find it necessary to interfere.   

There are several statutes which now provide for the inclusion of
women in the decision making process. The Consumer Protection Act,   
1986    provides    that    at    least    one    women    member    must    be
appointed on each of the three grievance redressal agencies namely
27
- V. Shantalaxmi v. State of Tamilnadu, AIR 1975 Mad, P. 107
28
- Nithya v. University of Madras, AIR 1995   
29 -Prem Kumari v. UT Admn. Chandigarh (1994) 2 SCC P. 401   

255
 The    District    forum,    the    state    commission    and    the    national
Commission. Similarly, The Family Courts Act of 1984 provides that,
preference shall be given to women while making appointment of
judges in the family court.

An attempt is made in the following paragraphs to examine the

decisions of Supreme Court of India in the interpretation and the
concept of Gender Equality in diverse areas of public life.     

6.2:6    GENDER EQUALITY IN PUBLIC EMPLOYMENT

In Bombay Labor Union Vs. International Franchise30 a rule

requiring    an    unmarried    woman    to    give    up    her    position    on

her marriage    was    challenged.    The    rule    only    applied    to    a
particular department of a company. The company offered a
justification that such rule was made because they need to work in
teams, at odd hours and with regular attendance. Major absenteeism
was envisaged by the company on marriage of a woman. The Supreme
Court held that there was no evidence that married women were more
likely to remain absent than unmarried women and thus they ordered
the company to quash such a rule.   

Bearing and having children and liability towards them as a mother

may sometimes account for absenteeism from the job. But that could be
so in case of a widower or a divorced man with responsibility of
children. So any authority cannot justify deviating from principles of
equality as lay down by the constitution. The only difference in the
matter of remaining absent from the duty in case of married or
unmarried women was that of maternity leave which is a
30 - In Bombay Labor Union v. International Franchise, A 1966 S.C. P. 868

256
 benefit offered to an expecting mother. Thus there cannot be any
drastic rules which would directly point to the reproductive life of a
woman and ultimately her dignity as a woman.31     

The court struck down the restriction on women’s employment in the

above case with a view that marital status was not a reasonable
classification in light of the employment needs of the Company.
Interestingly in this case the court’s view was that , the question of
bearing children was not equally applicable to married and unmarried
women. It was long back in this particular case the court was under an
assumption that woman only bear children in marriage. This also is not
relevant because now certain benefits are offered by law to even signal
parents.

In    C.B.    Muthamma    V.    Union    of    India32 the Petitioner, an

employee of The Indian Foreign Services (I. F. S.) was denied

promotion which the petitioner alleged to be on the basis of pervasive
Discrimination against women in the Foreign Service. She challenged
the rules of I.F.S. including those rules prohibiting the appointment of
married    women    and    requiring    that    unmarried    women    in    the
employment of the I.F.S. obtain permission before marrying. The
Supreme Court held in this case:

‘If a woman member shall obtain the permission of Government before

she marries, the same risk is run by government if a male member   
contracts    a    marriage.    If    the    family    and    domestic
commitments of a woman member of the service is likely to come in
the way of efficient discharge of Duties, a similar situation may well

31 -This rule is inconsistent with Art. 11 (1) (c) of CEADAW which among other things
provided job security and all benefits
32 - C.B. Muthamma v. Union of India 1979, 4 SCC P. 260 257
 arise in the case of a male member too. In these days of nuclear
families, Intercontinental marriages and unconventional behavior, one
fails to understand the naked bias against the gender of the species33 ’.   

The Court held that although the    rule    is discriminatory, the

application    should    be    dismissed    in    the    light    of    the   
subsequent promotion    of    the    petitioner.    The    Court    concluded   
however    by strongly    urging    the    government    to    overhaul all   
service    rules    to remove the stain of Discrimination on the basis of
SEX of an individual.34    In this case the court adapted a formal
approach to Equality and Similarity approach to gender. For the
purpose of employment in the I.F.S. Women and Men must both
balance the demands of work and family. Women and Men must
therefore be treated same in law. The court was able to see beyond the
dominant familial ideology which at one time had justified the
restrictions on the employment of married women. In the court’s views
women’s roles    as    wives and    mothers    could    no    longer    justify   
the    blatant prohibition on employment.

In the wake of above mentioned case an observation of Ratna Kapoor

and Brenda Crossman is apt. They observe:

‘For the purpose of employment Women and men were the same. In
this respect the Supreme Court in C.B. Muthamma was able to go
considerably further than it had in the case of Bombay Labour Union a
decade earlier, where it had not compared men and women but rather
married and unmarried women.’35     
33
- Ibid at Para 5
34
- Ibid Para 9
35 - Ratna Kapoor and Brenda Crossman supra fn 4 at P. 176   

258
The researcher submits that, The willingness of the court to hold that
women and men are same in relation to family obligations stands in    a 
stark    conyrast    to    the    ruling    of    many    case    in    which    the
construction of as wives and mothers preclude any such comparison. In
the reference of the power once exercised by the familial ideology in
the area of employment and the continued perception of women as
wives and mothers in constructing gender differences has helped in
EQUALITY analysis and application in other areas too.   

The    Court    while    discharching    its    duty    in    application of the

equality approach, shows concern in following words.

‘We do not mean to Universalise or Dogmatise that men and women are
equal in all occupations and all situations and do not exclude the need
to be pragmatic where the requirements of particular employment, the
sensitivities of sex or peculiarity of social factors sectors or the
handicap of either sex may compel selectivity.’

The Court further added that, Gender need not be relevant for the
specific purposes of employment in foreign services; it might be a
relevant    factor    in    relation    to    other    legislative    objectives.    The
SAMENESS approach to gender is there by expressly limited to
particular circumstances of the particular case. The court leaves open
the possibility of the need to adopt an approach which recognizes
differences in other cases. The court’s decision at the same time shows   
a    protective    approach.    The    reference    to    women    as    the
GENTLER of the species, suggests that the court too perceive women
as different, as weaker and as an individual who is need of protection.
Indeed the recurring references to women as    ‘the weaker’ and ‘the
259
 gentler ’sex reinforces the image of women as a weak individual
looking forward to others for protection.

Claim for EQUALITY by AIRHOSTESS

It was a landmark Case of Air India V. Nargesh Mirza which

showed the recognition of dignity of a woman by the court. The

Airhostesses    of    the    Air    India    International    Corporation    had
approached    the    Supreme    Court    seeking    the    redress    against
the Discriminatory service conditions contained in the regulations of
the Air India. The Regulations of the Air India provided that an
airhostess could not get married before completing 4 years of services.
An air hostess usually was recruited at the age of 19, and the four years
bar against marriage meant that an Air hostess could not get married
until she reached the age of 23 years.36       

The Regulation stated that if she got married before completing four
years of service then she had to resign. After reaching the age of 23
years if she continued her service as a married woman, she had to
resign on becoming pregnant. If an Air hostess continued in the service
which meant that she either did not get married nor become pregnant,
she could continue to serve till the age of 35.    It was alleged on    the   
behalf    of    the    airhostesses    that    those    provisions    were
discriminatory as similar provisions did not apply to male employees
ding similar work.37     

36-
The Air India regulations fall short of the obligation of Art. 16 of CEADAW to take
measures to eliminate discrimination against women.       

37 -The Air India regulation regarding pregnancy falls short of Art. 16 (e) of CEADAEW
which confers equal rights on women with men with regard to making choice, number and
spacing of children.     

260
It was expected of Air India International being a public sector to show
greater concern to the principles underlying the constitution. These
provisions may not be formulated to be discriminatory against women, 
but    they    broadly    represented    the    mentality    of    male
dominance while finding a reply to following questions:

Why should Air India object to an Air hostess’ marriage before

the age of 23?

Why    should    an    Air    Indian    hostess    resign    after    becoming

pregnant?

Why should an air hostess retire at the age of 35?

All the above questions led to an answer which failed to recognize the
human capacity of a woman. When the Child marriage restraint Act
prescribes 18 years as age of marriage for girls then, why it should it be
23 for an air hostess?   

All these issues were directly related to the physical charm of a woman.
In the first place, marriage, in the second place pregnancy and in the
third place disqualification on the grounds of attaining an age of 35.
When air hostesses challenged these requirements as being against the
principles of equality, then Air India had to fabricate some defense, so
far as marriage and pregnancy were concerned. They contended that the
requirements were warranted by the population policy of the state.

The    Supreme Court upheld the first    requirement that an air hostess
should not marry before the completion of four years of service. It was
‘a sound and a statutory provision’ was the opinion of the court and the
Justice Fazl Ali felt that, ‘Apart from improving the

261
 health of the employee, it helps a great deal in the promotion and
boosting up of the Family Planning Program.’ At the age of 23 years a
woman would be a fully matured individual and then if she would get
married, the marriage also would be a great success, the court further
observed, if this age bar was removed, Air India would have to incur a
huge expenditure on recruiting additional air hostesses either on
temporary basis to replace the air hostesses who conceived.

Researcher’s Submission :

The researcher submits that in the above ruling all concerns for the
maturity of a marriageable woman and the ultimate success of her
marriage were only a camouflage for the real concern which was to
save on the huge expenditure for appointing additional air hostesses in
place of the women employees who would go on a maternity leave. It
could also be said that the Air India authorities and the judges of the   
Supreme    Court    thought    of    population    control    in    terms    of
controlling the sexuality of women.   

The second rule which was challenged was that the air hostess would
have to resign on getting pregnant. The counsel for Air India had
proposed that he would persuade Air India to change the rule so as to
make such prohibition applicable on third pregnancy. The judges held
that the requirement of resigning after the first pregnancy was
unconstitutional and discriminatory against women and ordered Air
India to change its rules regarding the retirement age of the air
hostesses. The court ordered that the retirement age of 35 for air
hostesses should be changed in such a manner to allow them to work
till the age of superannuation applicable to other employees. The
researcher    submits    with    great    respect    that the    provisions of the
262
 constitution and the rules and regulations framed by the employer
ought to have been interpreted in the light of various other legal
provisions which confer the Right to get married and the Right to have
Children upon women.

Thus, in no way Right to Marry or to Bear Children could be made

conditional in any employment. The failure of the court to
interpret the employment regulations of Air India makes one think
whether Is there any commitment to the constitutional provisions.   

Though    employment    outside    the    home    provides    women    an

enhanced    social    status,    employment    remains    a    major    source   
of discrimination.38    Women are found to suffer disadvantage by
forced to seek lower status and lower wage jobs in virtually every
society. This they have to undertake while retaining the overwhelming
burden of child care and household responsibilities. At the same time
the labor which women take in caring for the family, usually remains
unvalued and uncompensated. The researcher strongly feels that such a
task undertaken inside the four walls is unvalued because it is
uncompensated. Let us consider the following information contained in 
Human    Development    Report    in    1993    at    page    45.    By    1990,
women’s    share of the total economical active population in the
industrial countries dramatically to 42%. In East Asia it had risen to
43%, in Latin America and Caribbean to 32%, and in North Africa and
in Arab states to 13%. It is observed that women are generally
employed in a restricted range of jobs in low paid, low productivity
work. In Africa, About 78% of economically active women, work in
agricultural sector, compared to that of 64% of men. Women’s
38 -See ‘Women and CEADAW: Steiner, Philips Alston .’

263
 earnings are 50-80% of those of men thus reflecting low productivity,
low pay and ultimately inferior status. Contrary to the expectations that
men and women together contribute to the development and
advancement of a society. It was in the case of Madhu Kishwar ,39

the above statement is borne to be true in respect of equal rights of

succession to agricultural tenancy for tribal women.     

When the court recognized that the agricultural land that was toiled by a
tribal woman is a means of livelihood for her which is protected under
the Article 21 of the Constitution. Thus the Right of Male Descendents
to Agricultural Tenancy is suspended during the lifetime of tribal
women. Madhu Kishwar has drawn the attention of the court to number
of cases where there was gross violation of Human Rights of tribal
women and they were subjected to torture, mental as well as physical,
sometimes resulting in death. Thus unless and until there is recognition
of women’s rights as Human Rights also then we can expect some
social reform and the desired change in the status of women in India.
Eminent scholar Ratna Kapoor40    very aptly made a remark on the
court’s decision in the case of Nargesh Meerza. She    stated,    that   
such    pronouncements    must    be    applauded    as vindication of
constitutional rights of women.     

On one hand the court’s willingness to strike down the pregnancy

restrictions    was    an    important    improvement    in    the   
employment conditions of these women. On the other hand, it is also
significant that the court was not willing to strike-down the marriage
restriction. Nargesh Meerza’s case is a partial victory for the women
involved.
39
-Madhu Kishwar and others v. State of Bihar and others (1996) 5 SCC P. 125
40 -Ratna    Kapoor    and    Brenda    Crossman    in    subversive    sights    in    article    ‘Equality   
and at P. 211   
Family’
264
 But the same case, gives rise to an anxiety to be concerned about
women    that    challenged    the    reasoning    in    terms    of    marriage
and pregnancy restrictions.   

Maternity benefits and eligibility to the same was an issue which

was discussed in the case of Municipal corporation of Delhi    v/s
Female workers (Muster rolled) and others41    This case came up for

consideration to Supreme Court. Corporations’ contentions were that

only regular employees were entitled for the maternity benefits.   

J. S. Saghir Ahmed rejected this contention after surveying our

constitution,    fundamental    rights    and    directive    principles    of   
state policy, observed that ‘not long ago, the place of the women in
rural areas, had been traditionally her home, but the poor illiterate
women, forced by sheer poverty now come out to seek various jobs so
as to overcome the economic hardship. They also take up jobs which
involve hard physical labor. The female workers who are engaged by
the corporation on muster roll have to work at the site of construction
and repairing of roads. There services have also been utilized for
digging of trenches. As they are engaged on daily wages, they in order
to earn their daily bread, work even in an advanced stage of pregnancy
and also soon after the delivery, unmindful of detriment to their health
or to the health of new born. It is in this background, that we have to
look to our constitution, which in its preamble promises social
economic justice.42     

41 -Delhi v. Female workers (Muster Rolled) and others, (2000) 3 SCC P. 224

42 - Delhi v. Female workers (Muster Rolled) and others, (2000) 3 SCC P. 229

265
 Article 42 specifically speaks about ‘Just and Humane Conditions of
Work’ and maternity relief. If any administrative officer or an executive
denies maternity benefit then it has to be examined in the light of
Article 42. Even though it is not enforceable by law it can always
provide a valid ground for determining the legal efficacy of the action
of such denial.   

The employees of the corporation have been given the benefit available
under the Maternity Benefits Act. But the very fact that the same
benefits were not made available to the women employees engaged on
the muster role. The reason they furnished was that they were not
regular employees of the corporation.   

The    learned    Judge    on    surveying    the    various    provisions    of

Maternity Benefits Act 1961 observed that the provisions of the
Maternity Benefits Act are wholly in consonance with the Directive
Principles of State Policy, as set out in Article 39 and specially Article
42. As per these Articles a woman employee in an advanced pregnancy
cannot be compelled to undertake hard labor, as it would be detrimental
to her health and also to the health of the fetus. The Maternity    Benefits
Act    therefore    has a    provision that    a    woman carrying a child
should be entitled to maternity leave for certain period prior to and after
the delivery. The learned Judge further added, ‘We have scanned the
different provisions of the Act but we do not find anything contained in
the Act which entitles only regular women employees to the benefit of
maternity leave and not those who are engaged on casual basis or on
muster roll-on daily wage basis.43     

43 -Delhi v. Female workers (Muster Rolled) and others, (2000) 3 SCC P. 245
266
 The learned Judge rightly observed44    Delhi is a capital of India and
not any other city or corporation would be more conscious than the city
of Delhi that India is a signatory to the various International Covenants
and Treaties such as Universal Declaration of Human Rights and
CEADAW (Convention on Elimination of Any kind of Discrimination
against Women. Law provides that there should not be any prohibition,
imposition of sanctions or dismissal on the grounds of pregnancy or of
maternity leave and also on the basis of marital status. It further also
provides a directive to introduce maternity leave with pay or with
comparable social benefits without loss of former employment,   
seniority    or    allowances.    The    learned    judge    further observed
that, ‘These principles which are contained in Article 11 mentioned
above have to be read into the contract of service between Municipal
Corporation of Delhi and Women Employees (Muster Roll) and also
read under the Maternity Benefits Act, 1961.   

6.2:7 - Recognition of Personhood as a Human Right.

Gender equality will merely remain an intangible and abstract

phenomenon if women are not recognized as Human Beings and are not
entitled to Human Rights such as   

Right to live with Dignity.

Right to Privacy.

Right to Reproductive Freedom.

Equality cannot be achieved unless these rights get recognition as

Human Rights. There are certain rights which a woman ought to be

44 - Delhi v. Female workers (Muster Rolled) and others, (2000) 3 SCC P. 245

267
 entitled to. For example: Right to decide whom to Marry, Right to
decide about her partner for sex and Right to give birth to a child, Have
control over her reproductive life and to protect oneself from sexual
harassment. Denial of these rights amounts to violation of Human
Rights. The jurisprudence on Women’s Rights has in the recent past
developed towards the recognition of such rights as Human Rights. He
courts also have shown a great concern in the interpretation    of
Article    21    of    the    constitution    by    extending    its applicability
with respect to Right to the Life and Personal Liberty. This recourse of
the court has resulted in bringing Women’s Rights in the main stream of
Human Rights.45      The court has already given a liberal interpretation
of the Article 21 of the constitution so as to include within the Right to
Life, The Right to Live with Dignity.46     

6.2:8 - Right to Privacy

The Court recognized that privacy was an important aspect of

personal liberty in the case of Neera Mathur V. L.I.C .47 this is a

typical    representation    of    the    societal    approach    towards

working women.

Neera was appointed by the L.I.C. without the knowledge of the fact
that she was pregnant. After joining the said post, she went on maternity
leave, on coming back, she was served with a notice that she was
terminated from the services. She complained against such termination
and the Life Insurance Corporation pleaded that she had

45
- S. P. Sathe’s at P. 117-118
46
- Francis Coralie Mullin v. Administrator UT of Delhi (1981) SCC P. 608
47 Neera Mathur v. LIC (1992) 1 SCC P. 286

268
 not supplied them with information which they had sought through a
questionnaires.

In the Supreme Court, it was a matter of surprise as well as painful for

the learned Judges to know that, the questionnaire sought the dates of
the Menstrual Cycle and past pregnancies. The Supreme Court    said   
that    such    questions    and    asking    for    such    information
amounted to invasion of privacy of a person and therefore was
welcome. The Right to Personal Liberty Guaranteed by Article 21 of
the Constitution included Right to Privacy and here the woman’s Right
to Privacy was recognized. Information about health could be sought   
if    the    information    was    relevant    for    the    purpose.    The
information about menstrual cycle or post pregnancies would have been
relevant if LIC was selling or offering insurance cover but this was not
acceptable for selecting a person for employment. There was nothing
new in saying that privacy was an aspect of personal liberty because the
court had said so in the case of Kharaksingh vs. State of UP.48    In this
particular case, the new aspect was identification of a woman’s right to
privacy in respect of her reproductive life and menstrual cycle.   

While we propagate that the issue of human rights, is about dignity    of 
an    individual    then    certainly,    in    the    above    case    the
employee’s right as a human being seems to be infringed. Every woman
must have the right to privacy of disclosure or non disclosure of her
menstrual cycle.

48 - Kharaksingh vs. State of UP, AIR 1963, SC P. 1295

269
 6.2:9 - Test for paternity:   

It was a case of Gautam Kundu v. State of West Bengal49 the

appellant was married to respondent in Jan 1990. They lived together for
some time and there after the appellant (A), left the matrimonial home
and stayed with her parents to prepare for higher secondary
examination.    She    returned    to    her    husband’s    house    after    the
examination. In the meantime she conceived and became pregnant.
The respondent (S) and his family persuaded her to terminate the
pregnancy by undertaking abortion. She refused. She was compelled to
face brutality and cruelty both in mental and physical manner. She
returned to her parent’s home for ‘Durga Puja’ in Oct 1990 and
delivered a female child. ‘S’ refused to accept the child and take her
back.   

‘A’    filed    a    case    under    section 125 of    the    Cr.    PC.,    for the
maintenance of herself and that of child. The magistrate passed an order
awarding    a    sum    of    Rs.    300    /month    for    herself    and    Rs.
200/month for a child. ‘S’ filed an application to the high-court
demanding blood test for determining the paternity of the child. The
high court dismissed the petition and ‘S’ approached the Supreme Court
in an appeal.   

The comments of the learned Judges marked a good precedence

regarding legitimacy of child born out of wedlock. Mohan J. observed
on behalf of himself and Justice Ahmadi pointed to the well-known
maxin-‘pater-est-quem-nuptiae-demostrant’ which meant he is the
father    whom    the    marriage    indicates    (Section    112    of    the    Indian

49 - Gautam Kundu vs State of West Bengal, AIR 1993, SC P. 2295

270
Evidence Act is based on this point). A child born to a married woman
is deemed to be legitimate unless contrary is proved. Such presumption
could be rebutted by a strong preponderance of evidence and not on the
basis of probabilities. This section requires the party disputing    the
paternity    to    prove    non-access    to    oppose    the presumption.
Access    or    non-access    means    the    existence    or    non existence of
opportunities for sexual intercourse; it does not mean actual co-
habitation.   

The court made the observation as follows.   

The courts in India cannot order a blood test as a matter of

course.   
Application for subjecting a child to blood test made in order to
have a roving enquiry cannot be entertained.   
There must be a strong prima facie evidence for suspecting the

fatherhood of child which can be established only by proving

non-access.   

The    court    must    carefully    examine    as    to    what    would    be

consequences of ordering such blood test.   

The court expressed anxiety whether it could have the effect of

branding the child as an illegitimate and mother as an unchaste woman.
Such demand for subjecting the child to blood test was contrary to the
right of personal liberty guaranteed by Article 21 of the constitution. It
is the woman whose chastity needs to be proved under a patriarchal
mental setup. The feminist jurisprudence strongly expresses itself
against such blood tests and argues that a woman is presumed to be
chaste unless and until the contrary is proved.   

271
 6.3:1    -PERSONAL    LAWS    AND    HUMAN    RIGHTS    OF
WOMEN

The term personal law refers to the different sets of law governing
different communities in respect of marriage, divorce, succession,
adoption,    maintenance    and    so    on.        It    has    been    the    policy   
of Government of India not to enact uniform Civil Code unless the
minority communities themselves take the initiative to reform the
personal laws. Personal laws governing Hindus has been codified
whereas the personal laws governing minority communities such as
Muslim, Parsis, Christians, Sikhs have remained largely uncodified.

Personal laws pose a formidable challenge to the protection and enforcement of

Human Rights of women in India for three reasons                                                     

1. Personal law is held not to be a law within the meaning of Art.

13 of the constitution of India thereby effectively shielding these laws
from challenges, based on Fundamental Rights and Human Rights.

Being ancient systems of law there are several aspects of these systems
of laws which are out of time with the modern thinking and may even
be incompatible with some Fundamental Rights/Human Rights.               

2. Secondly barring few judges of the Supreme Court, the court is unwilling to
adjudicate on policy grounds delicate and complex issues like how far and to what
extent personal laws of various communities violate the Human Rights of Women in
India. The courts have adopted strategies either of holding that the challenged
features of personal laws are not incompatible with the fundamental rights or that
personal law is not a law within the meaning of Art.13.                                                         

272
3. Thirdly, there is an extremely complex issue of protection
Human Rights of women as a member of particular community whose
personal laws are perceived as integrally connected with the question of
religious code is seen as the behavior and status of women through
religious code is seen as the characteristics of community identity.    It   
was    the    case    of    restriction    on    women    to    enter    the
Sabaremala Temple in Kerala. It was held by the High Court of Kerala
that, Women who are not by custom or usage allowed to enter a place of
public worship amounts to only reasonable restriction.50      This is so
because regulating the behavior and status of women through religious
code is seen as the characteristics of community identity.

This sub-section aims at surveying the attempts made by the Supreme

Court of India and some of the high courts in protecting Women’s
Human Rights in the sphere of personal law.

This section then goes on to explore to difficulties involved in the

enactment of    Uniform Civil Code in view of the inter-sectionality
between women as person or an individual and women as a member of
the particular community.     

To facilitate clarity in understanding an analysis, the cases are divided

into two groups   

1. Where the court has held that, personal law is not a law with in
the meaning of Art.13.

50 -S. Mahendran V. Secretary , Travencore Devas Women Board

273
 2. Where the court has construed the unmodified personal Law
and    codified    personal    law,    in    a    manner    consistent    With
Fundamental Rights/Human Rights                         

In    State    v.    Narsu    Appa    Mali51 Chagla    Chief    Justice    and

Gajendragadekar,    J.    in    considering    the    validity    of    the

Bombay prevention    of    Hindu    Bigamous    Marriages    Act,1946,    said    that personal was not

included    in the ‘law’ referred to in Art.13(3)(a) and was not the ‘law in force’ sowed by Art. 372(3) and

defined in Art.13(3)(b). in Srinivas Iyer v. Saraswathi Amma52    in dealing with the madras Hindu,

Bigamous(Prevention and Divorce) Act,1949 the court fount it unnecessary to cosider whether personal

law of the Hindu    was    a    ‘law’    within    the    meaning    of    Art.    13(3)(b)    and Art.372(3). We have

seen than there is no difference between the expressions ‘existing law’ and ‘law in force’. This

conclusion is strengthened by the consideration that custom, usage and statutory    law are so inextricably

mixed up in personal law that it would be difficult to ascertain the residence of personal    law outside of

them, it was, therefore necessary to treat whole of personal law as existing law or law in force under Art.

372 and to continue it subject to the provisions of the Constitution and subject to the legislature. In

Narsu Appa’s case, both the judges said that, Art. 17 indicated that, personal law was not included in the

expression ‘law’ or ‘law in force’,53    for otherwise, that Art would be wholly unnecessary since

untouchability would have become void. (Presumably as violating equality).

51
- State v. Narsu Appa Mali AIR 1952 Bombay 84
52
- Srinivas Iyer v. Saraswathi Amma 1953 Madras 785 (52) A. M. 133
53 -Ibid

274
 Measures of social reform in personal law have been held not violate
Art. 14 or Art. 15.    In rejecting the argument that the Bombay
Prevention of Hindu Bigamous Marriage Act, 1946 discriminated
between Hindus and Muslims by enforcing monogamy on Hindus and
Not on Muslims, the court said that Art. 14 was not violated as the state
was free to embark on social reforms in stages. Even if personal law fell
within the expression ‘law in force’ used in Art. 13(1) the impugned law
did not violate Art. 15 as it did not discriminate on the ground only of
religion. The special penalties provided in order effectively to
implement the laws. The same question was considered
more fully In Srinivasa Iyer v. Saraswathi Amma54 . In holding that

the Madras Hindu Bigamous (Prevention & Divorce) Act, 1949 did not
violate Article 15 or Art. 25, the court observed that the act did not
discriminate between Hindus and Mohammedans on the ground of
religion entries 6 and 7, list-III, Schedule 7, G.I.Act, 35(which
correspond to entry 5, List-III Schedule 7 of our Constitution) under
which the impugned act was passed , conferred legislative power to
enact, alter or repeal personal laws. Though these legislative entries
could not abrogate fundamental rights, they gave an indication that the
Hindus have preserved a personal law peculiar to themselves and that
the Muslims had done likewise and that personal law was not based on
only religion. The essence of the classification was not religion as
regards Art. 25, religious practice could be controlled in the    interest
of    social    welfare    and    therefore    Art.    15(1)    was    not violated.
The court said that to accept the argument of the petitioner would be to
render personal laws of the Hindus, the Muslims and

54 - Srinivasa Iyer v. Saraswathi Amma AIR 1952, Madras 193

275
 others void, for those laws contained different provisions in respect of
various matters.

6.3:2- - Discrimination against women in personal laws

The personal laws of all religious communities are discriminatory

towards women. This point was stressed a long time ago by a women's
conference held in 1937.55    K. M. Munshi also expressed his concern
regarding this matter in the Constituent Assembly Debates.56      Some
Court's Judgments also expressed this view. Justice R.M.Sahai, in his
judgment in Sarala Mudgal's Case, said 57    Religious practices
violative of human rights and dignity and sacerdotal suffocation of
essentially    civil    and    material    freedoms    are    not    autonomy    but
oppression.    Many a times, the Courts have made such observations
about the personal laws in different judgments.

Various women activists, from time to time, expressed their concern    in

this    regard.    Various    women's    groups    and    activists belonging   
to    Forum    against    Oppression    of    Women    (FAOW), Progressive
Movement for Secularism (PMS), etc., are some of the groups.

So, it is necessary to understand how personal laws affect gender justice

and    equality    and    how    a    Uniform    Civil    Code    becomes
necessary    to    remove    the discrepancies    that    affect    gender   
justice adversely.

55 -In 1937, Viklap, Uniform Civil Code : A Debate, Mumbai : Vikas Adhyayan Kendra,
56
p. 8.     
- CAD November 23,    1948, p.448, K.M. Munshi, Para 7
57 -AIR 1995 SC 1531, Para 45

276
 Personal law, in the context of a Uniform Civil Code, is related to
matters like marriage, divorce, adoption and guardianship.58    Each
religious community is governed by its own personal law in these
matters. The personal laws of the religious communities have been
reformed and legally codified to some extent separately, even though
uniformity of all personal laws has not been achieved. But, all the legal
measures and Acts have not reformed the personal laws of different
religious communities totally, as there are many aspects uncodified and
even the codified laws have still the elements of discriminatory
provisions59 .     

The existence of various personal laws applicable to different

communities lead to confusion which results in still more gender
injustice As such, an attempt has to be made to study the personal laws
in the context of gender justice and bring home the necessity of
enacting a Uniform Civil Code, taking the best features of every
personal law, so that all women, irrespective of religion can enjoy
gender justice and equality. In view of the divergent views regarding
the role of religious communities, the role of state, the role of laws and
even the necessity of a Uniform Civil Code to provide gender justice, a
brief review of personal laws of the religious communities, codified or
un-codified, is necessary to understand the position of women in
enjoying equal rights and justice, as provided by the Indian
Constitution60 .   

58 -Durga Das Basu, 1996. Uniform Civil Code for India. New Delhi: Prentice Hall of India Pvt.    Ltd.,
p. 2.
59- The Judiciary had to respond to this in Dwarika Prasad Satpati v Bidyut Praya Dixit and Another
(Judgment given on Oct 14, 1999 (in Crl. A No. 1082, 1083 of 1999) holding that essential rites are
not required as a proof of marriage.
60    ' Introduction' of "Uniform Civil Code" by Arundhuti Roy Choudury, Pub. By Indian
Social Institute, New Delhi, 1998 (Publication No.76/98).
277
Such a review will throw light on the necessity and feasibility of a
Uniform Civil Code in the context of gender justice. For this purpose,
the different issues of a Uniform Civil Code have to be examined in
order to understand how they affect the ideal of gender justice. The
issues relevant to such a study are discussed below.

6.3:3 - Uniform Civil Code and Marriage

Marriage is one of the issues related to a Uniform Civil Code.

According to Christian and Parsi laws, both men and women are
enjoined to practice monogamy. Before the enactment of the Hindu
Marriage Act, 1955, the Hindu men were permitted to practice
polygamy whereas    the    Hindu    women    were    enjoined    to    follow
monogamy. However, the Hindu Marriage Act, 1955, enjoins
monogamy to both the spouses. According to Islamic law, the rule of
monogamy applies only to women, but men are permitted to have
limited polygamy i.e., under
certain conditions, they can have four wives simultaneously61   

Women enjoy equal status among Christian and Parsi communities

because polygamy is prohibited. As the Christians do not have a
personal law, their law of marriage is codified in various Acts like the
Indian Christian Marriage Act, 1872, the Marriage Validation Act, 1892,
etc.62   

The Parsis are governed by the Parsi Marriage and Divorce Act,

1936. For both Christians and Parsis, registration of marriages is

compulsory. Such provision would restrict men from going for a second
marriage and commit bigamy. So, the Christian and the Parsi laws
would
61. Read "Status    of Women during Jahiliya" in Asghar Ali Engineer, "The Rights    of.
Women in Islam" Sterling Publishers, 1996).
62 - G.B.Reddy,    1998. Women and the Law.        Hyderabad : Gogia Law Agency, p.26.)
278
 not affect gender justice as far as the matter of marriage is concerned.
But, the Hindu Marriage Act, 1955, which codified the practice of
marriage among the Hindus ‘did not prove to be very beneficial from
the point of view of gender justice’63 .

Though it made monogamy a rule, different loopholes in the Act affect

the rights of women. The registration of marriage was not made
compulsory. It has recommended customs and usages of the area to
solemnize the marriage. The proof of any other form of marriage is
unacceptable    in    Court.    The    provision    of    permission    of    non-
registration of marriage may give scope to the Hindu male to contract a
second marriage with impunity. There are several such cases of
polygamous marriages among the Hindus. The first wife finds it too
hard to prove the husband's second marriage. Thus, the codification of
Hindu personal law in matters of marriage has not benefited the Hindu
women in any visible manner. This defect would, however, be removed
if marriages are to be compulsorily registered, leaving the customs part
of it, only optional. ‘Compulsory registration of Hindu marriage is
certainly the need of the hour to prove the validity of a Hindu
marriage64 . In fact, compulsory of registration of marriages is
necessary to all communities irrespective of religion. The absence of
such    a    law    has    caused    tremendous    hardship    to    women    of   
all communities as the core principles of gender equality and non-
discrimination are often nullified by social practices65 .

63- Arundhuti Roy Choudury, 1998. Uniform Civil Code : Social Change and Gender Justice.       
New Delhi.        Indian Social Institute, p. 42.
64-Ranbir Singh in his article, Women and Compulsory Registration of Hindu Marriage:
Need for Uniform III, p.39). Women, Law and Social Change, Ed. By Shamsuddin Shams,   
1991.         Ashish Publishing House, New Delhi   
65 The Editorial of The Hindu, dated    15/02/2006
279
 The Muslim personal law allows the male to have four wives at a time.
Even the fifth marriage is not illegal. More so, members of Shia
community can contact Muta marriages.66 There are no codified laws

for Muslim marriages. Various schools prescribe different practices for

the marriages. The Holy Quran, in fact, has not made four marriages
obligatory. It was only a provision in conformity with some norms.
According to the injunctions of the Holy Quran, all wives must be
treated as equals. As this is not possible in reality, it may be construed
that the Holy Quran does not encourage polygamy.

6.3:4 - Divorce and Personal Laws

Prior to the enactment of the Hindu Marriage Act, 1955, Hindu

Marriage    was    an    indissoluble    union67 .    A    Hindu    marriage   
was    a sacrament in the sense that a wife could never ask for divorce or
for another husband even if her husband was a lunatic, impotent, a
leper, a deserter, a chronic patient of venereal diseases, or even when he
is dead. However, in some exceptional cases, the sages allowed a Hindu
woman to abandon her husband and take another.J Whatever be the
texts on abandonment of the husband by the wife, the predominant
authority is in favor of the indissolubility of marriage.    The Hindu
women thus have been assigned a position of subordination in the
Hindu personal law.

After 1955, this position has changed. The Hindu Marriage Act, 1955
has provided several grounds for obtaining divorce by either party.
Section 13(1) of the Act provides similar grounds to either party to

66 -The literal meaning of the word 'muta' is enjoyment. A muta marriage is a temporary
marriage. Shia community of Muslims have this system.
67- Arundhati Roy Choudhury, 1998.      Uniform Civil Code : Social Change and Gender
Justice, New Delhi : Indian Social Institute, p. 78.
280
 obtain divorce.    Section 13(2), however, provides four additional
grounds on which a woman can ask for divorce. All this shows that the
provision of divorce by the Hindu Marriage Act provides gender
justice. But it is only superficial; A woman cannot have justice due to
different loopholes in the Act. As Arundhuti Roy Choudhury says, "In a
divorce proceeding, a Hindu man can, at his whims and fancy, admit
either his first or second sexual relationship as valid marriage”. This
makes a woman in a polygamous relationship extremely vulnerable,
while it permits a man to enjoy the fruits of the relationship without any
financial responsibility. When a man refuses to validate the marriage,
the woman loses not only her right to maintenance but has to face
humiliation    and    social    stigma    as    a    'mistress'    too.    In
criminal prosecutions for bigamy, years of litigation fail to end in
convicting the errant male as the courts adopt a rigid view on the forms
of marriages which are valid. If these ceremonies are not proved in the
second marriage, the court declares the second marriage invalid.

In the case of Islamic law, a woman's position in taking divorce is in no

way equal to that of a man. It is obvious that Islamic law provides
arbitrary rights of taking divorce in favour of men. There are different
types    of divorce    in    Islamic    law68      but    the    triple    Talaq
followed in India has become controversial as it leads to grave injustice
to Muslim women. It is quite shocking to learn that a Muslim male can
divorce his wife at his will at any time and even by a telegraphic
message    or    sending    a    message    through    a    mobile    phone   
without assigning any reason. But, a Muslim woman has very limited
rights to divorce her husband. She has some safety under Talaq-e-
Tafweez, but

68 - Read The Muslim Women (Protection of Regulation on Divorce) Act 1986, Universal Publishers, p. 4.
281
 under this, a woman gets right to divorce only when her husband
delegates such a right and authorizes her to pronounce Talaq. For this,
an agreement has to be reached at the time of the marriage or any time
after that. There are two other ways, by which a Muslim woman can
seek divorce. They are Khula and Mubarat. In Khula, she begs her
husband to relieve her from the marriage tie and for this she has to
make    payment    of    some    consideration    to    the    husband.
Mubarat, however, is a divorce by mutual consent of both husband and
wife. This kind of divorce, however, does not require the woman to do
something by way of consideration and this is very near to the
provisions of divorce by mutual agreement under Section 24 of the
Special Marriage Act 1954 or under Section 13(B) of the Hindu
Marriage Act, 1955 (as amended in 1976)69 .

The dissolution of Muslim Marriage Act, 1939 has brought about a

radical change in the position of a Muslim wife. This Act may be
considered a landmark in respect of matrimonial relief to a Muslim
wife. It has provided several grounds for a Muslim wife to obtain a
divorce. This Act undoubtedly facilitates the task of Muslim women in
getting divorce.

The Christian law shows partiality towards men in the aspect divorce.
Justice V.R.Krishna Iyer, commenting on the Christian law said, "We
must remember that the Christian law, especially regarding
divorce, is atrocious and needs immediate change."70

Under the Indian Divorce Act, 1869, which regulates the law relating to
the divorce of persons professing the Christian religion and
69
G.B.Reddy,    1998.        Women and The Law, Hyderabad : Gogia Law Agency, p. 35.
70 Justice V.R.Krisna Iyer in his "Book Review" on Dinanth Raina's Uniform Civil Code and
Justice, The Hindu, 21st October,    1996 (Open page) Gender

282
 also other matrimonial clauses, the husband can obtain divorce if his
wife has committed adultery. But, the wife in order to get a divorce has
to prove two offences on the part of the husband, such as bigamy with
adultery or adultery with cruelty. Section 10 of the Act provides the
grounds on which a Christian wife can present a petition for dissolution
of the marriage through the Court. The grounds show the discrimination
between Christian husband and wife in the aspect of divorce. This does
not mean that divorce at the sweet will of one party should be granted
for the mere asking. But reasonably acceptable grounds of divorce,
particularly where one party has been guilty of cruelty should at least
receive serious consideration. In addition, divorce    by    mutual
consent    of    the    couple    should    be    available    to Christians, as it
is now available to Hindus and to persons married under the Special
Marriage Act, 1954.

The Parsi law provides similar grounds for husband and wife to obtain
divorce. It provides an additional ground to the wife to obtain divorce
‘if her husband has forced her into prostitution.’71   

6.3:5 - Personal Laws and Inheritance.

Women have right to inherit the property of their father and also from
their Father in law. Various amendments in the prevailing Laws have
been pivotal in giving the inheritance rights to women. The rights of
women to have any property by succession vary from one religion to
other, depending on the personal laws applicable to them. In the olden
days, religion played an important role in this respect. But, in due
course, most of the succession laws have been codified. However,

71 - Arundhuti Roy Choudhury, 1998.      Uniform Civil Code : Social Change and Gender Justice,
New
Delhi : Indian Social Institute, p. 79.
283
 there    is    no    uniformity    in    the    succession    laws    relating    to
women belonging to different religions. The position of women of
different religions in the matter of succession is as follows.

Prior to the enactment of the Hindu Succession Act 1956, Hindu

women had limited rights of inheritance. She had absolute rights only in
respect of Stridhan (i.e., property given to women). The other type of
property that could be devolved upon her was ‘Woman's Estate’. Even
though she could be the owner of this estate, she had virtually no power
to dispose it of or to transfer it, except under certain exceptional
conditions. More so, the rights of women in this respect had no
uniformity, as they varied depending on the School to which a woman
belonged and the nature of property that devolved upon her. Some
changes were made by the Hindu Women's Right to Property Act, 1937
in matters of succession in respect of separate property of a Mitakshara
Hindu and in respect of all properties of a Dayabhaga Hindu. ‘It
provided for right of survivorship and right of partition to a Hindu
widow of Miktakshara School in coparcenary property’. But the status
of being a coparcener was not accorded to her. The Hindu law of
succession made some improvement in this aspect. Section 14 of the
Act brought radical changes in the rights of a Hindu woman to succeed
to a property. It abolished ‘the limited ownership of a Hindu woman in
respect of the property held by her as women's estate by converting into
full ownership’72 .

In other words, the 1956 Act made no distinction between the Stridhana
and Women's estate. In spite of all this, there is some degree of
discrimination against women. Section 6 of the Act has not

72- Source: Paras Diwan and Peeyushi Diwan, 1995. Modern Hindu Law : Codified and Uncodified,
Allahabad : Allahabad Law Agency, p. 54
284
 disturbed the principle of coparcenery property on which the female
members have no such rights. But, the States of Andhra Pradesh, Tamil
Nadu, Maharashtra and Karnataka have brought amendments4 The Acts
are: Andhra Pradesh (Amendment) Act, 1986; Tamil Nadu
(Amendment) Act, 1989; Maharashtra (Amendment) Act, 1994 and
Karnataka (Amendment) Act, 1994.to the Act, in order to confer equal
rights on Hindu women along with the male members in the
coparcenery under the Hindu Mitakshara Law so that Constitutional
mandate of Equality could be achieved. These Acts recognized the
natural born daughter to acquire the status equal to that of a son. The
Acts have given her all the rights of coparceners including the right of
survivorship    and    made    her    subject    to    the    same    liabilities
and
disabilities as a son. But these Acts were subjected to criticism, as
they have brought some discrimination among the female sex itself.

Thus, different codified laws of the Hindu personal law brought many
changes in order to achieve gender justice, but the ideal of equality of
sexes has not yet been realized completely.

The Muslim law of succession is different from any indigenous parallel

system in India. Matters like self acquired property, ancestral property,
coparcenery property, etc., are unknown to Islamic law. Woman is not
excluded from inheritance on the basis of sex. Like men, she inherits
property independently. She is the absolute owner of her property. But,
the Islamic law discriminates women from men as far as the share of
the property is concerned. ‘The Islamic rules of succession    are    very   
sophisticated    but    a    general    principle    that discriminates against
women is that if there are female and male heirs of the same degree i.e.,
daughter and son or sister and brother then the female heir takes’ half of
the share of the male. So, too, a Hanifi
285
 widow takes one-eighth or in certain circumstances, a quarter of her
husband's property and a Shia widow take one-sixth of a quarter of her
husband's property. A husband on his wife's death takes a quarter or half
of his wife's property.’73   

The    Christian    law    of    succession    is    governed    by    the    Indian
Succession Act, 1925. ‘On the death of a Christian in testate male, if he
is survived by a widow and no lineal descendents, and the property is
not worth more than Rs.5000, the widow takes the entire amount. If he
is survived by a widow and lineal descendents and the property is worth
more than Rs.5000, the widow has a charge on the property for Rs.5000
and the remaining property is divided so that the widow takes    half    of 
it    and    the    children    share    the    remainder    equally. However, the
special protection for widows is not available to Indian Christians.’ On
the whole, the position of the Christian women is not as happy as was
the case of the Hindu women prior to the Act of 1956.

The ‘Parsi law of Succession’, as provided under the Indian Succession

Act, 1925 has not accorded complete equality to women in this respect.
A son gets double the share of the daughter.
6.3:6 – Maintenance in various personal Laws

Maintenance is an important aspect of personal law. There are different

provisions regarding maintenance in different personal laws. Section
125-127 of Criminal Procedure Code applies to maintenance when such
an issue comes under hearing of criminal procedure.

73 -Arundhuti Roy Choudhury, 1998. Uniform Civil Code : Social Change and Gender Justice,
New
Delhi : Indian Social Institute, p. 80.

286
Prior to the reformed Hindu enactments, the Hindu women were
entitled to maintenance from the joint family property. In 1946, the
Hindu Women's Right to Separate Residence and Maintenance Act,
1946 provided that any wife of a polygamously married husband could 
ask    for    separate    residence    and    maintenance.    The    Hindu
Marriage    Act,    1955    makes    both    the    spouses    liable    to    pay
maintenance. The order of maintenance can be rescinded if the party
obtaining    maintenance    remarries    or    has    sexual    intercourse   
with another person. Under the Hindu Adoption and Maintenance Act,

1956. a Hindu wife is entitled to be maintained by the husband in

certain circumstances, but she must remain chaste. Both Hindu men and
women are liable to maintain their children or aged parents. It may be
noted that under Section 24 of Hindu Marriage Act, 1955, the benefit of
maintenance is available not only to wife but also the husband.
Similarly, any spouse may claim permanent alimony and
maintenance74 .   

Under Mohammedan law, every Muslim is under the obligation to

maintain    his    wife,    parents    and    children.    According    to   
Islamic authorities, a divorced wife is entitled to maintenance only
during the period of lddat. This aspect became controversial when the
Supreme Court ordered one Mr. Ahmed Khan to pay maintenance to his
destitute divorcee wife even after the period of Iddat by interpreting the 
Holy    Quran    in    the    spirit    of    Section    125-127    of    Criminal
Procedure Code. This was opposed by a few sections of Muslim
community all over the country and so the Parliament passed Muslim
Women    (Protection    of    Divorce)    Act    1986.    This    Act    made   
the

74 - G.B. Reddy,    1998.        Women and the Law, Hyderabad : Gogia Law Agency, p. 57.) 287
 provisions of the Criminal Procedure Code inapplicable to Muslims
unless the parties to a marriage expressly agree to be governed by the
provision of the Code.

As for the Christian law, the Indian Divorce Act, 1869 provides that ‘a
wife can ask for maintenance in certain circumstances. The court cannot
grant maintenance worth more than one-fifth of her husband's property.
In addition, if the divorce or judicial separation was obtained by the
husband on the ground of wife's adultery, and if the wife is entitled to
some property the court has the discretion to settle that property for the
benefit of the children or husband. If the court has awarded damages to
the husband, to be paid by the adulterer of the wife, the court has
discretion to settle the money for the benefit of children or for the
maintenance of the wife’.

In so far as Parsi law is concerned, the wife ‘has a right to maintenance

but the amount cannot exceed one-fifth of the husband's income. The
order of maintenance can be reconsidered if a woman remarries or is
unchaste.’

6.3:7 - Uniform Civil Code: Need for asserting Equality.

The Indian Constitution directs the State to provide a Uniform Civil

Code for the citizens throughout the territory of India by its Article 44
(Part IV) . However, it is only a Directive Principle of State Policy and
therefore it cannot be enforced in a Court of Law. It is only the State
which can enact a Uniform Civil Code. But, the efforts of the State in
this direction are only a few. This is mainly due to the opposition of
Muslim Community' towards a Uniform Civil Code. Even the inclusion
of the provision of a Uniform Civil Code was opposed by the Muslim
members of the Constituent Assembly,
288
but Dr. Ambedkar could convince the dissenting members to retain the
provision in the Constitution. There was a long discussion in regard to
the provision for a Uniform Civil Code in the Constituent Assembly
which    met    on    23rd    November,    1948.    The    Assembly discussed
the Provision of a Uniform Civil Code as Article 35 (as Clause 39 was
renumbered). The members representing the Muslim Community2
opposed    it    even    in    the    Non-Justifiable    part.    They proposed
amendments to it and sought for the exclusion of personal laws from its
ambit. They expressed their strong concern regarding this. All of them
opposed Uniform Civil Code in general, but the degree of dimension of
such opposition may vary from one to another.    For    instance,    Pocker
Sahib    Bahadur    said    that    such    a ‘tyrannous measure ought not to
find a place in our Constitution’. Mr. Hussain Imam said, "I feel, that it
is right and a very desirable thing to have a Uniform Law, but at a very
distant date". The other members did not support the amendments,
proposed by them. Shri Suresh Cnahdra Mujumdar said, "What is being
discussed is a direct negation of    Article    35    and    it    cannot    be
taken    as    an    amendment".    Shri K.M.Munshi said, "When you want
to consolidate a community, you have    to    think    of    the    benefits
that    may    accrue    to    the    whole community" and added that a
Uniform Civil Code was essential if we wanted a unified and secular
country. There were two shades of opinion regarding the Uniform Civil
Code in the debates of the Constitutent    Assembly. Dr.B.R.Ambedkar
played a key role and pacified the members of the community by
explaining the content of the Article and even gave them an assurance.
He said that Article 35 merely directed the State to ‘endeavour’ to
secure a Civil Code and it did not ask the State to enforce it upon the
citizens. He gave them an assurance that in the initial stages, the
application of the Code might
289
 be purely voluntary and for this a beginning had to be made. He
disapproved of the argument of the Muslim members that their personal
law was immutable and for this he gave instances of how Sharati Law
was not followed uniformally by Muslims in India. Finally, the
Constituent Assembly arrived at a consensus and Article 35    was
retained    without    amendments    as    the    part    of    Directive
Principles of State Policy. Later, it was renumbered as Art. 44 and now
remains in the Fundamental Law of the Land. The various arguments
regarding    the    Uniform    Civil    Code in    the    Constituent Assembly
reveal the controversy surrounding the issue. But, the fact of its
retention in the Constitution shows the need of the Uniform Civil
Code    to    fulfill    various    constitutional    objectives    such    as
Secularism, National Integration, Gender Justice, etc. The Article
directs the State to make efforts which pave a smooth way for the
enactment of a Uniform Civil Code acceptable to all Communities. So
a    study    of    the    State's    endeavor    in    the    fulfillment    of    this
constitutional obligation is necessary to understand the status of the
Uniform Civil Code.

Uniform Civil Code: Study of few select Cases for gender Equality.

There have been many Judgments of the Courts which indicated the
necessity to have uniformity in personal laws. The judiciary has been
playing an active role in reminding the Executive from time to time to
enact a Uniform Civil Code and providing grounds for the process of
the Code, through its Judgments. The Judgments of the
Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum2    and
Smt.    Sarala    Mudgal    v.    The    Union    of    India assume    greater
importance    in    this    regard.    In    these    Cases,    the    Supreme    Court
290
 emphasised the need of a Uniform Civil Code and reminded the
government of its responsibilities in this regard.

The role of judiciary in the context of gender justice through a Uniform

Civil Code may be studied by the following Cases.

(a) Shah Bano Case and other Cases

(b) Mary Roy's Case

(c) Sarala Mudgal's Case   

a. The role of Judiciary in Shah Bano Case and other Cases

The Supreme Court's Judgment in Shah Bano Case focussed its

attention on gender justice and equality.75    - In this Case, the Supreme
Court directed Mohd. Ahmed Khan to provide maintenance to his
divorced wife Shah Bano Begum. According to the Judgment, the
CRPC    applies    to    all,    irrespective    of    religion.    Thus,    the   
Court provided    justice    to    a    woman    without    religious   
consideration)    It inteipreted Section 125 of Criminal Procedure Code
Section 125 of the CRPC deals with the right of maintenance of wife,
children and parents. The Supreme Court pointed out that the term
‘wife’ in the Section includes ‘Muslim wife’ as well. The religion,
professed by the spouse has no place in the scheme of provisions76 .   
and ordered Mohd. Ahmed Khan to pay maintenance to his wife Shah
Bano. The Supreme Court did not accept' Mohd. Ahmed Khan's
argument on various grounds. The Court said that its Judgment had not
affected the personal law of Muslims and more so it highlighted the
spirit of the
Holy Quran which provided justice to women. The Supreme Court's
76-
For full text, read para 7 of the Judgment given by Justice Chandruchud in Shah Bano case AIR   
1985 SC 945
291
 desire to see Article 44 effective is found in the judgment given by
Justice Chandrachud. He said, "It is a matter of regret that Article 44 of
our Constitution has remained a dead letter”. It provides that the state
shall endeavour to secure for the citizens a Uniform Civil Code
throughout the territory of India. There is no evidence of any official
activity for framing a Common Civil Code for the country. A belief
seems to have gained ground that it is for the Muslim community to
take a lead in the matter of reforms for their personal law. A Common
Civil Code will help the cause of National Integration by removing
desperate loyalties to laws which have conflicting ideologies. No
community is likely to bell the cat by making gratuitous concessions on
this issue. It is the state which is charged with the duty of securing a
Uniform    Civil    Code    for    the    citizens    of    the    country    and
unquestionably, it has the legislative competence to do so. A Counsel in
this case whispered, somewhat audibly, that legislative competence is
one thing, the political courage to use that competence is quite another.
We understand the difficulties involved in bringing persons of different
faiths and persuasions on a common platform. But, a beginning has to
be made if the Constitution is to have any meaning. Inevitably, the role
of the reformer has to be made by the courts because; it is beyond the
endurance of sensitive minds to allow injustice to be suffered when it is
palpable. But piecemeal attempts of courts to bridge the gap between
personal laws cannot take the place of a Common Civil Code. Justice to
all is a far more satisfactory way of dispensing justice than justice from
Case to Case.77   

It may be pointed out that even before Shah Bano Case, the Judiciary
had    provided    maintenance    to    a    Muslim    woman    and
77 - Para    32 of Chief Justice Chandrachud’s Judgment in Shah bano’s case.
292
 expressed its concern for gender justice which is the cornerstone of a
Uniform Civil Code. In Shahnlameedu v Suhaida Beevi,78      the High

Court of Kerala interpreted Section 488(3) of the (old) Criminal

Procedure Code related to wife's maintenance. It did not deny its benefit
to the wife of a bigamous Muslim staying away from him after his
second marriage. In this Case, Justice Krishna Iyer referred to the
mandate 44 in his Judgment. He said, "The Indian Constitution directs
that the State should endeavour to have a Uniform Civil Code
applicable to the entire community, and indeed when motivated by a
high public policy, Section 488 has made such a law. It would be
improper    for    an    Indian    Court    to    exclude    any    section    of
the community born and bred up on Indian earth from the benefit of
that law." Similarly, Justice Khalid made an observation in his
Judgment
in Mohammad    Haneefv    Pathummal    Beevi regarding    unilateral

divorce. He said, "Should Muslim wives suffer this tyranny for all
times'? Should their personal law remain so cruel towards these
unfortunate wives? Can it not be amended suitably to alleviate their
sufferings? My judicial conscience is disturbed at this monstrosity. "79

(b) Mary Roy's Case and Uniform Civil Code

Mrs. Mary Roy vs. The State of Kerala80 is one of the important

Cases on Supreme Court's record. In this Case, the Supreme Court

declared    that    the    Indian    Succession    Act,    1925,    supersedes
the Travancore    Christian    Act    (TCSA),    1916.    This    Judgment
helped Syrian Christian women to have an equal share along with their
brothers, in their father's property. This Judgment of the Supreme
78
- Shahnlameedu v Suhaida Beevi -,1970 KLT4
79
Ibid
80
-Mrs. Mary roy V.The State of KeralaAIR 1986 SC. P. 101

293
 Court focussed its attention on gender justice and equality - the ideals
which constitute the basis of a Uniform Civil Code.

1. The Judgment of Supreme Court in Mary Roy's Case was

subjected to severe criticism by fundamentalist forces. Their reaction to

the Judgment bears comparison to the reaction of the Muslim
fundamentalists to the Shah Bano Judgment.

In Kerala Assembly, a bill was sought81    to be introduced to revive

Travancore Christian Succession Act and other Acts which would
protect the interests of the conservative sections of the church.

However, there were some progressive elements in Christian

Community who formulated a revised version of the Christian Marriage
and Succession Acts on the concept of gender equality. They made their
drafts closer to the Special Marriage Act. In spite of some opposition
from few sections, the drafts were approved by the highest policy
making    bodies    of    the    churches.    They    were    presented    to    the
government. But, it seems, the government has not taken any step to
consider the drafts for legislation. This is due to the influence of strong
conservative religious functionaries.

(c) The role of Judiciary in Sarala Mudgal's Case and other

Cases

The Sarala Mudgal's Case82 is another milestone in the Supreme

Court's record. It projected the need for a Uniform Civil Code and
pointed out that in the absence of a Uniform Civil Code, there would

81 -The Judgment of the Supreme Court in Mohd. Ahmed Khan v. Shah Bano (AIR 1985, SC 945)
gave rise to a big hue and cry by certain sections of Muslim Political and Religious leadership. This
Judgment also directed its attention to gender justice.
82 - AIR    1995, SC    1531
294
 be clash of personal laws which would cause injustice to women. In
this case, the Court did not validate the second marriage of a Hindu
who converted himself to Islam to escape the consequences of bigamy.
This Case is Smt. Sarala Mudgal, President, Kalyani and Others

v. Union of India and Others. It is called Mudgal's Case in brief.

There are four petitions, similar in nature, termed by this name.
‘Kalyani’    is    a    registered    society    working    for    the    welfare
of women in distress.

The Court supported its stand by referring to some Cases in the past
which did not accept deliberate distortions. Justice Kuldip Singh, in his
Judgment, said, "Till the time we achieve the goal - Uniform Civil
Code for all the citizens of India - there is an open inducement to a
Hindu husband, who wants to enter into second marriage, while the   
first    marriage    is    subsisting,    to    become    a    Muslim.    Since
monogamy is the law for Hindus and the Muslim law permits as many
as four wives in India, an errant Hindu husband embraces Islam to
circumvent the provisions of the Hindu law and to escape from penal
consequences83 ”.

Justice R.M.Sahai, in his Judgment said, "The Government of India

may also consider the feasibility of appointing a Committee to enact
Conversion of Religion Act immediately, to check the abuse of religion
by any person. The law may provide that every citizen who changes his
religion cannot marry another woman unless he divorces his first wife.
The provision should be made applicable to every person whether he is
a Hindu or a Muslim or a Christian or a Sikh or

83 - Sarala Mudgal ,Para 8 Justice Kuldip Singh

295
 a Jain or a Budh. Provision may be made for maintenance and
succession, etc., also to avoid clash of interest after death."

In this Case, the Supreme Court emphasized ‘the urgency of infusing

life into Article 44 of the Constitution’84      and expressed its surprise
thus: ‘One wonders how long will it take for the Government of    the   
day    to    implement    the    mandate    of    the    framers    of    the
Constitution    under    Article 44 of    the Constitution    of    India.    The
traditional Hindu Law - personal law of the Hindus - governing
inheritance, succession and marriage was given go-buy as back as
1955-56 by codifying the same. There is no justification whatsoever in
delaying indefinitely the introduction of a uniform personal law in the
country’. The Court made several observations in this Judgment which
emphasised the need of a Uniform Civil Code in the light of different
issues which emerged as hindrances to the ideal.

The Court observed that there was no connection between religion

and personal law and the religious practices should not
violate human rights. The Judgment reads as follows: Article 44 is

based on the concept that there is no necessary connection between

religion and personal law in a civilized society. Article 25 guarantees
religious freedom whereas Article 44 seeks to divest religion from
social relations and personal law. Marriage, succession and the like,
matters of secular character, cannot be brought within the guarantee
enshrined under Articles 25, 26 and 27. The Judgment further says,
‘Religious    practices,    violative    of    human    rights    and    dignity
and sacerdotal suffocation of essentially civil and material freedoms are
not autonomy but oppression,’ and so ‘no community can oppose the
8
4
introduction of human civil code for all the citizens in the territory of
India.’

The Supreme Court in its judgment said that a Uniform Civil Code was
necessary for national integration and for the protection of the
oppressed. It    said, "A Unified Code is imperative both for protection
of the oppressed and promotion of national unity and solidarity." For
this, the Court suggested the step ‘to rationalize the personal law of the
minorities to develop religious and cultural amity’ and advised the
Government to ‘entrust the responsibility to the Law Commission,   
which    may    in    consultation    with    Minorities Commission,
examine the matter and bring about the comprehensive legislation in
keeping with modern day concept of human rights for women.’

The Supreme Court expressed its distress over the Government's failure
in enacting a Uniform Civil Code. The apex Court felt the need of such
a Code to ‘end discrimination between various religious committees in
the areas of marriage, succession and property.” The Court said that
such a Code would help in removing contractions based on religious
ideologies. This is the third time for the Supreme Court to show its
concern over the government's failure in enacting a Uniform Civil
Code.

Thus, it is clear that gender justice could be rendered in its

comprehensive sense if we have a Uniform Civil Code containing the
best provisions taken from all religions with the sole aim of doing
gender justice. As G.B.Reddy rightly remarks, "Adequate care should
be taken to see that only the rights are made Uniform and not the rituals
which are inherent part of the culture and religion as otherwise it

297
 would violate the basic structure of the Constitution viz., Secularism".
The recent Supreme Court's direction on 14th February, 2006 to the
Centre and State governments to enact legislation to make the
registration of marriages compulsory for all religious communities
should be viewed in this perspective. It may also be pointed out that
any reform related to gender justice and Uniform Civil Code must be
made simple and effective. Efforts have to be made to enable the
people to comprehend the benefits of such reforms. For this, the media
have to give a large coverage. Effective steps have to be taken to allay
the apprehension of all communities in regard to a Uniform Civil Code.
It is necessary to examine both codified and non-codified laws and
evolve gender just laws, through a democratic way and make efforts to
secure the Constitutional mandate of a Uniform Civil Code.     

6.4:1 - Violence against Women as Human Right Abuse

Number of crimes committed against women is related to sex, for

example, rape, molestation, torture, sexual harassment, prostitution and
indecent exhibition of women. People as such in general and women in
particular do not come forward to make allegations against such crimes.
The reason being, that women are looked down upon by
the society. Even today people are found o take almost the same
attitude towards women who have become victims of crimes.85     

Crimes which come under special and local laws are offences against
‘Sati Prevention Act, 1987’, ‘Dowry Prohibition Act, 1961’, ‘Immoral
Traffic Prevention Act, 1956’, ‘Indecent Representation of Women
Prohibition Act, 1986’. The offences under special and local

85- 
  Ref    Crimes    against    women    in    ‘Crime    and    Society’    by    J.    J.    Katkokayam.    A.    P.    H
Publishing Corp. at P. 119
298
 laws show objectionable social practices in India. Some of the above
mentioned practices have been existing in India for several decades and
in some cases for centuries. The International Community has
recognized    the    need    to    prohibit    violence    in    any    form
against women.86    There are several sections in the Indian Pinal Code
and other special laws for curbing violence against women which have
now received recognition as mental torture also amounts to an act of
violence against women.   

The World Conference on Human Rights called upon the General

Assembly to adopt the draft declaration on violence against women and
urged the states to combat violence against women in accordance with
the law. Violation of Human Rights of women includes murder,
systematic rape, sexual slavery and forced pregnancy.   

Violence does not restrict itself to physical or sexual abuse but in the
wake of The Domestic Violence Act, the psychological aspect of
violence was brought into the legal framework.   
6.4:2 - Dowry related violence:

Give and Take, Live and Let Live are the ways of life and when the
bride is received in the new family, she must have the feeling of being
welcomed by the bonds of love and affection, grace and generosity,
attachment and consideration that she may receive in the family of the
husband. She will definitely get into a new mould. He process has to be
a natural one and there has to be cooperation and willingness from both
the sides.87    These words were used by the

86 -Vienna Declaration, 1993 The declaration was adapted by general assembly on Feb 23,
1994. G. A. Resolution, 48/104
87
- State (Delhi Administration v. Laxman Kumar (1993) SCC 138
299
 judge while expressing the transplant theory of a young bride. The
Dowry Prohibition Act of 1961 prohibits give and take of the dowry. It
was in the early 80’s that number of women’s groups in India
campaigned to put an end to the practice of dowry. It was a kind of
violence    that    women,    particularly    young    married    women
were experiencing in their families, the harassment which the women
had to undergo as a result of demand of money or property by the
husband or relatives of the husband.   

In 1983, a series of amendments were introduced to the legal

regulations    of    dowry    and    related    violence.    The    new   
provision explained the term cruelty as harassment of married women
if she or her parents were coerced to meet the unlawful demands of
dowry by the    husband    and    the    in-laws.    The    Dowry   
Prohibition    Act    was amended again in 1986 and the punishments
were increased. The new statutory provision intended to protect women
from being harassed or killed for the purpose of dowry. It was laid
down that if a woman died within seven years of marriage and evidence
revealed that she
was subjected to cruelty or harassment prior o her death in connection

with demand of dowry, her death is to be considered as dowry death.   

The legislature intended to curb the menace of dowry death with

a firm hand. They aimed at this by adding section 302 to the dowry
related deaths. It was a very striking observation in the case of State

v. Laxman    Kumar,    where    the    husband,    mother-in-law    and

the brother-in-law were charged with murder.    The court in this case
idealized the notion of marriage and stated that every marriage involves
a transplant. When the girl is transplanted from her natural setting into
a new family, the care expected is bound to be more than
300
 in the case of a plant. A plant has life no doubt, but a girl has a more
developed one.   

The researcher submits that such kind of decisions of the court have
reaffirmed the recognition of human worth of a woman. Denial of the
court to accept that the death of a married woman was a suicide is a
reflection of humane approach adopted by the courts. In a particular
case, the court has also given the reason that if the victim was to
commit suicide, she would not take life of her minor children. The
analogies have paved the way towards curbing the violence of dowry   
against    women    and    ultimately    conferring    upon    them    the
fundamental right enshrined by the constitution, that is Right to Life
and Liberty.   

6.4:3 - Domestic Violence:

It was a remarkable day on 26th    October 2005, when the Indian

Parliament passed the bill number 116 of 2005. ‘The Protection of
Women    from    Domestic    Violence    Act,    2005’    is    a    most   
desired legislative    aid    for    treating    women    as    human    beings.   
This    act recognized domestic violence as a punishable act. This is the
first legislation in India which directly focuses on day to day suffering
of women. The term ‘Domestic Violence’ has been widened in meaning
and scope from the culture specific restriction of the dowry deaths. The
definition of Domestic Violence attributes to all categories of violence
suffered by women within their families which include all forms of
abuse and violence.88     

88- Advocate Flavia Agnes in ‘Domestic Violence Act: A Portal Hope, Vol. IV, Nov-Dec, 2005
issue

301
Certain statistical data shows us how pathetic is condition of women
throughout the world. Sample of 734 women surveyed by the
University    of    Massachusettes    –    19.5% reported    current   
physical violence at the hands of an intimate partner, with 64%
experiencing intimate partner violence ever in life as an adult.

Worcester Family Research Project (five year studies) of 436

women – 61% had been severely physically assaulted by an
intimate male oartner as adults.
In Austria, 54% of all murders are committed within families.

In Bangladesh, murder of wives by husbands accounts for 50%

of all murders.
In    Brazil,    until    1991,    wife    killings    were    considered    non-
criminal ‘Honor Killings’. In one year, almost 800 husbands
killed their wives.
In Canada, 62% women were murdered in 1987.

In Ecuador 8 out of 10 women suffer some kind of physical or

psychological violence.
In Europe, 32000 to 40,000 abused women and children are
housed in emergency shelters every day.

In Israel 42 out of 100 in 1991 were murdered by a husband or

lover.
In Japan, wife beating is the second most frequent cause of
divorce initiated by women.

In Papua New Guinea, 67% rural wives have been hit by their
husbands, 66% of husbands admitted even.   
In Norway, 25% women suffer from sexual abuse.
302
 In Peru, beating of women by their partners – 70% of all crimes
reported to the police.
In Russia, 15,000 women were murdered by their partners or
husbands in 1994.
In    U.S.    among    all    female    murder    victims,    -    26%    were
committed by husbands or boyfriends, only 3% of male victims
were slain by wives or girlfriends in 1995.
In India, National Crime Record Bureau (NCRB) registered

cases of cruelty against women by husbands and relatives, every

9 minutes. In 2003-04 the Indian National Commission for
Women recorded 902 cases of dowry harassment and 310
cases of matrimonial disputes.

Domestic violence occurs when there is a dispute between a man and a

woman inside the four walls of the house. This act aims at
curbing the ‘Misuse of Power’ by the husbands. It is not necessary
that economic crisis is only the reason for domestic violence.   

Domestic violence is manifested in numerous forms depending upon   

the    culture    of    the    society,    relevant    circumstances    and
personality    of    the    victim    as    well    as    the    respondent.    The   
most infamous form of Domestic Violence is wife battering. The
researcher submits that Domestic Violence is not limited to physical
abuse of the victim but it covers number of aspects like verbal abuse,
usage of words    with    an    intention    to    humiliate,    deprivation    of 
resources, unequal access to educational facilities, lack of medical care
and neglect. In the Indian society, rape by husband was a term which
was never welcomed as an offence. In the wake of these new
legislations, a woman is considered as a human being with an ability to
give
303
 consent.    Domestic    Violence    causes    severe    physical    injuries
and psychological and nervous damage. This sometimes results into a
physical or mental damage throughout the life. Violence against women
also denies her right to dignified life and in turn converts a woman’s
life into that of an animal or a vegetable existence. The purpose of this
act is mainly to provide justice at possible forum and make all
arrangements necessary to effectuate the right of women to approach
the court.     

There are numerous reasons for increasing incidences of domestic

violence in India. The autocratic nature of a male person is mostly
responsible for violence with female members in the family. A pathetic
picture of violence is exhibited in India by a survey that claimed89   
70% of married women aged 15-49 in India are victims of beating    or   
coerced    sex.    Women    carry    a    natural    tendency    of maintaining
silence and continue to suffer. The basic reason lies with the attitude of
Indian male towards the females. This act does not only recognize the
torture inflicted by the husband over the wife but it also recognizes the
treatment meted by any male member of the family towards the female
members of the family. It also includes physical, sexual, verbal,
emotional or economic abuse as an act of violence. The act seeks to
protect women form all forms of Domestic Violence and check
harassment exploitation from all directions in the family. Miss Renuka
Chaudhay, then the Minister for Women and Child Developmen in 2005
in an interview to CNN IBN said the the DVA 2005, is intended ‘To Set
a Direction for a Certain Societal Accepted Behavior.’   

89 - U N Population Fund Report

304
 Any conduct of a male member to which a female member could treat
as an inhuman treatment towards her has been considered as an act of
violence against her.

The Domestic Violence Act is a path breaking event for Indian Women,
as this legislation is going to definitely result in adding to the self
esteem of women as women would tend to identify the limit of their
tolerance. This will also add to their individual development ultimately 
resulting    in    enhancing    the    productivity    for    the    tasks
undertaken by the women.

6.4:4 - Rape as a Violation of Human Right of a woman

Rape is a criminal act which inflicts torture on the victim. When we

state that the criminal act of rape is a violation of Human Right of a
woman, we have to take into account a revolutionary decision of the
Indian Supreme Court. In the case of Bodhisatva Gautam v. Subhra
Chakraborty,90    the accused has entered into a false marriage with a
woman and she became pregnant. He made her undergo an abortion. He
repeated the same thing again and when she asked him to maintain her,
he disowned her on the grounds that there was no marriage. The
accused was prosecuted under the sections 312, 420, 493 and 498-A of
the IPC 1860. The court ruled that rape was not merely an offence
under the Pinal code, but it was violation of a woman’s right to live
with dignity and personal freedom.91     

Rape is a crime which destroys a woman’s self esteem and pushes her
into a deep emotional crisis. It is a crime against basic Human

90
Bodhisatva Gautam v. Subhra Chakraborty, (Ref (1996) 1 SCC P. 490
91 -Ibid

305
 Rights and is also violative of the most cherished of the fundamental
rights namely Right to Life and Liberty in Article 21. Many feminists
and psychiatrists state that rape is more of an act of aggression aimed
at degrading and humiliating women rather that only a sexual offence.   

The court has recognized that fundamental rights can be enforced even
against private bodies and individuals. Actually the rules of evidence in
rape cases need to still undergo metamorphosis. Any sexual at against a
woman is a violation of her Right to Live with Dignity. Hence there
should not be the onus on the rape victim to prove that the act was
without her consent. The consent of the complainant should be the
defense of the accused.   

Marital    Rape    -    A    woman’s    Right    to    protect    her    bodily

integrity

The issue of marital rape must be considered as rape and the provisions
of the Indian Pinal Code which excludes marital rape from the
definition of rape, should be held unconstitutional and therefore void.
Justice Sagir Ahmed has rightly stated that, “The rape laws do not
unfortunately take care of the social aspect of the matter and are
deficient in many ways.” In cases of marital rapes, there is still further
violation of the statutes as well as the dignity of a woman. Generally if
a man has sexual intercourse with a woman below the age of 16 years,
with or without her consent, he is guilty of rape but if the woman is his
wife and above 15 years of age, the act does not amount to rape.92   
Further a nominal punishment of imprisonment of either description up
to two years or fine provided if the wife is between 12-

92 -Flavia    Agnes    protecting    women    against    violence,    review    of    1980-89,    a    decade    of
legislation, in Economic and Political Weekly dated 25th    April, 1992.     

306
 15 years of age. Here the researcher submits that on Indian social
scenes, the wife is presumed to have given irrevocable consent to
sexual relationship with her husband. This aspect does not include even
her consent for the marriage itself. The husband is    not even punishable
if the act is done without the consent of the wife.   

A woman can successfully prosecute a man for rape who had sexual
intercourse with her consent when the man knew that he was not her
husband and if the woman had consented believing him to be someone
else, or believed herself to be lawfully married with him. Thus   
availability    of    legal    protection    to    sexual    activity    is    not
determined by it is happening in private or public but whether it meets
the traditional standards of morality and hence the message is clear that
irrespective of the reforms to the rape laws the tie between marriage
and sexuality is unmistakable.   

There are umpteen cases in India and all over the world where there is a
rape committed by a wedded partner. There is a need of recognizing the
forced sex with a married woman by her husband as an offence. In
order to uphold the women’s right to a dignified existence forced sex by
the husband must be considered as an offence
of RAPE. The Existing rape laws contains Spouse Exception clause

which reflects the Law’s patriarchal ideology that husbands have sole
and exclusive control over the bodies of their wives. This ideology is in
sharp contrast to the modern human rights jurisprudence according to
which every Human being whether man or a woman has a right to
decide about his own choices and has a right to oppose any act which
would be a clear humiliation of her bodily integrity.
307
 6.4:5 - Sexual harassment and Human rights of    women.

Eminent    author    Prof    S.    P.    Sathe    while    referring    to    sexual
harassment and treatment of law to it said, “The criminal law of India
does not deal adequately with sexual assaults. Either it trivializes such
assaults as an outrage of women’s modesty or subjects it to excessive
identity burden”.93     

Sexual harassment is such a topic which has not been widely expressed
by women themselves. It has received a very little attention until recent
past. Sexual harassment is such a phenomenon which has undesired
effect on women as well as their work. Women have been subjected    to 
various    forms    of    tortures    since    ages.    Advent    of development
and enhancement in education has resulted in active participation of
women in the process of development. Women were subjected to sexual
harassment even within the four walls of their house. When they
stepped out of the house for earning, they got exposed to more heinous
behavior of men towards them.   

At    work    place,    women    experiences    wide    range    of    sexual

conducts, ranging from comments to nonviolent sexual contacts and
sexual impositions. This problem goes unattended and practically
invisible where women do not have capacity to identify a particular
conduct as sexual harassment. Especially women, who are working as
casual laborers in unorganized sector, get exploited at the hands of their
employers, supervisors and co-workers. It was when educated women
came up with this complaint, this problem got a nod from the

93 -Prof. S. P. Sathe in ‘Endangering Law’ at P. 134   

308
 apex court and sexual harassment at work place was treated as an act
punishable by law.   

In the present days, all working women are vulnerable to sexual

harassment    irrespective    of    their    status,    personal    characteristics,
wishes and the kind of their employment. The recent case of a
prominent person, a senior IAS lady officer whose modesty was
outraged94 has made us think and rethink on the problem of sexual

harassment    at    work    place    with    a    socio-legal    and

psychological dimension.    It    was    a    Law    professor    from    USA,
Prof    Catherine Mackinnon, who presented a systematic study on
sexual harassment of    working    women in    1979 and    sought    a
legal    mechanism    for handling the problem of sexual harassment

Acts constituting sexual harassment

Sexual    harassment    has    been    defined    broadly    both    on

psychological and legal perspective. Noted psychologist Fitzgerald has
recognized three types of sexual harassment.

1. Gender harassment
2. Unwanted sexual attention
3. Sexual Coercion   

Gender harassment is making generalized comments and involves

behavior    that    conveys    insulting,    degrading    and    sexist   
attitudes towards specific group of women, in general without
specifying particular women.   

94 - Rupen Deol Bajaj v. K. P. Singh Gill (1995) 6 SCC P. 194

309
Unwanted sexual attention consists of unwelcome sexual behavior i.e.
unwanted and unreciprocated by recipient but that is not related to any
job related reward or punishment.   

Sexual Coercion refers to implicit or explicit threats or promises of job

related outcomes. Sexual Coercion in reference to work place implies
the solicitation or coercion of sexual activity by promise of job related
reward or threat or a job related punishment.

Above mentioned acts cover almost all cases of harassment that modern
working women face at their working place. Acceptance of this nroader
and more inclusive definition of sexual harassment can be made
applicable in substantial number of cases where women have a greatest
chance of being sexually harassed at the hands of those who possess
organizational power to hire and fire.

Analysis

Section 354 and Section 509 of IPC protect women general from
certain    categories    of    sexual    misconducts    that    seem    offensive   
or disgusting in nature. The protective measures are not enough to
safeguard the interests of working women. Above mentioned sections
are attracted only when the intention of the harasser is to outrage or
insult the modesty of a woman. Whereas at the place of work if the
employer outrages or insults the modesty of a woman employee by
gaining sexual access through the promise or reward of job related
benefits    or    gain    sexual    favors    by    giving    threats    of    job   
related punishments.

Therefore the researcher sincerely feels that the IPC does not have clear
provisions for protection of women at work place. For Example: If an
employer threatens his woman employee that she
310
 might lose her job or she could have a better job if she pleased him and
agree to have sexual relation with him. This is not treated as a crime or
an act punishable by law under the Sections 354 and section 509 of
IPC. Even though it is not a crime under IPC, but for a woman it could
be very disgusting and harassing.

The criminal law protects woman only from those conducts which are
explicitly digestive and excludes all those where the consent so
obtained by threat of job related consequences such as transfer,
termination or denial of promotion, no matter if the recipient is willing
or unwilling for the same.

Another disturbing factor of our penal remedy is the way in which the
inquiry is carried out. When the matter is reported, the police decide to
hold an inquiry the first thing the police probe into is the character    of   
the    victim    by    making    enquiries    with    her    friends, neighbors
and family members. Our legal system also encourages such type of
enquiry.

In our society most case of sexual abuses goes unreported because of

the traumatic trial procedures. Thus sexual harassment was not an
expressed issue till the Supreme Court took an initiative and gave
guidelines on the said menace.

It was in the case of Vishakha and others v. State of Rajasthan

and others95 the Supreme Court acted as a sentinel for this problem

and issued guidelines to be followed at every place wherever women

worked. The court also very clearly stated the meaning of sexual
harassment.

95 -Vishakha and others V. State of Rajasthan and others (1997) 6 SCC P. 241
311
 Meaning

Sexual harassment includes such unwelcome sexually determined

behavior as physical contacts and advances, sexually colored remarks,
showing pornography and making sexual demands whether by words or
actions. Such conduct is humiliating and causes health and safety
problems.    It    is    discriminatory    when    the    woman    has   
reasonable grounds to believe that her objection would disadvantage
her in connection with her employment, including recruitment or
promotion or when it creates a hostile working environment.   

In the case of Vishakha , a class action under the Article 32 was filed by
certain NGOs in the Supreme Court alleging that sexual harassment at
work place amounts to violation of fundamental rights of    women   
under    Article    14,    15,16,    19    (1)    (g)    and    21    of    the
Constitution.

In this case a petition was filed as Bhavari Devi, who was engaged in
preventing the performance of child marriage in Rajasthan was gang-
raped.   

In this case, Chief Justice Verma held that: ‘Each such incident results
in violation of the fundamental rights of ‘Gender Equality’ and the
Right to ‘Life and Liberty’. It is a clear violation of rights under Article
14, 15 and Article 16 of the Constitution. Violation of these rights has a
logical consequence of violation of victim’s fundamental right under
Article 1 (g) which states that one has freedom to practice any
profession or to carry out any occupation, trade or business. There is    a 
remedy    sought    under    Article 32 for    enforcement of fundamental
rights of women. The fundamental right to carry out any occupation,
trade or profession, depends on availability of a ‘SAFE’
312
working environment. Right to Life is inclusive of Life with Dignity.
Thus it is a primary responsibility of the legislature and the executive to
ensure safety and dignity trough suitable legislation and creating
mechanism for its enforcement. The learned Chief Justice felt the need
to have certain guidelines to be laid down for the protection of these
rights and fill the legislative vacuum and he rightly noted that the
meaning and content of fundamental rights are to be ascertained in the
context of International Conventions.

The freedom from sexual harassment at work place is a basic human

right and could be enforced under Article 32. However in view of
legislative vacuum and the commitment of government of India of
resolution dated 25/6/1993, following guidelines were issued for
preventing and punishing the occurrence of sexual harassment at work
place. The Supreme Court of India issued following guidelines:   

1. Prevention or deterrence of acts of Sexual Harassment.

2. Provision for the resolution, settlement or prosecution.

3. The express prohibition of Sexual Harassment as defined by

the court should b notified, published and circulated at work

places.   

4. Conduct rules or regulations should be suitably amended to

include    prohibition    of    sexual    harassment    and

punishment thereof. Similar provisions should be made in
standing orders operating    in    (Industrial    employment,
Standing    Order    Act, 1946).

5.     Creation    of    appropriate    environment    for    women    at    work

places so that no women employee should have reasonable

313
 grounds to believe that she is disadvantaged in connection with
her employment.   

6. Institution    of    criminal    complaints    where    the    conduct

complained    of    amounts    to    an    offence.    There    should

be provision for the transfer of the perpetrator or the victim from
the work place.

7. Where    the    complain    amounts    to    misconduct,    disciplinary

proceedings should be initiated.   
8. The    complaint    mechanism    should be    instituted    with    time
bound program of treatment of a complaint.   
9. Complaint Committee should be constituted headed by women

with adequate representation of women members, ensuring

fairness    of procedure,    support    services    and confidentiality.
Such committee should involve a third party or a NGO.   

Provisions    for    Report    of    a    Committee    to    the   

Government including the compliance of the employer therewith:

10. There must be provisions for suitable assistance and help for a
woman employee if the act is perpetrated by a third party.   
11. The above guidelines given by the court in the words of Chief

Justice    will    not    prejudice    any    rights    available    under

the protection of Human Rights Act, 1993.   

12. There are certain provisions which seemed to be inspired from

the    recommendations    of    CEADAW    (Convention    on

Elimination of All kinds of Discrimination against Women).

314
 CEADAW on Sexual Harassment at Work Place:

A woman employee can seriously feel the brunt of discrimination and

that the equality in employment has been impaired when she is
subjected to Gender Specific Violence such as Sexual Harassment in
the work place. There is need of effective complaining procedure and
remedies    including    compensation.    States    should    include    in   
their reports information about sexual harassment and the measures
taken to protect women from sexual harassment and other forms of
violence and coercions in the work place.   

The Indian Government ratified the above resolution on 25-6- 1993

with certain reservations. At the 4th    World Conference on Women in
Beijing, the Government of India has also made an official
commitment, inter-alia to formulate and execute a National Policy on
Women which will continuously guide and inform action at every level
and in every sector to set up a Commission for Women’s Rights to    act 
as    a    public    defender    of    women’s    Human    Rights    to
institutionalize    a    National    Level    mechanism,    to    monitor    the
implementation of the platform for action. We have therefore no
hesitation    in    placing    reliance    on    the    above    for    the    purpose 
of constructing    the    nature    and    ambit of    constitutional    guarantee
of Gender Equality in our Constitution.   

In the Indian context the meaning and the content of fundamental rights 
guaranteed    in    the    constitution    of    India    are    of    sufficient
amplitude to encompass all the facts of Gender Equality including
prevention    of    Sexual    Harassment    or    Abuse.    Our   
Constitutional scheme promotes independence of judiciary. Hence in
absence of enacted domestic law, the norms of International
Conventions are to
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 be read into them. It is now an accepted rule of Judicial Construction
that regard must be had to International Conventions and norms for
construing Domestic Law. In the absence of bill of rights in the
constitution of Australia, the High Court of Australia recognized the
concept of Legitimate Expectation of its observance in the absence of
relevant    legislative    provision.    It    was    case    of Minister    of
Immigration and Ethnic Affairs V. Teoh96               

The provision of ‘An Enforceable Right to Compensation’ is not an

alien to the concept of the enforcement of a guaranteed right. This
was referred to support the view in the case of Nilabati Behera V.
State    of    Orissa .97    It    was    stated    that    an    enforceable    right    to

compensation is not alien to the concept of enforcement of guaranteed

right. The public law remedy under Article 32 is distinct from the
private    law    remedy    in    torts.    There    is    no    reason    why    these
international conventions and norms cannot therefore be used for
construing    the    fundamental    rights    expressly    guaranteed    in
constitution of India. This actually embodies the basic concept of
gender equality in all the spheres of human activity.

In view of the above and the absence of enacted law to provide for the
effective enforcement of the basic human right of gender equality and
guarantee against sexual harassment and abuse, more particularly
against sexual harassment at work places, we lay down the guidelines
and norms specified hereinafter for due observance at all workplaces or
other institutions, until legislation is enacted for the purpose. This is
done in exercise of the power available under Article

96
-Minister of Immigration and Ethnic Affairs V. Teoh 128 Aus, LR 353 P.S.C.C.
97 - Nilabati Behera V. State of Orissa. fAIR1993 SC 1960: 1993 (2) SCC 746

316
 32 of the constitution for enforcement of the fundamental rights and it
is further emphasized that this would be treated as the law declared by
this court under Article 141 of the constitution.

The Guidelines and Norms prescribed herein are as under:

Having regard to the definition of ‘Human Rights’ in section 2(d) of the

Protection of Human Rights Act, 1993.

Taking Note of the fact that the present civil and penal laws in India do
not adequately provide for specific protection of women from sexual
harassment in work places and the enacted of such legislation will take
considerable time.

It is necessary and expedient for employers in work places as well as   

other    responsible    persons    or    institutions    to    observe    certain
guidelines to ensure the prevention of sexual harassment of women.

Duty of the employer or other responsible persons in work

places and other institutions

It shall be duty of the employer or other responsible persons in work

places or other institutes to prevent or deter the commission of acts of
sexual harassment and to provide the procedures for the resolution,
settlement or prosecution of acts of sexual harassment by taking all
steps required.

Meaning of sexual harassment under the constitution of India

commenting on Vishaka’s case, Dr. P. Ishwar Bhatt rightly observes in
his article98      Court gathered feminist vision as an input for its
reasoning from CEADAW against women, directive principles of
98 -Dr. Ishwara Bhatt in article ‘Constitutional Feminism: An Overview’ (2001) 2 SCC P. 1
317
 State policy, affirmative action policy under Article 15(3) and the idea
of human dignity. It is because of this vision that the extra ordinary type
of judicial law making in this case became non- controversial and
acceptable. Court reiterated the law laid down in Apparel Export
Promotion Council.99     

It is significant to note that sexual harassment is constituted not only

when there is an unwelcome physical contact or an advance but also
where a women employee has reasonable ground to believe that her
refusal would subject her to disadvantages in her job.

Since Vishaka did not contain any factual controversy involving

application of sexual harassment, it was merely a statement of the law.   

However, such an opportunity arose for the Supreme Court in Apparel

Export council’s case,100    where a superior officer attempted to molest
a sub-ordinate woman employee in the basement of a hotel. The woman
employee was not a stenographer nevertheless she was compelled by
her superior to take dictation. Upon a complaint made by    the    woman 
employee    against    the    superior    officer    and    a
departmental inquiry was held, and the delinquent superior officer
was found guilty and a punishment of removal was imposed on him.

The High Court set aside the order of removal on the ground that the
superior officer did not actually molest his subordinate but merely
attempted to do so. Therefore, a charge of sexual harassment cannot be
made out, and the punishment of removal was disproportionate.

99 -Apparel Export Promotion Council v. A. K. Chopra. AIR 1999 1 SCC P. 759

100 - Apparel Export Promotion Council v. A. K. Chopra. AIR 1999 1 SCC P. 625
318
 In an appeal filed by the departmental authorities, Chief Justice Anand
set-aside the decisions of the High Court in words which are worth
citing, ‘The observations made by the High Court to the effect that
since the respondent did not actually molest, Miss X but only tried to
molest her and therefore his removal from service was not warranted,
are against realism and lose their sanctity’ and credibility. In the instant
case, the behavior of respondent did not cease to be outrageous for want
of an actual assault or touch by the superior officer. In a case involving
charge of sexual harassment of attempt to sexually molest, the Courts
are required to examine the broader probabilities    of    a    case    and   
not    get    swayed    by    insignificant discrepancies or narrow
technicalities or dictionary meaning of the expression ‘molestation’.
They must examine the entire material to determine the genuineness of
the complaint. The statement of the victim must be appreciated in the
background of the entire case. Where the evidence of the victim
inspires confidence, as is the position in the instant case, the Courts are
obliged to rely on it. Such cases are required to be dealt with great
sensitivity. Sympathy in such cases in favor of the superior officer is
wholly misplaced and mercy has not relevance. The act of the
respondent was unbecoming of the good conduct and behavior expected
from a superior officer and undoubtedly amounted to sexual harassment
of miss X and the punishment imposed by the appellant was, thus,
commensurate with the gravity of his objectionable behavior and did
not warranty any interference by the High Court in exercise of its power
of judicial review.101     

101 - Apparel Export Promotion Council v. A. K. Chopra. AIR 1999 1 SCC P. 625
319
 The    Equal    Employment    opportunity    Commission    (EEOC)102   
guidelines which have been upheld by the U.S. Supreme Court, spell
out two specific categories of sexual harassment: (a)quid-for-quo (sex
for job) and (b) hostile work environment. In quid pro quo type of
harassment, the sexual activity is requested as a condition for giving a
job,    promotion,    favorable    work    assignment    or    some    job   
related benefits. It is also sexual harassment under this category where a
woman is threatened with some specific job related benefits. It is also a
sexual harassment under this category where a woman is threatened
with some specific job related benefits. It is also a sexual harassment
under this category where a woman is threatened with some specific job
related consequences, such as termination, transfer or denial of
promotion of she does not go along with the request. In quid pro quo
type, the harassment is usually perpetrated by a single man upon
another    single    woman    who    is    in    physical    proximity    with   
the perpetrator.    In    most    cases,    perpetrators    found    to    be   
employer supervisor    who    has    the    capacity    to    confer    benefits   
or    impose sanctions. Hostile work environment, as the EEOC defines,
it is unwanted conducts of    a sexual nature that have the purpose or
effect of unreasonably interfering with an individual’s work
performance or creating an intimidating, hostile or offensive working
environment. A Hostile    working    may    be    created    by    making   
sexual    comments, requests, looks, and gestures, follow and so on, so
as to make it difficult for women employees to work under
circumstances. The main problem with hostile work environment model
is that unless and until we are able to develop some objective legal
standards to test the

102 -The    Equal    Employment    opportunity    Commission    (EEOC)    (1980)    Guidelines    and
Discrimination because of sex. Federal Registered, 45 at 74676-77
320
 abusive    working    atmospheres,    we    cannot    determine    whether
a particular work atmosphere is abusive or not.

The international labor organization (I.L.O) has started          that, the

critical aspect of sexual harassment is that ‘it refers to conduct which is
unwanted by the recipients’. The U.S. Supreme Court in
Meritor Savings Bank v. Vinson103 , has also expressed the view that

the central issue in sexual harassment is the ‘unwelcome-ness to the

conduct’. The court also made it clear that evidence regarding the
plaintiff is relevant to determining unwelcomeness. Under the un-
welcome-ness    criteria,    a    woman    cannot    establish    her    case
successfully if she invited or indicated the conduct of      which she is
complaining. The courts in the United States have always considered
evidence regarding the plaintiff’s response to the harassing conducts,
her    manner    of    dress,    personality,    previous    sexual    conducts
and provocative    speech or    gestures    on    the    part    of    the    victim
when determining unwelcome-ness. In considering the victim’s
provocation behavior as a defense to sexual harassment charges, there is
always the possibility that offenders may misinterpret certain behaviors
on the part of victims, such as woman’s open speech on sexual topics as
being ‘provocative’ when she has no such intent, or she may accept her
employer’s offer to a club, although she does not wish to pursue any
intimacy beyond that. Thus, the concept of provocation is open
question.   

The    researcher    visited    Toronto,    Canada    in    may    2010    for

presenting    a    paper    at    an    International    conference    and    had   
an opportunity to visit the country side, the actual rural Northern part of
103 - Meritor Savings Bank V. Vinson 1986,477 U S 57

321
 the globe. Today also there are Mend élite Tribes where women are
actually subjected to and have no objection to the secondary and
subordinate status awarded to them. Girls and women still dress in their
traditional Mend Elite robe and are supposed to take separate entrance
at place of worship and are made to sit on separate low level platforms
or    seats    prepared    specially    for    women during    various services
(Like a funeral, Baptism, etc.) The researcher submits with all modesty
that if a developed country like Canada could have this scene    in    the
rural    Ontario,    then    in    a    country    like    India    where
development is not even at primary stage in certain villages, women are
subjected to secondary and subordinate social status. One can conclude
from the above mentioned sharp contrast that may it be a developed or
a developing nation, gender bias prevails everywhere in all the spheres
and its going to be a long way to have a society without any gender
inequality.

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