Constitutional provisions relating to women and children.

1. Preamble

• The Constitution is founded on the collective will of the people of India, without regard to
factors like caste, community, religion, or gender.

• The Preamble outlines the overarching objective of ensuring equality in status and
opportunities for all citizens.

• This goal is intended to provide equal rights to both women and men, addressing both their
status and opportunities within society.

• Additionally, the Preamble emphasizes the importance of social justice, which is further
elaborated in the directive principles of state policy.

Political Rights

• Despite women's active participation in the freedom struggle and the Constitution granting
them equal political rights, their effective representation in politics remains minimal.

• The Constituent Assembly had only seven women members, and their numbers have
decreased over time.

• Women's representation in the Lok Sabha falls well below expectations, leading to demands
for a 33% reservation of seats for women in the Lok Sabha and Vidhan Sabhas.

• Political empowerment of women was addressed by the Constitution (73rd Amendment)

Act, 1992, and the Constitution (74th Amendment) Act, 1992, which reserve seats for
women in Gram panchayats and municipal bodies.

• Challenges hindering women's political participation include illiteracy, limited political

awareness, physical violence, and economic dependence.

Economic Rights

• Several legislations have been enacted to ensure equal economic rights for women and men.

• These laws are based on the provisions of fundamental rights and directive principles of state
policy.

• Equal Pay: Legislation aims to ensure equal pay for equal work, addressing wage disparities
between men and women for the same job.

• Equality in Lifestyle: Efforts are made to promote equality in lifestyle, including access to
education, healthcare, and opportunities for women, ensuring they can lead lives on par
with men.
 • Provisions for Reservations: Some laws encourage reservations for women in organizations
and companies, providing them with opportunities and representation in sectors where they
are underrepresented. These reservations are designed to bridge gender gaps in the
workforce, promoting diversity and gender equity.

Social Justice

• The codification of personal laws in India has been a crucial step in providing social justice to
women.

• Specific legislations like the Pre-natal Diagnostic Techniques (Regulation and Prevention of
Misuse) Act, 1994, and the Medical Termination of Pregnancy Act, 1971, aim to prevent
violations of justice and humanity from the early stages of life.

• However, these laws often face challenges related to non-implementation, gender

insensitivity, and a lack of legal literacy.

• These challenges impede the realization of the constitution's goal of securing dignity for
every individual, regardless of their gender, community, or place of birth.

Article 14 of the Constitution of India holds great significance in promoting equality before the law
and equal protection of the laws for all individuals, including women and children:

Relevance to Women:

• Article 14 ensures that women in India, like men, are entitled to equal protection under the
law. It prohibits any discrimination based on gender when it comes to their rights,
opportunities, and legal treatment.

• This provision guarantees that women have the same legal standing as men, regardless of
their gender, ensuring fairness and justice in various legal matters, such as property rights,
employment, and access to education.

Article 15: Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex, or Place of Birth

Clause 1: General Prohibition of Discrimination

• Overview: Clause 1 of Article 15 establishes a general prohibition of discrimination by the

state against any citizen based on specific grounds, including religion, race, caste, sex, or
place of birth.

• Application: This clause ensures that no citizen can be subjected to discriminatory treatment
solely on these grounds. It encompasses all citizens, regardless of gender or age, and is a
fundamental provision for upholding the principle of equality.
Clause 3: Special Provision for Women and Children

• Overview: Clause 3 of Article 15 allows the state to make special provisions for women and
children, even though the general prohibition of discrimination (Clause 1) applies to all
citizens. This clause recognizes the need for specific measures to address the unique
challenges and vulnerabilities faced by women and children in society.

• Application: This clause empowers the state to enact policies, laws, and programs that aim to
uplift and protect the rights and interests of women and children. It acknowledges that, due
to historical disadvantages and disparities, additional support and protective measures may
be required to ensure equality for women and children.

Cases for 15 & 16:

C.B. Muthamma v. Union of India –

The case of CB Muthamma, a senior officer in the Indian Foreign Service, stands as a testament to
the persistent struggle for gender equality in India. Muthamma brought her case before the Supreme
Court, alleging a hostile and discriminatory environment in her workplace. Her complaints ranged
from a practice of discrimination against women to the requirement for female officers to seek
government permission before marriage and the potential resignation if marriage would affect their
work. The case highlighted the deep-rooted biases against women in the Indian bureaucracy. Two
specific rules challenged by Muthamma underscored these biases: one mandated government
permission for a woman's marriage, and the other disqualified married women from appointment.
While the Ministry of External Affairs eventually promoted Muthamma in an attempt to dismiss the
case, the Supreme Court did not let the issues raised be brushed aside. The judgment emphasized
that the problems persisted despite constitutional protections, serving as a stark reminder of the
ongoing battle for gender equality in the Indian bureaucracy.

Air India v. Nergesh Meerza –

The case of Air India v. Nergesh Meerza represents a significant milestone in Indian equality
jurisprudence, particularly regarding sex discrimination. In this landmark case, the Supreme Court's
interpretation of Article 15(1) of the Indian Constitution focused narrowly on prohibiting
discrimination "only on the ground of sex," excluding considerations of intersectional discrimination
that involve factors like age, marital status, and pregnancy. The case arose from a challenge to Air
India's employee service regulations that imposed conditions like mandatory retirement based on
age, early marriage, and pregnancy. The Court upheld these regulations, emphasizing distinctions in
pay grades and service conditions while ignoring the underlying sex-based discrimination they
perpetuated. This judgment limited the scope of sex-based discrimination and failed to address
systemic and indirect discrimination. Despite recent advancements in Indian equality jurisprudence,
the Nergesh Meerza judgment remains unoverruled, underscoring the pressing need to revisit its
constitutionality for more comprehensive protection against discrimination.
Yusuf Abdul Aziz v. State of Bombay -

In the case of Yusuf Abdul Aziz v. State of Bombay, Yusuf Aziz challenged the constitutional validity of
Section 497 of the Indian Penal Code (IPC) on the grounds that it violated Article 14 (Right to
Equality) and Article 15 of the Indian Constitution. This section of the IPC dealt with adultery,
specifically punishing men for committing adultery with a married woman without her husband's
consent. Yusuf Aziz argued that this provision was discriminatory as it assumed that only men could
commit adultery and exempted adulterous wives from punishment as abettors. The Court, in its
judgment, found that Article 15(3) empowered the government to make special provisions for
women and children. It concluded that Section 497 of the IPC did not violate Article 14, 15, or 21 of
the Constitution, asserting that sex was a reasonable and valid classification, and thus, the state
could make special provisions for women. This decision upheld the existing provision of Section 497,
where only men could be held liable for adultery, while women were exempt from prosecution as
abettors.

Sowmithri Vishnu v. Union of India –

In the Sowmithri Vishnu v. Union of India case, the petitioner challenged the discriminatory property
succession provisions of the Chota Nagpur Tenancy Act, claiming they violated constitutional equality
principles. Although the State of Bihar initiated discussions on potential amendments to the law, the
matter remained open. Justice M.M. Punchhi, delivering the judgment, examined various inheritance
laws, highlighting the unique status of the tribal groups in question who were exempt from these
laws. The Court, invoking Article 21 of the Constitution, emphasized the right to livelihood within
agricultural families and ruled in favor of suspending exclusive male succession, ensuring relief for
female dependents and descendants. It also urged comprehensive evaluation and potential legal
amendments, while recommending Central Government review of exemptions for Scheduled Tribes
in Bihar.

Article 19 :

Right to marry

• Ashok Kumar Todi v. Kishwar Jahan – Right to marry a person of one’s choice

• Lata Singh v. State of UP- There is no bar to inter-caste marriage under the Hindu

Marriage Act,1955 or any other law.

Right to livelihood

Article 21

Right to live with dignity:

Right to Live with Dignity: Article 21 of the Indian Constitution ensures the right to live with dignity,
encompassing various aspects of personal liberty and privacy. Several landmark cases have affirmed
and elaborated on this right:

• Neera Mathur v. LIC: Mrs. Neera Mathur applied for a position at the Life Insurance
Corporation of India (LIC). After successfully completing the selection process and being
appointed, she applied for maternity leave during her probation period, which was granted.
However, upon her return, she was terminated on the grounds of unsatisfactory
performance and for not disclosing personal pregnancy and menstrual information. She
appealed to the Supreme Court, asserting a violation of her right to equality under Article 14
of the Indian Constitution. The Supreme Court reinstated Mrs. Mathur, finding no evidence
of unsatisfactory performance and emphasizing that employers should not require
unnecessary personal disclosures. The Court recommended LIC remove such requirements
and cautioned against using hiring decisions to avoid providing maternity benefits, as it could
face constitutional challenges.

• Goutam Kundu v. State of W.B: The court rejected a blood test application to disprove
paternity in a maintenance suit, upholding the right to personal liberty and privacy under
Article 21.

• Surjit Singh Thind v. Kanwalijit Kaur: Medical examinations for determining virginity were
deemed a violation of a woman's right to privacy and personal liberty.

• State of Maharashtra v. Madhukar Narayan Mardikar: Even sex workers have the right to
privacy under Article 21, and this case clarified that a person cannot rape them merely based
on their profession.

• Vishaka v. State of Rajasthan: In the absence of legislation, guidelines were formulated to

protect working women from sexual harassment at the workplace.

• Suchita Srivastava v. Chandigarh Administration: This case emphasized that a woman's right
to privacy, dignity, and bodily integrity should be respected, particularly concerning
reproductive choices.

• Budhadev Karmaskar v. State of W.B: Recognizing the rights of sex workers under Article 21.

• Arumugam Servai v. State of T.N: The court condemned "honour killings" and directed
authorities to prevent such acts, safeguarding individuals' right to life with dignity.

• National Legal Services Authority v. Union of India: This case addressed the rights and
recognition of transgender individuals, further establishing the right to live with dignity.

• Gang-Rape ordered by Village Kangaroo Court in W.B: In this instance, a village panchayat
ordered a gang-rape as punishment. The court asserted that the State has a duty to protect
fundamental rights, emphasizing the importance of Article 21 in preventing such atrocities.
Article 23:

In the context of the right against exploitation under Article 23, the case of Satya Pal Anand v. State
of M.P. highlights an instance of gross exploitation. The case involved the gang rape of school-going
girls from economically disadvantaged backgrounds by 16 individuals. The Supreme Court, in its
judgment, emphasized the need to address this severe exploitation and held that the ex-gratia
compensation of Rs 2 lakhs awarded to each of the two victims was insufficient and inadequate,
reflecting the gravity of the violation of their rights. This case underscores the importance of
protecting individuals from exploitation and ensuring that appropriate measures are taken to provide
just compensation to victims of such heinous acts.

Directive Principles of State Policy (DPSP):

Article 39:
In the context of laws related to women and children, Article 39 of the Directive Principles of State
Policy (DPSP) in the Indian Constitution plays a significant role. Article 39 outlines specific principles
that the State should follow, including:

(a) Ensuring that citizens, both men and women, have the right to an adequate means of livelihood.
(d) Guaranteeing equal pay for equal work for both men and women. (e) Preventing the abuse of the
health and strength of workers, whether they are men or women, and protecting the tender age of
children. It emphasizes that citizens should not be compelled by economic necessity to engage in
occupations unsuitable for their age or physical capabilities.

These principles reflect the commitment of the State to promote gender equality, economic justice,
and the well-being of workers, particularly women and children, by addressing their unique needs
and vulnerabilities. The DPSP serves as a guiding framework for policy and legislative measures
aimed at protecting and empowering women and children in India.

Article 42:

Article 42 in the Indian Constitution underscores the State's responsibility to ensure just and humane
working conditions and provide maternity relief. It emphasizes the following points:

1. Just and Humane Conditions of Work: The State is obligated to establish and maintain
working conditions that are fair, ethical, and considerate of the well-being of workers. This
includes factors such as reasonable working hours, safe and hygienic working environments,
and fair wages. The aim is to protect workers from exploitation and provide them with
dignified conditions in which to work.

2. Maternity Relief: Article 42 also highlights the importance of maternity relief. This involves
providing support and benefits to pregnant women or new mothers in the workforce.
Maternity relief typically includes measures like paid maternity leave, access to healthcare
facilities, and protections against discrimination based on pregnancy or maternity-related
matters. The goal is to ensure that women can balance their work responsibilities with the
demands of pregnancy and motherhood without facing adverse consequences.
The State has implemented this directive by incorporating health provisions in various labor-related
laws, such as the Factories Act 1948, Maternity Benefit Act, 1961, and the Beedi and Cigar Workers
(Conditions of Employment) Act, 1966, among others.

Article 51A (e) -

One of the fundamental duties of every citizen of India, as per Article 51A(e), is to promote harmony
and the spirit of common brotherhood among all the people of India transcending religious,
linguistic, and regional or sectional diversities, as well as to renounce practices derogatory to the
dignity of women.

The provision of Article 40 of the Constitution of India pertains to the organization of Village
Panchayats, laying the foundation for local self-governance. Furthermore, the 73rd and 74th
Amendment Acts (243-D and 243-T) have extended the constitutional framework for local
governance to rural and urban areas, respectively, by establishing Panchayats and Municipalities. In
addition to these provisions, the Government of India took significant steps to address women's
issues by forming the Committee on the Status of Women in 1971, which recommended the
establishment of statutory autonomous commissions at the central and state levels. As a result, the
National Commission for Women Act, 1990 was enacted to create the National Commission for
Women, aimed at ensuring the effective implementation of measures for women's welfare and
empowerment.

Right against Exploitation

• Article 23: This article addresses the Right against Exploitation and includes various aspects:

• Human Trafficking: This involves the sale and purchase of human beings, particularly
the immoral trafficking of women and children. Parliament enacted the Suppression
of Immoral Traffic in Women and Girls Act, 1956, to combat human trafficking.

• Begging: Begging is considered a form of forced labor, where individuals are made to
work involuntarily without any compensation.

• Forced Labor: This encompasses several forms of forced labor, including working for
wages below the minimum wage without consent. It also includes bonded labor,
where individuals are forced to work to pay off debts for inadequate remuneration,
and prison labor, where prisoners in rigorous imprisonment are compelled to work
without minimum remuneration.
 • Article 24: This article deals specifically with child labor and has seen several legislative
developments over the years:

• Child Labor (Prohibition and Regulation) Act, 1986: This act aimed to regulate and
prohibit the employment of children.

• 1996: The Supreme Court directed the establishment of the Child Labor
Rehabilitation Welfare Fund, where employers who employed child labor were
required to deposit a fine of Rs. 20,000 for each child employed.

• 2005: The Commission for Protection of Child Rights Act, 2005, was enacted to
establish a National Commission and State Commission for the protection of Child
Rights and Children's Court.

• 2006: The government imposed a ban on the employment of children as domestic

servants or workers in business establishments like hotels, dhabas, shops, etc.

• 2016: An Amendment Act further addressed child labor-related issues, reflecting

ongoing efforts to protect children from exploitation and provide them with a safe
environment.

Article 39

Cases:

People’s Union for Democratic Rights v. Union of India, AIR 1983 SC 1473

In the case of People’s Union for Democratic Rights v. Union of India, the petitioner observed the
conditions in which the workers employed in various Asiad projects were working. It was observed
that children under the age of fourteen had been employed. It was however contended that such
employment was not against the Employment of Children Act, 1938 since the act did not list the
construction industry as a hazardous industry.

The Court held that the construction work falls in the field of hazardous employment. Thus, children
under the age of fourteen must not be employed in construction work even though it has not been
mentioned explicitly under the Employment of Children Act 1938. The Court also advised the state
government to amend the schedule and change the omission to include the construction industry
into the list of hazardous industries.

Sanjit Roy v. State of Rajasthan, AIR 1983 SC 328.

In the case of Sanjit Roy v. the State of Rajasthan, the state employed a large number of workers for
the construction of a road to provide them relief from drought and scarcity conditions prevailing in
their area. Their employment fell under the Rajasthan Famine Relief Works Employees (Exemption
from Labour Laws) Act, 1964. The people employed for the work were paid less than the minimum
wage, which was allowed in the Exemption Act.
The Court held that the Rajasthan Famine Relief Works Employees (Exemption from Labour Laws)
Act, 1964 is constitutionally invalid as to the exclusion of the minimum wages act. This means that
minimum wage must be paid to all the people employed by the state for any famine relief work,
regardless of whether the person is affected by drought or scarcity or not. This is essential so that the
state does not take advantage of the helpless condition of the people affected by famine, drought,
etc and upholds that they must be paid fairly for the work into which they put in effort and sweat,
and which provides benefits to the state.

Deena v. Union of India, AIR 1983 SC 1155.

In the case of Deena @ Deena Dayal Etc. v Union of India and Others, it was held that if a prisoner is
forced to do labor without giving him any remuneration, it is deemed to be forced labor and is
violative of Article 23 of the Indian Constitution. This is because the prisoners are entitled to receive
reasonable wages for the labor they did.

Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

The petitioner, Bandhua Mukti Morcha is an organization waging a battle against the horrendous
system of bonded labor. In the case of Bandhua Mukti Morcha v. Union of India, the organization
sent a letter to Justice Bhagwati and the Court treated it as a Public Interest Litigation. The letter
contained its observations based on a survey it conducted of some stone quarries in the Faridabad
district where it was found that these contained a large number of workers working in “inhuman and
intolerable conditions”, and many of them were forced, laborers.

The Court laid down guidelines for the determination of bonded laborers and also provided that the
state government must identify, release and rehabilitate the bonded laborers. It was held that any
person who is employed as a bonded labor is deprived of his liberty. Such a person becomes a slave
and his freedom in the matter of employment is completely taken away and forced labor is thrust
upon him.

It was also held that whenever it is shown that a worker is engaged in forced labor, the Court would
presume he is doing so in consideration of some economic consideration and is, therefore, a bonded
labor. This presumption can only be rebutted against by the employer and the state government if
satisfactory evidence is provided for the same.

Kahason Tangkhul v. Simtri Shaili, AIR 1961 Manipur

Before independence, there was a tradition in Manipur wherein each of the householders had to
offer one day’s free labor to the headman or khullakpa of the village. In the case Miksha v State of
Manipur, this practice was upheld as a custom that cannot be deemed to amount to forced labor.
However, the appellant disagreed to give one day’s free labor. Consequently, the respondent came
forward and filed a suit against the appellant stating that the appellant continued to ignore the
custom even after the court had given directions for it to be followed.

In the case of Rowena Kahaosan Tangkhul v Ruiweinao Simirei Shailei Khullapka, the Court, however,
allowed the appeal and held this customary practice to be violative of Article 23 of the Constitution.
It said that when a Khullakpa insists on carrying on the custom, it led to forced labor as the villagers
had to do it without receiving wages for it.
State v. Banwari, AIR 1951 All. 615

In the case of State through Gokul Chand v Banwari and Ors., the appellants including 5 barbers and
2 dhobis contested against Section 3 and Section 6 of U. P. Removal of Social Disabilities Act, 1947,
under which they were convicted.

Section 3 of the act laid down that no person can refuse to render any service to another person on
the ground that he belongs to a scheduled caste. Provided that such service lies in the ordinary
course of business. The appellants contested that this Section was violative article 23 of the
Constitution. But the Court disagreed and held that making it illegal for a person to refuse service to
some person just because that person belongs to scheduled cases does not equate to begar.

M.C. Mehta v. State of Tamil Nadu, AIR 1997 SC 699

In the case of M.C. Mehta v. State of Tamil Nadu, Shri MC Mehta undertook to invoke Article 32,
enabling the Court to look into the violation of fundamental rights of children guaranteed to them
under Article 24. Sivakasi was considered a big offender who was employing many child laborers. It
was engaged in the manufacturing process of matches and fireworks. This, the Court observed,
qualified as a hazardous industry. Thus employing children under the age of 14 years in this industry
is prohibited.

The Court reaffirmed that children below the age of fourteen must not be employed in any
hazardous industry and it must be seen that all children are given education till the age of 14 years.
The Court also considered Article 39(e) which says that the tender age of children must not be
abused and they must be given opportunities to develop healthily. In light of this, the Court held that
the employer Sivakasi must pay a compensation of Rs. 20000 for employing children in contravention
to Child Labour (Prohibition and Regulation) Act, 1986.

Right to Education

in the context of Directive Principles of State Policy:

Article 45:

• Provides for free and compulsory education for all children up to the age of 14 years.

Article 41:

• Ensures the right to work, education, and public assistance in cases of unemployment, old
age, sickness, disablement, and undeserved want.

• Subject to the state's economic capacity and development.

Article 46:

• Focuses on the promotion of educational interests of Scheduled Castes (SCs), Scheduled

Tribes (STs), and other weaker sections of society.
Articles 39 (e) and (f):

• (e) Aims to prevent the abuse of the health and strength of workers, men, and women, and
the tender age of children.

• (f) Ensures that children have opportunities and facilities to develop in a healthy manner
with freedom and dignity.

• Protects childhood and youth against exploitation and moral and material abandonment.

Right to Education and relevant legal provisions:

Article 21:

• In the Unni Krishnan, J.P & Ors v. State of Andhra Pradesh & Ors. (1993) case, the Supreme
Court established that the Right to Education is a fundamental right under Article 21 of the
Constitution for children up to the age of fourteen years.

Article 21-A:

• The 86th Constitutional Amendment Act, 2002 inserted Article 21-A, guaranteeing the
fundamental right to free and compulsory education for children between the ages of six to
fourteen years.

State of Karnataka v. Associated Management of (Government Recognized – Unaided – English

Medium) Primary & Secondary Schools &.Ors (2014):

• Article 21-A, read with Article 19(1)(a), affirms the child's right to have the medium of
education in the language of their choice.

Avinash Mehrotra v. Union of India & Ors. (2009):

• Under Article 21-A, children have the fundamental right to receive an education free from
fear, emphasizing the need for safe and secure educational environments.

Article 51 (A) (K):

• The 86th Constitutional Amendment Act, 2002 added Clause (k) to Article 51-A, making it a
fundamental duty for parents or guardians to provide opportunities for the education of
their child or ward between the ages of six to fourteen years.

Right to Education Act, 2009:

• The Act establishes entitlement to free and compulsory education for all children between
six to fourteen years, regardless of their background.

• Ensures children receive education from qualified and trained teachers.

 • Promotes values of equality and social justice through inclusive elementary education.

• Provides specific policies and guidelines for central and state governments and local bodies.

• Enforces a minimum 25% reservation for weaker sections and disadvantaged groups, aiming
for social change.

• Implements a zero-tolerance policy against discrimination.

• Prevents expulsion of children from classes until the 8th grade.

• Ensures quality education, proper teacher-student ratios, and infrastructure.

• Aims for better social integration and a just and humane society.

• Offers an easy transfer policy under the RTE Act..

• Increases enrollments and literacy rates in India.

Case laws Related to Personal laws:

Harvinder Kaur vs Harmander Singh Choudhary

In the case of Harvinder Kaur vs. Harmander Singh Choudhary, the parties were married
professionals, and a child was born to them. Disputes led to the wife leaving the matrimonial home,
and the husband filed a restitution of conjugal rights petition under Section 9 of the Hindu Marriage
Act. The wife alleged cruelty but failed to provide sufficient evidence, leading to the issue of the
constitutionality of Section 9 being raised. The Delhi High Court upheld the trial judge's decree,
declaring Section 9 of the Act constitutional. The court stressed that marriage involves more than
just sexual relations; it encompasses cohabitation, consortium, and shared responsibilities. It ruled
that a spouse cannot unilaterally leave the marital relationship without just cause, and in this case,
the wife's claim of returning only if the husband established a separate residence was deemed
unreasonable. The judgment emphasized the sanctity of marriage and the importance of maintaining
consortium and cohabitation, particularly when both spouses consented to the marriage.

Joseph Shine v. Union of India

In the case of Joseph Shine v. Union of India, a writ petition challenged the constitutionality of
Section 497 of the Indian Penal Code (IPC) read with Section 198 of the Criminal Procedure Code
(CrPC), which criminalized adultery. The petitioner argued that this provision was arbitrary and
discriminatory, violating Articles 14, 15, and 21 of the Constitution. The court, in its judgment, found
Section 497 arbitrary, as it treated only husbands as aggrieved parties with the right to prosecute for
adultery, without granting the same right to wives. The provision perpetuated the stereotype of
women being property and violated Article 15. Moreover, it undermined the dignity and sexual
autonomy of women, infringing upon their right to privacy and self-determination, as guaranteed by
Article 21. The court concluded that adultery should be a ground for divorce rather than a criminal
offense, ultimately striking down Section 497 of the IPC. The decision has generated both support
and criticism, as it decriminalized adultery and shifted its treatment towards a civil matter,
acknowledging changing societal norms.

Lily Thomas v. Union of India

a marriage was solemnized following Hindu rituals and traditions. The husband later converted to
Islam and expressed his intent to marry another woman while still married to the petitioner. The
petitioner sought to restrain her husband from entering into a second marriage. The court ruled that
if a Hindu spouse converts to another religion with the ulterior motive of contracting a second
marriage, the subsequent marriage is null and void, violating Article 21 of the Constitution. The mere
act of conversion does not dissolve the first marriage unless a divorce decree is obtained, and until
then, the initial marriage remains valid. This decision upheld the sanctity of marriage in Hindu law
and emphasized that remarrying while the first marriage is valid is forbidden, establishing the
conduct as bigamy punishable under Hindu law and relevant sections of the Indian Penal Code.

Vineeta Sharma v. Rakesh Sharma

In the case of Vineeta Sharma v. Rakesh Sharma, the central issue revolved around the interpretation
of Section 6 of the Hindu Succession Act, 2005, and its applicability to daughters' coparcenary rights
in Hindu joint family property. The case addressed whether a father coparcener must be alive on
November 9, 2005, when the amendment was enacted for daughters to assert ownership over
coparcenary property. The Supreme Court, constituting a three-judge constitutional bench,
examined various principles of Hindu law, distinguishing between unobstructed and obstructed
heritage rights. The Court ruled that the right to partition is conferred by birth of a daughter, and
whether the father coparcener was alive or not on the amendment's enactment date was
immaterial. It clarified that Section 6's provisions were retroactive but not retrospective. This
decision overruled previous judgments and resolved a contradiction in the law regarding daughters'
coparcenary rights in joint Hindu family property.

Sarla Mudgal v/s Union Of India

In the case of Sarla Mudgal v. Union of India, the Supreme Court addressed the issue of individuals
exploiting religious conversion to contract second marriages while evading the dissolution of their
prior marriages. Petitioners argued that such actions violated personal laws and the fundamental
right to freedom of religion. The respondents contended that Muslim personal law, which permits
multiple marriages, should apply to other personal laws as well. The Supreme Court ruled that
religious conversion does not dissolve prior marriages under the Hindu Marriage Act, and second
marriages contracted in this manner are illegal. The Court emphasized the need for a Uniform Civil
Code in India to uniformly regulate matters related to marriage, divorce, and more across all religious
communities. This case underscored the importance of upholding the integrity of the law and
ensuring uniformity in personal matters across different religious communities.

Shah Bano Judgment

In Shah Bano, the issue was whether Section 125 applies to Muslims or not. Whether or not a
Muslim woman, who is unable to maintain herself, can demand maintenance from her husband after
the iddat period. SC held that Section 125 is secular in nature and not associated with any personal
law. It was enacted for quick maintenance and to prevent destitution and vagrancy. Justice
Chandrachud held that personal law (Shariat) could not override the constitutionally framed law
(Section 125). Therefore, a Muslim woman, who is unable to maintain herself, can demand
maintenance from her husband even after the iddat period. The husband is legally bound under
Section 125 of the CrPC to pay maintenance.

Danial Latifi V Union Of India

The constitutionality of the Act was challenged in Danial Latifi. It was contended by the petitioners
that the Act was less beneficial than Sections 125-128 of the CrPC. Further, it unreasonably
discriminated against Muslim divorced woman and violated their rights under Articles 14, 15,
and 21 of the Constitution. Also, it sought to nullify the SC’s decision in Shah Bano.

However, the SC upheld the constitutional validity of the Act. It held that there is no discrimination
when the state has made a specific provision for a particular community that is equally or more
beneficial than the general law. The Act does not nullify or go against the ratio decidendi of the Shah
Bano but merely codifies it.

Shayara Bano v. Union of India

In the case of Shayara Bano v. Union of India, Shayara Bano, a Muslim woman, challenged the
constitutionality of triple talaq (talaq-e-biddat), polygamy, and nikah halala, arguing that they
violated fundamental rights of women under the Indian Constitution. The Court formed a five-judge
constitutional bench to address the issues. The petitioner contended that triple talaq was not
recognized in the Shariat Application Act, emerged as a wrong interpretation without Quranic
sanctions, and sought its ban. The respondents argued that personal laws were outside the scope of
judicial review and protected by Article 25, stating that women had options like registering marriages
and prohibiting talaq-e-biddat in Nikahnama. The Court, by a 3:2 majority, declared triple talaq
unconstitutional, emphasizing its lack of Quranic sanction and violation of fundamental rights, and
directed legislative measures to address the issue, highlighting the need for gender equality and
reform in personal laws.
How to make POSH gender-neutral?

To make the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal)
(PoSH) Act gender-neutral, it is essential to focus on amending and adapting organizational policies
while advocating for legislative changes. The Act, while addressing sexual harassment against
women, currently lacks provisions to address harassment concerns of individuals of all gender
identities. In response to this gap, organizations should draft gender-neutral PoSH policies that
prioritize equality and safety for all employees, irrespective of their gender identity. These policies
should be guided by the following objectives:

1. Embrace the Right to Equality: The policy should align with Article 14 of the Indian
Constitution, promoting the fundamental right to equality. It should recognize that every
employee, regardless of their gender identity, deserves protection against sexual
harassment.

2. Nurture a Inclusive Work Environment: The policy should create a working environment that
is welcoming and psychologically open for individuals of all gender identities. It should
encourage diversity and inclusion, making it a safe space for everyone.

3. Strive for Gender Justice: The policy must seek to uphold principles of gender justice across
all levels of the organization. It should not discriminate based on gender identity and ensure
that all employees are treated fairly.

The preamble to the PoSH policy should explicitly state the organization's commitment to being
gender-neutral and promote inclusivity. For example, it can read: "The PoSH policy of [Company
Name] is gender-neutral, aligned with the PoSH Act, 2013. We are committed to addressing the
concerns of all vulnerable minorities, including employees of all gender identities."

The policy should encourage all employees to report any incidents of sexual harassment and
emphasize that sexual harassment is unacceptable, regardless of the gender of the victim or the
perpetrator.

To address the rights of all employees effectively, the policy should acknowledge that discrimination
against people of different gender identities violates fundamental rights under Articles 14, 15, and 21
of the Constitution of India. It should explicitly prohibit such discrimination and sexual harassment in
the workplace.

Increasing awareness about workplace culture is crucial. The policy should encourage employees to
be sensitive to cultural differences and be mindful of their behavior towards all colleagues. It should
emphasize that everyone should respect the diverse sensitivities and cultural backgrounds of their
co-workers. The policy should state that any behavior that transgresses the boundaries of cordiality
expected in the workplace is discouraged.

The policy should also make it clear that sexual harassment can be committed by individuals of any
gender identity and should treat all complaints seriously.
To maintain the integrity of the policy and prevent misuse, it should include provisions for strict
action against false or malicious complaints. For example, it can state that making a false sexual
harassment complaint will be treated as a misuse of the policy, leading to stringent consequences.

Furthermore, recommendations for creating a gender-neutral PoSH policy include adopting inclusive
definitions, extending the scope of complainants to cover all employees, and using the term
"aggrieved person" instead of "aggrieved woman" to make the policy fully gender-neutral.
Organizations should strive to lead by example and create a safe and equal working environment for
all their employees, regardless of their gender identity. In parallel, they should advocate for
legislative amendments to ensure comprehensive protection for all individuals under the PoSH Act.