SOME REFLECTIONS ON THE SPECIAL WELFARE LAWS FOR WOMEN: SOCIAL AND LEGAL CONTOURS
[Vol 1/ Issue 2/ Apr 2015] [ISSN 2394-9295]
Dr. Meenu Gupta
Amity Law School, Noida
In recent years, there has been a growing realisation that development goals cannot be achieved unless gender inequalities are removed and women are empowered to choose and decide their own welfare, the welfare of their families and the communities in which they live. Women constitute about half of the population and there is a shift in thinking about women‟s role in development. The new philosophy suggests that development was only made possible by the involvement of women in development projects. Our Constitution envisages a new social order, one feature of which is gender equality and justice. This constitutional wisdom of gender justice and equality is reflected in its Preamble, and Articles on Fundamental Rights, Fundamental Duties and Directive Principles of State Policy. Within the framework of a democratic polity, our laws, development policies, plans and programmes have aimed at women‟s advancement in different spheres. The Constitution has authorized the legislatures to pass special protective laws in favour of women to undo the injustices done to them for ages. A large number of such laws have actually been passed under this head. These laws can misguide anyone. They create an illusion that women enjoy a privileged position in our society and have special rights at the cost of men, but illusion is short-lived and vanishes the moment one starts delving with facts. It is indeed misfortune of Indian women that in spite of many international as well as national documents, that guaranteed gender equality, discrimination, violation of their human rights and violence against women continues.
The Constitution of India not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour of women for neutralizing the cumulative socio economic, education and political disadvantages faced by them. Fundamental Rights, among others, ensure equality before the law and equal protection of law; prohibits discrimination against any citizen on grounds of religion, race, caste, sex or place of birth, and guarantee equality of opportunity to all citizens in matters relating to employment. Articles 14, 15 (1), 15(3), 16, 39(a), 39(d), 39 A, 42, 46, 47, 51A (e), 243 D (3), 243
D (4), 243 T (3) and 243 T (4) of the Constitution are of specific importance in this regard.
India has also ratified various international conventions and human rights instruments committing to secure equal rights of women. Key among them is the ratification of the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in 1993. To translate this ideal into reality and to unshackle women from the bonds of tyrannical age old customs and practices and the improvement their states in society, the legislature has enacted several new statutes and amended the existing ones. The most pertinent of them are:
- The Immoral Traffic [Prevention] Act, 1956,
- The Dowry Prohibition Act, 1961,
- The Medical Termination of Pregnancy Act, 1971,
- The Indecent Representation of Women (Prohibition) Act, 1986,
- The Commission of Sati (Prevention) Act, 1987,
- The National Commission for Women Act, 1990,
- The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994,
- The Protection of Women from Domestic Violence Act, 2005,
- Prohibition of Child Marriage Act, 2006.
THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956
The Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) was enacted in pursuance of an
―International Convention for the Suppression of Immoral Traffic in Persons and the Exploitation of the Prostitution of Others , signed at New York on 9th May, 1950. The Constitutional mandate under Article 23 is prohibition of trafficking and all forms of exploitation. This was aimed at putting an end to all forms of trafficking in human beings including prostitution and beggary. The Act came in to force on 1st May 1958. Its principal object is to prevent commercialization of the vice and trafficking among women and girls. The Act was amended in 1978 and than in 1986 and is now titled ―The Immoral Traffic (Prevention) Act . It is applicable to both men and women.
If this social evil is to be put end to, then vigorous legal and social measures against the male participant should also be taken. Further, the law mandates that the prostitute requires correction and rehabilitation and the discretion to decide this is given to the judge who is usually a male. Naturally, the judge regards the prostitute as a nuisance and a bad woman from whom the civil society is to be protected.
The Act empowers special police officers to enter and search the brothels and to rescue and remove the women believer to be carrying on prostitution. After a summary procedure the rescued / removed woman is locked in a protective home for either temporary or long term detention where the state takes care of her. Cases of Agra Protective Home and the Nari Sadans are known for their notoriety.
The woman can be released to the custody of any person who assures the Courts, on a Bond, her proper care, guardianship, education, training etc. Usually the pimps or brothel owners pose as guardians and take the custody of the rescued woman. And the vicious cycle continues.
THE DOWRY PROHIBITION ACT, 1961
The customs that a community adopts in its infancy are generally those that promote its physical and moral well-being. If these customs are retained until new social needs give rise to new practices, then the progress of the society is almost certain. But since customs are obeyed by the multitude that are incapable of understanding the true ground of their expediency, some customs persist irrespective of harm they do to society. A usage that was reasonable generates a custom that is unreasonable. On such time honored custom in India, which has put women in exploitative, humiliating and perilous position, is the practice of dowry. The ancient Varadakshina‘, which was voluntarily given by the father of the bride, was a token gift attending the main gift of the daughter. What was given to the daughter at the time of Kanyadaan was regarded as her Stridhana. It was a sign of filial affection to the daughter who was leaving her natal home. It was also a source of financial security to the daughter in adverse circumstances. Subsequently, it becomes a symbol of status and prestige for both the parties. And in modern times it has degenerated into a commercial transaction.
Today, the evil of dowry has a spread by leaps and bounds. A Hindu custom, originally prevalent only in Northern Indian Communities has to-day spread nationwide crossing religious, regional and caste barriers. The practice has degenerated into a crime of greed and cruelty against Indian Women.
To curb this menace of dowry, the Dowry Prohibition Act of 1961 was passed. The Act was amended twice, first in1984 and then in 1986, to make it effective. This act is a small penal statute consisting of only ten sections. The act makes the giving and taking of dowry as well as its abatement an offence to be visited with imprisonment or fine or both. A demand for dowry is also punishable. An agreement entered into for giving or taking dowry so void. Advertisements offering dowry are prohibited and the advertiser and the circulator of such an advertisement are liable to punishment. Any dowry, if given, is held for the benefit of the wife. Every offence under the Act is cognizable, non-bailable and non- compoundable. The burden of proof is shifted on the defence. Persons prosecuted for the offence are presumed guilty unless they prove their innocence. Courts shall take cognizance of the offence even if the complaint is filed by social welfare organization.
The act provides for appointment of Dowry Prohibition officers and Establishment of Advisory Boards, which must consist of social welfare workers, two of whom must be women. Amendments to the Dowry prohibition Act entailed a series of related changes on the I.P.C., Cr.P.C. and the Evidence Act. Sections 498A and 304B were added to the I.P.C. These sections deal with Cruelty and Dowry Death respectively. Section 174 of the Cr.P.C. was amended to secure post-mortem in case of suicide or death of a woman within seven years of marriage. Sections 113A and 113B was added to the Evidence Act, which raised a presumption of guilt against the husband or his relatives in case of dowry death.
Despite the Dowry Prohibition Act and the amendments made to I.P.C., Cr.P.C. and the Evidence Act, wives continue to be harassed, tortured and burnt in their homes. Dowry is yet being taken on a larger and vulgar scale. It requires a political as well as a social will to cleanse our society of this deep-rooted social evil. Legislation is an outcome of political will and action. Legislation is essential and necessary for its gives the necessary push as well as legal sanction. It can induce a social action, but alone by itself, it cannot eradicate a firmly embedded social ill. The centuries-old practice of dowry has acquired a social acceptance that cannot be wished away by mere legislation. One has therefore to approach it from another angle too. Being a social evil, it has to be fought on a social plane. It requires a multi- dimensional approach. The question of dowry must not be de-linked from deeper social realities and seen as an isolated issue.
THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971
Despite the provisions of the IPC [Ss. 312-316] that punished persons causing miscarriage, preventing a female child from being born is commonplace in India. And therefore, the Medical Termination of Pregnancy Act, 1971 was enacted to regulate termination of pregnancies. This Act was amended in the year 2002 & again in 2005.
The Act legalises induced abortion by qualified Doctors on humanitarian and medical grounds. This is primarily a welfare measure to protect the health of women though it has also a family planning aspect. Women can now have induced abortion through qualified people. The service is free in public hospitals. All the documents are kept confidential. The act, consisting of just 8 sections, deals with the various aspects like the time, place and circumstances in which a pregnancy may be terminated by a registered medical practitioner. It legalizes abortion in case where there is a failure of contraceptives or where the pregnancy will adversely affect the physical or mental termination of pregnancy, consent of the pregnant woman is a must unless she is a minor or lunatic when her guardian‘s consent is required.
On the one hand, the act has totally failed to prevent female foeticide and the other hand it has impinged more heavily upon the pregnant woman than her husband who impregnates her. The consent of the pregnant woman is a myth. Her sex planning is conditioned by the patriarchal society.
Second, the act permits abortion only in certain circumstances. Abortion must be decriminalized because otherwise the woman is compelled to resort to hasty, last moment and illegal abortions by quacks, unethical and unqualified abortionists. In extreme cases, a woman resorts to self-abortion. Further, such abortions are often performed under unsanitary and unhygienic condition and without the safeguards normally present in a hospital. All this often results in the death of the unfortunate woman.
It is evident then that the act fails to achieve a balance / equilibrium between the right of the unborn to be born and the right of the woman, who bears, gives birth and rears the child, to decide whether she wants the child or wants to abort the foetus.
The Act creates a presumption, unless the contrary is proved, that the pregnant woman was compelled by her husband and relatives to undergo the technique and the husband and the relatives shall be punished if the technique is misused. Even the geneticist / gynecologist who owns the centre or is employed at such a centre and who renders services, whether honorary or otherwise, and who contravenes the provisions of the Act shall be punished. Every offence under the Act is cognizable, non-bailable and non-compoundable.
This law too has failed to do justice to the woman. The reason is that though the language of the Act appears to be gender-neutral, the law is not. It not only conceals but also sanitises to social reality that it is only the female fetuses that are being intentionally harmed. Ninety-eight percent of the abortions carried out after the sex determination tests are of the females. Similarly, though the Act talks about the written consent of the pregnant mother before the technique is administered to her, the law fails to recognize the social reality that a woman cannot make a free choice. She is socially conditioned to accept that if she does not give a male heir to the family, she has no social worth. Her husband will most probably divorce her or her husband may go in for a second marriage or an illicit relationship.
THE INDECENT REPRESENTATION OF WOMEN [PROHIBITION] ACT, 1986
The law relating to obscenity in this country is codified in Sections 292, 293, and 294 of the I.P.C. In spite of these provisions, there is a growing body of indecent representation of woman or reference to woman in publication, particularly advertisements that have the effect of denigrating women or are derogatory to women or corrupt public morality. Though there may be no specific intentions in these advertisements, publications, writings, paintings, figures, etc., have an effect of depraving or corrupting persons.
In order to prevent derogatory depiction of the women in media, The Indecent Representation of Women [Prohibition] Act, 1986, was passed. The act prohibits indecent representation of women through advertisements , publications, writings, paintings, figures etc., and also prohibits selling, distribution, and circulation of such matters. Every offence under the act is cognizable and bailable.
This Act was passed with the objective of providing a separate Act in as much as a number of references to women in publications particularly in advertisements, which are considered obscene, are on the increase. The salient features of the Act are as follows: –
- Indecent representation of women has been defined to mean the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent or of being derogatory to or denigrating women or is likely to deprive, corrupt or inure the public morality, of any person or persons of any class or age group, notwithstanding that persons in any other class or age group may not be similarly affected.
- All advertisements, publications etc., which contain indecent representation of women in any form are prohibited.
- Selling, distribution, circulation of any books, pamphlets etc., containing indecent representation of women is prohibited.
- Offences under the Act are made punishable with imprisonment of either description for a term extending to two years and fine extending to two thousand rupees on first conviction. Second and subsequent convictions will attract a higher punishment.
- Under Section 4 of the Act exemptions have been given to the publication, which are in the interest; of science, literature, art or learning, which are used for religious purposes, any representation sculptured, engraved, painted or otherwise represented on any ancient monuments, archaeological sites, remains, any temple and any film in respect of which the provisions of part II of the Cinematographic Act, 1952 will be applicable.
But this Act fails to distinguish between indecent representation and obscenity as defined under section 292 of the I.P.C. The Act prevents a woman from being portrayed as sexual object in minimum cloths or as a seductress, but what about a woman who is projected in a saree but have an effect of depraving or corrupting persons by her obscene gesture and dual meaning words? Is this not indecent representation of womanhood?
THE COMMISSION OF SATI [PREVENTION] ACT, 1987
Commission of Sati reflects the man‘s desire to have absolute control over his wife not only in this world but also in the world thereafter, if any. It also sets to rest any question of inheritance or share in property that may have accrued to the widow from her deceased husband. This obnoxious and barbaric custom of Sati in which the widow is burnt alive on the funeral pyre of her deceased husband, was outlawed in 1829. In 1987, the Deorala incidence in Rajasthan, in which the 18 year- old Roop Kanwar was forced to commit Sati, set the country on flame. This incident took place despite the sections of IPC relating to murder, abatement to commit suicide, etc. worse still the role of the Government, judiciary and others was shocking. This entailed the enactment of the Commission of Sati [Prohibition) Act in 1987.
The Act provide for more effective prevention of the commission of Sati and its glorification and for matters connected therewith or incidental thereto, whatever attempts to commit Sati and abates the commission of Sati, directly or indirectly, is punishable [death or life imprisonment and fine]. What is important is that the abettor is now disqualified from inheriting the property of the person in respect of whom such Sati is committed.
Glorification of Sati [defined exhaustively in the Act] is punishable and the Collector/District Magistrate has the power to seize, properties and funds collected for the purpose of glorification of commission of Sati. The Act also provides for removal of temples/structures where worship or ceremonies are performed with a view to perpetuate the honour of or to preserve the memory of any person in respect of whom Sati has been committed. The Act provides for Special Courts to take cognizance of offences committed under the Act.
Despite the law, data clearly shows that in rural parts of Rajasthan commission of Sati is not perceived as a crime/wrong at all in social, legal or moral sense. It is viewed as a cultural phenomenon. One major drawback of the Act is that it punishes the woman who attempts to commit Sati. This reinforces the assumption that the act of Sati arises out of choice or free will of the unfortunate widow. But the reality is something else.
THE NATIONAL COMMISSION FOR WOMEN ACT, 1990
The enactment of the National Commission for Women Act, 1990 was a step in the right direction. It was a measure taken to secure a better status for women in India. This is evident from the numerous functions that the Act envisages to be discharged by the Commission.
The act provides for the constitution of the National Commission for Women, the term of office and conditions of service of the Chairperson and Members, officers and others employees of the Commission, salaries and allowances to be paid to the Chairperson, Members, Officers and others, vacancies, committees to be appointed by the Commission, procedures to be regulated by the Commission and most important the various functions to be discharged by the Commission.
The National Commission for Women was constituted under the Act on 31st January, 1992 to exercise powers and perform functions assigned.
It is paradoxical that the Commission is entrusted with the function of improving the status of women in India, but it is not assigned any constitutional status. Further, the Commission can make only recommendations and send them to respective bodies for action. It has limited judicial powers and cannot provide direct relief to women in distress.
The Commission on the basis of the guidelines in the Vishaka case, prepared the code of conduct at workplaces and also for students. It also prepared a scheme in pursuance of the Hon‘ble Supreme Court‘s judgment in Delhi Domestic Women‘s Forum v. Union of India, which provided for compensation, counselling and rehabilitation of women victims.
Examining the role of Kerala Women‘s Commission under the Act of 1995, the Kerala High Court in Joseph
- State of Kerala, negated the contention that the functions of the commission as mentioned under the Act do not take in its sweep determination of relationship between a man and woman. The Court held that while performing its functions, the commission shall have every power and jurisdiction to inquire into any unfair practice alleged. The mere fact that the commission would not have power by itself to take decision after entering into a finding or unfair practice does not mean that it does not have power to inquire into unfair practices. That apart, it would be well made from a reading of the provisions contained in Section 17 of the Act of 1990, that while making an inquiry into an unfair practice, the commission on receipt of a complaint from any woman alleging that she has been subject to any unfair practice, can proceed to inquire into the matter and take a decision thereon and if the commission may find that there is unfair practice, it shall recommend to the Government the action to be taken thereon.
In spite of this the Commission has a long way to go. In order to uplift the Indian women, the Commission will have to review all the laws – substantive as well as procedural and recommend either enactment of new laws that are gender just or amendment to the existing ones to make them gender sensitive. This task is rendered more onerous today in view of the government policies of globalization, liberalization and privatization, which have not only reinforced the old in equities but also generated new inequities between men and women.
THE PRE-CONCEPTION AND PRE-NATAL DIAGNOSTIC TECHNIQUES (PROHIBITION OF SEX SELECTION) ACT, 1994
India has always possessed the hateful legacy of killing the female child. Earlier, because scientific techniques were not advanced and it was impossible to determine the sex of the child, the killing of the female child took the form of adding opium to the infants‘ milk or by suffocating the infant under the mother after birth or else by plainly ill-treating daughters. Now it is given a sophisticated aura of education by the perverse use of scientific technology. The government realized that the abuse of techniques, which were originally used to detect genetic disorders or chromosomal abnormalities or congenital abnormalities or sex-linked diseases, was leading to female foeticide which was discriminatory against the female sex and also affected the dignity and status of women. For the above reasons, Parliament passed the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 which came into force on 1-1-1996. The Act has been renamed the Pre- Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. Further it has been amended in the year 2002.
The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 consisted 34 sections spread over eight chapters. The Act regulates genetic counseling centers, laboratories, clinics and also prenatal diagnostic techniques. It envisages the establishment of a Central Supervisory Board and Advisory Committee. The Act also prescribes penalties for the offences mentioned therein and gives the power to make rules.
The Act provides regulation for the use of prenatal diagnostic techniques only for the purpose of detecting genetic or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of the misuse of such techniques for the purpose of prenatal sex determination leading to female foeticide.
Section 6 of the Act prohibited any prenatal diagnostic technique tests including ultrasonography for determining the sex of a foetus. Every offence under this Act is cognizable, non-bailable, non- compoundable and triable by a Metropolitan Magistrate or Judicial Magistrate of the First Class.
Unfortunately, despite of the provisions of this Act determination of the sex of a foetus and abortion of female foetus continues.
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and Beijing Declaration and the Platform for Action (1995) have acknowledged this. The Phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain.
The Protection of Women from Domestic Violence Act is passed by the Parliament in response to a worldwide demand for such legislation and it is hoped that this legislation will act as a deterrent to the occurrences of domestic violence and assures the families peaceful coexistence among their members.
The Act has created two novel agencies to help the implementation of several provisions. The first one is the post of a Protection Officer and the other is an institution called service provider. They are both bound to help the aggrieved woman right from the moment they learn and with the filling of domestic event.
The Act as designed serves the purposes for which it is enacted viz. Protection of Women form Domestic Violence both explicit and dormant as widespread evil in several families. The victims may be wives, sisters, and mothers or any other female relative living in the shared household in domestic relationship. The Respondents are males and may also be female relative of the Respondent when the complaining woman is the wife or a person living in married relationship with the respondent. While complainant can be woman only, it is open to a male child to carry complaint under this Act provided he does so along with his mother
The Act is a central enactment the enactment of which is entrusted to the State Government. It is the State Government that appoints the Protection Officers, recognizes the Service Providers and authorizes the Medical Facility and Shelter-home to the aggrieved woman. The Magistrate and the Protection Officers are the active agents who enforce the provisions of this Act.
The moment a domestic violence takes place, the aggrieved woman may report the event to the Magistrate who refers the matter to the Protection Officer attached to the Court. She can also approach the Service Provider or the Protection Officer for helps. They both can provide the aggrieved woman immediate medical help and residence to live in a shelter home. The protection Officer/Service Provider shall file what is called Domestic Incident Report before Magistrate, who if the medical help and residence are not already provided may direct the Protection Officer to arrange for the aggrieved woman those facilities.
The Magistrate receiving the Domestic Incident Report which is equivalent to FIR may take up enquiry in the case which is hereafter called the Domestic Violence case and issue a notice to the respondent who is the perpetrator of violence to be served within two days and fix the third day as the date of hearing Meanwhile, If the Magistrate deemed it fit may issue ex-parte interim orders against the Respondent and direct the Protection Officer to seek that they are implemented by the Respondent. Such orders may be passed even after the appearance of the respondent as well pending issuance of relief prayed for by the aggrieved woman.
To provide relief the Magistrate can issue- (1) Protection orders (2) Residence Order (3) Maintenance Order, (4) Custody Orders and (5) Compensation orders. Protection orders include orders of injunction restraining the Respondent not to continue the acts of domestic violence against the aggrieved woman. Maintenance Orders include grant of maintenance to the aggrieved woman and her children if they are with her or for restoration of children if they are not in her custody. Compensation orders or orders directing the Respondent to pay for all the damages the aggrieved woman suffered physically and mentally by reason of domestic violence.
Magistrate tries the domestic violence case in a summary manner and he shall conclude the case within six months or in the manner in which the Magistrate under provisions of Criminal Procedure Code holds Security Proceedings. The Magistrate through the Protection Officer will see to it that the Respondent if necessary through the help of the police duly complies with the orders of the Magistrate. It is only when the Respondent fails to comply with the orders of the Magistrate the Respondent becomes liable to be prosecuted for defying the orders of the Magistrate.
All orders of the Magistrate are appeallable to the Sessions Court which disposes of the appeal a though it is as criminal appeal filed under Criminal Procedure Code. There is no revision to the Sessions Court or the High Court against the orders of the Magistrate. The order of the Session Court not being appealable, the High Court may entertain revision against the orders of the Session Court.
The Act by itself does not punish the perpetrator of domestic violence against the woman aggrieved. But if the case discloses any offences punishable under Indian Penal Code or any other penal law, or under the Dowry Prohibition Act or under Section 498A of the Criminal Procedure Code, the Magistrate may frame appropriate charges against the Respondent and try the case by himself or commit it to the Session Courts as the case may be.
There are a few oddities in this enactment. The Magistrate who takes congnizance of the case is also invested with the responsibility of executing his own orders even without being moved for their execution, in the interests of the aggrieved women in whose favour he issues them. Another oddity is that Protection Officer appointed under this Act apparently looks like a person to render voluntary public service without anybody approaching him with a complaint, he is made liable for prosecution if he commits any breach of his duties entrusted to him by the Magistrate. The third oddity is that in cases where there is no evidence except that of the aggrieved woman, her testimony shall be relied upon by the Magistrate in deciding incidence of violence but not the overall circumstances. These exceptions to the normal rules of evidence are justified in that the domestic violence mainly occurs in a private domestic environment beyond the public gaze.
THE PROHIBITION OF CHILD MARRIAGE ACT, 2006
Child marriage is an age-old problem in India. Child marriages are rampant in various Indian States especially in Rajasthan, Uttar Pradesh and Bihar. Even Today thousands of children, even babies in arms, are married in Rajasthan on auspicious days such as Akshaya Tritiya. One may recall the case of Bhanwari Devi, a thirty seven year old social worker, who was raped just because she tried to stop the marriage of a one-year-old child. Economic and sometimes even social compulsions force the parents to get minor daughters married. If a girl is married before puberty, her parents may not have to pay any dowry.
It is a well-known fact that child marriages affect not only the quality of marriage but also the next generation. Moreover, the child-bride suffers the most. Early marriage of a girl results in a social waste. It deprives her of educational opportunities. She also exposes herself to early and repeated pregnancies. Child marriage is a crime, which often results in the death of the child bride and sometimes maims her for life. It is an evil graver than sati because it is far more devastating in its consequences and more insidious in its working. Unfortunately, such on evil and crime go unpunished in the name of social or religious validity.
To tackle this evil/crime, The Child Marriage Restraint Act was passed in 1929. This Act, popularly known as Sarda Act, was amended in 1978 and repealed in 2006 and is now titled ―The Prohibition of Child Marriage Act, 2006 . It applies to all persons in India irrespective of their community, religion and nationality. Under this Act, the marriageable age for the boy is twenty-one years and for the girl eighteen years. The Act prohibits and prescribes punishments for parents and guardians who solemnize child marriages. But it does not affect the validity of the child marriage. However, every child marriage should be voidable at the option of the contracting party who was a child at the time of the marriage. A child begotten or conceived of child marriage should be deemed to be a legitimate child in spite of such marriage being annulled by a decree of nullity. Marrying a child by a male adult is punishable with rigorous imprisonment up to two years or fine up to one lakh rupees or both. Promoting or permitting solemnization of child marriage is also punishable with rigorous imprisonment up to two years or fine up to one lakh rupees or both. Every offence under the Act is cognizable, non-bailable.
Despite the fact that many years have lapsed after the passing of the Act, child marriages are rampant in India. The Act has failed to achieve its purpose because it does not peep into the causes that are responsible for this harmful practice.
The Constitution has authorized the legislatures to pass special protective laws in favour of women to undo the injustices done to them for ages. A large number of such laws have actually been passed under this head. These laws can misguide anyone. They create an illusion that women enjoy a privileged position in our society and have special rights at the cost of men, but illusion is short-lived and vanishes the moment one starts delving with facts. It is then that the real picture emerges and we realize that the whole bulk of this protective legislation is a very modest attempt to combat the deep-rooted and all pervasive evil of horrendous crimes that are committed against women every day. These were committed in that past & they are bringing committed in the present also. There seems to be no let up in man‘s brutality towards women in spite of protective laws to defend women.
It is impossible to de-link the problem of crimes against women from deeper social realities and to analyse the problem of the efficacy of protective laws in seclusion. Phenomenon like dowry demands, ill treatment of women, eve teasing, superior status of men, privileged position of sons-and bias against daughters have massive social sanctions behind them and cannot be removed despite progressive laws.
A critical examination of the legal provisions revealed that most of the protective laws for women suffer from various loopholes or shortcomings. They are complicated and ambiguous, and instead of solving the issues make the situation more complex. Often theprovisions of the laws are not clear and precise; it makes them the battleground for legal interpretation in the hierarchy of Courts. Certain laws remain confined to statue books, because the enforcement machinery is inadequate, or the penalties are not awarded according to the stipulations. Many of these protective laws like the Act prohibiting Sati were passed in such a great hurry that there was no time even to think about the various aspects of the enactment. Indecent Representation of Women is a classic example of a hurriedly passed law. The Act was passed with a lot of urgency yet the rules implementing that law were not made for years. This shows the callous attitude of the executive and the unenthusiastic reaction of the enforcement authorities.
The Dowry (Prohibition) Act is just one example,of the innumerable Acts that do not take into account the social realities of a woman‘s life. Such laws can only be a palliative measure to steer the state out of a problem and help it to get out of an uglysituation by appeasing a particular group of people. The laws on Sati and Cruelty against Married Women are some other examples of laws, which cannot be enforced effectively. In spite of a number of changes in the laws, the dowry problem not only continues, but also has assumed alarming proportions. It has even spread to community where it did not exist, thereby putting the efficacy of the system in doubt. The continued difference in various personal laws and absence of adequate enforcement mechanisms has made many of the other laws ineffective.
The Act on Prostitution remains a paper tiger because there is no responsible agency to monitor its use or abuse. The Actneglects the root cause of this evil. It has failed to plug the supply and the demand position of the flesh market, which remains unchanged. In fact, the new Act has only pushed the trade underground, but it is flourishing nevertheless. The call girl culture, liaison girls, use of female figures in the advertisement of consumer products, all ensure renewed life to this profession because the Act neither prohibits prostitution altogether nor gives legitimacy to promiscuous sex activity; by keeping a neutral attitude to the profession itself, the Act seeks to identify and deal with the crimes connected with it. The law starts with the presumption that it is an inevitable evil and cannot be curbed. It treats prostitutes, the victims of social injustice, as criminals and is silent on the punishment of those who hire them. Girls arc either raped or molested and then sold into the business. Sometimes extreme poverty forces them to take to prostitution. There were instances of channelising young girls into prostitution through religious and cultural sanctions also.
Some of the laws, which were passed after much deliberation and thinking are also, not better.
Indian female lives in two types of reality, social & legal. Legally she can claim perfect equality with male, but socially she is still neglected & oppressed. It is ironical that while on the one hand, we place a woman in her adult form on a very high pedestal. We honour and worship her as Saraswati, the Goddess of learning, as Lakshmi, the Goddess of wealth and as Durga, the Goddess of power.
On the other, hand we adopt double standards as far as human rights are concerned. Notwithstanding Constitutional guarantees, international instruments and laws for her protection, the girl child remains the most marginalized from any kind of development. No law, custom, tradition, culture or religious consideration can be invoked to excuse discrimination against her. The fight for gender justice is not a fight against men; it is a fight against traditions that have chained our daughters; a fight against attitudes ingrained in society. The census of 2011 presents a sad picture of sex ratio in our country. We must rise and combat this.
With a view to convert the equality of women from de jure to de facto, educating the female would play an important role. So long as there is disparity between the male and female at education level, the difference between the position of men and women would continue to exist. It is unfortunately true that a woman has, even in her own home is given a rather subordinate role to play. For the emancipation for woman in every field, economic independence is of paramount importance. Along with economic independence, equal emphasis must also to be laid on the total development of women – creating awareness among them about their rights and responsibilities – the recognition of their vital role and the work they do at home. If necessary, a social system must evolve. The society must respond and change its attitude. Unless the society recognizes her basic human rights, women- empowerment would only be lip service with no tangible result.
To some extent, judicial activism has played a vital role in removing the discrimination against women and protecting her from the act of violence in almost all walks of life. The gender sensitive approach of the judiciary, as is reflected in a number of decisions is a ray of hope.
- Equality before law for women
- The State not to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
- The State to make any special provision in favour of women and children
- Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State
- The State to direct its policy towards securing for men and women equally the right to an adequate means of livelihood
- equal pay for equal work for both men and women
- To promote justice, on a basis of equal opportunity and to provide free legal aid by suitable legislation or scheme or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities
- The State to make provision for securing just and humane conditions of work and for maternity relief
- The State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation
- The State to raise the level of nutrition and the standard of living of its people
- To promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women
- Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat to be reserved for women and such seats to be allotted by rotation to different constituencies in a Panchayat
- Not less than one- third of the total number of offices of Chairpersons in the Panchayats at each level to be reserved for women
- Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality to be reserved for women and such seats to be allotted by rotation to different constituencies in a Municipality
- Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the Scheduled Tribes and women in such manner as the legislature of a State may by law provide
- Section 10-A, the Immoral Traffic [Prevention] Act, 1956.
- Section 15, the Immoral Traffic [Prevention] Act, 1956.
- Section 22-B. the Immoral Traffic [Prevention] Act, 1956.
- Section 19 & 21. the Immoral Traffic [Prevention] Act, 1956.
- Upendra Baxi (Dr.) v. State of U.P.,(1983) 2 SCC 308.
- Radha Bai v. Union Territory of Pondicherry (1995) 4 SCC 141.
- Section 17 &17-A. the Immoral Traffic [Prevention] Act, 1956.
- Section 3. the Dowry Prohibition Act, 1961.
- Section 4. the Dowry Prohibition Act, 1961.
- Section 5. the Dowry Prohibition Act, 1961.
- Section 4-A. the Dowry Prohibition Act, 1961.
- Section 6. the Dowry Prohibition Act, 1961.
- Section 8. the Dowry Prohibition Act, 1961.
- Section 7. the Dowry Prohibition Act, 1961.
- Section 8-B. the Dowry Prohibition Act, 1961.
- Section 3. the Medical Termination of Pregnancy Act, 1971.
- Sec 3, the Indecent Representation of Women [Prohibition] Act, 1986.
- Sec 4, the Indecent Representation of Women [Prohibition] Act, 1986.
- Sec 8, the Indecent Representation of Women [Prohibition] Act, 1986.
- Sec 3, the Indecent Representation of Women [Prohibition] Act, 1986.
- Sec 4, the Indecent Representation of Women [Prohibition] Act, 1986.
- Sec 6 , the Indecent Representation of Women [Prohibition] Act, 1986.
- Sec 3, the Commission of Sati [Prohibition) Act in 1987.
- Sec 4, the Commission of Sati [Prohibition) Act in 1987.
- Sec 18, the Commission of Sati [Prohibition) Act in 1987.
- Sec 5, the Commission of Sati [Prohibition) Act in 1987.
- Sec 8, the Commission of Sati [Prohibition) Act in 1987.
- Sec 7, the Commission of Sati [Prohibition) Act in 1987.
- Sec 9 & 11, the Commission of Sati [Prohibition) Act in 1987.
- Sec 2, the National Commission for Women Act, 1990
- Sec 8, the National Commission for Women Act, 1990
- Sec 9, the National Commission for Women Act, 1990
- Sec 10, the National Commission for Women Act, 1990 49. (1997) 6 SCC 241.
50. (1995) 1 SCC 14.
51. AIR 2006 Ker 191.
- Sec 3, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
- Sec 4, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
- Sec 7, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
- Sec 17, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
- Sec 23, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
- Sec 32 & 33, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
- Sec 6, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
- Sec 27, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
- Sec 28, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
- Sec 8, the Protection of Women from Domestic Violence Act, 2005.
- Sec 10, the Protection of Women from Domestic Violence Act, 2005.
- Sec 3, the Protection of Women from Domestic Violence Act, 2005.
- Sec 11, the Protection of Women from Domestic Violence Act, 2005.
- Sec 4, the Protection of Women from Domestic Violence Act, 2005.
- Sec 9, the Protection of Women from Domestic Violence Act, 2005.
- Sec 12, the Protection of Women from Domestic Violence Act, 2005.
- Sec 18, the Protection of Women from Domestic Violence Act, 2005.
- Sec 19, the Protection of Women from Domestic Violence Act, 2005.
- Sec 20, the Protection of Women from Domestic Violence Act, 2005.
- Sec 21, the Protection of Women from Domestic Violence Act, 2005.
- Sec 22, the Protection of Women from Domestic Violence Act, 2005.
- Sec 12(5) , the Protection of Women from Domestic Violence Act, 2005.
- Sec 29, the Protection of Women from Domestic Violence Act, 2005.
- Sec 33, the Protection of Women from Domestic Violence Act, 2005.
- Sec 2(a), the Prohibition of Child Marriage Act, 2006.
- Sec 10, the Prohibition of Child Marriage Act, 2006.
- Sec 3, the Prohibition of Child Marriage Act, 2006.
- Sec 6, the Prohibition of Child Marriage Act, 2006.
- Sec 9, the Prohibition of Child Marriage Act, 2006.
- Sec 11, the Prohibition of Child Marriage Act, 2006.
- Sec 15, the Prohibition of Child Marriage Act, 2006.
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